The Dy. Commissioner of Income-tax, Pathankot V. M/s. Gurdaspur Improvement Trust, Gurdaspur

MA 54/ASR/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1054 (ITAT-AMRITSAR)
• Duration Of Justice: 6 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-11-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-11-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 27-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SAMEER AGGARWAL
• Section: 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER M. A. NO. 54(ASR)/2013 (IN I.T.A. NO. 461(ASR)/2011) ASSESSMENT YEAR: 2006-07 PAN: AAALG0202A THE DY. COMMISSIONER OF VS. M/S GURDASPUR IM PROVEMENT INCOME TAX, CIRCLE-VI, TRUST, GURDASPUR. PATHANKOT (APPELLANT) (RESPONDENT) APPELLANT BY: SH. TARSEM LAL, DR. RESPONDENT BY: SH. SAMEER AGGARWAL, CA DATE OF HEARING: 22.11.2013 DATE OF PRONOUNCEMENT: 27.11.2013 ORDER PER BENCH 1. THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS A PPLICATION FOR RECALLING THE ORDER DATED 09.10.2012 PASSED BY THIS BENCH. THE CONTENTS OF THE APPLICATION ARE REPRODUCED AS UNDER : IT IS SUBMITTED THAT THE HON'BLE BENCH HAS PASSED ORDER IN THE AFOREMENTIONED CASE FOR THE ASSESSMENT YEAR 2006-07 ON 9 TH OCTOBER, 2012. IT IS FURTHER SUBMITTED THAT THE HON'BLE BENC H HAS BEEN CONSIDERED CERTAIN SUBMISSIONS MADE DURING THE COUR SE OF HEARING OF THE CASE. THE HON'BLE BENCH HAS REPRODUCED VERBATIM THE ORDER OF THE LEARNED CIT(A) AND NO WHERE DISCUSSED THE SUBMISSIO NS MADE BY THE DR. NON-CONSIDERATION OF THE SUBMISSIONS MADE BEFOR E THE HON'BLE BENCH DURING THE COURSE OF HEARING RENDERS THE ORDE R RECTIFIABLE 2 M. A. NO. 54(ASR)/2013 (IN I.T.A. NO. 461(ASR)/2011) UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961. I T MAY BE MENTIONED THAT THE DR HAS REPORTED THAT HE HAD MADE THE FOLLOWING SUBMISSIONS WHICH THE HON'BLE BENCH HAS NOT CONSIDE RED IN ITS IMPUGNED ORDER:- A. THAT THE ACTIVITIES OF THE ASSESSEE ARE NOT CHARITA BLE AND ARE AT PAR WITH CASE OF PUNJAB URBAN DEVELOPMENT AUTHORITY (PUDA) AND IN THIS REGARD DECISION OF THE HON'BLE I.T.A.T. , BENCH, CHANDIGARH REPORTED AT 103 TTJ 988 (CHANDIGARH) WAS RELIED UPON WHICH ORDER HAS NO WHERE BEEN DISCUSSED IN THE BODY OF ITS APPELLATE ORDER BY THE HON'BLE BENCH. B. IT IS SUBMITTED THAT THE ACTIVITIES DONE BY THE ASS ESSEE TRUST ARE SUCH AS DO NOT QUALIFY FOR EXEMPTION U/S 11 OF THE INCOME TAX ACT, 1961 BUT NO COGNIZANCE OF THIS SUBMISSION HAS BEEN TAKEN IN THE BODY OF THE TRIBUNALS ORDER. THESE FACTS HA VE BEEN HIGHLIGHTED BY THE A.O. WELL AT PARA 11 OF HIS ORDE R. C. WITHOUT PREJUDICE TO THE ABOVE SUBMISSIONS, THE TRI BUNAL HAS GIVEN NO FINDING ON THE SUBMISSIONS MADE BY THE DR THAT THE EXPENDITURE INCURRED WAS ONLY 57% AND THUS THE ASSE SSEE WAS NOT EVEN OTHERWISE ELIGIBLE FOR EXEMPTIONS AS PER T HE PROVISIONS OF SECTION 11(1)(B) OF THE INCOME TAX ACT, 1961. THUS, THE ORDER IS NON-SPEAKING ORDER AS IT HAS NOT AT ALL DEALT WITH THE GROUNDS OF APPEALS AND THE SUBMISSIONS MADE DUR ING THE COURSE OF HEARING AND HAS BEEN PASSED JUST AFTER RECORDING TH E FINDING OF THE LEARNED CIT(A). SUCH AN ORDER FALLS WITHIN THE AMBIT OF PROVISIONS OF SECTION 254(2) OF THE INCOME TAX ACT, 1961 AND IT IS PRAYED THAT T HE SAME MAY BE RECTIFIED. 