TaxTMI 
TaxTMI 
2011 (10) TMI 173
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1998-1999 pertaining to ITA Nos.1175/2008, 1288/2008 and 1177/2008. 2. Therefore, in all by virtue of the said impugned judgments, the Tribunal has disposed of seven (7) appeals. The parties before the Tribunal in so far as the judgment dated 16.09.2003 was concerned were ad idem that it would suffice if the facts and circumstances which obtained in assessment year 1990- 1991 were discussed for the purposes of adjudication of assessment years 1991-1992, 1995-1996 and 1996-1997. While deciding appeals for assessment years 1994-1995, 1997-1998 and 1998-1999 by way of its second judgment dated 29.02.2008, the Tribunal simply followed its earlier view. 2.1 Before us, both the revenue and the assessee have taken a similar stand. The learned counsels have in fact submitted that the discussion of facts as set out in ITA No.226/2008 pertaining to assessment year 1990-1991 would largely apply to the remaining assessment years. 3. The only question which arose for consideration before the Tribunal was whether the Commissioner of Income Tax (in short, CIT) had erred in revising the order of the Assessing Officer whereby, it had proceeded to hold that the income of the assessee was e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....T Act, whereby the assessee was called upon to give explanation with regard to the charitable activities undertaken by it. The assessee was also called upon to explain the nature of the contributions made by the institutional members qua the construction of the super-structure on the demised land, and whether these institutional members were covered under section 13(1) read with section 13(3) of the IT Act. 6. After a detailed examination of the material produced by the assessee, an assessment order dated 20.03.1998 was passed sustaining the contention of the assessee that it ought to be given the benefit of the provisions of section 11 of the IT Act. 7. The CIT, however, took a contrary view and, in exercise of his powers under section 263 of the IT Act, set aside the assessment order dated 20.03.1998, on the ground that it was both erroneous and prejudicial to the interest of the revenue. A direction was issued for framing a fresh assessment in accordance with the provisions of law. 8. Aggrieved by the order of the CIT, the assessee preferred an appeal to the Tribunal. The Tribunal after a detailed discussion reversed the view taken by the CIT and restored the order of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l's order dated 29.02.2008 passed in favour of the assessee. Revenue in appeal before this court. 1995-1996 Intimation under section 143(1)(a) dated 30.03.1998. Tribunal's order dated 16.09.2003 passed in favour of the assessee. Revenue in appeal before this court. 1996-1997 Intimation under section 143(1)(a) dated 27.03.1998. Tribunal's order dated 16.09.2003 passed in favour of the assessee. Revenue in appeal before this court 1997-1998 Intimation under section 143(1)(a) dated 27.03.2000. Tribunal's order dated 29.02.2008 passed in favour of the assessee. Revenue in appeal before this court. 1998-1999 Intimation under section 143(1)(a) dated 27.03.2001. Tribunal's order dated 29.02.2008 passed in favour of the assessee. Revenue in appeal before this court. 1999-2000 Assessment order passed in favour of the assessee. No appeal preferred by the revenue. 2000-2001 Intimation under section 143(1)(a) dated 26.02.2001. Assessment order passed in favour of the assessee. No appeal preferred by the revenue. 2001-2002 Intimation under section 143(1)(a) dated 26.03.2004. Assessment order passed in favour of the assessee. No appeal ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 11 of the IT Act. 14. We have heard the learned counsels for the parties. 15. On a perusal of the judgment of the Tribunal and the authorities below, it is quite evident that the following undisputed facts emerged in this case : 15.1 As noticed by us above, during the period in issue the demised land had been allotted to the assessee vide an allotment letter dated 22.05.1988, by the Government of India, Ministry of Urban Development. At the relevant point in time, lease deed had not been executed; 15.2 The assessee was required to construct a super-structure to provide space and allot the same to various institutions engaged in furthering the concept of habitat. The institutions housed in the super-structure would share the common areas as well as facilities in accordance with clause VII of the aforementioned allotment letter. The assessee was empowered to recover the proportionate cost of the demised land, super-structure and the individual share in the common areas and facilities extended to the allottees. 15.3. The assessee was required to execute a sub-lease in the form of a triparte agreement; which at the relevant time as noticed above, had not been execute....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, it was evident that the construction and the development of the superstructure was based on a "self-financing model", whereby they would have to pay a proportionate amount of the actual total cost which would include the cost of the land and common facilities. The assessee was at best "a custodian" of funds of the allottees / institutional members. The assessee was in one sense a supervisor of the construction activities carried out on the demised land; (iv) there was no material put on record by the CIT which would justify the observation that the space was allotted to the institutional members for sum below the market price; (v) even assuming, that the price at which space was to be allotted was below the market price, since the allotment was to be made under the directions and supervision of Government of India, it could be treated as a violation of the provisions of section 13 of the IT Act, as the assessee was bound to comply with the directives contained in the letter of allotment. (vi) During the relevant assessment years, the assessee had not carried out the activities with regard to which umbrage had been taken by the CIT. The CIT should have confined himself t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Tribunal, there was no violation of the provisions of section 13(1)(c) of the IT Act as the interest earned on the funds received from institutional members would only reduce the cost which in turn would get proportionately divided amongst the institutional members. 20. The Tribunal has, according to us, correctly appreciated the position prior to 1997 and 1998, in as much as, the activities of the assessee which swayed the CIT in coming to the conclusion that the assessee had deviated from the object for which it was set up i.e., 'habitat related activities', were not circumstances obtaining in the period which was subject matter of the appeal before the Tribunal or the CIT. These were factors extraneous to those which the CIT ought to have considered in respect of the period in issue and, as rightly held by the Tribunal, the CIT ought to have ignored the same in determining whether in the periods in issue the assessee was entitled to the benefit of exemption under section 11 of the IT Act. The Tribunal in our view correctly set aside the CIT's order dated 28.03.1998. 21. As regards the period commencing from 1997 and 1998 and thereon is concerned, one would have to necessar....