INCOME TAX OFFICER (EXEMPTION), JAIPUR V. BHARATPUR ROYAL FAMILY RELIGIOUS & CEREMONIAL TRUST, Jaipur

MA 72/JPR/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4463 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-04-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 23-12-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RUNI PAL CIT A
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Fair market value; Benefit of exemption; Set aside
• Section: 143(3); 12A; 12AA; 254(2); 263; 12; 11

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM MA. NO. 72/JP/2020 (ARISING OUT OF ITA NO. 831/JP/2019) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2013-14 THE ITO (EXEMPTION), WARD, JAIPUR. CUKE VS. M/S BHARATPUR ROYAL FAMILY RELIGIOUS & CEREMONIAL TRUST, MOTI MAHAL, BHARATPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABTB 6641 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUNI PAL (ADDL.CIT) A FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 05/02/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 30/04/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISC. APPLICATION HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE CO-ORDINATE BENCH IN ITA N O. 831/JP/2019 DATED 13.03.2020 FOR A.Y 2013-14. 2. IN ITS MISCELLANEOUS APPLICATION, THE REVENUE HA S REQUESTED TO RECTIFY THE MISTAKE U/S 254(2) OF THE ACT WITH FOLL OWING PRAYER:- THE AFOREMENTIONED APPEAL WAS FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A), A WAR DATED 29.03.2019. THE IT AT VIDE MA NO. 72/JP/2020 ITO VS. M/S BHARATPUR ROYAL FAMILY RELIGIOUS & CER EMONIAL TRUST 2 ORDER DATED 13.03.2020 HAS ALLOWED THE APPEAL OF TH E ASSESSEE. BRIEF FACTS OF THE CASE:- THE ASSESSEE TRUST WAS CREATED BY DEED OF TRUST/INS TRUMENT DATED 29TH JUNE, 1957 WHICH WAS AMENDED FIRSTLY ON 17.01.1958 AND THEREAFTER ON 03.08.2016. THE ASSESS EE FILED ITS RETURN OF INCOME ON 31ST MARCH, 2014 DECLARING NIL INCOME BEING CAPITAL LOSS ON SALE OF IMMOVABLE PROPERTY. D URING SCRUTINY ASSESSMENT, THE AO NOTICED THAT THE ASSESS EE TRUST WAS CREATED BY SHRI SAWAI BRIJENDRA SINGH JI MAHARA JA OF BHARATPUR VIDE TRUST DEED DATED 29-061957 FOR THE P URPOSE OF MAINTAINING AND MANAGING OF INCOME AND EXPENSES OF PRIVATE PROPERTIES LIKE TEMPLE AND OTHER CEREMONIAL FUNCTIONS. THE AO FURTHER NOTED THAT THE ASSESSEE HAS SOLD THE IMMOVABLE PROPERTY BEARING KHASRA NO. 57, MOHAL CHO WKEY LAL, HARIPARVAT, AGRA (UP) MEASURING 5777.45 SQ. ME TERS FOR A CONSIDERATION OF RS. 60,00,000/-. THE SAID PROPERTY WAS VALUED FOR STAMP DUTY PURPOSE AT RS. 11,33,72,000/- AND A STAMP DUTY OF RS. 79,36,400/-WAS PAID. THE AO FURTH ER NOTED THAT THE ASSESSEE HAS CLAIMED INDEXED COST OF ACQUI SITION OF THE PROPERTY AT RS. 1,33,10,000 X852/100=11,34,01,2 00/- AND CONSEQUENTLY DECLARED CAPITAL LOSS ON SALE OF THE F IXED ASSET OF THE TRUST. THE AO WAS OF THE VIEW THAT AS PER TH E TRUST DEED, THE ASSESSEE TRUST IS A PRIVATE TRUST & NOT A PUBLIC TRUST AND, THEREFORE, NOT ELIGIBLE FOR DEDUCTION UN DER SECTIONS 11 & 12 OF THE IT ACT. THE AO DETERMINED THE FAIR M ARKET VALUE OF THE PROPERTY AS ON 01.04.1981 AS THE PROPE RTY WAS ACQUIRED BY THE SETTLER PRIOR TO 01.04.1981 AND THE N ALLOWED THE INDEXED COST AT RS. 1,63,81,480/-. HENCE, THE A O HAS DETERMINED THE LONG TERM CAPITAL GAIN OF RS. 9,69,9 0,520/-AS PER SECTION 50C. FURTHER, THE AO DID NOT ALLOW THE EXEMPTION U/S 11 & 12 OF I.T. ACT AS THE REGISTRATION U/S 12A A WAS GRANTED TO IT W.E.F. 03.08.2016, AFTER CHANGE IN NA TURE OF THE TRUST FROM 'PRIVATE RELIGIOUS TRUST' TO 'PUBLIC TRU ST', WHEREAS MA NO. 72/JP/2020 ITO VS. M/S BHARATPUR ROYAL FAMILY RELIGIOUS & CER EMONIAL TRUST 3 THE ASSESSMENT ORDER UNDER SECTION 143(3) OF THE IT ACT WAS PASSED ON 31ST MARCH, 2016. SO THE ASSESSEE TRUST W AS NOT FALLING IN CRITERION OF APPLICABILITY OF SECTION 12 (A)(2) OF THE I.T. ACT. 2. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEF ORE THE LD. CIT(A). THE ID. CIT(A) DELETED THE ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAIN AND GIVEN THE BENEFIT OF EXE MPTION U/S 11 & 12 OF THE I.T. ACT. 3. AGGRIEVED BY THE IMPUGNED ORDER OF THE LD. CIT(A ), THE REVENUE HAS FILED APPEAL BEFORE HON'BLE ITAT, JAIPU R. THE HON'BLE ITAT VIDE ORDER DATED 13.03.2020 HAS SET AS IDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND REMAND THE MAT TER TO THE RECORD OF THE AO TO THE EXTENT OF COMPUTATION O F THE FAIR MARKET PRICE OF THE PROPERTY IN QUESTION AS ON THE DATE OF SALE AND THE UTILIZATION OF SALE CONSIDERATION FOR PURCH ASE OF NEW CAPITAL ASSET BEING PROPERTY HELD UNDER TRUST, THEN DECIDE THIS ISSUE AFTER ALLOWING THE BENEFIT OF SECTIONS 11 & 1 2 AS IT WAS ALREADY ALLOWED BY THIS TRIBUNAL FOR THE ASSESSMENT YEAR 2011-12. 4. ON THE ISSUE OF LONG TERM CAPITAL GAIN AS PER SE CTION 50C, THE HON'BLE ITAT HAS RESTORED BACK THE MATTER TO TH E RECORD OF THE AO, HENCE IT IS ACCEPTABLE. HOWEVER, THE DEC ISION OF THE HON'BLE ITAT FOR ALLOWING THE BENEFIT OF EXEMPT ION U/S 11 & 12 OF THE I.T. IN VIEW OF ITS OWN ORDER IN ASSESS EE'S CASE FOR A.Y. 2011-12 IS ERRONEOUS ON THE BASIS OF THE FACTS AVAILABLE ON RECORD. 5. THE HON'BLE ITAT HAS ALLOWED THE BENEFIT OF EXEM PTION U/S 11& 12 OF I.T. ACT ON THE BASIS OF ITS ORDER DATED 23. 06.2017 IN THE ASSESSEE'S OWN CASE FOR A.Y. 2011-12. IN ITS ORDER DATED 23.06.2017 FOR A.Y. 2011-12, THE HON'BLE ITAT HAS SET ASIDE THE ISSUE RELATING TO EXEMPTION U/S 11 & 12 O F THE I.T TO MA NO. 72/JP/2020 ITO VS. M/S BHARATPUR ROYAL FAMILY RELIGIOUS & CER EMONIAL TRUST 4 THE RECORD OF AO WITH TWO VERY SPECIFIC DIRECTION T O DECIDE THE MATTER. FIRSTLY WHETHER THE ASSESSEE WAS REGISTERED UNDER THE INCOME TAX ACT, 1922 AND SECONDLY, WHETHER SUCH REGISTRATION, IF OBTAINED UNDER THE OLD INCOME TAX ACT, WAS SAVED BY SECTION 297 OF THE I.T. ACT. 6. THE AO HAS COMPLETED SET ASIDE PROCEEDINGS FOR A .Y. 2011-12 ON 29.12.2017 AND ALLOWED THE BENEFIT OF EXEMPTION U/S 11 & 12 TO ASSESSEE BUT THE SAME WAS SUBJECTED TO THE EXAMINAT ION BY ID. CIT(E) DURING PROCEEDINGS U/S 263 OF THE I.T. ACT. THE LD. CIT(E), JAIPUR HAS PASSED AN ORDER U/S 263 ON 03.03.2020 WH EREIN IT HAS BEEN HELD THAT THE ORDER PASSED BY THE AO ON 29.12. 17 IS ERRONEOUS AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE AS THE AO HAS NOT GIVEN CLEAR FINDING ON REGISTRATION STATUS OF TRUST UNDER INCOME TAX ACT,1922 AND THE STATUS OF TRUST AFTER REPEAL OF TH AT ACT. FURTHER, THE CIT(E), JAIPUR HAS DIRECTED THE AO TO SPECIFICALLY EXAMINE AND BRING ON RECORD THE FACT OF REGISTRATION OF THE ASSESSEE UNDER THE I.T. ACT, 1922 AND THE SAME SET ASIDE PROCEEDINGS IS STILL PE NDING FOR FINALIZATION. THUS THE FINDING AND DIRECTION THEREO N OF HON'BLE TRIBUNAL THAT 'DECIDE THE ISSUE AFTER ALLOWING THE BENEFIT OF SECTION 11 & 12 AS IT WAS ALLOWED BY THIS TRIBUNAL FOR A.Y. 2011-12IS IN CONTRADICTION TO ITS ABSENCE OF FINAL OUTCOME OF SE T ASIDE PROCEEDINGS, ALLOWANCE OF EXEMPTION U/S 11 AND 12 C ANNOT BE DECIDED. FURTHER, AS PER PROVISIONS OF SECTION 13(1)(A), NO EXEMPTION U/S 11 AND 12 CAN BE ALLOWED TO A 'PRIVATE RELIGIOU S TRUST' AND PRIOR TO 03.08.2016 ,THE ASSESSE TRUST WAS A PRIVAT E RELIGIOUS TRUST. IN THIS REGARD OPENING TWO PARAS OF TRUST DE ED (BEFORE AMENDMENT) ARE AS UNDER: (2) THE NAME OF TRUST WILL BE BHARATPUR ROYAL FAMI LY RELIGIOUS AND CEREMONIAL TRUST (3) THIS TRUST WILL BE A PRIVATE TRUST.' MA NO. 72/JP/2020 ITO VS. M/S BHARATPUR ROYAL FAMILY RELIGIOUS & CER EMONIAL TRUST 5 VIDE AMENDMENT DATED 03.08.2016, THE ABOVE OBJECTS WERE ALTERED AND THE TRUST WAS CONVERTED INTO A PUBLIC R ELIGIOUS TRUST. MOREOVER, NO BENEFIT OF EXEMPTION CAN BE GRANTED TO THE