Asstt. Commissioner of Income Tax,, Kanpur v. M/s. Swantantra Gramudyog Sansthan,, Kanpur

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A LUCKNOW BEFORE SHRI SUNIL KUMAR YA DAV JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA NOS.430 & 431/LKW/2012 A.YS.: 2008-2009 & 2009-2010 A .C.I.T. CENTRAL CIRCLE-1 KANPUR. VS. M/S SWANTANTRA GRAMUDYOG SANSTHAN 24 BIRTAYAN MANDHANA KANPUR. PAN:AAFTS6234D (APPELLANT) (RESPONDENT) C.O.NOS.71 & 72/LKW/2012 (IN ITA NOS.430 & 431/LKW/2012) A.YS.: 2008-2009 & 2009-2010 M/S SWANTANTRA GRAMUDYOG SANSTHAN 24 BIRTAYAN MANDHANA KANPUR. PAN:AAFTS6234D VS. A .C.I.T. CENTRAL CIRCLE-1 KANPUR. (OBJECTOR) (RESPONDENT) REVENUE BY SHRI MANOJ KUMAR GUPTA CIT D.R. A SSESSEE BY SHRI S. K. GARG ADVOCATE SHRI P. K. KAPOOR C. A. DATE OF HEARING 21/10/2013 DATE OF PRONOUNCEMENT 25/10/2013 O R D E R PER A. K. GARODIA A.M. BOTH THESE APPEALS ARE FILED BY THE REVENUE AND BOTH THESE CROSS OBJECTIONS ARE FILED BY THE ASSESSE E WHICH ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF LEARNED CIT(A)-I KANPUR BOTH DATED 26/03/2012 FOR [2] THE ASSESSMENT YEARS 2008-2009 AND 20 09-2010. SINCE THE ISSUE INVOLVED IS COMMON ALL THESE ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS THE LEARNED A.R. OF THE A SSESSEE SUPPORTED THE ORDERS OF THE LEARNED CIT(A) AND HE ALSO SUBMITTED THAT THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE NOT PRESSED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IN THE PRESENT CASE THE ASSESSING OFFICER HAS HELD IN BOTH THE YEARS THAT THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U/S 10(23B) OF THE ACT FOR VARIOUS REASONS NOTED BY HIM IN THE AS SESSMENT ORDER. THIS DECISION OF THE ASSESSING OFFICER IN BOTH THE YEAR S WAS REVERSED BY LEARNED CIT(A) ON THIS BASIS THAT THE ASSESSING OFFICE R HAS NO AUTHORITY TO WITHDRAW THE EXEMPTION ALLOWABLE TO ASSESSEE U/S10( 23B) EVEN IF HE FINDS THAT THERE WAS VIOLATION/CONTRAVENTION OF PROVISIONS OF CLAUSE 23A OF SECTION 10. HE HAS FURTHER OBSERVED THAT ROLE OF THE ASSESSING OFFICER IS LIMITED TO THAT OF INTIMATING TO PRESCRIBED AUTHORITY REGARDING THE SAID CONTRAVENTION AND WAIT FOR THEIR ACTION. HE FURTHER HE LD THAT UNTIL THE SAID PRESCRIBED AUTHORITY HAD WITHDRAWN THE APPROVAL THE ASSESSING OFFICER IS DUTY BOUND TO COMPLETE THE ASSESSMENT OF THE ASSESSEE BY GRANTING EXEMPTION. HE HAS ALSO GIVEN A FINDING RELATING TO THE PRESENT CASE THAT APPARENTLY NO ACTION HAS BEEN TAKEN BY THE PRESCRIBED AUTHORITY (KVIC). HE HAS ALSO NOTED THAT THE KVIC HAS GRANTED AN EX EMPTION CERTIFICATE TO THE ASSESSEE VIDE THEIR LETTER DATED 28/12/2010 FOR THE ASSESSMENT YEAR 2008-2009 AND ALSO FOR ASSESSMENT YEAR 2009-2010. AF TER MAKING THIS OBSERVATION THE LEARNED CIT(A) DIRECTED THE ASSESSING OFFICER TO VERIFY THE [3] CERTIFICATE/APPROVAL ISSUED BY THE KVIC AND IF IT IS FOUND TO BE IN ORDER THE ASSESSEE WOULD BE ENTITLED TO FULL EX EMPTION U/S 10(23B) OF THE ACT. WE FIND THAT AS PER THE FI RST PROVISO TO SECTION 143( 3) IN THE CASE OF AN INSTITUTION REFERRED TO IN CLAUSE 23B OF SECTION 10 THE ASSESSING OFFICER CANNOT COMPLETE THE ASSESSMENT WITHOUT GIVING EFFECT TO THE PROVISIONS OF SECTION 10 UNLESS THE ASSESSING OFFICE R HAS COMMUNICATED THE PRESCRIBED AUTHORITY REGARDING THE CONTRAVENTION OF THE PROVISIONS OF CLAUSE 23B OF SECTION 10 OF SUCH INSTITUTION AND THE APPROVAL GRANTED TO SUCH INSTITUTION HAS BEEN WITHDRAWN BY THE AUTHORITY. IN THE PRESENT CASE NOTHING HAS BEEN BROUGHT ON RECORD BY THE REVENUE BEFORE THE CIT(A) OR BEFORE US THAT THE EXEMPTION CERTIFICATE GRANTED TO THE ASSESSEE BY THE PRESCRIBED AUTHORITY I.E. KVIC HAS BEEN WITHDRAWN BY THAT AUTHORITY. HENCE WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LEARNED CIT(A) IN BOTH THE YEARS. 4. IN THE RESULT BOTH THE APPEALS OF THE REVENUE AS WELL AS BOTH THE CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:25/10/2013 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. T HE APPELLANT 2. T HE RESPONDENT. 3. CONCERNED CIT 4. T HE CIT( A ) 5. DR ITAT LUCKNOW [4]