Bhagwan Mahavir Charitable Trust, Ludhiana V. The Income Tax Officer, Ludhiana

ITA 760/CHANDI/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6993 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 10-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Charitable institution
• Section: 12A; 12AA; 147; 148; 12; 2; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NOS. 760 TO 762/CHD/2016 A.YS: 2008-09 TO 2010-11 M/S BHAGWAN MAHAVIR CHARITABLE TRUST, VS. THE ITO , 11-12/A, RAM BAGH, WARD VI(1), AGGAR NAGAR, AYAKAR BHAWAN, LUDHIANA. RISHI NAGAR, PAN NO. : AABTB8214G LUDHIANA. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH RESPONDENT BY : SHRI S.K.MITTAL, SR.DR DATE OF HEARING : 07.06.2017 DATE OF PRONOUNCEMENT : 11.08.2017 ORDER BY THESE THREE APPEALS THE ASSESSEE ASSAILS THE CORRE CTNESS OF THE SEPARATE ORDERS DATED 01.03.2016 OF CIT(A)-4 LUDHIANA PE RTAINING TO 2008-09, 2009-10 AND 2010-11 ASSESSMENT YEARS ON VARIOUS GRO UNDS. 2. THE LD. AR SUBMITTED THAT IN THE FACTS OF THE PRESEN T CASE, REGISTRATION HAS BEEN GRANTED TO THE ASSESSEE TRUST I N 2011-12 ASSESSMENT YEAR VIDE ORDER DATED 25.07.2011 OF CIT-3 LU DHIANA WHICH IS AN ACCEPTED FACT. IN THE SAID BACKGROUND, IT WAS HI S PRAYER THAT THE ORDERS MAY BE REMANDED TO THE LD. CIT(A) IN TERMS OF THE PROVISIONS OF LAW APPLICABLE WHICH HAVE BEEN SO CONSIDERED BY THE ITAT IN ITS ORDER DATED 21.11.2016 IN ITA 553/2014 AND OTHERS IN THE CAS E OF SWAMI GANESHANAND MAHARAJ DHARMARTH TRUST, UCHANA KALAN, JIN D VS ITO PERTAINING TO THE VERY SAME THREE ASSESSMENT YEARS. T HE ITAT IN THE SAID BATCH MATTER OF THE SAID GROUP HELD CONSIDERING IDENTICAL S ET OF FACTS, THE ASSESSEE'S ARGUMENT THAT THE EXEMPTION U/S 11 AND 1 2 OF THE ACT WAS ALLOWABLE IN VIEW OF THE APPLICABILITY OF THE FIRST PROVISO TO SE CTION 12A(2) AS THEREIN ALSO, THE REGISTRATION HAD BEEN GRANTED TO THE ASSESSEE TRUST ON 31.07.2012 APPLICABLE FROM 2012-13 ASSESSMENT YEAR. T HE DIRECTIONS OF THE ITAT IN THE SAID CASE, IT WAS SUBMITTED, HAD BEEN A RRIVED AT AFTER CONSIDERING THE APPLICABILITY OF A DECISION OF THE PUNE BENCH OF THE ITAT IN THE CASE OF M/S SHRI VISHWAKALYAN JIVRAKSHA PRATISHTHAN WHEREIN VIDE ITA 760TO762/CHD/2016 A.Y. 2008-09 TO 2010-11 PAGE 2 OF 3 ORDER DATED 22.07.2016, THE ISSUE HAD BEEN REMANDED WITH THE FOLLOWING OBSERVATION : HAVING ADMITTED THE ADDITIONAL GROUND RAISED BEFORE US, WE CONSIDER IT FIT TO RESTORE THE MATTER TO THE LD. CIT(A) TO VERIFY THE APPLICABILIT Y OF THE FIRST PROVISO TO SECTION 12AA(2) OF THE ACT IN THE LIGHT OF THE FACTS OF THE CASE AN D ALSO AFTER CONSIDERING THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL AND M/S SHRI VISHWAKALYA N JIVRAKSHA PRATISHTHAN (SUPRA) ANY OTHER DECISION WHICH THE ASSESSEE WISHES TO PLA CE RELIANCE UPON AND THEREAFTER ADJUDICATE THE ADDITIONAL GROUND RAISED BEFORE US I N ACCORDANCE WITH LAW. 2.1 ACCORDINGLY, IT WAS HIS PRAYER THAT IN THE FAC TS OF THE PRESENT CASE, SINCE THE LD. CIT(A) DID NOT HAVE THE BENEFIT OF THE VIEW TAKEN BY THE ITAT, WHERE REGISTRATION ADMITTEDLY HAD BEEN GRANTED FOR 2011-12 ASSESSMENT YEAR, THE ISSUE MAY BE REMANDED BACK TO THE CIT(A) FOLLOWING THE PRECEDENT. 