The Dy. Commissioner of Income Tax (Exemptions), Circle-2,, Ahmedabad v. Ahmedbad Urban Development Authority (AUDA),, Ahmedabad

ITA 1083/AHD/2018 | 2012-2013
Pronouncement Date: 25-03-2021 | Result: Dismissed

Appeal Details

RSA Number 108320514 RSA 2018
Assessee PAN AAALA0233B
Bench Ahmedabad
Appeal Number ITA 1083/AHD/2018
Duration Of Justice 2 year(s) 10 month(s) 24 day(s)
Appellant The Dy. Commissioner of Income Tax (Exemptions), Circle-2,, Ahmedabad
Respondent Ahmedbad Urban Development Authority (AUDA),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 25-03-2021
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 25-03-2021
Date Of Final Hearing 19-03-2020
Next Hearing Date 19-03-2020
Last Hearing Date 29-01-2020
First Hearing Date 13-09-2019
Assessment Year 2012-2013
Appeal Filed On 01-05-2018
Judgment Text
A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT) BEFORE SHRI RAJPAL YADAV VICE-PRESIDENT AND SHRI PRADIPKUMAR KEDIA ACCOUNTANT MEMBER ITA NO.1083 AND 1084/AHD/2018 / ASSTT.YEAR : 2012-13 DCIT (EXEMPTIONS) CIR.2 AHMEDABAD. VS. AHMEDABAD URBAN DEVELOPMENT AUTHORITY SARDAR VALLABHBHAI PATEL SANKUL ASHRAM ROAD USMANPURA AHMEDABAD. PAN : AAALA 0233 B ( APPLICANT ) ( RESPONENT ) REVENUE BY : SHRI VIRENDRA OJHA CIT-DR ASSESSEE BY : SHRI S.N.SOPARKAR SR.ADV WITH SMT.URVASHI SODHAN AR / DATE OF HEARING : 04/03/2021 / DATE OF PRONOUNCEMENT: 25/03/2021 !'/ O R D E R PER RAJPAL YADAV VICE-PRESIDENT: PRESENT TWO APPEALS ARE DIRECTED AT THE INSTANCE OF THE REVENUE AGAINST SEPARATE ORDERS OF THE LD.CIT(A)-9 AHMEDAB AD DATED 26.2.2018 PASSED FOR THE ASSTT.YEAR 2012-13. BOTH THESE APPEALS ARE DISPOSED OF BY THIS COMMON ORDER. 2. BEFORE ADVERTING TO THE GRIEVANCE RAISED BY THE REVENUE WE WOULD LIKE TO BRIEFLY NOTE BACKGROUND GIVING RISE T O THESE APPEALS. SR. NO. EVENT DATE 1. ASSESSMENT ORDER UNDER SECTION 143(3) OF THE INCOME TAX ACT 16-3-2015 ITA NO.1083 AND 1084/AHD/2018 2 WAS PASSED IN THE CASE OF THE ASSESSEE 2. APPEAL WAS FILED BY THE ASSESSEE AGAINST ORDER OF THE LD.CIT(A) DATED 16.3.2015 08-03-2017 3. THE LD.CIT TOOK COGNIZANCE UNDER SECTION 263 OF THE IT ACT AND SET ASIDE THE ASSESSMENT ORDER DATED 16.3.2015 DIRECTING THE AO TO FRAME A FRESH ASSESSMENT ORDER 10-3-2017 4. FRESH ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3) R.W. SECTION 263 OF THE ACT. 27-3-2017 5. THE AO HAS GIVEN EFFECT TO THE ORDER OF THE CIT(A) DATED 8.3.2017. THIS WAS THE ORDER PASSED AGAINST THE ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT. 25-5-2017 6. ORDER OF THE CIT(A) DATED 8.3.2017 WAS CHALLENGED BEFORE THE TRIBUNAL IN ITA NO.1422/AHD/2017. THE TRIBUNAL HAS DECIDED APPEAL ALONG WITH APPEAL FOR THE ASSTT.YEAR 2013-14 BY A COMMON ORDER. 9-10-2017 3. THE TRIBUNAL HAS HELD THAT ORIGINAL ASSESSMENT O RDER DATED 16.3.2015 WAS PASSED UNDER SECTION 143(3) OF THE AC T BY DENYING EXEMPTION UNDER SECTIONS 11 AND 12 OF THE ACT ON TH E GROUND THAT SECOND PROVISO TO SECTION 2(15) IS APPLICABLE IN THE CASE OF THE ASSESSEE AND ITS ACTIVITIES ARE NOT CHARITABLE IN NATURE. THIS DISPUTE TRAVELLED UPTO THE TRIBUNAL IN THE ASSTT.YEAR 2012- 13 AND THE TRIBUNAL FOUND THAT THE CIT(A) IN THE IMPUGNED ORDER DATED 8 .3.2017 HAS ITA NO.1083 AND 1084/AHD/2018 3 FOLLOWED ORDER OF THE TRIBUNAL DATED 19.4.2016 PASS ED IN THE ASSTT.YEAR 2010-11 AND 2011-12 (ITA NO.712 AND 711/ AHD/2013). THIS ORDER OF THE TRIBUNAL WAS REVERSED BY THE HON BLE GUJARAT HIGH COURT AND THE DECISION OF HONBLE GUJARAT HIGH COUR T IS REPORTED IN 396 ITR 323. THUS THE TRIBUNAL FOUND THAT THE LD. CIT(A) HAS ERRED IN PRINCIPLE RELYING UPON THE ORDER OF THE ITAT FOR TH E ASSTT.YEAR 2010- 11 AND 2011-12. THE TRIBUNAL HAS SET ASIDE THIS OR DER OF THE LD.CIT(A) AND RESTORED ALL THE ISSUES TO THE FILE OF THE AO WITH A DIRECTION THAT INCOME OF THE ASSESSEE BE RECOMPUTED BY KEEPING IN MIND JUDGMENT OF HONBLE GUJARAT HIGH COURT; IN OTH ER WORDS BY GIVING BENEFIT OF SECTIONS 11 AND 12. DURING THE P ENDENCY OF THE APPEAL BEFORE THE TRIBUNAL THE AO HAS GIVEN EFFECT TO THE ORDER OF THE LD.CIT PASSED IN APPEAL FILED AGAINST THE ASSESSMEN T ORDER UNDER SECTION 143(3). THIS ORDER GIVING EFFECT HAS BEEN PASSED ON 25.5.2017. AGAINST THIS ORDER THE ASSESSEE WENT IN APPEAL BEF ORE THE LD.CIT(A) AND THE LD.CIT(A) HAS DECIDED THE APPEAL OF THE ASS ESSEE VIDE ORDER DATED 26.2.2018. THIS ORDER IS IMPUGNED IN ITA NO. 1084/AHD/2018. QUA THIS APPEAL WE RECORD THE FOLLOWING FINDING: 4. CONTROVERSY IN THIS APPEAL HAS ARISEN ON ACCOUNT OF GIVING EFFECT OF THE LD.CIT(A)S ORDER DATED 8.3.2017 PASSED IN T HE ASSTT.YEAR 2012- 13. THIS ORDER OF THE CIT(A) HAS BEEN SET ASIDE BY THE TRIBUNAL IN ITA NO.1422/AHD/2017 MEANING THEREBY THE VERY BAS IS OF THE GIVING EFFECT TO THIS ORDER OF THE CIT(A) STANDS EXTINGUIS HED. HENCE NO ORDER GIVING EFFECT COULD BE PASSED; IF THAT BE TH ERE WOULD NOT ANY PROCEEDINGS AT THE END OF THE CIT(A); AND WHOLE PRO CEEDINGS BECOMES ITA NO.1083 AND 1084/AHD/2018 4 REDUNDANT AND ACCORDINGLY THIS APPEAL OF THE REVEN UE BECOMES INFRUCTUOUS. IT IS DISMISSED. 5. AS FAR AS ITA NO.1083/AHD/2018 IS CONCERNED WE RECORD THE FOLLOWING FINDING: 6. THIS APPEAL HAS BEEN ARISEN AGAINST AN ASSESSMEN T ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 263 ON 27.3. 