Allahabad High School Society, V. Commissioner of Income Tax (Exemption), Lucknow

MA 111/LKW/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3773 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-12-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 22-09-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: B D GUPTA
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER M.A. NO. 111/LKW/2015 (IN ITA NO. 298 /LKW/201 5 ASSESSMENT YEAR:2010-11 ALLAHABAD HIGH SCH OOL SOCIETY 4, P.D. TANDON ROAD, ALLAHABAD V. A CIT, (TDS) BAREILLY PAN : AA BTA 2869 A (APPELLANT) (RESPONDENT) APP ELL ANT BY: SHRI B.D. GUPTA, CA RESPONDENT BY: SHRI AMIT NIGAM , D.R. DATE OF HEARING: 11 1 2 201 5 DATE OF PRONOUNCEMENT: 18 12 2015 O R D E R PER SUNIL KUMAR YADAV: THIS MISCELLANEOUS APPLICATION IS PREFERRED ON BEH ALF OF THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 10 .07.2015, WITH THE SUBMISSION THAT THE ISSUE INVOLVED BEFORE THE TRIBU NAL IS SQUARELY COVERED BY THE JUDGMENT OF THE HONBLE JURISDICTION AL HIGH COURT OF ALLAHABAD IN THE CASE OF PRGATI ENGINEERING CORPORA TION VS. ITO IN INCOME TAX APPEAL NO. 11 OF 2012 VIDE ITS JUDGMENT DATED 05.04.2013 BUT THE TRIBUNAL HAS NOT TAKEN INTO ACCO UNT THE SAID JUDGMENT AND A CONTRARY VIEW HAS BEEN TAKEN BY THE TRIBUNAL. THEREFORE, THE NON CONSIDERATION OF THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT WHILE DISPOSING OF THE APPEAL IS AN ERRO R APPARENT FROM THE :-2-: RECORD FOR WHICH THE ORDER OF THE TRIBUNAL IS TO BE RECALLED AND THE APPEAL BE HEARD AFRESH. IN SUPPORT OF THIS PROPOSIT ION OF LAW, LD. COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE UPON T HE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF ACIT VS. SAUR ASHTRA KUTCH STOCK EXCHANGE LIMITED REPORTED IN 305 ITR 227 (SC). LD. COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT THE FACTS OF THE IN STANT CASE ARE QUITE SIMILAR TO THE CASE OF PRGATI ENGINEERING CORPORATI ON LTD. THEREFORE, THE TRIBUNAL SHOULD HAVE FOLLOWED THE JUDGMENT OF T HE JURISDICTIONAL HIGH COURT. 2. THE LD. DR STRONGLY OBJECTED TO THE CONTENTION O F THE ASSESSEE WITH THE SUBMISSION THAT THE FACTS IN THE CASE OF P RAGATI ENGINEERING CORPORATION LTD. ARE ENTIRELY DIFFERENT FROM THE FA CTS OF THE INSTANT CASE, THEREFORE, IT CANNOT BE SAID THAT THE ISSUE I NVOLVED IN THE APPEAL IS COVERED BY THE JUDGMENT OF JURISDICTIONAL HIGH C OURT AND NON CONSIDERATION OF THE SAME AMOUNT TO AN ERROR APPARE NT IN THE ORDER OF THE TRIBUNAL. HE FURTHER CONTENDED THAT THE TRIBUNA L HAS TAKEN INTO ACCOUNT ALL ASPECTS WHILE ADJUDICATING THE DISPUTE, THEREFORE, ANY INTERFERENCE IN THE ORDER OF THE TRIBUNAL AMOUNT TO REVIEW OF THE ORDER, WHICH IS NOT POSSIBLE U/S 254(2) OF THE ACT. 3. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWE R AUTHORITIES IN THE LIGHT OF RIVAL SUBMISSIONS AND FROM PERUSAL OF THE ORDER OF THE TRIBUNAL VIS--VIS THE MISCELLANEOUS APPLICATION AN D THE JUDGMENT PLACED BEFORE US, WE FIND THAT IN THE CASE OF PRGAT I ENGINEERING CORPORATION LTD., THE BOOKS OF ACCOUNTS OF THE ASSE SSEE WERE IMPOUNDED BY THE POLICE AND WHENEVER IT WAS RETURNE D IT WAS BADLY MUTILATED. THEREFORE, NO COGNIZANCE COULD BE TAKEN BY THE SAID BOOKS OF ACCOUNTS. IN THAT CASE, THE ASSESSEE HAS PLACED RELEVANT EVIDENCE :-3-: BEFORE THE AUTHORITIES WITH RESPECT TO SEIZURE OF T HE BOOKS OF ACCOUNTS BY THE POLICE AUTHORITIES. BUT IN THE INSTANT CASE, THE ASSESSEE HAS TAKEN AN ORAL STAND THAT THE BOOKS OF ACCOUNTS WERE TAKEN AWAY BY THE ACCOUNTANT OF THE AUDITOR BUT NO EVIDENCE WAS P LACED ON RECORD IN SUPPORT OF HIS CONTENTION. WHILE ADJUDICATING THE I SSUE, THE TRIBUNAL HAS OBSERVED THAT THE ASSESSEE OUGHT TO HAVE REGIST ERED A CASE AGAINST THE ACCOUNTANT AS THE BOOKS OF ACCOUNTS OF THE ASSESSEE ARE PROPERTY OF THE ASSESSEE AND NOBODY HAS RIGHT TO RE TAIN IT WITH HIM FOR ANY PURPOSE WITHOUT THE CONSENT OF THE ASSESSEE. SI NCE THE ASSESSEE COULD NOT PLACE ANY EVIDENCE ON RECORD IN SUPPORT O F HIS CONTENTION THAT BOOKS OF ACCOUNTS WERE TAKEN AWAY OR RETAINED BY THE AUDITOR OR HIS ACCOUNTANT, THE STORY PROPOUNDED BY THE ASSESSE E WAS NOT ACCEPTED BY THE TRIBUNAL. THEREFORE, THE FACTS OF T HE INSTANT CASE AND THE FACTS OF THE CASE OF PRGATI ENGINEERING ARE ENT IRELY DIFFERENT. AS SUCH, IT CANNOT BE SAID THAT THE IMPUGNED ISSUE INV OLVED IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT OF ALLAHABAD IN THE CASE OF PRAGATI ENGINEERING CORPORATION LTD. MOREOVER, THE ISSUE IN DISPUTE WITH RESPECT TO JURISDICTION OF THE CIT U/S 263 OF THE A CT IN THE CASE OF PRAGATI ENGINEERING WAS ESTIMATION OF GROSS PROFIT IN THE ABSENCE OF BOOKS OF ACCOUNTS. THEREFORE THE FACTS OF THE CASE AND THE ISSUE INVOLVED IN THE INSTANT APPEAL ARE NOT IDENTICAL TO THE FACTS OF PRAGATI ENGINEERING. SINCE THE ISSUE IS NOT SQUARELY COVERE D BY THE JUDGMENT OF THE HONBLE JURISDICITONAL HIGH COURT IN THE CAS E OF PRAGATI ENGINEERING CORPORATION LTD., NON CONSIDERATION OF THE SAME CANNOT BE CALLED TO BE THE ERROR APPARENT FROM THE RECORD. MOREOVER, DURING THE COURSE OF HEARING OF THE MISCELLANEOUS APPLICAT ION, LD. COUNSEL FOR :-4-: THE ASSESSEE HAS CANDIDLY ADMITTED THAT THE JUDGMEN T OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF PRAGATI EN GINEERING LTD. WAS NOT PLACED BEFORE THE TRIBUNAL FOR ITS PERUSAL. THE REFORE, IN THE LIGHT OF ABOVE SAID FACTS, WE ARE OF THE CONSIDERED VIEW THA T NON CONSIDERATION OF THE JUDGMENT OF JURISDICTIONAL HIGH COURT WHICH WAS NOT PLACED BEFORE THE TRIBUNAL DURING THE COURSE OF HEARING OF THE APPEAL IS NOT ERROR APPARENT FROM THE RECORD. WE HAVE CAREFULLY E XAMINED THE ORDER OF THE TRIBUNAL AND WE FIND THAT THE TRIBUNAL HAS T AKEN INTO ACCOUNT ALL RELEVANT ASPECTS AND HAS GIVEN A CATEGORICAL FI NDING THAT UNDER THE GIVEN FACTS OF THE CASE, CIT HAS RIGHTLY EXERCISED ITS JURISDICTION U/S 263 OF THE ACT. THEREFORE, WE FIND NO MERIT IN THE MISCELLANEOUS APPLICATION OF THE ASSESSEE AND WE DISMISS THE SAME . 4. IN THE RESULT, M.A. OF THE ASSESSEE IS DISMISSED . ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED ON THE CAPTIONED PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT M EMBER JUDICIAL MEMBER DATED: 18 TH DECEMBER, 2015 AKS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR