Joharimal High School, Cuttack V. ITO Exemption, Cuttack

MA 4/CTK/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3173 (ITAT-CUTTACK)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-08-2022
• Assessment Year: 2018-2019
• Appeal Filed On: 22-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

आयकर अपीऱीय अधिकरण, कटक न्यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI GEORGE MATHAN, JM & SHRI ARUN KHODPIA, AM Miscellaneous Application No.04/CTK/2022 (Arising out of IT A No.135/CT K/2021) (नििाारण वषा / AYs. : 2018-2019) Joharimal High School, Ganesh Ghat, PO: Chandini Chowk, Dist: Cuttack Vs ITO (Exemptions), Cuttack PAN No. : AAATJ 3292 R (अऩीलाथी /Appellant) .. (प्रत्यथी / Respondent) ननधाारिती की ओर से /Assessee by : Shri P.K.Mishra, Advocate िाजस्व की ओर से /Revenue by : Shri S.C.Mohanty, Sr. DR स ु नवाई की तािीख / Date of Hearing : 19/08/2022 घोषणा की तािीख/Date of Pronouncement : 19/08/2022 आदेश / O R D E R Per George Mathan, JM: This miscellaneous application is filed by the assessee against the order of the Tribunal passed in ITA No.135/CTK/2021, dated 09.03.2022. 2. It was submitted by the ld. AR that the return filed by the assessee came to be processed u/s.143(1) of the Act wherein the Assessing Officer determined total income of the assesee at Rs.91,23,206/- being the gross receipts and denied the assessee the benefit of exemption u/s.10(23C)(iiiad) of the Act. It was the submission that the assessee had claimed the deduction u/s.10(23C) of the Act in its return. It was the submission that the Tribunal had deleted the disallowance in respect of the expenditure. The Tribunal had, however, held that the amount of Rs.24,30,289/- is liable to be treated as surplus for the purpose of taxation MA No.04/CTK/2022 2 in the hands of the assessee. The Tribunal had not adjudicated nor given any categorical finding in regard to the exemption u/s.10(23C)(iiiad) of the Act. It was the submission that consequently the AO has proceeded to assess the amount of Rs.24,30,289/- as income over expenditure. The AO has refused to grant the assessee the benefit of exemption u/s.10(23C(iiiad) of the Act. It was the submission that this is an issue that has come up under intimation u/s.143(1) of the Act and the assessee has claimed the exemption u/s.10(23C)(iiiad) of the Act, the same cannot be denied in an intimation u/s.143(1) of the Act. If at all the AO wanted to deny the exemption u/s.10(23C(iiiad) of the Act, the option was to a complete regular assessment to point out the defect and disallow the exemption. This has not done by the AO. It was the submission that the order of the Tribunal requires clarification insofar as the AO has refused to grant the benefit u/s.10(23C)(iiiad) of the Act as there is no specific finding of the Tribunal on the issue. It was the submission that this issue was part of the ground No.3 of the asessee’s grounds of appeal. 3. In reply, ld.Sr. DR submitted that no mistake apparent from the record has been pointed out by the ld. AR of the assessee. It was the submission that if the assessee is aggrieved with the order of the AO he should have appealed against that order. It was the submission that the order of the Tribunal should not be modified. 4. We have considered rival submissions. As the assessee has made a prayer that the AO was not allowing the assessee’s claim of exemption u/s.10(23C)(iiiad) of the Act, the ld. DR was requested to get a report from MA No.04/CTK/2022 3 the AO as to what is his stand. In this regard, the AO has given his report as follows :- MA No.04/CTK/2022 4 5. Now, the exemption u/s.10(23C)(iiiad) of the Act has been denied because as per the AO in para 4 of his order the trust deed of the assessee is not available in his office and there was no scope to verify the genuineness and motive/purpose that the assessee institution was constituted for running solely for educational purposes and not for the purposes of profit during the year under consideration. This clearly shows that the AO is under impression that the assessee’s case was under scrutiny assessment. In fact, the assessment is an intimation u/s.143(1) of the Act issued on the return filed by the assessee wherein he has claimed the exemption u/s.10(23C)(iiiad) of the Act. When a claim u/s.10(23C)(iiiad) of the Act has been made in the return, in the intimation u/s.143(1) of the Act adjustment to this claim cannot be made. If at all the AO suspects the claim of exemption u/s.10(23C)(iiiad) of the Act, then it was open to the AO to proceed for scrutiny assessment and make disallowance. This has not been done. The disallowance of the claim of MA No.04/CTK/2022 5 exemption u/s.10(23C)(iiiad) of the Act cannot be made in the hands of the assessee in an intimation u/s.143(1) of the Act. In view of the above, the miscellaneous application filed by the assessee is allowed. 6. In the result, miscellaneous application filed by the assessee is allowed. Order pronounced and dictated in the open court on 19/08/2022. Sd/- (ARUN KHODPIA) Sd/- (GEORGE MATHAN) ऱेखा सदस्य / ACCOUNTANT MEMBER न्यानयक सदस्य / JUDICIAL MEMBER कटक Cuttack; ददनाांक Dated 19/08/2022 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : आदेशाि ु सार/ BY ORDER, (Assistant Registrar) आयकर अपीऱीय अधिकरण, कटक/ITAT, Cuttack 1. अऩीलाथी / The Appellant- Joharimal High School, Ganesh Ghat, PO: Chandini Chowk, Dist: Cuttack 2. प्रत्यथी / The Respondent- ITO (Exemptions), Cuttack 3. आयकि आय ु क्त(अऩील) / The CIT(A), 4. आयकि आय ु क्त / CIT 5. ववभागीय प्रनतननधध, आयकि अऩीलीय अधधकिण, कटक / DR, ITAT, Cuttack 6. गार्ा पाईल / Guard file. सत्यावऩत प्रनत //True Copy//