DDIT (E), New Delhi v. Indian Oil Foundation, New Delhi

ITA 2156/DEL/2013 | 2004-2005
Pronouncement Date: 04-04-2014 | Result: Dismissed

Appeal Details

RSA Number 215620114 RSA 2013
Assessee PAN AAATI2737A
Bench Delhi
Appeal Number ITA 2156/DEL/2013
Duration Of Justice 11 month(s) 22 day(s)
Appellant DDIT (E), New Delhi
Respondent Indian Oil Foundation, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 04-04-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 04-04-2014
Date Of Final Hearing 12-03-2014
Next Hearing Date 12-03-2014
Assessment Year 2004-2005
Appeal Filed On 12-04-2013
Judgment Text
INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C : NEW DELHI BEFORE SHRI B.C. MEE N A ACCOUNTANT MEMBER AND SHRI A. T. VARKEY JUDICIAL MEMBER ITA NO. 2156 /DEL/ 2013 (ASSESSMENT YEAR: 2004 - 05 ) DDIT(E) TRUST CIRCLE - IV NEW DELHI VS. INDIAN OIL FOUNDATION SCOPE COMPLEX 7 - INDUSTRIAL AREA CIRCLE - II LODHI ROAD NEW DELHI PAN: AAATI2737A (APPELLANT) (RESPONDENT) APPELLANT BY : SATPAL SINGH SR. DR RESPONDENT BY : RAJIV JAIN CA O R D E R PER A. T. VARKEY JUDICIAL MEMBER THIS IS AN APPEAL PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD CIT(A) - XXI NEW DELHI DATED 24.01.2013 FOR THE ASSESSMENT YEAR 2004 - 05 . 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) HAS ERRED IN IGNORING THAT TO CLAIM THE DEDUCTION U/S 10(23C(IV) OF THE INCOME TAX ACT 1961 THE ASSESSEE HAS TO FILE AUDIT REPORT IN FORM NO. 10BB WHEREIN IN THIS CASE THE ASSE SSEE FAILED TO FILE AUDIT REPORT IN FORM NO. 10BB ALONG WITH THE RETURN OF INCOME OR DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) HAS ERRED IN IGNORING THAT MERELY NOTIFICATIO N U/S 10(23C)(IV) OF THE ACT DOES NOT CONFORM ANY RIGHT OF EXEMPTION UPON THE ASSESSEE. IT ALSO HAS TO SATISFY THE CONDITIONS LAID DOWN BY THE PROVISIONS OF SECTION 10(23C) OF THE ACT AND IN THIS CASE THE ASSESSEE DID NOT SATISFY THE CONDITION OF FILING A UDIT REPORT IN FORM NO. 10BB AND MENTIONING THEREIN DETAILS OF ACCUMULATION/ SETTING APART OF INCOME EXCEEDING 15% OF INCOME OF THE YEAR NOT UTILIZED DURING THE YEAR IN ACCORDANCE TO THE CLAUSE (A) OF THIRD PROVISO TO SECTION 10(23C) OF THE INCOME TAX AC T 1961. 3. AT THE VERY OUTSET LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS REGISTERED U/S 12A OF THE ACT SUBSEQUENT TO ITS APPLICATION IN FORM NO. 56 FOR GRANT OF EXEMPTION U/S 10(23)(IV) OF THE ACT SUBMITTED ON 12.01.2004 FOR ASSESSMENT YEAR 2004 - 05 TO ASSESSMENT YEAR 2006 - 07 FILED ITS RETURN OF INCOME CLAIMING EXEMPTION WHICH WAS ULTIMATELY GRANTED ON 28.02.2012 . THOUGH THE COPY OF THE SAID EXEMPTION WAS FILED PAGE NO. 2 BEFORE THE LD CIT(A) HE UPHELD THE ORDER OF THE ASSESSING OFFICER WHO APPLIE D PROVISIONS OF SECTION 11 TO THE CASE OF THE ASSESSEE TRUST. 4. AGGRIEVED BY THE SAID ORDER OF THE LD CIT(A) THE ASSESSEE HAD PREFERRED AN APPEAL BEFORE THIS TRIBUNAL AND THIS TRIBUNAL VIDE ORDER DATED 10.10.2012 HAD RESTORED THE MATTER BACK TO THE FILE OF THE CIT(A) TO CONSIDER THE ISSUE DE - NOVO. AS PER SAID DIRECTION OF THE TRIBUNAL THE LD CIT(A) HAS PASSED THE IMPUGNED ORDER ALLOWING THE APPEAL OF THE ASSESSEE; AND AGGRIEVED BY THIS ORDER THE REVENUE IS BEFOR E US. WE FIND FROM A PERUSAL OF THE IM PUGNED ORDER THAT THE LD CIT(A) HAS REPRODUCED THE REMAND REPORT DATED 04.01.2013 OF THE ASSESSING OFFICER AS UNDER: - THE ASSESSEES MAIN CONTENTION IN ITS WRITTEN SUBMISSIONS IS THAT SINCE IT HAS BEEN NOTIFIED U/S 10(23C)(IV) OF THE IT ACT BY THE DGIT(E) NEW DELHI VIDE DATED 28.02.2012 FOR ASSESSMENT YEAR 2004 - 05 TO 2006 - 07. FORM NO. 10 READ WITH RULE 17 OF THE INCOME TAX RULES 1962 IS NOT REQUIRED FOR CLAIMING EXEMPTION U/S 10(23C)(IV) OF THE INCOME TAX ACT. IT FI LED SUCH FORM NO. 10 DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS AN ABUNDANT PRECAUTION AND IS NOT RELEVANT AFTER ORDER OF EXEMPTION UNDER SECTION 10(23C)(IV) OF THE INCOME TAX ACT 1961. THE ASSESSEES CONTENTION IS CORRECT AND IS IN ACCORDANCE TO THE PROVISIONS OF INCOME TAX ACT 1961. AS THE ASSESSEE HAS BEEN NOTIFIED UNDER SECTION 10(23C)(IV) OF THE INCOME TAX ACT BY THE DGIT(E) NEW DELHI VIDE ORDER DATED 28.02.2012 FOR ASSESSMENT YEAR 2004 - 05 IT IS ELIGIBLE FOR EXEMPTION UNDER SECTION 10(23C)(IV) OF THE ACT AND THERE IS NO REQUIREMENT TO FILE FORM NO. 10 FOR CLAIMING EXEMPTION UNDER SECTION 10(23C)(IV) OF THE INCOME TAX ACT. SUBMITTED FOR KIND CONSIDERATION. 5. THE MAIN GRIEVANCE OF THE DDIT(EXEMPTION) IS THAT THE ASSESSEE HAS NOT FILED AUDIT REPORT IN FORM NO. 10BB WHEREIN THE ASSESSEE FAILED TO FILE AUDIT REPORT IN FORM NO. 10BB ALONG WITH THE RETURN OF INCOME AND THEREBY THE TRUST HAS NOT MENTIONED THE DETAILS OF ACCUMULATION/ SETTING APART OF INCOME EXCEEDING 15% OF INCOME OF THE YEAR N OT UTILIZED DURING THE YEAR IN ACCORDANCE TO THE CLAUSE (A) OF THIRD PROVISO TO SECTION 10(23C) OF THE ACT . 6. AT THE OUTSET ITSELF THE LD COUNSEL FOR THE ASSESSEE HAS TAKEN OUR ATTENTION TO THE TAXATION LAWS (AMENDMENT) ACT 2006 TO POINT OUT THAT THE RE QUIREMENT OF GETTING THE ACCOUNTS AUDITED AND FURNISHING OF AUDIT REPORT BY FUND OR TRUST OR UNIVERSITY OR OTHER EDUCATION INSTITUTION OR HOSPITAL OR OTHER MEDICAL INSTITUTION REFERRED TO IN SUB - CAUSE (IV) (V) (VI) OR VIA) OF CLAUSE (23C) OF SECTION 10 W ERE APPLICABLE ONLY FROM ASSESSMENT YEAR 2006 - 07 ONWARDS . BY TAXATION LAWS (AMENDMENT) ACT 2006 A NEW TENTH PROVISO HAS BEEN INSERTED IN SECTION 10(23C) WHICH PROVIDES THAT IF THE TOTAL INCOME OF ANY ENTITY REFERRED TO IN SUB - CLAUSES (IV) (V) (VI) AND (VIA) OF SECTION 10(23C) WITHOUT GIVING EFFECT THE PROVISIONS OF THE SAID SUB - CLAUSES EXCEEDS THE MAXIMUM AMOUNT NOT CHARGEABLE TO TAX IN ANY PREVIOUS YEAR IT SHALL GET ITS ACCOUNTS AUDITED IN RESPECT OF THAT YEAR BY PAGE NO. 3 AN ACCOUNTANT AS DEFINED IN THE EXPL ANATION BELOW SUB - SECTION 2 OF SECTION 288 AND SHALL FURNISH SUCH AUDIT REPORT ALONG WITH THE RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR. THE REPORT MUST BE IN THE PRESCRIBED FORM DULY SIGNED AND VERIFIED BY THE ACCOUNTANT AND SETTING FORTH SUCH PAR TICULARS AS MAY BE PRESCRIBED . AND SAID THE PRESCRIBED FORM NO. 10BB HAS BEEN NOTIFIED VIDE NOTIFICATION DATED 25.07.2006. ADMITTEDLY THE RELEVANT ASSESSMENT YEAR FOR CONSIDERATION BEFORE US IS 2004 - 05 SO THE QUESTION OF FILING THE AUDIT REPORT IN THE FORM NO. 10BB WHICH WAS INSERTED BY A NOTIFICATION SO.1176( E ) DATED 25.07.2006 DOES NOT ARISE. IT IS WELL SETTLED THAT LAW LOOKS FORWARD AND NOT BACK WARD. WE DO NOT FIND ANY RETROSPECTIVE OPERATION MENTIONED IN THE TENTH PROVISO INSERTED TO SECTION 10(23C) BY THE TAXATION LAWS (AMENDMENT) ACT 2006 AND IS APPLICABLE FOR ASSESSMENT YEAR 2006 - 07 ONWARDS. MOREOVER THE CIRCULAR NO. 1/2007 DATED 27.04.2007 WHICH IS THE EXPLANATORY NOTES ON THE AMENDMENT CLARIFIES THAT THE REQUIREMENT OF ACCOUNTS AUDITED BY AN ACCOUNTANT DEFINED IN EXPLANATION TO SUB - SECTION (2) OF SECTION 288 IN FORM NO. 10BB WHICH WAS NOTIFIED ON 25.07.2006 IS APPLICABLE ONLY FOR ASSESSMENT YEAR 2006 - 07 ONWARDS. SO INSISTING ON THE AUDITED ACCOUNT S IN FORM 10BB IN THE ABSENCE OF A REQUIREMENT TO THAT EFFECT FOR THE ASSESSMENT YEAR IN QUESTION IS NOT WARRANTED BY LAW AND CAN BE TERMED AS AN ILLEGAL REQUIREMENT OR ILLEGAL DEMAND ON THE PART OF THE DEPARTMENT. THEREFORE WE FIND NO LEGAL INFIRMITY IN T HE ORDER PASSED BY THE LD CIT(A) FOR THE RELEVANT ASSESSMENT YEAR AND THEREFORE WE DISMISS THE APPEAL OF THE REVENUE. 7 . IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04 . 04 .2014. - SD/ - - SD/ - ( B.C. MEETA ) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 04 / 04 / 2014 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT NEW DELHI