TMI Blog2013 (6) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of CIT Vs. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT OF INDIA] is fully applicable to the facts and circumstances and it cannot be said that there was failure on the part of the assessee in disclosing the material facts. As the assessee has disclosed all the material facts relating to giving of advance to Mr. SV Rao and it is also on record that he is a Secretary of the assessee Trust. AO after considering this fact preferred not to take any decision on this issue. Being so, AO precluded from taking any contra decision as there is no failure on the part of the assessee in furnishing the material evidence before the Assessing Officer. Once AO applied his mind and had taken conscious decision on the impugned ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised objection to the issue of notice u/s 148 on the ground that the notice issued after four years of the end of the assessment year is invalid since all material was available on record. This claim is factually incorrect. In the course of the earlier regular assessment proceedings, when the assessee was called upon to furnish details of building advance of Rs. 6,15,000/- it filed a reply dt. 16/01/2001 wherein material facts necessary for arriving at correct conclusion were clearly suppressed by the assessee. On the issue of building advance, the letter states at item 2 as under: 'Building advance of Rs. 6,15,000/- was paid to Sri S. V. Rao for construction of building at Dilsukhnagar, where the society is running its educational inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned CIT(A) ought to have held that the notice u/s 148 was not validly issued and was out of time. 4. The learned CIT(A) ought to have held that the appellant is entitled for exemption u/s 10(22) of the IT Act. 5. The learned CIT(A) erred in holding that the provisions of sec. 13 are applicable when exempting the income of the appellant u/s 10(220 of the IT Act. The learned CIT(A) ought to have seen that there is no violation of the provisions of sec. 13 of the IT Act and that the said provisions have no application while considering exemption u/s 10(22) of the Act. 6. The order of the learned CIT(A) is perverse and the appellant may be awarded appropriate costs." 5. Before us, the learned counsel for the assessee submitted that re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings as required u/s 147 of the IT Act. He, contended that the Assessee has claimed excessive deduction u/s 10(22) of the IT Act, therefore, the Assessing Officer has rightly reopened the assessment. 7. We have heard the arguments of both the parties, perused the material on record and have gone through the orders of the authorities below. In this case original assessment was completed u/s 143(3) of the IT Act on 12/02/2001. The Assessing Officer accepted the income returned by the assessee at NIL and later on the Assessing Officer initiated proceedings u/s 148 of the IT Act on 17/09/2004 i.e. after a period of 4 years. The contention of the assessee is that necessary information for the purpose of completing original assessment has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also old balance. 3. Copies of the accounts of Shri S.V. Rao, Special Educational Society and Special Coaching Center are enclosed for perusal of the Assessing Officer. 4. No formal register is maintained for counting the number of hours each lecturer had taken the classes. The information is recorded by the clerk and based on such information, the salaries were paid. No separate register is maintained for the purpose. 5. In the case of Mr. M.P. Rao, the salary paid is Rs. 11,000/- per month. For one month, the voucher was obtained for Rs. 5,000/-, representing the net amount of salary paid. He was paid an amount of Rs. 6,000/- earlier and as the advance of Rs. 6,000 was not recorded in the books of account, the entire amount of Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon'ble Supreme Court in the case of CIT Vs. Kelvinator of India Ltd., [2010] 320 ITR 561 (supra) is fully applicable to the facts and circumstances and it cannot be said that there was failure on the part of the assessee in disclosing the material facts. On the other hand as pointed out by the assessee, the assessee has disclosed all the material facts relating to giving of advance to Mr. SV Rao and it is also on record that he is a Secretary of the assessee Trust. The Assessing Officer after considering this fact preferred not to take any decision on this issue. Being so, the Assessing Officer precluded from taking any contra decision as there is no failure on the part of the assessee in furnishing the material evidence before the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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