The Joint Commissioner of Income Tax (OSD)/, Kanpur V. M/S Artificial Limbs Manufacturing Corporation of India, Kanpur

ITA 739/LKW/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5173 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 19-12-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 16-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P K KAPOOR
• Keywords: Charitable institution; Revised return
• Section: 12A; 12AA; 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.739/LKW/2011 A.Y.:2008 - 09 JT.C.I.T.(OSD)/DY.CIT - 6, KANPUR. VS. M/S ARTIFICIAL LIMBS MANUFACTURING CORPORATION OF INDIA, G. T. ROAD, KANPUR. PAN:AABCA8899F (APPELLANT) (RESPONDENT) C.O.NO.30/LKW/2012 (IN ITA NO.739/LKW/2011) A.Y.:2008 - 09 M/S ARTIFICIAL LIMBS MANUFACTURING CORPORATION OF INDIA, G. T. ROAD, KANPUR. PAN:AABCA8899F VS. JT.C.I.T.(OSD)/DY.CIT - 6, KANPUR. (OBJECTOR) (RESPONDENT) REVENUE BY SHRI RAJIV JAIN, CIT, D.R. ASSESSEE BY SHRI P. K. KAPOOR, C.A. DATE OF HEARING 19/12/2013 DATE OF PRONOUNCEMENT 2 7 /12/2013 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) - II, KANPUR DATED 30 TH SEPTEMBER 2011 FOR ASSESSMENT YEAR 2008 - 09. 2 2. AT THE VERY OUTSET, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE CROSS OBJECTION OF THE ASSESSEE IS NOT PRESSED AND ACCORDINGLY THE SAME IS DISMISSED AS NOT PRESSED. 3. NOW WE TAKE UP THE APPEAL FILED BY THE REVENUE. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO RE - COMPUTE THE INCOME OF THE ASSESSEE IN VIEW OF PROVISION OF SECTION 10(23C) READ WITH SECTION 11 AND 13 OF THE INCOME TAX ACT, 1961 WITHOUT APPRECIATING THE FACTS THAT PROVISION OF SECTION 10(23C) IS NOT APPLICABLE IN THE CASE OF THE ASSESSEE. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING, BUYING, SELLING, IMPORTING AND EXPORTING OF ARTIFICIAL LIMBS ACCESSORIES AND CONSTITUENTS THEREOF AND EARNING PROFIT . THE COMPANY IS NOT A HOSPITAL, CHARITABLE INSTITUTIONS ETC. AS REQUIRED U/S 10(23C). MOREOVER, THE ORDER OF ITAT, DIRECTING FOR GRANT OF REGISTRATION U/S 10(23C] MOREOVER, THE ORDER OF ITAT, DIRECTING FOR GRANT OF REGISTRATION U/S 12AA HAS NOT BEEN ACCEP TED BY THE DEPARTMENT. IT IS SUB JUDICE AS APPEAL U/S 260 AND PENDING BEFORE HON'BLE HIGH COURT ON THIS ISSUE. 2. THAT THE ORDER OF LD. COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN PASSING ORDER FOR CONSIDERING THE CLAIM OF THE ASSESSEE U/S 11 AND 13 ON THE BASIS OF EXEMPTION GRANTED BY THE COMMISSIONER OF INCOME TAX - II, KANPUR AND IGNORING THE FACT THAT THE ASSESSING OFFICER HAS NO POWER TO ENTERTAIN A CLAIM MADE BY THE ASSESSEE AFTER FILLING OF ORIGINAL RETURN OTH ERWISE BY THAN FILLING OF REVISED RETURN AS HELD IN THE CASE OF GOETZE (INDIA) LIMITED VS COMMISSIONER OF INCOME TAX (2006) 157 TAXMAN 1 (SC). 3. THAT THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), BEING ERRONEOUS, UNJUST AND BAD IN LAW BE VACATED AND THE ORDER OF ASSESSING OFFICER RESTORED. 3 4. THAT THE APPELLANT CRAVES LEAVE TO MODIFY ANY OF THE GROUNDS OF APPEAL GIVEN ABOVE AND /OR ADD ANY FRESH GROUND AS AND WHEN IT IS CONSIDERED NECESSARY TO DO SO. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS THE LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT ( A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND WE FIND THAT IT IS UNDISPUTED FACT THAT AS PER ITS ORDER DATED 15/09/2008, PASSED BY THE TRIBUNAL, REGISTRATION U/S 12AA WAS GRANTED TO THE ASSESSEE AND ALTHOUGH IT IS SUBMITTED BEFORE US THAT THE REVENUE HAS FI LED APPEAL BEFORE HON'BLE ALLAHABAD HIGH COURT AGAINST THIS ORDER BUT THE OPERATION OF THE TRIBUNAL ORDER HAS NOT BEEN STAYED BY THE HON'BLE HIGH COURT. HENCE, THIS TRIBUNAL ORDER IS VALID AND HOLDS THE FIELD EVEN TODAY. THE LEARNED CIT ( A) HAS DECIDED T HE ISSUE AS PER PARA 7 OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: 7. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, SUBMISSIONS AND APPELLATE ORDERS IN THE CASE RELIED UPON BY APPELLANT, I AM OF CONSIDERED VIEW THAT THE LD. ASSESSING OFFICER SHOULD HAVE TAKEN COGNIZANCE OF THE CLAIM MADE BY THE APPELLANT U/S. 11 OF THE ACT. ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO RE - COMPUTE THE INCOME OF THE APPELLANT IN TERMS OF SECTION 11 TO 13 OF THE ACT KEEPING IN VIEW THAT LD. COMMISSIONER OF INCOME - TAX - II, KANPUR HAS ALREADY GRANTED REGISTRATION U/S. 12AA OF THE ACT. SINCE THE RELIEF IS ALLOWED TO THE APPELLANT, I AM NOT ADJUDICATING ON OTHER GROUNDS OF APPEAL. 5.1 FROM THE ABOVE PARA OF THE ORDER OF LEARNED CIT ( A), WE FIND THAT THE CIT ( A) HAS SIMPLY DIRECTED THE ASSESSING OFFICER TO RECOMPUTE THE INCOME OF THE ASSESSEE IN TERMS OF SECTION 11 TO 13 OF THE ACT KEEPING IN VIEW THE FACT THAT THE LEARNED CIT - II, KANPUR HAS ALREADY GRANTED REGISTRATION U/S 12A OF THE ACT. WE DO NOT FIND ANY INFIRMITY IN THE ORDER 4 OF LEARNED CIT ( A) AND HENCE, WE DECLINE TO INTERFERE IN HIS ORDER. REGARDING THE JUDGMENT RENDERED BY HONBLE APEX COURT IN THE CASE OF GOETZE (INDIA) LIMITED VS CIT (SUPRA) CITED BY THE REVENUE IN THE GROUN DS, WE WOULD LIKE TO OBSERVE THAT AS PER THIS JUDGMENT ITSELF, IT DOES NOT IMPINGE THE POWERS OF THE ITAT OR CIT (A). HENCE, IT DOES NOT HELP THE REVENUE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 7 T H DECEMBER, 2013. *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 ASSTT. REGISTRAR