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2014 (3) TMI 146 - GUJARAT HIGH COURTOption given under clause (2) of Explanation to Section 11 (1) of the Act - Unspent income of the Trust –Held that:- The assessee did exercise the option as is apparent from the letter supplied by the assessee - the assessee conveyed to the Department that the assessee gave a notice of option exercised by the Trust to allow to spend surplus amount that may remain at the end of the previous year ended on 31st March 2009, during the immediately following the previous year ie., 2009-10 - Two things are thus abundantly clear – firstly, that such option was exercised before last date of filing the return, which was 30th September 2009 and secondly, that such option was exercised in terms of clause (2) of Explanation to Section 11 (1) of the Act - This was clearly not an option under subsection (2) of Section 11 - The caption of the communication dated 22nd September 2009 as well as the contents of the letter make this clear – thus, the assessee cannot be precluded from pursuing the option on the ground as was done by the Assessing Officer that no declaration in the prescribed form was made – the declaration was required only if the assessee’s option was to be covered by the provision of Section 11 (2) of the Act. The Tribunal has taken note of facts on record namely that the option in fact was exercised within the time permitted under the statute - It was a bona fide error to indicate a wrong figure - The intention to avail carryover of the unspent income to the next year was clear - Relying upon Trustees of Tulsidas Gopalji Charitable And Chaleshwar Temple Trust v. Commissioner of Income Tax [1993 (9) TMI 75 - BOMBAY High Court] Commissioner of IncomeTax v. Ziarat Mir Syed Ali Hamdani [2000 (11) TMI 110 - JAMMU AND KASHMIR High Court] - the requirement of exercising an option within the time permitted under clause (2) of Explanation to Section 11 (1) of the Act is directory and not mandatory - Substantial compliance thereof would therefore be sufficient - the Tribunal had committed no error in granting the benefit to the assessee for the entire amount since it was a mere oversight or bona fide error in not indicating the correct and full amount for the option under clause (2) of Explanation to Section 11 (1) of the Act – Decided against Revenue.
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