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Income Tax Appellate Tribunal, “C” BENCH, AHMEDABAD
Before: SMT. ANNAPURNA GUPTA & SHRI T.R. SENTHIL KUMAR
आदेश/O R D E R PER T.R. SENTHIL KUMAR, JUDICIAL MEMBER: These two appeals are filed by the Revenue as against separate orders dated 12.03.2022 passed by the Commissioner of Income Tax (Appeals) (in short “CIT(A)”) of National Faceless Appeal Center, Delhi under Section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) relating to the Assessment Years 2009-10 and 2010-11.
2. The Revenue has raised the following grounds of appeal:-
(A.Y. 2009-10) “1. Whether on the facts and circumstances of the case and in law, the ld. CIT(Appeals) is correct in allowing the benefit of Section ITA Nos.128/&129Ahd/2022 A.Ys. 2009-10 & 2010-11 2 11 and 12 when the Assessing Officer has clearly brought on record that assessee is covered under the proviso to Section 2(15) r.w.s. 13(8) of the Act? 2. On the facts and circumstances of the case, the ld. CIT(Appeals) ought to have upheld the order of the Assessing Officer in denying the claim of exemptions under section 11 of the Act.
3. Whether, on the facts and in the circumstances of the case the ld. CIT(Appeals) is correct in allowing the claim of accumulation Rs. 4,81,76,237/- u/s.11(1)(a) of the Act without appreciating the findings of the AO with regard to applicability of Section 2(15) of the Act? 4. Whether, on the facts and in the circumstances of the case the ld. CIT(Appeals) is correct in allowing the claim of accumulation Rs. 14,63,00,356/- u/s.11(2) of the Act without appreciating the findings of the AO with regard to applicability of Section 2(15) of the Act? 5. Whether on the facts and circumstances of the case and in law, ld. CIT(Appeals) is correct allowing the claim of exemptions on the expenditure incurred for acquisition of fixed assets & Stadium Expenditure of Rs. 8,18,03,758/-, without appreciating the findings of the Assessing Officer? 6. The Revenue craves to add, alter, amend, modify, substitute, delete and/or rescind all or any Grounds of Appeal
on or before the final hearing, in necessity so arises.” (A.Y. 2010-11) “1. Whether on the facts and circumstances of the case and in law, the ld. CIT(Appeals) is correct in allowing the benefit of Section 11 and 12 when the Assessing Officer has clearly brought on record that assessee is covered under the proviso to Section 2(15) r.w.s. 13(8) of the Act?
2. On the facts and circumstances of the case, the ld. CIT(Appeals) ought to have upheld the order of the Assessing Officer in denying the claim of exemptions under section 11 of the Act.
3. Whether, on the facts and in the circumstances of the case the ld. CIT(Appeals) is correct in allowing the claim of accumulation Rs. 4,55,15,511/- u/s.11(1)(a) of the Act without appreciating the findings of the AO with regard to applicability of Section 2(15) of the Act?
4. Whether, on the facts and in the circumstances of the case the ld. CIT(Appeals) is correct in allowing the claim of accumulation Rs.
&129Ahd/2022 A.Ys. 2009-10 & 2010-11 3 17,50,00,000/- u/s.11(2) of the Act without appreciating the findings of the AO with regard to applicability of Section 2(15) of the Act? 5. Whether on the facts and circumstances of the case and in law, ld. CIT(Appeals) is correct allowing the claim of exemptions on the expenditure incurred for acquisition of fixed assets & Stadium Expenditure of Rs. 4,21,87,987/-, without appreciating the findings of the Assessing Officer? 6. The Revenue craves to add, alter, amend, modify, substitute, delete and/or rescind all or any Grounds of Appeal on or before the final hearing, in necessity so arises.”
3. At the outset, Ld. Senior Counsel Shri Tushar Hemani appearing for the assessee submitted that the Hon’ble High Court of Gujarat in Special Civil Application Nos. 2321 and 2323 of 2014 vide judgment dated 21.01.2020 quashed the re-assessment orders passed by the Assessing Officer. Against which Revenue has filed SLP before Supreme Court in Diary No. 5816/2021 and as per assessee’s information, no stay have been obtained by the Revenue from the Hon’ble Apex Court. Therefore, the present appeals filed by the Revenue are liable to be dismissed.
3.1 Ld. Senior Counsel produced copy of the judgment dated 21.01.2020 as well as the screen shot details of Diary No. 5816/2021 from the Supreme Court website.
Ld. CIT-D.R. Shri Kamlesh Makwana appearing for the Revenue could not dispute the above facts and also could not give present status of the SLP Diary No. 5816/2021 before the Hon’ble Supreme Court.
We have given our thoughtful consideration and perused the material available on record. &129Ahd/2022 A.Ys. 2009-10 & 2010-11 4 5.1 The Hon’ble High Court of Gujarat in assessee’s own case in SCA No. 2321 and 2323 of 2014 held as follows:-
“….1. Both these petitions are filed challenging the notice issued under Section 148 of the Income Tax Act, 1961 (for short 'the Act, 1961') for reopening of the assessment year 2009 10 and assessment year 201011. Both these petitions were heard analogously and are being disposed of by this common judgment and order.
For sake of convenience, Special Civil Application No. 2321 of 2014 is treated as lead matter.
The petitioner has challenged the notice dated 08.01.2013 issued under Section 148 of the Act, 1961 by the respondent seeking to reopen the assessment for the A.Y. 2010-11 as well as assessment order dated 30.01.2013 passed by the respondent under Section 143(3) r/w. Section 147 of the Act, 1961, during the pendency of the petition before this Court. …….
6. It appears that the Assessing Officer has issued notice under Section 148 in view of the amended provision of Section 2(15) of the Act, 1961 and the sole objection for reopening is such amendment.
In view of the above, it is not necessary to advert to the facts of the case, as similar issue is considered by the Coordinate Bench including in case of the petitioner in Tax Appeal No. 268 of 2012 and other allied matters and has held in favour of the assessee, as under: “178. In such circumstances, referred to above, we are of the view that the Tribunal could be said to have taken a reasonable view of the matter, and having recorded a finding of fact based on the material on record, we should not disturb such finding of fact.
In the result, all the tax appeals fail and are hereby dismissed. The substantial questions of law, formulated in all the tax appeals, are answered in favour of the assessees and against the Revenue.”
In view of the aforesaid dictum of law, wherein, it is held that the activity of the petitioners cannot be said to be carrying on any activity in the nature of trade, commerce or business, so as to apply proviso to Section 2(15) which defines 'charitable purpose'. Therefore, &129Ahd/2022 A.Ys. 2009-10 & 2010-11 5 the impugned notice as well as the assessment order passed by the respondent are required to be quashed and set aside.
The petitions, therefore, succeed and are accordingly allowed. The impugned notice dated 08.01.2013 issued by the respondent under Section 148 of the Act is therefore quashed and set aside, and consequentially, the impugned assessment order dated 30.01.2013 passed under Section 143 r/w. Section 147 of the Act is also quashed and set aside.”
Since the Jurisdictional High Court has already quashed the re-assessment notices, and consequential assessment orders, the present appeals filed by the Revenue has no legs to stand. Further, Revenue could not produce before us any Stay Order from the Hon’ble Apex Court. Therefore, the appeals filed by the Revenue are hereby dismissed.
7. In the combined result, both the appeals filed by the Revenue are dismissed.
Order pronounced in the Court on 25.06.2024 at Ahmedabad.