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TMI Blog2013 (12) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... on the following substantial questions of law:- "1. Whether on the facts and circumstances of the case, the Hon'ble ITAT has erred in law in directing the Assessing Officer to condone the delay and irregularity in filing form no.10 if the assessee has spent the amount in next year ignoring the non-compliance of statutory provisions of filing from 10 within prescribed limit and that the delay in filing of form no.10 can only be condoned by the Commissioner of Income Tax as per CBDT Circular No.273 dated 3.6.1980. 2. Whether on the facts and circumstances of the case, the Hon'ble ITAT has erred in law in directing the Assessing Officer to allow the exemption claimed by the assessee ignoring the judgment of Hon'ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,09,731/- i.e. (Rs.97,10,705/- + Rs.81,99,026/-). In brief out of total receipts of Rs.2,21,86,240/-, the application of fund is only to the extent of Rs.1,79,09,731/- which is only at 80.72%. As the application of funds is less than 85% and there is no application u/s 11 (2) along with the return, the exemption u/s 1 of the Income Tax Act, 1961 is not available to the assessee. Accordingly, vide notice dated 18.12.2009 and dated 29.12.2009 the assessee was required to explain why the exemption u/s 11 may not be disallowed. Vide letter dated 4.3.2010, the assessee furnished its reply as under:- "That the Trust is carrying on activity of providing education to the children irrespective of caste and creed and mainly on charitable purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld CIT (A) who after going through the submissions and on the basis of material on record, allowed the benefit of capital expenditure of Rs.81,99,026/- and reduced the taxable income to Rs.42,75,263/- by making the following calculation. Net income as Per P&L A/c Rs.1,00,74,289/- Add: Capital receipt on account of sale of land Rs.24,00,000/- Rs.1,24,74,289/- Less:capital expenditure Rs.81,99,026/- Rs.42,75,263/- The Income Tax Appellate Tribunal relying upon CIT v. Zirat Mir Syed Ali Hamdani, Srinagar decided by Jammu & Kashmir High Court and CIT v. Nagpur Hotel Owners Association, 247 ITR 201 held that information with full details as required in Form No.10 was furnished for setting apart and carrying forward the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essable income of the assessee. Therefore, even assuming that there is no valid limitation prescribed under the Act and the Rules even then. It is reasonable to presume that the intimation required under Section 11 has to be furnished before the assessing authority completes the concerned assessment. In the present case the application under Section 11 (2) was not filed with the return. The information, however, was given during the process of the assessment, before the assessment was completed. The assessee had given notice under Section 11 (2) (a) of the Act read with Rule 17 of the Rules of 1962 for accumulation of income to the Addl. CIT. The Assessing Officer, however, did not consider the contention of the assessee. We do not find su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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