Income Tax Appellate Tribunal - Jaipur
Dcit, Jaipur vs Global Institute Of Technology ... on 30 October, 2017
vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj
IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
Jh Hkkxpan] ys[kk lnL; ,oa Jh dqy Hkkjr] U;kf;d lnL; ds le{k
BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM
vk;dj vihy la-@ITA No. 43/JP/2017
fu/kZkj.k o"kZ@Assessment Year : 2013-14
Deputy Commissioner of cuke Global Institute of Technology
Income Tax, Vs. Society (GITS),
Central Circle-3, Jaipur. D-91, Ambabari, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAATG 3217 H
vihykFkhZ@Appellant izR;FkhZ@Respondent
vk;dj vihy la-@ITA No. 647/JP/2017
fu/kZkj.k o"kZ@Assessment Year : 2014-15
Deputy Commissioner of cuke Global Institute of Technology
Income Tax (Exemptions), Vs. Society (GITS),
Circle, Jaipur. D-91, Ambabari, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAATG 3217 H
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@ Assessee by : Shri S.L. Poddar (Adv)
jktLo dh vksj ls@ Revenue by : Shri Varinder Mehta (CIT) &
Shri R.A. Verma (Addl.CIT)
lquokbZ dh rkjh[k@ Date of Hearing : 11/10/2017
mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 30/10/2017
vkns'k@ ORDER
PER: BHAGCHAND, A.M. These are the appeals filed by the revenue emanates from the separate orders of the ld. CIT(A)-4, Jaipur dated 30/11/2016 for the A.Y. 2013-14 & order dated 26/05/2017 for the A.Y. 2014-15 respectively.
2ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology
2. Both the appeals are being heard together and for the sake of convenience and brevity, common order is being passed.
3. Firstly we take Revenue's appeal being ITA No. 43/JP/2017 In this appeal, the revenue has taken following grounds of appeal:
1. Whether on the facts and in the circumstances of the case the Id. CIT(A) was right in deleting the addition of Rs. 1,11,49,815/-
made by A.O. on account of income over expenditure.
2. Whether on the facts and in the circumstances of the case the Id. CIT(A) was right in deleting the addition of Rs. 1,19,08,317/- made by A.O. on account of treatment of capital receipts as revenue receipts.
3. Whether on the facts and in the circumstances of the case the Id. CIT(A) was right in deleting the addition of Rs. 75,101/- made by A.O. on account of delayed payment towards employee's contribution of ESI without appreciating the fact that it was as per provisions of section 36(l)(va) of the Act, 1961.
4. In the grounds No. 1 and 2 of the appeal, the issue involved are deleting the addition of Rs. 1,11,49,815/- made by the Assessing Officer on account of income over expenditure and deleting the addition of Rs. 1,19,08,317/- on account of treatment of capital receipts as revenue receipts. The ld. CIT(A) has deleted the additions by holding as under:
"I have duly considered assessee's submission and carefully gone through assessment order passed by the AO. I have also carefully gone through the Hon'ble ITAT Bench Jaipur's order dated 15/3/2012 in ITA No 1062/JP/2011 for AY 2008-09 which has been decided in favour of revenue and the 3 ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology assessee has also not challenge the said order. AO relying on the decision of Hon'ble ITAT Jaipur (Supra) has observed in the assessment order that assessee is not eligible for exemption u/s 10(23C) of the Act. For the sake of clarity, relevant extracts of which is reproduced here as under:
"6. The Id. Counsel of the assessee stated that in earlier year the assessee's total income was of loss and, therefore, the assessee has not claimed any exemption under section 11 neither it was allowed. It was also submitted that assessee applied for exemption of its income under section 10(23C)(vi) of the Act. The Id. Chief Commissioner of Income-tax vide his order dated 22.3.2006 had rejected the application of the assessee and this fact has been mentioned in the order passed for the assessment year 2004-05, copy of which is placed at paper book pages 66-70. It was submitted that in earlier year's assessment has been completed and department itself has allowed the loss to be carry forward. Attention of the Bench was drawn on various assessment orders placed in the paper book."
7. On the other hand, the Id. D/R stated that the issue may be decided on merit.
8. After considering the submissions and perusing the material on record, we find that assessee deserves to succeed in this ground. We have seem various assessment orders for earlier years, copies of which are placed on record and found that the respective assessing officers had allowed the net deficit to be carried forward in the respective assessment order. Therefore, there is no reason in not allowing the benefit of carry forward losses/deficit. Accordingly, we direct the AO to allow the benefit of quantified carry forward losses to the assessee against the income of the assessee.
9. For the sake of clarification, for the year consideration there was a positive income and, therefore, assessee has filed its return showing the income of the year, exemption u/s 11 of the Act has also been claimed. It carry forward losses are allowed to be set off them the income will become of negative figure and, therefore, 4 ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology exemption u/s 11 cannot be allowed. The Ld. Council of the assessee has fairly agreed that if Gr no. 8 is allowed in its favour then other grounds will become academic in nature. Since we have allowed this ground in favour of assessee, therefore, all other grounds have become academic in nature and has become infructuous, they are dismissed."(Stress supplied by me) Before proceeding further, I would like to put all relevant facts of the case as under:
(i) Assessee belongs to "Kandoi Gr" on whose premises, a search and seizure operation u/s 132 of the Act was carried out on 18.07.2012.
(ii) Assessee has submitted that its original e-return of income for AY 2013-14 was filed on 30.09.2013 declaring total income at Nil, relevant extracts of which are reproduced here as under:
Computation of total income.
Income from other sources 27,72,06,237
College fees 19,79,22,400
Hostel fees 6,96,40,750
Other income 96,43,087
Depreciation Item 5,29,57,059
-----------------------------------
33,01,63,296
Less:
Depreciation as per Chart 57(ii) 5,29,57,059
5,29,57,059
-------------------------------------------
27,72,06,237
Income before application of Income 27,72,06,237
Less: Application of Income
Total expenditure inc. depreciation 26,60,56,422
Purchase of fixed assets 11,83,61,435
38,44,17,857
Application of income cannot more than Rs. 27,72,06,237 ----------
27,72,06,237
Gross Total Income 0
Total income 0
(iii) Assessee, being a society, is registered u/s 12AA of the Act, accordingly its income is exempt u/s 10(23C) of the Act and CIT(Exemption) Jaipur 5 ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology vide order dt 22/05/2000 has issued certificate effective from 11.05.2010 in this regard. The appellant society applies its income and funds accrued from institutes namely Global Institute of Technology & Global Collage of Technology for charitable purposes as defined u/s 2(15) of the Act.
(iv) Even if exemption is denied u/s 10(23C) of the Act, assessee is entitled for exemption u/s 11 & 12 Assessee has claimed exemption u/s 11 of the Act not u/s 10(23C) of the Act as contended by the AO in pg 4 of the assessment order. On careful perusal of statute, it is seen that exemption u/s 11 & 12 of the Act is allowable if the assessee is registered u/s 12AA of the Act and involved in charitable activities as prescribed in Sec 2(15) of the Act. Further, exemption u/s 11 & 12 of the Act is not allowed if there is violation of sec 13(1) of the Act on the part of the assessee. More specifically, as per the provisions of sec 13(1)(d) of the Act, exemption is not allowed if funds meant for charitable purpose are invested for the period during the year in any form otherwise prescribed u/s 11(5) of the Act.
(v) Various courts including Hon'ble Jurisdictional ITAT in assessee's own case for AY 2008-09 (supra) has allowed the benefit of quantified carry forward losses to the assessee against the income of the assessee. Further, if there is a positive income of the assessee for the year, exemption u/s 11 is allowable subject to conditionalties prescribed u/s 13(1) of the Act but if the carry forward losses are allowed to be set off then the income will become of negative figure and therefore, exemption under sec 11 of the Act cannot be allowed.
(vi) On perusal of audit report submitted u/s 12A(b) of the Act, it is seen that an amount of income of the previous year applied to charitable 6 ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology purpose during the previous year relevant to AY 2013-14 is at Rs. 1,11,49,814.80 whereas addition to fixed assets is at Rs. 1,18,63,61,435.43. However, AO in the assessment order on pg 3 has mentioned that the issue relating to sec. 10(23C) of the Act has been decided by the Hon'ble ITAT Bench Jaipur in favour of revenue by ITA No. 1062/JP/2011 dt 15.03.2012 for AY 2008-09 and the assessee has not challenged the said order, accordingly, assessee is not eligible for exemption u/s 10(23C) of the Act. AO in the assessment order further adds that the appellant has shown gross receipts of Rs. 27,72,06,237/= on which claimed expenses to the tune of Rs. 26,60,56,422/= which tantamount to income over expenditure of Rs. 1,11,49,815/=. In the assessment order passed for the year, AO has made following additions / disallowances:
a) Income over expenditure [being exemption denied u/s 10(23C)] Rs. 1,11,49,815/=
(b) Transfer to General Reserve Rs. 1,19,08,317/= * Registration receipts Rs.20,31,150/= * Book Bank Income Rs. 3,90,400/= * Forms/Late fees Rs.94,86,767/= Ld AR of the assessee further submits that under no provisions of Act receipt of capital nature can be taxed as income as the said receipts are of the nature of capital receipts with overriding title. All the above mentioned receipts were nonrecurring in nature and were of capital nature hence the same does not form part of the profit and loss account; thus, were added to the general reserves. Assessee has relied upon following judicial pronouncements:
* Hakim Abdul Hamid 90ITR 203(FB) * Bombay Oilseeds and Oil Exchange Ltd. 202 ITR 198 (Bom) * Hindustan Housing & Land Development Trust Ltd 161 ITR 524 (SC)
(vii) Assessee has submitted that AO while making aforementioned additions has not referred to any incriminating documents/ materials 7 ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology found from the searched premises. Further, assessee has submitted that AO has accepted the statutory audit report u/s 12(1)A(b) of the Act and also not pointed out any mistake/discrepancy. In this regard, assessee further submits that in view of judgments given by various courts including Hon'ble Jurisdictional ITAT and High Courts, assessment completed by making aforementioned additions u/s 143(3) r.w.s 153B(1)(b) of the Act in absence of incriminating materials cannot be sustained.
In view of facts and circumstances of the case as discussed above and duly considering the case laws relied upon by the assessee and remand report and rejoinder filed, I am of the considerate view that as there is no violation of sec 13(1) of the Act, exemption u/s 11 & 12 of the Act is allowable to the assessee which is also registered u/s 12AA of the Act. Further, here in this case income before application of income is Rs. 27,72,06,237/= against which assessee has incurred expenditure of Rs. 38,44,17,857/= which can take care of further addition made of Rs. 1,19,08,317/=. Even if, respectfully following the order of Hon'ble ITAT in assessee's own case (supra), quantified carried forward losses be allowed to be set off with the income of the assessee, then net result will be negative in that case. Considering all these facts, additions made of Rs. 1.11,49,815/= & Rs. 1,19,08,317/= are hereby deleted. Assessee's appeal in Gr No 2 & 3 are allowed.
5. Now the revenue is in appeal before the ITAT. The ld. CIT DR has relied on the order of the Assessing Officer. On the contrary, the ld. AR of the assessee has vehemently supported the order of the ld. CIT(A).
8ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology
6. We have heard both the sides on this issue. There was no violation of Section 13(1) of the Act. Exemptions U/s 11 & 12 of the Act is allowable. The income before application of income was of Rs. 27,72,06,237/- while the expenditure incurred was of Rs. 38,44,17,857/-, The ITAT in assessee's own case (supra) has quantified carried forward losses, which are to be allowed to be set off with the income of the assessee, hence the net result comes to negative. Considering all these facts and circumstances, we sustain the order of the ld. CIT(A). Accordingly, grounds No. 1 and 2 of the revenue's appeal stand dismissed.
7. The ground No. 3 of the revenue's appeal is with regard to deleting the addition of Rs. 75,101/- made by the Assessing Officer on account of delayed payment towards employees contribution of ESI. The ld. CIT(A) has deleted the addition by holding as under:
3.4.2 I have duly considered assessee's submission and carefully gone through assessment order passed by the AO. I have also taken a note of factual matrix of the case as well as case laws relied upon. The issue of delayed payment of PF/ESI has already been settled by the Hon'ble Jurisdictional High Court by following the principles laid down by the Hon'ble Apex Court in Vinay Cement case(supra) has decided the matters in case of CIT vs. SBBJ [2014] 265 CTR 411 and CIT vs. Udaipur Dugdh Utpadak Sangh Ltd [2014] 265 CTR 59 and held that where PF/ESI paid after due date under respective act but before filing of return u/s 139(1) cannot be disallowed u/s 36(1 )(va) r.w.s. 2(24) (x)of the Act.9
ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology In view of facts and circumstances of the case and respectfully following the aforementioned judicial decisions, addition of Rs. 75,101/- made as income of Appellant on account of delayed payment of employee's contribution of PF and ESIC is hereby deleted. Assessee's appeal in Gr No. 4 stands allowed.
8. Now the revenue is in appeal before the ITAT. The ld CIT DR has relied on the order of the Assessing Officer and submitted that it was the violation of Section 36(1) (va) of the Act. On the other hand, the ld AR of the assessee has relied on the order of the ld. CIT(A).
9. We have heard both the sides on this issue. This issue is covered in favour of the assessee by the decision of the Hon'ble Jurisdictional High Court in the case of CIT Vs. SBBJ (2014) 265 CTR 411. Therefore, on this issue also, me uphold the order of the ld. CIT(A). Accordingly, this ground of revenue's appeal stand dismissed.
10. ITA No. 647/JP/2017 In this appeal, the revenue has taken following grounds of appeal:
1. On the facts and in the circumstances of the case and in law the order of CIT(A) is perverse as the issue of carried forward and set off of losses and benefit of exemption u/s 11 & 12 cannot go together.
2. On the facts and in the circumstances of the case and in law the Id.
CIT(A) misinterpreted the order of Hon'ble ITAT for A.Y. 2013-14 whereby issue of carried forward of losses was decided and claim of benefit u/s 11 was not pressed.
10ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology
3. On the facts and in the circumstances of the case and in law the order of the Id. CIT(A) suffers of perversity because he has considered the submission of the assessee regarding exemption u/s 10(23C) of the Act which was not the issue before the Assessing Officer.
4. On the facts and in the circumstances of the case and in law the CIT (A) has erred in allowing the benefit of exemption of section 11 of the Act disallowed by the AO on account of clear cut violation of provisions of section 13(1)(c) r.w.s. 13(2) and 13(3) of the I.T. Act, 1961 .
5. On the facts and in the circumstances of the case and in law the CIT (A) has erred in deleting the addition of Rs. 5,22,21,300/- made by A.O. on account of development fees treating as revenue receipt.
6. On the facts and in the circumstances of the case and in law the CIT (A) has erred in deleting the addition of Rs. 23,16,700/- made by A.O. on account of treatment of capital receipts as revenue receipts.
7. On the facts and in the circumstances of the case and in law the CIT (A) has erred in deleting the addition of Rs. 1,28,688/- made by A.O. on account of delayed payment towards employee's contribution of ESI.
8. Any other question of law as deemed fit in the facts and circumstances of the case may also be framed before the Hon'ble Tribunal in the interest of justice.
11. The issue raised from grounds No. 1 to 6 have been decided by the ld.
CIT(A) in his order at para 3.3.3, which is reproduced hereunder:
3.3.3 "I have duly considered assessee's submission and carefully gone through assessment order passed by the AO. I have also carefully gone through the Hon'ble ITAT Bench Jaipur's order dated 15/3/2012 in ITA No 1062/JP/2011 for AY 2008-09 which has been decided in favour of revenue and the assessee has also not challenge the said order. AO 11 ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology relying on the decision of Hon'ble ITAT Jaipur (Supra) has observed in the assessment order that assessee is not eligible for exemption u/s 10(23C) of the Act. For the sake of clarity, relevant extracts of which is reproduced here as under:
"6. The Id. Counsel of the assessee stated that in earlier year the assessee's total income was of loss and, therefore, the assessee has not claimed any exemption under section 11 neither it was allowed. It was also submitted that assessee applied for exemption of its income under section 10(23C)(vi) of the Act. The Id. Chief Commissioner of Income-tax vide his order dated 22.3.2006 had rejected the application of the assessee and this fact has been mentioned in the order passed for the assessment year 2004-05, copy of which is placed at paper book pages 66-70. It was submitted that in earlier year's assessment has been completed and department itself has allowed the loss to be carry forward. Attention of the Bench was drawn on various assessment orders placed in the paper book."
7. On the other hand, the Id. D/R stated that the issue may be decided on merit.
8. After considering the submissions and perusing the material on record, we find that assessee deserves to succeed in this ground. We have seem various assessment orders for earlier years, copies of which are placed on record and found that the respective assessing officers had allowed the net deficit to be carried forward in the respective assessment order. Therefore, there is no reason in not allowing the benefit of carry forward losses/deficit. Accordingly, we direct the AO to allow the benefit of quantified carry forward losses to the assessee against the income of the assessee.
9. For the sake of clarification, for the year consideration there was a positive income and, therefore, assessee has filed its return showing the income of the year, exemption u/s 11 of the Act has also been claimed. It carry forward losses are allowed to be set off them the income will become of negative figure and, therefore, exemption u/s 11 cannot be allowed. The Ld. Council of the assessee has fairly agreed that if Gr no. 8 is allowed in its favour 12 ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology then other grounds will become academic in nature. Since we have allowed this ground in favour of assessee, therefore, all other grounds have become academic in nature and has become infructuous, they are dismissed."(Stress supplied by me) Before proceeding further, I would like to put all relevant facts of the case as under:
(i) Assessee belongs to "Kandoi Gr" on whose premises, a search and seizure operation u/s 132 of the Act was carried out on 18.07.2012.
(ii) Assessee has submitted that its original e-return of income for AY 2014-15 was filed on 17.11.2014 declaring total income at Nil, relevant extracts of which are reproduced here as under:
Computation of total income.
Income from other sources 35,84,55,229
College fees 26,27,47,913
Hostel fees 8,43,59,275
Other income 1,13,48,041
Depreciation Item 5,29,87,717
-----------------------------------
41,14,42,964
Less:
Depreciation as per Chart 57(ii) 5,29,87,717
5,29,87,717
-------------------------------------------
35,84,55,229
Income before application of Income 35,84,55,229
Less: Application of Income
Total expenditure inc. depreciation 32,44,26,398
Purchase of fixed assets 4,86,67,774
35,84,55,229
Application of income cannot more than Rs. 35,84,55,229 ----------
35,84,55,229
Gross Total Income 0
Total income 0
(iii) Assessee, being a society, is registered u/s 12AA of the Act, accordingly its income is exempt u/s 10(23C) of the Act and CIT(Exemption) Jaipur vide order dt 22/05/2000 has issued certificate effective from 13 ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology 11.05.2010 in this regard. The appellant society applies its income and funds accrued from institutes namely Global Institute of Technology & Global Collage of Technology for charitable purposes as defined u/s 2(15) of the Act.
(iv) Even if exemption is denied u/s 10(23C) of the Act, assessee is entitled for exemption u/s 11 & 12 Assessee has claimed exemption u/s 11 of the Act not u/s 10(23C) of the Act as contended by the AO in pg 4 of the assessment order. On careful perusal of statute, it is seen that exemption u/s 11 & 12 of the Act is allowable if the assessee is registered u/s 12A A of the Act and involved in charitable activities as prescribed in Sec 2(15) of the Act. Further, exemption u/s 11 & 12 of the Act is not allowed if there is violation of sec 13(1) of the Act on the part of the assessee. More specifically, as per the provisions of sec 13(1)(d) of the Act, exemption is not allowed if funds meant for charitable purpose are invested for the period during the year in any form otherwise prescribed u/s 11(5) of the Act.
(v) Various courts including Hon'ble Jurisdictional ITAT in assessee's own case for AY 2008-09 (supra) has allowed the benefit of quantified carry forward losses to the assessee against the income of the assessee. Further, if there is a positive income of the assessee for the year, exemption u/s 11 is allowable subject to conditionalties prescribed u/s 13(1) of the Act but if the carry forward losses are allowed to be set off then the income will become of negative figure and therefore, exemption under sec 11 of the Act cannot be allowed.
(vi) On perusal of audit report submitted u/s 12A(b) of the Act, it is seen that an amount of income of the previous year applied to charitable purpose during the previous year relevant to AY 2013-14 is at Rs.
14ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology 34028831.36 whereas addition to fixed assets is at Rs. 14,86,67,774/-. However, AO in the assessment order on pg 3 has mentioned that the issue relating to sec. 10(23C) of the Act has been decided by the Hon'ble ITAT Bench Jaipur in favour of revenue by ITA No. 1062/JP/2011 dt 15.03.2012 for AY 2008-09 and the assessee has not challenged the said order, accordingly, assessee is not eligible for exemption u/s 10(23C) of the Act. AO while finalizing the assessment has made following additions / disallowances:
a) Income [being exemption denied u/s 10(23C)] Rs. 35,84,55,229/=
(b) Expenditure claimed Rs. 37,66,47,698/= .....................................................................................................................................................................
Surplus/Deficit Rs.(-)1,81,92,469/-
(c) Transfer to General Reserve
* Registration receipts Rs.31,92,000/=
* Book Bank Income Rs. 2,90,000/=
* Forms/Late fees Rs.11,65,300/=
Ld AR of the assessee further submits that under no provisions of Act receipt of capital nature can be taxed as income as the said receipts are of the nature of capital receipts with overriding title. All the above mentioned receipts were nonrecurring in nature and were of capital nature hence the same does not form part of the profit and loss account; thus, were added to the general reserves. Assessee has relied upon following judicial pronouncements:
* Hakim Abdul Hamid 90ITR 203(FB) * Bombay Oilseeds and Oil Exchange Ltd. 202 ITR 198 (Bom) * Hindustan Housing & Land Development Trust Ltd 161 ITR 524 (SC)
(vii) Assessee has submitted that AO while making aforementioned additions has not referred to any incriminating documents/ materials found from the searched premises. Further, assessee has submitted that AO has accepted the statutory audit report u/s 12(1)A(b) of the Act and also not pointed out any mistake/discrepancy. In this regard, 15 ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology assessee further submits that in view of judgments given by various courts including Hon'ble Jurisdictional ITAT and High Courts, assessment completed by making aforementioned additions u/s 143(3) r.w.s 153B(1)(b) of the Act in absence of incriminating materials cannot be sustained.
In view of facts and circumstances of the case as discussed above and duly considering the case laws relied upon by the assessee and remand report and rejoinder filed, I am of the considerate view that as there is no violation of sec 13(1) of the Act, exemption u/s 11 & 12 of the Act is allowable to the assessee which is also registered u/s 12AA of the Act. Further, here in this case income before application of income is Rs. 35,84,55,229/= against which assessee has incurred expenditure of Rs. 37,66,47,698/= which can take care of further addition made of Rs. (-) 1,81,92,469/=. Even if, respectfully following the order of Hon'ble ITAT in assessee's own case (supra), quantified carried forward losses be allowed to be set off with the income of the assessee, then net result will be negative in that case. Considering all these facts, additions made of Rs. 5,22,21,300/= & Rs. 23,16,700/= are hereby deleted. Assessee's appeal in Gr No 2, 3 & 4 are allowed."
12. Now the revenue is in appeal before the ITAT. The ld. CIT DR has relied on the order of the Assessing Officer. On the contrary, the ld AR of the assessee has relied on the order of the ld. CIT(A).
13. We have heard both the sides on this issue. The factual aspect as recorded by the ld. CIT(A) for the year under consideration that the assessee was registered U/s 12AA of the Act and the income before application of 16 ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology income was of Rs. 35,84,55,229/- while the assessee has recorded expenditure to the tune of Rs. 37,66,47,698/- resultant there was a deficit. It is also pertinent to note that the ld. CIT(A) has granted relief to the assessee on the basis of decision of ITAT Jaipur Bench in ITA No. 1062/JP/2011 for the A.Y. 2008-09 dated 15/03/2012 wherein loss carried forward were quantified which are to be allowed set off with the income of the assessee. The net result comes negative. The ld CIT DR was not able to controvert the findings recorded by the ld. CIT(A), therefore, we sustain the order of the ld. CIT(A) on these issues.
14. In the ground No. 7 of the appeal, the issue involved is deleting the addition of Rs. 1,28,688/- on account of delayed payment towards employee's contribution of ESI. The ld. CIT(A) has deleted the addition by holding as under:
3.4.2 I have duly considered assessee's submission and carefully gone through assessment order passed by the AO. I have also taken a note of factual matrix of the case as well as case laws relied upon. The issue of delayed payment of PF/ESI has already been settled by the Hon'ble Jurisdictional High Court by following the principles laid down by the Hon'ble Apex Court in Vinay Cement case(supra) has decided the matters in case of CIT vs. SBBJ [2014] 265 CTR 411 and CIT vs. Udaipur Dugdh Utpadak Sangh Ltd [2014] 265 CTR 59 and held that where PF/ESI paid after due date under respective act but before filing of return u/s 139(1) cannot be disallowed u/s 36(1 )(va) r.w.s. 2(24) (x)of the Act.17
ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology In view of facts and circumstances of the case and respectfully following the aforementioned judicial decisions, addition of Rs. 1,28,688/- made as income of Appellant on account of delayed payment of employee's contribution of PF and ESIC is hereby deleted. Assessee's appeal in Gr No. 5 stands allowed."
15. Now the revenue is in appeal before the ITAT. The ld. CIT DR has relied on the order of the Assessing Officer. On the contrary, the ld AR of the assessee has relied on the order of the ld. CIT(A).
16. We have heard both the sides on this issue. This issue is covered in favour of the assessee by the decision of the Hon'ble Jurisdictional High Court in the case of CIT Vs. SBBJ (2014) 265 CTR 411. Therefore, on this issue also, me uphold the order of the ld. CIT(A). Accordingly, this ground of revenue's appeal stand dismissed.
17. In the result, both the appeals of the revenue are dismissed.
Sd/- Sd/-
¼dqy Hkkjr½ ¼Hkkxpan½
(Kul Bharat) (BHAGCHAND)
U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member
Tk;iqj@Jaipur
fnukad@Dated:- 30th October, 2017
*Ranjan
vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- The DCIT, Central Circle-3, Jaipur.
2. izR;FkhZ@ The Respondent- The Global Institute of Technology Society (GITS), Jaipur.18
ITA 43 & 647/JP/2017 ACIT Vs. Global Institute of Technology
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr¼vihy½@The CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 43 & 647/JP/2017) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar