INSTITUTE OF CHEMICAL TECHNOLOGIES, MUMBAI V. ACIT (EXEMPTION) - 1(1), MUMBAI

MA 154/MUM/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5004 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 07-07-2016
• Court: TRIBUNAL
• Department Lawyers: VIVEK A PERAMPURNA
• Assessee Lawyers: M C NANIWADEKAR
• Keywords: Charitable institution

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI C.N. PRASAD (JM) M.A. NO. 154/MUM/2016 ARISING OUT OF I.T.A. NO. 3808 /MUM/ 20 1 2015 (ASSESSMENT YEAR 20 1 0 - 11 ) INSTITUTE OF CHEMICAL TECHNOLOGY UNIVERSITY OF MUM BAI N.M. PAREKH ROAD MATUNGA, MUMBAI - 400 019. VS. ACIT(EXEMPTION) - 1(1) ROOM NO. 506 5 TH FLOOR PIRAMAL CHAMBER LALBAUG, MUMBAI - 12. ( APPELLANT ) ( RESPONDENT ) PAN NO . AAATI4951J ASSESSEE BY SHRI M.C. NANIWADEKAR DEPARTMENT BY SHRI VIVEK A. PERAMPU RNA DATE OF HEARING 11.11 . 201 6 DATE OF PRONOUNCEMENT 11.11. 201 6 O R D E R PER B.R. BASKARAN (AM) : THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATION POINTING OUT THAT THE ORDER DATED 28.10.2015 PASSED BY THE TRIBUNAL SUFFERS FROM MISTAKE APPARENT FROM RECORD, WHICH REQUIRE RECTIFICATION/RECALL OF ORDER . 2. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. THE QUESTION THAT WAS ADJUDICATED BY THE TRIBUNAL WAS WHETHER CONSULTANCY INCOME SHOWN BY THE ASSESSEE WAS INCIDENTAL TO THE ACTIVITIE S CARRIED ON BY THE ASSESSEE AND IS ELIGIBLE FOR EXEMPTION U/S. 11 OF THE ACT . THE LEARNED CIT(A) HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND THE TRIBUNAL HAS SET AS ID E HIS ORDER AND RESTORED THE VIEW TAKEN BY THE ASSESSING OFFICER. 3. THOUGH THE PETITION FILED BY THE ASSESSEE RUNS INTO SEVERAL PAGES, LEARNED AR SUBMITTED THAT THE EFFECTIVE MISTAKE S RELATES TO FOLLOWING TWO PARAGRAPHS ONLY : - 2 VI) THIS HON'BLE TRIBUNAL OUGHT TO HAVE APPRECIATED THAT APART FROM RECEIVING THE MONEY AND GIVING THE PROF ESSORS SHARE TO HIM, THE APPLICANT HAS NO ROLE TO PLAY IN THE CONSULTANCY ASSIGNMENT, NOR ANY EXPENDITURE IS INCURRED, INVESTMENT IS MADE BY THE APPLICANT NOR ANY SYSTEMATIC ACTIVITY IS CARRIED ON BY THE APPLICANT. VII) THE HON'BLE TRIBUNAL OUGHT TO HAVE APPRECIATED THAT BEING ANCILLARY/INCIDENTAL OBJECT OF THE APPLICANT, THE CONSULTANCY FEES RECEIPT BY THE APPLICANT IS ENTITLED FOR EXEMPTION UNDER SECTION 11 OF THE ACT. 4. LEARNED AR SUBMITTED THAT THE ASSESSEE IS AN EDUCATION INSTITUTION. HE SUBMI TTED THAT THE PROVISO TO SECTION 2(15) OF THE ACT SHALL APPLY ONLY TO THE CHARITABLE TRUSTS/INSTITUTIONS HAVING OBJECTS FOR ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUBLIC UTILITY AND HENCE THE PROVISO SHALL NOT APPLY TO TRUSTS/INSTITUTIONS CARRYING ON E DUCATION AL ACTIVITIES . HE SUBMITTED THAT THE TRIBUNAL, IN PARA 5.4 OF THE ORDER, REFERRED TO PROVISO TO SEC. 2(15) OF THE ACT AND FURTHER APPLIED THE SAME IN PARA 5.8 AND 5.9 OF THE ORDER. SINCE THE PROVISO DOES NOT APPLY TO THE EDUCATION AL INSTITUTION , TH E TRIBUNAL HAS COMMITTED AN ERROR IN APPLYING THE PROVISO TO SECTION 2(15) OF THE ACT TO THE FACTS OF THE PRESENT CASE. ACCORDINGLY HE SUBMITTED THAT THE ORDER PASSED BY THE TRIBUNAL SUFFERS FROM MISTAKE APPARENT FROM RECORD AND HENCE IT REQUIRES RECALL. 5. ON THE CONTRARY, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE TRIBUNAL HAS CONSIDERED THE FACTS SURROUNDING THE ISSUE AND IT HAS TAKEN AN INDEPENDENT DECISION IN THE MATTER. HE SUBMITTED THAT PERUSAL OF THE PARA 5.8 & 5.9 WOULD SHOW THAT THE TRIBUNAL DID NOT APPLY THE PROVISO TO SECTION 2(15) OF THE ACT IN ORDER TO ARRIVE ITS DECISION . 6. HAVING HEARD THE RIVAL CONTENTIONS, WE FIND MERIT IN THE SUBMISSIONS MADE BY LEARNED DEPARTMENTAL REPRESENTATIVE. PERUSAL OF PARA 5.4 OF THE ORDER WOULD SH OW THAT THE TRIBUNAL HAS ONLY INTERPRETED THE PROVISIONS OF SECTION 2(15) AND SECTION 11(4A) OF THE ACT. FURTHER, PERUSAL OF PARA 5.8 & 5.9 WOULD SHOW THAT THE TRIBUNAL NOWHERE REFERRED TO THE PROVISO TO SECTION 2(15) OF THE ACT. UNDER THESE SET OF FACT, W E ARE OF THE VIEW THAT THE ASSESSEE IS INTERPRETING 3 ORDER PASSED BY THE TRIBUNAL. SUCH KIND OF INTERPRETATION CANNOT BE CONSIDERED TO BE A MISTAKE APPARENT FROM RECORD. IN ANY CASE, WE NOTICED THAT THE TRIBUNAL HAS TAKEN A VIEW ON THE ISSUE S CONTESTED BY T HE REVENUE AND THE SAME CANNOT BE CONSIDERED A S MISTAKE APPARENT FROM RECORD. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE PETITION FILED BY THE ASSESSEE. 7. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 11.11 .2016 SD/ - SD/ - (C.N. PRASAD ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED :11 / 10 / 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS