DCIT, Sonepat V. M/s Baba Uddel Dev Education Society, Rohtak

ITA 8/DEL/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7829 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-07-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 03-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ANUSHA KHURANA
• Assessee Lawyers: NAVEEN K GOEL
• Keywords: Charitable institution; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI T.S. KAPOOR ITA NOS. 8 & 2492/DEL/11 A.YRS. 2007-08 & 2008-09 DCIT, SONEPAT CIRCLE, VS. M/S BABA UDDEL DEV EDUCA TION SOCIETY, SONEPAT. C/O BABA UDDEL DEV. SR. SEC. SCHOOL, VILL. BHAINI MAHARAJ PUR, THE. MEHAM, DISTT. ROHTAK. PAN/ GIR NO.AAGTS8493K ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : MRS. ANUSHA KHURANA RESPONDENT BY : SHRI NAVEEN K. GOEL. CA O R D E R PER R.P. TOLANI, J.M: : THESE ARE REVENUES APPEALS ASSAILING SEPARATE ORDE RS OF CIT(A) RELATING TO A.YRS. 2007-08 & 2008-09. IDENTICAL GRO UND INVOLVES FOR ADJUDICATION IN BOTH THE APPEALS, THEREFORE, THESE ARE HEARD TOGETHER AND DISPOSED OF BY A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FOLLOWING COMMON GROUND IS RAISED: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN DELETING THE A DDITION OF RS. 13,99,176/0 (A.Y. 2007-08) & RS. 26,26,580/- (A.Y. 2008-09), FOLLOWING ORDER OF HONBLE PUNJAB & HARYANA HIGH CO URT IN THE CASE OF PINE GROVE INTERNATIONAL CHARITABLE TRU ST V/S UOI. THE DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IS RELATED TO THE CASES WHERE EXEMPTION U/S 10(23C)(VI ), ARE CLAIMED. IT DOES NOT RELATE TO THE CASES WHO CLAIME D EXEMPTION U/S 10(23C)(IIIAD) OF THE I.T. ACT. THE DECISION OF HONBLE UTTRAKHAND HIGH COURT IN THE CASE OF CIT VS. QUEENS EDUCATIONAL SOCIETY IS APPLICABLE IN THE CASE OF TH E ASSESSEE. CONSEQUENTLY THE SURPLUS IS LIABLE TO TAXED. 3. BRIEF FACTS ARE: THE ASSESSEE SOCIETY IS RUNNING A SENIOR SEC. SCHOOL UNDER THE NAME AND STYLE OF BABA UDDAL DEV SR. SEC. SCHOOL. IN THE ASSESSMENT YRS. IN QUESTION ASSESSEE CLAIMED EXEMP TION OF SURPLUS INCOME U/S 10(23C)(III-AD). ASSESSING OFFICER DISALLOWED THE CLAIM FOR WANT OF MEMORANDUM OF ASSOCIATION AND FURTHER OBSERVING THA T ASSESSEE WAS EARNING PROFITS FROM THE ACTIVITIES AND HAD CONSTRUCTED BUI LDINGS TO ENHANCE ITS PROFITABILITY AND THAT THE RATIO OF DECISION OF H ONBLE UTTRAKHAND HIGH COURT IN THE CASE OF CIT VS. QUEENS EDUCATIONAL SOC IETY WAS APPLICABLE IN THE CASE OF THE ASSESSEE. 3.1. IN FIRST APPEAL BEFORE CIT(A), THE ASSESSEE F ILED APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE IN THE FORM OF MEM ORANDUM OF ASSOCIATION, DONATION DETAILS, DAY BOOK ETC. U/S 46 A OF THE I.T. RULES. CIT(A) CALLED FOR REMAND REPORT FROM ASSESSING OFFI CER. IN HIS REMAND REPORT DATED 26-7-2010 (REPRODUCED IN CIT(A)S O RDER), AO CONCEDED THAT THE ISSUE OF SURPLUS FUND WAS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF JURISDICTIONAL HIGH COURT OF PUNJAB & H ARYANA IN THE CASE OF PINEGROVE INTERNATIONAL CHARITABLE TRUST VS. UOI DA TED 29-1-2010 [327 ITR 73 (P&H)]. CIT(A) FOLLOWING THE RATIO OF DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF PINEGROVE INTERNA TIONAL CHARITABLE TRUST ALLOWED THE CLAIM OF THE ASSESSEE U/S 10(23C)(IIIA D). AGGRIEVED, THE REVENUE IS BEFORE US. 4. LEARNED COUNSEL FOR THE ASSESSEE AT THE OUT SET SUBMITTED THAT IN THIS CASE THE ASSESSING OFFICER IN HIS REMAND REPORT HA S HIMSELF ADMITTED THAT THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CA SE OF PINEGROVE INTERNATIONAL CHARITABLE TRUST (SUPRA), DEVIATING F ROM THE DECISION OF UTTRAKHAND HIGH COURT IN THE CASE OF QUEENS EDUCAT IONAL SOCIETY (SUPRA), WAS IN FAVOUR OF THE ASSESSEE. THE CIT(A) IN GRANT ING RELIEF TO THE ASSESSEE HAS FOLLOWED JURISDICTIONAL HIGH COURT DECISION IN THE CASE OF PINEGROVE INTERNATIONAL CHARITABLE TRUST (SUPRA). THUS, THERE REMAINS NO CASE FOR THE REVENUE TO COME IN FURTHER APPEAL. FOR THIS PROPOSI TION LD. COUNSEL PLACED RELIANCE ON THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. GOLF VIEW HOMES LTD. (2011) 15 TAXMANN.COM 153 (KAR.), ESTOPPING THE REVENUE FROM CHALLENGING ITS OWN ACCEPTED ASPEC TS IN FURTHER APPEAL. 5. LD. DR RELIED ON THE ORDER OF ASSESSING OFFICER . 6. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS TRITE LAW THAT IF ON A PARTICULAR ISSUE THERE IS DIVERGENCE OF OPINION BETWEEN DIFFERENT HIGH COURTS AND NO DECISION OF HONBLE SUPREME COURT ON SUCH ISSUE IS AVAILABLE, THEN THE DECISION OF THE JURISDICTIONAL HIGH COURT IS BOUND TO BE FOLLOWED. IN THE CASE IN HAND THE CIT(A) IN ALLOWING THE CLAIM OF THE ASSESSEE HAS F OLLOWED JURISDICTIONAL HIGH COURT DECISION IN THE CASE OF PINEGROVE INTERN ATIONAL CHARITABLE TRUST (SUPRA). WE SEE NO FLAW OR INFIRMITY IN THE ORDER O F CIT(A) AND UPHOLD THE SAME. BESIDES, ASSESSING OFFICER IN REMAND REPOR T HAS HIMSELF ACCEPTED THAT THE DECISION OF JURISDICTIONAL HIGH COURT IN T HE CASE OF PINEGROVE INTERNATIONAL CHARITABLE TRUST (SUPRA), WAS IN FAVO UR OF THE ASSESSEE. THUS, RELYING UPON THE RATIO OF DECISION OF HONBLE KARNA TAKA HIGH COURT IN THE CASE OF GOLF VIEW HOMES LTD. (2011) 15 TAXMANN.COM 153 (KAR.), REVENUE HAS NO CASE TO COME IN FURTHER. IN ANY WAY, REVENU ES APPEALS HAVE NO FORCE AND ARE LIABLE TO BE DISMISSED. 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE REV ENUE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 04-07-2012. SD/- SD/- ( T.S. KAPOOR ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 04-07-2012. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR