M/s Karnataka State Road Transport Corporation, Bangalore V. The Assistant Commissioner of Income Tax (Exemptions) Circle-17(1), Bangalore

MA 87/BANG/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7201 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 18-05-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYADARSHI MISHRA
• Assessee Lawyers: S ANNAMALAI
• Keywords: Set aside
• Section: 12A; 11

Judgement Text

M.P. NO.87/BANG/2020 M/S. KARNATAKA STATE ROAD TRANSPORT CORPORATION, BA NGALORE IN THE INCOME TAX APPELLATE TRIBUNAL BBENCH: BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENTAND SHRI B.R. BASKARAN, ACCOUTANT MEMBER M.P. NO.87/BANG/2020 (ARISING OUT OF ITA NO.718/BANG/2013) ASSESSMENTYEAR:2009-10 M/S. KARNATAKA STATE ROAD TRANSPORT CORPORATION SHANTHINAGAR BANGALORE-560027 PAN NO :AAACV6497B VS. ASSISTANT COMMISSIONER OF INCOME TAX (EXEMPTIONS) CIRCLE-17(1) BANGALORE APPELLANT RESPONDENT APPELLANT BY : SHRI S. ANNAMALAI, A.R. RESPONDENT BY : SHRI PRIYADARSHI MISHRA, D.R. DATE OF HEARING : 04.09.2020 DATE OF PRONOUNCEMENT : 04.09.2020 O R D E R PERB.R. BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS MISCELLANEOUS PETITION SUBMITTING THAT THERE IS A MISTAKE APPARENT FROM RECORD IN THE ORDER DATED 27.09.2019 PASSED BY THE TRIBUNAL IN THE HANDS OF T HE ASSESSEE FOR THE ASSESSMENT YEAR 2009-10. 2. THE LD. A.R. SUBMITTED THAT THE A.O. HAD REJECTE D THE CLAIM FOR DEDUCTION U/S 11 OF THE INCOME-TAX ACT,1961 ['T HE ACT' FOR SHORT] FOR THE REASON THAT THE ACTIVITIES CARRIED ON BY TH E ASSESSEE ARE COMMERCIAL IN NATURE AND HENCE, PROVISO TO SECTION 2(15) OF THE ACT WOULD APPLY TO THE ASSESSEE AND FURTHER THE REGISTR ATION GRANTED TO M.P. NO.87/BANG/2020 M/S. KARNATAKA STATE ROAD TRANSPORT CORPORATION, BA NGALORE PAGE 2 OF 4 THE ASSESSEE U/S 12A OF THE ACT HAS BEEN CANCELLED. THE ORDER OF LD. A.O. WAS CONFIRMED BY LD. CIT(A) AND HENCE, THE ASSESSEE FILED THE APPEAL BEFORE THE TRIBUNAL. 3. THE LD. A.R. SUBMITTED THAT ORDER PASSED BY LD. DIT CANCELLING THE REGISTRATION GRANTED TO THE ASSESSEE U/S 12A OF THE ACT WAS SET ASIDE BY THE ITAT AND CONFIRMED BY THE HIGH COURT OF KARNATAKA. THIS WAS TAKEN NOTE OF BY THE TRIBUNAL. WITH REGARD TO THE OBSERVATION OF THE A.O. THAT THE ACTIVITIES CAR RIED ON BY THE ASSESSEE ARE COMMERCIAL IN NATURE, THE ASSESSEE HAD PLACED RELIANCE ON THE DECISION RENDERED BY THE COORDINATE BENCH IN THE CASE OF BANGALORE METROPOLITAN TRANSPORT CORPORATIO N VS. ADIT (ITA NO.779/BANG/2013 & OTHERS DATED 21.8.2019) TO SUPPO RT ITS CASE THAT THE PROVISO TO SEC.2(15) IS NOT APPLICABLE TO IT. HOWEVER, THE TRIBUNAL, IN PARAGRAPH 7 OF THE ORDER, HAS OBSERVED THAT THE A.O. HAD INVOKED THE PROVISO TO SECTION 2(15) OF THE ACT IN OTHER YEARS ALSO IN THE HANDS OF THE ASSESSEE AND THE SAME HAD BEEN SET ASIDE BY THE TRIBUNAL. 4. THE LD. A.R. SUBMITTED THAT THE A.O. HAD NOT INV OKED PROVISO TO SECTION 2(15) OF THE ACT IN OTHER YEARS IN THE H ANDS OF THE ASSESSEE AND NO ORDER OF TRIBUNAL IS AVAILABLE ON T HIS ASPECT IN THE NAME OF THE ASSESSEE. HE SUBMITTED THAT THE ONLY O RDER THAT AS RELIED UPON BY THE ASSESSEE BEFORE THE TRIBUNAL IS THE ORDER PASSED IN THE HANDS OF THE BANGALORE METROPOLITAN CORPORAT ION (SUPRA). ACCORDINGLY, HE SUBMITTED THAT THE OBSERVATIONS MAD E BY THE TRIBUNAL IN PARA-7 OF ITS ORDER ARE CONTRARY TO THE FACTS AND THE SAME CONSTITUTE MISTAKE APPARENT FROM RECORD. 5. WE HEARD LD D.R AND PERUSED THE RECORD. WE NOTICE THAT THE TRIBUNAL HAS MADE OBSERVATIONS IN PARAGRAPH 7 OF IT S ORDER UNDER M.P. NO.87/BANG/2020 M/S. KARNATAKA STATE ROAD TRANSPORT CORPORATION, BA NGALORE PAGE 3 OF 4 THE IMPRESSION THAT THERE EXISTS AN ORDER PASSED BY THE TRIBUNAL IN THE ASSESSEES OWN HAND ON AN IDENTICAL ISSUE. NOW , IT IS POINTED OUT THAT THERE EXISTS NO SUCH ORDER. ON THE CONTRA RY, THE LD A.R HAD PLACED HIS RELIANCE ON ANOTHER ORDER PASSED BY THE TRIBUNAL IN THE CASE OF BANGALORE METROPOLITAN TRANSPORT CORPOR ATION AND THE TRIBUNAL, IN THE INSTANT CASE, HAS NOT CONSIDERED T HE SAID ORDER. ACCORDINGLY, WE FIND MERIT IN THE SUBMISSION OF THE LD A.R THAT THERE IS MISTAKE APPARENT FROM RECORD IN NOT CONSID ERING THE ORDER OF TRIBUNAL RELIED UPON BY THE ASSESSEE AND ALSO IN OBSERVING THAT THERE EXISTS AN ORDER IN THE NAME OF THE ASSESSEE, WHILE THE FACT IS THAT THERE IS NO SUCH ORDER. 6. SINCE THE ISSUE GOES TO THE ROOT OF THE MAT TER, WE ARE OF THE VIEW THAT THE ORDER DATED 27-09-2019 PASSED IN ITA NO.718/BANG/2013 DESERVES TO BE RECALLED. ACCORDIN GLY, WE RECALL THE SAME. 7. THE REGISTRY IS DIRECTED THE APPEAL FOR HEA RING IN THE NORMAL COURSE. 8. IN THE RESULT, THE MISCELLANEOUS APPLICATIO N OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH SEPT, 2020 SD/- (N.V. VASUDEVAN) VICE PRESIDENT SD/- (B.R. BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED 4 TH SEPT, 2020. VG/SPS M.P. NO.87/BANG/2020 M/S. KARNATAKA STATE ROAD TRANSPORT CORPORATION, BA NGALORE PAGE 4 OF 4 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.