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Director of Income Tax (Exemption) Versus All India Personality Enhancement & Cultural Centre For Scholars Aipeccs Society And Vica-Versa

2015 (10) TMI 600 - DELHI HIGH COURT

Income from All India Personality Enhancement and Cultural Centre for Scholars AIPECCS Society - whether exigible to tax under the Act? - whether Assessee was not functioning solely for the purposes of education and, therefore, was not eligible for exemption under Section 10(22) of the Act? - Assessee submitted that since Revenue had not challenged the order dated 4th August, 2006 passed by the Tribunal under Section 254(2) it was not open for the Revenue to impugn the same in the present appeal .....

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f undisclosed income are also harsh. Thus, the expression ‘undisclosed income’ would have to be viewed from the stand point of an Assessee and unless it is manifest from the conduct of the Assessee that he consciously intended to conceal his income, which he otherwise believed to be taxable; the same would not to be liable to be treated as undisclosed income of an Assessee. As indicated earlier, there is no material to conclude that the Assessee acted in a manner to conceal its income or activit .....

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not arise. We find no infirmity with the decision of the Tribunal in setting aside the block assessment order dated 31st January, 2001. We accept the contention advanced on behalf of the Assessee that the question whether the income of the Assessee was liable to be excluded from its total income by virtue of Section 10(22) of the Act was an issue which could not be made the subject matter of block assessment under Section 158BC, as the same is concerned only with the assessment of ‘undisclosed .....

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dmittedly, this which would not be permissible in case the Assessee did not exist solely for educational purposes and/or if the Assessee was found to be pursuing the profit motive. The surpluses generated by the Assessee are necessarily to be applied towards its charitable objects.In view of the aforesaid, the exemption under Section 10(22) of the Act cannot be denied to the Assessee only for the reason that it had been generating surpluses

Whether the investments made by the Assessee .....

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e proviso to Section 10(23C) afforded time till 30th March, 2001 – a period of three years – to transfer their investments to permissible securities as specified under Section 11(5) of the Act. It is not disputed that the investments made by the Assessee in Consortium Finance Pvt. Ltd. were released and the funds of the Assessee were invested in a manner as specified under the provisos to Section 10(23C) read with section 11(5) of the Act. It is not disputed that bulk of the investment in BVR Pl .....

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be disputed that the Assessee had realigned all its investments in the manner as specified under provisos to Section 10(23C) read with Section 11(5) of the Act prior to 30th March, 2001 and had complied with the provisos of Section 10(23C) of the Act.

The activities of the Assessee must be viewed in the overall perspective of its nature and its principal object. It is not disputed that the surpluses generated by the Assessee could not be distributed to its members and there is also no .....

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n that the Assessee did not exist solely for educational purposes, but for the purposes of profit on the basis that it had advanced the aforesaid sums to Col. Satsangi and/or his family members who were involved in the affairs of the Assessee, is unwarranted.Thus, in our view, the Assessee would qualify for exemption under Section 10(22)/10(23C) of the Act.

Non furnishing of audit report may be necessary for seeking approval under section 10(23C) of the Act; however, failure to file t .....

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s for rejection of the Assessee’s application are concerned, in our considered view, the same are not sustainable for the reasons as discussed hereinbefore. - Decided in favour of assessee. - ITA 705/2008, ITA 924/2009, W.P.(C) 3797/2011 - Dated:- 7-10-2015 - S. Muralidhar And Vibhu Bakhru, JJ. For the Appellant : Mr Kamal Sawhney, Senior Standing Counsel, Mr Raghvendra Singh, Junior Standing Counsel with Mr Shikhar Garg For the Respondent : Mr Ajay Vohra, Senior Advocate with Ms Kavita Jha and .....

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us reflected by the Assessee in its Books of Accounts maintained in the normal course could be taxed under the provisions of Chapter XIV-B of the Act; inasmuch as, it is contended that the same could not be considered as undisclosed income earned during the block period. Since the issues involved in the above captioned appeals and the writ petition are common and/or interlinked, the said matters were heard together. 3. ITA 705/2008 is an appeal preferred by the Revenue under Section 260A of the .....

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6/Del/2008, allowing the appeal of the Assessee against an order dated 10th January, 2008 passed by CIT(A) upholding the levy of penalty imposed by the Assessing Officer (hereafter the AO ) under Section 158BFA(2) of the Act. The said order was passed by the Tribunal as a consequence of the Assessee prevailing in its Appeal - IT(SS)A.No.300/Del/2001, before the Tribunal. 5. W.P.(C) 3797/2011 is a petition filed by the Assessee under Article 226/227 of the Constitution of India, inter alia, impug .....

