Uttar Pradesh Expressway Industrial Development Authority, Lucknow V. Income Tax Officer-I(4), Lucknow

ITA 774/LKW/2013

• Counselvise Citation: 77423714 RSA 2013
• Duration Of Justice: 1 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-10-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 09-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ALOK MITRA
• Keywords: Charitable institution; Opportunity of being heard; Cost of acquisition
• Section: 12A; 12AA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.774/LKW/2013 ASSESSMENT YEAR:2010 - 11 INCOME TAX OFFICER - 1(4), LUCKNOW. VS UTTAR PRADESH EXPRESSWAY INDUSTRIAL DEVELOPMENT AUTHORITY C - 13, 2 ND FLOOR, PARYATAN BHAWAN, VIPIN KHAND, GOMTI NAGAR, LUCKNOW. PAN:AAALU01212E (RESPONDENT) (APPELLANT) SHRI YOGESH AGARWAL, ADVOCATE APPELLANT BY SHRI ALOK MITRA, D. R. RESPONDENT BY 15/10/2014 DATE OF HEARING 10 /12/2014 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - I, LUCKNOW DATED 29/08/2013 FOR THE ASSESSMENT YEAR 2010 - 2011. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: I. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - I, LUCKNOW [HERE - IN - AFTER REFERRED TO AS THE LD. CIT (A)'S] ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.58,28,904/ - BEING THE EXCESS OF INCOME OVER EXPENDITURE SHOWN DURING THE YEAR UNDER CONSIDERATION AND IN NOT APPRECIATING THAT THE SURPLUS SO ARISING IS EXEMPT FROM TAXATION AS THE OBJECTS OF THE APPELLANT AUTHORITY ARE CHARITABLE IN NATURE AND THE APPEAL 2 REGARDING REGISTRATION U/S 12A OF THE ACT IS PENDING DISPOSAL BEFORE THE HON'BLE ITAT, LUCKNOW. II. IN CONFIRMING THE ADDITION OF RS.58,28,904/ - THE LD. CIT(A)'S FAILED TO APPRECIATE OR RATHER CHOSE TO COMPLETELY IGNORE THE FACT THAT THE SURPLUS ARISING DURING THE YEAR HAS BEEN ACCUMUL ATED FOR CHARITABLE PURPOSES AND HAS TO BE APPLIED ONLY TOWARDS THE OBJECTS FOR WHICH THE AUTHORITY HAS BEEN CREATED. MOREOVER THE APPEAL FOR REGISTRATION IS PENDING BEFORE THE HON'BLE ITAT, LUCKNOW AND THE APPELLANT EXPECTS THAT THE SAME SHALL BE ALLOWED IN ITS FAVOUR AND THUS THE ADDITION SO MADE MAY KINDLY BE ORDERED TO BE DELETED. III. THE LD. CIT(A)'S FURTHER ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 15,15,809/ - BEING THE AMOUNT CONTRIBUTED TOWARDS CORPUS FUNDS BY M/S. JAYPEE GANGA I NFRASTRUCTURE CORPORATION LTD. BEING 1% OF ACQUISITION COST PER UNIT LAND ACQUIRED BY THEM AND IN NOT APPRECIATING THAT THE FUND WAS CREATED AS CORPUS IN THE FORM OF CASH COLLATERAL FUND TO MEET THE CONTINGENT LIABILITY AND SUCH OTHER EXPENSES ETC. AND AS SUCH THE ADDITION BEING CONFIRMED FIRSTLY ON THE GROUND THAT THE CONTRIBUTION IS NOT VOLUNTARY AND SECONDLY THAT THE APPELLANT IS HIT BY THE AMENDED PROVISIONS OF SECTION 2(15) READ WITH SECTION 13(8) OF THE ACT IS WHOLLY ILLEGAL, BAD - IN - LAW AND VOID AB - IN ITIO AND MAY KINDLY BE ORDERED TO BE ALLOWED. IV. IN CONFIRMING THE ADDITION OF RS.15,15,809/ - THE LD. CIT(A)'S FAILED TO APPRECIATE OR RATHER CHOSE TO COMPLETELY IGNORE THE FACT THAT THE AMOUNT SHOWN IN THE BALANCE SHEET AS CORPUS FUND IS A CAPITAL RECEI PT AND IS NOT ELIGIBLE TO TAX AND THUS THE ADDITION CONFIRMED ON NOTIONS, CONJECTURES AND SURMISES MAY KINDLY BE ORDERED TO BE DELETED. V. THE LD. CIT(A)'S DID NOT AFFORD THE APPELLANT ANY PROPER OR SUFFICIENT OPPORTUNITY TO THE APPELLANT TO HAVE ITS SAY OR MAKE NECESSARY COMPLIANCE OF THE 3 REASONS RELIED UPON BY HIM IN PASSING THE PRESENT ORDER. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT IN THE PRESENT CASE, THE ISSUE WAS DECIDED BY BOTH THE AUTHORITIES ON THE BASIS THAT THE REGISTRATION U/S 12AA WAS NOT GRANTED TO THE ASSESSEE. HE SUBMITTED THAT AS PER THE ORDER PASSED BY LEARNED CIT - I, LUCKNOW ON 30 TH SEPTEMBER, 2014, THE REGISTRATION U/S 12AA WAS GRANTED BY HIM TO THE ASSESSEE WITH EFFECT FROM 01/04/2008. HE SUBMITTE D A COPY OF THIS ORDER PASSED B Y LEARNED CIT U/S 12AA OF THE ACT. HE SUBMITTED THAT ACCORDINGLY, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION IN THE LIGHT OF THE REGISTRATION GRANTED BY LEARNED CIT U/S 12AA. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IN THE PRESENT CASE, THE ISSUE IN DISPUTE WAS DECIDED BY THE AUTHORITIES BELOW ON THE BASIS THAT THE ASSESSEE WAS NOT GRANTED REGISTRATION U/S 12AA. THE ORDER OF LEARNED CIT (A) IS DATED 29 TH AUGUST, 2013 BUT THEREAFTER , AS PER THE ORDER DATED 30 TH SEPTEMBER, 2014, THE REGISTRATION WAS GRANTED TO THE ASSESSEE U/S 12AA WITH EFFECT FROM 01/04/2008 AND HENCE, THE ASSESSEE I S NOW TO BE ASSESSED AFTER CONSIDERING THE REGISTRATION GRANTED TO THE ASSESSEE U/S 12AA OF THE ACT. THEREFORE, WE SET ASIDE THE ORDER OF LEARNED CIT(A) AND RESTORE THE ENTIRE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION IN THE LIGH T OF THESE FACTS THAT THE ASSESSEE WAS GRANTED REGISTRATION U/S 12AA WITH EFFECT FROM 01/04/2008. 4 NEEDLESS TO SAY, HE SHOULD PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN VIEW OF OUR DECISION I N THE ABOVE PARAS, VARIOUS GROUNDS RAISED BY THE ASSESSEE DO NOT CALL FOR ANY SEPARATE ADJUDICATION. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) J UDICIAL MEMBER ACCOUNTANT MEMBER DATED: 10 /12/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR