M/s Patiala Urban Planning and Development Authority, Patiala v. ITO, Patiala

MA 74/CHANDI/2016 | 2008-2009
Pronouncement Date: 13-11-2017 | Result: Dismissed

Appeal Details

RSA Number 7421524 RSA 2016
Assessee PAN AAALP0095J
Bench Chandigarh
Appeal Number MA 74/CHANDI/2016
Duration Of Justice 1 year(s) 2 month(s) 5 day(s)
Appellant M/s Patiala Urban Planning and Development Authority, Patiala
Respondent ITO, Patiala
Appeal Type Miscellaneous Application
Pronouncement Date 13-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 13-11-2017
Assessment Year 2008-2009
Appeal Filed On 08-09-2016
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI SANJAY GARG JUDICIAL MEMBER & MS. ANNAPURNA GUPTA ACCOUNTANT MEMBER M.A. NO. 73/CHD/2016 (IN ITA NO. 674/CHD/2014) (ASSESSMENT YEAR: 2007-08) M/S PATIALA URBAN PLANNING & VS. THE ITO WARD-2 DEVELOPMENT AUTHORITY PATIALA PATIALA. PAN NO. AAALP0095J M.A. NO. 74/CHD/2016 (IN ITA NO. 675/CHD/2014) (ASSESSMENT YEAR: 2008-09) M/S PATIALA URBAN PLANNING & VS. THE ITO WARD-2 DEVELOPMENT AUTHORITY PATIALA PATIALA. PAN NO. AAALP0095J M.A. NO. 75/CHD/2016 (IN ITA NO. 839/CHD/2014) (ASSESSMENT YEAR: 2010-11) M/S PATIALA URBAN PLANNING & VS. THE ITO WARD-2 DEVELOPMENT AUTHORITY PATIALA PATIALA. PAN NO. AAALP0095J & M.A. NO. 76/CHD/2016 (IN ITA NO. 840/CHD/2014) (ASSESSMENT YEAR: 2011-12) M/S PATIALA URBAN PLANNING & VS. THE ITO WARD-2 DEVELOPMENT AUTHORITY PATIALA PATIALA. PAN NO. AAALP0095J (APPELLANT) (RESPONDENT) 2 APPELLANT BY : SH. TEJ MOHAN SINGH RESPONDENT BY : SH. K.S. BAINS DATE OF HEARING : 27.10.2017 DATE OF PRONOUNCEMENT : 13.11.2017 ORDER PER SANJAY GARG JUDICIAL MEMBER: THE CAPTIONED MISC. APPLICATIONS WITH IDENTICAL PLE ADINGS MADE THEREIN HAVE BEEN MOVED BY THE ASSESSEE STATING THE REIN THAT A MISTAKE APPARENT ON RECORD HAS CREPT IN THE COMMON ORDER DA TED 6.5.2015 OF THIS TRIBUNAL PASSED IN ITA NOS. 674 & 675/CHD/2014 AND ITA NOS. 839 & 840/CHD/2014 DISMISSING THE AFORESAID APPEALS. 2. PARA NOS. 1 TO 3 OF THE APPLICATIONS ARE A MATTE R OF RECORD. IN PARA 4 OF THE APPLICATION IT HAS BEEN PLEADED THAT THOUGH AN ADJOURNMENT APPLICATION WAS MOVED BY THE ASSESSEE ON THE GROUND THAT THE APPEAL U/S 12AA OF THE ACT WAS FIXED ON 25.5.2015 HOWEVER TH E SAID APPLICATION OF THE ASSESSEE WAS REJECTED BY THE TRIBUNAL AND THE M ATTER WAS HEARD ON MERITS ON 30.04.2015. IT HAS BEEN PLEADED THAT THE APPEAL WAS DECIDED ON MERITS ON THE BASIS OF MATERIAL ON RECORD WITHOUT A NY ARGUMENTS HAVING BEEN ADVANCED BY THE COUNSEL FOR THE ASSESSEE IN PA RAS 5 & 6 OF THE APPLICATION THE RELEVANT PART I.E. PARAS 18 TO 21 OF THE ORDER OF THE TRIBUNAL HAS BEEN REPRODUCED. IN PARA 7 OF THE APP LICATION IT HAS BEEN PLEADED THAT TRIBUNAL HAS RECORDED A WRONG FINDING THAT NO AMOUNT WAS SPENT BY THE ASSESSEE ON CHARITABLE PURPOSES; THAT THE BENCH HAD FAILED TO CONSIDER THAT THERE WAS A VALID REGISTRATION U/S 12 A OF THE ACT WAS SUBSISTING IN FAVOUR OF THE ASSESSE AND THAT THE AS SESSING OFFICER COULD NOT 3 HAVE DISREGARDED THE SAME. THAT THE TRIBUNAL HAS ALSO FAILED TO TAKE NOTICE THAT THE ASSESSEE HAD SPECIFICALLY INFORMED THE AO THAT FORM 10 HAS BEEN FILED BY THE ASSESSEE WITH THE RETURN AS PER T HE PROVISIONS OF SECTION 11(2) OF THE ACT. IT HAS BEEN FURTHER PLEADED IN T HE SUBSEQUENT PARAS OF THE APPLICATION THAT THE ASSESSING OFFICER IN HIS ORDER RELIED ON THE DECISION OF THE HONBLE UTTRAKHAD HIGH COURT WHICH HAS BEEN OVE RRULED BY THE HONBLE SUPREME COURT AND YET THE TRIBUNAL HAS CONC LUDED THE AUTHORITIES BELOW HAVE CORRECTLY ANALYZED THE FACTS AND MATERIAL ON RECORD BEFORE GIVING ADVERSE FINDINGS AGAINST THE ASSESSEE DENYING EXEMPTION UNDER SECTION11 OF THE I.T. ACT WHICH IS A MISTAK E APPARENT ON RECORD. IT HAS BEEN FURTHER PLEADED THAT THE AUTHORITIES BE LOW HAD RELIED UPON THE DECISION OF THE HIGH COURT IN THE CASE OF QUEENS E DUCATIONAL SOCIETY WHICH STOOD REVERSED BY THE SUPREME COURT BUT THE TRIBUNAL FAILED TO TAKE NOTE OF THE DECISION OF THE SUPREME COURT REPORTED IN 372 ITR 699 (SC). FURTHER A SUBSEQUENT EVENT HAS BEEN PLEADED THAT T HE REGISTRATION U/S 12AA WHICH WAS CANCELLED BY THE LOWER AUTHORITIES HAS BEEN RESTORED BY THE TRIBUNAL VIDE ORDER DT 4.12.2015. IT HAS THER EFORE BEEN PLEADED THAT IN VIEW OF THE AFORESAID FACTUAL AND LEGAL ASPECTS GRAVE INJUSTICE HAS BEEN CAUSED TO THE ASSESSEE AND THEREFORE RECALLING OF T HE ORDER DATED 6.5.2011 HAS BEEN PRAYED FOR. 3. WE HAVE HEARD THE CONTENTIONS AND HAVE ALSO GON E THROUGH THE RECORD. 4. WE HAVE GONE THROUGH THE IMPUGNED ORDER. WE FIN D THAT THE TRIBUNAL (PRESIDED OVER BY OUR PREDECESSOR MEMBERS) IN PAR AS 2 & 3 HAS THOROUGHLY DISCUSSED THAT DESPITE GIVING SUFFICIENT OPPORTUNITIES THE COUNSEL FOR THE ASSESSEE HAD NEITHER FILED PAPER BO OK NOR WRITTEN 4 SUBMISSIONS BUT CONSISTENTLY SOUGHT ADJOURNMENTS. U LTIMATELY LAST OPPORTUNITY WAS ALSO GRANTED. HOWEVER AGAIN ADJOU RNMENTS APPLICATIONS HAD BEEN MOVED. IN THE LAST ADJOURNMENT APPLICATIO N MOVED ON 30.04.2015 IT WAS REQUESTED THAT THE APPEAL U/S 12 AA OF THE ACT WAS FIXED ON 25.5.2015 THEREFORE THE CAPTIONED APPEALS SHO ULD BE ADJOURNED. THE BENCH FOUND THE REQUEST IMPROPER AS THE APPEALS UND ER CONSIDERATION HAD NO CONNECTION WITH THE APPEALS FIXED FOR 25.5.2015. THE LD. COUNSEL FOR THE ASSESSEE WAS GIVEN OPPORTUNITY TO ARGUE THE APP EALS BUT HE DID NOT ARGUE THE SAME. HENCE THE APPEALS WERE DECIDED AF TER HEARING THE LD. DRS AND PURSUING THE MATERIAL ON RECORD. 5. PARAS 2 & 3 OF THE ORDER DATED 6.5.2015 OF THIS TRIBUNAL FOR THE PURPOSE OF READY REFERENCE IS REPRODUCED AS UNDER:- 2. IT MAY BE NOTED HERE THAT DURING THE HEARING OF APPEALS LD. COUNSEL FOR THE ASSESSEE DID NOT ARGUE ALL THE APPEALS. THE RECORD REVEALED THAT TWO APPEALS FOR ASSESSMENT YEARS 2007-08 AND 2008-09 WERE FILED IN JULY 2014 AND THESE WERE TAKEN UP FOR HEARING ON 30.09.2014. ON 30.09.2014 LD. COUNSEL FOR THE ASS ESSEE SOUGHT ADJOURNMENT ON THE GROUND THAT IN THESE CASE S PAPER BOOK AND WRITTEN SUBMISSIONS ARE REQUIRED TO BE FILED THEREFORE ON HIS REQUEST APPEALS WERE ADJO URNED TO 20.01.2015. ON 20.01.2015 AGAIN LD. COUNSEL FOR T HE ASSESSEE MADE A SIMILAR REQUEST FOR ADJOURNMENT ON THE SIMILAR GROUND THAT PAPER BOOK AND WRITTEN SUBMISSI ONS ARE REQUIRED TO BE FILED. THE APPEALS WERE ADJOURN ED TO 09.04.2015. THE APPEALS WERE TAKEN UP FOR HEARING ON 09.04.2015 AND AGAIN A REQUEST WAS MADE FOR ADJOURNMENT ON THE GROUND THAT ARGUING COUNSEL HAS GONE ABROAD FOR A SHORT VISIT. ON HIS REQUEST THE APPE ALS WERE ADJOURNED TO 30.04.2015 AND IT WAS DIRECTED THAT IT WOULD BE LAST OPPORTUNITY TO THE ASSESSEE. 5 3. THE REMAINING TWO APPEALS FOR ASSESSMENT YEARS 2010-11 AND 2011-12 WERE ALSO LATER ON TAKEN UP TOGETHER FOR THE PURPOSE OF HEARING BEING THE ISSU ES COMMON. ON 30.04.2014 THE LD. COUNSEL FOR THE ASSE SSEE INSTEAD OF ARGUING THE APPEALS ON MERITS AGAIN MAD E A REQUEST FOR ADJOURNMENT ON THE GROUND THAT THE APPE AL UNDER SECTION 12AA OF THE ACT IS FIXED ON 25.05.201 5 THEREFORE THESE APPEALS MAY BE ADJOURNED. THE REQ UEST OF ASSESSEE WAS FOUND IMPROPER AS IT HAS NO CONNECT ION WITH SUCH APPEAL. THE ASSESSEE TILL DATE HAS NOT FILED ANY PAPER BOOK OR WRITTEN SUBMISSIONS ON WHICH EARL IER ADJOURNMENTS WERE SOUGHT. THE REQUEST FOR ADJOURNM ENT WAS ACCORDINGLY REJECTED. THE LD. COUNSEL FOR THE ASSESSEE WAS GIVEN OPPORTUNITY TO ARGUE THE APPEALS HOWEVER HE HAS NOT ARGUED ANY OF THE APPEALS. THEREFORE WE PROCEED TO DECIDE ALL THE APPEALS ON MERITS ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. 6. THE LD COUNSEL FOR THE APPLICANT COULD NOT BRING OUT AS TO WHICH OF THE FACT RECODED ABOVE IN PARAS 2 & 3 OF THE IMPUGN ED ORDER WAS WRONG OR NOT AS PER RECORD. WE THEREFORE DO NOT FIND ANY MISTAKE APPARENT ON RECORD IN THIS RESPECT. MERELY BECAUSE THE APPLICA TION FOR ADJOURNMENT HAS BENE REJECTED FOR THE JUSTIFIABLE REASONS AS REPRO DUCED ABOVE THAT ITSELF DOES NOT CONSTITUTE ANY MISTAKE CALLING FOR ANY REC TIFICATION. 7. SO FAR AS THE CONTENTION THAT THE ASSESSEE WAS H AVING A VALID REGISTRATION U/S 12A OF THE ACT AND THAT THE SAID F ACT HAS BEEN IGNORED BY THE ASSESSING OFFICER AND THAT THE BENCH HAS ALSO FAILED TO TAKE NOTE OF THE FACT THE ASSESSEE HAD FURNISHED FORM 10 TO THE ASSE SSING OFFICER IS CONCERNED WE FIND THAT THE EFFECT OF REGISTRATION U/S 12AA HAS BEEN THOROUGHLY DISCUSSED BY THE TRIBUNAL IN PARA 21 OF THE ORDER WHEREIN IT HAS BEEN OBSERVED THAT THERE IS NO QUARREL ABOUT TH E LEGAL POSITION THAT EVEN IF REGISTRATION IS EXISTING U/S 12AA IN FAVOUR OF T HE ASSESSEE STILL ASSESSING OFFICER IS EMPOWERED TO EXAMINE THE APPLI CABILITY OF PROVISIONS 6 OF SECTIONS 11 TO 13 OF THE ACT AT THE ASSESSMENT S TAGE TO SEE WHETHER INCOME IS APPLIED BY THE ASSESSEE FOR CHARITABLE PU RPOSE TO ACHIEVE ITS AIMS AND OBJECTS. THE TRIBUNAL IN THE IMPUGNED ORDER H AS DISCUSSED THE FACTUAL ASPECTS OF THE CASE AND HELD THAT THE AUTHORITIES B ELOW HAVE CORRECTLY ANALYSED THE FACTS AND MATERIAL ON RECORD. THE TRI BUNAL AFTER ANALYZING THE FACTS HAS GIVEN THE FACTUAL FINDINGS THAT THE ASSES SEE HAD NOT SPENT THE AMOUNT ON CHARITABLE ACTIVITIES RATHER THE ASSESSE E WAS INVOLVED IN COMMERCIAL ACTIVITIES. THE RELEVANT PARA 21 OF THE ORDER DATED 6.5.2015 FOR THE PURPOSE OF READY REFERENCE IS REPRODUCED A S UNDER:- 21. WE DO NOT FIND ANY QUARREL WITH THE LEGAL PROPOSITION ARGUED BY THE LD. DR BECAUSE EVEN IF REGISTRATION IS EXISTING UNDER SECTION 12AA IN FAVO UR OF THE ASSESSEE STILL ASSESSING OFFICER IS EMPOWERED TO EXAMINE THE APPLICABILITY OF PROVISIONS OF SECTION 11 TO 13 AT THE ASSESSMENT STAGE TO SEE WHETHER INCOME IS APPLIED BY THE ASSESSEE FOR CHARITABLE PURPOSE TO A CHIEVE ITS AIMS AND OBJECTS. IN THE PRESENT CASE THE ASS ESSING OFFICER ON THE BASIS OF THE FINDING GIVEN IN SUBSEQ UENT ASSESSMENT YEAR 2009-10 AND EXAMINING THE RECORD OF THIS ASSESSMENT YEAR FOUND THAT ASSESSEE HAS BEEN CARRYING ON BUSINESS OF SALE OF PLOTS AND EARNED HU GE PROFITS AS WELL AS ENTERED INTO AGREEMENT WITH M/S OMAXE LTD. AND EARNED 15% OF THE PROFIT FROM SUCH ACTIVITY. NO AMOUNT IS SPENT ON CHARITABLE PURPOSE S. THEREFORE ASSESSING OFFICER RIGHTLY FOUND THAT ASSESSEE'S ACTIVITY DOES NOT FALL WITHIN THE MEANIN G OF THE ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUB LIC UTILITY UNDER SECTION 2(15) OF THE INCOME TAX ACT. THE LD. CIT(APPEALS) ALSO NOTED IN THE IMPUGNED ORDER T HAT FACTS OF THE CASE OF THE ASSESSEE ARE IDENTICAL TO THAT OF PUDA AS WAS CONTENDED BY THE ASSESSEE BEFORE HIM. THE LD. CIT(APPEALS) WAS THEREFORE JUSTIFIED IN FO LLOWING THE DECISION OF ITAT CHANDIGARH BENCH IN THE CASE O F PUDA (SUPRA). IT WAS ALSO FOUND THAT WHEN INCOME O F M/S OMAXE LTD. WAS TAXABLE WHICH EARNED 85% OF THE 7 INCOME THEN HOW THE INCOME OF THE ASSESSEE AT 15% FROM THE SAME JOINT AGREEMENT WITH M/S OMAXE LTD. WOULD BE EXEMPT AND HOW THE ASSESSEE COULD CLAIM EXEMPTION O F INCOME UNDER SECTION 11 OF THE ACT. THE AUTHORITIE S BELOW HAVE CORRECTLY ANALYZED THE FACTS AND MATERIA L ON RECORD BEFORE GIVING ADVERSE FINDING AGAINST THE AS SESSEE DENYING EXEMPTION U/S 11 OF IT ACT. THE ASSESSEE H AS NOT BEEN ABLE TO REBUT THE FINDING OF FACTS RECORDE D BY THE AUTHORITIES BELOW AND IN THE ABSENCE OF ANY MAT ERIAL ON RECORD IN FAVOUR OF THE ASSESSEE WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDERS OF THE A UTHORITIES BELOW. GROUND OF APPEAL NOS. 2 & 3 OF THE APPEAL O F THE ASSESSEE ARE ACCORDINGLY DISMISSED. 8. WE FIND FROM THE IMPUGNED ORDER THAT IT IS NOT A CASE WHERE ANY PROPOSITION OF LAW WHICH HAS BEEN REVERSED BY THE S UPREME COURT HAS BEEN APPLIED OR ANY PROPOSITION OF LAW LAID DOWN BY THE HONBLE SUPREME COURT HAS BEEN IGNORED THOUGH CITED BEFORE THE TRIBUNAL. THE EARLIER COUNSEL OF THE ASSESSEE HAD HIMSELF CHOSEN NOT TO ARGUE THE CA SE BEFORE THE TRIBUNAL AND NOW AT THIS STAGE BY CITING CERTAIN CASE LAWS I N THE RECTIFICATION APPLICATION AND STATING THAT A MISTAKE HAS OCCURRED IN THE ORDER OF THE TRIBUNAL CANNOT BE HELD TO BE JUSTIFIABLE. MOREOV ER AS OBSERVED ABOVE THE APPEALS OF THE ASSESSEE HAVE BEEN DECIDED ON FA CTUAL ASPECTS AND NOT ON THE BASIS OF ANY LEGAL PROPOSITION BY THE TRIBUNAL. THE COUNSEL FOR THE ASSESSEE HAS BEEN SPECIFICALLY ASKED TO SHOW WHICH OF THE CASE LAW CITED BY THE ASSESSEE HAS NOT BEEN TAKEN NOTE OF AND WHICH O F THE CASE LAWS HAVE BEEN WRONGLY APPLIED BY THE TRIBUNAL IN THE IMPUGNE D ORDER BUT HE COULD NOT SHOW OR DEMONSTRATE ANY SUCH ASPECT IN THE IMPU GNED ORDER OF THE TRIBUNAL. THE TRIBUNAL AS THE FACTS WERE AVAILAB LE BEFORE IT HAS GIVEN A FACTUAL FINDINGS. WITH DUE RESPECT TO ALL THE CASE LAWS RELIED UPON BY THE COUNSEL FOR THE ASSESSEE WE FIND NO MISTAKE APPARE NT ON RECORD IN THIS 8 CASE. SO FAR AS RELIANCE OF THE LD. COUNSEL ON TH E SUBSEQUENT DECISION OF THE TRIBUNAL IS CONCERNED IN OUR VIEW ANY FINDING ARRIVED BY A COORDINATE BENCH OF THE TRIBUNAL IN A SUBSEQUENT DECISION CAN NOT BE HELD TO BE A REASON ENOUGH TO HOLD THAT THERE WAS ANY MISTAKE IN THE EARLIER ORDER OF THE TRIBUNAL. MOREOVER WE DEEM IT FIT TO MENTION FUR THER HERE THAT THIS TRIBUNAL HAS NO POWER TO REVIEW. IF THE ASSESSEE H AS ANY GRIEVANCE AGAINST THE IMPUGNED ORDER PROPER COURSE IS TO AGITATE THE SAME BEFORE THE NEXT APPELLATE AUTHORITY. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX VS RAMESH ELECTRIC AND TRADING CO. 1993 203 ITR 497 (BOM.) WHILE RELYING UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF T. S. BALARAM ITO V. VOLKART BROTHERS [1971] 82 ITR 50 AND FURTHER RELYING UPON THE DECIS IONS OF THE VARIOUS HIGH COURTS HAS CATEGORICALLY HELD THAT THE POWER O F RECTIFICATION UNDER SECTION 254(2) OF THE INCOME-TAX ACT CAN BE EXERCIS ED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIO US AND PATENT; MISTAKE WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAK E WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS O F REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FAI LURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FO R ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT AND UNDER SUCH CIRCUMSTANCES THE TRIBUNAL HAS NO JURISDICTION UNDER SECTION 254(2) TO PASS THE SECON D ORDER. 9. IN VIEW OF OUR ABOVE OBSERVATIONS AND THE LEGAL POSITION AS STATED ABOVE WE DO NOT FIND ANY MERIT IN THIS APPLICATION AND THE SAME IS ACCORDINGLY HEREBY DISMISSED. 9 10. IN VIEW OF THE ABOVE ALL THE CAPTIONED MISC. A PPLICATIONS ARE HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.11.2017 SD/- SD/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13.11.2017 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR