ADARSH EDUCATION SOCIETY, MUMBAI V. ITO (E) 1(1), MUMBAI

ITA 7513/MUM/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2935 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 21-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ KUMAR LD
• Assessee Lawyers: SATISH MODY LD AR ABC
• Keywords: Charitable institution; Opportunity of being heard; Set aside
• Section: 143(3); 12A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.7513/MUM/2016 ( / ASSESSMENT YEAR: 2012-13) ADARSH EDUCATION SOCIETY 1407, CASA GRAND TOWERS, 14TH FLOOR S.B. MARG, OPP. PENINSULA CORPORATE PARK, LOWER PAREL, MUMBAI-400 018. / VS. INCOME TAX OFFICER (EXEMPTIONS) - 1(1) ROOM NO.508, 5TH FLOOR PIRAMAL CHAMBERS PAREL, MUMBAI-400 012. => ./ ./PAN/GIR NO. AAATA-6104-D ( >@ /APPELLANT ) : ( AB>@ / RESPONDENT ) >@C / APPELLANT BY : SHRI SATISH MODY - LD. AR AB>@C / RESPONDENT BY : SHR I M ANOJ KUMAR LD.DR / DATE OF HEARING : 29/08/2019 / DATE OF PRONOUNCEMENT : 04/09/2019 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2012-13 CONTEST THE ORDER OF LD. COMMIS SIONER OF INCOME-TAX (APPEALS), MUMBAI-1, [IN SHORT REFERRED TO AS CIT( A)], APPEAL NO. CIT(A) I/IT/E-I(62)/2015-16 DATED 14/10/2016 PARTLY CONFIRMING THE ASSESSMENT 2 FRAMED BY LEARNED AO U/S 143(3) ON 28/03/2015. THE ASSESSEE IS AGGRIEVED BY DISALLOWANCES / COMPUTATIONS MADE BY L D. AO IN TERMS OF SECTION 11(1)(A) / 11(2) & 11(3) OF THE INCOME TAX ACT, 1961. THE ASSESSEE IS STATED TO BE A TRUST REGISTERED U/S 12A OF THE A CT. 2 AS PER ASSESSEES COMPUTATION, THE ASSESSEE HAS E ARNED GROSS INCOME OF RS.432.38 LACS DURING THE YEAR CONSIDERAT ION AND 15% OF THE SAME I.E. 64.85 LACS HAS BEEN SET APART FOR APPLICA TION AS PER SECTION 11(1)(A) OF THE ACT. THE ASSESSEE IS STATED TO HAVE APPLIED AMOUNT FOR CHARITABLE PURPOSE TO THE EXTENT OF RS.166.33 LACS (EXCLUDING EXPENDITURE OF RS.65.41 LACS SPENT OUT OF INCOME OF AY 2011-12) . THE BALANCE SURPLUS I.E. RS.201.19 LACS HAS BEEN ACCUMULATED U/S 11(2). HOWEVER, LD. AO, VIDE PARA 5.2, RECOMPUTED THE SURPLUS FOR THE YEAR AT RS.147.34 LACS AS AGAINST RS.201.19 LACS COMPUTED BY THE ASSESSEE. FU RTHER, THE AMOUNT OF RS.44.11 LACS STATED TO BE INCURRED OUT OF ACCUMULA TED INCOME OF EARLIER AY WAS HELD TO BE INCURRED FOR GENERAL PURPOSE AND NOT UTILIZED FOR SPECIFIC PURPOSES IN VIOLATION OF SECTION 11(2). IN THE FINA L COMPUTATIONS, THE CLAIM U/S 11(2) WAS RESTRICTED TO RS.147.34 LACS AND AN A MOUNT OF RS.114.43 LACS WAS BROUGHT TO TAX AS THE INCOME OF THE ASSESS EE U/S 11(3). ALTHOUGH THE ASSESSEE ASSAILED THE COMPUTATIONS BEFORE LD. C IT(A), HOWEVER, WITHOUT ANY SUCCESS VIDE IMPUGNED ORDER DATED 14/10 /2016. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3. DURING THE COURSE OF HEARING, LEARNED AUTHORIZED REPRESENTATIVE FOR ASSESSEE, INTER-ALIA, STRESSED THE POINT THAT THE ACTION OF LD. AO HAS RESULTED INTO DOUBLE TAXATION OF INCOME AND THE FAC TUAL MATRIX REQUIRE TO BE RE-ASCERTAINED SINCE THE ISSUE HAS NOT BEEN INDEPEN DENTLY EXAMINED / 3 DELIBERATED BY LEARNED FIRST APPELLATE AUTHORITY. T HE LEARNED DEPARTMENTAL REPRESENTATIVE ALSO CONCURRED WITH THE SAID SUBMISS IONS AND PLEADED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF LD.A O FOR RE-CONSIDERATION. 4. KEEPING IN VIEW THE PLEADINGS MADE BY RESPECTIVE REPRESENTATIVE, THE BENCH FORMED AN OPINION THAT IT WOULD BE IN THE FIT NESS OF THING TO SET ASIDE THE IMPUGNED ORDER ON THE STATED ISSUES AND RESTORE THE MATTER BACK TO THE FILE OF LD. AO FOR ADJUDICATION DE-NOVO. WE ORDER SO. NEEDLESS TO ADD THAT SUFFICIENT OPPORTUNITY OF BEING HEARD SHALL BE GRAN TED TO THE ASSESSEE, WHO IN TURN, IS DIRECTED TO PUT FORTH HIS STAND, IN THI S REGARD. 5. IN THE RESULT, THE APPEAL STANDS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH SEPTEMBER, 2019. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : SR.PS:-JAISY VARGHESE 78 98 / COPY OF THE ORDER FORWARDED TO : 1. >@ / THE APPELLANT 2. AB>@ / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. W X A Y , Y , / DR, ITAT, MUMBAI 6. X Z[\ / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.