The Dy.C.I.T., Agra v. Holy Nursery School Shiksha Samiti, Agra

ITA 214/AGR/2010 | 2005-2006
Pronouncement Date: 22-11-2011 | Result: Dismissed

Appeal Details

RSA Number 21420314 RSA 2010
Assessee PAN AAATH2149D
Bench Agra
Appeal Number ITA 214/AGR/2010
Duration Of Justice 1 year(s) 5 month(s) 24 day(s)
Appellant The Dy.C.I.T., Agra
Respondent Holy Nursery School Shiksha Samiti, Agra
Appeal Type Income Tax Appeal
Pronouncement Date 22-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 22-11-2011
Date Of Final Hearing 17-11-2011
Next Hearing Date 17-11-2011
Assessment Year 2005-2006
Appeal Filed On 28-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI H.S. SIDHU JUDICIAL MEMBER AND SHRI B.P. JAIN ACCOUNTANT MEMBER ITA NO. 214 215 & 217/AGRA/2010 ASSTT. YEAR : 2005-06 2004-05 & 2003-04 D.C.I.T. CENTRAL CIRCLE VS. HOLY NURSERY SCHO OL SHIKSHA SAMITI AGRA. 1/145 BABU GULAB RAI MARG DELHI GATE AGRA. (PAN : AAATH 2149 D) (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI A.K. SHARMA JR. D.R. FOR RESPONDENT : SHRI MRADUL PATHAK C.A. DATE OF HEARING : 17.11.2011 DATE OF PRONOUNCEMENT : 22.11.2011 ORDER PER BENCH: THE REVENUE HAS FILED THE PRESENT APPEALS AGAINST THE IMPUGNED ORDERS DATED 08.03.2010 FOR A.Y. 2005-06 AND 2004-05 AND THE IMPUGNED ORDER DAT ED 31.03.2010 FOR A.Y. 2003-04. SINCE THE COMMON ISSUES ARE INVOLVED IN ALL THESE THREE APPEA LS THEREFORE THESE APPEALS ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER. THE GROUNDS RAISED IN A LL THESE APPEALS ARE ALSO IDENTICAL BARRING THE AMOUNTS OF ADDITIONS. WE THEREFORE REPRODUCE THE GROUNDS RAISED IN ITA NO. 214/AGRA/2010 FOR A.Y. 2005-06 FOR THE SAKE OF CONVENIENCE AND TO AVO ID REPETITION : 1. THAT THE CIT(A) ERRED IN LAW IN DIRECTING THAT THE ASSESSEE WOULD BE ELIGIBLE FOR EXEMPTION U/S. 11 & 12 JUST BECAUSE EXEMPTION U/S. 12A WAS GRANTED SUBSEQUENTLY WITH RETROSPECTIVE EFFECT. 2. THAT IN DOING SO THE CIT(A) FAILED TO APPRECIATE THAT GRANT OF REGISTRATION U/S. 12A IS A NECESSARY BUT NOT SUFFICIENT CONDITION FOR ELIGIBIL ITY OF EXEMPTION U/S. 11 & 12. 3. THAT THE ORDER OF THE LD. CIT(A) BEING ERRONEOUS IN LAW AND ON FACTS BE VACATED AND THE ORDER OF THE A.O. BE RESTORED. 2 2. THE FACTS RELATING TO THE ISSUE AS NARRATED IN T HE ASSESSMENT ORDERS ARE THAT THE DEPARTMENT TOOK ACTION U/S. 132(1) OF THE INCOME-TAX ACT AT TH E RESIDENCE OF SHRI SANJAY TOMAR ON 16.09.2004. SUBSEQUENTLY A NOTICE DATED 14.11.2006 WAS ISSUED U/S. 153A READ WITH SECTION 153C FOR THE ASSESSMENT YEARS 1999-2000 TO 2004-05. THE ASSESSIN G OFFICER ALSO ISSUED NOTICE U/S. 143(2)/142(1) OF THE ACT REQUIRING THE ASSESSEE TO FILE THE DETAI LS MENTIONED IN THE NOTICE. IN RESPONSE TO THE SAME THE AR OF THE ASSESSEE APPEARED AND DISCUSSED THE M ATTER WITH THE ASSESSING OFFICER. THE ASSESSING OFFICER ALSO ASKED THE ASSESSEE TO CLARIFY ITS POSI TION U/S. 12A AS WELL AS SECTION 10(23C)(VI). THE ASSESSING OFFICER ALSO ASKED THE ASSESSEE TO CLARIF Y THAT THE SCHOOLS RUN BY THE SOCIETY IS FOR CHARITABLE PURPOSE AS WELL AS THE RECEIPTS AND EXPE NDITURE AS PER CHART OF RECEIPTS OF HOLY PUBLIC SCHOOL AGRA. THE ASSESSEE FILED ITS REPLY WITH DOC UMENTARY EVIDENCE. AFTER EXAMINING THE SAME THE ASSESSING OFFICER COMPLETED THE ASSESSMENT BY MAKIN G VARIOUS ADDITIONS AND DENIAL OF EXEMPTION U/S. 11 & 12. AGGRIEVED BY THE SAME THE ASSESSEE F ILED AN APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO VIDE THE IMPUGNED ORDER ALLOWED THE APPEALS OF THE ASSESSEE AND DELETED THE ADDITION IN DISPUTE. NOW THE REVENUE HAS FILED THE PRESENT A PPEALS AGAINST THE DIFFERENT IMPUGNED ORDERS. 3. AT THE TIME OF HEARING THE LD. DR RELIED UPON T HE ORDERS PASSED BY THE ASSESSING OFFICER. ON THE CONTRARY THE LD. COUNSEL FOR THE ASSESSEE RELI ED UPON THE ORDER OF THE LD FIRST APPELLATE AUTHORI TY STATING THAT THE ASSESSEE-SOCIETY EXISTS SOLELY FOR THE PURPOSE OF IMPARTING EDUCATION AND THE REGISTRATION U/S. 12A STOOD GRANTED BY THE CIT CEN TRAL KANPUR W.E.F. 01.04.2002. THE LD. AR FURTHER CONTENDED THAT O NCE THE CERTIFICATE U/S. 12A IS ISSUED THEN THE DEPARTMENT IS BO UND TO GIVE EFFECT TO THE SAME. RELIANCE IS PLACED ON THE FOLLOWING DECISIONS : 1) V.S. SRIVASTAVA EDUCATIONAL MEMORIAL SOCIETY VS. ASSTT. CIT ( 2004) 82 TTJ 471 (LUCKNOW). 2) CIT VS. OOTACMUND GYMKHANA CLUB (1977) 110 ITR 392 (MAD.) 3) ITO VS. MRS. DWARIKA PRASAD TRUST (1989) 30 1TD 84 (DEL .) (TM) 4) AUDIT BUREAU OF CIRCULATIONS VS. ADIT (1995) 55 ITD 408 (BOM.) 3 4. WE HAVE HEARD THE BOTH SIDES AND PERUSED THE REL EVANT RECORD BEFORE US ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORITIES. THE ONLY GRIEVAN CE OF THE REVENUE WHICH EMERGES OUT THE GROUNDS OF APPEALS IS GRANT OF EXEMPTION U/S. 11 A ND 12 OF THE INCOME-TAX ACT BY THE LD. FIRST APPELLATE AUTHORITY. A PERUSAL OF THE ASSESSMENT OR DER REVEALS THAT THE LD. ASSESSING OFFICER AFTER MAKING VARIOUS ADDITIONS ON ACCOUNT OF UNEXPLAINED EXPENSES AND UNDISCLOSED INVESTMENT IN THE SCHOOL BUILDINGS ALSO DECLINED TO GRANT EXEMPTION U/S. 11 AND 12 OF THE ACT. OBSERVING THAT THE ASSESSEE WAS NOT REGISTERED U/S. 12A AS ALSO THE AP PROVAL U/S. 10(23C)(VI) OF THE ACT AND THAT THE ASSESSEE-SOCIETY WAS EXISTING ONLY FOR THE PURPOSE OF IMPARTING EDUCATION DOES NOT STAND PROVED. HOWEVER WE FIND SUBSTANTIAL FORCE IN THE CONTENTIO N OF THE ASSESSEE THAT THERE IS NOTHING ON RECORD CONTRARY TO THE FACT THAT THE ASSESSEE-SOCIETY EXIS