The Dy. C.I.T., Central Circle, Agra v. Gayatri Shiksha Samitti, Agra

ITSSA 7/AGR/2010 | 2001-2002
Pronouncement Date: 24-11-2011 | Result: Dismissed

Appeal Details

RSA Number 720316 RSA 2010
Assessee PAN AAAAG1565D
Bench Agra
Appeal Number ITSSA 7/AGR/2010
Duration Of Justice 1 year(s) 27 day(s)
Appellant The Dy. C.I.T., Central Circle, Agra
Respondent Gayatri Shiksha Samitti, Agra
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 24-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 24-11-2011
Date Of Final Hearing 18-11-2011
Next Hearing Date 18-11-2011
Assessment Year 2001-2002
Appeal Filed On 27-10-2010
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 IT(SS)A NO. 6 7 8 & 9/AGRA/2010 ASSTT. YEAR : 2002-03 2001-02 2000-01 & 1999-2000 THE DY. C.I..T. VS. GAYATRI SHIKSHA SAMITI CENTRAL CIRCLE AGRA. 4/195 GHATIA AZAM KHAN AGRA.(PAN :AAAAG 1565D) (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI A.K. SHARMA JR. D.R. FOR RESPONDENT : SHRI VITHAL DAS ADVOCATE DATE OF HEARING : 18.11.2011 DATE OF PRONOUNCEMENT : 24.11.2011 ORDER PER BENCH: THE REVENUE HAS FILED THE PRESENT APPEALS AGAINST THE DIFFERENT IMPUGNED ORDERS DATED 11.08.2010 PASSED BY THE LEARNED CIT(A )-II AGRA. THE ISSUE INVOLVED IN ALL THESE APPEALS ARE IDENTICAL THE IMPUGNED OR DERS PASSED BY THE LD. FIRST APPELLATE AUTHORITY ARE ALSO IDENTICAL AND THE GROU NDS RAISED IN PRESENT APPEALS ARE ALSO SIMILAR THEREFORE ALL THESE APPEALS ARE BEIN G DISPOSED OF BY THIS CONSOLIDATED ORDER AND THE GROUNDS RAISED IN ONE OF THE APPEALS ARE REPRODUCED AS UNDER FOR THE SAKE OF CONVENIENCE : 2 GROUNDS IN ITA NO. 06/AGRA/2010: 1. CIT(A) ERRED IN LAW AND ON FACTS IN ALLOWING EX EMPTION U/S. 10(23C)(IIIAD) WITHOUT PROPERLY APPRECIATING THE FA CT THAT THE ASSESSEE HAS NO WHERE DISCHARGED HIS ONUS REGARDING THE GENU INENESS OF THE SOCIETYS ACTIVITIES AS PER CONDITIONS LAID DOWN IN SECTION 10(23C)(IIIAD). 2. CIT(A) ERRED IN LAW AND ON FACTS IN DELETING TH E ADDITION ON ACCOUNT OF SURPLUS INCOME ON A WRONG APPRECIATION O F FACTS BY HOLDING THAT THE AO WAS NOT ABLE TO POINT OUT ANY D EFECTS IN THE ACTIVITIES OF THE SOCIETY. THIS FINDING IS NOT BORN E OUT FROM THE FACTS OF THE CASE AS THE AO HAS VERY COGENTLY POINTED OUT TH E DETAILS OF SEIZED DOCUMENTS AS PER ANNEX. A-6 A-7 A-8 A-9 AND A-10 WERE NOT ENTERED IN THE REGULAR BOOKS OF ACCOUNTS. 3. IN DOING SO THE CIT(A) IGNORED THE BARE FACT TH AT EVIDENCE AS MENTIONED IN THE GROUNDS OF APPEAL IN NO. (2) WERE FOUND AND SEIZED FROM THE ASSESSEES PREMISES DURING THE COURSE OF S EARCH OPERATION. 4. THE ORDER OF THE LD. CIT(A) BEING ERRONEOUS IN LAW AND ON FACTS AS WELL AS WITHOUT JURISDICTION NEEDS TO BE V ACATED AND THE ORDER OF THE AO BE RESTORED. 2. THE FACTS OF THE CASE NARRATED BY THE REVENUE A TUHORITIES ARE THAT THE ASSESSEE IS A SOCIETY AND RUNNING A SCHOOL IN THE N AME AND STYLE OF GAYATRI PUBLIC SCHOOL GHATIA AZAM KHAN AGRA. AS PER THE ASSESSME NT ORDER THERE WAS SEARCH AND SEIZURE OPERATION CARRIED BY THE DEPARTMENT U/S . 132(1) OF THE ACT AT THE RESIDENCE OF SMT. RADHA RANI SHARMA WHO IS INTIMAT ELY CONNECTED WITH THE ASSESSEE-SOCIETY. ALSO AS PER THE ASSESSMENT ORDER DURING THE COURSE OF SEARCH AND SEIZURE OPERATION CARRIED OUT IN THE CASE OF SHRI G IRDHAR SHARMA INCRIMINATING DOCUMENTS AND CASH WAS FOUND. IT IS FURTHER MENTION ED IN THE ASSESSMENT ORDER THAT 3 SHRI GIRDHAR SHARMA IS DIRECTLY LINKED WITH THE SOC IETY. NOTICE U/S. 153C READ WITH SECTION 153A WAS ISSUED TO THE APPELLANT SOCIETY. A S REGARDS THE APPELLANT SOCIETY SURVEY U/S. 133A WAS CONDUCED AT ITS PREMISES ON 16 .09.04 AND CERTAIN BOOKS OF ACCOUNT WERE IMPOUNDED. AS PER THE AO THE SOCIETY WAS ASKED TO PROVE THAT IT EXISTED SOLELY FOR EDUCATIONAL PURPOSES AND NOT FOR PROFIT AND WAS ALSO ASKED TO JUSTIFY ITS CLAIM OF EXEMPTION U/S. 10(23C)(IIIAD). IT WAS SUBMITTED BEFORE THE AO THAT THE SOCIETY WAS RUNNING A SCHOOL AND A CHART G IVING DETAILS OF RECEIPTS AND EXPENDITURE WAS ALSO FILED FROM A.Y. 1999-200 TO 20 05-06 WHICH HAS BEEN REPRODUCED BY THE AO IN THE BODY OF THE ASSESSMENT ORDER. AS PER THE AO THERE IS A LOT OF VARIATION IN THE EXPENSES CLAIMED BY THE S OCIETY IN DIFFERENT YEARS. IT IS ALLEGED BY THE AO THAT A PERUSAL OF RECORD SHOWS TH AT IN A PARTICULAR YEAR IF THE ASSESSEE HAS TO INVEST OR IT REQUIRES FUNDS IN THA T YEAR INCOME INCREASES OTHERWISE ITS INCOME REMAINS NORMAL. MOREOVER AS PER THE AO MOST OF THE VOUCHERS OF EXPENSES ARE SELF MADE. APPARENTLY ACCORDING TO TH E AO THERE IS NO JUSTIFICATION FOR THE EXPENSES. THE AO HAS ALSO REFERRED TO THE D OCUMENTS SEIZED FROM THE RESIDENCE OF SMT. RADHA SHARMA AND HAS OBSERVED THA T MANY OF THE ENTRIES AS MENTIONED IN THESE ANNEXURES ARE APPEARING IN THE B OOKS OF ACCOUNT OF THE ASSESSEE BUT ALL THE ENTRIES RELATING TO EXPENSES DO NOT FIND MENTION IN THE BOOKS OF ACCOUNTS. IT HAS ALSO BEEN STATED BY THE AO THAT TH E APPELLANT SOCIETY IS GIVING HIGH SALARY AND FACILITIES OF CARS TO THE MANAGERS AND O THER PERSONS CONNECTED WITH THE 4 SOCIETY. BY MAKING THESE OBSERVATIONS THE AO HAS CO NCLUDED THAT THE CLAIM OF THE APPELLANT THAT IT SOLELY EXISTS FOR THE EDUCATIONAL PURPOSES IS NOT PROVED IN ANY WAY AND ACCORDINGLY HE HAS HELD THAT THE SOCIETY CANN OT BE ALLOWED EXEMPTION U/S. 10(23C)(IIIAD). THUS THE ASSESSING OFFICER COMPLET ED THE ASSESSMENT U/S. 153A ON 29.12.2006. AGGRIEVED BY THE SAME THE ASSESSEE FIL ED THE APPEALS BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO VIDE ORDER DATED 11.0 8.2010 ALLOWED THE APPEAL OF THE ASSESSEE BY CANCELING THE ASSESSMENT ORDER PASSED B Y THE ASSESSING OFFICER. NOW THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDERS AND HAS FILED THE PRESENT APPEALS. 3. THE LD. DR RELIED UPON THE ORDER OF THE ASSESSIN G OFFICER. ON THE CONTRARY AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASS ESSEE STATED THAT THE ISSUE IN DISPUTE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER DATED 18.10.2011 OF ITAT AGRA BENCH IN THE CASE OF ITO VS. ST. ANDREWS PUBLI C SCHOOL SOCIETY AGRA IN ITA NOS. 388 TO 389/AGR/2010 FOR A.YRS. 2003-04 TO 2005 -06. HE REQUESTED THE APPEAL FILED BY THE REVENUE MAY BE DISMISSED. HE FURTHER S TATED THAT THE ASSESSING OFFICER HAS PASSED A CYCLOSTYLE ORDER WITHOUT APPLY ING MIND BUT THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY APPRECIATED THE FAC TS AND THE DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE AND ALLOWED THE APPEALS. HE RELIED ON THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY. 5 4. WE HAVE HEARD THE BOTH PARTIES AND HAVE PERUSED THE MATERIAL AVAILABLE WITH US. WE ARE OF THE CONSIDERED OPINION THAT THE ASSES SING OFFICER PASSED A CYCLOSTYLE ORDER WITHOUT APPLYING THE MIND BECAUSE HAS MADE TH E ADDITION ON ACCOUNT OF ANNEXURE A-6 A-7 A-8 AND A-9 AND ALLEGED THAT THE ENTRIES OF THESE DOCUMENTS HAD NOT BEEN MADE BY THE ASSESSEE IN ITS ACCOUNT BO OKS. WE HAVE PERUSED THESE ANNEXURES AND FOUND THAT ANNEXURE A-6 AND A-9 ARE N OT RELATING TO THE YEARS IN DISPUTE I.E. THAT ARE RELATING TO THE ASSESSMENT YEAR 2004-05 (A-9) AND A.Y. 2005- 06 (A-6) MEANING THEREBY THE ASSESSING OFFICER HAS NOT APPLIED HIS MIND WHILE COMPLETING THE ASSESSMENT. THEREFORE IT IS LIABLE TO BE CANCELLED AND THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY CANCELLED THE SAME BY THOROUGHLY GOING THROUGH THE EVIDENCE FILED BY THE ASSESSEE. 5. AS REGARD TO THE ORDER DATED 18.10.2001 PASSED B Y THIS BENCH IN THE CASE OF ITO VS. ST. ANDREWS PUBLIC SCHOOL SOCIETY (SUPRA) WE ARE OF THE VIEW THAT THE RATIO OF THIS ORDER IS ALSO IN FAVOUR OF THE ASSESS EE. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE WE ARE OF THE VI EW THAT THE AO HAS FAILED TO MAKE OUT ANY CASE AGAINST THE ASSESSEE WITH ANY SUP PORTING EVIDENCE AND HAS WRONGLY DENIED EXEMPTION U/S. 10(23C)(IIIAD). IN OU R CONSIDERED OPINION THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY PASSED ORDER IN PARA NO.2.2 PAGE NO. 5 OF THE IMPUGNED ORDER BY ALLOWING THIS EXEMPTION TO THE AS SESSEE. WE UPHOLD THE FINDING 6 OF THE LD. FIRST APPELLATE AUTHORITY. AS REGARD TO THE DELETION OF ADDITION BY THE LD. FIRST APPELLATE AUTHORITY AFTER GOING THROUGH THE O RDER PASSED BY THE REVENUE AUTHORITIES WE ARE OF THE VIEW THAT THE DISALLOWAN CES IN DISPUTE MADE BY THE ASSESSING OFFICER ARE IN ARBITRARY MANNER AND WITHO UT POINTING OUT ANY DISCREPANCIES IN THE EXPENDITURES CLAIMED BY THE AS SESSEE. THEREFORE THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY DELETED THE ADDITIO NS IN DISPUTE IN ALL THE PRESENT APPEALS. WE FIND NO INFIRMITY IN THE IMPUGNED ORDER . THEREFORE WE UPHOLD THE SAME BY DISMISSING THE APPEALS OF THE REVENUE. 6. IN THE RESULT THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24.11.2011. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24 TH 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. 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