DAWAT -E-HADIYAH, V. ITO (E) RG 1(1),

MA 237/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0034 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2001-2002
• Appeal Filed On: 13-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K KARDA M
• Assessee Lawyers: F B ANDHYARUJINA
• Keywords: Charitable institution

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH, G MUMBAI BEFORE SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER MA NO: 237/MUM/2012 ARISING OUT OF : 4309/MUM/2005 ASSESSMENT YEAR : 2001-02 DAWAT INSTITUTE OF DAWOODI BOHRA COMMUNITY THROUGH HIS HOLINESS DR. SYEDNA MOHAMMED BURHANUDDSIN SAHEB (NOW KNOWN AS DAWAT-E- HAYIYAH) BADRI MAHAL, DR. D.N. ROAD FORT MUMBAI-400 001. PAN: AAATD 1489 N JT. COMMISSIONER OF INCOME TAX SPECIAL RANGE-40 MUMBAI. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI F.B. ANDHYARUJINA RESPONDENT BY : SHRI A.K. KARDAM DATE OF HEARING : 01.03.2013 DATE OF PRONOUNCEMENT : 08.03.2013 ORDER PER RAJENDRA SINGH (AM). THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE REQUESTING FOR RECALL OF THE ORDER DATED 17.4.2008 OF THE TRIBUNAL IN ITA NO.4309/MUM/2005 FOR ASSESSMENT YEAR 2001-02. THE A SSESSEE HAS REQUESTED TO RECALL THE ORDER FOR FRESH ADJUDICATIO N ON THE GROUND OF SOME APPARENT MISTAKES. 2. THE FACTS IN BRIEF ARE THAT, AGAINST THE TOTAL I NCOME OF RS. 35,60,82,101/- FOR ASSESSMENT YEAR 2001-02, THE ASS ESSEE HAD INCURRED MA NO.237/M/12 ARISING OU T OF ITA NO.4309/M/05 A.Y: 01-02 2 EXPENDITURE OF RS58,09,87,048/- FOR CHARITABLE PURPOSES WHICH WAS MORE THAN THE INCOME. THE ASSESSEE HAD ACCUMULATED 25% O F GROSS INCOME UNDER THE PROVISIONS OF SECTION 11(1) AND AFTER SETTING O FF THE BALANCE INCOME AGAINST EXPENDITURE INCURRED, THE EXCESS EXPENDITUR E WAS CARRIED FORWARD TO SUBSEQUENT YEARS. THE CLAIM OF THE ASSESSEE WAS NOT ALLOWED BY THE AO WHO HELD THAT ONCE THE ASSESSEE HAD INCURRED EXCESS EXP ENDITURE IT WAS NOT ENTITLED FOR ACCUMULATION OF 25% GROSS INCOME AND T HE ENTIRE EXCESS EXPENDITURE HAD TO BE CARRIED FORWARD. CIT(A) CONFI RMED THE ORDER OF AO. IN APPEAL BEFORE THE TRIBUNAL, THE ASSESSEE ARGUED THA T IN VIEW OF THE JUDGMENT OF HON'BLE SUPREME COURT IN CASE OF CIT VS. PROGRAMME FOR COMMUNITY ORGANISATION (248 ITR 1), THE ASSESSEE WAS ENTITLED TO CARRY FORWARD 25% OF GROSS INCOME BEFORE SET OFF OF EXPENSES. THE ASSESS EE ALSO REFERRED TO SEVERAL OTHER JUDGMENTS IN THIS REGARD INCLUDING TH E DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2005-06. T HE TRIBUNAL HOWEVER DISTINGUISHED THE VARIOUS JUDGMENTS AND HELD THAT T HE ASSESSEE WAS NOT ENTITLED FOR ACCUMULATION @ 25% OF GROSS INCOME AND WAS ENTITLED TO CARRY FORWARD EXCESS EXPENDITURE OVER GROSS INCOME. THE T RIBUNAL HOWEVER, IT APPEARS, HAD NOT CONSIDERED ITS DECISION IN ASSESSE ES OWN CASE IN ASSESSMENT YEAR 1995-96-06 IN ITA NO.1588/M/2000 IN WHICH SIMILAR CLAIM HAD BEEN ALLOWED TO THE ASSESSEE BY THE TRIBUNAL. A GGRIEVED BY THE DECISION OF THE, THE ASSESSEE HAS FILED THE MISCELLANEOUS AP PLICATION. 