AKHIL BHARTIYA GAHOI VAISHAY CHARITABLE TRUST,GWALIOR vs. INCOME TAX OFFICER, EXEMPTION, WARD EXEMPLTION

INCOME TAX APPELLATE TRIBUNAL AGRA BENCH "SMC": AGRA SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND

BEFORE SHRI M. BALAGANESH, ACCOUNTANT MEMBER

(Through virtual hearing)

ITA No. 183/AGR/2023 (Assessment Year: 2017-18)

Akhil Bhartiya Gahoi Vaishay Charitable Trust, Vs. ITO (Exemption), Ward Exemption

Gahoi Bhawan, Raja Bachar

Ki Goth, Daulat Ganj

Lashkar, MP

(Appellant) (Respondent)

PAN:AADTA7285J

Assessee by : Shri Rajendra Sharma, Adv

Revenue by: Shri Shailendra Srivastava, Sr. DR

Date of Hearing 03/02/2025 Date of pronouncement 03/02/2025

O R D E R

PER M. BALAGANESH, A. M.:

- 1. The appeal in ITA No.183/AGR/2023 for AY 2017-18, arises out of the order of the National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as "ld. NFAC", in short] dated 19.10.2023 against the order of assessment passed u/s 154 of the Income-tax Act, 1961 (hereinafter referred to as "the Act") dated 24.02.2022 by the Assessing Officer, ITO, Exemption Ward, Gwalior (hereinafter referred to as "ld. AO"). - 2. The assessee has raised the following grounds of appeal:-

^"1 That learned CIT Appeal has erred on facts and law while dismissing the appeal of the appellant. Appellate order passed by CIT Appeal dt. 19.10.2023 is bad in law liable to be set aside.

- 2 That while confirming the order of the AO, learned CIT Appeal has completely ignored the facts that the provisions of section 68 of the Income tax Act are not applicable in the case of assessee, therefore, invoking the provisions of 115BBE is not called for, surcharge charged by the AO u/s 154 of Income tax Act has been charged without appreciating of the facts and law, order passed u/s 154 of Income tax Act is liable to be set aside - 3 That while confirming the order, passed u/s 154 of Income tax Act, the CIT Appeal has completely ignored that the issue for invoking of provisions of 115BBE and charging the tax and surcharge thereof is subject matter of appeal, pending before CIT Appeals, till finalisation of the appeal pending with CIT(A) charging of surcharge u/s 154 is against the provisions of Income tax Act, the order passed by the AO u/s 154 confirmed by CIT Appeals is liable to be set aside - 4 That while confirming the order, passed by the AO u/s 154 of Income tax Act, the CIT Appeal has completely ignored the facts that in the order passed u/s 143(3) of Income tax Act, the AO has invoked the provisions of section 115BE, while provisions of section 115BBE are not attracted, therefore charging of tax and surcharge as per provisions of section 115BBE is not called for, order passed u/154 confirmed by CIT Appeal is liable to be set aside. - 5. That while confirming the order of the AO, passed U/s 154, charging of surcharge, the CIT(A) has completely ignored that the addition made U/s 68, invoking the provisions of sec 115BBE is the subject matter of appeal, pending with CIT(A), duly informed to CIT(A), learned CIT(A), ignoring the facts as above has confirmed the order of the AO passed U/s 154 of Income Tax Act. - 6. That the order passed by CIT Appeal is liable to be set aside." - 3. We have heard the rival submissions and perused the materials available on record. The assessee filed its return of income on 24-10-2017 for the Assessment Year 2017-18 declaring total income of Rs 15,780/-. Assessment was framed under section 143(3) of the Act on 29-12-2019 determining total income at Rs 25,60,360/- after making addition of Rs 25,44,579/- on account of unexplained cash credit under section 68 of the Act. This addition was taxed at the enhanced rate of 60% by applying the provisions of section 115BBE of the Act. The appeal preferred by the

assessee before the Learned NFAC was pending. Later this assessment was sought to be rectified under section 154 of the Act as surcharge at the rate of 25% was omitted to be charged while computing the tax demand of the assessee. Hence a rectification order under section 154 of the Act stood passed on 24-2-2022 in the hands of the assessee levying surcharge at the rate of 25% on tax liability determined. The assessee preferred first appeal before the Learned NFAC which stood dismissed finding no infirmity in the rectification order of Learned AO. Aggrieved, the assessee had filed second appeal before us.

- 4. We find that the assessee is aggrieved only on the levy of surcharge of 25% on the enhanced rate of tax at 60% as per section 115BBE of the Act in the present appellate proceedings before us. The quantum appeal against the addition made under section 68 read with section 115BBE of the Act was stated to be pending before the Learned NFAC by the Learned AR. The levy of surcharge at the rate of 25% is statutory in nature and is merely a computational issue which would be consequential to determination of income of the assessee. As and when the determination of income undergoes change pursuant to appellate orders, the levy of tax and consequential surcharge would also undergo change. Hence there is no merit in the appeal of the assessee and accordingly dismissed. - 5. In the result, the appeal of the assessee is dismissed.

Order pronounced in the open court on 03/02/2025.

-Sd/- -Sd/- (SATBEER SINGH GODARA) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER

Dated: 03/02/2025

A K Keot

Copy forwarded to

- 1. Applicant - 2. Respondent - 3. CIT - 4. CIT (A) - 5. DR:ITAT

ASSISTANT REGISTRAR ITAT, New Delhi