I.T.O.-2(1), Agra v. M/s Holi Public Shiksha Samiti, Agra

ITA 393/AGR/2010 | 2002-2003
Pronouncement Date: 22-11-2011 | Result: Dismissed

Appeal Details

RSA Number 39320314 RSA 2010
Assessee PAN AAATH2150C
Bench Agra
Appeal Number ITA 393/AGR/2010
Duration Of Justice 1 year(s) 2 month(s) 1 day(s)
Appellant I.T.O.-2(1), Agra
Respondent M/s Holi Public 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 2002-2003
Appeal Filed On 20-09-2010
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. 393 394 & 395/AGRA/2010 ASSTT. YEAR : 2002-03 2004-05 & 2005-06 INCOME-TAX OFFICER VS. HOLI PUBLIC SHIKSHA SA MITI 2(1) AGRA. SECTOR-4 AVAS VIKAS COLONY AGRA. (PAN : AAATH 2150 C) (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 02.06.2010 PASSED BY THE LD. CIT(A)-II AGRA. SINCE THE COMMON ISSUES ARE INVOLVED IN ALL THESE THREE APPEALS THEREFORE FOR THE SAKE OF CONVENIENCE AL L THESE APPEALS ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER. THE GROUNDS RAISED IN ALL THESE THREE APPEALS ARE ALSO IDENTICAL BARRING THE AMOUNTS OF ADDITIONS. WE THEREFORE REPRODUCE THE GROUNDS RAISED IN ITA NO. 393/AGRA/2010 FOR A.Y. 2002-03 IN ORDER TO AVOID REPETITION : 1. THAT THE CIT(A)-II AGRA HAS IN LAW AND FACTS O F THE CASE IN DELETING THE ADDITION OF RS.1 00 000/- ON ACCOUNT OF BOGUS E XPENSES CLAIMED ON THE GROUND THAT NO DETAILS OF EXPENSES ON RECORD WHICH HAVE BE EN FOUND AS INADMISSIBLE NATURE NOR ANY EVIDENCE TO SHOW THAT SUCH EXPENSES WERE NOT INCURRED BUT FALSELY CLAIMED OR INCURRED FOR PURPOSES OTHER THAN EDUCATI ON. 2. THAT THE CIT(A)-II AGRA HAS IN LAW AND FACTS O F THE CASE IN DELETING THE ADDITION OF RS.13 76 664/- ON ACCOUNT OF UNEXPLAINE D INVESTMENT MADE OUT OF ITA NOS. 393 TO 395/AGRA/2010 2 BOOKS IN CONSTRUCTION OF SCHOOL BUILDING WITHOUT AP PRECIATING THE FACTS THAT DVO ESTIMATED THE VALUE OF CONSTRUCTION AT RS.15 98 754 /- AS AGAINST DISCLOSED INVESTMENT OF RS.10 87 336/- THE DIFFERENCE OF DVO S ESTIMATED INVESTMENT AND ASSESSEES DISCLOSED INVESTMENT COMES TO RS.5 11 41 8/- WHICH CANNOT BE SAID TO BE WITHIN TOLERANCE AS PER THE PREVALENT JUDICIAL OPTI ONS. 3. THAT THE ORDER OF THE CIT(A)-II AGRA IS ERRON EOUS IN LAW AND ON FACTS OF THE CASE AND THAT THE ORDER OF THE A.O. BE RESTO RED. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELET E OR ALTER OR MODIFY ANY GROUND DURING APPEAL PROCEEDINGS. 5. APPEAL ON THE SAME ISSUE HAS BEEN FILED IN THE ASSESSMENT YEAR 2005-06 IN WHICH TAX EFFECT IS MORE THAN 2 LAKHS. APPEAL IN THIS YEAR IS BEING PREFERRED TREATING THE ORDER OF CIT(A)-II AGRA AS COMPOSITE ORDER. 2. THE ASSESSEE SOCIETY IS REGISTERED WITH THE REGI STRAR OF SOCIETIES AND FILED ITS RETURN OF INCOME UNDER PROTEST IN COMPLIANCE OF NOTICE UNDER SECTION 153A READ WITH SECTION 153C OF THE INCOME-TAX ACT. THE ASSESSEE ALSO FILED BALANCE SHE ET AND INCOME & EXPENDITURE ACCOUNT ALONG WITH THE RETURN. AFTER EXAMINING THE SAME THE ASSE SSING OFFICER COMPLETED THE ASSESSMENT BY MAKING VARIOUS ADDITIONS INCLUDING THE ADDITIONS IN DISPUTE. THE ASSESSING OFFICER ALSO DISALLOWED EXEMPTION U/S. 10(23C)(IIIAD) OF THE ACT TO THE ASSESSEE BY HOLDING THAT THE ASSESSEE IS NOT ESTABLISHED MERELY FOR THE EDUCATIONAL PURPO SES AND APPLIED THE FLAT RATE OF 30%. AGGRIEVED BY THE ASSESSMENT ORDER PASSED BY THE ASS ESSING OFFICER THE ASSESSEE FILED AN APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO VIDE I MPUGNED ORDER PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. NOW THE REVENUE HAS FILED THESE APPEALS A GAINST THE IMPUGNED ORDERS. 3. THE LD. DR RELIED UPON THE ORDER PASSED BY THE A SSESSING OFFICER AND ON THE CONTRARY THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. THE LD. COUNSEL FOR THE ASSESSEE ALSO FILED SMALL PAPER BOOK CONTAINING PAGE NO. 1 TO 30 IN WHICH HE HAS ATTACHED WRITTEN SUBMISSIONS FILED BY THE ASSES SEE BEFORE THE LD. FIRST APPELLATE AUTHORITY ITA NOS. 393 TO 395/AGRA/2010 3 COPY OF REPLY FILED BEFORE THE ASSESSING OFFICER IN RESPONSE TO THE QUERY ALONG WITH ITR COMPUTATION AND AUDITED FINANCIAL STATEMENTS AND CO PY OF SOCIETY REGISTRATION CERTIFICATE OBJECTS BYE-LAWS AND LIST OF OFFICE BEARERS OF THE SOCIETY. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. AS REGARDS THE FIRST ISSUE IN VOLVED IN THESE APPEALS RELATING TO THE ADHOC DISALLOWANCE OF EXPENSES THE LD. AO HAS DISALLOWED THE EXPENSES ON THE BASIS OF SELF MADE VOUCHERS KEPT BY ASSESSEE. ON THIS BASIS THE AO HA S MADE ADHOC DISALLOWANCE OF EXPENSES WORTH RS. 1 00 000/- RS.2 00 000/- AND RS.2 00 000 /- RESPECTIVELY FOR THE A.YRS. 2002-03 2004- 05 AND 2005-06. THE LD. CIT(A) APPEARS TO HAVE DEL ETED THESE ADDITIONS OBSERVING THAT NO DETAILS OF SUCH EXPENSES ARE ON RECORD WHICH HAVE BEEN FOUN D AS OF INADMISSIBLE NATURE NOR ANY EVIDENCE TO SHOW THAT SUCH EXPENSES WERE NOT INCURR ED BUT FALSELY CLAIMED OR INCURRED FOR THE PURPOSES OTHER THAN EDUCATION. WE FIND SUBSTANCE IN THE CONTENTION MADE BY THE LD. AR IN THE WRITTEN SUBMISSIONS THAT THE PROVISIONS OF SECTION 145 HAVE NOT BEEN INVOKED AND HENCE THERE IS NO REASON TO MAKE ADHOC DISALLOWANCE OF EXPENSES. T HE AO HAS FAILED TO BRING ANY MATERIAL ON RECORD TO JUSTIFY THE ADHOC DISALLOWANCE OUT OF EXP ENSES. THEREFORE WE ARE OF THE CONSIDERED OPINION THAT THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION CONSIDERING THE FACTS OF THE CASE AND PLACING RELIANCE ON THE DECISION OF HONBLE DELHI B ENCH OF ITAT IN THE CASE OF ACIT VS. ALLIED CONSTRUCTION 106 TTJ 616. GROUND NO. 1 OF REVENUE S APPEAL THEREFORE DESERVES TO BE REJECTED. 5. AS FAR AS THE DELETION OF ADDITIONS MADE ON ACCO UNT OF UNEXPLAINED INVESTMENTS OF RS.5 11 418/- RS.6 12 591/- AND RS.798898/- IN THE SCHOOL BUILDING FOR A.YRS. 2002-03 2004-05 ITA NOS. 393 TO 395/AGRA/2010 4 AND 2005-06 RESPECTIVELY IS CONCERNED WE FIND THAT THE FROM F.Y 2001-2002 TO 14.11.2007 THE DISCLOSED INVESTMENT IS RS. 84 67 097/-. THE ASSESS ING OFFICER REFERRED THE MATTER TO THE DVO U/S. 142A OF THE ACT AND THE REPORT OF THE DVO WAS PROVIDED TO THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS ACCORDING TO WHICH THE VALUE ESTIMATED STOOD AT RS.1 24 49 500/-. WE ALSO FIND THAT THE ASSESSEE RAISED CERTAIN OBJECTIONS ON THE DVOS REPORT BY SUBMITTING THE COMMENTS OF THE REGISTERED VALUER ON THE SAID REPORT IN HIS SUPPORT. AS PER THE REGISTERED VALUER THE COST OF CONSTRUCTION COMES TO RS.90 66 194. IN PRESENCE OF THESE FACTS THE LD. CIT(A) AFTER CONSIDERING THE INVESTMENTS DISCLOSED BY THE ASSESSEE REPORT O F THE DVO AND THE REGISTERED VALUER AS WELL AS THE OBJECTIONS TO THE DVOS REPORT HAS HELD THAT T HE DIFFERENCE BETWEEN THE DISCLOSED INVESTMENT AND ESTIMATE OF REGISTERED VALUER COMES TO ABOUT RS .6 00 000/- WHICH HAS BEEN TREATED AS WITHIN THE TOLERABLE LIMIT. FOR THIS THE LD. CIT(A) HAS R EILIED ON THE FOLLOWING DECISIONS K.P . VARGHESE VS.ITO 131 ITR 597(SC) CIT VS. ABEESON HOTELS (P) LTD. 191CTR 263 ACIT CIRC.1 BHATINDA VS. DD COTTON (P) LTD.155 TAX MAN 219 SMT. SAROJ GUPTA VS. ITO 106 TTJ 1073 TITT DELHI B BENCH ITO VS. RAM NATH AGARWAL 132 TAXMAN 178 6. THE LD. CIT(A) FURTHER HELD THAT EVEN IF SUCH DE EMED INCOME OF THE RESPECTIVE YEARS WERE ADDED TO THE TOTAL RECEIPTS OF THOSE YEARS TH E TOTAL RECEIPTS WOULD STILL REMAIN LESS THAN RS.1 CRORE AND THE ASSESSEES CASE WOULD STILL BE COVER ED BY THE PROVISIONS OF SECTION 10(23C)(IIIAD) OF THE ACT AND HENCE THERE WOULD BE NO REVENUE IMPL ICATION. IT IS ALSO NOTABLE THAT THE REVENUE HAS NOT ASSAILED THE EXEMPTION U/S. 10(23C)(IIIAD) ELIGIBLE TO THE ASSESSEE IN THE PRESENT APPEALS. FURTHER THE REVENUE HAS NOT PREFERRED AN APPEAL AGA INST THE SAME SET OF FACTS IN ASSESSMENT YEAR 2003-04 WHEREIN SIMILAR ADDITION WAS DELETED BY TH E LD. CIT(A)-I AGRA. NO CONTRARY EVIDENCE IS BROUGHT ON RECORD TO REBUT THE FINDINGS REACHED BY THE LD. CIT(A) ON THIS COUNT. WE THEREFORE ITA NOS. 393 TO 395/AGRA/2010 5 FIND NO REASON TO INTERFERE IN THE WELL REASONED OR DER PASSED BY THE LD. FIRST APPELLATE AUTHORITY WHICH DESERVES TO BE CONFIRMED. 7. 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