Karnal Improvement Trust, Karnal v. ACIT, Karnal

ITA 5621/DEL/2011 | 2006-2007
Pronouncement Date: 30-03-2012 | Result: Allowed

Appeal Details

RSA Number 562120114 RSA 2011
Bench Delhi
Appeal Number ITA 5621/DEL/2011
Duration Of Justice 3 month(s) 16 day(s)
Appellant Karnal Improvement Trust, Karnal
Respondent ACIT, Karnal
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 30-03-2012
Date Of Final Hearing 21-03-2012
Next Hearing Date 21-03-2012
Assessment Year 2006-2007
Appeal Filed On 14-12-2011
Judgment Text
ITA NO. 5621/DEL/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A. NO. 5621/DEL/2011 A.Y. : 2006-07 KARNAL IMPROVEMENT TRUST NEHRU PLACE KARNAL (PAN : AATK6396D) VS. ASSTT. COMMISSIONER OF INCOME TAX KARNAL CIRCLE KARNAL (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSESSEE BY : SH. SANJAY AGARWAL & MONICA AGARWAL CA DEPARTMENT BY : SH. D.K. MISHRA C.I.T.(D.R.) ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) KARNAL DA TED 16.9.2011 PERTAINING TO ASSESSMENT YEAR 2006-07. 2. THE GROUNDS RAISED READ AS UNDER:- 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN SUSTAINING THE ADDITION OF ` 1 23 19 158/ - ON ACCOUNT OF COST OF PLOTS SOLD DISREGARDING THE SAME AS APPLICATION OF INCOME WITHOUT APPRECIATING THE FACT THAT THE SAME HAS NOT EVEN BEEN CLAIMED AS APPLICATION OF I NCOME ITA NO. 5621/DEL/2011 2 BY ASSESSEE IN ITS RETURN OF INCOME. AS SUCH WHERE NO DEDUCTION HAS BEEN CLAIMED BY ASSESSEE DISALLOWANC E ON ACCOUNT OF THE SAME IS NOT CORRECT. THUS THE COST OF PLOTS AMOUNTING ` 1 23 19 158/- MAY PLEASE BE ALLOWED TO ASSESSEE. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITIO N OF ` 2 71 23 090/- ON ACCOUNT OF EXPENDITURE ON DEVELOP MENT WORKS CONSIDERING THE SAME AS EXPENDITURE NOT FOR CHARITABLE PURPOSE WHILE THE EXPENDITURE WAS INCURR ED FOR THE PURPOSES COVERED UNDER THE BYE LAWS OF THE TRU ST AND IT WAS NOT AN EXPENDITURE ON BEHALF OF THE KARNAL MUNIC IPAL COMMITTEE AS CONTENDED IN PARA 1.08 OF HIS ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS). AS SUCH T HE CLAIM OF THE ASSESSEE OF ` 2 71 23 090/- MAY PLEASE B E ALLOWED. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE PA YMENT OF INCOME TAX FOR 2002-2003 AMOUNTING ` 1 94 00 000/- A S APPLICATION OF INCOME WHILE SIMILAR DEDUCTION HAS BEE N ALLOWED TO ASSESSEE IN RESPECT OF SUBSEQUENT YEAR A .Y. ITA NO. 5621/DEL/2011 3 2007-08 AND THUS A DEDUCTION OF ` 1 94 00 000/- MAY PLEASE BE ALLOWED WHILE COMPUTING THE INCOME AS PER THE PROVISIONS OF SEC. 11. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE TA X DEDUCTED AT SOURCE DURING F.Y. 2005-06 AMOUNTED ` 5 15 995/- AS APPLICATION OF INCOME WHERE THE INTER EST ON FDR ON WHICH THE TDS REFERRED SUPRA IS DEDUCTED IS INCLUDED IN THE INCOME OF THE ASSESSEE. AS SUCH A DEDUCTION OF ` 5 15 885/- MAY PLEASE BE ALLOWED WHIL E COMPUTING THE INCOME AS PER THE PROVISIONS OF SEC. 1 1. 5. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DISALLOWING THE CLAIM OF TDS AMOUNTING ` 1 41 555/- AGAINST INTEREST ACCRUED TO ASSESSEE WI THOUT APPRECIATING THE FACT THAT SINCE ASSESSEE IS MAINTAI NING THE CASH SYSTEM OF ACCOUNTING TDS ACCRUED SHOULD HAVE B EEN ALLOWED AS APPLICATION OF INCOME WHERE SAME IS TREAT ED AS PART OF INCOME. THUS DEDUCTION OF ` 1 41 555/- MAY PLEASE BE ALLOWED. ITA NO. 5621/DEL/2011 4 6. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN RELYING ON THE FINDINGS OF THE EARLIER LD. COMMISSIONER OF INCOME TAX (APPEALS) IN PARA 1.03 OF HIS ORDER WITHOUT APPRECIATING THE FACT THAT THE SAID ORDER DATED 30.3.2009 HAS ALREADY BEEN QUASHED BY THE HON BLE DELHI ITAT VIDE ORDER DATED 31.8.2009. AS SUCH THE FINDINGS OF THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) AS REGARD THE NON-APPLICATION OF INCOME BY ASSESSEE AMOUNTING ` 7 77 52 783/- FOR CHARITABLE PURPOSES MAY PLEASE BE QUASHED. 7. THAT WE CRAVE TO ADD ALTER DELETE MODIFY OR WI THDRAW ANY OF THE ABOVE GROUNDS AT THE TIME OF HEARING. 3. IN THIS CASE ITAT VIDE ITA NO. 2796/DEL/2009 DAT ED 31.8.2009 HAD RESTORED THE ASSESSMENT TO THE FILE OF THE ASSESSIN G OFFICER DIRECTING HIM TO TREAT THE ASSESSEE AS A TRUST REGISTERED U/ S. 12AA AND TO COMPUTE THE INCOME ACCORDING TO SECTION 11 TO 13 OF T HE IT ACT. IN THE ASSESSMENT THE ASSESSING OFFICER TOOK ALREADY CO MPUTED AMOUNT OF ` 7 77 52 783/- AS PER ORDER DATED 26.12.2008 AND T OOK THE SAME AS INCOME ASSESSED U/S. 143(3) OF THE ACT. 4. APROPOS THE FIRST ISSUE OF COST OF PLOTS SOLD ITA NO. 5621/DEL/2011 5 ON THE ISSUE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS NOTED THAT IN THE INCOME AND EXPENDITURE A/C THE A SSESSEE HAS DEBITED ` 1 23 19 158/- AS COST OF PLOTS SOLD DURIN G THE YEAR AND HAS TREATED IT AS APPLICATION OF INCOME FOR CHARITABL E PURPOSES. HOWEVER LD. COMMISSIONER OF INCOME TAX (APPEALS) NOTED THAT THE ABOVE AMOUNT IS A NOTIONAL ENTRY AND IS NEITHER ACTUAL EX PENDITURE NOR ALLOCATION. HENCE THIS AMOUNT CANNOT BE TREATED AS APPLIED EVEN WHEN ONE TAKES WIDEST POSSIBLE AMBIT OF THE WORD AP PLIED. LD. COMMISSIONER OF INCOME TAX (APPEALS) FURTHER FOUND T HAT COST WILL BE DEBITED IN THE YEAR OF ACQUISITION AND NOT IN THE Y EAR OF SALE IF THE ASSETS HAVE NOT ACTUALLY BEEN ACQUIRED IN THE YEAR OF SALE. IN THIS REGARD LD. COMMISSIONER OF INCOME TAX (APPEALS) REF ERRED THE ORDER OF THE THEN LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 30.3.2009. LD. COMMISSIONER OF INCOME TAX (APPEALS) C ONCLUDED THAT SINCE IN SEC. 11 EXEMPTION IS AVAILABLE ONLY TO T HE EXTENT TO WHICH THE INCOME IS APPLIED FOR CHARITABLE PURPOSES THE RE WAS NO SUCH APPLICATION OF INCOME DURING THE YEAR UNDER CONSIDE RATION THE EXEMPTION IS TO BE REDUCED BY THIS AMOUNT I.E. ` 1 23 19 158/-. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 6. LD. COUNSEL OF THE ASSESSEE CONTENDED THAT LD. C OMMISSIONER OF INCOME TAX (APPEALS) HAS TOTALLY ERRED IN SUSTAININ G THE ADDITION IN THIS ITA NO. 5621/DEL/2011 6 REGARD. HE CLAIMED THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) DID NOT APPRECIATE THE FACT THAT THE SAME HAS NOT EVEN BEEN CLAIMED AS APPLICATION OF INCOME BY THE ASSESSEE IN ITS RE TURN OF INCOME. AS SUCH WHERE NO DEDUCTION HAS BEEN CLAIMED BY THE A SSESSEE DISALLOWANCE ON ACCOUNT OF THE SAME IS NOT CORRECT. IN THIS REGARD LD. COUNSEL OF THE ASSESSEE TOOK US TO THE PAPER BOOK P AGE NO. 74 WHICH SHOWS THE COMPUTATION OF ASSESSABLE INCOME OF THE ASS ESSEE; PAGE NO. 85 WHICH SHOWED THE AMOUNT SPENT DURING THE YEAR DE BITED TO INCOME AND EXPENDITURE ACCOUNT AND PAPER BOOK NO. 88 BEIN G THE INCOME AND EXPENDITURE ACCOUNT. IN PAGE NO. 8 OF THE PAPER B OOK THE FOLLOWING HAS BEEN DEBITED WITH REGARD TO INCOME APPLIED TO CH ARITABLE PURPOSES AS PER AUDIT REPORT CLAIMED U/S. 11(1)(A). TOTAL INCOME SHOWN UNDER INCOME AND EXPENDITURE A/C. 111624664.73 LESS : LESS : LESS : LESS : EXCESS OF INCOME OVER EXPENSE - 18719309.52 COST OF PLOTS SOLD W/O DURING THE YEAR * - 12319158.00 TDS 2005-2006 ** - 415885.00 BALANCE BALANCE BALANCE BALANCE 80170312.21 80170312.21 80170312.21 80170312.21 ITA NO. 5621/DEL/2011 7 * COST OF PLOTS W/O IS NOT CLAIMED AS APPLICATION OF INCOME AS THE SAME IS EXCLUDED FOR CALCULATION OF APPLICATION OF INCOME U/S 11(1) FOR THE PURPOSE OF COMPUTATION OF INCOME. ** TDS OF ` 415885/- IS ALSO NOT CLAIMED AS NOT CLAIMED AS APPLICATION OF INCOME AS THE SAME IS EXCLUDED FOR CALCULATION OF APPLICATION OF INCOME U/ S 11(1) FOR THE PURPOSE OF COMPUTATION OF INCOME IN ADVERTENTLY ASSESSEE ADDED BACK ` 415885/- INSTEAD OF ` 515885/-. 6.1 WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. PRIMA-FACIE THERE APPEARS COGENCY IN THE SUBMISSIONS OF THE ASSESSEE IN THIS REGARD THAT THE AMOUNT OF ` 1231 9158/- ON ACCOUNT OF COST OF PLOTS SOLD WAS NOT CLAIMED AS APPLICATIO N OF INCOME BY THE ASSESSEE IN ITS RETURN OF INCOME. HENCE IN THE INTEREST OF JUSTICE WE REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICE R TO CONSIDER THE ISSUE AFRESH IN LIGHT OF THE FACTUAL SUBMISSION BE ING MADE BY THE ASSESSEE. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 7. APROPOS THE 2 ND ISSUE OF ADDITION OF 2 71 23 090/- ITA NO. 5621/DEL/2011 8 ON THIS ISSUE LD. COMMISSIONER OF INCOME TAX (APPEA LS) NOTED THAT OUT OF A TOTAL EXPENDITURE OF ` 5 45 50 428/ - ON DEVELOPMENT WORKS AN AMOUNT OF ` 2 71 23 090/- HAS BEEN SPENT O N WORKS WHICH ARE OUTSIDE THE SCHEMES OF KARNAL IMPROVEMENT TRUST. THIS EXPENDITURE IS CLAIMED TO HAVE BEEN INCURRED ON DEVE LOPMENT WORKS IN AREA FALLING UNDER THE KARNAL MUNICIPAL COMMITTEE. L D. COMMISSIONER OF INCOME TAX (APPEALS) FURTHER OBSERVED THAT THIS EXPENDITURE IS OUTSIDE THE PURPOSE FOR WHICH THE TRUST EXISTS. LD. COMMISSIONER OF INCOME TAX (APPEALS) NOTED THAT THE SAID EXPENDITU RE OF ` 2 71 23 090/- IS CLAIMED TO HAVE BEEN INCURRED ON B EHALF OF THE KARNAL MUNICIPAL COMMITTEE ON DEVELOPMENT WORKS RELATED TO IT. LD. COMMISSIONER OF INCOME TAX (APPEALS) FURTHER OBSERVE D THAT KARNAL MUNICIPAL COMMITTEE IS A SEPARATE ENTITY AND ITSELF E NJOYS EXEMPTION ON ITS INCOME. HE OBSERVED THAT IT IS TO BE NOTE D THAT THE SAID AMOUNT WAS NOT HANDED OVER TO THE KARNAL MUNICIPAL CORPORATION BUT WAS SPENT DIRECTLY BY THE ASSESSEE. SINCE THE AMO UNT WAS SPENT DIRECTLY BY THE ASSESSEE OUTSIDE THE PURPOSES FOR WHICH IT EXISTS AND HOLDS PROPERTY IT IS TO BE TREATED AS PART OF INC OME NOT APPLIED FOR CHARITABLE PURPOSES. 8. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. ITA NO. 5621/DEL/2011 9 9. ASSESSEE HAS CONTENDED THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN HOLDING THAT THE EXPENDITUR E IS NOT FOR CHARITABLE PURPOSE. IT HAS BEEN URGED THAT THE EX PENDITURE WAS INCURRED FOR THE PURPOSES COVERED UNDER THE BYE LA WS OF THE TRUST AND IT WAS NOT AN EXPENDITURE ON BEHALF OF THE KARNA L MUNICIPAL COMMITTEE AS CONTENDED IN PARA 1.08 OF THE LD. COMMI SSIONER OF INCOME TAX (APPEALS)S ORDER. FURTHER IT HAS BEE N SUBMITTED THAT THE DEVELOPMENT EXPENDITURE IN MUNICIPAL AREA LIMIT W AS ALSO ALLOWED DURING THE ASSESSMENT YEARS 2004-05 & 2005-06. W E HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. IN OUR CONSIDERED OPINION THE INTEREST OF JUSTICE WILL BE SERVED IF THE MATTER IS REMITTED TO THE FILE OF THE ASSESSING OFFICER. HE NCE THE MATTER STANDS REMITTED TO THE FILE OF THE ASSESSING OFFIC ER TO CONSIDER THE SAME AFRESH IN LIGHT OF THE SUBMISSION MADE BY THE A SSESSEE. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN A DEQUATE OPPORTUNITY OF BEING HEARD. 10. APROPOS ISSUE OF CONSIDERATION OF PAYMENT OF INC OME TAX AND TDS AS APPLICATION OF INCOME. 11. ON THIS ISSUE LD. COMMISSIONER OF INCOME TAX (AP PEALS) HELD THAT IN THE INCOME AND EXPENDITURE ACCOUNT THE ASS ESSEE HAS DEBITED ` 1 94 00 000/- ON ACCOUNT OF INCOME TAX FOR 2002-0 3 AND ` 5 15 885/- ITA NO. 5621/DEL/2011 10 ON ACCOUNT OF TDS 2005-06. HE HELD THAT THIS EXP ENDITURE CAN ALSO NOT BE TREATED AS APPLICATION FOR CHARITABLE PURPOS ES WITHIN THE MEANING OF SECTION 11(1) AND WILL THUS NOT BE EXEMPTE D FROM TAXATION. 12. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPE AL BEFORE US. 13. IT HAS BEEN CLAIMED BY THE LD. COUNSEL OF THE A SSESSEE THAT THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN THE CASE OF ACIT VS. MARKET COMMITTEE PA NIPAT IN ITA NO. 1926/DEL/2011 (A.Y. 2006-07) AND IN THE CASE OF MARK ET COMMITTEE NISSING KARNAL ORS. VS. ACIT IN ITA NO. 2645/DEL /2008 (A.Y. 2005-06). IN THE CASE OF ACIT VS. MARKET COMMITTEE PANIPAT IN IT A NO. 1926/DEL/2011 (A.Y. 2006-07) VIDE PARA NO. 3 OF T HE ORDER IT HAS BEEN HELD AS UNDER:- WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUSED T HE MATERIALS ON RECORD AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND THE TRIBUNAL DECISION CIT ED BY THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE. WE FIND THAT IT HAS BEEN HELD BY HONBLE MADRAS HIGH COURT IN THE CASE CITED (SUPRA) THAT THE PAYMENT OF TAX SHOULD B E TREATED AS HAVING BEEN APPLIED FOR CHARITABLE PURPO SES AND THE ASSESSEE IS ENTITLED TO EXEMPTION. RESPECTFULLY FOLLOWING ITA NO. 5621/DEL/2011 11 THIS JUDGEMENT OF HONBLE MADRAS HIGH COURT WE DECID E THIS ISSUE IN FAVOUR OF THE ASSESSEE IN ALL THESE CASES. THIS ISSUE STANDS DECIDED IN FAVOUR OF THE ASSESSEE. 13.1 WE HAVE CAREFULLY CONSIDERED THE ISSUE ON THE ANVIL OF THE AFORESAID TRIBUNAL DECISION WE FIND THAT THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE ACCORDINGLY WE HOLD THAT T HE AMOUNT OF ` 1 94 00 000/- PAID ON ACCOUNT OF INCOME TAX FOR 2002 -03 AND ` 5 15 885/- ON ACCOUNT OF TDS ARE TO BE TREATED AS AP PLIED FOR CHARITABLE PURPOSES WITHIN THE MEANING OF SECTION 11(1). HENCE THESE ISSUES ARE DECIDED IN FAVOUR OF THE ASSESSEE. 14. AS REGARDS APROPOS ISSUE OF TDS OF ` 1 41 555 /- RAISED IN THE GROUND NO. 5 OF THE APPEAL. LD. COUNSEL OF THE AS SESSEE SUBMITTED THAT HE SHALL NOT PRESS THIS GROUND. ACCORDINGLY T HE GROUND NO. 5 IS DISMISSED AS NOT PRESSED. 15. APROPOS GROUND NO. 6 : IN THIS GROUND OF APP EAL IT HAS BEEN URGED THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S URGED THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED I N RELYING ON THE FINDINGS OF THE EARLIER LD. COMMISSIONER OF INCOME TA X (APPEALS) IN PARA 1.03 OF HIS ORDER WITHOUT APPRECIATING THE FAC T THAT THE SAID ORDER DATED 30.3.2009 HAS ALREADY BEEN QUASHED BY THE ITA T DELHI VIDE ITA NO. 5621/DEL/2011 12 ORDER DATED 31.8.2009. AS SUCH THE FINDINGS OF T HE LD. COMMISSIONER OF INCOME TAX (APPEALS) AS REGARD THE NON APPLICATI ON OF INCOME BY ASSESSEE AMOUNTING ` 7 77 52 783/- FOR CHARITABLE PU RPOSES MAY PLEASE BE QUASHED. 16. ON THIS ISSUE LD. COMMISSIONER OF INCOME TAX ( APPEALS) NOTED THAT ASSESSING OFFICER HAS HELD THAT INCOME OF TH E TRUST IS NOT COMPUTED AS PER PROVISIONS OF SEC. 11 AND 13 OF THE ACT AND INCOME ALREADY COMPUTED AT ` 7 77 52 783/- AS PER ORDER DA TED 26.12.2008 IS TAKEN AS INCOME ASSESSED U/S. 143(3) OF THE ACT. LD. COMMISSIONER OF INCOME TAX (APPEALS) IN 1.03 HAS MENTIONED THAT IN THIS REGARD IT WAS RELEVANT TO MENTION THAT THE ISSUES WERE CONSIDERE D BY THE THEN LD. COMMISSIONER OF INCOME TAX (APPEALS) IN VIEW OF THE DIRECTIONS OF THE ITAT TO THE C.I.T. TO GRANT REGISTRATION U/S. 12AA OF THE ACT. RELEVANT PARA 7 FROM THE ORDER DATED 30.3.2009 OF THE LD. CO MMISSIONER OF INCOME TAX (APPEALS) WAS REPRODUCED. LD. COMMISSION ER OF INCOME TAX (APPEALS) FURTHER OBSERVED THAT THUS THE THEN L D. COMMISSIONER OF INCOME TAX (APPEALS) HELD THE ASSESSEE TO BE ASSESS ABLE IN THE STATUS OF A CHARITABLE TRUST AND BASED ON THIS HE EXAMINE D THE ISSUES ON WHICH ADDITIONS HAD BEEN MADE IN THE ORIGINAL ORDER. THE ITAT DID NOT ADJUDICATE THE ADDITIONS MADE BY THE ASSESSING OF FICER AND HAS CONFIRMED THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ITA NO. 5621/DEL/2011 13 ON MERITS BUT RESTORED THE ASSESSMENT TO THE FILE OF THE ASSESSING OFFICER TO TREAT THE ASSESSEE AS A TRUST REGISTERE D U/S. 12AA AND TO COMPUTE THE INCOME IN ACCORDANCE WITH THE PROVISIONS OF SECTION 11 TO 13 OF THE ACT. NOW IT IS THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE THAT THE LD. COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED IN RELYING ON THE FINDINGS OF THE EARLIER LD . COMMISSIONER OF INCOME TAX (APPEALS) IN PARA 1.03 OF HIS ORDER WITH OUT APPRECIATING THE FACT THAT THE SAID ORDER DATED 30.3.2009 HAS ALREAD Y BEEN QUASHED BY THE ITAT DELHI VIDE ORDER DATED 31.8.2009. WE H AVE CAREFULLY CONSIDER THE SUBMISSIONS WE FIND THAT THE TRIBUNA L IN ITS ORDER DATED 31.8.2009 IN ITA NO. 2796/DEL/2009 (A.Y. 2006-07) V IDE PARA NO. 6 HAS HELD AS UNDER:- IN LIGHT OF THE AFORESAID CLARIFICATION WE THERE FORE FIND IT PROPER AND JUST THAT THE ASSESSMENT FOR THE ASSESSME NT YEAR 2006-07 WHICH IS UNDER CONSIDERATION NEED TO BE MADE AFRESH IN THE LIGHT OF THE ASSESSMENT ORDER WH ICH HAS ALREADY BEEN MADE FOR THE ASSESSMENT YEAR 2004-05 AN D 2005-06 BY TREATING THE ASSESSEE AS TRUST DULY REGI STERED U/S. 12AA OF THE ACT COMPUTING THE INCOME IN ACCORD ANCE WITH THE PROVISIONS OF SECTION 11 TO 13 OF THE ACT. WE DIRECT ACCORDINGLY. ITA NO. 5621/DEL/2011 14 17. BASED ON THE ABOVE TRIBUNALS ORDER WE FIND C OGENCY IN THE ASSESSEES SUBMISSION IN THIS REGARD. IN OUR CO NSIDERED OPINION IN THE INTEREST OF JUSTICE THE ISSUE SHOULD BE REMI TTED TO THE FILE OF THE ASSESSING OFFICER. ACCORDINGLY THE ISSUE STANDS REMITTED TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE ISSUE AFRESH IN LIGHT OF THE AFORESAID TRIBUNALS DECISION. NEEDLESS TO ADD THA T THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 18. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30/3/2012. SD/- SD/- [ [[ [RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 30/3/2012 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHES