Urban Improvement Trust Taken over by JDA, JODHPUR v. DCIT, JODHPUR

ITA 125/JODH/2011 | 2003-2004
Pronouncement Date: 04-04-2014 | Result: Allowed

Appeal Details

RSA Number 12523314 RSA 2011
Assessee PAN AAAAU2527P
Bench Jodhpur
Appeal Number ITA 125/JODH/2011
Duration Of Justice 2 year(s) 11 month(s) 29 day(s)
Appellant Urban Improvement Trust Taken over by JDA, JODHPUR
Respondent DCIT, JODHPUR
Appeal Type Income Tax Appeal
Pronouncement Date 04-04-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 03-04-2014
Date Of Final Hearing 03-04-2014
Next Hearing Date 03-04-2014
Assessment Year 2003-2004
Appeal Filed On 05-04-2011
Judgment Text
IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA JUDICIAL MEMBER AND SHRI N.K. SAINI ACCOUNTANT MEMBER. ITA NO.509/JODH/2010 (A.Y. NIL) AND ITA NO. 125/JODH/2011 (A.Y. 2003-04) URBAN IMPROVEMENT TRUST VS. CIT-1 JODHPUR. TAKEN OVER BY JDA C/O B.M. KOTHARI & CO. 947 11-D ROAD SARDARPURA JODHPUR. PAN NO. AAAAU 2527 P (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI. DEPARTMENT BY : DR. DEEPAK SEHGAL - D.R. DATE OF HEARING : 03/04/2014. DATE OF PRONOUNCEMENT : 04/04/2014. O R D E R PER N.K. SAINI A.M THESE TWO APPEALS BY THE ASSESSEE ARE FILED AGAINS T THE ORDER DATED 29/09/2010 PASSED BY THE LD. CIT-1 JODHPUR AND THE ORDER DATED 03/03/2011 OF LD. CIT(A) JODHPUR. THESE TWO APPEA LS BY THE SAME 2 ASSESSEE WERE HEARD TOGETHER SO THESE ARE BEING D ISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2 FIRST WE WILL DEAL WITH THE APPEAL IN I.T.A.NO.509 /JODH/2010. 3. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE REJECTION OF APPLICATION MOVED FOR REGISTRATION UND ER SECTION 12A OF THE I.T. ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT). 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSE E FILED AN APPLICATION IN FORM-10A ON 22/03/2010 FOR REGISTRAT ION UNDER SECTION 12A(A) OF THE ACT. LD. CIT OBSERVED THAT JODHPUR D EVELOPMENT AUTHORITY (JDA) HAD TAKEN OVER THE URBAN IMPROVEMENT TRUST I. E. THE ASSESSEE. HE FURTHER OBSERVED THAT THE JDA ACT 2009 WAS PASSED O N 31/01/2009 AND IS DEEMED TO HAVE COME INTO FORCE FROM 30/08/2008 THE REFORE THE ASSESSEE TRUST WAS NOT IN EXISTENCE ON THE DATE OF APPLICATION THUS THE REQUEST FOR REGISTRATION UNDER SECTION 12A OF THE A CT W.E.F. A.Y. 2003-04 HAD NO BASIS. HE ALSO OBSERVED THAT CERTAIN CONDIT IONS WERE REQUIRED TO BE FULFILLED FOR SEEKING REGISTRATION UNDER SECTION 12A OF THE ACT BUT THE ASSESSEE DID NOT FULFILL THE CONDITIONS AND HAD NOT FILED THE RETURN OF INCOME FROM LAST MANY YEARS. THE LD. CIT(A) THERE FORE REJECTED THE 3 APPLICATION FOR REGISTRATION UNDER SECTION 12A OF T HE ACT. BEING AGGRIEVED THE ASSESSEE IS IN APPEAL. 5. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT TH E REGISTRATION HAS BEEN GRANTED TO THE JODHPUR DEVELOPMENT AUTHORITY A ND THE ASSESSEE TRUST HAS BEEN TAKEN OVER BY THE JDA AS SUCH THE AS SESSEE WAS ALSO ENTITLED FOR REGISTRATION UNDER SECTION 12A OF THE ACT. IT WAS FURTHER STATED THAT THE LD. CIT WITHOUT PROVIDING DUE AND R EASONABLE OPPORTUNITY OF BEING HEARD AND APPRECIATING THE FACTS IN RIGHT PERSPECTIVE REJECTED THE APPLICATION MOVED BY THE ASSESSEE. HE REQUESTE D THAT THE MATTER MAY BE SENT BACK TO THE LD. CIT FOR FRESH ADJUDICAT ION BY CONSIDERING THE DECISION IN THE CASE OF JAIPUR DEVELOPMENT AUTHORIT Y IN I.T.A. NO. 927/JP/2007 ORDER DATED 30/05/2008 WHEREIN THE REGI STRATION WAS GRANTED TO THE JDA WITH RETROSPECTIVE EFFECT UNDER IDENTICAL FACTS AND CIRCUMSTANCES. 6 . LEARNED D.R. IN HIS RIVAL SUBMISSIONS SUPPORTED THE ORDER OF THE LD. CIT AND DID NOT OBJECT IF THE MATTER IS SENT BACK T O THE LD. CIT TO BE DECIDED AFRESH BY KEEPING IN VIEW THE DECISION IN T HE CASE OF JAIPUR DEVELOPMENT AUTHORITY. 7 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PAR TIES WE FIND MERIT IN THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE A SSESSEE AND SET ASIDE 4 THIS ISSUE BACK TO THE FILE OF THE LD. CIT TO BE DE CIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND BY CONSIDERING THE DECISION IN THE CASE OF JAIPUR DEVELOPMENT AUTHORITY (SUPRA) RELIED ON BY T HE LEARNED COUNSEL FOR THE ASSESSEE. 8 . NOW WE WILL DEAL WITH APPEAL IN I.T.A.NO. 125/JOD H/2011. IN THIS APPEAL THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO THE CONFIRMATION OF PENALTY OF RS. 1 00 000/- LEVIED BY THE ASSESSING O FFICER UNDER SECTION 271B OF THE ACT. 9 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSI NG OFFICER NOTICED THAT THE ASSESSEE WAS HAVING RECEIPTS OF RS. 28.45 CRORES AND EXPENDITURE OF RS. 26.74 CRORES FOR THE YEAR UNDER CONSIDERATIO N WHICH EXCEEDED RS. 40 LAC. THEREFORE THE ASSESSEE WAS REQUIRED T O GET ITS ACCOUNT AUDITED UNDER THE PROVISIONS OF SECTION 44AB OF THE ACT WHICH IT FAILED TO DO SO. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE HAD NOT COMPLIED WITH THE PROVISIONS OF SECTION 44AB OF THE ACT WITHOUT ANY REASONABLE CAUSE. HE THEREFORE LEVIED PENALTY OF RS. 1 00 00/- UNDER SECTION 271B OF THE ACT. 5 10 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE PENALTY LEVIED BY THE ASSESSING O FFICER. NOW THE ASSESSEE IS IN APPEAL. 11 . LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE PROVISIONS OF SECTION 44AB OF THE ACT WERE NOT APPLICABLE TO THE FACTS OF THE ASSESSEES CASE BECAUSE THE ASSESSEE WAS NOT DOING ANY BUSINES S AND ITS INCOME WAS EXEMPT. IT WAS FURTHER STATED THAT THE INCOME TAX AUTHORITIES FAILED TO APPRECIATE THAT THE ACCOUNTS OF THE ASSESSEE WERE B EING AUDITED BY THE GOVERNMENT AUDITORS IN ACCORDANCE WITH THE PROVISIO NS OF THE RELEVANT ACT AND THAT THE LD. CIT(A) HIMSELF ACCEPTED THIS F ACT THAT THE ASSESSEE WAS PREVENTED BY SUCH A BONAFIDE BELIEF WHICH WAS A PPARENT FROM THE ORDER DATED 03/03/2011 IN APPEAL NO. 442/2009-10 W HERE THE PENALTY OF RS. 5 000/- LEVIED UNDER SECTION 271 (1)(B) OF THE ACT FOR THE SAME ASSESSMENT YEAR I.E. 2003-04 HAD BEEN CANCELLED BY THE LD. CIT(A). LEARNED COUNSEL FOR THE ASSESSEE REQUESTED TO REMAN D THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER BECAUSE HE HAS NO T CONSIDERED THIS FACT THAT THE INCOME OF THE ASSESSEE WAS EXEMPT AND THE PROVISIONS OF SECTION 44AB WERE NOT APPLICABLE. 6 12. LEARNED D.R. IN HIS RIVAL SUBMISSIONS ALTHOUGH SUPPORTED THE O RDER OF THE LD. CIT(A) BUD DID NOT OBJECT IF THE MATTER IS SENT BACK TO THE FILE OF THE ASSESSING OFFICER. 13. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTI ES WE FIND MERIT IN THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE A SSESSEE AND REMAND THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICE R TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 14. IN THE RESULT BOTH THE APPEALS ARE ALLOWED FOR ST ATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 04 TH APRIL 2014). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 04 TH APRIL 2014. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR ITAT JODHPUR.