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Income Tax Appellate Tribunal, JAIPUR BENCHES “B”, JAIPUR
Before: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO, JM vk;dj vihy la-@ITA No. 1222/JP/2018
ORDER PER: R.C. SHARMA, A.M. This is an appeal filed by the revenue against the order of ld.CIT(A)-3, Jaipur dated 02/08/2018 for the A.Y. 2014-15 in the matter of order passed u/s 143(3) of the Income Tax Act, 1961 (in short, the Act). Following grounds of appeal have been taken by the Revenue:
1. On the facts and circumstances of the case and in law the ld. CIT(A) has erred in allowing Gujara Bhatta as application of income of the trust ignoring the fact that it was not in the proportion of the services rendered by the trustees and not fixed by the State Government as per Section 65 of the Rajasthan Public Trust Act, 1959 r.w. Rule 38 of the Rajasthan Public Trust Rules, 1962.
Any other question of law as deemed fit in the facts and circumstances of the case may also be framed before the Hon’ble Tribunal in the interest of justice.”
2 DCIT(E) Vs M/s Shri Shyam Mandir Committee 2. Rival contentions have been heard and record perused. The issue under consideration relate to disallowance of Gujara Bhatta of Rs. 70,17,210/- paid to the trustees. The disallowance so made was deleted by the ld. CIT(A) after following the order of the Tribunal in assessee’s own case. The precise observation of the ld. CIT(A) was as under:
“5.3 I have carefully considered the facts of the case, findings of the AO and submission of the appellant. It is pertinent to mention that in the case of appellant itself in A.Y. 2009-10 & 2010-11 similar action was made by AO and after considering the objects and activity of appellant, dated 17/09/2015 and 21/09/2015 allowed the exemption available u/s 11 & 12 of the Act. These facts were submitted before AO during the assessment proceedings which were not accepted since department had preferred further appeal before ITAT. Now Hon'ble ITAT vide orders dated 05.05.2016 in & 846/JP/2015 has upheld the order of CIT(A), by giving the following finding:-
"At the outset, the ld AR of the assessee has submitted that the issue under consideration in both the assessment years has already been considered by the Hon'ble ITAT, Jaipur Bench, Jaipur in the assessee's own case vide order dated 28/01/2010 passed in and the appeal has been decided in favour of the assessee. Therefore, he prayed to confirm the order of the ld.CIT(A) in both the assessment years. We have heard the rival contentions of both the parties and perused the material available on the record. The ld CIT(A) has followed the earlier order of the Coordinate Bench passed in the assessee's own case for the same issue under consideration and decided the appeal in favour of the assessee. The Coordinate Bench in assessee's own case in ITA No.789/JP/2009 order dated 28/01/2010 has allowed the appeal in favour of the assessee. As the facts and circumstances of the case are identical to the earlier
3 DCIT(E) Vs M/s Shri Shyam Mandir Committee years. The revenue has not pointed out any change into facts and circumstances in the years under consideration, therefore, by respectfully following the decision of the Coordinate Bench, we confirm the order of the ld CIT(A)." The Honourable Rajasthan High Court in the appellant own case for also upheld the decision of the Honourable ITAT making observation as under:-
"Before proceeding with the matter, it will not be out of place mention here that in all the questions of law, the question which consideration before us in whether taking into account, the observations made in paragraph 10, the view taken by the tribunal proper. At the time of registration, the authority is red to look whether it is registered under the state Act or under any other Act. There is no distinction between private trust and public trust. The contention which has been raised by counsel for the appellant regarding the expenses, diversion or control by the private people will come only when the assessment has taken place. For the purpose of trust registered and the income used is for the charitable purpose or not and whether income from public trust if it is going for any private use will negative the very object of the Trust Act which is the main intention of the legislation, is not to be considered at this stage.
In that view of the matter, we see no reason for interfere with the finding of the tribunal. Both the issues are answered in favour of the assessee."
This issue is squarely covered in favour of appellant. Under these circumstances by respectfully following the order of Honourable Rajasthan High Court as above and the order of Hon'ble ITAT in assessee's own case and considering the reasons stated above. The AO is, accordingly, directed to assess the 4 DCIT(E) Vs M/s Shri Shyam Mandir Committee society as per the provisions of section 11 & 12, and grant the requisite exemption. These grounds are allowed.”
The ld DR has fairly conceded the fact that the issue under consideration is squarely covered by the decision of the Tribunal in assessee’s own case. As the facts and circumstances during the year under consideration are pari materia, respectfully following the order of the Tribunal in assessee’s own case, we do not find any infirmity in the order of the ld. CIT(A) for deleting the disallowance so made.
In the result, appeal of the revenue is dismissed. Order pronounced in the open court on 23rd July, 2019.
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