TMI Blog2020 (12) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... dicated at a later point of time, if need arises. Exemption u/s 11 denied - activities carried by the assessee fall within the realm of object of general public utility , hence, proviso to section 2(15) gets attracted - HELD THAT:- As decided in own case after considering various judicial pronoucements and different facets of the arguments raised by rival sides, the Tribunal concluded that the activities carried out by the assessee fall within the ambit of charitable purpose under section 2(15) of the Act and the proviso to said section does not get attracted.The Tribunal while deciding the issue of assessee s eligibility to claim benefit of section 11 and 13 of the Act was alive to the fact that assessee is a creation of statute and is an extended arm of State Government. - ITA NO. 894/MUM/2018, ITA NO. 895/MUM/2018 - - - Dated:- 23-11-2020 - Shri Vikas Awasthy, Judicial Member And Shri Rajesh Kumar, Accountant Member For the Appellant : Shri Nishant Thakkar For the Respondent : Shri Purushottam Tripuri ORDER PER VIKAS AWASTHY, JM: These two appeals by the assessee are directed against the orders of Commissioner of Income Tax (Appeals)-4, Mumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the assessment order in this regard. 1.2 The learned C1T (A) erred on facts and in law in upholding the validity of the Assessment Order dated 27th February, 2015, passed by the AO without appreciating that the notice dated 30Ih September 2013 issued under s.143(2) of the Act was not validly served on the appellant on or before 30th September,2013, where after the issuance of such notice was barred by limitation in view of Proviso to Clause (ii) of sub-s.(2)of s. 143 of theAct. Relief claimed : The Assessment Order dated 27th February, 2015, be declared null and void being devoid of jurisdiction 2.0 Denial of exemption under s.11 The learned CIT(A) erred on facts and circumstances of the case and in law in upholding the Assessment Order appealed against denying exemption under s.11 of the Act. Relief claimed: The appellant be granted exemption under s. 11 of the Act. 3.0 Engaged in Business: The learned CIT(A) erred on facts and in law in confirming the assessment order appealed against insofar as the assessment order holds that Proviso to s.2(15) of the Act applies to the appellant disentitling the appellant to the exemption under s.11 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office address. The assessee has been filing all its return of income giving the office address and all the notices have been issued to the assessee by the Department on the said office address, except the mandatory notice under section 143(2) of the Act for the impugned assessment year. The ld.Authorized Representative of the assessee submitted that the office address of the assessee is: MHADA Griha Nirman Bhavan, 4th Floor, Kala Nagar, Bandra (E), Mumbai 400 051 The ld.Authorized Representative of the assessee pointed that the assessee has been filing its return of income giving the above address. Even for assessment year 2012-13 the address mentioned in the return of income is same. There has been no change in the address. The ld.Authorized Representative of the assessee pointed that on the notice issued by the Assessing Officer under section 143(2) dated 26/09/2013 to the assessee, following residential address has been mentioned: C-505 GRUHA SWAPNA CO OP SOC, GULMOHAR NO.4, JVPD, VILE PARLE(W) MUMBAI 400 049 The ld.Authorized Representative of the assessee stated at the Bar that at no point of time the aforesaid residential address was furnished by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption under section 12A of the Act by following the order for assessment year 2010-11 and 2011-12. The ld. Authorized Representative of the assessee further asserted that the CIT(A) has not given any independent finding for the impugned assessment year except for placing reliance on the orders of CIT(A) for preceding assessment years. Further rebutting the submissions of the ld.Departmental Representative that the assessee is not a Government Company, the ld.Authorized Representative of the assessee submitted that the Tribunal while deciding the appeal for assessment year 2010-11 has recorded the fact that the assessee is a statutory authority formed under MHADA. 7. We have heard the submissions made by rival sides and have examined the documents on record and the orders of authorities below. 8. In ground No.1 of the appeal, the assessee has assailed the validity of assessment order on the ground that statutory notice u/s 143(2) of the Act was not served on the assessee. The assessee is a Statutory Body incorporated under MHADA having head office at Gruhas Nirman Bhavan, Kala Nagar, Bandra(E), Mumbai 400 051 . A perusal of the notice dated 26/09/2013 issued under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, we deem it proper not to decide ground No.1 at this stage. The issue is left open to be adjudicated at a later point of time, if need arises. 9. The ground No.2 and 3 of the appeal are taken up together as both these grounds are interconnected. The assessee has been claiming the benefit of registration under section 12A of the Act. The Assessing Officer denied the exemption available to the assessee under section 11 of the Act on the ground that the activities of the assessee fall within the meaning of advancement of any other object of general public utility as specified in proviso to section 2(15) of the Act. We find that for the identical reason benefit under section 11 of the Act was denied to the assessee in assessment year 2010-11. The assessee carried the matter in appeal before the Tribunal in ITA No.6678/Mum/2013. The Tribunal vide order dated 04/06/2019 examined the issue of assessee s eligibility to claim the benefit of exemption under section 11 threadbare. In a detailed order, after considering various judicial pronoucements and different facets of the arguments raised by rival sides, the Tribunal concluded that the activities carried out by the assessee fall w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it constituted under an Act of the Legislature? iii) Has the Institution been incorporated for implementing the directive principles enunciated in the Constitution of India? iv) Are the activities of the institution closely regulated and controlled by the state? v) Has the institution been conferred with powers which a businessman would never enjoy, say, eviction of a tenants or closure of roads etc.? vi) Is the institution required to carry out activities like repairs to building, demolition of dangerous structures etc. which would not be the duties of a businessman carrying on building activities? vii) Does the institution look after the elementary needs of a citizen by providing basic housing? viii) Does the state subsidize the activities of the Institution? ix) Is the Institution managed by Government servants or private businessmen? x) Is there a restriction placed on who can purchase the properties? That is, income criteria has to be met, the applicant or his family member should not already be in possession of a housing unit? xi) Are the prices at which the Institution is to sell its properties closely regulated and monitored? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table purpose . 49. Further, the issues raised in ground No.3 will become purely academic in view of our finding given above that the assessee is entitled for benefit u/s.11 and accordingly, its income and expenditure have to be computed in terms of section 11 to section 13. 10. The ld. Departmental Representative has raised objection that the facts in the impugned assessment year whether are similar to preceding assessment years is not clearly emanating from impugned order. We do not find force in the contention of the ld. Departmental Representative. The CIT(A) in para-7.9 of the impugned order has observed that the facts are similar. The CIT(A) has not given its independent finding for adjudicating the issue and has only applied the reasoning given by the CIT(A) in assessment year 2010-11 to disallow benefit of section 11 of the Act in the impugned assessment year. 11. The ld. Departmental Representative has raised another argument that in the preceding assessment year while adjudicating the issue, the Tribunal has not considered the fact that the assessee is not a Government body. A perusal of the Tribunal order for assessment year 2010-11 (supra) would show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble Apex Court in the case of Gujarat Maritime Board as reported in (2007) 295 ITR 561, wherein their Lordships in the context of section 10(20) observed that section 10(20) and section 11 operate in totally different field and even if the authority or board ceased to be a local authority, it is not precluded from claiming exemption u/s. 11(1). Thus, post deletion of the provisions of section 10(20) and 10(20A), all the activities of the various authorities now have to be examined from the perspective of section 11 to section 13. Similarly, his reliance on the decision of Hon'ble Bombay High Court in the case of Vidarbha Housing Board (supra) too has no relevance, as it has been brought on record by Ld. Sr. Counsel that the matter was remanded back to the Tribunal by the Hon ble High Court to examine the applicability of exemption u/s. 4(3)(i) (which was akin to section 11 of the 1961 Act) and in pursuance thereof, the Tribunal has upheld the exemption u/s. 4(3)(i). Therefore, Mr. Dave s reliance on such a decision to canvass that it lays down the proposition that once exemption clause has been withdrawn then MHADA automatically falls within the ambit of taxation, canno ..... X X X X Extracts X X X X X X X X Extracts X X X X
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