Indian Road Congress, New Delhi V. ADIT (E), New Delhi

ITA 775/DEL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8080 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 12-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUSHIL KUMAR GUPTA C A SHRI S
• Keywords: Additional evidence; Tangible material; Assessment record; Reassessment proceedings; Set aside
• Section: 143(3); 12A; 12AA; 147

Judgement Text

~ 1 ~ IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.775/DEL/2016 ASSESSMENT YEAR:2008-09 INDIAN ROAD CONGRESS, KAMA KOTI MARG, SECTOR-6, R. K. PURAM, NEW DELHI. PAN:AAATI 3600 C VS. ADIT (E) TRUST, CIR. II, NEW DELHI. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LEARNED CIT(A)-40, NEW DELHI DATED 14/12/2015 PERTAINING TO ASSESSMENT YEAR 2008-2009. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE LEARNED ASSISTANT DIRECTOR OF INCOME T AX (E) (HEREINAFTER CALLED ADIT(E) HAS ERRED IN REOPENING THE COMPLETED ASSESSMENT U/S. 147 ON THE GROUND THAT TH E FORM NO. 10 WAS NOT FILED ALONG WITH THE RETURN OF INCOM E FOR THE ASSTT. YEAR 2008-09. 2. THAT THE ADIT(E) ERRED IN ADDING THE AMOUNT OF RS.55,38,710/- WHICH WAS SET APART FOR ACCUMULATION FOR SPECIFIC PURPOSE WAS DULY INTIMATED TO THE ADIT THR OUGH FORM NO. 10 ALONG WITH THE COPY OF THE RESOLUTION AS THE SAME WERE FILED ALONG WITH THE INCOME TAX RETURN FOR THE ASST T. YEAR 2008-09 ON 30 TH SEPTEMBER 2008. 3. THE LEARNED CIT(APPEALS) 40 DISMISSED THE APPEAL APPELLANT BY SHRI SUSHIL KUMAR GUPTA, C.A. RESPONDENT BY SHRI S. S. RANA, CIT, (DR) DATE OF HEARING 10/04/2019 DATE OF PRONOUNCEMENT 12/04/2019 ~ 2 ~ WITHOUT CONSIDERING THE FACTS OF CASE STATED ABOVE. 2. LEARNED A.R., AT THE OUTSET, SUBMITTED THAT THE CASE OF THE ASSESSEE WAS REOPENED U/S 147 OF THE ACT FOR THE REASON THAT THE ASSESSEE HAD NOT FILED FORM-10 ALONG WITH THE RETURN OF INCOME WHERE AS THE FACT REMAINS THAT FORM-10 WAS FILED ALONG WITH THE RETURN OF INCOME A ND IN THIS RESPECT OUR ATTENTION WAS INVITED TO PAGE 20 OF THE PAPER BOOK WHERE A COPY OF INCOME TAX RETURN SHOWING ENCLOSURES WAS PLACED WHEREIN IT EM NO. 1 WAS STATED TO BE ENCLOSED WAS NOTICE U/S 10. LEARNED A.R. FURTHE R TOOK US TO PAGE NO. 4 OF THE PAPER BOOK WHERE IN THE ENCLOSURES ATTACHED WITH THE INCOME TAX RETURN, THERE WAS MENTION OF FORM-10 FOR EXERCISING OPTIONS UNDER SECTION 11(2). LEARNED A.R. THEREFORE, IN VIEW OF THESE FA CTS, SUBMITTED THAT THE REOPENING U/S 147 WAS NOT JUSTIFIED AS DURING ORIGI NAL ASSESSMENT PROCEEDINGS THE ASSESSMENT WAS PASSED U/S 143(3) O F THE ACT AND OUR ATTENTION WAS INVITED TO ASSESSMENT ORDER DATED 26/ 08/2010, PLACED AT PAGES 1 & 2 OF THE PAPER BOOK. 2.1 ARGUING GROUND NO. 2, LEARNED A.R. SUBMITTED TH AT DURING THE REASSESSMENT PROCEEDINGS ALSO THE COPY OF FORM-10 A LONG WITH COPY OF RESOLUTION WAS FILED BEFORE THE ASSESSING OFFICER A ND ASSESSING OFFICER REJECTED THE SUBMISSIONS