DDIT (E), New Delhi v. Aparna Ashram, New Delhi

ITA 345/DEL/2010 | misc
Pronouncement Date: 07-01-2011 | Result: Dismissed

Appeal Details

RSA Number 34520114 RSA 2010
Bench Delhi
Appeal Number ITA 345/DEL/2010
Duration Of Justice 11 month(s) 15 day(s)
Appellant DDIT (E), New Delhi
Respondent Aparna Ashram, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 07-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 07-01-2011
Date Of Final Hearing 05-01-2011
Next Hearing Date 05-01-2011
Assessment Year misc
Appeal Filed On 22-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A NOS. 345 346 347/DEL/10 ASSTT. YEARS 1977-78 DDIT(E) INV. CIRCLE-1 ROOM NO. 311 AAYAKAR BHAWAN LAXMI NAGAR DISTTT. CENTRE NEW DELHI. VS. M/S. APARNA ASHRAM A-50 FRIENDS COLONY NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ASHOK PANDEY CIT DR RESPONDENT BY: NONE ORDER PER BENCH : THE PRESENT THREE APPEALS ARE DIRECTED AT THE INST ANCE OF REVENUE AGAINST THE SEPARATE ORDERS OF LD. CIT(A) DATED 14 TH SEPTEMBER 2009 PASSED IN ASSTT. YEAR 1977-78. 2. IN ITA NOS. 345 346 AND 347/DEL/2010. THE REVEN UE IS IMPUGNING DELETION OF PENALTY AMOUNTING TO RS. 86 96 900/- R S. 13 17 712/- AND RS. 1 31 77 120/- IMPOSED U/S 271(1)(A) 271(1)(B) AND 271(1)(C) RESPECTIVELY. ITA NOS. 345 346 347/DEL/10 ASSTT. YEARS 1977-78 2 3. THE FACTS AND CIRCUMSTANCES FOR DELETING ALL THE PENALTIES ARE COMMON. THEREFORE WE HEARD ALL THE APPEALS TOGETHE R AND DEEM IT APPROPRIATE TO DISPOSE OFF THEM BY THIS COMMON ORDE R. THE FINDING OF THE LD. CIT(A) FOR DELETING THE PENALTY LEVIED SEPARATE LY UNDER SECTIONS 271(1)(A) 271(1)(B) AND 271(1)(C) OF THE INCOME TA X ACT ARE VERBATIM SAME. THEREFORE FOR THE FACILITY OF REFERENCE WE AR E TAKING NOTE OF THE FINDING FROM ITA NO. 345/DEL/2010 WHICH READ AS UND ER : 3. I HAVE CONSIDERED THE SUBMISSIONS MADE ON BEHAL F OF THE APPELLANT AND THE FACTS ON RECORD. I HAVE ALSO PERUSED THE ORDER OF THE TRIBUNAL REFERRED TO ABOVE. IT IS NOTICED THAT IN PARA 12 OF THE SAID OR DER THE TRIBUNAL HAS HELD AS FOLLOWS:- IN OUR VIEW SINCE THE AO HAS GIVEN EFFECT TO THE ORDER OF CIT(A) PASSED ON 9.12.1987 AND COMPUTED THE NIL INCOME IT IS NOT KNOWN HOW THE AO CAN RECOMPUTED THE INCOME ON AN ISSUE THAT HAS B ECOME FINAL HAVING A SEAL OF APPROVAL BY THE ORDER OF THE TRIBUNAL. IN O UR VIEW THE ORDER OF THE AO DATED 25.3.2003 PASSED BY HIM U/S 144/254 OR THE CO NSEQUENTIAL IMPUGNED ORDER DATED 14.02.2005 OF THE CIT (A) ARE WITHOUT J URISDICTION HIGHLY IMPROPER AND DOES NOT HAVE ANY LEGS TO STAND. THE FACTS AS P RESENT IN A.Y. 1973-74 ARE ADMITTEDLY PRESENT IN A.Y. 1976-77 AND 1977-78. WE THEREFORE VACATE ALL THESE IDENTICAL ORDERS WHICH ARE IMPUGNED. 4. IT IS NOTICED THAT THE TRIBUNAL IN THE QUANTUM A PPEAL VACATED THE ASSESSMENT YEAR 1977-78. CONSEQUENTLY I AM OF THE CONSIDERED VIEW THAT AS THE VERY LEGS FOR THE LEVY OF PENALTY NO MORE EXIST THE PENALTY UNDER SECTION 271 (1)(A) ALSO CANNOT STAND. IN THE CIRCUMSTANCES THE PENALTY AS LEVIED BY THE ASSESSING OFFICER STANDS CANCELLED. 4. LD. COUNSEL FOR THE ASSESSEE SHRI SUBHASH C. DUT TA APPEARED ON 29.12.2010. HE FILED THE COPIES OF THE TRIBUNALS O RDER DATED 19.11.2008 PASSED IN ITA NOS. 2159 2161 & 3211 /DELHI/2005 FO R ASSTT. YEARS 1973- 74 1976-77 & 1977-78. THE TRIBUNAL BY WAY OF A COM MON ORDER HAD DECIDED THE QUANTUM APPEALS FOR THREE ASSTT. YEARS. THE TRIBUNAL HAS ITA NOS. 345 346 347/DEL/10 ASSTT. YEARS 1977-78 3 EXTENSIVELY NOTICED THE VARIOUS DEVELOPMENTS IN THE CASE OF ASSESSEE AND THE NUMBER OF ROUNDS OF LITIGATION TRAVELED UP TO THE TRIBUNAL. THE ORDER OF THE LD. CIT(A) AS WELL AS OF ITAT IN PREVI OUS ROUNDS HAVE BEEN EXTENSIVELY REPRODUCED. THE TRIBUNAL THEREAFTER OBS ERVED THAT FRESH ASSTT. ORDERS ARE NOT SUSTAINABLE. THE TRIBUNAL HAS VACATED THESE ORDERS. THE OBSERVATION OF THE TRIBUNAL FROM PARAGRAPH NO. 11 READ AS UNDER :- 11. NOW THE A.O. AFTER HAVING PASSED THE AFORESAID ORDER DATED 30.12.1987 PROCEEDS FURTHER AFTER A LAPSE OF MORE THAN 5 YEARS ISSUING A NOTICE U/S 143(2) ON 5.1.2003. ADMITTEDLY THERE WAS NO COM PLIANCE AND PASSED THE IMPUGNED ASSESSMENT ORDER DATED 25.3.2003 BY HOLDING THAT THERE WAS NO EVIDENCE REGARDING CHARITABLE ACTIVITIES OF THE TRUST AND SINCE THE ASSESSEE HAD NOT PRODUCED THE BOOKS OF ACCOUNT VOUCHERS ETC. THERE WAS NO OPTION BUT TO COMPLETE THE ASSESSMENT U/S 144 OF THE ACT. ACCORDING TO A.O. THE ASSESSEE TRUST WAS NOT ABLE TO ESTABLISH THAT THE EN TIRE ASSETS HAD BEEN UTILIZED FOR CHARITABLE PURPOSES. THE AO IN HIS ORDER DT. 25.3 .03 DENIED THE BENEFIT OF SEC.11 AND 12 OF THE ACT AGAIN REPEATED THE SAME A DDITIONS AND PROCEEDED TO COMPUTE THE FOLLOWING INCOME: DONATIONS AS DISCUSSED 3 43 600 INTEREST INCOME AS DISCLOSED 1 035 MISC. RECEIPTS AS DISCLOSED 28 726 --------------- TOTAL INCOME 3 73 361 OR 3 73 360 12. IN OUR VIEW SINCE THE AO HAS GIVEN EFFECT TO TH E ORDER OF CIT(A) PASSED ON 9.12.1987 AND COMPUTED THE NIL INCOME IT IS N OT KNOWN HOW THE AO CAN RECOMPUTE THE INCOME ON AN ISSUE THAT HAS BECOME FIN AL HAVING A SEAL OF APPROVAL BY THE ORDER OF THE TRIBUNAL. IN OUR VIEW THE ORDER OF THE AO DATED 25.3.2003 PASSED BY HIM U/S 144/254 OR THE CONSEQUEN TIAL IMPUGNED ORDER ITA NOS. 345 346 347/DEL/10 ASSTT. YEARS 1977-78 4 DATED 14.2.2005 OF THE CIT(A) ARE WITHOUT JURISDICTI ON HIGHLY IMPROPER AND DOES NOT HAVE ANY LEGS TO STAND. THE FACTS AS PRES ENT IN A.Y. 1973-74 ARE ADMITTEDLY PRESENT IN A.Y. 1976-77 AND 1977-78. WE THEREFORE VACATE ALL THESE IDENTICAL ORDERS WHICH ARE IMPUGNED. 13. BEFORE WE PART WITH THE MATTER WE MAY DEAL WITH CERTAIN OBJECTIONS TAKEN BY THE REVENUE. WHILE WE INDICATED IN THE CO URT THIS MANNER OF DISPOSAL THE LEARNED D.R. HAS VEHEMENTLY SUPPORTED T HE IMPUGNED PROCEEDINGS. ACCORDING TO HIM WHEN THE MATTER IS SE T ASIDE BY THE CIT(A) THE AO IS REQUIRED TO ISSUE A COMPUTATION AT NIL I NCOME AND THEN PROCEED TO ISSUE A NOTICE FOR COMPUTATION OF INCOME IN ACCORD ANCE WITH LAW. WE ARE UNABLE TO APPRECIATE THIS STAND OF THE DEPARTMENT. HAVING ONCE ACCEPTED THE ORDER OF THE TRIBUNAL DATED 28.2.1990 IT IS NOT OPEN TO DISTURB ANY OF THE ISSUES THAT HAVE BECOME FINAL BY THE AFORESAID ORDER O F THE TRIBUNAL UNLESS THE HIGH COURT OR THE SUPERIOR AUTHORITY HAVE DISTURBED THOS E FINDINGS. THE FACT THAT THE ASSESSEE WAS A CHARITABLE INSTITUTION HAS BECOME FINAL FOR THIS ASSESSMENT YEAR AND THAT IS NOT OPEN FOR REAGITATION/ REAPPRAISAL BY THE REVENUE IN ANY UNNECESSARY PROCEEDINGS WHICH HAVE NO SANCTIONS OF LAW. IF THIS IS PERMITTED THERE WILL BE DUPLICACY OF ORDERS THROWING THE FINALITY OF PROCEEDINGS TO THE WINDS. IN OUR VIEW ONCE THE AO HAS PASSED AN ORDER GIVING EFFECT TO THE ORDER OF CIT(A) ON 9.12.1987 HE BECOMES FUNCTUS OFFICIO IN RELATION TO THAT IN RESPECT OF MATTERS GOT CONCLUDED BY THAT ORDER. IN OTHER WORDS IT IS NOT OPEN TO ANY OFFICER AGAIN TO REAGITAT E THE ISSUE WITHOUT FOLLOWING THE LEGAL REMEDIES OPEN TO HIM. WE THEREF ORE ARE OF THE OPINION THAT THE ASSESSEE HAS BEEN UNNECESSARILY DRAGGED INTO THESE PROCEEDINGS WITHOUT UNDERSTANDING THE EXACT IMPLICATION OF THE ORDER OF THE TRIBUNAL DATED 28.2.1990. WE VACATE THE ORDERS IMPUGNED FOR THESE YEARS. 14. AS REGARDS THE ADDITIONAL GROUND WHICH THE ASSESS EE HAS RAISED THE SAME WAS NOT PRESSED AT THE TIME OF HEARING. IN THE LIGHT OF OUR FINDING ON THIS ISSUE WE THINK IT UNNECESSARY TO GO INTO OTHER GROU NDS RAISED BY THE ASSESSEE IN ITS MEMORANDUM OF APPEAL. ITA NOS. 345 346 347/DEL/10 ASSTT. YEARS 1977-78 5 15. IN THE RESULT APPEALS OF THE ASSESSEE ARE TREATE D AS ALLOWED FOR STATISTICS. 5. SINCE THE ASSTT. ORDER GIVING RISE TO LEVY PENAL TY UPON THE ASSESSEE UNDER THREE SEPARATE SECTIONS HAS BEEN VACATED BY T HE TRIBUNAL MEANING THEREBY ITS EXISTENCE HAS BEEN EXTINGUISHE D. CONSEQUENTLY NO PENALTY IS IMPOSABLE UPON THE ASSESSEE. THE REVENUE HAS ACCEPTED THIS FACT IN THE STATEMENT OF FACTS SUBMITTED BEFORE US. ACCORDING TO IT IT HAS FILED ITS FILE TO KEEP THE ISSUE ALIVE. IT IS ALSO PLEADED THAT APPEAL AGAINST THE ORDER OF THE TRIBUNAL DATED 19.11.2008 IN ITA N O. 3211/DEL/2005 HAS BEEN FILED BEFORE THE HONBLE HIGH COURT AND THERE FORE IT IS FILING THESE THREE APPEALS AGAINST THE ORDER OF THE LD. CIT(A). TAKING INTO CONSIDERATION ALL THESE FACTS AND CIRCUMSTANCES WE DO NOT FIND ANY ERROR IN THE ORDERS OF THE LD. CIT(A). ACCORDINGLY THE A PPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH JANUARY 2011. SD/- [SHAMIM YAHYA] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 7.1.2011 VEENA ITA NOS. 345 346 347/DEL/10 ASSTT. YEARS 1977-78 6 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT