Pushpagiri Medical society, Thiruvalla V. DCIT, Thiruvalla

MA 104/COCH/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9776 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2013
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2001-2002
• Appeal Filed On: 30-11-2012
• Court: TRIBUNAL
• Department Lawyers: SUSAN GEORGE VARGHESE
• Keywords: Deemed to accrue or arise in india
• Section: 68; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM M.P. NOS.104, 105 & 106/COCH/2012 (ARSG. OUT OF I.T.A. NOS. 565, 566 & 567/COCH/2009 ) ASSESSMENT YEARS : 2001-02, 2005-06 & 2006-07 PUSHPAGIRI MEDICAL SOCIETY, THIRUVALLA [PAN: AAATP 2418H] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1. THIRUVALLA. (ASSESSEE -APPELLANT) (REVENUE-R ESPONDENT) ASSESSEE BY SHRI ABRAHAM K. THOMAS, CA REVENUE BY SMT. SUSAN GEORGE VARGHESE, SR. DR DATE OF HEARING 11/01/2013 DATE OF PRONOUNCEMENT 11/01/2013 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THESE MISCELLANEOUS PET ITIONS WITH THE PLEA THAT THERE IS A MISTAKE APPARENT FROM RECORD IN THE COMMON ORDER DA TED 22-09-2011 PASSED BY THE TRIBUNAL IN THE HANDS OF THE ASSESSEE HEREIN . 2. WE NOTICE THAT THE MAIN GRIEVANCE OF THE ASSESSE E IS THAT THE TRIBUNAL HAS FAILED TO FOLLOW THE DECISION RENDERED BY THE HONBLE JURI SDICTIONAL HIGH COURT IN THE CASE OF MUSLIM EDUCATIONAL SOCIETY IN I.T.A. NO. 1711/2007 A ND THE SAME HAS RESULTED IN A MISTAKE APPARENT FROM RECORD. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL, WHILE PASSING THE ORDER, SIDE TRACKED AND IGNORED THE ORDER OF THE HO NBLE JURISDICTIONAL HIGH COURT IN THE CASE OF MUSLIM EDUCATIONAL SOCIETY IN I.T.A. NO. 171 1/2007, BY STATING THAT THE RATIO OF THE HONBLE JURISDICTIONAL HIGH COURT DECISION COME INTO PLAY OR EFFECT ONLY ON THE M.P. NOS. 104,105&106/COCH/2012 2 ASSESSEE REPORTING OR BEING ASSESSED AT A POSITIVE INCOME. THUS, ACCORDING TO LD A.R, THE TRIBUNAL OUGHT TO HAVE FOLLOWED THE SAID DECISI ON. WE ALSO HEARD LD D.R, WHO CONTENDED THAT THE TRIBUNAL HAS TAKEN A VIEW AFTER DULY CONSIDERING THE DECISION OF THE JURISDICTIONAL HIGH COURT, REFERRED ABOVE AND HENCE THE SAME CANNOT BE CONSIDERED AS A MISTAKE APPARENT FROM RECORD. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WE NOTICE THAT THE ISSUE BEFORE THE TRIBUNAL IN ALL THE THREE YEARS WA S ABOUT THE ADDITIONS MADE BY THE ASSESSING OFFICER U/S. 68 OF THE ACT. IN THE ASSES SMENT ORDER, THE ASSESSING OFFICER TOOK THE VIEW THAT THE ADDITION MADE U/S 68 IS IN T HE NATURE OF DEEMED INCOME AND HENCE THE SAME CANNOT BE CONSIDERED AS FORMING PART OF ANY OF THE HEADS OF INCOME SPECIFIED IN CHAPTER IV OF THE ACT. ACCORDINGLY, T HE AO TOOK THE VIEW THAT THE ADDITION MADE U/S 68 OF THE ACT IS CONSIDERED FOR THE AGGREG ATION OF INCOME IN CHAPTER VI ONLY. ACCORDINGLY, THE ASSESSING OFFICER TOOK THE VIEW TH AT ADDITION MADE U/S. 68 OF ACT IS NOT EXEMPT U/S. 10(23C) OF THE ACT. HAVING OBSERVED SO , THE ASSESSING OFFICER HOWEVER, ALLOWED SET OFF OF INCOME ADDED U/S. 68 OF THE ACT AGAINST THE LOSS/BROUGHT FORWARD LOSS DECLARED BY THE ASSESSEE. THE PLEA OF THE ASSESSEE BEFORE THE TRIBUNAL WAS THAT THE ADDITION MADE U/S 68 OF THE ACT SHOULD ALSO BE TREA TED AS INCOME EXEMPT U/S 10(23C) OF THE ACT OR UNDER SECTION 11 OF THE ACT. IT IS P ERTINENT TO NOTE HERE THAT THE ASSESSEE ENJOYED EXEMPTION U/S 10(23C) OF THE ACT FOR THE AS SESSMENT YEAR 2001-02 AND FOR OTHER TWO YEARS UNDER CONSIDERATION, IT CLAIMED EXE MPTION U/S 11 OF THE ACT. 5. SINCE THE ASSESSING OFFICER HAD ALLOWED SET O FF OF THE AMOUNT ADDED U/S 68 OF THE ACT AGAINST THE LOSS RETURNED BY THE ASSESSEE OR BR OUGHT FORWARD LOSS, AS THE CASE MAY BE, THE TRIBUNAL, IN PARA 7.1 OF ITS ORDER, STATED THAT THE BENEFIT CLAIMED BY THE ASSESSEE HAS ULTIMATELY BEEN GRANTED BY THE ASSESSI NG OFFICER BY ALLOWING SET OFF. UNDER THESE CIRCUMSTANCES, THE TRIBUNAL, IN PARA 7. 5 OF THE ORDER, AFTER CONSIDERING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF MUSLIM EDUCATIONAL SOCIETY, REFERRED SUPRA, TOOK THE VIEW THAT THE RAT IO OF THE SAID DECISION WOULD COME INTO PLAY OR EFFECT ONLY ON THE ASSESSEE REPORTING OR BEING ASSESSED AT A POSITIVE INCOME. M.P. NOS. 104,105&106/COCH/2012 3 6. THESE DISCUSSIONS WOULD SHOW THAT THE TRIBUNA L HAS TAKEN A PARTICULAR VIEW IN THE FACTS AND CIRCUMSTANCES OF THE CASE, AFTER DULY CON SIDERING THE DECISION RENDERED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF MU SLIM EDUCATIONAL SOCIETY, REFERRED SUPRA. UNDER THESE CIRCUMSTANCES, IT CANNOT BE SAI D THAT THE TRIBUNAL HAS FAILED TO FOLLOW THE DECISION OF THE HONBLE JURISDICTIONAL H IGH COURT RESULTING IN A MISTAKE APPARENT FROM RECORD. HENCE, WE DO NOT FIND ANY M ERIT IN THE MISCELLANEOUS PETITIONS FILED BY THE ASSESSEE. 7. IN THE RESULT ALL THE THREE MISCELLANEOUS PETITI ONS ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 1 1-01-2013. SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 11 TH JANUARY, 2013 GJ COPY TO: 1. PUSHPAGIRI MEDICAL SOCIETY, THIRUVALLA. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, THIRUVALLA. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, TRIV ANDRUM.. 4.THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN M.P. NOS. 104,105&106/COCH/2012 4