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ve captioned matters are as under: 6.1 The Assessee is a Society and was registered under the Societies Registration Act, 1860 on 26th December, 1980. The aims and objects of the Assessee as specified in its memorandum of association read as under:- a) To establish schools in India and provide good quality education to all without distinction of race or creed or caste or social status with a view to help the Government which is unable to cope with providing education to all. b) To organize speci .....

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above purpose, the Society may raise funds by various means, acquire premises, buildings and other property on rent/lease, by way of gift/donation, by purchase, anywhere in India or abroad and all other things which it may consider in its opinion required for the furtherance of the above aims, objects and purposes. g) To do all other acts, as are incidental and conducive to the attainment of the above aims and objects. 6.2 The Assessee is managing and running the following schools for imparting .....

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of Col. Satsangi Kiran Memorial, AIPECCS Education Complex . The residence of Col. Satsangi (the Chairman of the Assessee), the Manager and the Principal of the School were also searched. 6.4 A survey under Section 132A of the Act was also carried out at the Accounts Department within the premises of the school. During the course of the survey, the Books of Accounts which were regularly maintained by the Assessee were inventorised, however, the same were not seized. Certain cash was also found a .....

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its receipts and payments were relatable to the said purpose only. 6.6 The AO examined the Books of Accounts of the Assessee and found that the account of receipts of payments maintained by the Assessee reflected a surplus in several years falling within the block period 1st April, 1988 to 15th January, 1999. The Assessing Officer concluded that substantial surpluses in all years except Previous Years relating to the Assessment Years 1991-92 and 1992-93 indicated that the Assessee was functioni .....

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pluses as recorded in the books of the Assessee, as undisclosed income during the block period. Separate penalty proceedings under Section 158BFA(2) of the Act and under Section 271(B) of the Act were also initiated. 6.8 In the meantime, on 30th March, 1999, the Assessee filed an application in the prescribed form with DGIT(E) seeking approval under Section 10(23C)(vi) & (via) for the year 1998-99. 6.9 Aggrieved by the assessment order dated 31st January, 2001, the Assessee preferred an appe .....

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could be authorized in respect of a person where the concerned Income Tax Authority had reason to believe that either of the conditions as specified under Section 132(1) of the Act were satisfied. It was urged that a warrant of authorization, which did not specify a person but only the premises to be searched was contrary to the provisions of Section 132 of the Act and, therefore, was illegal. The Assessee also argued that no search had been conducted on the Assessee and, therefore, an assessme .....

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t the Assessee was not functioning solely for the purposes of education and, therefore, was not eligible for exemption under Section 10(22) of the Act. 8. Thereafter, the Assessee filed a miscellaneous application under Section 254(2) of the Act being MA No. 143/2005 dated 8th October, 2004 which was registered with the Tribunal on 22nd November, 2004. Subsequently MA No. 143/05 dated 27th December, 2005 was moved by the Assessee in substitution/addition to the earlier application. This applicat .....

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ome of the Assessee under Chapter XIV-B of the Act. The Tribunal further accepted the contention of the Assessee that it was not required to file its return as its income was exempt under Section 10(22) of the Act. The Tribunal, having allowed the appeal as aforesaid, did not decide the issue with respect to the validity of the search under Section 132 of the Act and the consequent initiation of proceedings under Chapter XIV-B of the Act. 10. In the meantime, the AO also passed an order dated 13 .....

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ee s claim for exemption under Section 10(23C) of the Act was rejected by the AO following an earlier decision in relation to the block period. 11. The Assessee preferred an appeal against the assessment order dated 27th March, 2002 passed in respect of Assessment Year 1999-2000, which was partly allowed by CIT(A) on 10th July, 2003. The Assessee preferred a further appeal against the order dated 10th July, 2003 to the Tribunal which was disposed of by an order dated 15th May, 2009. The Tribunal .....

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(705/2008 and 924/2009) were, accordingly, heard on the following questions of law: A. Whether the Revenue is entitled to challenge the order dated 4th August, 2006 passed by the Tribunal in this appeal? B. If the answer to question (A) is in favour of the Revenue, whether on the facts of the present case, the Tribunal was correct in law in recalling its order dated 25th June, 2004? C. Whether, in the given facts and circumstances, an assessment under section 158BC could be made in respect of th .....

