DR. D.Y. PATIL EDUCATION SOCIETY, Kolhapur v. DCIT.Cent. Cir.., Kolhapur

ITA 301/PUN/2008 | 1999-2000
Pronouncement Date: 15-07-2013 | Result: Allowed

Appeal Details

RSA Number 30124514 RSA 2008
Assessee PAN AAATD8919M
Bench Pune
Appeal Number ITA 301/PUN/2008
Duration Of Justice 5 year(s) 4 month(s) 27 day(s)
Appellant DR. D.Y. PATIL EDUCATION SOCIETY, Kolhapur
Respondent DCIT.Cent. Cir.., Kolhapur
Appeal Type Income Tax Appeal
Pronouncement Date 15-07-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 15-07-2013
Date Of Final Hearing 29-11-2012
Next Hearing Date 29-11-2012
Assessment Year 1999-2000
Appeal Filed On 18-02-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI R.K.PANDA ACCOUNTANT MEMBER ITA NO. 301/PN/2008 (ASSESSMENT YEAR: 1999-2000) DY. D.Y. PATIL EDUCATION SOCIETY KASBA BAWDA KOLHAPUR PAN AAATD 8919 M APPELLANT VS. DY. CIT CENT. CIR. KOLHAPUR .. RESPONDENT APPELLANT BY: SHRI M.K. KULKARNI RESPONDENT BY: SMT. ANN KAPTHUAMA DATE OF HEARING : 03-07-2013 DATE OF ORDER : 15.07.2013 ORDER PER SHAILENDRA KUMAR YADAV JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(A) KOLHAPUR DATED 23-11-2007 FOR A.Y. 1999-2000 RAISING THE FOLLOWING GROUNDS:- 1. IN LAW AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE THE NOTICE U/S 148 R.W.S. 147 OF T HE ACT WAS ISSUED MECHANICALLY AND WITHOUT ANY APPLICATION OF MIND AND ALSO WITHOUT BRINGING ON RECORD THE ESCAPEMENT OF I NCOME. IT WAS A STEREOTYPED NOTICE WHICH WAS CLEARLY ISSUED W ITHOUT ANY BASIS AND THE ASSESSMENT THUS COMPLETED ON THE BASI S OF SUCH NOTICE IS BAD IN LAW. 2. IN LAW AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE THE HONBLE CIT(A) HAD ERRED IN R EJECTING THE APPELLANTS ARGUMENT THAT THE APPELLANT WAS GRANTED REGISTRATION U/S 12A AND CONFIRMING THE STATUS OF T HE APPELLANT AS AOP FOR THE PURPOSE OF ITS ASSESSMENT. THE HONBLE CIT(A) SHOULD HAVE TAKEN INTO COGNIZANCE TH E EVIDENCE SUBMITTED DURING THE COURSE OF ASSESSMENT PROCEEDIN GS FOR REGISTRATION U/S 12A. FURTHER THE HONBLE CIT(A) SHOULD HAVE GIVEN DUE WEIGHTAGE TO THE FACT THAT THERE IS A LAP SE OF NEARLY 20 YEARS SINCE THE REGISTRATION BEEN MADE AND THE A PPELLANT TRUST IS OPERATING IN THE FIELD OF IMPARTING EDUCAT ION AND IS ONE OF THE PRIME INSTITUTION OF THE COUNTRY BEING SO T HE TRUST HAD NEVER FILED ANY RETURN OF INCOME FOR EARLIER YEARS IN THE BONAFIDE BELIEF THAT THE INCOME OF THE TRUST IS EXE MPT U/S 11 AND 12. ALSO ON THE OTHER HAND THE INCOME-TAX DEPA RTMENT HAD NEVER QUESTIONED ABOUT THE STATUS OF THE TRUST IN PAST YEARS. THE APPELLANT HAS PROVIDED SUFFICIENT PROOF THAT IT HAD BEEN REGISTERED AS A TRUST U/S 12A AND ITS INCOME I S THEREFORE ELIGIBLE FOR EXEMPTION U/S 11 AND 12 OF THE ACT. T HE INCOME OF THE ASSESSEE SHOULD BE THEREFORE DIRECTED TO BE AS SESSED AND ACCORDINGLY EXEMPTION FROM TAX U/S 11 AND 12 MUST B E GRANTED. 