M/s Kanpur Industrial Development Co-operative Estate Ltd., Kanpur V. Astt. Commissioner of Income Tax, Kanpur

MA 15/LKW/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7116 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 3 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-06-2018
• Assessment Year: 2003-2004
• Appeal Filed On: 07-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST CONSOLIDATED PASSED

Judgement Text

M.A. NO.15,16 & 17/LKW/2017 ASSESSMENT YEAR:03-04, 04-05 & 05-06 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER MISC. APPLICATION NO.15, 16 & 17/LKW/2017 (ARISING OUT OF I.T.A. NO.559, 560 & 561/LKW/2015) ASSESSMENT YEAR:2003-04, 04-05 & 05-06 M/S KANPUR INDUSTRIAL DEVELOPMENT CO-OPERATIVE ESTATE LTD., 167-B, UDYOG NAGAR KANPUR. PAN:AAAJK 0040 J VS. A.C.I.T., KANPUR. (APPLICANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THESE MISC. APPLICATIONS HAVE BEEN FILED BY THE AS SESSEE AGAINST THE CONSOLIDATED ORDER PASSED BY HON'BLE TRIBUNAL IN IT S ORDER DATED 07/11/2016 IN I.T.A. NO.559, 560 AND 561/LKW/2015. 2. THESE MISC. APPLICATIONS CONTAIN SIMILAR ISSUE A ND THESE WERE HEARD TOGETHER THEREFORE, FOR THE SAKE OF CONVENIENCE A C OMMON AND CONSOLIDATED ORDER IS BEING PASSED. APPLICANT BY SHRI ABHINAV MEHROTRA, ADVOCATE RESPONDENT BY SHRI YASHVENDRA SINGH, D.R. DATE OF HEARING 2 7 /0 7 /2018 DATE OF PRONOUNCEMENT 03/08/2018 M.A. NO.15,16 & 17/LKW/2017 ASSESSMENT YEAR:03-04, 04-05 & 05-06 2 3. AT THE OUTSET LEARNED A. R. SUBMITTED THAT HON'B LE TRIBUNAL HAD DISMISSED THE APPEALS OF THE ASSESSEE BY HOLDING TH AT THE ISSUE WAS COVERED AGAINST THE ASSESSEE BY THE ORDER OF HON'BL E SUPREME COURT IN THE CASE OF BANGALORE CLUB VS. CIT AND ANOTHER [2013] 3 50 ITR 509 (SC). LEARNED A. R. SUBMITTED THAT IN THIS CASE HON'BLE S UPREME COURT HAD HELD THAT BENEFIT DOCTRINE OF MUTUALITY CAN BE AVAILABLE IN RESPECT OF THE SURPLUS AMOUNT RECEIVED AS CONTRIBUTION OR PRICE FOR SOME O F THE FACILITIES AVAILED OF BY ITS MEMBERS. LEARNED A. R. SUBMITTED THAT TO TH IS EXTENT THE ASSESSEE HAS NO ISSUE. HOWEVER, VIDE GROUND NO. 5 & 6 OF TH E APPEALS THE ASSESSEE HAD TAKEN TWO DIFFERENT ISSUES FOR ADJUDICATION WHI CH THE HON'BLE TRIBUNAL HAS NOT ADJUDICATED AND THEREFORE, THERE HAS CREPT A MISTAKE APPARENT FROM RECORD. LEARNED A. R. IN THIS RESPECT INVITED OUR ATTENTION TO GROUND NO. 5 & 6 IN THE APPEALS. 4. LEARNED D. R. FAIRLY AGREED THAT THESE GROUNDS H AVE NOT BEEN SPECIFICALLY ADJUCICATED. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE ASSESSEE IN IT S APPEAL HAS SPECIFICALLY TAKEN GROUND NO. 5 & 6 WHICH READ AS UNDER: 5. THAT THE LEARNED CIT(A) HAS FURTHER ERRED IN LA W AS WELL AS ON FACTS IN ACCEPTING THE BASIS OF COMPUTATION O F INCOME/RECEIPT, AS DONE BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER, BY PICKING CERTAIN ITEMS OF INCOM E/RECEIPT WHICH WERE THE SOURCE OF INCURRING EXPENDITURE AS S HOWN IN THE INCOME AND EXPENDITURE ACCOUNT. 6. THAT THE LEARNED CIT(A) HAS FURTHER ERRED IN LAW AS WELL AS ON FACTS IN NOT APPRECIATING THAT AFTER ALLOWING DEDUCTION U/S 24(1) AND U/S 80P(2)(D) OF THE ACT THE INCOME O F THE SOCIETY WOULD BE NIL AND THUS NO INCOME WOULD BE TA XABLE. M.A. NO.15,16 & 17/LKW/2017 ASSESSMENT YEAR:03-04, 04-05 & 05-06 3 6. WE FIND THAT HON'BLE TRIBUNAL IN ITS ORDER DATED 07/11/2016 HAS NOT ADJUDICATED ON THESE GROUNDS THEREFORE, WE RECALL T HE ORDER FOR THE LIMITED PURPOSE OF ADJUDICATING GROUND NO. 5 & 6 IN THE APP EALS. IN VIEW OF THE ABOVE THE MISC. APPLICATIONS OF THE ASSESSEE ARE AL LOWED. 7. IN THE RESULT, ALL THE MISC. APPLICATIONS OF THE ASSESSEE ARE ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 03/08/2018) SD/. SD/. (PARTHA SARATHI CHAUDHURY) ( T. S. KAPOOR ) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED:03/07/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T.,