ASSESSEE FOR THE YEAR IN QUESTION SINCE PRIOR TO TH E AMENDMENT DATED 03.08.2016 IN TRUST DEED, THE VERY NATURE OF THE TRUST AND CONSEQUENTLY ITS OBJECTS AND ACTIVITIES WERE NO T THE SAME AS THOSE POST AMENDMENT, WHICH IS A PREREQUISITE FO R APPLICABILITY OF SECTION 12(A)((2) OF THE I.T. ACT. 7. THEREFORE, IT IS SUBMITTED THAT ALLOWING THE BEN EFIT OF SECTION 11 & 12 TO THE ASSESSEE BY THE TRIBUNAL WRONGLY REL YING UPON ITS OWN DECISION FOR A.Y. 2011-12 WITHOUT APPRECIAT ING THE FACT THAT THE SET-ASIDE PROCEEDINGS WERE STILL PENDING I N THE AFORESAID CASE AND THIS TANTAMOUNTS TO BE A MISTAKE APPARENT FROM RECORD. THIS OMISSION HAS CAUSED PREJUDICED TO THE INTEREST OF REVENUE. ACCORDINGLY, THIS MISCELLANEOU S APPLICATION IS BEING FILED BY THE REVENUE UNDER SECTION 254(2) OF THE I.T. ACT WITH A REQUEST TO RECTIFY THE SAME BY RECALLING THE EARLIER ORDER. 8. ISSUES TAKEN UP IN THIS MISCELLANEOUS APPLICATIO N ARE THE FOLLOWING GROUNDS OF APPEAL WHICH WERE RAISED BEFOR E THE HON'BLE ITAT BUT REMAINED TO BE ADJUDICATED:- A. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE CIT (A) HAS ERRED IN ALLOWING EXEMPTION U/S 11 TO THE ASSESSEE WITHOUT APPRECIATING THE FACT THAT THE TRU ST DEED WAS AMENDED ON 03.08.2016 AND THE TRUST WAS A PRIVATE T RUST PRIOR TO THE AMENDMENT AND THEREFORE IT WAS NOT ELIGIBLE FOR REGISTRATION U/S 12AA IN VIEW OF THE PROVISIONS OF SECTION 13(1)(A) OF THE ACT PRIOR TO 03.08.2016. B. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE CIT (A) HAS ERRED IN ALLOWING THE BENEFIT OF TH E 1ST PROVISO TO SECTION 12A(2) TO THE TRUST WITHOUT APPRECIATING THE FACT THE SAME IS NOT AVAILABLE TO THE TRUST AS THE TRUST DEE D WAS MA NO. 72/JP/2020 ITO VS. M/S BHARATPUR ROYAL FAMILY RELIGIOUS & CER EMONIAL TRUST 6 AMENDED ON 03.08.2016, THE CONSEQUENCE OF WHICH THE ASSESSEE WAS GRANTED REGISTRATION ONLY W.E.F. 03.08 .2016. PRAYER IN VIEW OF THE ABOVE FACTS AND MISTAKE OF LAW, THE APPELLANT PRAYS BEFORE THE HON'BLE TRIBUNAL TO ALLOW THE MISC ELLANEOUS APPLICATION IN FAVOUR OF REVENUE BY RECALLING ITS E ARLIER ORDER IN THE CASE OF M/S BHARATPUR ROYAL FAMILY RELIGIOUS & CEREMONIAL TRUST, MOTI MAHAL, BHARATPUR IN ITA NO. 831/JP/2019 DATED 13.03.2020 FOR A.Y. 2013-14 OR GRANT RELIEF AS MAY BE AVAILABLE TO REVENUE. IT IS CERTIFIED THAT AFOREMENTIONED ORDER OF HON'BL E ITAT WAS RECEIVED ON 28.07.2020, HENCE, THIS MISCELLANEOUS APPLICATION BEING FILED IS WITHIN TIME LIMIT. 3. THE LD AR IS HEARD WHO HAS OPPOSED THE MISC. APP LICATION SO FILED BY THE REVENUE AND SUBMITTED THAT ONLY GRIEVANCE OF THE REVENUE IS THAT THE TWO GROUNDS OF APPEAL TAKEN BY THE REVENUE NAMELY GROUND OF APPEAL NO. 1 AND 2 CHALLENGING THE ACTION OF THE LD CIT(A) IN ALLOWING EXEMPTION U/S 11 IN VIEW OF THE FIRST PROVISO TO SE CTION 12A(2) HAVE NOT BEEN ADJUDICATED UPON BY THE TRIBUNAL. IN THIS REG ARD, OUR REFERENCE WAS DRAWN TO THE FINDINGS OF THE TRIBUNAL AT PARA 6 OF ITS ORDER AND IT WAS SUBMITTED THAT THE TRIBUNAL HAS DISCUSSED THIS PRECISE ISSUE AND HAS DECIDED THAT BENEFIT OF PROVISO TO SECTION 12A( 2) IS NOT AVAILABLE TO THE ASSESSEE. IT WAS ACCORDINGLY SUBMITTED THAT WH ERE THE MATTER HAS BEEN ALREADY BEEN DECIDED BY THE TRIBUNAL, THERE IS NO BASIS OF FILING THE MISC. APPLICATION BY THE REVENUE AND THE SAME T HUS DESERVE TO BE SUBMITTED. MA NO. 72/JP/2020 ITO VS. M/S BHARATPUR ROYAL FAMILY RELIGIOUS & CER EMONIAL TRUST 7 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULL Y PERUSED THE ORDER PASSED BY THE COORDINATE BENCH. WE FIND THAT IN THE PRESENT MISC. APPLICATION, THE REVENUE HAS RAISED TWO BROAD CONTENTIONS. FIRSTLY, WRONG APPRECIATION OF THE FINDINGS OF THE TRIBUNAL IN A.Y 20111- 12 AND RELYING THE SAME, ALLOWING THE BENEFIT OF SE CTION 11 AND 12 TO THE ASSESSEE. SECONDLY, NON-ADJUDICATION OF GROUND S OF APPEAL NO. 1 AND 2 OF ITS APPEAL WHEREIN IT HAS CHALLENGED THE A CTION OF THE LD CIT(A) IN ALLOWING EXEMPTION U/S 11 IN VIEW OF THE FIRST P ROVISO TO SECTION 12A(2) OF THE ACT. FOR BETTER APPRECIATION, WE REF ER TO THE FINDINGS OF THE TRIBUNAL AT 6 AND 6.1 OF ITS ORDER WHICH READ A S UNDER:- 6. AS REGARDS THE APPLICABILITY OF PROVISIONS OF S ECTION 12AA AND PARTICULARLY PROVISO TO THE SAID SECTION AND CONSEQ UENTIAL BENEFIT OF SECTIONS 11 & 12 OF THE ACT, WE FIND THAT THE RE GISTRATION WAS GRANTED BY THE COMMISSIONER (EXEMPTIONS) VIDE ORDER DATED 5 TH SEPTEMBER, 2016 WITH EFFECT FROM 03.08.2016 AFTER T HE ASSESSEE HAS AMENDED ITS BY-LAWS AND MEMORANDUM OF ASSOCIATI ON WHEREBY CERTAIN TERMS AND CONDITIONS HAVE BEEN COMP LETELY CHANGED. THEREFORE, THE CONSTITUTION OF THE TRUST DOES NOT REMAIN THE SAME AS IT WAS PRIOR TO THE AMENDMENT AN D HENCE WHEN THE CONSTITUTION ITSELF IS CHANGED AND THE REG ISTRATION IS GRANTED ON THE NEW AND AMENDED CONSTITUTION OF THE TRUST, THEN THE BENEFIT OF PROVISO TO SECTION 12A WOULD NOT BE AVAILABLE TO THE ASSESSEE FOR THE ASSESSMENT YEAR PRECEDING TO THE Y EAR IN WHICH SUCH REGISTRATION IS GRANTED. FURTHER, THE SAID PR OVISO TO SECTION 12A(2) SPECIFICALLY MENTIONS THE PROCEEDINGS OF THE ASSESSMENT ARE PENDING BEFORE THE AO. THOUGH IT MAY BE INFERRE D THAT THE PROCEEDINGS BEFORE THE APPELLATE AUTHORITY ARE ALSO CONSIDERED TO BE THE ASSESSMENT PROCEEDINGS PENDING BUT THE SAME ARE NOT REGARDED AS PENDING BEFORE THE AO. EVEN OTHERWISE, WHEN THE REGISTRATION IS GRANTED ON THE AMENDED CONSTITUTION OF THE TRUST, THEN THE BENEFIT OF THIS PROVISO TO SECTION 12A(2) IS NOT AVAILABLE. MA NO. 72/JP/2020 ITO VS. M/S BHARATPUR ROYAL FAMILY RELIGIOUS & CER EMONIAL TRUST 8 6.1. ACCORDINGLY, IN VIEW OF THE ABOVE FACTS AND CI RCUMSTANCES OF THE CASE, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT (A) AND REMAND THE MATTER TO THE RECORD OF THE AO TO TH E EXTENT OF COMPUTATION OF THE FAIR MARKET PRICE OF THE PROPERT Y IN QUESTION AS ON THE DATE OF SALE AND THE UTILIZATION OF SALE CONSIDERATION FOR PURCHASE OF NEW CAPITAL ASSET BEING PROPERTY HELD U NDER TRUST, THEN DECIDE THIS ISSUE AFTER ALLOWING THE BENEFIT O F SECTIONS 11 & 12 AS IT WAS ALREADY ALLOWED BY THIS TRIBUNAL FOR T HE ASSESSMENT YEAR 2011-12 IN TERMS OF THE MINISTRY OF HOME AFFAI RS D.O. NO. 4/26/56 DATED 12 TH NOVEMBER, 1958 AS WELL AS THE MINISTRY OF FINANCE DEPARTMENT COMMUNICATION DATED 12.12.1958. 5. WE FIND THAT IN PARA 6 OF ITS ORDER, THE COORDIN ATE BENCH HAS DISCUSSED THE MATTER RELATING TO CLAIM OF EXEMPTION U/S 11 IN VIEW OF THE FIRST PROVISO TO SECTION 12A(2) OF THE ACT AND HAS DECIDED THAT BENEFIT OF PROVISO TO SECTION 12A(2) IS NOT AVAILAB LE TO THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YEAR. THEREFORE, AS FAR AS SECOND CONTENTION SO RAISED IN THE MISC. APPLICATION, WE FIND THAT TH E GROUNDS OF APPEAL SO TAKEN BY THE REVENUE HAS BEEN DULY ADJUDICATED UPON AND NO ACTION IS CALLED FOR IN TERMS OF SECTION 254(2) OF THE ACT. 6. FURTHER, WHERE WE READ THE CONCLUDING FINDINGS O F THE COORDINATE BENCH IN PARA 6.1 OF ITS ORDER, WE FIND THAT THERE IS SOME INCONSISTENCY WHICH HAS APPARENTLY CREPT IN THE ORDER AS SUCH FIN DINGS HAVE TO BE READ CONJOINTLY WITH EARLIER FINDINGS RECORDED IN T HE ORDER AND IN THE CONTEXT OF PRESENT MISC. APPLICATION, FINDINGS RECO RDED IN PARA 6 OF ITS ORDER. IN PARA 6 OF ITS ORDER AS WE HAVE NOTED ABOV E, THE COORDINATE BENCH HAS HELD THAT THE ASSESSEE IS NOT ELIGIBLE F OR EXEMPTION U/S 11 TAKING RECOURSE TO THE PROVISO TO SECTION 12A(2) OF THE ACT AND IN PARA MA NO. 72/JP/2020 ITO VS. M/S BHARATPUR ROYAL FAMILY RELIGIOUS & CER EMONIAL TRUST 9 6.1, THE COORDINATE BENCH HAS DIRECTED THE AO TO AL LOW THE BENEFIT OF SECTION 11 AND 12. 