Gujarat Co.Op. Milk Mktg. Federation Ltd., Anand V. The ACIT., Anand Circle, Anand

MA 104/AHD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7667 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2002-2003
• Appeal Filed On: 27-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUNIL H TALATI
• Section: 80G; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE SHRI MUKUL KUMAR SHRAWAT, JM AND SHRI A. MO HAN ALANKAMONY, AM) M. A. NO.104/AHD/2010 ((IN ITA NO.475/AHD/2006 AY: 2002-03) GUJARAT CO-OP. MILK MARKETING FEDERATION LTD. AMUL DAIRY ROAD, ANAND PA NO. AAACG 7189 H VS THE A. C. I. T., ANAND CIRCLE ANAND (APPLICANT) (RESPONDENT) APPLICANT BY SHRI SUNIL H. TALATI, AR RESPONDENT BY SHRI SAMIR TEKRIWAL, SR. DR DATE OF HEARING: 02-03-2012 DATE OF PRONOUNCEMENT: 02-03-2012 ORDER PER A. MOHAN ALANKAMONY : THIS MISC. APPLICATION IS FILED BY THE ASSESSEE BEING AGGRIEVED BY THE ORD ER OF THE TRIBUNAL DATED 22-03-2010 IN ITA NO.475/AHD/2006 FOR ASSESSM ENT YEAR 2002-03. 2. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D COUNSEL FOR THE ASSESSEE, COPY OF WHICH IS PLACED ON RECORD AND FIND FORCE IN THE CONTENTIONS OF THE ASSESSEE. WHILE ADJUDICATING GROUND NO.4 OF THE APPEAL OF THE ASSESSEE, IT IS FOUND THAT THROUG H OVERSIGHT A MISTAKE HAS CREPT WHICH IS APPARENT ON RECORD. THE LEARNED DR ALSO DID NOT OPPOSE TO THE SUBMISSION OF THE LEARNED AR. MA NO.104/AHD/2010 (IN ITA NO. 475/AHD/2006 AY: 2004-05) GUJARAT CO-OP. MILK MARKETING FEDERATION LTD. VS D CIT, SURAT 2 3. AFTER HEARING BOTH THE SIDES, WE ARE OF THE CONS IDERED OPINION THAT IN THE INTEREST OF JUSTICE THE CASE REQUIRES T O BE RECALLED LIMITED TO GROUND NO.4 OF THE APPEAL. ACCORDINGLY, WE RECALL T HE CASE LIMITED TO ADJUDICATION OF GROUND NO.4 OF THE ABOVE APPEAL. 4. IT WAS FURTHER SUBMITTED BY THE ASSESSEE THAT GR OUND NO.5 RELATING TO DISALLOWANCE OF RS.4,48,04,410/- BEING DONATION U/S 80 G OF THE IT ACT TO AMUL RELIEF TRUST ALSO HAS BEEN ER RONEOUSLY DISMISSED BY THE TRIBUNAL WHICH IS A MISTAKE APPARE NT FROM RECORD. AND THAT THE TRIBUNAL HAS ERRED IN HOLDING ON PAGE IN LAST PORTION OF PARA 21 OF THE ORDER AS UNDER: IT IS UNDISPUTED FACT THAT FUNDS WERE NOT UTILIZED BY THE DONEE TRUST AND THE OTHER CONDITIONS NAMELY CONDITIONS AT CLAUSE 2, 3 AND 4 WERE ALSO NOT FULFILLED. THEN AS PER INITIAL WORDS USED IN 80 G(5C), DEDUCTION U/S. 80G WOULD NOT BE AVAILABLE TO THE DONEE TRUST. NO CONTRARY AUTHORITY IS CITED BEFORE US BY THE LD. A.R. WE ACCORDINGLY UPHOLD THE ORDER OF THE LD. CIT (A). THIS GROUND OF THE ASSESSEE IS ACCORDINGLY REJECTED. 