Meerut City Public School Samiti, Meerut V. ITO (Exemption), Ghaziabad

ITA 919/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6210 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2013-2014
• Appeal Filed On: 06-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BIHRGRA
• Assessee Lawyers: S K GUPTA
• Keywords: Depreciation; Opportunity of being heard
• Section: 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (MEERUT CAMP, MEERUT) BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.919/DEL./2018 (ASSESSMENT YEAR : 2013-14) M/S. MEERUT CITY PUBLIC SCHOOL SAMITI VS. ITO (EXEMPTION), 344, SHIV SHAKTI NAGAR, DELHI ROAD, GHAZIABAD MEERUT UTTAR PRADESH (PAN : AAAAM7372G APPELLANT RESPONDENT ASSESSEE BY : SH. S.K.GUPTA, ADV. REVENUE BY : SHRI M.R.BIHRGRA, SR.DR DATE OF HEARING : 11.01.2019 DATE OF ORDER : 25.01.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT MEERUT CITY PUBLIC SCHOOL SAM ITI, MEERUT (HEREINAFTER REFERRED TO AS 'THE ASSESSEE') BY FILING THE AFORES AID APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 07/12/2017 PASSED BY LD. COMMISSIONER OF INCOME TAX(APPEALS)-MEERUT QUA THE ASSESSMENT YEAR 2013-14 ON THE GROUNDS INTER ALIA THAT : 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMST ANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. A.O. IN NOT ALLOWING E XEMPTION U/S 10(23C) OF THE I.T.ACT, 1961 AND TREATING THE S URPLUS OF RS. 20,00,747/- AS INCOME OF THE ASSESSEE AND THAT TOO WITHOUT CONSIDERING THE SUBMISSION OF ASSESSEE. ITA NO.919/DEL./2018 2 2. THAT IN ANY CASE AND ANY VIEW OF THE MATTER, A CTION OF LD. CIT(A) IN NOT REVERSING THE ACTION OF LD. A.O. IN MAKING THE IMPUGNED ADDITION AND FRAMING THE IMPUGNED ASSE SSMENT ORDER WHICH IS CONTRARY TO LAW AND FACTS, VOID AB I NITIO, BEYOND JURISDICTION, AND WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING, BY RECORDING INCORRECT FACT S AND FINDINGS AND THE SAME IS NOT SUSTAINABLE ON VARIOUS LEGAL AND FACTUAL GROUNDS. 3. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MOD IFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. BRIEFLY STATED THAT FACTS NECESSARY FOR ADJUDI CATION OF THE CONTROVERSY AT HAND ARE : ASSESSEE IS A SOCIETY REGISTERED UND ER SOCIETY REGISTRATION ACT, WHICH IS NEITHER HAVE BEEN GRANTED REGISTRATI ON U/S 12AA OF THE ACT, 1961 (FOR SHORT ACT) NOR HAVING ANY EXEMPTION CER TIFICATION U/S 10(23C) (VI) OF THE ACT, WHICH IS RUNNING SCHOOL UNDER THE NAME AND STYLE OF MEERUT CITY PUBLIC SCHOOL, MEERUT. ASSESSEE FILED A UDIT REPORT U/S 12A(B) FOR BOOKS OF ACCOUNT, BALANCE SHEET, INCOME AND EXP ENDITURE ACCOUNT. HOWEVER, ASSESSING OFFICER TAKING NOTE OF THE FACT THAT ASSESSEE IS NEITHER REGISTERED U/S 12AA NOR GRANTED ANY EXEMPTION CERTI FICATE U/S 10(23C) (VI) OF THE ACT MADE ADDITION OF RS. 20,00,747/- ON ACCOUNT OF SURPLUS INCOME AND MADE FURTHER ADDITION OF RS. 30,56,294/- ON ACCOUNT OF DISALLOWANCE OF CLAIM OF DEPRECIATION OF THE ASSESS EE. 3. ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) BY W AY OF FILING PRESENT APPEAL WHICH HAS PARTLY ALLOWED THE APPEAL. FEELING AGGRIEVED THE ASSESSEE COME UP BEFORE THE TRIBUNAL BY WAY OF FILI NG THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UPON AND ORDERS PASSED BY ITA NO.919/DEL./2018 3 THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF THE F ACTS AND CIRCUMSTANCES OF THE CASE. 5. UNDISPUTEDLY THE ASSESSEE SOCIETY, WHICH IS RUN NING SCHOOL IN THE NAME AND STYLE OF MEERUT PUBLIC SCHOOL MEERUT, WAS NOT REGISTERED U/S 12AA NOR WAS GRANTED ANY CERTIFICATE U/S 10(23C) (V I) OF THE ACT. IT IS ALSO NOT IN DISPUTE THAT THE CIT(EXEMPTION), LAKHNOW HAS NOW GRANTED REGISTRATION U/S 10(23C) (VI) OF THE ACT WITH EFFEC T FROM 28.07.2014 IN COMPLIANCE TO THE DIRECTIONS ISSUED BY HONBLE ALLA HABAD HIGH COURT. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE HAS MOVED AN APPLICATION FOR GRANT OF EXEMPTION U/S 20(23C)(VI) AND VIA FOR THE YEAR 2 011-12 ON 27 TH JUNE, 2012, WHICH WAS REJECTED BY THE CIT EXEMPTION. IT I S ALSO NOT IN DISPUTE THAT HONBLE HIGH COURT OF ALLAHABAD VIDE ORDER DAT ED 15.09.2016 QUASH THE ORDER DATED 01.05.2013 PASSED BY COMMISSIONER E XEMPTION AND THEREAFTER EXEMPTION WAS GRANTED U/S 10(23C) (VI) O F THE ACT TO THE ASSESSEE VIDE ORDER DATED 07.05.2018. 6. THE LD. CIT(A) VIDE IMPUGNED ORDER CONFIRMED THE IMPUGNED ADDITION MADE BY THE AO IN THE ABSENCE OF REGISTRAT ION OF THE ASSESSEE U/S 10(23C)(VI) OR 12AA BY MISINTERPRETING THE ORDER PA SSED BY HONBLE HIGH COURT OF ALLAHABAD THAT ASSESSEE HAS BEEN GRAN TED REGISTRATION U/S 10(23C)(VI) OF THE ACT WITH EFFECT FROM 28.07.2014 AND AS SUCH IS NOT APPLICABLE TO THE PRESENT CASE. WHEN UNDISPUTEDLY A SSESSEE HAD MOVED APPLICATION FOR EXEMPTION U/S 10(23C)(VI) IN FORM 5 6D ON 27 TH JUNE, 2012 WHICH WAS REJECTED BY LD. CIT(A) AND THE SAID ORDER HAS BEEN SET ASIDE AND THEREAFTER REGISTRATION WAS GRANTED, THE EXEMPT ION U/S 10(23C)(VI) IS TO RELATE BACK TO THE DATE OF FILING THE ORIGINAL A PPLICATION FOR A.Y. 2011- 12. 7. SO WE ARE OF THE CONSIDERED VIEW THAT THE LD. CI T(A) HAS ERRED IN ITA NO.919/DEL./2018 4 CONFIRMING THE ADDITION MADE BY THE AO ON THE SOLE GROUND THAT THE ASSESSEE WAS NOT HAVING REGISTRATION U/S 10(23C)(VI ) OR 12AA OF THE ACT. IN VIEW OF THE MATTER, WE DEEM IT NECESSARY, TO ACH IEVE ENDS OF JUSTICE, TO REMAND THIS CASE BACK TO THE AO TO DECIDE AFRESH IN THE LIGHT OF THE EXEMPTION GRANTED TO THE ASSESSEE U/S 10(23C) (VI) OF THE ACT, AFTER PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. 8. CONSEQUENTLY APPEAL FILED BY THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 25 TH JANUARY, 2019. SD/- SD/- (N.S.SAINI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 25/01/ 2019 BR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXVI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI. ITA NO.919/DEL./2018 5 DATE OF DICTATION 15.01.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16.01.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 25.01.2019 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 25.01.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 25.01.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 25.01.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 25.01.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER