SHER-E- KASHMIR COLLEGE OF EDUCATION,(UNIT OF) PIR PANCHAL EDUCATION TRUST,JAMMU vs. INCOME TAX OFFICEER WRD-1(3), JAMMU

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER

I.T.A. No.177/Asr/2019 Assessment Year: 2010-11

Sher-e-Kashmir College of Vs. ITO, Ward-1(3), Education, (Unit of) Pir Panchal Jammu (J & K). Education Trust, Ajit Nagar, Gadi Garh, Jammu (J & K) [PAN:-AAATP5947R] (Respondent) (Appellant)

Appellant by Sh. P. N. Arora, Adv. Respondent by Ms. Amanpreet Kaur, Sr.DR.

Date of Hearing 21.09.2022 Date of Pronouncement 26.09.2022

ORDER Per:Anikesh Banerjee, JM:

The instant appeal was filed by the assessee against the order of the ld.

Commissioner of Income Tax(Appeals)-1, Amritsar, [in brevity the CIT(A)] bearing appeal no.375/2012-13, date of order 28.12.2018, the order passed u/s 250(6) of the Income Tax Act 1961, [in brevity the Act] for A.Y. 2010-11.The

I.T.A. No.177/Asr/2019 2 Assessment Year: 2010-11

impugned order was emanated from the order of the Income Tax Officer, Ward-

1(3), Jammu,(in brevity the AO) order passed u/s 143(3) of the Act date of order

19.12.2012. 2. The brief fact of the case is that the assessee is a trust and exemption was

claimed u/s 10(23C) (iiiad) and the said exemption was disallowed by the ld. AO

for reason that for violation of section 13(1)(c)(ii) and section 13(d)(i). The

exemption available u/s 11 is denied in the reasons that the property of the trust is

utilized by the trustee, referred in section 13(2) of the Act. The income of the trust

is deemed to be utilized for benefit of the specific person. So, the amount claimed

exempted Rs.2,85,122/- is disallowed and added back with the total income of the

assessee. Aggrieved assessee filed an appeal before the ld. CIT(A), the ld. CIT(A)

upheld the order of the ld. AO.

payment of trustee is not related to this year of appeal. The issue is related to

earlier years. Same issue was already agitated before the ITAT, Amritsar Bench.

The bench had passed the order bearing ITA No.555 to 558/Asr/2011 date of order 13.06.2022. The relevant para of the order is extracted below:

I.T.A. No.177/Asr/2019 3 Assessment Year: 2010-11

“13. In the present case, the AO while rejecting the exemption claimed by the trust u/s 10(23C) (iiiad) has invoked the provisions of sections 13(1)(c), 13(2)(a), 13(2)(b), 13(2)(d) and 13(2)(g) of the Act. In this connection it is pertinent mention that section 13 starts with the words, ‘Nothing contained in section 11 or section 12 shall operate as to……..’. This shows and makes it clear that the provisions contained in section 13 govern section 11 and section 12 of the Act and not section 10. These provisions are contradictory to each other. Section 13(1)(c) applies to application of income and property to specified persons. Sections 13(2)(a), 13(2)(b), 13(2)(d) and 13(2)(g) govern the provisions of lending, property made available for use, any service is made available and if any income is diverted respectively. The AO and the Ld. CIT(A) has not come to any conclusive finding as to what particular clause has been violated and as to how the same has been violated. In the absence of any such findings by the AO, the withdrawing of exemption was not in accordance with law. 14. In the above view, we hold that the Ld. CIT (Appeals), was not justified, in confirming the finding of the AO against law, regarding rejecting the exemption claimed of the Assessee Trust under section u/s 10(23C) (iiiad) of the Income-Tax Act, 1961. Accordingly, the order of the CIT (A) is set aside and consequently, the additions made in in I.T.A. Nos. 555 to

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558/Asr/2011 in respect of the Assessment Years: 2005-06 to 2008-09 are hereby deleted. 15. In the result, the captioned four appeals of the Assessee Trust are allowed.” 4. The ld. Sr. DR only relied on the order of the revenue authorities. No such

contrary judgment was placed before the Bench.

record. The Coordinate Bench is already decided the issue in favour of the

assessee. The amount paid to trustee is not related to this year of appeal. So, in this

memo there is no question of violation of section 13 of the Act. The assessee is an

educational trust, and the turnover is below the Rs.1 crore. The assessee is eligible

for exemption u/s 10(23C) (iiiad). So, the addition made by the ld. AO amount of

Rs.2,85,122/- is liable to be deleted. 6. In the result, the appeal of the assessee bearing ITA No.177/Asr/2019 is

allowed.

Order pronounced in the open court on 26.09.2022

Sd/- Sd/-

(Dr. M. L. Meena) (ANIKESH BANERJEE) Accountant Member Judicial Member

I.T.A. No.177/Asr/2019 5 Assessment Year: 2010-11

AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T.