ITO Ward 2(1), Nashik V. Mercedens Benz Educational Academy, Pune

MA 89/PUN/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1732 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-02-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-01-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 23-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S PRAVEENA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER MA NO. 89/PN/2013 ARISING OUT OF ITA NO.672/PN/2009) (ASST.YEAR: 2005-06) ITO, WARD-2(1), NASHIK .. APPLICANT VS. MERCEDES BENZ EDUCATIONAL ACADEMY, PLOT NO.P-26, RAJIV GANDHI INFOTECH PARK, MIDC, PHASE-I, HINJEWADI, PUNE 411057 PAN NO. AAATM1757A .. RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : MS. S. PRAVEENA DATE OF HEARING : 17-01-2014 DATE OF PRONOUNCEMENT : 04-02-2014 ORDER PER R.K.PANDA, AM : THE REVENUE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECTIFY THE ORDER PASSED BY IT SINCE CE RTAIN FACTUAL ERRORS HAD CREPT IN THE ORDER OF THE TRIBUNAL. 2. THE LD. DEPARTMENTAL REPRESENTATIVE REFERRING TO THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE SUBMITTED THAT THE SAME IS SELF- EXPLANATORY. FOR THE SAKE OF CLARITY THE CONTENTS OF THE MISCELLANEOUS APPLICATION IS REPRODUCED WHICH READS AS UNDER : THE HON'BLE ITAT, PUNE, IN ITA NO. 672/PN/2009 FOR A.Y. 2005-06 HAS PASSED AN ORDER DATED 31-05-2011, WHEREIN A MISTAKE AP PARENT FROM RECORD HAS OCCURRED. THE ASSESSING OFFICER HAD MADE AN ADDITION OF RS.1,84,65,940/- TO THE TOTAL INCOME OF THE ASSESSEE DEN YING EXEMPTION U/S.10(23C)(VI) OF THE IT ACT 1961 SINCE IT IS NOT NOT IFIED U/S 10(23C)(VI). THE ADDITION ON THIS ACCOUNT MADE BY THE AO WAS UPHEL D BY THE LEARNED 2 CIT(A)-I PUNE IN FIRST APPEAL. THE HON'BLE ITAT HAS H OWEVER DECIDED THE APPEAL IN FAVOUR OF ASSESSEE AND SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW, DIRECTING AO TO FRAME ASSESSMENT FOR THE YEAR AF RESH TREATING THE APPELLANT AS ENJOYING APPROVAL OF EXEMPTION U/S 10(23 C). 2. THE HON'BLE ITAT HAS MADE THE FOLLOWING OBSERVATI ON ON PAGE 6 IN PARA 7 OF THE SAID ORDER THAT:- '.......... THUS ADMITTED POSITION BEFORE US IS THAT T ILL 01.04.2009 NO ACTION WAS TAKEN ON THE APPLICATION FOR APPROVAL OF THE CLAIMED EXEMPTION BY THE ID. CHIEF COMMISSIONER. IN OUR VIEW TWO ACTIO NS WERE POSSIBLE BY THE ID. CHIEF COMMISSIONER ON THE SAID PENDING APPLICATION FOR APPROVAL I.E. FIRSTLY REJECTION OF IT AND SECONDLY APPROVAL OF IT. NEITHER OF THE TWO ACTIONS HAS BEEN TAKEN BY THE LD. CHIEF COMMISSIONER ON THE AP PLICATION. ........' THE HON'BLE ITAT HAS FURTHER OBSERVED ON PAGE 6 IN PA RA 7 OF THE SAID ORDER THAT : '.......... BUT HERE IN THE PRESENT CASE IS THIRD SITUA TION I.E. IN-ACTION OF THE LD. CHIEF COMMISSIONER ON THE APPLICATION FOR APP ROVAL OF EXEMPTION. NOW THE QUESTION IS AS TO WHETHER SUCH IN-ACTION CAN BE TREATED AS DEEMED APPROVAL OF THE CLAIMED EXEMPTION IN THE APPLICATIO N FOR THE PURPOSE OF FRAMING ASSESSMENT OR FOR OTHER ACTION BY THE AO. ..... .....' THE HON'BLE ITAT FURTHER ON PAGE 7 IN PARA 8 OF THE SAID ORDER HAS OBSERVED THAT:- '......... HERE IN THE PRESENT CASE TILL 1.4.2009 WHE N FIRST APPELLATE ORDER WAS PASSED, ADMITTEDLY APPLICATION FOR APPROVAL MOVED ON 13.03.2006 BEFORE THE LD. CHIEF COMMISSIONER WAS NOT DISPOSED OFF. IN OUR VIEW THE PERIOD OF 3 YEARS (I.E. TILL PASSING OF 1 ST APPELLATE ORDER) WAS MORE THAN REASONABLE FOR DEEMING THE AUTHORITY BELOW THAT THE APPLICATION FOR APPROVAL OF THE CLAIMED EXEMPTION U/S 10(23C) OF TH E ACT HAS BEEN ALLOWED BY THE ID. CHIEF COMMISSIONER TO FRAME THE ASSESSMENT FOR THE AY IN QUESTION ACCORDINGLY. ........ ' 3. THE HON'BLE ITAT DECIDED THE APPEAL IN FAVOUR O F ASSESSEE GRANTING DEEMED APPROVAL U/S 10(23C)(VI) OF THE ACT AND SETTIN G ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DIRECTING AO TO FRAME ASSESSME NT AFRESH TREATING THE APPELLANT AS ENJOYING APPROVAL OF EXEMPTION U/S. 10(23C) FOR THE CLAIMED PERIOD IN ITS APPLICATION. 4. FROM THE COMBINED READING OF ABOVE PARAS IT IS CLE AR THAT HON'BLE ITAT'S ORDER IS BASED ON THE PREMISE THAT AN APPLICATIO N WAS MADE TO THE CHIEF COMMISSIONER OF INCOME-TAX ON 13.03.2006. HOWEVER, FACT IS NOT SO. THERE WAS NO SUCH APPLICATION FOR APPROVAL U/S.10(23C ) MOVED BEFORE THE CHIEF COMMISSIONER OF INCOME TAX ON 13.03.2006 AS REFE RRED IN THE ORDER OF THE HON'BLE ITAT. THE HON'BLE ITATS ORDER THEREFORE IS BASED ON THE WRONG PREMISE/ASSUMPTION WHICH HAD LEAD TO A MISTAKE. SINCE THE MISTAKE IS APPARENT FROM RECORD, THE HONBLE ITAT MAY KINDLY R ECTIFY THE ORDER AND PASS THE ORDER ACCORDINGLY. 3 THE LD. DEPARTMENTAL REPRESENTATIVE ACCORDINGLY SU BMITTED THAT SINCE THE ORDER IS PASSED ON THE BASIS OF CERTAIN FACTUAL ERR ORS AS NO APPLICATION WAS FILED BEFORE THE CCIT, THEREFORE, APPROPRIATE ORDER MAY BE PASSED BY THE TRIBUNAL. 3. THE LD. AR ON THE OTHER HAND STRONGLY OPPOSED TH E MISCELLANEOUS APPLICATION FILED BY THE REVENUE. REFERRING TO FO RM NO. 56D (A COPY OF WHICH IS PLACED IN THE PAPER BOOK AT PAGES 27 TO 30 ) HE DREW THE ATTENTION OF THE BENCH TO NOTE NO.1 OF THE SAID FORM ACCORDIN G TO WHICH THE APPLICATION TO THE CCIT IN FORM NO.56D HAS TO BE SE NT THROUGH THE COMMISSIONER OF INCOME TAX OR DIRECTOR OF INCOME TA X (EXEMPTION) HAVING JURISDICTION OVER THE ASSESSEE. REFERRING TO PAGE 10 OF THE PAPER BOOK HE DREW THE ATTENTION OF THE BENCH TO THE LETT ER DATED 13-03-2006 ACCORDING TO WHICH THE APPLICATION IN FORM 56D TO B E FILED U/S.10(23C) WAS SUBMITTED THROUGH THE OFFICE OF THE CIT, RANGE-5, P UNE. REFERRING TO PAGE 14 OF THE PAPER BOOK HE DREW THE ATTENTION OF THE B ENCH TO THE LETTER ADDRESSED BY THE ITO, WARD-9(4), AKURDI, PUNE WHERE IN THE ITO HAS ACKNOWLEDGED THE APPLICATION FILED IN THE OFFICE OF CIT-V, PUNE U/S.10(23C) OF THE I.T. ACT. HE SUBMITTED THAT THE TRIBUNAL AFTER CONSIDERING THE ENTIRE FACTS OF THE CASE HAS PASSED THE ORDER. THEREFORE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE AMOU NTS TO A REQUEST TO THE TRIBUNAL TO REVIEW ITS OWN ORDER WHICH IS NOT PERMI SSIBLE UNDER THE LAW. HE ACCORDINGLY SUBMITTED THAT THE MISCELLANEOUS APP LICATION FILED BY THE REVENUE HAS TO BE DISMISSED. 4. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES. THE GRIEVANCE OF THE REVENUE THROUGH THIS MISCELLANEOUS APPLICATION IS THAT THE ASSESSEE HAS NOT FILED ANY APPLICATION IN THE O FFICE OF THE CCIT ON 13- 03-2006. FROM THE VARIOUS PAGES OF THE PAPER BOOK, WE FIND THE ASSESSEE HAS FILED THE APPLICATION IN THE PRESCRIBED FORM TO THE CCIT THROUGH THE OFFICE OF THE CIT WHICH HAS EVEN BEEN ACKNOWLEDGED BY THE ITO, WARD- 9(4), AKURDI, PUNE VIDE HIS LETTER DATED 23-06-2006 . WE FIND THE TRIBUNAL HAS ALREADY CONSIDERED THE APPLICATION FILED BY THE ASSESSEE. AS PER THE NOTE BELOW FORM NO.56D THE APPLICATION FORM SHOULD BE SENT TO THE CCIT 4 OR DG THROUGH THE CIT OR DIT (EXEMPTION) HAVING JUR ISDICTION OVER THE ASSESSEE. THE ASSESSEE HAS PRECISELY DONE THE SAME . THE TRIBUNAL AFTER CONSIDERING THE APPLICATION FILED BY THE ASSESSEE T HROUGH THE OFFICE OF THE CIT HAS TAKEN A VIEW. THEREFORE, ADJUDICATING THE SAME ON THE BASIS OF THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE AMOU NTS TO REVIEW OF ITS OWN ORDER BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER THE LAW. WE THEREFORE DISMISS THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE BEING DEVOID OF ANY MERIT. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ACCORDINGLY DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 04-02-2014. SD/- SD/- (R.S. PADVEKAR) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMB ER SATISH PUNE DATED : 04 TH FEBRUARY 2014. COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-I, PUNE 4. CIT-I, PUNE 5. THE D.R, A PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, ITAT, PUNE BENCHES, PUNE