2017. APPEAL AGAINST THIS ORDER HAS BEEN DECIDED BY THE CIT(A) V IDE ORDER DATED 26.2.2018. REVENUE HAS CHALLENGED THIS ORDER OF TH E CIT(A) BY WAY OF ITA NO.1083/AHD/2018. THIS APPEAL ALSO BECOMES INFRUCTUOUS FOR THE FOLLOWING REASONS: 7. THE ORDER OF THE CIT DATED 19.3.2017 PASSED UNDE R SECTION 263 WAS CHALLENGED IN ITA NO.978/AHD/2017. THE TRIBUNA L HAS ALLOWED THE APPEAL OF THE ASSESSEE VIDE ORDER DATED 16.12.2 019 AND HELD THAT SINCE JURISDICTION OF LD.CIT UNDER SECTION 263 IS D EPENDENT ON THE ASSESSMENT ORDER I.E. ORDER DATED 16.3.2015 THIS O RDER WAS SET ASIDE BY THE TRIBUNAL IN THE REGULAR APPEAL TRAVELLED UPTO T HE TRIBUNAL VIDE ITA NO.1422/AHD/2017. THUS ACCORDING TO THE TRIBUNAL THERE COULD NOT BE ANY 263 PROCEEDINGS AND THE TRIBUNAL HAS HELD TH AT 263 PROCEEDINGS BECOME INFRUCTUOUS. THE IMPUGNED ASSES SMENT ORDER DATED 27.3.2017 HAS BEEN PASSED ON THE BASIS OF 263 ORDER OF THE CIT. THAT ORDER NO MORE AVAILABLE HENCE THERE ARE NO LE G TO STAND I.E. FOR SECOND ASSESSMENT ORDER DATED 273.2017. IF THAT BE SO THE SUBSEQUENT PROCEEDINGS BECOME REDUNDANT. IT IS ALSO PERTINENT TO NOTE THAT WHILE DECIDING THE APPEAL AGAINST THE REGULAR ASSESSMENT ORDER DATED ITA NO.1083 AND 1084/AHD/2018 5 16.3.2015 THE TRIBUNAL HAS ALREADY OBSERVED THAT T HIS ASSESSMENT ORDER WAS PASSED BY DENYING DEDUCTION UNDER SECTION S 11 AND 2 OF THE ACT BECAUSE THE AO HAS HELD THAT SECOND PROVISO T O SECTION 2(15) IS APPLICABLE IN THE CASE OF THE ASSESSEE AND ITS ACTI VITIES ARE NOT OF CHARITABLE NATURE. THIS REASONING DID NOT MEET THE APPROVAL OF THE ITAT ON THE GROUND THAT HONBLE GUJARAT HIGH COURT HAS REVERSED EARLIER VIEW OF THE TRIBUNAL AND HELD THAT THE ASSE SSEE IS ENTITLED FOR THE BENEFIT UNDER SECTION 11 AND 12 OF THE ACT. TH E DECISION OF HONBLE GUJARAT HIGH COURT IS REPORTED IN 396 ITR 3 23. THE TRIBUNAL HAS ALREADY GIVEN DIRECTION FOR PASSING A FRESH ASS ESSMENT ORDER TREATING THE ASSESSEE AS A CHARITABLE INSTITUTION. THUS THE ORIGINAL ASSESSMENT ORDER WAS SET ASIDE BY THE TRIBUNAL AND THEREFORE NO 263 PROCEEDINGS COULD BE SUSTAINED. CONSIDERING EARLIE R ORDER OF THE TRIBUNAL IN ITA NO.1422/AHD/2017 AND 978/AHD/2017 WE ARE OF THE VIEW THAT BOTH THESE APPEALS BECOMES INFRUCTUOUS ACCORDINGLY DISMISSED. 8. IN THE RESULT THE BOTH APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 25 TH MARCH 2021 AT AHMEDABAD. S D / - (PRADIPKUMAR KEDIA) ACCOUNTANT MEMBER S D / - (RAJPAL YADAV) VICE-PRESIDENT AHMEDABAD; DATED 25/03/2021