BY HOLDING THAT THERE WAS A CALCULATION MISTAKE IN FORM-10. HE SUBMITTED THAT LEARNED CIT(A) HAS ALSO UPHELD THE ORDER OF THE ASSESSING OFFICER. LEARNED A.R. IN THIS RESPEC T SUBMITTED THAT ASSESSEE WAS A GOVERNMENT ORGANIZATION WHICH WAS UN DISPUTEDLY ENGAGED IN CHARITABLE ACTIVITIES AND WAS DULY REGISTERED U/ S 12A OF THE ACT AND LEARNED A.R. THEREFORE, FILED A FRESH FORM-10 ALONG WITH THE COPY OF RESOLUTION FOR ACCUMULATION OF FUNDS. LEARNED A.R. SUBMITTED THAT IN THIS FORM-10 AND RESOLUTION THE MISTAKES POINTED OUT BY THE AUTHORITIES BELOW HAVE BEEN REMOVED AND WHICH SHOULD BE CONSIDERED FO R ALLOWING BENEFIT TO THE ASSESSEE. ~ 3 ~ 3. LEARNED D.R., ON THE OTHER HAND, SUBMITTED THAT IT IS NOT CORRECT ON THE PART OF THE ASSESSEE TO CLAIM THAT THE ASSESSEE HAD FILED FORM-10 WHILE FILING THE RETURN OF INCOME AND IN THIS RESPECT THE ORIGINAL ASSESSMENT RECORD WAS ALSO PRODUCED. LEARNED D.R. SUBMITTED THAT THO UGH THE COPY OF RESOLUTION WAS THERE ON THE RECORD BUT FORM-10 WAS NOT ON RECORD AND DURING REMAND PROCEEDINGS ALSO THE ASSESSING OFFICE R HAD HELD THAT THERE WAS NO FORM-10 AVAILABLE ON THE RECORD. THEREFORE, IT WAS ARGUED THAT ASSESSING OFFICER HAS RIGHTLY REOPENED THE ASSESSME NT AND THEREFORE, GROUND NO. 1 TAKEN BY THE ASSESSEE NEEDS TO BE DISM ISSED. RELIANCE IN THIS RESPECT WAS PLACED ON AN ORDER OF HON'BLE SUPR EME COURT IN THE CASE OF CIT VS. P.V.S. BEEDIES (P) LTD. [1999] 103 TAXMA N 294 WHERE THE HON'BLE COURT HAS HELD THAT REOPENING OF CASE U/S 147(B) ON THE BASIS OF FACTUAL INFORMATION GIVEN BY INTERNAL AUDIT PARTY W AS VALID IN LAW. RELIANCE WAS FURTHER PLACED ON AN ORDER OF HON'BLE DELHI HIG H COURT IN THE CASE OF INDU LATA RANGWALA VS. DCIT [2017] 80 TAXMANN.COM 1 02 (DELHI) FOR THE PROPOSITION THAT IT IS NOT NECESSARY FOR ASSESSING OFFICER TO COME ACROSS SOME FRESH TANGIBLE MATERIAL TO FORM REASONS TO BE LIEVE THAT INCOME HAS ESCAPED ASSESSMENT. 3.1 ARGUING SECOND GROUND LEARNED D.R. STATED THAT THE FORM-10 FILED BY THE ASSESSEE DURING REASSESSMENT PROCEEDINGS WAS AL SO NOT VALID AS IT CONTAINED VARIOUS MISTAKES AS POINTED OUT BY THE AU THORITIES BELOW THEREFORE, THE CORRECTED DOCUMENT IN THE FORM OF FO RM-10 AND RESOLUTION SHOULD NOT BE ACCEPTED AS QUESTION OF NOT SUBMITTIN G FORM-10 IS A QUESTION OF FACT AND RELIANCE WAS PLACED ON AN ORDER OF MUMB AI BENCH OF THE TRIBUNAL IN THE CASE OF ULTRATECH CEMENT LTD. VS. A DDL. CIT [2017] TIOL- 785-HC-MUM-IT. LEARNED D.R. FURTHER PLACED RELIANC E ON THE CASE LAW OF HON'BLE SUPREME COURT IN THE CASE OF ADDL.CIT VS. G URJARGRAVURES (P) LTD. [1978] 111 ITR 1 (SC). ~ 4 ~ 4. LEARNED A.R., IN HIS REJOINDER, SUBMITTED THAT I F THE CASE IS SET ASIDE TO THE ASSESSING OFFICER FOR RECONSIDERATION OF ITS ADDITIONAL EVIDENCE, WHICH IS IN THE FORM OF CORRECTED FORM-10 AND RESOLUTION THEN HE WILL NOT PRESS GROUND NO. 1 ON LEGAL ISSUE. THE OPINION OF LEARNE D D.R. FOR SETTING ASIDE THE MATTER WAS SOUGHT WHO THOUGH OBJECTED TO THE PR OPOSAL BUT STATED THAT IF THE CASE IS REMITTED BACK TO THE ASSESSING OFFIC ER, THE ASSESSING OFFICER SHOULD BE DIRECTED TO EXAMINE THE CONTENTS OF FORM- 10 WHEREIN THE AMOUNT PROPOSED TO BE ACCUMULATED ALREADY EXCEEDS 15% AS T HE AMOUNT REPRESENTS 28% OF THE PROFITS. