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2020 (12) TMI 27 - ITAT VISAKHAPATNAMExemption u/s 11 and 10(23C)(iv) - income applied for charitable purposes exceeded 85% - AO held that the assessee is not eligible for exemption u/s 11 of the act on the reason that the assessee is engaged in commercial activities - HELD THAT:- Respectfully following the decisions of the Hon’ble ITAT, Visakhapatnam in the assessee’s own case for A.Ys.2010-11 to 2012-13 & A.Ys 2013-14 to 2015-16 [2017 (11) TMI 673 - ITAT VISAKHAPATNAM], [2019 (1) TMI 1066 - ITAT VISAKHAPATNAM] it is held that the activities of the assessee are not in the nature of trade, commerce or business or rendering of any service in relation to any trade, commerce or business and the proviso to sec.2(15), therefore has no application to the assessee’s case. Consequently, it is held that the assessee is eligible for exemption u/s 11 as well as u/s 10(23C)(iv) of the Act. - Decided in favour of assessee. Difference in gross receipts declared by the assessee in Form 26AS - CIT(A) after examining the revised Form 26AS allowed the appeal of the assessee and deleted the addition - HELD THAT:- There was no difference in the receipts declared by the assessee and the receipts as per Form 26AS in respect of BCCI. The Ld.CIT(A) also given a finding that even infrastructure subsidy amounting to ₹ 5,16,67,017/- received from BCCI which was taken to balance sheet is treated as income of the assessee, the amount applied for charitable purposes is higher than the income of the assessee and allowable for exemption u/s 11 of the Act. Form 26AS is a statement which is also available to the AO. Further the assessee filed rectification petition before the AO during the pendency of the appeal proceedings. Instead of examining the correctness of 154 petition, it is seen that the AO rejected the petition on the plea of pendency of appeal before the CIT(A). When there is prima facie mistake, it is the obligation of the AO to rectify the mistake, even though the appeal is pending before the appellate authorities and submit the copy of rectification order for further action of Ld.CIT(A). Instead, the AO rejected the rectification petition, hence, AO should not have any grievance for further opportunity. Ld.CIT(A) is empowered to verify the corrections and decide the issue. Since the Ld.CIT(A) has examined the issue and found that there was no short admission of receipts, we find no reason to interfere with the order of the Ld.CIT(A) accordingly, ground No.(iii) of the revenue is dismissed. Contravention to Rule 46A of the IT Rules - HELD THAT:- With regard to reconciliation of gross receipts declared by the assessee and as per Form 26AS, we have already discussed in the earlier paragraphs that the assessee has filed 154 petition furnishing the complete details, which, the AO has rejected for the reason that the appeal was pending. Since the issue was already placed before the AO and the AO has rejected the assessee’s petition for rectification we, find no infirmity in the order of the Ld.CIT(A) and accordingly ground No.(iv) is dismissed.
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