Haryana Tourism Coporation Limited, Chandigarh V. Addl. CIT, Panchkula

ITA 803/CHANDI/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73462 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 30-01-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 01-08-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Assessee Lawyers: HARISH NAYYAR
• Keywords: Charitable institution; Rule of consistency; Question of law
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.803/CHD/2013 ASSESSMENT YEAR : 2010-11 HARYANA TOURISM CORPORATION LIMITED, VS. THE ADD L.C.I.T., SCO 17-18-19, SECTOR 17 -B, PANCHKULA RANGE, CHANDIGARH. PANCHKULA. PAN: AAACH4108B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HARISH NAYYAR RESPONDENT BY : SHRI J.S.NAGAR, DR DATE OF HEARING : 30.01.2014 DATE OF PRONOUNCEMENT : 12.02.2014 O R D E R PER SUSHMA CHOWLA, J.M. : THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME TAX (APPEALS), PANCHKULA DAT ED 24.06.2013 AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF IN COME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ORDER PASSED BY CIT(A) IS ILLEGAL, ARB ITRARY HAS BEEN PASSED IN A HASTE AND HAS IGNORED BASIC ASPECTS AND FACTS, OF T HE CASE THUS CAUSING UNDUE HARDSHIP TO THE ASSESSEE. 2. THAT THE CIT (APPEALS) HAS ERRED BOTH ON FACTS A ND LAW IN DECIDING THE APPEAL WITHOUT CONSIDERING THE FACT THAT MOST ADDITIONS WE RE SUBJECT MATTER OF APPEALS IN THE PAST AND HAVE BEEN DELETED BY THE APPELLATE AUTHORITIES.. SINCE THE APPEAL HAS BEEN DECIDED WITHOUT TAKING INTO CONSIDERATION THE ORDER OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF THE ASSESSEE ITSELF, THE ORDER OF CIT (APPEALS,) DESERVED TO BE STRUCK OUT. IT IS PRAYED THAT THE ORDERS OF CIT(APPEALS) PASSED WITHOUT CONSIDERING THE HISTORY OF THE CASE, FACTS ON RECORD AND ORDER OF HON'BLE J URISDICTIONAL HIGH COURT IN THE CASE OF THE ASSESSEE ITSELF BE QUASHED. 2 3. THAT THE LD. CIT'(APPEALS) HAS ERRED BOTH ON FAC TS AND LAW IN CONFIRMING THE DISALLOWANCE MADE UNDER SECTION 24(A) OF RS.7799835 ON ACCOUNT OF DEDUCTION FROM RENTAL INCOME. SINCE THE ADDITION HAS BEEN MADE WITHOUT CONSIDERIN G THE APPELLATE ORDERS IN RESPECT OF THE EARLIER YEARS BY WAY OF WHICH SIMILA R ADDITION ALREADY STANDS DELETED, THE SAME IS ILLEGAL, ADHOC AND DESERVES TO BE DELETED. IT IS PRAYED THAT THE ADDITION OF RS. 7799835 MAY KINDLY BE ORDERED TO BE DELETED. 4. THAT THE LD. CIT (APPEALS) HAS ERRED BOTH ON FAC TS AND LAW IN CONFIRMING THE ADDITION OF RS.1367905 ONB ACCOUNT OF BREAKAGE OF CROCKERY. SINCE THE ADDITION HAS BEEN MADE WITHOUT CONSIDERIN G THE APPELLATE ORDERS IN RESPECT OF THE EARLIER YEARS BY WAY OF WHICH SIMILAR ADDITION ALREADY STANDS DELE TED, THE SAME IS ILLEGAL, ADHOC AND DESERVES TO BE DELETED. IT IS PRAYED THAT THE ADDITION OF RS.1367905 MAY KINDLY BE ORDERED TO BE DELETED. 5. THAT THE APPELLANT CRAVES TO ADD, DELETE, CONCEDE, AND MODIFY ANY OR ALL THE GROUNDS OF APPEA L AT THE TIME OF HEARING OF APPEAL. 3. THE LEARNED A.R. FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT BOTH THE ISSUES RAISED IN THE PRESENT APPEAL A RE COVERED BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN THE EARLIER YEARS. 4. THE LEARNED D.R. FOR THE REVENUE PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE GROUND NOS. 1 AND 2 RAISED BY THE ASSESSEE BEIN G GENERAL AND NOT PRESSED ARE DISMISSED. 6. THE ISSUE IN GROUND NO.3 RAISED BY THE ASSESSEE IS AGAINST THE DISALLOWANCE MADE OUT OF RENTAL INCOME. 7. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAD DECLARED INCOME FROM PROPERTY AND HAD FURTHER CLAIMED DEDUCT ION UNDER SECTION 24 (A) OF THE ACT. THE ASSESSING OFFICER, HOWEVER, TREATED THE SAID INCOME AS INCOME FROM BUSINESS AND CONSE QUENT DEDUCTION UNDER SECTION 24(A) OF THE ACT WAS DENIED TO THE 3 ASSESSEE. THE CIT (APPEALS) HAD UPHELD THE ORDER OF THE ASSESSING OFFICER. 8. WE FIND THAT SIMILAR ISSUE BEFORE US HAD ARISEN IN THE CASE OF THE ASSESSEE IN EARLIER YEARS AND THE TRIBUNAL IN I TA NO.1269/CHD/2012 RELATING TO ASSESSMENT YEAR 2009-1 0 VIDE ORDER DATED 14.2.2013, IN TURN FOLLOWING THE RATIO LAID D OWN IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2005-06 AND ALSO BY THE HON'BLE PUNJAB & HARYANA HIGH COURT IN CIT, PANCHKULA VS. M /S HARYANA TOURISM CORPORATION LIMITED IN INCOME TAX APPEAL NO .567 OF 2009, JUDGMENT DATED 4.2.2010, HAD HELD AS UNDER : 9. WE FIND THAT SIMILAR ISSUE OF ASSESSABILITY OF RENTAL INCOME UNDER THE HEAD INCOME FROM PROPERTY OR AS INCOME FROM BUSINESS AROSE BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE RELATING TO ASSESSMENT YEAR 200 5-06. THE TRIBUNAL IN CONSOLIDATED ORDER OF CROSS APPEALS FILED BY THE REVENUE AND ASSESSEE IN ITA NO.1056/CHD/2008 AND ITA NO.998/CHD/2008 VIDE ORDER DATED 25.3.2009 HELD THAT THE SAID RENTAL INCOME WAS TO BE ASSESSED AS INCOME FROM PROPERTY AND ASSESSEE WAS ENTITLED TO THE STATUTORY DEDUCTIONS UNDER SECTION 24 OF THE ACT. THE TRIBUN AL IN ITA NO.1012/CHD/2009 RELATING TO ASSESSMENT YEAR 20 06-07 IN THE APPEAL FILED BY THE REVENUE AGAINST THE ASSE SSEE VIDE ORDER DATED 29.1.2010 NOTED THAT IN VIEW OF TH E FACTS AND CIRCUMSTANCES OF THE CASE BEING IDENTICAL TO TH E PRECEDING YEAR, THERE WAS NO MERIT IN THE ORDER OF THE ASSESSING OFFICER AND THE ORDER OF CIT (APPEALS) WA S THUS UPHELD. 10. THE HON'BLE PUNJAB & HARYANA HIGH COURT IN CIT, PANCHKULA VS. M/S HARYANA TOURISM CORPORATION LTD. IN INCOME TAX APPEAL NO.567 OF 2009 VIDE JUDGMENT DATE D 4.2.2010 HELD AS UNDER: WE ARE ALSO OF THE VIEW THAT THE TRIBUNAL HAS NOT COMMITTED ANY ERROR OF LAW BY GRANTING DEDUCTIONS UNDER SECTION 24 AS THE DEDUCTION IS BASED ON FINDINGS OF FACTS THAT THE INCOME IS DERIVED FROM HOUSE PROPERTY. ESSENTIALLY IT IS A FINDING OF FACT AND NOT A QUESTION OF LAW WHICH MAY WARRANT ADMISSION OF THE APPEAL. THE PRINCIPLE OF CONSISTENCY LAID DOWN BY HON'BLE THE SUPREME COURT IN THE CASE OF BERGER PAINTS INDIA LTD. V. CIT(2004) 266 ITR 99, CIT V. J.K.CHARITABLE TRUST (2009) ISCC 196 AND C.K.GANGADHARAN V. CIT (2008) SCC 739 WOULD 4 GUIDE US THAT ONCE SIMILAR PROPOSITION HAS BEEN ACCEPTED BY THE REVENUE IN RESPECT OF ASSESSMENT YEAR 1997-98, THEN IT IS NOT OPEN TO IT TO CHALLENGE A SIMILAR FINDING AND DEVIATE FROM ITS EARLIER STAND. THEREFORE, QUESTION NO.1 AND 2 HAVE TO BE ANSWERED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE-RESPONDENT. 11. THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THE FACTS OF THE PRECEDING YEAR AND FOLLOWING THE SAID PARITY OF REASONING AND THE ORDER OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN ASSESSEES OWN CASE RELATING TO ASSESSMENT YEAR 2005-06 (SUPRA) WE DIRECT THE ASSES SING OFFICER TO ASSESS THE RENTAL INCOME RECEIVED BY THE ASSESSEE AS INCOME FROM PROPERTY AND ALLOW THE STAT UTORY DEDUCTION UNDER SECTION 24 OF THE ACT. THE GROUND NO.3 RAISED BY THE ASSESSEE IS THUS ALLOWED. 9. THE FACTS OF THE PRESENT CASE AND THE ISSUE RAIS ED ARE IDENTICAL TO THE FACTS AND ISSUE RAISED IN THE EARLIER YEARS AND FOLLOWING THE SAME PARITY OF REASONING WE DIRECT THE ASSESSING OF FICER TO ASSESS THE RENTAL INCOME RECEIVED BY THE ASSESSEE AS INCO ME FROM PROPERTY AND CONSEQUENT THERETO WE DIRECT THE ASSE SSING OFFICER TO ALLOW THE DEDUCTION UNDER SECTION 24 OF THE ACT. T HE GROUND NO.3 RAISED BY THE ASSESSEE IS THUS ALLOWED. 10. THE ISSUE RAISED VIDE GROUND NO.4 IS AGAINST TH E ADDITION MADE ON ACCOUNT OF BREAKAGE OF CROCKERY AMOUNTING T O RS.13,67,905/-. IDENTICAL ISSUE AROSE BEFORE THE T RIBUNAL IN THE EARLIER YEARS AND VIDE PARAS 12 AND 13 IT WAS HELD AS UNDER: 12. THE ISSUE IN GROUND NO.4 IS RELATES TO THE ADD ITION MADE ON ACCOUNT OF BREAKAGE OF CROCKERY AMOUNTING T O RS.13,33,440/-. SIMILAR ISSUE WAS RAISED BEFORE TH E TRIBUNAL IN ASSESSEES OWN CASE RELATING TO ASSESSM ENT YEAR 2005-06 WHEREIN THE CLAIM OF THE ASSESSEE WAS ALLOWED. THE HON'BLE PUNJAB & HARYANA HIGH COURT I N THE APPEAL RELATING TO ASSESSMENT YEAR 2005-06 (SUPRA) HAD ALSO UPHELD THE ORDER OF THE TRIBUNAL HOLDING AS UN DER: IN RESPECT OF QUESTION NO.3 AND 4, SIMILAR SITUATION WOULD EMERGE FROM A PERUSAL OF PARA 4 OF THE IMPUGNED ORDER. THE ISSUE OF DELETING THE AMOUNT ON ACCOUNT OF BREAKAGE OF CROCKERY HAS BEEN CONSIDERED. THE CONTENTION OF THE ASSESSEE- RESPONDENT HAS PREVAILED BECAUSE SIMILAR ISSUE 5 WAS RAISED BEFORE DELHI BENCH OF THE TRIBUNAL IN ITA NO.5651/DEL./1997. THE AFORESAID VIEW OF DELHI BENCH WAS FOLLOWED BY THE CHANDIGARH BENCH ALSO IN ITA NOS.825 AND 875/CHANDI/1999 IN THE CASE OF HARYANA HOTELS LTD. DECIDED ON 08.04.2004. EVEN IN THE CASE OF ASSESSEE- RESPONDENT SIMILAR VIEW HAS BEEN FOLLOWED IN THE ASSESSEE.755/CHANDI/2002. ACCORDINGLY, THE AFORESAID GROUND ALSO WOULD NOT STAND SCRUTINY OF THE PRINCIPLE OF CONSISTENCY AS LAID DOWN IN VARIOUS JUDGMENTS REFERRED IN THE PRECEDING PARA. THEREFORE, QUESTION NOS.3 AND 4 WOULD ALSO DESERVE TO BE ANSWERED AGAINST THE REVENUE- APPELLANT AND IN FAVOUR OF THE ASSESSEE- RESPONDENT. 13. THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THE FACTS OF ASSESSMENT YEAR 2005-06 AND FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE AND ALSO FOL LOWING THE ORDER OF THE HON'BLE PUNJAB & HARYANA HIGH COUR T IN ASSESSEES OWN CASE WE ALLOW THE CLAIM OF THE ASSES SEE IN RESPECT OF BREAKAGE OF CROCKERY. THE GROUND NO.4 R AISED BY THE ASSESSEE IS THUS ALLOWED. 11. IN VIEW OF THE ISSUE BEING SETTLED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE AN D ALSO BY THE HON'BLE PUNJAB & HARYANA HIGH COURT, WE ALLOW THE C LAIM OF THE ASSESSEE IN RESPECT OF BREAKAGE OF CROCKERY. THE G ROUND NO.4 RAISED BY THE ASSESSEE IS THUS ALLOWED. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF FEBRUARY, 2014. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 12 TH FEBRUARY, 2014 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 6