M/S. FREE TRADE UNION MULTIPURPOSE PROJECT TRUST, MUMBAI V. ACIT CENTRAL RANGE 43, MUMBAI

MA 21/MUM/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5645 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2014-2015
• Appeal Filed On: 11-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: TO; ITA NOS TO MUM DATED A Y TO
• Section: 11

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F , MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER M.A. NOS.14 TO 21/MUM/2019 ARISING OUT OF ITA NO. 3080 TO 3084/MUM/2016 AND ITA NO. 6952 TO 6954/MUM/2017 (A.Y. 2005-06 TO 2009-10 AND 2012-13 TO 2014-15) M/S FREE TRADE UNION MULTIPURPOSE PROJECT TRUST, KENNEDY HOUSE, 4TH FLOOR, GOREGAONKAR ROAD, NANA CHOWK, MUMBAI-400007. / VS. THE INCOME TAX OFFICER (EXEMPTIONS)-1(3), MUMBAI-400 012 ( /ASSESSEE) ( / REVENUE) P.A. NO. AAAFF0003F / DATE OF HEA RING : 03/05/2019 / DATE OF ORDER: 14/05/2019 / O R D E R PER G. MANJUNATHA (ACCOUNTANT MEMBER) THE ASSESSEE HAS FILED THESE MISCELLANEOUS APPLICAT IONS U/S 254(2) OF THE INCOME TAX ACT, 1961 AND REQUESTED TO RECALL ORDER PASSED BY THE ITAT, MUMBAI F BENCH IN ITA NOS. 3080 TO 3084/MUM/2016 AND ITA NOS. 6952 TO 6954/MUM /2017 DATED 04/07/2018 FOR A.Y. 2005-06 TO 2009-10 AND 20 12-13 TO 2014-15. / ASSESSEE BY SHRI N.R. AGRAWAL / REVENUE BY SHRI CHOUDHARY ARUN KUMAR SINGH -DR 2 MA NOS.14 TO 21/MUM/2019 2. THE ASSESSEE HAS NARRATED FACTS AND MISTAKES STA TED TO BE APPARENT FROM THE ORDER OF THE ITAT, MUMBAI, DATED 04/07/2018 FOR DIF FERENT ASSESSMENT YEARS A.Y. 2005-06 TO 2009-10 AND 2012-13 TO 2014-15. THE RELE VANT CONTENTS OF THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ARE IDENTICAL, THEREFORE, IT IS NECESSARY TO REPRODUCE THE CONTENTS OF MISCELLANEOUS APPLICAT ION NO.14/MUM/2019 FOR AY 2005- 06 AND MISCELLANEOUS APPLICATION NO19/MUM/2019 AS U NDER:- MA NO.14/MUM/2019 THE APPLICANT, BY THE PRESENT APPLICATION, PRAYS FO R THE RECTIFICATION OF CERTAIN APPARENT ERRORS IN THE ORDER DATED 4TH JU LY 2018 PASSED BY THE HON'BLE TRIBUNAL IN THE ABOVE APPEAL. 1) THE ORDER DATED 4TH JULY 2018, RECEIVED BY ASSE SSEE ON 7/08/2018. HENCE RECTIFICATION APPLICATION IS WITHIN TIME OF S IX MONTHS . 2). GROUND NO. 1: I). ON THE GROUND OF TAXATION OF CORPUS DONATION, H ON'BLE TRIBUNAL IN PARA NO. 14 ON PAGE NO. 14 OF THE ITAT ORDER HAS OBSERVE D AS UNDER. 'ONUS IS ON THE ASSESSEE TO PROVE THAT SUCH DONATIO NS ARE IN FACT CORPUS DONATIONS WHICH SHALL NOT FORM PART OF THE INCOME O F THE TRUST U/S 11 OF THE ACT. IN THIS CASE ON PERUSAL OF THE FACT, WE FIND T HAT AO AS WELL AS LD. CIT(A) GAVE CATEGORICAL FINDING THAT ASSESSEE FAILE D TO FILE ANY EVIDENCE TO PROVE THAT THESE DONATIONS ARE CORPUS DONATIONS * WE WISH TO HUMBLY SUBMIT THAT ASSESSEE DID FILE LIS T WITH LETTERS FOR CORPUS DONATIONS ON PAGE NO. 17 TO 42 OF THE PAPER BOOK. THE SAME EVIDENCE WAS ALSO FILED WITH LD CIT(A) WHI CH IS REPRODUCED BY HON'BLE ITAT ON PARA NO. 13, PAGE NO. 12 OF THE ORD ER AS UNDER. THE ID CIT(A) FURTHER OBSERVED THAT, ALTHOUGH ASSES SEE FURNISHED LETTERS INDICATING ORS INTENTIONS TO DONATE FOR CORPUS OF T HE TRUST, THESE LETTERS IDENTICALLY WORDED ANY FURTHER EVIDENCE' WE HUMBLY FEEL THAT THERE IS MISTAKE IN THE ORDER A S NECESSARY LETTERS HAS BEEN FILED IN ' PAPER BOOK ON PAGE NO. 17 TO 42 & WERE REFERRED BY AR DURING THE COURSE OF HEARING. II). HON'BLE TRIBUNAL HAS OBSERVED ON PAGE NO. 8 OF THE THIS ORDER, FINDING GIVEN BY HON'BLE ITAT IN AY 2003/04 WHICH IS REPROD UCED AS UNDER. 3 MA NOS.14 TO 21/MUM/2019 'PARA NO. 7 IN SO FAR AS TAXABILITY OF CORPUS FUND IS CONCERNED, WE DIRECT THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH AS PER THE PROVISIONS OF THE LAW' WE HUMBLY FEEL THAT THERE IS MISTAKE IN THE ORDER A S FINDING GIVEN IN EARLIER YEAR BY COORDINATE BENCH SHOULD HAVE BEEN APPLICABL E TO ALL THE FURTHER YEARS, PARTICULARLY MORE SO THE ORDER OF HO'BLE ITA T FOR AY 2003/04 HAS BEEN FOLLOWED FOR IN PARA NO. 12 FOR DECIDING THE I SSUE OF EXEMPTION U/S 11. IN VIEW OF THE ABOVE, THE APPLICANT HUMBLY PRAYS TH AT THE HON'BLE TRIBUNAL RECTIFIES ITS ABOVE ORDER. THE APPLICANT SAYS THAT THE HON'BLE TRIBUNAL IS SPECIFICALLY EMPOWERED TO DO SO UNDER SECTION 254 ( 2) OF THE ACT AND THAT IN ANY EVENT, THE TRIBUNAL HAS INHERENT POWER TO RECTI FY, IN THE INTEREST OF JUSTICE, ERRORS IN THE ORDER, WHICH CAME PREJUDICE TO ANY OF THE PARTIES BEFORE IT. MA NO.19/MUM/2019 THE APPLICANT, BY THE PRESENT APPLICATION, PRAYS FO R THE RECTIFICATION OF CERTAIN APPARENT ERRORS IN THE ORDER DATED 4NTH J ULY 2018 PASSED BY THE HON'BLE TRIBUNAL IN THE ABOVE APPEAL. 1) THE ORDER DATED 4TH JULY 2018, RECEIVED BY ASSE SSEE ON 7/08/2018. HENCE RECTIFICATION APPLICATION IS WITHIN TIME OF S IX MONTHS . 2). GROUND NO. 1 DENIAL OF EXEMPTION U/S 11 OF THE ACT. HON'BLE TRIBUNAL IN PARA NO. 12 ON PAGE NO. 12 OF T HE ITAT ORDER HAS OBSERVED AS UNDER. 'THE ID AR FOR THE ASSESSEE FAIR LY ACCEPTED THAT SUCH VIOLATION IS PERPETUATED IN SUBSEQUENT YEARS' WE HUMBLY SUBMIT THAT AR HAD POINTED OUT DURING HEA RING THAT NO LOANS HAD BEEN GIVEN DURING THE YEAR BUT BOTH THE UNIONS HAD PARTLY REPAID LOANS TO TRUST, & BALANCE REMAINING WITH BOTH THE UNIONS EMS & MMS IS OUT OF EARLIER LOANS GIVEN & NO FRESH LOANS HAS BEEN ADVAN CED DURING THIS YEAR, AS UNDER. MMS OPENING BALANCE RS.1,27,12,578/- REPAID RS. 3,0 0,0007- CLOSING RS. 1,24,12,578/- EMS OPENING BALANCE RS.1,09,31,71 8/- REPAID RS. 12,93,400A CLOSING RS.96,38,318/- COPIES OF ACCOUNTS WERE ATTACHED ON PAGE NO. 24 & 2 5 OF THE PAPER BOOK DETAILED CHART OF YEAR WISE LOANS ADVANCED WAS ALSO SUBMITTED DURING HEARING. (COPY ATTACHED AGAIN). WE HUMBLY FEEL THAT THERE IS MISTAKE IN THE ORDER A S NECESSARY LEDGERS HAS BEEN FILED IN PAPER BOOK ON PAGE NO. 24 TO 25 & WER E REFERRED BY AR DURING THE COURSE OF HEARING. IN VIEW OF THE ABOVE, THE APPLICANT HUMBLY PRAYS T HAT THE HON'BLE TRIBUNAL RECTIFIES ITS ABOVE ORDER. THE APPLICANT SAYS THAT THE HON'BLE TRIBUNAL IS SPECIFICALLY EMPOWERED TO DO SO UNDER SECTION 254 ( 2) OF THE ACT AND THAT IN 4 MA NOS.14 TO 21/MUM/2019 ANY EVENT, THE TRIBUNAL HAS INHERENT POWER TO RECTI FY, IN THE INTEREST OF JUSTICE, ERRORS IN THE ORDER, WHICH CAME PREJUDICE TO ANY OF THE PARTIES BEFORE IT 3. THE LD. AR FOR THE ASSESSEE, AT THE TIME OF HEAR ING, SUBMITTED THAT THERE ARE CERTAIN APPARENT ERRORS IN THE ORDER OF THE TRIBUNA L DATED 04/07/2018 IN AS MUCH AS THE GROUND NO.1 RELATING TO TAXABILITY OF CORPUS DO NATIONS WHICH HAS BEEN DECIDED BY THE TRIBUNAL AND SET-ASIDE THE ISSUE TO THE FILE OF THE LD. AO TO DECIDE THE ISSUE AFRESH AS PER PROVISIONS OF LAW. THE LD. AR FURTHER SUBMIT TED THAT THE TRIBUNAL IN PARA 14 OF THE ORDER OBSERVED THAT THE ASSESSEE HAS FAILED TO FILE ANY EVIDENCE TO PROVE THAT DONATIONS RECEIVED BY THE ASSESSEE ARE CORPUS DONAT ION WHICH SHALL NOT FORM PART OF THE INCOME OF THE TRUST U/S 11 OF THE ACT. THE TRIB UNAL FURTHER OBSERVED THAT ALTHOUGH THE ASSESSEE HAS FILED LIST OF DONORS ALONG WITH LE TTERS BUT SUCH LETTERS ARE IDENTICALLY WORDED WITHOUT ANY FURTHER EVIDENCE. THE SAID OBSER VATIONS OF THE TRIBUNAL IS FACTUALLY INCORRECT BECAUSE THE ASSESSEE HAS FILED COMPLETE D ETAILS OF DONORS ALONG WITH EVIDENCES, THEREFORE, THE ABOVE OBSERVATIONS OF THE TRIBUNAL CONSTITUTE A MISTAKES APPARENT FROM RECORD, WHICH REQUIRES RECTIFICATION U/S 254(2) OF THE ACT. 4. THE LD. AR FURTHER SUBMITTED THAT IN ITS ADDITIO NAL GROUND TAKEN FOR AY 2008-09 AND 2009-10, THE TRIBUNAL HAS SET-ASIDE THE ISSUE T O THE LD. AO TO ALLOW BENEFIT OF CARRY FORWARD OF LOSS U/S 72 OF THE ACT, HOWEVER, T HE ISSUE RAISED U/S 70 FOR ADJUSTMENT OF INCOME WITH REGARD TO CORPUS DONATIONS WAS NOT A DJUDICATED, THEREFORE, THE SAID MISTAKE IS MISTAKE APPARENT ON RECORD, WHICH REQUIR ES RECTIFICATION U/S 254(2) OF THE ACT. 5 MA NOS.14 TO 21/MUM/2019 5. THE LD. AR FURTHER REFERRING TO MISCELLANEOUS AP PLICATION FILED FOR AY 2012-13 TO 2014-15 SUBMITTED THAT THE TRIBUNAL HAS CONFIRME D THE ACTION OF THE AO FOR DENIAL OF EXEMPTION U/S 11 OF THE ACT, ON THE GROUND THAT THE LD. AR FOR THE ASSESSEE FAIRLY ACCEPTED THAT THE VIOLATION REFERRED TO IN SECTION 13(1)(C) OF THE ACT IS PERPETUATED IN SUBSEQUENT YEARS AND SUCH OBSERVATIONS OF THE TRIBU NAL IS NOT BASED ON ANY EVIDENCE BECAUSE THE ASSESSEE HAS NOT GIVEN ANY FRESH LOANS TO TWO TRADE UNIONS FOR THESE ASSESSMENT YEARS, THEREFORE, THE ACTION OF THE AO I N DENIAL OF EXEMPTION U/S 11 OF THE ACT IS INCORRECT. THE TRIBUNAL HAS RECORDED THE AB OVE FINDING REFERRING TO THE EVIDENCE FILED BY THE ASSESSEE DURING THE COURSE OF HEARING, THEREFORE, THE ABOVE OBSERVATIONS CONSTITUTES MISTAKES APPARENT FROM RECORD WHICH REQ UIRES RECTIFICATION U/S 254(2) OF THE ACT. THEREFORE, HE PRAYED FOR RECALLING THE ORDER OF THE TRIBUNAL DATED 04/07/2018 IN SO FAR AS THE ABOVE ISSUES ARE CONCERNED. 6. THE LD. DR, ON THE OTHER HAND, SUBMITTED THAT TH E LD. AR OF THE ASSESSEE FAILS TO MAKE OUT A PRIMA FACIE CASE OF MISTAKES APPARENT ON RECORD FROM THE ORDER OF THE TRIBUNAL DATED 04/07/2018, BUT THE LD. AR FOR THE A SSESSEE WANTS TO REVIEW THE DECISION RENDERED BY THE TRIBUNAL IN THE LIGHT OF T HE ARGUMENTS ADVANCED BY BOTH PARTIES, WHICH IS NOT PERMISSIBLE U/S 254(2) OF THE ACT, AND HENCE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE FOR ALL ASSESSME NT YEARS MAY BE DISMISSED. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ALONG WITH ORDER OF THE TRIBU NAL DATED 04/07/2018. WE FIND THAT THE TRIBUNAL HAS RECORDED ITS CATEGORICAL FINDING I N LIGHT OF FACTS BROUGHT OUT BY THE 6 MA NOS.14 TO 21/MUM/2019 LOWER AUTHORITIES AND ALSO EVIDENCES FILED BY THE A SSESSEE DURING THE COURSE OF HEARING TO COME TO THE CONCLUSION THAT THE ASSESSEE HAS FAILED TO FILE NECESSARY EVIDENCES TO PROVE THAT DONATIONS ARE IN FACT CORPU S DONATIONS WHICH SHALL NOT FORM THE INCOME OF THE TRUST U/S 11 OF THE ACT. WE FURTH ER NOTED THAT FOR THE EARLIER YEARS, THE TRIBUNAL HAS SET-ASIDE THE ISSUE TO THE FILE OF THE LD. AO TO ASCERTAIN CORRECT FACTS ON RESPECT OF DONATIONS RECEIVED BY THE ASSESSEE BUT F OR THE YEARS UNDER CONSIDERATION, THE LOWER AUTHORITIES HAVE GIVEN CATEGORICAL FACTS IN LIGHT OF LIST OF DONORS AND EVIDENCES FILED BY THE ASSESSEE TO PROVE CORPUS DON ATIONS AND HELD THAT THE ASSESSEE HAS NOT FILED ANY EVIDENCES TO PROVE THAT THOSE DON ATIONS ARE CORPUS DONATIONS. EVEN BEFORE US, NO FURTHER EVIDENCES HAVE BEEN FILED TO CONTROVERT THE FINDINGS OF FACT RECORDED BY THE LOWER AUTHORITIES. UNDER THOSE FACT S, THE TRIBUNAL HAS CONCURRED WITH THE FINDING OF THE LD. CIT(A) IN SO FAR AS THE ISSU E OF CORPUS DONATIONS ARE CONCERNED. THE FACTS INVOLVED IN THESE YEARS WHEN COMPARE TO P REVIOUS FINANCIAL YEAR ARE DIFFERENT, THEREFORE, THE TRIBUNAL HAS DECIDED NOT TO FOLLOW THE FINDINGS RECORDED BY THE TRIBUNAL WHILE SET-ASIDE THE ISSUE TO THE FILE OF T HE LD. AO. HENCE, WE ARE OF THE CONSIDERED VIEW THAT THE FACTS AND ERRORS BROUGHT B Y THE ASSESSEE IN ITS MISCELLANEOUS APPLICATION IN RESPECT OF CORPUS DONATIONS IS NOT A MISTAKE APPARENT ON RECORD, WHICH COULD BE RECTIFY U/S 254(2) OF THE ACT. 8. IN SO FAR AS, ADDITIONAL GROUND TAKEN BY THE ASS ESSEE FOR AY 2008-09 AND 2009-10 IN RESPECT OF CARRY FORWARD AND SET OFF OF LOSS U/S 72 OF THE ACT, WE FIND THAT THIS ISSUE HAS BEEN SET-ASIDE TO ASCERTAIN CORRECT FACTS IN LIGHT OF PROVISIONS OF SECTION 7 MA NOS.14 TO 21/MUM/2019 72 AND 70 OF THE ACT AND IF CONDITIONS PRESCRIBED U /S 72 AND 70, THEN THE AO IS DIRECTED TO ALLOW THE BENEFIT OF SET OFF OF LOSSES AS CLAIMED BY THE ASSESSEE. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO ERRO R IN THE ORDER OF THE TRIBUNAL AS POINTED OUT BY THE ASSESSEE WHICH COULD BE RECTIFIE D U/S 254(2) OF THE ACT, AND HENCE THE ARGUMENT ADVANCED BY THE LD. COUNSEL FOR THE AS SESSEE ARE REJECTED. ACCORDINGLY, MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE FO R AYS 2005-06 TO 2009-10 ARE DISMISSED. 9. IN SO FAR AS, MISCELLANEOUS APPLICATION FILED FO R AY 2012-13 TO 2014-15, THE ONLY ISSUE AGITATED BY THE ASSESSEE BY THESE MISCELLANEO US APPLICATIONS IS DENIAL OF EXEMPTION U/S 11 OF THE ACT. THE TRIBUNAL HAS RECOR DED ITS FINDINGS IN LIGHT OF FACTS BROUGHT OUT BY THE LOWER AUTHORITIES AND EVIDENCES FILED BY THE ASSESSEE AND DISCUSSED THE ISSUE IN PARA 9 TO 12 OF PAGES 10 TO 12 OF THE TRIBUNAL ORDER DATED 04/07/2018. WE FURTHER NOTED THAT IN PARA-12, THE T RIBUNAL HAS RECORDED CATEGORICAL FINDING THAT THE ASSESSEE COULD NOT FILE ANY EVIDEN CES TO CONTROVERT THE FINDINGS AND FACTS RECORDED BY THE LOWER AUTHORITIES AND THIS WA S CONFRONTED TO THE LD. AR FOR THE ASSESSEE AND THE LD. AR HAS FAIRLY ACCEPTED THAT TH E VIOLATION REFERRED TO IN SECTION 13(1)(C) WERE CONTINUED IN SUBSEQUENT YEARS. UNDER THOSE FACTS, THE TRIBUNAL CAME TO THE CONCLUSION THAT ASSESSEE IS NOT ENTITLED FOR EX EMPTION U/S 11 OF THE ACT. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO ERRO R IN THE FINDINGS OF THE TRIBUNAL IN SO FAR AS THE ISSUE OF DENIAL OF EXEMPTION U/S 11 OF T HE ACT. HENCE, WE ARE OF THE 8 MA NOS.14 TO 21/MUM/2019 CONSIDERED VIEW THAT THERE IS NO MERIT IN THE MISCE LLANEOUS APPLICATION FILED BY THE ASSESSEE FOR AYS 2012-13 TO 2014-15 AND HENCE, THE SAME ARE DISMISSED. 10. IN THE RESULT, MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE FOR ALL ASSESSMENT YEARS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14/05/2019. SD/- SD/- ( MAHAVIR SINGH ) (G. MANJUNATHA) ! ' /JUDICIAL MEMBER # ' / ACCOUNTANT MEMBER MUMBAI; DATED : 14/05/2019 F{X~{T? F{X~{T? F{X~{T? F{X~{T? P.S P.S P.S P.S / /. /./. /. !.. %!&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. !' / THE APPELLANT (RESPECTIVE ASSESSEE) 2. #$%!' / THE RESPONDENT. 3. &% &% ' ( ) / THE CIT, MUMBAI. 4. &% &% ' / CIT(A)- , MUMBAI, 5. )*+ %# , , &% %, . , / DR, ITAT, MUMBAI 6. +/ / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI