C/Taxap/300/2018 Order v. Ahmedabad Urban Development Authority

C/TAXAP/300/2018 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/TAX APPEAL NO. 300 of 2018 With R/TAX APPEAL NO. 301 of 2018 ================================================================ THE COMMISSONER OF INCOME TAX (EXEMPTIONS)VersusAhmedabad Urban Development Authority ================================================================ Appearance:MR MM BHATT for the PETITIONER(s) No. 1 for the RESPONDENT(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAHandHONOURABLE MR.JUSTICE A.Y. KOGJE Date : 07/08/2018 COMMON ORAL ORDER (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Income Tax Appellate Tribunal (ITAT), Ahmedabad Bench, “C” passed in ITA No.1422/Ahd./2017 for the Assessment Year : 2012-13 and ITA No.1605/Ahd./2017 for the Assessment Year : 2013-2014, the Revenue has preferred the present two Tax Appeals with the following proposed questions of law :-common judgment and order passed by the learned Income Tax Appellate Tribunal (ITAT), Ahmedabad Bench, “C” passed in ITA No.1422/Ahd./2017 for the Assessment Year : 2012-13 and ITA No.1605/Ahd./2017 for the Assessment Year : 2013-2014, the Revenue has preferred the present two Tax Appeals with the following proposed questions of law :- “[A] Whether on facts and in circumstances of the case and in law, the Appellate Tribunal is justified in allowing the appeal of the assessee and in restoring the issues to the file of the AO for re-adjudication with direction to follow the judgment of the Hon’ble High Court in the earlier years particularly when SLP has been filed in the earlier years which are pending before the Supreme Court? [B] Whether on the facts and in the circumstances of the case in law, the Appellate Tribunal justified in not appreciating that the activities of the assessee authority are covered by first and second proviso to section 2(15) of the Act and thus not entitled to exemption u/s. 11 and 12 as per provisions of section 13(8) of the Act? [C] Whether on the facts and in the circumstances of the case and in law, the Appellate Tribunal is correct in not upholding the order of the CIT(A) in confirming the following additions made by the AO :- (i) of Rs.58,00,00,000/- denying accumulation u/s.11(2) of the Act; (ii) of Rs.43,26,20,000/- denying deduction of receivables u/s.11(1) explanation clause (2); (iii) of Rs.49,17,54,150/- denying accumulation @ 15% u/s. 11(1)(a) of the Act? [D] Whether on the facts and in the circumstances of the case and in law, the Appellate Tribunal is correct in not upholding the order of the CIT(A) in directing the Assessing Officer to consider the receipts shown under capital receipts (general), capital receipts (drainage), capital receipts (EWS), capital receipt (water supply), capital receipt (township), Capital receipt (Vambay), funds received from Gujarat Municipal Finance Board, funds from Ministry of Urban Development and premium on lease sale of plots/shops/flats as revenue receipts?” 2. Heard learned Senior Counsel appearing on behalf of the appellant – Revenue Mr. M.M. Bhatt. (iii) of Rs.49,17,54,150/- denying accumulation @ 15% u/s. 11(1)(a) of the Act? [D] Whether on the facts and in the circumstances of the case and in law, the Appellate Tribunal is correct in not upholding the order of the CIT(A) in directing the Assessing Officer to consider the receipts shown under capital receipts (general), capital receipts (drainage), capital receipts (EWS), capital receipt (water supply), capital receipt (township), Capital receipt (Vambay), funds received from Gujarat Municipal Finance Board, funds from Ministry of Urban Development and premium on lease sale of plots/shops/flats as revenue receipts?” 2. Heard learned Senior Counsel appearing on behalf of the appellant – Revenue Mr. M.M. Bhatt. 3. At the outset, it is required to be noted and it is not in dispute that the issues involved in the present Tax Appeals are squarely covered against the Revenue, in view of the decision of the Division Bench of this Court in the case of Ahmedabad Urban Development Authority vs. Assistant Commissioner of Income Tax (Exemptions) reported in [2017] 396 ITR 323 (Guj). dispute that the issues involved in the present Tax Appeals are squarely covered against the Revenue, in view of the decision of the Division Bench of this Court in the case of Ahmedabad Urban Development Authority vs. Assistant Commissioner of Income Tax (Exemptions) reported in [2017] 396 ITR 323 (Guj). 4. Therefore, so far as this Court is concerned, these issues are concluded against the Revenue. However, it was reported that the aforesaid decision was carried in an Appeal before the Hon’ble Supreme Court and it was reported that the hearing was fixed some time in July 2018. Therefore, the earlier Division Bench of this Court adjourned the present Appeal/s to 1[st] AUGUST, 2018 with the observation that if by then, there is no possibility of the judgment of the Supreme Court being available in the near future, the Court might consider the question/s followed in the judgment, in the case of the very assessee / aforesaid decision. are concluded against the Revenue. However, it was reported that the aforesaid decision was carried in an Appeal before the Hon’ble Supreme Court and it was reported that the hearing was fixed some time in July 2018. Therefore, the earlier Division Bench of this Court adjourned the present Appeal/s to 1[st] AUGUST, 2018 with the observation that if by then, there is no possibility of the judgment of the Supreme Court being available in the near future, the Court might consider the question/s followed in the judgment, in the case of the very assessee / aforesaid decision. C/TAXAP/300/2018 ORDER 5. In view of the above, and considering the observations made by the earlier Division Bench of this Court, in the order dated 12.04.2018 and as the issues involved in the present Tax Appeal/s are now not res integra and since the decision of the Division Bench of this Court is against the Department, in view of the aforesaid decision, in the case of the very assessee but with respect to different assessment years, both the Tax Appeals deserve to be dismissed and are accordingly, dismissed. made by the earlier Division Bench of this Court, in the order dated 12.04.2018 and as the issues involved in the present Tax Appeal/s are now not res integra and since the decision of the Division Bench of this Court is against the Department, in view of the aforesaid decision, in the case of the very assessee but with respect to different assessment years, both the Tax Appeals deserve to be dismissed and are accordingly, dismissed. CAROLINE Sd/-(M.R. SHAH, J) Sd/-(A.Y. KOGJE, J)