4.1 IT WAS ALSO SUBMITTED THAT THESE ARE NOT THE FA CTS AT ALL. AS SPECIFICALLY MENTIONED IN THE ORIGINAL GROUND AND I N THE REVISED GROUND NO.6, THE ASSESSEE HAD SUBMITTED AND ARGUED AT LENGTH THAT REJECTION OF CLAIM U/S 80 G (5C) OF THE IT ACT AND TAXABILITY IN THE HANDS OF THE TRUST IS INDEPENDENT BUT DEDUCTION U/S . 80G IN THE HANDS OF THE DONOR IS TO BE DECIDED AS PER SEC. 12 (3) OF THE IT ACT AND THAT THE TRIBUNAL HAS ERRONEOUSLY IGNORED THE FACTS THAT THE TRIBUNAL IN THE CASE OF APPEAL FILED BY AMUL RELIEF TRUST ITSELF HA D ALLOWED THE APPEAL, WHICH HAS BEEN FILED IN PAPER BOOK NO.2 AT PAGE 147 TO 155 IN WHICH OUT OF RS.5 CRORES ONLY RS.1 CRORES HAS BE EN DISALLOWED MA NO.104/AHD/2010 (IN ITA NO. 475/AHD/2006 AY: 2004-05) GUJARAT CO-OP. MILK MARKETING FEDERATION LTD. VS D CIT, SURAT 3 AND THE BALANCE AMOUNT OF RS.4 CRORES HAS BEEN ALLO WED CONSIDERING THE ALL THE CONDITIONS LAID DOWN IN SEC . 80G (5C) OF THE IT ACT HAVE BEEN COMPLIED WITH. IN SUPPORT OF HIS CONT ENTION THE LEARNED AR REFERRED TO PAPER BOOK PAGE 3 IN PARA 2 IN LAST 8 LINES AND SUBMITTED THAT AS SPECIFICALLY MENTIONED IN LAST PA RA ON PAGE 4 OF THE WRITTEN SUBMISSION THE TRIBUNAL OUGHT TO HAVE CONSI DERED THIS AND OUGHT TO HAVE DIRECTED THE AO TO ALLOW THE DONATION IN THE HANDS OF THE ASSESSEE TO THE EXTENT THE TRIBUNAL HAS ALLOWED THE EXEMPTION TO AMUL RELIEF TRUST, I.E. OF RS.4 CRORES. IT WAS FURT HER SUBMITTED THAT NON-OBSERVATION AND NON-CONSIDERATION OF THESE SPEC IFIC FACTS HAS RESULTED INTO GREAT IRREPARABLE LOSS TO THE ASSESSE E IN AS MUCH AS THE TRUST WAS ALSO TAXED, WHICH HAS NOT GOT PARTIAL REL IEF BUT THE DONOR CANNOT BE PENALIZED FOR NON-DEDUCTION ON THE AMOUNT ALREADY TREATED AS EXEMPTED IN THE HANDS OF THE TRUST AND THAT THIS IS A MISTAKE APPARENT FROM RECORD AND NEEDS TO BE RECTIFIED BY G IVING NECESSARY DIRECTION FOR GRANTING APPROPRIATE DEDUCTION AS SPE CIFICALLY ARGUED AND MENTIONED IN THE WRITTEN SUBMISSION. 5. AFTER HEARING BOTH THE SIDES, THE CLAIM OF THE A SSESSEE SEEMS TO BE JUSTIFIED. AS STATED BY THE ASSESSEE, THE DEC ISION OF THE TRIBUNAL MENTIONED (SUPRA) HAS NOT BEEN CONSIDERED BY PASSIN G THE IMPUGNED ORDER. THEREFORE, THIS ISSUE RAISED BY THE ASSESSEE ALSO SEEMS TO BE JUSTIFIED AND THE ORDER OF THE TRIBUNAL TO THAT EXT ENT IS ACCORDINGLY RECALLED. 6. ACCORDINGLY, WE RECALL THE ORDER OF THE TRIBUNAL MENTIONED (SUPRA) LIMITED TO ADJUDICATION OF BOTH THE AFORESA ID TWO ISSUES AND MA NO.104/AHD/2010 (IN ITA NO. 475/AHD/2006 AY: 2004-05) GUJARAT CO-OP. MILK MARKETING FEDERATION LTD. VS D CIT, SURAT 4 DIRECT THE REGISTRY TO POST IT FOR HEARING ON 11-04 -2012. SINCE, BOTH THE PARTIES WERE INTIMATED IN THE OPEN COURT, NO NO TICE IS REQUIRED TO BE ISSUED. 7. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 02-03-2012. SD/- SD/- (MUKUL KUMAR SHRAWAT) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD