TMI Blog2013 (12) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... the form and not the substance of the provisions of the Act - The Tribunal was justified in remanding the matter back to examine the books of account of the assessee for assessment year 2009-10 to find out whether the amount was spent in the next year and if the investment exceeds unspent amount within the prescribed period, the Assessing Officer will condone the delay and irregularity in filing Form 10 - Decided in favour of assessee. - Income Tax Appeal No. - 349 of 2013 - - - Dated:- 9-12-2013 - Hon'ble Sunil Ambwani And Hon'ble Surya Prakash Kesarwani,JJ. For the Appellant : Shambhu Chopra, Sr. Sc, It ORDER We have heard Shri Shambhu Chopra, learned counsel for the income tax department. The affidavit of service has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular Road, Muzaffarnagar. The assessee filed its return of income declaring nil income as per computation of income as under:- By Income as surplus from MG Public School Rs.100,74,289.00 Less: being excess of income over expenditure Account of the trust Moti Ram Gopi Chand Charitable Trust Rs.594.00 Rs.1,00,73,695.00 Less:Funds to be utilized 100% for Charitable trust purposes Rs.1,00,73,695.00 However, the Assessing Officer observed that assessee had not utilized funds for charitable purpose as per the provisions of the Act and held as under:- "Again from perusal of the return it is noticed that the total receipts of the assessee is Rs.1,97,84,940/- which include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule-I." Along with this reply, the assessee also filed notice u/s 11 (2) (a) of the IT Act read with Rule 17 of IT Rules, 1962 for accumulation of income. The letter is addressed to Addl. CIT." The Assessing Officer, however, did not consider the contention of the assessee and made the disallowance because of the following:- i) the notice u/s 11 (2) (a) is not in a specified form as per Rule 17 of IT Rules, 1962. The prescribed form is Form No.10. ii) the letter states that amount of Rs.24,04,624/- shall be utilized in the next year and it does not state the purpose for which it is being accumulated. iii) The application dated 26.9.2008 is filed on 21st October, 2008 and therefore cannot be considered as notice as it should h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied time is directory. The Tribunal held that the Assessing Officer has power to condone the delay specially in the circumstances than the assessee had filed audited balance sheet for the assessment year 2009-10 (the next assessment year) before the Assessing Officer for claiming for unspent amount was spent in the prescribed period. He also demonstrated that the assessee had made investment in next year amounting to Rs.1,25,17,086/- and thus the purpose of the provisions of the Act have been achieved. In CIT v. Nagpur Hotel Owners' Association, 2001 (247) ITR 201 the Supreme Court held that the notice of accumulation must be given to the assessing authority under Section 11 before the assessment is concluded. It was held that the assesss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he furnishing of information on prescribed form. There was sufficient material before the Assessing Officer both in the shape of the information furnished within the prescribed period and the proof of not only setting apart 85% of the amount to be spent in next year but also the expenditure of that amount in the next year. The insistence of furnishing of information on Form 10 as a condition precedent, is insistence on the form and not the substance of the provisions of the Act. The Tribunal has taken precaution, and remanded the matter to examine the books of account of the assessee for assessment year 2009-10 to find out whether the amount was spent in the next year and if the investment exceeds unspent amount within the prescribed peri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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