ITO (E) I(1), MUMBAI V. BREACH CANDY SWIMMING BATH TRUST, MUMBAI

ITA 951/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2552 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2016
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 18-07-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 11-02-2015
• Court: TRIBUNAL
• Assessee Lawyers: GOVARDHAN S GAUNKAR
• Section: 260A; 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI RAMLAL NEGI (JM) I.T.A. NO. 951 /MUM/ 20 1 5 (ASSESSMENT YEAR 20 11 - 12 ) ITO (EXEMPTION) - I(I) ROOM NO. 508 5 TH FLOOR PIRAMAL CHAMBERS LALBAUG MUMBAI - 400 012. VS. BR EACH CANDY SWIMMING BATH TRUST 66, BHULABHAI DESAI ROAD MUMBAI - 400 026. ( APPELLANT ) ( RESPONDENT ) PAN NO . AATB0133F ASSESSEE BY SHRI GOVARDHAN S. GAUNKAR DEPARTMENT BY SHRI NITIN WAGHMODE DATE OF HEARING 18 . 7 . 201 6 DATE OF PRONOUNCEMENT 18. 7 . 201 6 O R D E R PER B.R. BASKARAN (AM) : THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 14.11.2014 PASSED BY LEARNED CIT(A) - 1, MUMBAI AND IT RELATES TO A.Y. 2011 - 12. 2. GROUNDS OF APPEAL READ AS UNDER : - 1. THAT ON THE FACTS AND CI RCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A), ERRED IN GRANTING EXEMPTION U/S 11 OF THE I. T.ACT'. 2. 'THAT APPELLANT PRAYS THAT THE ORDER OF THE COMMISSIONER OF INCOME - TAX(APPEALS) I, MUMBAI, BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED CONSIDERING THE FACT THAT APPELLANT HAD FILED AN APPEAL U/S 260A AGAINST THE ORDER OF HON'BLE ITAT WHEREIN THE REGISTRATION U/S 12 O F THE ASSESSEE WAS RESTORED ON W HICH CIT(A) HAD RELIED TO GIVE RELIEF '. 3. 'THE APPELLANT CRAVES LEAVE TO AMEND OR ANY GROUN D OR AD A NEW GROUND WHICH MAY BE NECESSARY'. BREACH CANDY SWIMMING BATH TRUST 2 3. WE HA VE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSING OFFICER REJECTED THE CLAIM FOR EXEMPTION U/S. 11 ON THE GROUND THAT THE REGISTRATION GRANTED TO THE ASSESSEE U/S. 12A OF THE ACT EARLIER HAS S INCE BEEN CANCELLED BY DIT(E) , VIDE HIS ORDER DATED 26.12.2011. IN THE APPELLATE PROCEEDINGS , THE ASSESSEE SUBMITTED BEFORE LEARNED CIT(A) THAT IT HAD CHALLENGED THE ORDER PASSED BY DIT(E) BY FILING THE APPEAL BEFORE THE TRIBUNAL AND THE ITAT HAS SINCE REV ERSED THE ORDER OF DIT(E) AND RESTORED THE REGISTRATION TO THE ASSESSEE. LEARNED CIT(A) ACCORDINGLY DIRECTED THE ASSESSING OFFICER TO ALLOW EXEMPTION U/S. 11 OF THE ACT. FOR THE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE ORDER OF LEARNED CIT(A) IN THIS REGA RD : - 5.2 I HAVE CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSMENT ORDER OF THE A.O. AND THE SUBMISSIONS OF THE ASSESSEE. IT IS NOTICED THAT THE A.0 HAD DENIED THE CLAIM OF EXEMPTION U/S. 11 OF THE LT. - ACT FOR THE REASON OF CANCELLAT ION OF REGISTRATION U/S. 12A OF THE I.T. ACT, 1961 VIDE ORDER OF THE DIT DATED 26.12.2011. HOWEVER, THE SAID CANCELLATION ORDER HAS BEEN SET ASIDE BY THE HON. JURISDICTIONAL ITAT 'F' BENCH, MUMBAI AND REGISTRATION U/S. 12A IS RESTORED TO THE APPELLANT VIDE SAID ORDER. UNDER THESE CIRCUMSTANCES, THE REASON FOR DENIAL OF EXEMPTION OF THE INCOME OF THE APPELLANT BECOMES ERRONEOUS AND NON - EST IN VIEW OF ORDER OF THE HON. TRIBUNAL REFERRED ABOVE. THE RELEVANT PART OF THE ORDER OF THE HON. TRIBUNAL IS REPRODUCED AS FOLLOWS 'IN VIEW OF THE FOREGOING, FOR THE REASONS AFORE - STATED, IN OUR VIEW, THE ASSESSEE IS NOT HIT BY THE FIRST PROVISO TO SECTION 2(15) OF THE ACT. THE FURTHER QUESTION OF IT LEADING TO, OR NOT SO, WITHDRAWAL OF ITS REGISTRATION AS A CHARITABLE I NSTITUTION UNDER THE ACT WOULD, THEREFORE, NOT ARISE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. WE DECIDE ACCORDINGLY.' 5.2.1 IT IS SEEN THAT THE REGISTRATION U/S. 12A OF THE APPELLANT IS RESTORED WHICH WAS THE ONLY REASON FOR DENIAL OF EXEMPTION U/S. 1 1. WHILE DECIDING THE ISSUE OF REGISTRATION U/S. 12A, THE ISSUE OF APPLICABILITY OF PROVISO TO SECTION 2(15) OF THE I.T. ACT, 1961 HAS BEEN DECIDED IN FAVOUR OF THE APPELLANT. THEREFORE, PRIMA FACIE REGISTRATION GETTING RESTORED, MAKES THE DENIAL OF EXEMPT ION U/S. 11 TO THE APPELLANT BASELESS PARTICULARLY WHEN SAME HAS BEEN ALLOWED FROM YEAR TO YEAR UNDER THE SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE. IN VIEW OF ABOVE DISCUSSION, THE A.0 IS DIRECTED TO COMPUTE THE INCOME OF THE APPELLANT BY GRANTING EXEMP TION U/S. 11 OF THE I.T. ACT WHICH WAS DENIED FOR WANT OF REGISTRATION U/S. 12A AND NOW RESTORED TO THE APPELLANT VIDE ORDER OF THE HON. ITAT. ACCORDINGLY GROUND NO. 1 AND 2 AND 3 OF APPEAL ARE ALLOWED. BREACH CANDY SWIMMING BATH TRUST 3 4. SINCE THE VERY GROUND ON WHICH EXEMPTION U/S. 1 1 WAS DENIED BY THE ASSESSING OFFICER HAS SINCE BEEN REVERSED BY THE TRIBUNAL, WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY LEARNED CIT(A). ACCORDINGLY, WE UPHOLD HIS ORDER. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 18 .7.2016 SD/ - SD/ - (RAMLAL NEGI ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 18 / 7 / 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS