ITO (E) 2(1), MUMBAI v. MATOSHRI ARTS & SPORTS TRUST, MUMBAI

ITA 333/MUM/2016 | 2011-2012
Pronouncement Date: 08-11-2017 | Result: Dismissed

Appeal Details

RSA Number 33319914 RSA 2016
Assessee PAN AAATM2559G
Bench Mumbai
Appeal Number ITA 333/MUM/2016
Duration Of Justice 1 year(s) 9 month(s) 18 day(s)
Appellant ITO (E) 2(1), MUMBAI
Respondent MATOSHRI ARTS & SPORTS TRUST, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 08-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted Not Allotted
Tribunal Order Date 08-11-2017
Assessment Year 2011-2012
Appeal Filed On 21-01-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH MUMBAI BEFORE SHRI G.S. PANNU ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO.333/MUM/2016 (ASSESSMENT YEAR: 2011-12) INCOME TAX OFFICER - (E)2(1) VS. MATOSHRI ARTS & SPORTS TR UST ROOM NO . 512 PIRAMAL CHAMBERS LAL BAUG PAREL MUMBAI 400012 MEENATAI THAKERACY GROUND JOGESHWRI VIKHROLI LINK ROAD ANDHRI (E) MUMBAI 400093 PAN AAATM2559G APPELLANT RESPONDENT APPELLANT BY: SHRI SUMAN KUMAR RESPONDENT BY: NONE DATE OF HEARING: 08.11.2017 DATE OF PRONOUNCEMENT: 08.11.2017 O R D E R PER PAWAN SINGH J.M. THIS APPEAL BY THE REVENUE UNDER SECTION 253 OF THE INCOME TAX ACT IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-1 MUMB AI DATED 18.11.2015 FOR A.Y. 2011-12. 2. THOUGH THE REVENUE HAS RAISED AS MANY AS THREE GRO UNDS OF APPEAL HOWEVER AS PER OUR VIEW THE SOLITARY GROUND RAISED BY REVENUE RELATES TO ALLOWING OF EXEMPTION UNDER SECTION 11 OF THE INCOM E TAX ACT. 3. THIS APPEAL WAS LISTED ON 07.11.2017 AS NONE APPEA RED ON BEHALF OF THE ASSESSEE HENCE THE CASE WAS RE-FIXED ON 08.11 .2017. EVEN TODAY NONE APPEARED ON BEHALF OF ASSESSEE DESPITE REPEATED CAL L. AT THE OUTSET OF HEARING THE LEARNED D.R. FAIRLY SUBMITS THAT THE GR OUND OF APPEAL RAISED BY REVENUE IS COVERED IN FAVOUR OF THE ASSESSEE IN ASS ESSEES OWN CASE FOR ASSESSMENT YEARS 2008-09 AND 2009-10. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED D.R. AND ALSO PERUSED THE RECORD. WE HAVE NOTED THAT SIMILAR DISA LLOWANCE WAS MADE FOR ITA NO.333 /MUM/2016 MATOSHRI ARTS & SPORTS TRUST 2 ASSESSMENT YEARS 2008-09 AND 2009-10 BY THE AO AND ON APPEAL THE SAME WAS ALLOWED BY THE LEARNED CIT(A). THE REVENUE FILE D AN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL BY FOLLOWING THE DECISION FOR A.Y. 2007-08 IN ITA NO. 8161/MUM/2010 DATED 19.10.2015 PASSED THE FOLLO WING ORDER: - 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE ABOVE WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION FROM THE AFORESAID O RDER DATED 19/10/2015 FOR READY REFERENCE:- THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 23/07/2010 OF THE LD. FIRST APPELLATE AUTHORITY MU MBAI. THE ONLY GROUND RAISED IN THIS APPEAL PERTAINS TO GRANT ING EXEMPTION U/S 11 OF THE INCOME TAX ACT 1961 (HEREI NAFTER THE ACT) WITHOUT APPRECIATING THE FACT THAT THE ASSESSE E IS NOT MAINTAINING SEPARATE BOOKS OF ACCOUNTS AS REQUIRED UNDER PROVISION OF SECTION 11(4A) OF THE ACT. 2. DURING HEARING OF THIS APPEAL THE LD. DR SHRI VIJAY KUMAR SONI ADVANCED ARGUMENTS WHICH ARE IDENTICAL TO TH E GROUND RAISED BY CONTENDING THAT THE ASSESSEE IS NOT MAINT AINING THE SEPARATE BOOKS OF ACCOUNTS AND THE ASSESSEE HAS VIO LATED TERMS AND CONDITIONS OF TRUST DEED THUS NOT ELIGI BLE FOR EXEMPTION U/S 11 OF THE ACT. 2.1. ON THE OTHER HAND THE LD. COUNSEL FOR THE ASS ESSEE SHRI K. GOPAL DEFENDED THE CONCLUSION ARRIVED AT IN THE IM PUGNED ORDER. THE ASSESSEE HAS ALSO FILED PAPER BOOK RUNNI NG INTO 54 PAGES WHICH IS KEPT ON RECORD. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A CHARITABLE TRUST REGISTERED WITH THE CHARITY COMMISSIONER AND ALSO WITH THE DEPARTMENT U/S 12A O F THE INCOME TAX ACT. IT IS NOTED THAT RIGHT FROM THE DAT E OF INCEPTION ITSELF THE ASSESSEE TRUST HAD BEEN ASSESSED ACCORD INGLY UP TO A.Y. 2006-07. THE MAIN ACTIVITY OF THE ASSESSEE TRU ST ARE FOR THE DEVELOPMENT OF ARTS & SPORTS AND IS STILL CONTINUIN G. THE ASSESSEE CONSTRUCTED A CLUB ON THE LAND PROVIDED BY BMC IN TERMS OF THE AGREEMENT. THE OWNERSHIP OF THE LAND W AS WITH THE BMC AND THE STRUCTURE CONSTRUCTED THEREUPON WAS TO BE HANDED OVER TO THE BMC AS PER TERMS OF THE AGREEMEN T BUT THE ASSESSEE WAS TO CARRY ON AND CONTINUE THE SUPPORTS ACTIVITIES ON THE LAND/PROPERTY AS PER THE TRUST DEED. AT THE RELEVANT TIME THE ASSESSEE DECLARED LOSS OF RS.46 22 140/-. THE A SSESSING OFFICER ASSESSED THE INCOME OF THE ASSESSEE TRUST A T RS.13 07 205/- DISALLOWING THE STATUS OF THE ASSES SEE AS A TRUST AND TREATED THE SAME AS AOP BROADLY ON THE BA SIS THAT ITA NO.333 /MUM/2016 MATOSHRI ARTS & SPORTS TRUST 3 THE PROPERTY WHICH IS IN DISPUTE WITH THE BMC AUTHO RITIES THE ASSESSEE IS DOING BUSINESS ACTIVITIES. WHILE COMING TO THIS CONCLUSION THE ASSESSING OFFICER RELIED UPON THE D ECISION IN THE CASE OF SIND COOPERATIVE HOUSING SOCIETY VS ITO. TH E STAND OF THE ASSESSEE IS THAT WHILE DECIDING THE ISSUE THE LD. ASSESSING OFFICER COMPLETELY IGNORED THE DECISION FROM HONBL E APEX COURT IN THANTHI TRUST 247 ITR 785. 2.3. IF THE OBSERVATION MADE IN THE ASSESSMENT ORDE R LEADING TO ADDITION MADE TO THE TOTAL INCOME CONCLUSION DRAWN IN THE IMPUGNED ORDER MATERIAL AVAILABLE ON RECORD ASSER TIONS MADE BY THE LD. RESPECTIVE COUNSEL IF KEPT IN JUXTAPOSI TION AND ANALYZED THERE IS NO DISPUTE TO THE FACT THAT SPOR TS ACTIVITIES ARE CARRIED OUT BY THE ASSESSEE AND EVEN CERTIFICAT E U/S 80G WAS GRANTED TO THE ASSESSEE BY THE DEPARTMENT. THE ASSESSEE RECEIVED DONATIONS FROM DIFFERENT DONORS WHO CONFI RMED OF MAKING THE DONATIONS. THE MAIN GRIEVANCE OF THE ASS ESSING OFFICER IS THAT IN VIEW OF SECTION 11(4A) OF THE AC T THE ASSESSEE TRUST IS NOT MAINTAINING SEPARATE BOOKS OF ACCOUNTS OF ITS ACTIVITIES THEREFORE HE TERMED THE ASSESSEE TRUST AS AOP AND ASSESSED THE INCOME AS BUSINESS INCOME RESULTANTLY DENIED EXEMPTION U/S 11 OF THE ACT. THERE IS NO DISPUTE TH AT RIGHT FROM INCEPTION THE ASSESSEE TRUST WAS GRANTED EXEMPTION U/S 11 OF THE ACT BY THE TAX AUTHORITIES. EVEN IF THE PROPE RTY IS UNDER DISPUTE WITH THE BMC AUTHORITIES CANNOT BE THE SOL E BASES FOR DENYING EXEMPTION TO THE ASSESSEE. SO FAR AS NON-M AINTENANCE OF SEPARATE BOOKS OF ACCOUNTS FOR DIFFERENT SPORTS IS CONCERNED WE ARE IN AGREEMENT WITH THE FINDING OF THE LD. COM MISSIONER OF INCOME TAX (APPEALS) THAT DIFFERENT SPORTS ARE SING LE ACTIVITY OF SPORTS THEREFORE CANNOT BE TREATED AS DIFFERENT A CTIVITIES OF THE TRUST. THIS VIEW FIND SUPPORT FROM THE RATIO LAID D OWN FROM HONBLE APEX COURT IN THANTHI TRUST 247 ITR 785 (SC ). THERE IS FURTHER UNCONTROVERTED FINDING IN THE IMPUGNED ORDE R THAT THE ASSESSEE TRUST IS NOT RUNNING RESTAURANT BAR ETC THUS THERE IS NO QUESTION OF MAINTAINING SEPARATE REGISTERS. THE ACTIVITIES OF THE ASSESSEE TRUST ARE FOR THE ATTAINMENT OF OBJECT S OF THE TRUST ENSHRINED IN THE TRUST DEED. THUS THE ASSESSEE IS HAVING A VALID REGISTRATION U/S 12A OF THE ACT GRANTED BY T HE DIRECTOR OF INCOME TAX (EXEMPTION) AND THE ASSESSING OFFICER HA S NOT SPECIFICALLY POINTED OUT ANY VIOLATION OF THE TRUST DEED AS WELL AS THE PROVISION OF SECTION 12 & 13 THEREFORE WE FIND NO INFIRMITY IN THE CONCLUSION DRAWN BY THE LD. COMMIS SIONER OF INCOME TAX (APPEALS). FINALLY THE APPEAL OF THE REVENUE IS DISMISSED. 2.3. IF THE OBSERVATION MADE IN THE ASSESSMENT ORDE R LEADING TO ADDITION MADE TO THE TOTAL INCOME CONCLUSION DRAWN IN THE IMPUGNED ORDER MATERIAL AVAILABLE ON RECORD AND THE CONCLU SION DRAWN IN THE ITA NO.333 /MUM/2016 MATOSHRI ARTS & SPORTS TRUST 4 AFORESAID ORDER OF THE TRIBUNAL DATED 19/10/2015 A SSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL IF KEPT IN JUXTAPOSI TION AND ANALYZED WE NOTE THAT THE FACTS AND THE ISSUE ARE UNCONTROVE RTEDLY IDENTICAL TO THE A.Y. 2007-08. NO CONTRARY DECISION WAS BROUGHT TO OUR NOTICE BY EITHER SIDE AND MORE SPECIFICALLY THE REVENUE. WE F URTHER NOTE THAT THE BENEFIT U/S 80G OF THE ACT WAS GRANTED BY THE D EPARTMENT TO THE ASSESSEE AND THE ASSESSEE IS A REGISTERED WITH THE CHARITY COMMISSIONER ALONG WITH THE BENEFIT OF SECTION 12A OF THE ACT TO THE ASSESSEE. THE ONLY GRIEVANCE OF THE DEPARTMENT IS T HAT THE ASSESSEE TRUST IS NOT MAINTAINING SEPARATE BOOKS OF ACCOUNTS OF ITS ACTIVITIES THEREFORE HE TERMED THE ASSESSEE TRUST AS AOP AND ASSESSED THE INCOME AS BUSINESS INCOME RESULTANTLY DENIED EXEM PTION U/S 11A OF THE ACT. THE TRIBUNAL HAS ALREADY PLACED RELIANCE U PON THE DECISION FROM HONBLE APEX COURT AND THE RATIO LAID DOWN THE REIN IN THE CASE OF THANTHI TRUST (247 ITR 785)(SC). WE FIND NO INFIRMI TY IN THE CONCLUSION DRAWN IN THE RESPECTIVE APPEAL BY THE LD. FIRST APP ELLATE AUTHORITY THEREFORE THE APPEALS OF THE REVENUE ARE HAVING NO MERIT RESULTANTLY DISMISSED. FINALLY THE APPEALS OF THE REVENUE ARE DISMISSED. 5. CONSIDERING THE DECISION OF THE TRIBUNAL IN ASSESS EES OWN CASE FOR ASSESSMENT YEARS 2007-08 TO 2009-10 AND FOLLOWING T HE PRINCIPAL OF CONSISTENCY WE DO NOT FIND ANY ILLEGALITY OR INFI RMITY IN THE ORDER PASSED BY THE CIT(A). HENCE THE GROUND OF APPEAL RAISED BY REVENUE IS DISMISSED. 6. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08 TH NOVEMBER 2017. SD/ - SD/ - (G.S. PANNU) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 08 TH NOVEMBER 2017 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -1 MUMBAI 4. THE CIT (EXEM) MUMBAI 5. THE DR B BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.