United Education Society, Ghaziabad V. JCIT, Ghaziabad

ITA 903/DEL/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5906 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 22-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVIKANT GUPTA
• Keywords: Sale consideration of property below Jantri Value; Charitable institution
• Section: 12A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SH. PRAMOD KUMAR, ACCOUNTANT MEMBER AND SH. SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NOS. 903, 904, 905/DEL/2016 A.Y.: 2007-08, 2008-09, 2009-10 UNITED EDUCATION SOCIETY C/O. NIMT COLLEGE, OPP. INDIRA PRIYADARSHANI PARK, NEAR HINDON BRIDGE, MOHAN NAGAR GHAZIABAD VS. JCIT RANGE-2 GHAZIABAD PAN : AAAAUO750C ASESSEE BY : SH. VED JAIN, CA REVENUE BY : SH. RAVI KANT GUPTA, SR. DR. DATE OF HEARING : 28.05.2018 DATE OF PRONOUNCEMENT : 30.05.2018 O R D E R PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER: ALL THESE THREE APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST SEPARATE ORDERS DATED 27.11.2015 PASSED BY THE LD. CIT (A), GHAZIABAD WHEREIN THE LD. CIT (A) HAS UPHELD THE PEN ALTY OF RS. 1,00,000/- LEVIED U/S 271B OF THE INCOME TAX ACT, 1 961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSME NT YEARS 2007-08, 2008-09 AND 2009-10. SINCE IDENTICAL ISSUES WERE IN VOLVED IN ALL 2 ITA NO.903,904,905/DEL/2016 (UNITED EDUCATION SOCIETY) THE THREE APPEALS, THEY WERE HEARD TOGETHER AND THEY ARE BEING DISPOSED OF THROUGH THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE SOCIETY IS REGISTERED U/S 12A OF THE ACT AND HAS BEEN MAINTAINING REGULAR BOOKS OF ACCOUNT. THE AO INITIATED PENALTY PROCEEDINGS U/S 2 71B OF THE ACT AS THE ASSESSEE HAD FAILED TO GET ITS ACCOUNTS AUDI TED UNDER SECTION 44AB OF THE ACT. THE AO PROCEEDED TO IMPOSE PENALTY OF RS. 1,00,000/- LAKH EACH IN ALL THE THREE YEARS UNDER C ONSIDERATION AND ON THE MATTER BEING CARRIED BEFORE THE LD. CIT (A), THE LD. CIT(A) ALSO UPHELD THE IMPOSITION OF PENALTY AGAINST WHICH THE ASSESSEE IS NOW BEFORE THE ITAT. 3. AT THE OUTSET, THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT IDENTICAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE ITAT IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2010-11 IN ITA NO. 906/DEL/2016 WHEREIN, VIDE ORDER DATED 25.01.201 8, PENALTY IMPOSED U/S 271B OF THE ACT HAS BEEN DELETED BY THE ITAT. THE LD. AUTHORISED REPRESENTATIVE PLACED A COPY OF THE SAID ITAT ORDER ON RECORD. 4. THE LD. SR. DEPARTMENTAL REPRESENTATIVE VEHEMENT LY SUPPORTED THE CONCURRENT ORDERS OF BOTH THE LOWER A UTHORITIES BUT 3 ITA NO.903,904,905/DEL/2016 (UNITED EDUCATION SOCIETY) HE COULD NOT NEGATE THE FACT THAT ITAT IN ASSESSMEN T YEAR 2010-11, IN ASSESSEES OWN CASE AND ON IDENTICAL FACTS HAD D ELETED IDENTICAL PENALTY IN ASSESSEES OWN CASE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALS O PERUSED THE MATERIAL ON RECORD. UNDISPUTEDLY, THE ASSESSEE SOCIETY IS REGISTERED U/S 12A OF THE ACT AS A CHARITABLE TRUST AND IS ENGAGED IN CHARITABLE ACTIVITIES FOR IMPARTING EDUCATION THROU GH ITS COLLEGES. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE SOCIETY HA S BEEN CLAIMING EXEMPTION U/S 11 OF THE ACT ON THE GROUND THAT NO B USINESS OR PROFESSION IS BEING CARRIED OUT BY IT. A BARE PERUS AL OF SECTION 44AB OF THE ACT WOULD SHOW THAT THESE PROVISIONS ARE APPLI CABLE TO A PERSON CARRYING ON BUSINESS OR PROFESSION BUT IN TH E INSTANT APPEALS AS THE ASSESSEE IS A CHARITABLE SOCIETY AND DOES NOT CARRY OUT ANY BUSINESS AND CLAIMS EXEMPTION U/S 11 OF THE ACT, PENALTY U/S 271B OF THE ACT CANNOT BE LEVIED. SINCE, THERE IS NO COMPUTATION OF PROFITS AND GAINS OF BUSINESS OR PRO FESSION AS PART OF THE TOTAL INCOME, THE ASSESSEE SOCIETY IS NOT AMENA BLE TO SECTION 44AB OF THE ACT. IDENTICAL ISSUE IN ASSESSEES OWN C ASE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN ASSESSMENT YEA R 2010-11 BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL AND, THEREFO RE, THE ISSUE 4 ITA NO.903,904,905/DEL/2016 (UNITED EDUCATION SOCIETY) UNDER CONSIDERATION IS SQUARELY COVERED BY THE EARL IER ORDER OF THE COORDINATE BENCH IN ASSESSEES OWN CASE FOR ASSESSM ENT YEAR 2010- 11. ACCORDINGLY THE PENALTY IMPOSED U/S 271B IS DI RECTED TO BE DELETED IN ALL THE THREE YEARS UNDER APPEAL. 6. THE FINAL RESULT, ALL THE THREE APPEALS OF THE A SSESSEE STAND ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MAY, 2018). SD/- SD/- (PRAMOD KUMAR) (SUDHANSHU SRIVASTAVA ) ACCOUNTANT MEMBER JUDI CIAL MEMBER DATE: 30 TH .05.2018 BINITA COPY OF ORDER TO: - 1) THE APPELLANT; 2) THE RESPONDENT; 3) THE CIT; 4) THE CIT(A)-, NEW DELHI; 5) THE DR, I.T.A.T., NEW DELHI; TRUE COPY BY ORDER ITAT, NEW DELHI