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ORIGINAL ASSESSMEN T WAS COMPLETED U/S 143(3) OF THE ACT VIDE ORDER DATED 26/08/2010, A CO PY OF WHICH IS PLACED AT PAGES 1 & 2 OF THE PAPER BOOK. IN THE ORIGINAL ASS ESSMENT PROCEEDINGS THE ASSESSING OFFICER DID NOT RAISE ANY OBJECTION REGAR DING NOT FILING OF FORM- 10. THE EVIDENCE IN THE FORM OF COPY OF RETURN OF INCOME AND ENCLOSURES, AS POINTED OUT BY LEARNED A.R. ALSO, DEMONSTRATE TH E FACT OF HAVING FILED FORM-10 ALONG WITH THE ORIGINAL RETURN OF INCOME. SUCH EVIDENCES ARE IN THE FORM OF COPY OF INCOME TAX RETURN AND LIST OF ENCLO SURES PLACED AT PAGES 1 TO 20 OF THE PAPER BOOK. HOWEVER, THE CASE OF THE ASS ESSEE WAS REOPENED BY RECORDING THE REASONS THAT FORM-10 WAS NOT FILED BY THE ASSESSEE. THE LEARNED CIT(A), AFTER OBTAINING REMAND REPORT FROM ASSESSING OFFICER, UPHELD THE FINDINGS OF THE ASSESSING OFFICER THAT F ORM-10 WAS NOT ON THE RECORD. THE RECORDS DEMONSTRATED BY LEARNED A.R. C LEARLY SHOWS THAT ORIGINAL FORM-10 WAS FILED BY THE ASSESSEE BUT THE RECORD OF THE ASSESSING OFFICER SHOWS THAT FORM-10 WAS NOT FILED ALONG WITH THE RETURN OF INCOME. THEREFORE, IN VIEW OF THESE FACTS AND CIRCUMSTANCES , WE HOLD THAT BENEFIT OF DOUBT HAS TO BE GIVEN TO ASSESSEE. WE FURTHER FIND THAT FORM-10 SUBMITTED DURING ASSESSMENT PROCEEDINGS WAS ALSO REJECTED BY THE AUTHORITIES BELOW AS THEY OBSERVED CERTAIN MISTAKES AND THEREFORE, LE ARNED A.R. HAS FILED AN AMENDED AND CORRECTED COPY OF FORM-10 AND COPY OF R ESOLUTION. THE ~ 5 ~ BENEFIT HAS BEEN DENIED TO THE ASSESSEE ON THE BASI S OF TECHNICAL DEFECTS IN THE FORM BUT KEEPING IN VIEW THE FACT THAT ASSESSEE HAD IN ITS POSSESSION EVIDENCE OF HAVING FILED FORM-10 ALOONGWITH RETURN OF INCOME IN ORIGINAL ASSESSMENT PROCEEDINGS, WE FIND IT APPROPRIATE TO R EMIT THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO EXAMINE THE CORRECTED FORM-10 FILED BEFORE US ALONG WITH THE CORRECTED CO PY OF RESOLUTION AS THE MISTAKE POINTED OUT BY THE ASSESSING OFFICER DURING REASSESSMENT PROCEEDINGS ALSO WERE OF TECHNICAL NATURE WHICH CAN NOT BE MADE A BASIS FOR DISALLOWING THE CLAIM OF THE ASSESSEE AS ADMITT EDLY THE ASSESSEE IS A CHARITABLE ORGANIZATION REGISTERED U/S 12AA OF THE ACT. IN VIEW OF THE ABOVE, LEGAL GROUND TAKEN AS GROUND NO. 1 IS DISMIS SED AS NOT PRESSED AND GROUND NO. 2 IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 12/04/2019) SD/. SD/. (SUCHITRA KAMBLE) ( T. S. KAPOOR ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:12/04/2019 *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.,