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P.(C) 3797/2007 - rejecting the petitioner s application for approval under section 10(23C) of the Act, was erroneous and unjustified? Submissions on behalf of the Revenue 15. At the outset, Mr Kamal Sawhney, learned Senior Standing counsel for the Revenue contended that the decision of the Tribunal to recall its earlier order dated 25th June, 2004 was patently erroneous. He pointed out that the only reason on account of which the Tribunal had recalled its earlier order dated 25th June, 2004 was .....

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yline Glass Works Ltd. v. Assistant Commissioner of Wealth Tax: (2015) 371 ITR 355 (Mad.) in support of his contention that where a Tribunal renders a judgment without dealing with the specific factual situation, the same would be an irregularity of procedure and would not warrant a recall of the order. He submitted that, therefore, the Tribunal s order dated 4th August, 2006 was erroneous and was liable to be set aside. 17. Mr Sawhney further submitted that the Tribunal s order dated 4th August .....

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ssistant Commissioner of Income Tax: ITA 724/2010, decided on 6th August, 2010 and drew the attention of this Court to paragraphs 21 to 24 of the said decision in support of his contention that where an order under Section 254(2) of the Act is passed recalling the earlier order and the main order under Section 254(1) is passed thereafter, both the said orders could be challenged in an appeal preferred against the later order under Section 254(1) of the Act. 18. It was next contended by Mr Sawhne .....

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e if the same exceeded the maximum amount not chargeable to tax ignoring the provisions of Section 11 and 12 of the Act. 19. He submitted that it was not open for the Assessee to consider its income as not chargeable to tax under Section 10(22) of the Act and avoid filing a return of income. He argued, empathetically, that the question whether the Assessee s income was not taxable by virtue of Section 10(22) of the Act would arise only when the Assessee disclosed the same by filing a return. He .....

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Col. Satsangi and the same would warrant making an assessment under Chapter XIV-B of the Act. 21. Mr Sawhney also contested the Assessee s claim that it was entitled to exemption under Section 10(22)/10(23C) of the Act. He argued that the Assessee had consistently generated surpluses after meeting its revenue and capital expenditure and this indicated that the pre-dominant object of the Assessee was not to impart education but to generate profits and the activity of running and managing educatio .....

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n of the Assessee; purchase of farm by the daughter of the Chairman of the Assessee; and advances made to the wife of the Chairman of the Assessee. He submitted that the instances noted by the Tribunal clearly indicated that the Assessee was not carrying on its activities solely for the purposes of education but was also indulging in other commercial activities in addition to benefiting the Chairman of the Assessee and his family members. 22. Mr Sawhney referred to the following decisions in sup .....

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Countering the arguments advanced on behalf of the Revenue, Mr Ajay Vohra, learned Senior Counsel appearing for the Assessee submitted that since Revenue had not challenged the order dated 4th August, 2006 passed by the Tribunal under Section 254(2) of the Act, it was not open for the Revenue to impugn the same in the present appeal. 24. Mr Vohra next contended that by virtue of Section 10(22) of the Act, the income of the Assessee was not chargeable to tax and, therefore, the Assessee was also .....

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which required an Assessee claiming benefit under sections 11 and 12 of the Act to file a return if its income exceeded the maximum amount not chargeable to tax, was inapplicable. He also referred to Section 158BB(1)(c)(B) of the Act and contended that the entries recorded in the books of accounts and other documents maintained in the normal course on or before the date of search would not be assessed as undisclosed income if the income did not exceed the maximum amount not chargeable to tax. Mr .....

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ssessee but the same had not been proceeded with. He submitted that the pre-condition for issuance of notice under Section 148 of the Act is a belief that the income of an Assessee had escaped assessment and as the AO had decided not pursue the matter under Section 147 and 148 of the Act, it was not open for the AO to claim that the surpluses generated by the Assessee were undisclosed income . Mr Vohra further emphasized that the question whether the Assessee was entitled to the benefit under Se .....

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rt in Queens Educational Society v. CIT: (2015)] 372 (ITR) 699 (SC); Indian Chamber of Commerce v. CIT: (1975) 101 ITR 796 (SC); Aditanar Educational Institution v. CIT: (1997) 224 ITR 310 (SC) and Oxford University Press v. CIT: (2001) 247 ITR 658 (SC) in support of his contention that the pre-dominant purpose test must be used to determine whether the Assessee was existing only for educational purposes. He submitted that if the aforesaid test is applied, it would be apparent that the Assessee .....

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h provided that on dissolution of the society, its properties both movable and immovable would not be distributed amongst the members but would be given to another society having similar aims and objects. He urged that the objects of the society and the Rules and Regulations prohibited distribution of any surplus and, therefore, it could not be disputed that the Assessee existed only for the purposes of education and not for profit. 28. Insofar as the instances relating to the funds of the Asses .....

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e material time there was no restriction as to the investments that could be made by an educational institution claiming benefit under Section 10(22) and 10(23C) of the Act. He submitted that the restrictions to make investments other than in the form as specified under Section 11(5) of the Act were not applicable to institutions claiming exemption under Section 10(22) of the Act. Similar restrictions were imposed by proviso to Section 10(23C)(vi) of the Act by virtue of the Finance Act, 1998 w. .....

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Vohra submitted that all investments had been returned/liquidated by the Assessee prior to the specified date, except the investment in BVR Plantation Ltd., which was not recoverable as the said company was under liquidation. He contended that in the given circumstances the exemption under Section 10(22)/10(23C) of the Act could not be denied for the reason that the Assessee had invested its funds in real estate and other investments. 30. Mr Vohra also advanced contentions to assail the order d .....

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Section 10(23C)(vi) is to be granted at the beginning of the assessment year and, therefore, compliance of provisos to Section 10(23C), which also included the manner of utilization of funds by the Assessee, was outside the jurisdiction of DGIT(E). He referred to the decision of American Hotel & Lodging Association, Educational Institute vs. CBDT: (2008) 301 ITR 86 (SC) in support of its contention. 31. In addition, it was submitted that the Assessee s application for approval could not be .....

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under Section 10(23C)(vi) of the Act could not be rejected for the reason that it was not accompanied with an audit report. Reasoning and Conclusions Whether the Revenue can impugn the Tribunal s order dated 4th August, 2006 32. The first and foremost issue that needs to be addressed is whether the Revenue can, in this appeal (i.e. ITA 705/2008), assail the order dated 4th August, 2006 passed by the Tribunal recalling its earlier order dated 25th June, 2004. 33. At the outset, it is relevant to .....

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5/2005, the counsel for the Revenue informed this court that the Revenue was likely to file an appeal against the Tribunal s order of 4th August, 2006 and the hearing was adjourned. However, the Revenue neither filed any appeal against the order dated 4th August, 2006 nor filed any other proceedings to challenge the said order. In the circumstances, the Assessee s appeal (ITA No. 275/2005) against an order dated 25th June, 2004 was disposed of by this Court on 13th February, 2014, as being infru .....

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el for the Revenue on the decision of a Full Bench of this Court in Lachman Dass Bhatia (supra) is also entirely misplaced; the ratio of that decision is quite to the contrary. In that case, the Full bench of this Court had summarised its conclusion in the following words:- 23. In view of our foregoing analysis, we proceed to record our conclusions in seriatim: (i) An order passed under Section 254(2) recalling an order in entirety would not be amenable to appeal under Section 260A of the Act. ( .....

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iven circumstances, it was always open for the Revenue to challenge the Tribunal s order dated 4th August, 2006 by filing an appeal on a substantial question of law, if it considered that the order dated 4th August, 2006 had partly amended the order dated 25th June, 2004. It was also open for the Revenue to challenge the said order by filing a writ petition as observed by the Full Bench of this Court in the aforementioned decision. However, the Revenue did neither. In the circumstances, it would .....

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e. 37. The next question that needs to be addressed is whether, in the given facts, an assessment could be made by the AO under Section 158BC of the Act. It is not disputed that the AO would have jurisdiction to make an assessment under Section 158BC only if the search and seizure operations carried out by the income tax authorities revealed any undisclosed income . Admittedly, other than the surpluses as disclosed by the Assessee in the books maintained by it in the normal course of its activit .....

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h money, bullion, jewellery, valuable article, thing, entry in the books of account or other document or transaction represents wholly or partly income or property which has not been or would not have been disclosed for the purposes of this Act [or any expense, deduction or allowance claimed under this Act which is found to be false. 39. A plain reading of the definition of undisclosed income as quoted above indicates that undisclosed income would include income based on the entries in the books .....

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ise to any apprehension that the Assessee would not have produced his books of accounts or disclosed the same if called upon to do so. Thus, a conclusion that the Assessee would not have disclosed the surpluses as recorded in its books cannot be drawn. The only aspect that remains to be considered is whether the surpluses recorded in the books could be considered as undisclosed income of the Assessee solely for the reason that the Assessee had not filed a return disclosing the same. 40. The expr .....

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for bona fide reason, subscribes to the view that he is not required to file his return of income. 41. At this stage, it is also necessary to mention that the AO had issued a notice under Section 148 of the Act to tax the income of the Assessee on the ground that it had escaped assessment. These proceedings were abandoned and not pursued by the AO. Clearly, the only inference that can be drawn is that either the AO was satisfied that the income of the Assessee had not escaped assessment and/or t .....

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e, according to the Assessee, the said amount was not taxable as an appeal had been filed against the quantum of compensation by the Union of India, which was pending consideration in the Court and another appeal had also been filed by the Gram Sabha and the owners of the property challenging the right of the Assessee to receive such compensation. However, the said compensation had been dealt with through normal banking channels and the Income Tax Authorities were aware of the same. Nonetheless, .....

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sessee could be considered as undisclosed income. The Court explained that non-disclosure of assets and funds, which the Assessee believed to be not chargeable to tax, in his returns would not render the same to be treated as undisclosed income; even if the Assessee s opinion may be incorrect in law, but if the income tax department is aware of such income, the same could not be considered as undisclosed. The Court observed that the department would be justified in issuing notice under Section 1 .....

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said provision refers to the belief which may be formed by the Appropriate Authority to the effect that the person concerned is not likely to voluntarily or even after notice produce documents before the Income Tax authorities. Where, for example, there is information that a person is hiding or likely to hide or destroy documents or books of accounts which are required or are relevant for the purposes of the Act then in such a case it can be said that unless and until search is conducted the sa .....

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ks or documents where havala transactions are recorded then the Department can legitimately come to the conclusion that if a notice is sent then that person is not likely to produce the said documents etc. Duplicate books of accounts and such like documents are maintained primarily for the reason that they are not to be produced before the Income Tax authorities. To put it differently, the nature of the documents may be such which are not, in the normal course, likely to be produced before the I .....

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d, for example pass books, sale deeds which are registered and about the existence of which the Department is aware, then in such a case it will be difficult to believe that an assessed will not produce those documents. 33. Sub-clause (c) refers to money, bullion or jewellery or other valuable articles which either wholly or partly should have been income of an assessed which has not been disclosed for the purpose of the Act. The said sub-clause pertains only to moveable and not immoveable asset .....

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in that context, must mean income which is hidden from the Department. Clause (c) would refer to cases where the assessed knows that the moveable asset is or represents income which is taxable but which asset is not disclosed to the Department for the purpose of taxation. Those assets must be or represent hidden or secreted funds or assets. Where, however, existence of the money or asset is known to the Income Tax Department and where the case of the assessed is that the said money or the valua .....

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n his Income Tax return. Non-disclosure of the same would not attract the provisions of Section 132(c). It may be that the opinion of the assessed that the receipt of such amount is not taxable, may be incorrect and, in law, the same may be taxable but where, the Department is aware of the existence of such an asset or the receipt of such an Income by the assessed then the Department may be fully Justified in issuing a notice under Section 148 of the Act, but no action can be taken under Section .....

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is liable to be taxed under the provisions of the Income Tax Act but which has not been disclosed by an assessed in an effort to escape assessment. Not disclosed must mean the intention of the assessed to hide the existence of the income or the asset from the Income Tax Department while being aware that the same is rightly taxable. 43. Although, the aforesaid judgment was rendered in the context of Section 132 of the Act the same would be equally applicable to the issue involved in this case - .....

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d not be disclosed for the purposes of the Indian Income Tax Act, 1922 (11 of 1922) or this Act and this condition is similar to that as specified in Clause 158B(b) of the Act. 44. Mr Sawhney s contention that the fact that the Assessee had not filed its return would render the entire surpluses as disclosed in its books as undisclosed income is not sustainable. According to the Assessee its income was entirely exempt under Section 10(22) of the Act and hence it was not required to file a return. .....

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which is not chargeable to income-tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed Explanation: In this sub-section, "due date" means- (a) where the assessee is a company, the 31st day of December of the assessment year; (b) where the assessee is a person, other than a company,- (i) in .....