3. THE LD. SR. DR SHRI S.K.MITTAL DID NOT OPPOSE THE SAID REQUEST. 4. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. I FIND THAT IN THE FACTS OF THE PRESENT CASE, ADMITTEDLY RE- OPENING HAS BEEN DONE ON THE BASIS OF THE FACT THAT REGISTRATION TO THE ASSESSEE TRUST WAS ALLOWED U/S 12AA(1)(B) OF THE INC OME TAX ACT,1961 VIDE CIT-III LUDHIANAS ORDER NO. 1483 DATED 26.07.2 011 W.E.F. A.Y. 2011-12 AND THE BENEFIT OF REGISTRATION WAS NOT AVAILA BLE FOR THE YEARS UNDER CONSIDERATION. IT IS SEEN THAT IN THE FACTS O F THE PRESENT CASE ALSO, THE ASSESSEE BEFORE THE CIT(A) ASSAILED THE PROCEEDI NGS U/S 148 OF THE ACT AND ALSO THE DECISION OF THE AO. ON PERUSAL OF G ROUND NOS. 1, 2 AND 3 RAISED IN THE PRESENT PROCEEDINGS ALSO, IT IS SEEN THAT THE ISSUE IS AGITATED BEFORE THIS FORUM. THESE GROUNDS ARE REPRO DUCED HEREUNDER FOR READY REFERENCE : 1. THAT THE LD. C1T(A) HAS GROSSLY ERRED IN HOLD ING THAT PROVISO(S) TO SECTION 12A AS INSERTED BY THE FINANCE ( NO 2) ACT-2014 RESTRAININ G ANY ACTION UNDER SECTION 147 FOR ANY EARLIER ASSESSMENT YEARS WHERE REGISTRATION UNDER SECTION 12AA HAD BEEN GRANTED AND IS CONTINUING AS NOT APPLICABLE ON ACCO UNT OF AMENDMENT BEING PROSPECTIVE. 2. THAT THE LD. CIT(A) WHILE HOLDING THAT PROVIS O(S) AS INSERTED TO 12AA AS NOT APPLICABLE DID NOT APPRECIATE THAT INSERTION WAS TO REMEDY UNINTENDED EFFECTS OF AMENDMENT VIDE THE FINANCE ACT 2007 WITHDRAWING THE POWERS OF THE C1T FOR CONDONATION OF DELAY. 3. THAT THE LD. CIT(A) HAS FURTHER ERRED IN LAW U PHOLDING INITIATION OF PROCEEDINGS UNDER SECTION 148 WITHOUT APPRECIATING THAT NO INCO ME COULD BE SAID TO HAVE ESCAPED ASSESSMENT. 4.1 ACCORDINGLY, RELYING UPON JUDICIAL PRECEDENT A S CITED WHEREIN RELIANCE HAS BEEN PLACED UPON M/S SHRI VISHWAKALYAN J IVRAKSHA PRATISHTHAN OF THE PUNE BENCH AND ORDER DATED 21.11.201 6 BY DIVISION BENCH IN ITA 553/CHD/2014, THE IMPUGNED ORDER IS SET A SIDE IN TOTO ITA 760TO762/CHD/2016 A.Y. 2008-09 TO 2010-11 PAGE 3 OF 3 BACK TO THE FILE OF THE CIT(A) TO FIRST DECIDE THE JURISDICTION AL ISSUE AND THEREAFTER TO PROCEED TO DECIDE THE APPEALS ON MERIT, IF NEED BE. 5. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSES, AS PRONOUNCED IN THE OPEN COURT AT THE TIM E OF HEARING ITSELF. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH AUGUST,2017. SD/- (DIVA SINGH) JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.