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Income Tax Appellate Tribunal, BENCH ‘A’ KOLKATA
Before: Hon’ble Shri Waseem Ahmed, AM & Shri S.S.Viswanethra Ravi, JM ]
These appeals of the assessee arise out of the order of Commissioner of Income Tax(Appeals)-Durgapur in Appeal No.174/CIT(A)/DGP/2011-12 and 70/CIT(A)/DGP/2014-15 dated 20.07.2012 and 28.12.2015 for A.Y.2009-10 and 2010-11 respectively. Assessments were framed by ACIT, Circle-1, Durgapur u/s 143(3)/147 of the Income tax Act, 1961 (hereinafter referred to as the ‘Act ‘) vide his order dated 29.12.2011 and 31.03.2014. First we take up for A.Y.09-10.
First we take up ground No.2 raised by the assessee reads as under :- “2. That the learned CIT (Appeals) erred in arbitrarily and wrongly alleging and/or holding that the submissions made by the Appellate Assessee Authority regarding Land Acquisitions & Development Cost of Rs.16,28,41, 146/ -, which relates to expenditure incurred in the relevant financial year against which relatable revenue has already been recognized as income and no part of such expenditure relate to any portion of Income/Gains that accrued or recognized as revenue in any year after F.Y. 2008-09. Neither does Sales include any amount which has been sold out of opening stock. Hence, disallowance made on this ground is not tenable under law.” & 500/Kol/2016 Asansol Durgapur Development Authority A..Y. 2009-10& 2010-11 3. The issue raised by the assessee in this appeal is that the ld. CIT(A) erred in confirming the order of AO by holding that the income of the assessee is taxable under the Income tax Act.
The facts in brief are that the assessee in the present case is constituted u/s 11 of the West Bengal Town and Country (Planning and Development) Act, 1979 under the Govt. of West Bengal and engaged in the development activities. The ld. AR at the outset, before us submitted that the income of the assessee is not taxable in terms of Article 289 of the Constitution of India. The income of the assessee is actually the income of the state and therefore it is entitled for exemption from Union tax in terms of clause 3 of Article 289 of the Constitution of India. The ld. AR further submitted that similar issue arose in A.Yrs. 2004-05, 2006-07 and 2007-08 in and 1197/Kol/2007 dated 14.08.2015 wherein the Co-ordinate Bench remanded similar issue to the file of AO for fresh adjudication as per law. The ld. AR before us further submitted that no effective order has been passed by the AO till date and accordingly prayed to restore this ground of appeal to the file of AO for fresh adjudication.
On the other hand, the ld. DR raised no objection and he agreed to the submission of Ld. AR.
We have heard the rival contentions of the parties and perused materials available on record. At the outset, we find that similar facts and circumstances and in the case of the assessee the Co-ordinate Bench of this Tribunal has restored the matter back to the file of AO for fresh adjudication. The relevant extract of the order in ITA’s No. 1195,1996 and 1197/Kol/2007 is extracted below : “8. We have heard the rival sub missions and perused the material available on record. We find that the Assessing Officer has relied on the decision of the Hon'ble Supreme Court in the case of Adityapur Industrial Area Development Authority – vs.- Union of India reported in (2006) 283 ITR 97 (SC) observing that the circumstances were similar as in the present cases, but he has not considered the above noted relevant statutory requirements applicable in the & 500/Kol/2016 Asansol Durgapur Development Authority A..Y. 2009-10& 2010-11 case of assessee. We, therefore, set aside the order of ld. CIT(Appeals) for all the three years and restore the matter back to the file of Assessing Officer for de novo consideration of the entire issues in the light of statutory requirements as filed by the assessee in the paper book.”
Respectfully following the same we are inclined to restore this ground to the file of AO for fresh adjudication as per law. Hence, this ground of appeal of the assessee is allowed for statistical purposes.
6. The additional ground raised by the assessee is that the ld. CIT(A) erred in holding that the provision of section 11 of the Act are not applicable to the assessee as it is not registered u/s 12A of the Act.
At the outset we find that the assessment was completed for the year under consideration on 29.12.2011 on the presumption that the assessee is not entitled for exemption u/s 11 of the Act. However, on perusal of the records we find that the ld. CIT(Exemption) has granted registration certificate u/s 12AA of the Act vide its order dated 16th November, 2016. It is also important to note that the registration was granted w.e.f. 01.04.2009. In view of the above we find that the assessment order has been passed by the AO without considering the fact that the assessee is entitled for exemption u/s 11 of the Act as this fact has not been considered by the AO at the time of assessment. We are inclined to restore this ground of appeal to the AO for fresh adjudication as per law with the direction to frame the assessment u/s 143(3) of the Act de novo. Hence this additional ground of appeal of the assessee is allowed for statistical purposes.
8. As we have already restored the issue for fresh adjudication, we are not inclined to adjudicate the remaining grounds of assessee’s appeal. Hence other grounds become academic and therefore dismissed as infractuous. & 500/Kol/2016 Asansol Durgapur Development Authority A..Y. 2009-10& 2010-11 Now coming to ITA 500/Kol/2016.
9. As stated earlier, the issues and additional issues are under consideration for the same assessment year. Since the facts are exactly identical, both parties are agreed whatever view taken in the above appeal of assessee in may be taken in this assessee’s appeal also. We hold accordingly.
In the result, both the appeals of the assessee stand allowed for statistical purposes. Order pronounced in the court on 11/01/2017