3. THE HONBLE CIT(A) SHOULD HAVE CONSIDERED THE APPELLANTS CLAIM FOR EXEMPTION U/S 10(23C) POSITIV ELY AS THE APPELLANT IS RUNNING VARIOUS EDUCATION INSTITUTIONS SINCE LAST THREE DECADES WITHOUT ANY PROFIT MOTIVE AND HENCE PROCEDURAL LAPSE OF NOT MAKING AN APPLICATION AS STIPULATED IN THAT VERY SECTION SHOULD BE CONDONED/VIEWED LIBERALLY. 4. THE HONBLE CIT(A) HAD ERRED IN LAW AND ON THE F ACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE IN CONCLUDING THE APPELLANTS CLAIM OF DEPRECIATION ON ACTUAL COST AS NOT MAINTAINABLE AND SUGGESTING THE ALTERNATIVE COURSE OF ACTION SPECIFICALLY IN LIGHT OF THE FACTS THAT THE RECTIFI CATION APPLICATION FOR ALLOWING DEPRECIATION ON THE ACTUAL COST OF THE ASSETS TO THE LD. A.O HAD BEEN REJECTED AND AN APPE AL AGAINST THE ACTION OF THE AO LIES BEFORE THE HONBLE CIT(A) HIMSELF. THUS IN LAW THE APPELLANT MUST BE GRANTED THE DEPR ECIATION ON ITS ACTUAL COST (I.E. ORIGINAL COST AS NO DEPREC IATION WAS EVER ALLOWED TO THE APPELLANT) INSTEAD OF ALLOWING THE B OOK DEPRECIATION WHICH HAS BEEN WORKED OUT ON THE BASIS OF W.D.V. OF THE ASSET. 2. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT PRESS GROUNDS NO. 1 TO 3 HENCE THE SAME ARE R EJECTED AS NOT PRESSED. THE ASSESSEE HAD CLAIMED DEPRECIATION ON T HE BASIS OF WDV. THE OPENING WDV WAS TAKEN AS THE CLOSING WDV OF THE EARLIER YEAR AND DEPRECIATION CLAIMED UNDER THE ACT ON THE ABOVE WDV WAS ADJUSTED FOR ADDITION/DELETION OF ASSETS DU RING THE YEAR. THE ASSESSEE WAS GRANTED DEPRECIATION BY THE ASSESS ING OFFICER WHICH IS EVIDENT FROM THE COMPUTATION OF INCOME. T HE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT AT THE ADVI CE OF THE CONCERNED COMMISSIONER THE ASSESSEE HAS MOVED AN A PPLICATION UNDER SECTION 154 OF THE ACT ON THE ISSUE AT HAND. HOWEVER THE ASSESSING OFFICER DECIDED THE ISSUE AGAINST THE ASS ESSEE AND IN 154 PROCEEDINGS THE ASSESSEE HAS MOVED AN APPLICATION BEFORE THE CONCERNED COMMISSIONER WHICH IS SUB-JUDICE. TO SUM UP THE ISSUE AT HAND WHICH IS ALSO SUB-JUDICE BEFORE THE CIT(A) OUT OF 154 PROCEEDINGS BOTH THE PARTIES AGREED TO SET ASIDE THE MATTER TO THE CIT(A) SO THAT PROPER LEGAL VIEW MAY BE TAKEN ON TH E ISSUE BY THE CONCERNED CIT(A). IN VIEW OF THE ABOVE WE RESTOR E THIS MATTER TO THE FILE OF THE CIT(A) WITH A DIRECTION TO DECIDE T HE SAME AS PER FACT AND LAW AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. SINCE WE ARE DISPOSING OF THE APPEAL ON T ECHNICAL GROUNDS WE ARE REFRAINING TO COMMENT UPON THE MERITS OF THE ISSUE. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 15 TH JULY 2013 SD/- SD/- (R.K.PANDA) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED: 15 TH JULY 2013 ANKAM COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT(A- KOLHAPUR 4) THE CIT- KOLHAPUR 5) THE DR A BENCH I.T.A.T. PUNE. 6) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY I.T.A.T. PUNE