9911796707
TMI Blog2012 (10) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-93 but the same came to be rejected. Against the order of rejection, the assessee filed a writ petition before this court which came to be disposed of with a direction to the Central Government to reconsider the assessee's claim. After reconsideration, the Central Government by an order dated 7th March, 1997 held that the assessee was not entitled to the benefit of section 10(23C)(iv) of the Act. The assessee did not make any application under section 10(23C)(iv) for assessment year 1993-94 and onwards. It appears that in the original returns of income, the assessee had claimed exemption under section 10 of the Act. However, subsequently, on 17th January, 1996, the assessee filed revised returns for five assessment years, that is, assessment year 1989-1990 to 1993-94 claiming exemption under section 11 of the Act. The Assessing Officer was of the view that as there was no notification under section 10(23C)(iv), the claim of the assessee was required to be examined only under the provisions of sections 11, 12 and 13 of the Act. He, however, did not accept the assessee's claim for exemption under section 11 of the Act, inter alia, on the ground that the assessee was required to mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances of the case, observed that there was an apparent mistake in the order of the Tribunal as the ground relating to maintainability of the application for accumulation of the income filed by the assessee under the provisions of section 11(2) for the assessment years under reference had not been adjudicated even though the ground had been specifically raised in the memorandum of appeal and argued during the course of hearing of the appeals. On merits, the Tribunal held thus: "6. Section 11(2) of the Act enlarges the scope of exemption and removes the restrictions relating to accumulation of income subject to fulfilment of conditions laid down in sec. 11(2). Section 11(2) allows accumulation of income of the trust for specified purposes for a maximum period of 10 years on the condition that the trust specifies, by a notice in writing to the Assessing Officer in the prescribed manner, the purpose for which the income is being accumulated or set apart and the money so accumulated or set apart is invested or deposited in the form or modes specified in section 11 (5). The provisions of section 11(2) do not prescribe any time limit by which a notice in writing should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time limit prescribed for filing Form No.10 under rule 17 of the rules is directory in nature. In support of the said submission, reliance was placed upon the decision of the Supreme Court in the case of Commissioner of Income-Tax vs. Nagpur Hotel Owners' Association, (2001) 247 ITR 201 (S.C.). 7. On the other hand, Mr. S.N. Soparkar, Senior Advocate, learned counsel for the respondent invited the attention of the court to the facts of the case to submit that undisputedly the assessee had furnished Form No.10 under rule 17 of the Rules alongwith the revised return, that is, prior to the completion of the assessment. Referring to the decision of this court in the case of Commissioner of Income-Tax v. Mayur Foundation, (2005) 274 ITR 562, it was submitted that this court, in a case where the requirements of rule 17 of the Rules had been complied with at the stage of appeal before the Tribunal, had held that the Tribunal was well within its jurisdiction to entertain a new ground by which the assessee claimed the benefit under section 11(2) of the Act and adjudicate the tax liability of the assessee. It was submitted that the court had considered the decision of the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing authority must have this information at the time he completes the assessment. In the absence of any such information, it will not be possible for the assessing authority to give the assessee the benefit of such exclusion and once the assessment is so completed, in our opinion, it would be futile to find fault with the assessing authority for having included such income in the assessable income of the assessee. Therefore, even assuming that there is no valid limitation prescribed under the Act and the Rules even then, in our opinion, it is reasonable to presume that the intimation required under Section 11 has to be furnished before the assessing authority completes the assessment concerned because such requirement is mandatory and without the particulars of this income the assessing authority cannot entertain the claim of the assessee under Section 11 of the Act, therefore, compliance with the requirement of the Act will have to be any time before the assessment proceedings. Further, any claim for giving the benefit of Section 11 on the basis of information supplied subsequent to the completion of assessment would mean that the assessment order will have to be reopened. In o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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