7. SECONDLY, THE REVENUE HAS POINTED THAT IN PARA 6 .1, THE COORDINATE BENCH HAS DIRECTED THE AO TO ALLOW THE B ENEFIT OF SECTION 11 AND 12 RELYING ON THE ORDER EARLIER PASSED BY THE T RIBUNAL IN A.Y 2011- 12. IT WAS SUBMITTED THAT IN A.Y 2011-12, THE TRIB UNAL HAS SET-ASIDE THE MATTER RELATING TO EXEMPTION UNDER SECTION 11 A ND 12 TO THE FILE OF THE AO TO EXAMINE THE SAME AFRESH WITH CERTAIN SPEC IFIC DIRECTIONS AND HAS NOT DIRECTED TO ALLOW ANY EXEMPTION AS WRONGLY UNDERSTOOD BY THE COORDINATE BENCH IN THE IMPUNGED ORDER. IN THIS RE GARD, WE REFER TO THE FINDINGS OF THE TRIBUNAL IN A.Y 2011-12 RECORDE D AT PARA 6.8 OF ITS ORDER IN ITA NO. 254/JP/2016 DATED 23.06.2017 AND N OTE THAT IN THE SAID CASE, THE TRIBUNAL HAS HELD THAT THE AO HAS CO MMITTED MISTAKE APPARENT FROM RECORD AND NEED FRESH CONSIDERATION A ND THE AO WAS DIRECTED TO DECIDE THE ISSUE OF AVAILABILITY OF EXE MPTION AFRESH. THEREFORE, WE AGREE WITH THE CONTENTIONS ADVANCED B Y THE LD DR ON BEHALF OF THE REVENUE THAT THE FINDINGS RECORDED BY THE COORDINATE BENCH AT PARA 6.1 OF ITS ORDER RELYING ON EARLIER F INDINGS OF THE COORDINATE BENCH IN A.Y 2011-12 DESERVE TO BE RECTI FIED AS THE SAME IS CLEARLY A MISTAKE APPARENT FROM RECORD. 8. IN LIGHT OF AFORESAID DISCUSSION AND IN THE ENTI RETY OF FACTS AND CIRCUMSTANCES OF THE CASE, THE FINDINGS RECORDED AT PARA 6.1 OF THE ORDER SO PASSED BY THE COORDINATE BENCH IS HEREBY R ECTIFIED AND SHOULD BE READ AS UNDER:- MA NO. 72/JP/2020 ITO VS. M/S BHARATPUR ROYAL FAMILY RELIGIOUS & CER EMONIAL TRUST 10 6.1 ACCORDINGLY, IN VIEW OF THE ABOVE FACTS AND CI RCUMSTANCES OF THE CASE, WE SET-ASIDE THE IMPUGNED ORDER OF THE LD CIT(A) AND REMAND THE MATTER TO THE RECORD OF THE AO TO THE EX TENT OF COMPUTATION OF THE FAIR MARKET VALUE OF THE PROPERT Y IN QUESTION AS ON THE DATE OF SALE AND UTILIZATION OF SALE CONSIDE RATION FOR PURCHASE OF NEW CAPITAL ASSET BEING PROPERTY HELD U NDER TRUST. SUBJECT TO ABOVE, THERE IS NO OTHER CHANGE IN ANY O F THE FINDINGS AND DIRECTIONS SO CONTAINED IN THE ORDER PASSED BY THE COORDINATE BENCH. IN THE RESULT, MISC. APPLICATION FILED BY THE REVEN UE IS DISPOSED OFF IN LIGHT OF AFORESAID DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 30/04/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30/04/2021. *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ITO (EXEMPTION) WARD, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- M/S BHARATPUR ROYAL FAMILY RELIGIOU S & CEREMONIAL TRUST, BHARATPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { MA NO. 72/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR