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2024 (3) TMI 147 - ITAT AHMEDABADExemption u/s 11 and 12 - charitable activity u/s 2(15) - As alleged total receipts from trade, commerce or business/service rendition for the same which exceeded 20% of total receipts in the case of the appellant - As per AO assessee trust has not filed Form 10 and Form 10B electronically, before the due date of filing the Return of Income as per Rule 17(2) and 17(3) of the I.T. Rules. Further, it was not clear whether the assessee has invested its accumulated fund u/s. 11(2) of the Act in the manner prescribed u/s. 11(5) - AO held that the assessee trust is not eligible to claim exemption u/s. 11(2) of the Act r.w.r. 17(2) and 17(3) of the I.T. Rules for accumulation for specific purposes - CIT(A) allowed the appeal in favour of the assessee HELD THAT:- We do not find any infirmity in the order passed by Ld CIT[A], the claim of the Revenue that onus was on the assessee to prove that receipts were on cost basis and income of the assessee was on cost basis for which full details were not submitted by the assessee. But it is seen that the assessment was conducted u/s. 143(3) of the Act and the assessee furnished all details before the AO. Therefore, the Ld CIT[A] held that such requirement of huge supporting evidences in remand proceedings is not called for when no specific instances has been pointed out in assessment order to prove to the contrary. In fact, not only the Hon'ble Supreme Court has dismissed revenue's appeal in AUDA [2022 (10) TMI 948 - SUPREME COURT] but also that of many other Gujarat Urban Development Authorities viz. Surat, Gandhinagar, Rajkot Development Authorities, etc., all of which are subjected to the same Act of Gujarat State Government and work under the Control and Rules stated therein as has been discussed in detail by the Hon'ble Gujarat High Court. In fact, co-ordinate Bench of this Tribunal in the case of Surat Urban Development Authority [2020 (4) TMI 755 - ITAT AHMEDABAD] has also referred to the decision of the Hon'ble Gujarat High Court in AUDA [2017 (5) TMI 1468 - GUJARAT HIGH COURT] as well as the decision of Vadodara Urban Development Authority [2019 (2) TMI 543 - ITAT AHMEDABAD] to allow the appeal of SUDA. Thus the assessee is also governed by same Rules/Act and no further distinguishing facts have been highlighted by the AO in the remand proceedings further in the Grounds of Appeal raised before us with specific instances. The Revenue is also silent about the new Section 10(46A) proposes to exempt any income derived by a body or authority, board, trust, or commission, other than a company, established or constituted by or under a central or state act for one or more General Public Utility. Therefore in our considered opinion, the provision to section 2(15) of the IT Act is not applicable to the case of the assessee and therefore the Ground nos. 1 & 2 raised by the Revenue are devoid of merits and the same is liable to be dismissed. Addition made on account of fixed assets - CIT(A) not upholding the addition and directing to allow the same u/s. 11(1) of the Act after verification - HELD THAT:- CIT[A] has clearly observed that there is no specific discussion made with respect to this issue in the assessment order made by the AO. Since the AO has denied benefit u/s 11 and section 12 of the Act to the assessee, as a consequence the addition to fixed assets being a capital expenditure stands disallowed. However, since the claim of benefit of section 11 is now allowed in favour of the assessee, the AO was directed to allow the same after verification as per law u/s 11(1) of the I.T. Act. The Revenue could not demonstrate any infirmity in the order passed by the Ld CIT[A] Delay in filing Form 10 - CIT DR is correct in his argument that filing of Form 10 is mandatory under section 11[2] of the Act after the amendment made in Finance Act, 2015 - Hon’ble Delhi High Court considered this issue post amendment of the Act in the case of BAR COUNCIL INDIA [2024 (1) TMI 317 - DELHI HIGH COURT] as held delay in filing Form 10 in the present case occurred because the amendments went unnoticed by the officials of the petitioner. The assessment year 2016-17 was the first occasion subsequent to those amendments. Therefore, we find no reason to disbelieve the explanation furnished by the petitioner to explain the delay in filing Form 10. Further, we are unable to fathom as to what benefit would accrue to the petitioner by delaying the filing of Form 10. In our opinion the discretion conferred for condoning the delay was not correctly exercised by the Commissioner Income Tax. Decided in favour of assessee. Disallowance of addition of fixed assets - CIT(A) partly confirming the disallowance and directing to allow the same u/s. 11(1) of the Act after verification - HELD THAT:- Since the claim of benefit of section 11 is now allowed in favour of the assessee, the AO was directed to allow the same after verification as per law u/s 11(1) of the I.T. Act. The assessee could not demonstrate any infirmity in the order passed by the Ld CIT[A] and therefore the same does not require any interference.
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