Adarsh Shiksha Sansthan,, Delhi v. DCIT (Exemption), Delhi

ITA 2034/DEL/2009 | 2005-2006
Pronouncement Date: 08-01-2010 | Result: Allowed

Appeal Details

RSA Number 203420114 RSA 2009
Bench Delhi
Appeal Number ITA 2034/DEL/2009
Duration Of Justice 7 month(s) 25 day(s)
Appellant Adarsh Shiksha Sansthan,, Delhi
Respondent DCIT (Exemption), Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 08-01-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 08-01-2010
Date Of Final Hearing 30-12-2009
Next Hearing Date 30-12-2009
Assessment Year 2005-2006
Appeal Filed On 14-05-2009
Judgment Text
I.T.A. NO.2034 /DEL/09 1/6 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A NEW DELHI) BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER I.T.A. NO. 2034/DEL/2009 ASSESSMENT YEAR : 2005-06 ADARSH SHIKSHA SANSTHAN DCIT C/O THE KID ELEMENTARY BLOCK 82 INV. CIRCLE-1 ASHOK VIHAR N. DELHI. V. NEW DELHI. (APPELLANT) (RESPONDENT) PAN /GIR/NO.AAATA-1783-A APPELLANT BY : SHRI DD GUPTA C..A. RESPONDENT BY : SHRI BK GUPTA SR. DR. ORDER PER A.K. GARODIA AM: THIS IS AN ASSESSEE'S APPEAL DIRECTED AGAINST THE O RDER OF LD CIT(A)-XXI NEW DELHI DATED 5.3.2009 FOR ASSESSMENT YEAR 2005- 06. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER :- 1. THAT THE IMPUGNED ORDER OF CIT(A) XXI NEW DELH I DATED 5.3.2009 IS BAD IN LAW WRONG INCORRECT AND ILLEGAL ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND LEGAL POSITION. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND LEGAL POSITION THE LD CIT(A) XXI NEW DELHI ERRED IN CONFIRMING D ISALLOWANCE OF APPLICATION OF FUNDS UNDER SECTION 11(1)(A) TO THE EXTENT OF INCOME ASSESSED AT RS.3 62 223/- AND OTHER WAS PASSED. . I.T.A. NO2034/DEL/09 2/6 I) WITHOUT INVOKING CIRCULAR NO.100 DATED 24.1.1973 AND II) AFTER IGNORING RELEVANT EVIDENCE/MATERIAL REGAR DING REPAYMENT OF LOANS AND III) WHEN NO FUNDS HAVING BEEN ACCUMULATED THE APPE LLANT TRUST HAS NO LEGAL OBLIGATION OTO FILE FORM NO.10. 3. WITHOUT PREJUDICE TO GROUND NO.2( ABOVE THE LD C IT(A) XXI NEW DELHI HAS ERRED IN CONFIRMING THE CLAIM OF APPLICATION OF FUNDS U/S 11(10(A) OF RS.1 00 000/- ON ACCOUNT OF CLAIM OF INTEREST ON UN SECURED LOAN ON THE GROUND THAT SAID CLAIM WAS NOT JUSTIFIED BEFORE THE AUTHORITIES BELOW. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND LEGAL POSITION THE LD CIT(A) XXI NEW DELHI ERRED IN CONFIRMING A DDITION OF RS.1 38 100/- U/S 68 OF THE IT ACT 1961 ON ACCOUNT OF SALE OF COUPONS MADE BY APPELLANT TRUST. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND LEGAL POSITION THE LD ASSESSING OFFICER HAS ERRED IN LEVYING INTER EST U/S 234B AT RS.40 246/- PARTICULARLY ON THE GROUND THAT: A) THE SAME IS NOT LEVIABLE AT ALL PARTICULARLY WH EN THE APPELLANT COMPANY COULD NEVER HAVE ESTIMATED OR IMAGINED SUCH A ARBIT RARY AND PERVERSE ASSESSING OF INCOME ATRS.3 62 323/-. AND B) BASIS OF LEVYING SUCH INTEREST HAS NOT BEEN STAT ED IN THE ASSESSMENT ORDER. AND C) NO OPPORTUNITY WAS GIVEN BEFORE LEVY OF THE SAI D INTEREST. 3. IT WAS SUBMITTED BY THE LD AR OF THE ASSESSEE TH AT GROUND NO.1 IS GENERAL. REGARDING GROUND NO.2 IT WAS SUBMITTED THAT LD CIT (A) ON PAGE NO.3 IN PARA 5 OF HIS ORDER HAS DECIDED THIS ISSUE AGAINST THE ASS ESSEE ON THE BASIS THAT THE ASSESSEE HAS FAILED TO FILE FORM NO.10. IT WAS SUB MITTED THAT IT IS THE CASE OF THE . I.T.A. NO2034/DEL/09 3/6 ASSESSEE THAT FORM NO.10 IS NOT APPLICABLE IN THE P RESENT CASE AND THE CASE OF THE ASSESSEE IS THAT THERE WAS REPAYMENT OF LOANS O F RS.4 25 800/- AND HENCE THIS REPAYMENT OF LOAN HAS TO BE CONSIDERED AS APPL ICATION OF INCOME FOR THE PURPOSE OF TRUST AS PER CIRCULAR NO.100 DATED 24.1. 1973 AS REPORTED IN 88 (ST). 66. IT WAS SUBMITTED THAT THIS ASPECT WAS NOT DECI DED BY LD CIT(A). RELIANCE WAS PLACED ON THE JUDGMENT OF HON'BLE KARNATAKA HIG H COURT RENDERED IN THE CASE OF CIT V. CUTCHI MEMOM UNION AS REPORTED IN 15 5 ITR 51 AND ALSO ON THE JUDGMENT OF HON'BLE CALCUTTA HIGH COURT RENDERED IN THE CASE OF RAMCHANDRA PODDAR CHARITABLE TRUST AS REPORTED IN 164 ITR 666. 4. REGARDING GROUND NO.3 IT WAS SUBMITTED THAT IN EARLIER YEARS SUCH INTEREST WAS ALLOWED IN THE ASSESSMENT ORDER PASSED U/S 143(3) ALSO. IN THIS REGARD OUR ATTENTION WAS DRAWN TO A CHART APPEARIN G ON PAGE NO.63 OF THE PAPER BOOK AND IT IS POINTED OUT THAT IN ASSESSMENT YEAR 2003-04 ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER U/S 143(3) AND IN THAT YEAR DEDUCTION ON ACCOUNT OF INTEREST ON THESE VERY LOANS WERE ALLOWE D TO THE EXTENT OF RS.52 233/-. IT IS SUBMITTED THAT THE COPY OF THIS ASSESSMENT OR DER IS AVAILABLE ON PAGES 44-47 OF THE PAPER BOOK. 5. REGARDING GROUND NO.4 IT WAS SUBMITTED THAT SIMI LAR ISSUE WAS DECIDED BY LD CIT(A) IN FAVOUR OF THE ASSESSEE IN ASSESSMENT Y EAR 2003-04 AND COPY OF THIS ORDER OF LD CIT(A) DATED 16.3.2007 IS AVAILABL E ON PAGES 70-74 OF THE PAPER BOOK. 6. LD DR OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GON E THROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT A SPECIFIC GROUND WAS RAISED BY THE ASSESSEE BEFORE LD CIT(A) I.E. GROUND NO.5 AS PER WHICH IT WAS THE CLAIM OF THE ASSESSEE THAT FOR THE PURPOSE OF CALCULATING THE APPLICATION OF FUNDS U/S 11 THE ASSESSING OFFICER WAS NOT JUSTIFIED IN IGNORING THE AMOUNT OF REPAYMENT OF LOAN DURING THE . I.T.A. NO2034/DEL/09 4/6 PRESENT YEAR WHICH SHOULD BE ALLOWED AS APPLICATION OF INCOME VIDE CIRCULAR NO.100 DATED 24.1.1973. IN SPITE OF THIS SPECIFIC G ROUND LD CIT(A) HAS DECIDED THIS ISSUE AGAINST THE ASSESSEE ON THE BASIS THAT T HE ASSESSEE HAS FAILED TO FILE FORM NO.10. FORM NO.10 IS WITH REGARD TO EXCESS ACC UMULATION OF INCOME AND NOT FOR APPLICATION OF INCOME BY WAY OF REPAYMENT O F LOANS. WE FEEL THAT LD CIT(A) SHOULD HAVE DECIDED THIS ISSUE IN THE LIGHT OF THIS BOARDS CIRCULAR CITED BY THE ASSESSEE AFTER EXAMINING NECESSARY EVIDENCE AS TO W HETHER ANY REPAYMENT OF LOAN WAS MADE BY THE ASSESSEE IN THE PRESENT YEAR A ND WHETHER SUCH LOAN WAS TAKEN BY THE ASSESSEE TO FULFILL ONE OF THE OBJECTS OF THE TRUST. WE THEREFORE FEEL THAT THIS MATTER SHOULD GO BACK TO THE FILE OF THE LD CIT(A) FOR A FRESH DECISION AFTER EXAMINING THIS ASPECT OF THE MATTER AND NECES SARY FACTS. LD CIT(A) SHOULD ALSO CONSIDER VARIOUS JUDGMENTS CITED BY THE ASSESS EE BEFORE US AND AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BO TH SIDES LD CIT(A) SHOULD DECIDE THIS ISSUE AFRESH AS PER ABOVE DISCUSSION. W E ORDER ACCORDINGLY AND RESTORE THIS MATTER BACK TO THE FILE OF THE LD CIT( A) FOR A FRESH DECISION. 8. REGARDING GROUND NO.3 WE FIND THAT FOR ALLOWABI LITY OF INTEREST OF LOAN ALSO IT HAS TO BE SEEN AS TO WHETHER SUCH LOANS WERE OBT AINED TO FULFILL AN OBJECT OF THE TRUST. THIS ASPECT IS NOT EXAMINED BY THE AUTHORITI ES BELOW. AS PER THE ASSESSEE SUCH INTEREST PAYMENT ON THESE VERY LOANS WAS ALLOW ED IN ASSESSMENT YEAR 2003-04 AND IN THAT YEAR THE ASSESSMENT ORDER WAS P ASSED U/.S 143(3) AS PER CHART AVAILABLE ON PAGE NO.63 OF THE PAPER BOOK WHE REIN IT IS STATED THAT ASSESSMENT ORDER U/S 143(3) IS AVAILABLE ON PAGES 4 4-47 OF THE PAPER BOOK BUT IN FACT ON THESE PAGES OF PAPER BOOK THERE ARE CERTAI N LIST OF UN-SECURED LOANS AS ON 31.3.2003 AND COPY OF ASSESSMENT ORDER IS NOT AV AILABLE HENCE WE FEEL THAT THIS MATTER SHOULD ALSO GO BACK TO THE FILE OF THE LD CIT(A) FOR A FRESH DECISION AFTER EXAMINING THIS ASPECT AS TO WHETHER THE INTER EST WAS PAID ON THOSE LOANS WHICH WERE OBTAINED FOR THE PURPOSE OF FULFILLMENT OF ONE OF THE OBJECTS OF THE TRUST. WE THEREFORE SET ASIDE THE ORDER OF THE LD CIT(A) ON THIS ISSUE ALSO ARE AND RESTORE THIS MATTER BACK TO HIS FILE FOR A FRES H DECISION AS PER ABOVE DISCUSSION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. . I.T.A. NO2034/DEL/09 5/6 9. REGARDING GROUND NO.4 OF THE APPEAL IT WAS SUBM ITTED BY THE LD AR OF THE ASSESSEE THAT THIS ISSUE HAS BEEN DECIDED BY LD CIT(A) IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2003-04 AND HIS DECISION I N THAT YEAR HAS BECOME FINAL BECAUSE THE REVENUE HAS NOT FILED ANY APPEAL IN THA T YEAR. IT WAS SUBMITTED BY THE LD DR OF THE REVENUE THAT THIS ASPECT CANNOT BE READILY ASCERTAINED AS TO WHETHER THE REVENUE HAS FILED ANY APPEAL OR NOT AND HENCE WE FEEL THAT THIS MATTER SHOULD ALSO GO BACK TO THE FILE OF THE LD CI T(A) FOR A FRESH DECISION AFTER VERIFYING AS TO WHETHER ANY APPEAL WAS FILED BY THE REVENUE FOR ASSESSMENT YEAR 2003-04 BECAUSE IN THAT YEAR THIS ASPECT OF THE MA TTER WAS DECIDED BY LD CIT(A) IN FAVOUR OF THE ASSESSEE. WE THEREFORE SET ASIDE THE ORDER OF THE LD CIT(A) ON THIS ISSUE ALSO AND RESTORE THIS MATTER BACK TO HIS FILE FOR A FRESH DECISION AFTER EXAMINING THE FACTS AS TO WHETHER ANY APPEAL WAS FI LED BY THE REVENUE IN THAT YEAR AGAINST THE ORDER OF LD CIT(A) IN ASSESSMENT Y EAR 2003-04 AND AS TO WHETHER THE FACTS IN THE PRESENT CASE ARE SIMILAR T O FACTS IN THAT YEAR. LD CIT(A) SHOULD DECIDE THIS ASPECT AFRESH AS PER ABOVE DISCU SSION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 10. REGARDING GROUND NO.5 WE FIND THAT THE ISSUE R EGARDING LEVY OF INTEREST IS CONSEQUENTIAL IN NATURE AND NO SEPARATE DECISION IS REQUIRED. 11. IN THE RESULT THE APPEAL OF THE ASSESSEE STAND S ALLOWED FOR STATISTICAL PURPOSES. 12. ORDER PRONOUNCED IN THE OPEN COURT ON 8TH JANUARY 2010. SD/- SD/- (R.P. TOLANI) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 8.1.2010. HMS . I.T.A. NO2034/DEL/09 6/6 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)- NEW DELHI. 5. THE DR ITAT LOKNAYAK BHAWAN KHAN MARKET NEW DELHI. TRUE COPY. BY ORDER (ITAT NEW DELHI).