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(3) If any person who has sustained a loss in any previous year under the head "Profits and gains of business or profession" or under the head "Capital gains" and claims that the loss or any part thereof should be carried forward under sub-section (1) of section 72, or sub-section (2) of section 73, or sub-section (1) [or sub-section (3)] of section 74, [or subsection (3) of section 74A], he may furnish, within the time allowed under sub-section (1), a return or loss in the p .....

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24)of section 2, shall if the total income in respect of which he is assessable as a representative assessee (the total income for this purpose, being computed under this Act without giving effect to the provisions of sections 11 and 12)exceeds the maximum amount which is not chargeable to income-tax, furnish a return of such income of the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and all the provision .....

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hin the scope of Section 10(22) of the Act is not to be included in the total income of the Assessee. Thus, if such exemption was available, the Assessee was not obliged to file its return of income as its income would fall below the maximum amount which was not chargeable to income-tax. It is relevant to note that Section 10 of the Act provides for exclusions from the total income of an Assessee at the threshold. Such exclusions are qualitatively different from the exemptions, allowances or ded .....

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ent case. We are unable to accept this contention. The language of Section 139(1) of the Act is unambiguous and a person is required to file a return only if his income exceeds the maximum amount not chargeable to tax under the Act. We, respectfully, are unable to concur with the views of the Bombay High Court in Malad Jain Yuvak Mandal Medical Relief Centre (supra); if the reasoning as canvassed on behalf of the Revenue is accepted, all Assessees whose incomes are below the taxable limit would .....

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t chargeable to tax without giving effect to the provisions of Section 11 & 12 of the Act. As pointed out by the Assessee, it was not claiming exemption under Section 11 & 12 of the Act but under Section 10(22) of the Act. Section 10(22) of the Act was omitted by virtue of the Finance (No. 2) Act, 1998 and the exemption available to a university or an educational institution existing solely for educational purposes was included under Section 10(23C) of the Act w.e.f. 1st April, 1999. At .....

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(21) of section 10; (b) news agency referred to in clause (22B) of section 10; (c) association or institution referred to in clause (23A) of section 10; (d) institution referred to in clause (23B) of section 10; (e) fund or institution referred to in sub-clause (iv) or trust or institution referred to in sub-clause (v) or any university or other educational institution referred to in sub-clause (iiiad) or sub-clause (vi) or any hospital or other medical institution referred to in sub-clause (iii .....

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r university or other educational institution or any hospital or other medical institution or trade union or body or authority or Board or Trust or Commission or infrastructure debt fund is assessable, without giving effect to the provisions of section 10, exceeds the maximum amount which is not chargeable to income-tax, furnish a return of such income of the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed a .....

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ndicated that Sub-section 4C was proposed to be inserted in Section 139 because certain institutions claiming exemption under Section 10 were not obliged to file their returns and such amendment was, therefore, necessary to ascertain whether such institutions were complying with the conditions of the exemption claimed by them. The relevant extract from the Memorandum explaining the provisions in the Finance Bill is quoted below:- Under the existing provisions, scientific research association ref .....

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e unions referred to in sub-clause (b) of clause (24) of section 10 are not obliged to file return of income in respect of which they are assessable. It is, therefore, not possible to ascertain as to whether these bodies are complying with the conditions specified in those clauses. It is proposed to insert a new sub-section (4C) in section 139 to provide that every such person mentioned above, shall, if the total income in respect of which person, is assessable without giving effect to the provi .....

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search and seizure and assessing undisclosed income are draconian provisions; the assessment and penalties that follow the discovery of undisclosed income are also harsh. Thus, the expression undisclosed income would have to be viewed from the stand point of an Assessee and unless it is manifest from the conduct of the Assessee that he consciously intended to conceal his income, which he otherwise believed to be taxable; the same would not to be liable to be treated as undisclosed income of an .....

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BC of the Act is not sustainable as in the absence of any undisclosed income, the question of framing a block assessment does not arise. We find no infirmity with the decision of the Tribunal in setting aside the block assessment order dated 31st January, 2001. We accept the contention advanced on behalf of the Assessee that the question whether the income of the Assessee was liable to be excluded from its total income by virtue of Section 10(22) of the Act was an issue which could not be made t .....

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ment for the period from 1st April, 1988 to 15th January, 1999. As we have upheld the decision of the Tribunal to set aside the block assessment order for that period, therefore, it is not necessary to decide this issue insofar as the block period - that is, period from 1st April, 1988 to 15th January, 1999 - is concerned. We were also informed during the course of the hearing that the Assessee has been granted registration under Section 12A of the Act for the assessment year 2000-01 onwards. Ho .....

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al purposes and not for purposes of profit . According to the Revenue, this was evident from the fact that the Assessee has earned surpluses during most of the years falling within the block period. In addition, it was urged that the Assessee had advanced sums to the Chairman of the Assessee; the Chairman s wife; the Chairman s daughter; Chairman s son-in law; and the Manager of the Assessee. According to the Revenue, the Assessee had also indulged in dealing in real estate and making investment .....

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ow well established that an educational institution existing solely for educational purposes would not cease to be so only for the reason that some of its activities have yielded surpluses. In Sole Trustee, Loka Shikshana Trust v. CIT: (1975) 101 ITR 234 (SC); (1976) 1 SCC 254, the Supreme Court had observed that: If the profits must necessarily feed a charitable purpose under the terms of the trust, the mere fact that the activities of the trust yield profit will not alter the charitable charac .....

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r of Income Tax v. Surat Art Silk Cloth Manufacturers Association: (1980) 121 ITR 1 (SC), wherein the Supreme Court applied the predominant object test for determining whether the Assessee existed solely for charitable purposes or for making profit. The Supreme Court observed as under:- The test which has, therefore, now to be applied is whether the predominant object of the activity involved in carrying out the object of general public utility is to subserve the charitable purpose or to earn pr .....

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redominant object test needs to be applied to determine whether the institution exists solely for educational purposes, in the following words:- ….After meeting the expenditure, if any surplus results incidentally from the activity lawfully carried on by the educational institution, it will not cease to be one existing solely for educational purposes since the object is not one to make profit. The decisive or acid test is whether on an overall view of the matter, the object is to make pro .....

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ducating persons, the fact that it makes a surplus does not lead to the conclusion that it ceases to exist solely for educational purposes and becomes an institution for the purpose of making profit. (2) The predominant object test must be applied - the purpose of education should not be submerged by a profit making motive. (3) A distinction must be drawn between the making of a surplus and an institution being carried on for profit . No inference arises that merely because imparting education r .....

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ee society are solely for the purposes of education and not for purpose of profit. Distribution of surpluses is prohibited. Further, in the event of dissolution of the Assessee society, its assets would have to be transferred to another institution carrying on similar activities and the same cannot be distributed to its members. The Assessee has been running three schools that are affiliated to CBSE; admittedly, this which would not be permissible in case the Assessee did not exist solely for ed .....

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n 10(22). Section 10(22) of the Act as it existed prior to 1st April, 1999 reads as under:- 10. Incomes not included in total income.- In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included- xxxxx xxxxx xxxxx "(22) any income of a university or other educational institution, existing solely for educational purposes and not for purposes of profit;" 61. Plainly, the exemption under Section 10(22) of the .....

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the Tribunal s decision that investments made by the Assessee therein did not disentitle the Assessee to exemption under Section 10(22) of the Act. The relevant extract of the said decision reads as under:- We also are of the view that the surplus funds available with the assessee could be suitably invested whether by way of fixed deposit in a bank or financial institution or in stock market to earn profit which would in turn be available to the society for being utilised to pursue its education .....

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on. It was not, therefore, a case where the society had received funds which it had entirely directed for investment purposes by neglecting its basic object of running the institution. 62. It is also relevant to note that Section 10(22) of the Act was omitted by virtue of Finance (No.2) Act, 1998 w.e.f. 1st April, 1999, and the provisions to exempt income of universities and educational institutions existing solely for educational purposes were introduced in Section 10(23C) of the Act by introdu .....

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rposes and not for purposes of profit, which are approved by the prescribed authority. The relevant clauses of Section 10(23C) of the Act are quoted below: 10. Incomes not included in total income. In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included- … (23C) any income received by any person on behalf of- (iiiab) any university or other educational institution existing solely for educational purposes .....

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ses of profit, other than those mentioned in sub-clause (iiiab) of sub-clause (iiiad) and which may be approved by the prescribed authority; … Provided that the fund or trust or institution or any university or other educational institution or any hospital or other medical institution referred to in sub-clause (iv) or sub-clause (v) or subclause (vi) or sub-clause (via)] shall make an application in the prescribed form and manner- to the prescribed authority for the purpose of grant of th .....