TS SOLELY FOR THE EDUCATIONAL PURPOSES AS IS ALSO EVIDENT FROM THE OBJECTS OF SOCIETY FILED BEFORE US . NO COGENT REASONS HAVE BEEN ASSIGNED BY THE LD. ASSESSING OFFICER WHICH PROMPTED HIM TO REACH THIS FINDING. AS REGARDS THE GRANT OF REGISTRATION U/S. 12A THE UNDISPUTED FACT IS THAT THE ASSESSEE FILED APPLICATION U/S. 12A BEFORE THE CIT ON 25.03.2003 WHICH WAS NOT DISPOSED OF WITHIN THE STIPULATED PER IOD OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE APPLICATION WAS RECEIVED. HOWEVER IT IS BORNE OUT ON RECORD THAT THE CIT(CENTRAL) KANPUR VIDE ORDER DATED 23.02.2010 AND CORRIGENDUM DATED 3 1.03.2010 HAS GRANTED THE REGISTRATION WITH RETROSPECTIVE EFFECT FROM 01.04.2002. THUS THE FAC T REMAINS THAT THE ASSESSEE WAS DULY REGISTERED U/S. 12A IN THE ASSESSMENT YEARS UNDER CONSIDERATIO N. COPY OF REGISTRATION CERTIFICATE WAS FILED BEFORE THE LD. CIT(A) ON THE STRENGTH OF WHICH HE APPEARS TO HAVE COMMITTED NO ERROR WHILE ACCEPTING THE CONTENTION OF ASSESSEE WITH RESPECT T O EXEMPTION U/S. 11 AND 12 OF THE ACT. 5. THE CONTENTION OF THE LD. ASSESSING OFFICER IS A LSO NOT FOUND SUPPORTED BY ANY EVIDENCE OR MATERIAL AND CONTRARY TO THE FACTS OF THE CASE FOR THE REASON THAT THE A.O. HAS NOT SPECIFICALLY BROUG HT ON RECORD ANY MATERIAL/EVIDENCE AS TO HOW HE HAS CO ME TO THE CONCLUSION THAT SOCIETY HAS PROVIDED 4 THE CAR TO THE OFFICE BEARERS OF THE SOCIETY. IF CA R IS USED BY THE OFFICE BEARERS FOR THE WORK OF THE SOCIETY THAN IT CANNOT BE TREATED AS VIOLATION OF T HE RELEVANT PROVISIONS OF THE ACT. THE AO ALSO FAIL ED TO POINT OUT ANY DEFECTS IN THE AUDITED BOOKS OF AC COUNTS. THE RECORD FURTHER SHOWS THAT THE ASSESSEE FURNISHED THE DETAILS OF SALARY TO OFFICE BEARERS O F THE SOCIETY. NO MATERIAL IS BROUGHT ON RECORD I N SUPPORT OF THE CONTENTION OF THE AO THAT SOCIETY HA S PAID HIGH SALARY TO ITS OFFICE BEARERS. IT IS FUR THER GATHERED FROM RECORD THAT THE SALARY PAID TO THE OF FICE BEARERS IS COMMENSURATE TO THEIR QUALIFICATIONS EXPERIENCE AND SERVICES RENDERED BY THEM. NO INSTANCE OF ANY VIOLATION OF SECTION 13(1) HAS BEEN BROUGHT ON RECORD BY THE AO. IN THE ABOVE FACTS AND LEGAL POSITION LD. CIT(A) HAS RIGHTLY HELD THAT IN VIEW OF THE REGISTRATION HAVIN G BEEN GRANTED U/S 12A THE APPELLANT IS FOUND ELIGIBLE FOR BENEFITS U/S 11 AND 12 OF THE ACT AND THEREFORE ORDER OF CIT(A) DESERVES TO BE UPHELD BY DISMISSING THE APPEALS FILED BY THE REVENUE 6. IN THE RESULT THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.11.2011. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22 ND NOVEMBER 2011 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT CONCERNED 5. DR ITAT AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY