JASLOK HOSPITAL AND RESEARCH CENTRE, V. DDIT (E) II (I),

MA 381/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2699 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2005-2006
• Appeal Filed On: 19-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M PADMANABAN
• Assessee Lawyers: INDIRA ANGEL ANAND
• Keywords: Business income
• Section: 11

Judgement Text

INCOME TAX APPELLATE TRIBUNAL ,MUMBAI - J BENCH , , BEFORE S/SH. VIJAY PAL RAO, JUDICIAL MEMBER & SHRI RAJENDRA,ACCOUNTANT MEMBER MA NO.381/MUM/2014 (ARISING OUT OF ITA NO.6944/ MUM/2008)-ASSESSMENT YEAR 2005-06 JASLOK HOSPITAL AND RESEARCH CENTRE, 15, DR. G. DESHMUKH MARG, SIR V.T.MARG, MUMBAI-400026 PAN:AAMPS4024Q VS. DDIT (E)-II(1), PIRAMAL CHAMBERS, MUMBAI. ( / APPELLANT) ( / RESPONDENT) APPELLANT BY : SHRI NITESH JOSHI & INDIRA ANGEL ANAND RESPONDENT BY : SHRI M. PADMANABAN ! / DATE OF HEARING : 12-12-2014 '#$% ! / DATE OF PRONOUNCEMENT : 16-01-2015 &' / O R D E R PER RAJENDRA, A.M. : VIDE ITS APPLICATION,DATED 19.02.2014,THE ASSESSEE HAS FILED A MISCELLANEOUS APPLICATION STATING THAT THERE WERE MISTAKES APPARENT FROM THE RECORD I N THE ORDER OF THE TRIBUNAL DATED 20.03.2013, THAT SAME HAD TO BE RECTIFIED AS PER THE PROVISIONS OF SECTION 254(2) OF THE ACT. IN ITS APPLICATION THE ASSESSEE HAS STATED THAT INC OME OF RESEARCH ASSOCIATION,APPROVED FOR THE TIME BEING FOR THE PURPOSE OF SECTION 35(1)(II) OF THE ACT,WAS EXEMPT UNDER SECTION 10(21) OF THE ACT,THAT RESEARCH WING OF THE ASSESSEE HAD THE APPR OVAL AS REQUIRED U/S 35(2)(II) UPTO 31.03.2002, THAT AT THE TIME OF PASSING THE ASSESSMENT ORDER AP PLICATION FILED BY IT FOR NOTIFICATION U/S 35(1)(II ) OF THE ACT WAS PENDING BEFORE THE CBDT,THAT A NOTE WAS PLACED IN THE RETURN OF INCOME FILED BY THE ASSESSEE IN THIS REGARD,THAT CONSIDERING THE PE NDENCY OF APPLICATION MADE BY THE ASSESSEE THE ASSESSING OFFICER (AO)DENIED EXEMPTION CLAIMED U/S. 10(21)OF THE ACT,THAT THE AO ALSO DENIED THE ASSESSEE'S ALTERNATIVE CLAIM FOR GRANT OF EXEMP TION U/S 11 AND ASSESSED INCOME OF THE ASSESSEE AS BUSINESS INCOME,THAT DURING THE PENDENCY OF THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA) THE ASSESSEE WAS NOTIFIED AS THE APPROVED INS TITUTION FOR THE PURPOSE OF SECTION 35(1)(II) OF THE ACT W.E.F. 01.04.2002,THAT THE FAA ALLOWED THE CLAIM MADE BY THE ASSESSEE U/S.10(21) OF THE ACT,THAT WITH RESPECT TO INCOME OF THE HOSPITAL THE FAA CAME TO THE CONCLUSION THAT ASSESSEE WOULD BE ENTITLED TO EXEMPTION U/S 11 OF THE ACT,TH AT THE TRIBUNAL UPHELD THE ASSESSEE'S CLAIM FOR EXEMPTION U/S.11 OF THE ACT.IT WAS FURTHER MENTIONE D THAT WHILE PASSING THE ORDER ON 20.03.2013, THE TRIBUNAL HAD HELD AS UNDER: 'LEARNED CIT(A) WHILE ALLOWING THE APPEAL OF THE AS SESSEE HAS ALSO HELD THAT EXEMPTION U/S 10(21) /10(23C) ALONG WITH THE EXEMPTION U/S 11 OF THE ACT IS ALLOWED,WHEREAS NO ISSUE WAS BEFORE THE LD. CIT(A) IN RESPECT OF EXEMPTION U/S 10(21) AND 1 )(23C) BECAUSE THE AO DISALLOWED THE CLAIM OF EXEMPTION U/S 11 OF THE ACT.' 2. DURING THE COURSE OF HEARING BEFORE US. AUTHORISED REPRESENTATIVE OF THE ASSESSEE CONTENDED THAT THE ASSESSEE HAD FILED RETURN OF INCOME CLAIMI NG EXEMPTION U/S 10(21) OF THE ACT, THAT IN THE RETURN OF INCOME THE EXEMPTION WAS CLAIMED BY WAY O F A NOTE, THAT BY WAY OF GROUND 3.1 IT HAS RAISED THE ISSUE WITH RESPECT TO GRANT OF EXEMPTION U/S 10(21) OF THE ACT BEFORE THE FAA, THAT THE FAA BY HIS ORDER DATED 30.09.2008 HAD RECORDED THE FACT THAT SUBSEQUENTLY CBDT HAD GRANTED APPROVAL TO THE ASSESSEE IN ACCORDANCE WITH THE SEC TION 35(1)(II) OF THE ACT, THAT INCOME EARNED BY THE RESEARCH WING OF THE ASSESSEE WAS ENTITLED TO E XEMPTION U/S 10(21) OF THE ACT, THAT THE TRIBUNAL HAD INCORRECTLY ASSUMED THAT CLAIM WAS NOT MADE BY THE ASSESSEE U/S 10(21) OF THE ACT BEFORE THE FAA,THAT ON 12.12.2014 ON A QUERY RAISED BY THE BENCH IT HAD FILED A COPY OF NOTIFICATION DATED 27TH JUNE 2008 ISSUED BY THE CEN TRAL GOVERNMENT GRANTING THE ASSESSEE 2 M.A.NO.381/MUM/2014 JASLOK HOSPITAL AND RESEARCH CE NTRE APPROVAL U/S 35(1)(II) OF THE ACT W.E.F. 01.04.2002 , THAT THE NOTIFICATION SHOWED THAT IT WAS EFFECTIVE FROM 01.04.2002, THAT NO TERMINAL PERIOD WAS MENTIONED IN THE APPROVAL LETTER, THAT THE APPROVAL GRANTED W.E.F. 01.04.2002 WOULD CONTINUE T ILL IT WAS WITHDRAWN AS PER THE CIRCULAR NO. 1/2007 DATED 27.04.2007.DEPARTMENTAL REPRESENTATIVE (DR) LEFT THE ISSUE TO THE DISCRETION OF THE BENCH. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE ASSESSEE HAD RAISED THE ISSUE BEFORE THE FAA WITH R EGARD TO EXEMPTION U/S 10(21) OF THE ACT. IN THESE CIRCUMSTANCES,WE ARE OF THE OPINION THAT THER E IS A MISTAKE APPARENT ON RECORD IN THE ORDER PASSED BY THE TRIBUNAL ON 20.03.2013.THEREFORE,REGI STRY IS DIRECTED TO FIX THE CASE FOR HEARING ON 23.02.2015 BEFORE THE REGULAR BENCH TO PASS APPROPR IATE ORDER WITH REGARD TO CLAIM MADE BY THE ASSESSEE U/S.10(21) OF THE ACT.WE ARE CLARIFYING TH AT WE ARE RECALLING OUR ORDER FOR THE LIMITED PURPOSE ONLY I.E.TO DECIDE THE ISSUE OF ENTITLEMENT OF EXEMPTION U/S 10(21) OF THE ACT. AS A RESULT,MISCELLANEOUS APPLICA TION FILED BY THE ASSESSEE STANDS ALLOWED. ( %) * ( %) * ( %) * ( %) * +( +( +( +( , , , , - - - - . . . . / / / / + + + + & & & & 0 00 0 1 1 1 1 . . . . 23 2323 23 . ORDER PRONOUNCED IN THE OPEN COURT ON 16TH, JANUARY,2015. &' '#$% )4 . 16 TUOJH TUOJH TUOJH TUOJH 201 5 # / 5 SD/- SD/- ( / VIJAY PAL RAO) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER )6 / MUMBAI, . /DATE: 16.01.2015 SK &' &' &' &' 7$ 7$ 7$ 7$ / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ 68 & &9 , 4. THE CONCERNED CIT / 68 & &9 5. DR J BENCH, ITAT, MUMBAI / :/ + TS TSTS TS ;< , & . . . )6 6. GUARD FILE/ /; = //TRUE COPY// &' / BY ORDER, > / 2 DY./ASST. REGISTRAR & + % , )6 /ITAT, MUMBAI