3. BEFORE US, THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE CLAIM OF THE ASSESSEE WAS ALLOWABLE IN VIEW OF THE JUDGMENT OF H ON'BLE SUPREME COURT IN THE CASE OF CIT VS. PROGRAMME FOR COMMUNITY ORGANISATION (SUPRA ) , WHICH MA NO.237/M/12 ARISING OU T OF ITA NO.4309/M/05 A.Y: 01-02 3 HAD BEEN FOLLOWED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN THE EARLIER YEARS. IT WAS POINTED OUT THAT THOUGH THE TRIBUNAL HAD CON SIDERED THE SUPREME COURT JUDGMENT AS WELL AS JUDGMENTS OF HIGH COURTS CITED BY THE ASSESSEE AT THE TIME OF HEARING OF THE APPEAL, THE TRIBUNAL HAD OMITTED TO CONSIDER ITS DECISION IN ASSESSEES OWN CASE IN 1995-96 (SUPRA) WHICH HAD ALSO BEEN REFERRED. IT WAS FURTHER SUBMITTED THAT NON-CONSIDE RATION OF DECISION OF CO- ORDINATE BENCH OF THE TRIBUNAL CONSTITUTES A MISTAK E APPARENT FROM RECORD. IT WAS POINTED OUT THAT THE DECISION OF THE TRIBUNAL I N ASSESSMENT YEAR 1995-96 (SUPRA) HAD BEEN FOLLOWED BY THE TRIBUNAL IN ASSESS EES OWN CASE IN SUBSEQUENT YEARS, DETAILS OF WHICH WERE PLACED ON R ECORD. IT WAS ACCORDINGLY URGED THAT THE ORDER MAY BE RECALLED FOR FRESH ADJU DICATION AFTER CONSIDERING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE . THE LD. DR ON THE OTHER HAND PLACED RELIANCE ON THE ORDER OF THE TRIBUNAL. 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE M ATTER CAREFULLY. THE DISPUTE RAISED IN THE APPEAL WAS REGARDING ACCUMULA TION OF INCOME @ 25% BEFORE SET OFF OF EXPENSES WHEN THE EXPENDITURE ITS ELF HAD EXCEEDED THE GROSS INCOME. THE CLAIM OF THE ASSESSEE HAD NOT BEE N ALLOWED BY THE AO AND CIT(A) AGAINST WHICH THE ASSESSEE HAD FILED APPEAL BEFORE THE TRIBUNAL. ASSESSEE HAD PLACED RELIANCE ON THE JUDGMENT OF HON 'BLE SUPREME COURT IN THE CASE OF CIT VS. PROGRAMME FOR COMMUNITY ORGANISATION (SUPRA ), AND SEVERAL OTHER JUDGMENTS OF HIGH COURTS. THE TRIBUNA L DISTINGUISHED THESE JUDGMENTS AND CONFIRMED THE ORDERS OF AUTHORITIES B ELOW DISALLOWING THE CLAIM OF THE ASSESSEE. THE LD. AR HAS POINTED OUT T HAT THE TRIBUNAL HAD NOT CONSIDERED THE DECISION OF THE TRIBUNAL IN ASSESSEE S OWN CASE IN ASSESSMENT MA NO.237/M/12 ARISING OU T OF ITA NO.4309/M/05 A.Y: 01-02 4 YEAR 2005-06 WHICH HAD BEEN DULY QUOTED BY THE ASSE SSEE BEFORE THE TRIBUNAL. ON PERUSAL OF RECORD, WE FIND THAT THE CL AIM OF THE ASSESSEE IS CORRECT AS THE DECISION OF THE TRIBUNAL FOR ASSESSM ENT YEAR 2005-06 IS STILL LYING IN THE FILE. IN THAT YEAR ALSO THE EXPENSES I NCURRED HAD EXCEEDED THE INCOME AND THE ASSESSEE HAD CLAIMED ACCUMULATION OF 25% BEFORE SET OFF OF EXPENSES WHICH HAD BEEN ALLOWED BY CIT(A) AND ORDER OF CIT(A) HAD BEEN CONFIRMED BY THE TRIBUNAL. THE SAID DECISION IN ASS ESSMENT YEAR 2005-06 WAS FOLLOWED BY THE TRIBUNAL IN ASSESSMENT YEARS 1997-9 8 AND 1998-99 IN ITA NOS.345 & 346/MUM/2011. NON-CONSIDERATION OF DECISI ON OF COORDINATE BENCH DOES CONSTITUTE A MISTAKE APPARENT FROM RECO RD. WE THEREFORE RECALL THE ORDER DATED 17.4.2008 OF THE TRIBUNAL FOR FRESH ADJUDICATION AFTER CONSIDERING THE DECISION OF THE TRIBUNAL IN ASSESSE ES OWN CASE (SUPRA). 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8.3.2013. SD/- SD/- ( AMIT SHUKLA) ( RAJENDRA SINGH ) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI, DATED: 8.3.2013. JV. COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.