ITO (E) 2(4), MUMBAI V. THE INSTITUTE OF MARINE ENGINEER (INDIA), MUMBAI

ITA 846/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6782 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 06-02-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI DR. A.L. SAINI , ACCOUNTANT MEMBER ITA NO. 846 / MUM . /2017 ( ASSESSMENT YEAR : 20 12 13 ) INCOME TAX OFFICER (E) WARD 2(4), MUMBAI . APPELLANT V/S THE INSTITUTE OF MARINE ENGINEER (INDIA) 1012, MAKER CHAMBER VEER NARIMAN POINT MUMBAI 400 021 PAN AAATT3254B . RESPONDENT REVENUE BY : SHRI SAURABH KUMAR RAI ASSESSEEBY : SHRI KEYUR DALALA/W SHRI KARTHIK NATRAJAN DATE OF HEARING 20 .0 6 .2018 DATE OF ORDER 27.06.2018 O R D E R PER SAKTIJIT DEY, J.M. AFORESAID APPEAL BY THE REVENUE IS AGAINST ORDER DATED 11 TH NOVEMBER 2016, PASSED BY THE LEARNED COMMISSIONER (APPEALS) 1, MUMBAI, FOR THE ASSESSMENT YEAR 2012 13. 2 . THE ONLY EFFECTIVE GROUND RAISED BY THE REVENUE READS AS UNDER: 2 THE INSTITUTE OF MARINE ENGINEER (INDIA) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE BE RELAYING ON THE DECISION OF THE HON'BLE ITAT IN ASSESS EES OWN CASE FOR A.Y. 2009 10 IGNORING THE FACT THAT THE HON'BLE ITAT SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND RESTORED THE MATTER TO THE FILE OF THE A.O. WHICH IS NOT YET FINALISED. 3 . BRIEF FACTS ARE, THE ASSESSEE CLAIMING ITSELF TO BE A TRUST ENGAG ED IN EDUCATIONAL ACTIVITY FILED ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 30 TH SEPTEMBER 2012, DECLARING NIL INCOME AFTER CLAIMING EXEMPTION UNDER SECTION 11 OF THE ACT. THE ASSESSEE IS ALSO REGISTERED AS A CHARITABLE ORGAN IZ ATION UNDER SEC TION 12A OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ). THE ASSESSING OFFICER IN COURSE OF ASSESSMENT PROCEEDINGS AFTER EXAMINING ASSESSEES CLAIM OF EXEMPTION UNDER SECTION 11 OF THE ACT CONCLUDED THAT THE OBJECTS OF THE ASSESSEE ARE NOT FOR CHARITABL E PURPOSE BUT IT IS IN THE NATURE OF TRADE, COMMERCE OR BUSINESS AND ACCORDINGLY, REJECTED ASSESSEES CLAIM OF EXEMPTION UNDER SECTION 11 OF THE ACT. BEING AGGRIEVED OF THE ASSESSMENT ORDER SO PASSED ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUT HORITY. 4 . T HE LEARNED COMMISSIONER (APPEALS) TAKING NOTE OF THE FACT THAT IN ASSESSMENT YEAR 2009 10, THE TRIBUNAL HAS RESTORED THE ISSUE TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION ,H E DIRECTED THE ASSESSING OFFICER TO FOLLOW THE OBSERVATIONS OF THE TRI BUNAL IN ASSESSMENT YEAR 2009 10. 3 THE INSTITUTE OF MARINE ENGINEER (INDIA) 5 . WE HAVE HEARD THE LEARNED COUNSEL S APPEARING FOR THE PARTIES. AT THE OUTSET, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT WHILE CONSIDERING IDENTICAL DISPUTE IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2009 10, THE TRIBUNAL HAS RESTORED THE ISSUE TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION AN D THE ASSESSING OFFICER DECIDED THE ISSUE AGAINST THE ASSESSEE IN THE FRESH PROCEEDINGS WHICH WAS CHALLENGED BY THE ASSESSEE BEFORE THE LEARNED COMMISSIONER (APPEALS). HE SUBMITTED , WHEN ASSESSEES APPEAL INVOLVING IDENTICAL DISPUTE FOR THE ASSESSMENT YEAR 2011 12 CAME UP BEFORE THE TRIBUNAL, THE TRIBUNAL CONSIDERING THE FACT THAT SIMILAR ISSUE FOR ASSESSMENT YEAR 2009 10 WAS PENDING BEFORE THE LEARNED COMMISSIONER (APPEALS) RESTORED THE ISSUE TO THE LEARNED COMMISSIONER (APPEALS) FOR FRESH ADJUDICATION ALO NG WITH THE APPEAL FOR ASSESSMENT YEAR 2009 10. A COPY OF THE ORDER PASSED IN ITA NO. 1271/MUM./2016, DATED 17 TH JANUARY 2018, WAS SUBMITTED BEFORE THE BENCH. THUS, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE ISSUE MAY BE RESTORED TO THE LEARNED C OMMISSIONER (APPEALS). 6 . THE LEARNED DEPARTMENTAL REPRESENTATIVE AGREED WITH THE AFORESAID SUBMISSIONS OF THE LEARNED AUTHORISED REPRESENTATIVE. 7 . HAVING CONSIDERED RIVAL SUBMISSION S , WE FIND THAT LEARNED COMMISSIONER (APPEALS) WHILE DECIDING IDENTICAL ISSU E IN THE IMPUGNED 4 THE INSTITUTE OF MARINE ENGINEER (INDIA) ASSESSMENT YEAR HAS RESTORED IT TO THE ASSESSING OFFICER WITH A DIRECTION TO FOLLOW TRIBUNALS OBSERVATIONS IN ASSESSMENT YEAR 2009 10. HOWEVER, AS COULD BE SEEN FROM THE FACTS ON RECORD, IN ASSESSMENT YEAR 2009 10, THE ASSESSING OFFICER AGAIN DISALLOWED ASSESSEES CLAIM OF EXEMPTION UNDER SECTION 11 OF THE ACT , AGAINST WHICH , THE ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE LEARNED COMMISSIONER (APPEALS). NOTABLY, WHEN IDENTICAL DISPUTE ARISING IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 20 11 12 CAME UP FOR CONSIDERATION BEFORE THE TRIBUNAL , THE TRIBUNAL TAKING NOTE OF THE FACT THAT SIMILAR ISSUE IS PENDING BEFORE THE LEARNED COMMISSIONER (APPEALS) , RESTORED THE MATTER BACK TO HIM FOR RE ADJUDICATION ALONG WITH THE APPEAL FOR ASSESSMENT YEAR 2009 10. FACTS BEING IDENTICAL, CONSISTENT WITH THE VIEW TAKEN BY THE TRIBUNAL WHILE DECIDING ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011 12 (SUPRA), WE RESTORE THE ISSUE BACK TO THE LEARNED COMMISSIONER (APPEALS) WITH SIMILAR DIRECTION. THE GROUND IS ALLO WED FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27.06.2018 SD/ - DR. A.L. SAINI ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 27.06.2018 5 THE INSTITUTE OF MARINE ENGINEER (INDIA) COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI