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2015 (11) TMI 434 - AT - Income TaxRevision u/s 263 - direct the Assessing Officer to make fresh assessment after keeping in view the law relating to charity in provisos to section 2(15) of the Income-tax Act with effect from April 1, 2009 and issue of application of accumulated income of the assessment year 2004-05 within the stipulated period up to March 31, 2008 - Held that:- The Commissioner of Income-tax (Administration) cannot sit on the order of the Commissioner of Income-tax (Appeals) to decide the same issue differently. If the Department is having any grievance it would have filed an appeal before the higher forum. It is not appropriate to the Commissioner of Income-tax (Administration) to comment on the order of the Commissioner of Income-tax (Appeals). In our opinion, the issue relating to treating the income from kalyanamandapams, auditoriums, working hostel is subject-matter of appeal by the assessee before the Commissioner of Income-tax (Appeals). The said issue in assessment order merged with the order of the Commissioner of Income-tax (Appeals) as a whole hence the order was no more amenable to revisional jurisdiction of the Commissioner of Income- tax in view of Explanation (c) of section 263 of the Act and to that extent we are not agreeing with the order of the Commissioner of Income-tax passed under section 263 of the Act. It is mentioned in Form 10 that amount would be accumulated till the previous year ending March 31, 2008. The assessee was required to utilise the accumulated amount during such period. In case of non-application of the said accumulated sum for the purpose specified in Form 10, section 11(3) gets triggered and it would be taxed in the next year in which such period expired. But in this case, the Assessing Officer has failed to examine this aspect. There was no enquiry with regard to this issue. The order of the Assessing Officer is "erroneous" and "prejudicial to the interests of the Revenue" on the reason that there is wrong assumption of facts. We are inclined to agree with the findings of the Commissioner of Income-tax that the Assessing Officer is required to examine this issue afresh and gave a finding on this. Accordingly, to this extent, we confirm the order of the Commissioner of Income-tax. The issue of application of accumulated income of the assessment year 2004-05 within the stipulated period, i.e., up to March 31, 2008 is to be examined while framing the fresh assessment and decide fresh as directed by the Commissioner of Income-tax in his order. - Decided partly in favour of assessee for statistical purposes.
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