M/s. Rashtrotthana Sahitya and Mudrana Trust (previously Rashtrotthana Mudranalaya Trust), Bengaluru V. The Assistant Commissioner Of Income Tax (Exemptions), Circle-17(2), Bengaluru

MA 52/BANG/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0023 (ITAT-BANGALORE)
• Duration Of Justice: 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 30-06-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYADARSHI MISHRA BANGALORE
• Keywords: Capital asset

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI , JUDICIAL MEMBER MP NO.52/BANG/2021 [IN IT A NO. 2858 /BANG/2017] ASSESSMENT YEAR : 2008 - 09 M/S. RASHTROTTHANA SAHITYA AND MUDRANA TRUST (PREVIOUSLY RASHTROTTHANA MUDRANALAYA), KESHAVA SHILPA, KEMPEGOWDA NAGAR, BANGALORE 560 019. PAN: AAATR 1734Q VS. THE ASSISTANT COMMISSIONER OF INCOME TAX (EXEMPTIONS) CIRCLE 17(2), BANGALORE. APPELLANT RESPONDENT APPEL LANT BY : SMT. SHEETAL BORKAR, ADVOCATE RESPONDENT BY : SHRI PRIYADARSHI MISHRA, DR(ITAT), BANGALORE. DATE OF HEARING : 23 . 07 .202 1 DATE OF PRONOUNCEMENT : 23 .07 .202 1 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER BY THIS MISCELLANEOUS PETITION, THE ASSESSEE SEEK S TO RECTIFY THE ORDER OF THE TRIBUNAL DATED 04.02.2021. 2. THE LD. AR SUBMITTED THAT THOUGH THE TRIBUNAL H AS ALLOWED THE APPEAL OF ASSESSEE FOR STATISTICAL PURPOSES, HOWEVE R, A SPECIFIC DIRECTION SETTING ASIDE THE APPEAL TO ASSESSING OFFICER OR TH E CIT(APPEALS) IS NOT GIVEN IN THE ORDER OF TRIBUNAL. SHE SOUGHT A SPECI FIC DIRECTION IN THIS REGARD MP NO.52/BANG/2021 PAGE 2 OF 3 FOR RESTORATION OF APPEAL AND TO PURSUE THE MATTER FURTHER. THE LD. DR HAD NO SERIOUS OBJECTION TO THE ARGUMENT OF THE LD. AR. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. WHILE DISPOSING OF THE APPEAL, THE TRIBUNAL VIDE OR DER DATED 4.2.2021 HELD IN PARA 5 AS FOLLOWS:- 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED TH E MATERIAL ON RECORD. ADMITTEDLY, THE LEARNED CIT(APPEALS) CO MPUTED THE APPLICATION AMOUNT IN PARAS 5 & 6 WHEREIN HE HAS ME NTIONED THE VALUE OF THE ASSET PURCHASED AT RS.7,15,540. HOWEV ER HE HAS NOT MENTIONED HOW HE HAS ARRIVED THE FIGURE. FURTHER W E MAKE IT CLEAR THAT PURCHASE OF CAPITAL ASSET BY AVAILING LO AN CANNOT BE CONSTRUED AS APPLICATION OF INCOME. THERE IS A DIF FERENCE BETWEEN APPLICATION OF INCOME AND UTILIZATION OF LO AN AS A SOURCE FOR ACQUISITION OF CAPITAL ASSET. ONLY THE REPAYME NT OF LOAN OUT OF INCOME WILL BE CONSTRUED AS APPLICATION OF INCOME. 4. AS SEEN FROM THE ABOVE, THE TRIBUNAL OMITTED TO GIVE A DIRECTION TO WHOM THE APPEAL HAS BEEN RESTORED FOR RECONSIDERATI ON. IN OUR OPINION, THERE IS A MISTAKE APPARENT ON RECORD WHICH HAS TO BE RECTIFIED. ACCORDINGLY, A SENTENCE AT END OF PARA 5 IS ADDED A S FOLLOWS:- ACCORDINGLY, WE REMIT THE ISSUE TO THE FILE OF CIT (APPEALS) FOR FRESH CONSIDERATION. 5. THUS, PARA 5 OF THE AFORESAID ORDER OF TRIBUNAL IS MODIFIED TO READ AS FOLLOWS:- 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. ADMITTEDLY, THE LEARNED CIT(APPEALS) CO MPUTED THE APPLICATION AMOUNT IN PARAS 5 & 6 WHEREIN HE HAS ME NTIONED THE VALUE OF THE ASSET PURCHASED AT RS.7,15,540. HOWEV ER HE HAS NOT MENTIONED HOW HE HAS ARRIVED THE FIGURE. FURTHER W E MAKE IT CLEAR THAT PURCHASE OF CAPITAL ASSET BY AVAILING LO AN CANNOT BE CONSTRUED AS APPLICATION OF INCOME. THERE IS A DIF FERENCE BETWEEN APPLICATION OF INCOME AND UTILIZATION OF LO AN AS A SOURCE FOR ACQUISITION OF CAPITAL ASSET. ONLY THE REPAYME NT OF LOAN OUT OF MP NO.52/BANG/2021 PAGE 3 OF 3 INCOME WILL BE CONSTRUED AS APPLICATION OF INCOME. ACCORDINGLY, WE REMIT THE ISSUE TO THE FILE OF CIT(APPEALS) FOR FRESH CONSIDERATION. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF JULY, 2021. SD/- SD/- ( BEENA PILLAI ) ( CHANDRA POOJARI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 23 RD JULY, 2021. / DESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.