2. LEARNED DR STATED AT BAR THAT HE RELIED UPON TH E DECISION OF I.T.A.T., CHANDIGARH BENCH IN THE CASE OF PUNJAB UR BAN DEVELOPMENT AUTHORITY (PUDA), REPORTED IN 103 TTJ 988 (CHANDIGA RH) BUT THE SAME 3 M. A. NO. 54(ASR)/2013 (IN I.T.A. NO. 461(ASR)/2011) HAS NOT BEEN CONSIDERED BY THIS BENCH IN THE ORDER DATED 09.10.2012, WHICH IS A MISTAKE APPARENT FROM RECORD. HE FURTHER STATED THAT THE ISSUE IN DISPUTE HAS ALREADY BEEN DECIDED IN FAVOUR OF TH E REVENUE BY THIS BENCH IN THE CASE OF AMRITSAR IMPROVEMENT TRUST, RE PORTED IN 85 DTR (ASR) 99, DATED 15.01.2013. AS SUCH, THERE IS MISTA KE IN THE ORDER DATED 09.10.2012 PASSED BY THIS BENCH. THEREFORE, HE REQU ESTED THAT THE SAME MAY BE RECALLED AND THE MAIN APPEAL MAY BE FIXED FO R HEARING. 3. ON THE CONTRARY, LEARNED COUNSEL FOR THE ASSESSE E STATED THAT THIS BENCH HAS DECIDED THE ISSUE IN DISPUTE ON THE BASIS OF VARIOUS DECISIONS, WHICH THIS BENCH HAS REPRODUCED IN PARA NO. 4 (PAGE S NO. 2 TO 5) IN THE ORDER DATED 09.10.2012. THEREFORE, THERE IS NO MIST AKE IN THE ORDER AS SUCH; THE PRESENT MISCELLANEOUS APPLICATION FILED B Y THE REVENUE MAY BE DISMISSED. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT MATERIALS AVAILABLE WITH US AND KEEPING IN VIEW THE JUDGMENTS OF HON'BLE SUPREME COURT OF INDIA IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME TAX VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD, REPORTED IN [2008] 305 ITR 227 (SC) AND IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. VS. COMMISSIONER OF INCOME-TAX, REPORTED IN [2007] 295 ITR 466 (SC) , WE ARE OF THE CONSIDERED VIEW THAT THERE IS A MIS TAKE IN THE ORDER 4 M. A. NO. 54(ASR)/2013 (IN I.T.A. NO. 461(ASR)/2011) DATED 9 TH OCTOBER, 2012, APPARENT FROM RECORD AND AS PER THE STATEMENT OF LEARNED DR THAT THE CASE OF PUNJAB URBAN DEVELOPMEN T AUTHORITY (PUDA), REPORTED IN 103 TTJ 988 (CHANDIGARH) RELIED UPON BY HIM, HAS NOT BEEN CONSIDERED IN THE ORDER. ACCORDINGLY, IN T HE INTEREST OF JUSTICE, WE CANCEL THE ORDER DATED 9 TH OCTOBER, 2012 AND RECALL THE SAME. THE REGISTRY IS DIRECTED TO FIX THE MAIN APPEAL I.E. I. T.A. NO. 461(ASR)/2011 BEFORE THE BENCH ON 9 TH JANUARY, 2014 FOR REGULAR HEARING AND ISSUE NOTICES TO THE PARTIES. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH NOVEMBER, 2013 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27 TH NOVEMBER, 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S GURDASPUR IMPROVEMENT TRUST, GUR DASPUR. 2. THE DY. COMMISSIONER OF INCOME TAX, CIRCLE-VI, PAT HANKOT 3. THE CIT(A), AMRITSAR 4. THE CIT, AMRITSAR 5. THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER 5 M. A. NO. 54(ASR)/2013 (IN I.T.A. NO. 461(ASR)/2011) (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.