CHINMAYA INTERNATIONAL FOUNDATION,ERNAKULAM vs. ASSISTANT COMMISSIONER OF INCOME TAX, KOCHI

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ITA 244/COCH/2021Status: DisposedITAT Cochin16 March 2022AY 2017-183 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that since the issue was debatable, it could not be subject to adjustment under Section 143(1). Furthermore, on merits, the issue was liable to be held in favour of the assessee based on Supreme Court and Bombay High Court decisions.

What were the facts?

The assessee claimed carry forward of excess application of funds over receipts in its return. The intimation under Section 143(1) denied this carry forward, and the CIT(A) upheld this denial. However, a sister concern with an identical issue was decided in favour of the assessee by the CIT(A).

What were the issues?

Whether the denial of carry forward of excess application of funds over receipts under Section 143(1) is sustainable when the issue is debatable. Whether the assessee is entitled to carry forward excess application of funds.

Which sections of the Income-tax Act were involved?

Section 143(1)

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(2)Show list

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Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN

Before: Shri George Mathan, JM & Shri M. Balaganesh, AM

For Appellant: Shri P.M. Veeramani, CA
For Respondent: Smt. J.M. Jamuna Devi, Sr. D.R
Hearing: 16.03.2022Pronounced: 16.03.2022

These are appeals filed by the assessee against the order of the learned CIT(A), NFAC, Delhi in appeal Nos. CIT(A), Kochi – 2/10183/2016- 17 & CIT(A), Kochi – 2/10119/2019-20 dated 10.11.2021 for assessment year 2015-16 & 2017-18.

2.

Shri P.M. Veeramani, CA represented the assessee and Smt. J.M. Jamuna Devi, Sr. D.R. represented Revenue.

3.

It was submitted by the learned A.R. that the assessee had filed its return of income wherein it had claimed carry forward of its excess application over receipts. It was the submission that the assessee had received an intimation under Section 143(1) of Income Tax Act, 1961 wherein the carry forward of the excess application over the receipts had been denied. On appeal the learned CIT(A) had dismissed the assessee’s appeal. It was the submission that subsequently in the case of sister concern of assessee, Chinmaya Vishwavidyapeeth, the learned CIT(A), NFAC on identical issue had held in favour of the assessee by holding that & 244/Coch/2021 2 Chinmaya International Foundation “the assessee is entitled to adjust the excess application made during the current year over and above the income in the subsequent year wherever there is short fall in application of income subject to provisions of law applicable in that year.” To arrive at this conclusion the learned CIT(A), NFAC in the case of Chinmaya Vishwavidyapeeth relied upon the decision of the Hon’ble Bombay High Court in the case of Institute of Banking Personnel Selection reported in 264 ITR 110. It was the submission by the learned A.R. that the two sets of orders of the learned CIT(A), NFAC being contrary itself shows that the issue is debatable and the same cannot be subject to adjustment under Section 143(1) of the Income Tax Act, 1961.

4.

In reply the learned D.R. vehemently supported the order of the learned CIT(A).

5.

We have considered the rival contentions. As rightly pointed out by the learned A.R. admittedly in assessee’s case the issue has been held against the assessee while in assessee’s sister concern’s case identical issue has been held in favour. This itself clearly shows that the issue is debatable. Admittedly a debatable issue cannot be considered in an item for adjustment under Section 143(1) of the Act. In any case even on merits the issue is liable to be held in favour of the assessee in view of the decision of the Hon'ble Supreme Court in the case of CIT vs. Subros Educational Society reported (2018) 96 taxmann.com 652 (SC). In these circumstances we are of the view that order of the learned CIT(A), NFAC in the case of the assessee is unsustainable and the same stands set aside. Further the adjustment made under Section 143(1)(a) of the Act being unsustainable in so far as it is a debatable issue, the same stands set aside.

6.

In the result, the appeals filed by the assessee are allowed.

Dictated and pronounced in the open Court on 16th March, 2022.

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