AUDIT BUREAU OF CIRCULATIONS, MUMBAI V. ADDL. DIR. OF I.T. (EXEMP) RANGE 11 ( NOW I.T. (EXEMPTION) 1 (1 ), MUMBAI

MA 09/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4436 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 08-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 2(A); 13; 22; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND S/SHRI AMARJIT SINGH, JUDICIAL MEMBER M.A. N O . 09 / M UM /20 19 (ARISING OUT OF ITA NO. 6393 /MUM/20 16 ) ( / ASSESSMENT YEAR : 20 12 - 1 3 ) AUDIT BUREAU OF CIRCULATIONS WAKEFIELD HOUSE, SPROTT ROAD, BALLARD ESTATE, MUMBAI - 400001 . / VS. ADDL. DIR. OF I. T. (EXEMP) RANGE - 11(NOW I. T. (EXEMPTION) 1(1) PIRAMAL CHAMBER, MUMBAI. / . / . PAN/GIR NO. : AAATA4100F ( / APPELLANT ) / APPLICANT .. ( / RESPONDENT ) / DATE OF HEARING: 22 / 01 /202 1 /DATE OF PRONOUNCEMENT: 02 /0 3 / 20 21 ORDER PER AMARJIT SINGH, J M THIS ORDER SHALL DISPOSE OF THE PRESENT MISCELLA N EOUS APPLICATION BEARING NO. 09 /M UM/2019 MOVED BY APP LICANT ARISING OUT OF ITA. NO. 6393 /MUM/201 6 RELEVANT TO THE A .Y. 2012 - 1 3 DECIDED ON DATED 25 . 07 .201 8 . 2. THE BRIEF FACTS OF THE PRESENT MISCELLANEOUS APPLICATION ARE THAT THE ASSESSEE FILED TWO APPEALS BEARING ITA. NO.6393/MUM/2016 FOR THE A.Y. 2012 - 13 AND BEARING ITA. NO.5681/MUM/2015 FOR THE A.Y. 2011 - 12 WHICH HAS BEEN DECIDED BY VIRTUE OF ORDER DATED 25.07.2018. THE APPLICANT HAD TAKEN THE FOLLOWING GROUNDS IN ITA. NO.6393/MUM/2016 READ AS UNDER.: - 1. 1(A) ON THE FACTS AND IN TH E CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) (H EREINAFTER REFERRED AS 'CIT(A) ERRED IN CONFIRMING THE ACTION OF THE LD. ASSESSING OFFICER OF DENIAL OF CLAIM FOR EXEMPTION UNDER SECTION 11 OF THE INCOME TAX ACT, 1 961 AND THE REASONS ASSIGNED FOR DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OI THE CASE, PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THERE UNDER. ASSESSEE BY: SHRI SUNIL NAHATA SHRI MAYANK CHAUHAN REVENUE BY: SHRI BRAJENDRA KUMAR (DR ) M.A. N O. 09 / M UM /20 19 A.Y.2012 - 13 1(B) (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C OMMISSIONER OF INCOME TAX (APPEALS) (HEREINAFTER REFERRED AS 'CIT(A)') ERRED IN CONFIRMING THE ACTION OF THE LD. ASSESSING OFFICER OF DENIAL OF CLAIM FOR EXEMPTION UNDER SECTION 11 OF THE INCOME TAX ACT, 1961 TO THE APPELLANT 'BY INVOKING THE PROVISO TO SE CTION 2(15) OF THE INCOME TAX ACT, 1961 AND THE REASONS ASSIGNED FOR DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THERE UNDER. (II)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES FAILED TO APPRECIATE THAT, THE AMENDED PROVISIONS OF SECTION 2(15) DC NOT CHANGE THE CHARACTER OR EXEMPT STATUS OF THE ASSESSEE. 1(C) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIE S ERRED IN HOLDING THAT THE MEMBERSHIP SUBSCRIPTION AND ENTRANCE FEES ARE TAINTED WITH COMMERCIALITY AND BEYOND THE SCOPE OF MUTUALITY AND THEREBY ERRED IN DENYING THE APPELLANT'S CLAIM FOR EXEMPTION U/S 11 OF THE INCOME TAX ACT, 1961, AND THE REASONS ASSI GNED FOR DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THERE UNDER. I (D) (I) ON THE FACTS AND III THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ACTION OF LOWER AUTHORITIES IN H OLDING THE APPELLANT ACTIVITY IN THE NATURE OF TRADE, COMMERCE OR BUSINESS AND THEREBY IN HOLDING THAT THE APPELLANT IS NOT ELIGIBLE FOR CLAIM OF EXEMPTION U/S 11 OF THE INCOME TAX ACT, 1961 WHICH IS CONTRARY TO THE DECISION OF THE HON'BLE ITAT IN THE APPE LLANT' S OWN CASE IN ITA NO. 285 & 286/BOM/ 95 FOR A.Y'S 1989 - 90 & 1990 - 91 - (II) THAT THE ORDER OF THE ASSESSING OFFICER IS LEGALLY UNSUSTAINABLE AS UNDER SECTION 13(8) READ WITH SECTION 2(15), THE ASSESSING OFFICER CANNOT CHALLENGE THE PRIMARY ACTIVITIES OF THE ASSESSEE BASED ON WHICH THE CHARITABLE STATUS WAS GRANTED AND REAFFIRMED BY THE HON'BLE ITAT IN THE APPELLANT'S OWN CASE IN I TA NO. 285 &. 286/BOM/95 FOR AY S 1989 - 90 & 1990 - 91. 1(E) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND, IN LAW, THE LEA RNED CIT(A) ERRED IN CONFIRMING THE ACTION OF THE LD. ASSESSING OFFICER OF DENIAL OF M.A. N O. 09 / M UM /20 19 A.Y.2012 - 13 CLAIM FOR EXEMPTION UNDER SECTION 1 1 OF THE INCOME TAX ACT, 1961 TO THE APPELLANT BY INVOKING THE PROVISIONS OF SECTION 13(1 )(C)(II) &. 13(2)(G) R.W.S. 1 3(3)(CC) OF THE I NCOME TAX ACT, 1961 AND THE REASONS ASSIGNED FOR DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, PROVISIONS OF INCOME TAX ACT, 1961 AND RULES MADE THERE UNDER. 2(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, TH E LEARNED CIT(A) ERRED IN UPHOLDING THE ACTION OF THE LEARNED ASSESSING OFFICER OF TREATING SUBSCRIPTION RECEIVED MEMBERS RS. 1,45,12,844 AND ENTRANCE FEES OF RS. 1,58,750/ - AS INCOME CHARGEABLE TO TAX WITHOUT APPRECIATING THAT THE SAID RECEIPTS ARE EXEMPT FROM INCOME TAX UNDER THE PRINCIPLE OF MUTUALITY AND THE REASONS ASSIGNED FOR DOING SO ARE WRONG AND CONTRARY TO THE FACTS OF THE CASE, PROVISIONS OF THE 1ICONIE.TAX ACT, 1961 AND RULES MADE. THEREUNDER. 2(B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE ACTION OF LOWER AUTHORITIES IN CHARGING TO TAX THE SUBSCRIPTION RECEIVED FROM MEMBERS AND ENTRANCE FEES IS CONTRARY TO THE DECISION OF THE HONBLE ITAT IN THE APPELLANT'S OWN CASE IN ITA NO. 285 & 286/BOM/95 FOR AY 'S 1989 - 90 &. 1990 - 91. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR MODIFY, ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 3. THE SAID APPEAL HAS BEEN DECIDED BY THE SAME ORDER IN WHICH THE PARA NO. 13 & 14 ARE HEREBY REPRODUCED AS UNDER.: - 13. THE FACTS OF THE PRESENT CASE ARE THAT QUITE SIMILAR TO THE FACTS OF THE CASE AS NARRATED IN THE ABOVE MENTIONED APPEAL BEARING NO. 5681/M/2015, THEREFORE, THERE IS NO NEED TO REPEAT THE SAME, HOWEVER, THE FIGURE IS DIFFERENT. (ISSUE NO. 1 & 2) 14. THESE ISSUES HAVE ALREADY BEING DISCUSSED AND DECIDED BY US WHILE DECIDING THE ISSUES NO. 1 AND 4 IN ITA. NO.5681/M/2015. THEREFORE, THE SAID ISSUES ARE BEING DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE ON SIMILAR LIN E S.. M.A. N O. 09 / M UM /20 19 A.Y.2012 - 13 4. THE BENCH HAS DECIDED ITA. BEARING NO.5681/MUM/2015 IN FAVOUR OF THE ASSESSEE ON THE BASIS OF THIS FACT THAT THE ISSUE NO. 1 & 4 HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN ITA. NO.6393/MUM/2016 . IT IS MENTIONED THAT THE ISSUE RAISED IN THE APPEAL B EARING ITA. NO.5681/MUM/2015 I.E. ISSUE NO. 1(E) RAISED IN ITA. NO.6393/MUM/2016 HAS NOT DISCUSSED AND DECIDED WHILE DEC IDING ITA. NO.5681/MUM/2015. HOWEVER, THE ISSUE NO. 1 & 2 HAS BEEN ADJUDICATED ON THE BASIS OF ISSUE NO. 1 & 4 BEARING ITA. NO.5681/MUM/ 2015. SINCE THE ISSUE NO. 1(E) HAS NOT BEEN DISCUSSED AND DECIDED WHILE DECIDING THE ITA. NO. 6393 /MUM/201 6, THEREFORE, TO THE EXTENT OF ADJUDICATION OF ISSUE NO. 1(E) WE RECALL THE ORDER BEARING ITA. NO.6393/MUM/2016 RELEVANT TO THE A.Y.2012 - 13 DECIDED ON DATED 25.07.2018. T HE PRESENT MISCELLANEOUS APPLICATION IS HEREBY ALLOWED ACCORDINGLY AND THE REGISTRY IS HEREBY DIRECTED TO REFIX THE ITA. NO.6393/MUM/2016 IN DUE COURSE OF TIME. ACCORDINGLY, THE PRESENT MISCELLANEOUS APPLICATION IS HEREBY ALLOWED ACCORDI NGLY . IN THE RESULT , THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS HEREBY ALLOWED ACCORDINGLY . ORDER WAS PRON OUNCED IN TH E OPEN COURT ON 02 /03 / 202 1 SD/ - SD/ - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI, DT: 02 /0 3 / 2021 V IJAY PAL SINGH (SR. PS) M.A. N O. 09 / M UM /20 19 A.Y.2012 - 13 COPY TO : 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) 4 . THE CIT 5 . THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE, A , BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES