Ahmedabad Urban Development Authority, Ahmedabad V. Asstt. Commissioner of Income Tax (Exemption)., Ahmedabad

MA 48/AHD/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4389 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 02-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Assessee Lawyers: S N SOPARKAR
• Keywords: Depreciation; Charitable institution
• Section: 28; 154; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER MA NO.48/AHD/2016 IN ./ ITA.NO.647/AHD/2014 ASSTT.YEAR : 2010-11 AND MA NO.49/AHD/2016 IN ./ ITA.NO.2335/AHD/2015 ASSTT.YEAR : 2011-12 AHMEDABAD URBAN DEVELOPMENT AUTHORITY USMANPURA, ASHRAM ROAD AHMEDABAD. VS ACIT (EXEMPTION) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI S.N. SOPARKAR REVENUE BY : SHRI NARENDRA SINGH, SR.DR / DATE OF HEARING : 03/06/2016 / DATE OF PRONOUNCEMENT: 06/06/2016 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE PRESENT TWO MAS. ARE DIRECTED AT THE INSTANCE OF THE ASSESSEE POINTING OUT APPARENT ERROR IN THE ORDER OF THE TRI BUNAL DATED 19.4.2016. 2. IT IS PLEADED IN THE APPLICATIONS THAT THE ITAT HAS DECIDED FOUR APPEALS OF THE ASSESSEE FOR THE ASSTT.YEARS 2009-10 TO 2011 -12. IN THE ASSTT.YEAR MA NO.48 AND 49/AHD/2016 2 2009-10 THERE WERE TWO APPEALS. ONE WAS GENERATED FROM THE PROCEEDINGS UNDERTAKEN UNDER SECTION 154 OF THE INCOME TAX ACT BEFORE THE AO. ACCORDING TO THE ASSESSEE, THE TRIBUNAL HAS BASICAL LY CULLED OUT TWO FUNDAMENTAL ISSUES VIZ. (A) WHETHER THE ASSESSEE IS ENTITLED TO THE BENEFIT OF DEDUCTION UNDER SECTION 11 OF THE INCOME TAX ACT AS A CHARITABLE INSTITUTION, AND (B) IF NOT SO, WHETHER THE AO HAS CORRECTLY MAD E ASSESSMENT OF ITS INCOME. ACCORDING TO THE ASSESSEE, THE TRIBUNAL HA S HELD THAT THE ASSESSEE IS NOT A CHARITABLE INSTITUTION. ITS INCOME DESERVES TO BE ASSESSED UNDER THE NORMAL PROVISIONS OF INCOME TAX ACT I.E. SECTIONS 2 8 TO 44 OF THE INCOME TAX ACT. AFTER ADJUDICATING THE FIRST ISSUE, THE TRIB UNAL HAS TAKEN UP THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN SERIATIM IN THE ASSTT.YEAR 2009-10. THE TRIBUNAL HAS REMITTED THE ISSUES TO THE FILE OF THE AO FOR DETERMINATION OF THE TOTAL INCOME OF THE ASSESSEE BY TREATING IT AS A BU SINESS ENTITY. IT IS FURTHER PLEADED THAT THE TRIBUNAL FAILED TO TAKE COGNIZANCE OF GROUND NOS.5 TO 12 IN THE ASSTT.YEAR 2010-11 AND GROUND NOS.6 TO 16 IN TH E ASSTT.YEAR 2011-12. IN OTHER WORDS, THESE GROUNDS RELATE TO SECOND ISSUE F ORMED BY THE TRIBUNAL. THE LD.COUNSEL FOR THE ASSESSEE PLEADED THAT BY WAY OF INADVERTENT MISTAKE, THE TRIBUNAL OUGHT TO HAVE CONSIDERED THESE GROUNDS AND SET ASIDE THE ISSUES TO THE FILE OF THE AO FOR RE-ADJUDICATION. 3. ON THE OTHER HAND, THE LD.DR WAS UNABLE TO CONTR OVERT THE CONTENTIONS OF THE LD.COUNSEL FOR THE ASSESSEE. HE POINTED OUT THAT BASICALLY THE TRIBUNAL HAS CONSIDERED ALL THESE ASPECTS AND THE OUTCOME OF THE ASSTT.YEAR 2009-10 IS TO BE FOLLOWED BY THE AO IN THESE YEARS ALSO. 4. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. IN OUR OPINION, WE HAVE OBSERVED THAT F ACTS ON ALL VITAL POINTS ARE COMMON IN THESE ASSESSMENT YEARS. FOR THE FACILIT Y OF REFERENCE, WE HAVE TAKEN COGNIZANCE OF THE GROUNDS OF PLEADED IN THE A SSTT.YEAR 2009-10 I.E. IN MA NO.48 AND 49/AHD/2016 3 THE ITA NO.712/AHD/2013. HOWEVER, IN ORDER TO AVOI D ANY CONFUSION AND AMBIGUITY, WE WOULD LIKE TO OBSERVE THAT THE AO TO GIVE EFFECT TO THE TRIBUNAL ORDER IN THE ASSTT.YEAR 2010-11 AND 2011- 12 IN SAME MANNER AS MANDATED IN THE ASSTT.YEAR 2009-10. IN OTHER WORDS , THE GROUND NOS.5 TO 12 IN THE ASSTT.YEAR 2010-11 AND GROUND NOS.6 TO 12 IN THE ASSTT.YEAR 2011-12 ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. TH E LD.AO SHALL DETERMINE THE INCOME OF THE ASSESSEE IN THESE TWO ASSESSMENT YEAR S ALSO BY TREATING IT AS AN AOP. THE AO SHALL COMPUTE THE INCOME UNDER THE N ORMAL PROVISION OF THE INCOME TAX ACT, AS IF APPLIED ON A REGULAR BUSINESS ENTITY. HE WILL RE- COMPUTE ALL THE CLAIM OF THE ASSESSEE WITH REGARD T O THE DEPRECIATION ETC. AFTER PROVIDING AN OPPORTUNITY OF HEARING TO THE ASSESSEE IN THESE TWO YEARS ALSO. 5. WITH THE ABOVE REMARKS, THESE MISC. APPLICATIONS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 6 TH JUNE, 2016 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 06/06/2016