Dy. Commissioner of Income tax, Faizabad V. M/s. AI- Imam Charitable Foundation, Faizabad

ITA 714/LKW/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6559 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-04-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 02-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P K DEY
• Assessee Lawyers: P K KAPOOR
• Keywords: Charitable institution
• Section: 143(3); 12AA; 263; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.714/LKW/2011 ASSESSMENT YEAR:2008 - 09 DY.C.I.T., CIRCLE - FAIZABAD. VS. M/S AL - IMAM CHARITABLE FOUNDATION, TAJPUR, AKBARPUR, AMBEDKAR NAGAR. PAN:AAAAA9338C (APPELLANT) (RESPONDENT) C.O.NO.36/LKW/2012 (IN ITA NO.714/LKW/2011) ASSESSMENT YEAR:2008 - 09 M/S AL - IMAM CHARITABLE FOUNDATION, TAJPUR, AKBARPUR, AMBEDKAR NAGAR. PAN:AAAAA9338C VS. DY.C.I.T., CIRCLE - FAIZABAD. (OBJECTOR) (RESPONDENT) REVENUE BY SHRI P. K. DEY, D.R. ASSESSEE BY SHRI P. K. KAPOOR, C.A. DATE OF HEARING 28/04/2014 DATE OF PRONOUNCEMENT 1 6 /05/2014 O R D E R PER A. K. GARODIA, A.M. THE APPEAL IS FILED BY THE REVENUE AND THE CROSS OBJECTION IS FILED BY THE ASSESSEE, WHICH ARE DIRECTED AGAINST THE ORDER OF CIT ( A) - I, LUCKNOW DATED 08/09/2011 FOR ASSESSMENT YEAR 2008 - 2009. 2. THE GROUNDS RAISED BY THE REVENUE IN ITS APPEAL ARE AS UNDER: 1. LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN HOLDING THAT EVEN IF MAIN BENEFICIARY IS SHIA COMMUNITY THE 2 ASSESSEE SOCIETY IS NOT HIT BY THE PROVISIONS OF SECTION 13(1)(B) OF THE ACT, IGNORING THE FACT THAT THE ASSESSEE IS A CHARITABLE TRUST AND NOT A RELIGIOUS ONE. 2. LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN HOLDING THAT THE A.O. HAD NOT BROUGHT ANY INSTANCES OF DEVIATIONS OR CONTRAVENTION WHICH MIGHT DISENTITLE THE ASSESSEE FROM EXEMPTION DESPITE THE FACT THAT IT WAS FIRMLY ESTABLISHED IN T HE ASSESSMENT ORDER THAT THE ASSESSEE SOCIETY IS ESTABLISHED MAINLY FOR THE BENEFIT OF A PARTICULAR RELIGIOUS COMMUNITY AND HENCE IT IS HIT BY THE PROVISIONS OF SECTION 13(1)(B) OF THE ACT. 3. THE GROUNDS RAISED BY THE ASSESSEE IN ITS CROSS OBJECTION AR E AS UNDER: 1. BECAUSE IN VIEW OF ORDER DATED 29.03.2010 PASSED U/S 143(1) OF THE ACT AFTER THE ISSUE OF NOTICE U/S 143(2) ON 25.09.2009 THE 'ASSESSEE/CROSS OBJECTOR' STOOD DULY ASSESSED TO TAX ON 29/03/2010 ITSELF AND THE SUBSEQUENT ORDER DATED 30.12.20 10 THUS CAPTIONED U/S 143(3) OF THIS 'ACT' WAS WHOLLY ILLEGAL AND THE ID. CIT(APPEALS) HAS ERRED IN UPHOLDING THE VALIDITY OF THE SAME. 2. BECAUSE THE SELECTION OF A CASE FOR SCRUTINY IS THE SOLE PREROGATIVE OF THE 'ASSESSING OFFICER' AND THE LD. CIT (APPEALS) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ASSESSMENT ORDER PASSED ON THE BASIS OF NOTICE UNDER SECTION 143(2) THAT HAD BEEN ISSUED IN VIOLATION OF CLAUSE (II) THEREOF. 3. BECAUSE THE ACTIVITIES CARRIED ON BY THE 'ASSESSEE/CROSS OBJECTOR' CO NFORMED FULLY TO ITS OBJECTS ON THE BASIS OF WHICH REGISTRATION UNDER SECTION 12AA HAD BEEN GRANTED TO IT AND ITS CLAIM FOR FULL EXEMPTION UNDER SECTION 11 WAS LIABLE TO BE UPHELD ON THIS GROUND ALSO. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT ON PAGES 115 TO 116 OF THE PAPER BOOK IS THE COPY OF THE ASSESSMENT ORDER DATED 3 22/02/2013 FOR ASSESSMENT YEAR 2007 - 08 PASSED BY THE AS SESSING OFFICER U/S 263/143(3) OF THE ACT AND AS PER THIS ASSESSMENT ORDER, EXEMPTION WAS ALLOWED TO THE ASSESSEE A F TE R DEALING WITH ALL THE OBJECTIONS OF THE CIT AS PER HIS ORDER U/S 263 DATED 06/03/2012. HE ALSO SUBMITTED THAT THE ORDER OF CIT IS ALSO A VAILABLE IN THE PAPER BOOK ON PAGE NO. 108 TO 112 AND COPY OF SHOW CAUSE NOTICE ISSUED BY CIT IS ALSO AVAILABLE ON PAGE NO. 106 TO 107 OF THE PAPER BOOK. HE SUBMITTED THAT WHEN UNDER SAME FACTS, THE EXEMPTION WAS ALLOWED IN ASSESSMENT YEAR 2007 - 08, EXEMPT ION SHOULD BE ALLOWED TO THE ASSESSEE IN THE PRESENT YEAR ALSO. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE ORDER PASSED BY THE ASSESSING OF FICER U/S 263/143(3) DATED 22/02/2013 FOR ASSESSMENT YEAR 2007 - 08 IS AVAILABLE FROM PAGE 115 TO 116 OF THE PAPER BOOK. IN THIS ORDER, WE FIND THAT IT WAS HELD BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS FILED THE NECESSARY EVIDENCE REGARDING DISBURSAL OF CHARITY, INSTALLATION OF HAND PUMPS , WATER COOLERS ETC. AT VARIOUS CIVIC PLACES, HOSPITALS, RESIDENCE OF THE PEOPLE WITHOUT ANY PARTIALLY OF CASTE AND CREED. WE FURTHER NOTED THAT THE COPIES OF CERTIFICATES/ LETTERS FROM THE CHAIRMAN, NAGAR PALIKA PAR ISHAD AKBARPUR, AMBEDKARNAGAR, PRADHAN VILL. MOHIUDDINPUR AKBARPUR AMBEDKARNAGAR, PRADHAN VILL - HAJIPUR MARUI, AKBARPUR AMBEDKARNAGAR, CMS AKBARPUR AMBEDKARNAGAR ETC. WERE ALSO FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN THAT YEAR . IN THAT YEAR, WE FIND THAT IT WAS NOTED BY THE CIT IN HIS ORDER PASSED BY HIM U/S 263 THAT IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2008 - 09 , IT WAS HELD BY THE ASSESSING OFFICER THAT THE PROVISION OF SECTION 13(1)(B) WERE ATTRACTED. THESE FACTS SHOW THAT THE FACTS IN THE PRESENT YEAR REGARDING THE OBJECTION OF THE ASSESSING OFFICER 4 ARE SIMILAR WITH FACTS IN ASSESSMENT YEAR 2008 - 09 . IN THAT YEAR, ON THE BASIS OF THE EVIDENCE S BROUGHT ON RECORD BY THE ASSESSEE IN SUPPORT OF THE DISBURSEMENT OF CHARITY ETC., FULL EXEMPTI ON WAS ALLOWED BY THE ASSESSING OFFICER. IN THE PRESENT YEAR, NO FINDING IS GIVEN BY THE CIT (A) THAT SUCH EVIDENCE S IN THE PRESENT YEAR WERE ALSO MADE AVAILABLE BEFORE HIM. HENCE, WE ARE OF THE CONSIDERED OPINION THAT THE ISSUE IN THE PRESENT YEAR SHOULD ALSO GO BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH DECISION IN THE LIGHT OF THE FACTS AND EVIDENCES IN THE PRE SENT YEAR. WE, THEREFORE, SET ASIDE THE ORDER OF LEARNED CIT (A) AND RESTORE THE MATTER TO THE FILE OF ASSESSING OFFICER FOR FRESH DECISION WITH THE DIRECTION THAT IF THE ASSESSEE IS ABLE TO PRODUCE THE EVIDENCE S REGARDING DISBURSEMENT OF CHARITY, INSTALL ATION OF HAND PUMPS , WATER COOLERS ETC. AT VARIOUS CIVIC PLACES, HOSPITALS, RESIDENCE OF THE PEOPLE WITHOUT ANY PARTIALLY OF CASTE AND CREED AND NECESSARY CERTIFICATES/ LETTERS FROM THE CHAIRMAN, NAGAR PALIKA PARISHAD AKBARPUR, AMBEDKARNAGAR ETC. ARE BROU GHT ON RECORD, THEN THE ASSESSEE SHOULD BE HELD TO BE ELIGIBLE FOR EXEMPTION AS WAS HELD BY THE ASSESSING OFFICER IN ASSESSMENT YEAR 2008 - 09. HOWEVER, WE WANT TO MAKE IT CLEAR THAT THE BURDEN IS ON THE ASSESSEE TO PLACE NECESSARY EVIDENCE ON RECORD TO EST ABLISH THAT THE EXPENSES WERE INCURRED FOR CHARITY AS PER THE OBJECTS OF THE ASSESSEE INSTITUTION WITH OUT ANY PARTIALITY TOWARDS CASTE AND CREED. THE ASSESSING OFFICER SHOULD PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING ADEQUATE AND REASONABLE OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. 7. REGARDING THE CROSS OBJECTION FILED BY THE ASSESSEE, WE FIND THAT NO ARGUMENT WAS ADVANCED BY LEARNED A.R. OF THE ASSESSEE IN RESP ECT OF 5 VARIOUS ISSUES RAISED BY THE ASSESSEE IN THE CROSS OBJECTION AND HENCE, WE HOLD THAT IN THE ABSENCE OF ANY ARGUMENT HAVING BEEN ADVANCED BY LEARNED A.R. OF THE ASSESSEE, THERE IS NO INTERFERENCE CALLED FOR IN THE ORDER OF CIT ( A) IN RESPECT OF THESE ISSUE S RAISED BY THE ASSESSEE IN THE CROSS OBJECTION. AS A RESULT, THE CROSS OBJECTION OF THE ASSESSEE STANDS DISMISSED. 8. IN THE COMBINED RESULT, THE APPEAL OF THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTION OF THE ASSESSE E STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL K UMAR YADAV) ( A. K. GARODIA ) JUDI CIAL MEMBER ACCOUNTANT MEMBER DATED: 1 6 /0 5 /2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. DR, ITAT, LUCKNOW