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where more than fifteen per cent of its income is accumulated on or after the 1st day of April, 2002, the period of the accumulation of the amount exceeding fifteen per cent of its income shall in no case exceed five years; and (b) does not invest or deposit its funds, other than- (i) any assets held by the fund, trust or institution or any university or other educational institution or any hospital or other medical institution where such assets form part of the corpus of the fund, trust or inst .....

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issued by, or on behalf of, any company or corporation), acquired by the fund, trust or institution or any university or other educational institution or any hospital or other medical institution before the 1st day of March, 1983; (iii) any accretion to the shares, forming part of the corpus mentioned in sub-clause (i) and sub-clause (ia), by way of bonus shares allotted to the fund, trust or institution or any university or other educational institution or any hospital or other medical institut .....

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herwise than in any one or more of the forms or modes specified in sub-section (5) of section 11 if such funds do not continue to remain so invested or deposited after the 30th day of March, 2001: … 63. The provisos to Section 10(23C) provided for several restrictions and conditions including the extent of income that could be accumulated and the form and manner in which its funds have to be invested, to avail the exemption under Section 10(23C) of the Act. It is relevant to note that the .....

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elating to exempting the income of educational institutions, Universities, Hospitals and other medical institutions. 8.1 Under the provisions of clauses (22) and ( 22A) of section 10 of the Income-tax Act, before amendment, educational and medical institutions enjoyed a blanket exemption from income-tax if they existed solely for educational purposes and not for the purposes of profit. In the absence of any monitoring mechanism for checking the genuineness of their activities, these provisions h .....

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of other educational and medical institutions would also be exempt if their annual receipts are below a limit to be prescribed. The limit has since been prescribed at Rs. one crore vide Notification No. SO 897(E) dated 12th October, 1998. 8.4 The income of the remaining educational and medical institutions would be exempt if they are approved by the prescribed authority on application made by them under sub-clauses (vi ) and (via) of section 10(23C). This approval would be subject to their adher .....

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(E) dated 12th October, 1998. By this notification the Central Board of Direct Taxes have been designated as the prescribed authority for the purpose of approval under sub-clauses (vi ) and (via) of section 10(23C). 8.5 These amendments will take effect from 1st April, 1999 and will, accordingly, apply in relation to assessment year 1999-2000 and subsequent years. 65. It is clear from the above that the restriction in accumulating surpluses generated by a university or an educational institution .....

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n 10(23C) only w.e.f. 1st April, 1999. More importantly, the Assessees who had made their investments which did not conform to Section 11(5) of the Act, were by virtue of the proviso to Section 10(23C) afforded time till 30th March, 2001 - a period of three years - to transfer their investments to permissible securities as specified under Section 11(5) of the Act. 67. It is not disputed that the investments made by the Assessee in Consortium Finance Pvt. Ltd. were released and the funds of the A .....

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not be considered as fresh investments. It is also not disputed that the funds invested by the Assessee in BVR Plantations Ltd. were unrecoverable. Thus, in our view, it cannot be disputed that the Assessee had realigned all its investments in the manner as specified under provisos to Section 10(23C) read with Section 11(5) of the Act prior to 30th March, 2001 and had complied with the provisos of Section 10(23C) of the Act. 68. In our view, the contention of the Assessee that the investment in .....

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ol. Satsangi, the Chairman of the Assessee and his family members. He also observed that the Assessee had made certain investments for the purposes of earning profits. In view of the aforesaid, he concluded that the Assessee did not exist solely for the educational purposes, but was existing for the purposes of making profit. 70. Insofar as the sale and purchase of immovable properties is concerned, the Assessee had explained that the immovable properties were purchased for utilizing the same fo .....

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suitable and the property was sold. It was further explained that farm land at Malbaro, Gurgaon and at Nainwal were purchased for starting schools. The Assessee also pointed out that an application for grant of an NOC for starting an educational institute at Malbaro, Gurgaon was filed and a school building was also constructed. The property at Lado Sarai, Mehrauli was stated to be purchased for an admission centre once it was decided that the admission centre at the DDA Flat at Sheikh Sarai was .....

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n and managed by the Assessee. The Assessee had explained that a sum of ₹ 3,50,000/- had been paid to Ms Shakuntala Jaiman (the daughter of Col. