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Income Tax Appellate Tribunal, DELHI ‘D’ BENCH,
Before: SHRI BHAVNESH SAINI, & SHRI T.S. KAPOOR,
PER T. S. KAPOOR, ACCOUNTANT MEMBER,
This is an appeal filed by the Revenue against the order of Ld.
CIT(A)-40, dated 19/10/2015. The Revenue has taken following grounds of appeal:-
“1. On the facts in the circumstances of the case and in law, the Ld. CIT(A) has erred in allowing the benefit of exemptions u/s 11 & 12 of the Act ignoring that the activities of the trust which are aimed at profit making and were not within the purview of the Section 2(15) of the Act, 1961 during the year. 2. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in allowing the benefit of exemptions u/s 11& 12 of the Act disregarding the fact that as per various clauses of “Management agreement”, it has actually been established that the Kapur Hospital, Delhi has been transferred to M/s Integrated Health and Health care Services pvt. Ltd. and the society no concern with the activities of the Hospital.” 2. At the outset, the Ld. AR submitted that the case of the assessee is squarely covered by earlier order of the Tribunal in the case of assessee itself. The Ld. AR submitted that the assessee is registered society under Societies Registration Act and is running hospital in the name of B.L.
Kapoor Memorial Hospital at Ludhiana and New Delhi. It was submitted that the Hon’ble Tribunal in Assessment Year 2003-04 had allowed the issue raised by the Department in favour of the assessee. In this respect our attention was invited to pages 4 to 7 of the paper book, where the order of the Tribunal was placed. It was submitted that the AO in view of the order of the Tribunal had given effect to the directions of the Tribunal and a copy of which was placed in paper book page 8 to 14. The ld. AR further invited our attention to the fact that the AO at his own from AY 2005-06 to 2009-10 had granted the benefit of registration u/s 11 of the Act and in this respect our attention was invited to paper book pages 22 to
The Ld. AR again invited our attention to the order of the Tribunal for AY.2010-11 placed at paper book page 32 to 33. The Ld. AR submitted that again the Hon’ble Tribunal has followed earlier order and therefore, it was prayed that the appeal filed by the Revenue be dismissed.
The Ld. DR has fairly agreed that the issue was covered in favour of the assessee however she placed her reliance on the order of the Assessing Officer.
We have heard the rival parties and have gone through the material available on record. We find that the Assessing Officer had not allowed benefit of section 11 and 12 of the Act however, the Ld. CIT(A) relying on the various decisions of the Tribunal in the case of assessee itself has allowed relief to the assessee by holding as under:-
“4.7. I have carefully considered the order passed by the AO and also the submissions made by the AR of the assessee along with papers and documents filed before me, which are mainly the orders passed by the AO for AY 2003-04 and 2004-05 and assessment year 2010-11, in which the assessee was denied exemption u/s 11, 12 as well as u/s.l0(23C)(via) of the I.T. Act. I have also examined various other documents including the Memorandum and Article of Association of Society, copy of agreement between the assessee and M/s. Integrated Health & Health Care Services India Pvt. Ltd. dated 30.11.2000 and subsequent amendments to the same and I am of the considered opinion that the AO was not justified while denying the exemption u/s.ll and also u/s.l0(23C(via) of the I.T. Act. Copies of assessment orders for A.Y. 2003-04 and 2004-05 are almost identical as has been passed for A.Y. 2011-12. The case of the assessee is fully covered by the order of the Hon'ble Delhi Tribunal in assessee's own case for A.Y. 2003-04 and A.Y. 2004-05. It may be observed that in spite of the fact that assessee was allowed exemption in AY 2003-04, the Hon'ble Delhi ITAT in A.Y. 2004-05 still set aside the issue to the file of the AO, because the Hon'ble Tribunal in A.Y. 2003-04 had allowed exemption only u/s.10(23C)(via) of the I.T. Act and has not commented upon the exemption u/s.11 of the I.T. Act. To that extent, the Hon'ble ITAT in A.Y. 2004-05 set aside the issue to the file of the AO for examination as to whether the assessee was eligible for exemption u/s.11 and 12 of the I.T.
Act as well. In the remand proceedings, the AO has re-adjudicated the matter and has found the assessee eligible for exemption u/s.11 and 12 also as per order u/s. 143(3) dated 15.06.2009 (PB 96-97). Similarly, the AO has made assessment under scrutiny thereafter for A.Y. 2005-06. The assessment for A.Y. 2009-10 was passed on 23.12.2011. The AO has not given any reasons for taking a view different than what has been accepted in the assessments completed for earlier years. It is not the case of the AO that assessee Society has changed its objects or violated any provisions of the law to disentitle it for the benefits u/s.11 and 12 and 10(23C)(via) of the I.T. Act. The registrations u/s.12A, 80G, 10{23C)(vi) remains in tact. That being the accepted history of the case and also on account of the fact that there is no change in the objects or the activities of the assessee Society, there was no reason for the AO to deviate from the settled history of the assessee and take a different view of this matter. The assessee has also submitted its audited income and expenditure a/c, from where it is noted that the assessee Society is running into huge deficit. On this score also, there could not be any question of determining the taxable income of the Society during the current assessment year. Therefore, after considering all the facts and circumstances, the AO's reasons as also submissions of the assessee, I hold that there is no proper justification for denying the deduction u/s.11, 12 as also u/s. 10(23C)(via) of the I.T. Act and AO is directed to allow the same and all the consequential benefits.”
We further find that during the Assessment Year 2010-11 i.e. immediately preceding year, the Hon’ble Tribunal vide order dated 17/01/2018 had dismissed the appeal of the Revenue by holding as under:-
“3. We have perused the submissions advanced by both the sides and the light of the records placed before us and the Tribunal orders in assessee’s own case for berries assessment years from 2003-04 to 2009-10 as well as the various assessment orders passed for the subsequent assessment years.
3.1. It is observed that this Tribunal for the 1st time for assessment year 2004-05 considered this issue of exemption under section 11 and 12 as under: “2.5 On perusal of this order we find that the Tribunal has considered about the assessee's claim of' exemption under section 10(23C)(via) and held that there is no reason for the Assessing Officer to deny exemption to the assessee under the aforesaid provisions. However, in the issue before us the assessee's claim of exemption under section 11 & 12 is also an issue for consideration. We, therefore, set aside the orders of the authorities below and remand the matter back to the Assessing Officer to pass a fresh assessment order after allowing the exemption to the assessee under section 10(23C)(via) and also after examining the assessee's claim under section 11 & 12 which was also allowed by the CIT(Appeals) in earlier years.” 3.2. Subsequently assessing officer decided the issue for assessment year 2004-05 as under: “As per the direction of the Hon’ble ITAT, notice u/s 143(2) of the IT Act was issued on 22.3.2009. In response to the said notice, Shri BM Chatrath, CA, appeared from time to time and filed details. The case was discussed with him. The assessee has explained that the agreement with IHHS has been retained to manage the hospital and assist the society in achieving its objectives on the terms and conditions agreed upon. It has further explained that all the receipts have been applied for the purpose of fulfilment of the objects of the society.” 3.3. It is observed that for all the other assessment years, Assessing Officer has not drawn any adverse opinion and has granted exemption under section 11 and 12 of the Act. 3.4. Under such circumstances, we do not find any reason to differ from the view taken by Ld.CIT(A), and the same is upheld. Accordingly the grounds raised by revenue stands dismissed
4. In the result appeal filed by revenue stands dismissed.”
6. We find that the grounds of appeal taken by the Revenue in the present appeal are similar to the grounds of appeal taken by the Revenue in earlier year, therefore, we do not find any infirmity in the order of the ld. CIT(A) who has allowed relief to the assessee by following the judicial precedents available in the case of assessee itself. Therefore, the appeal of the Revenue is dismissed.
Finally, the appeal of the Revenue is dismissed.
The order is pronounced in the open court on 07/08/2019.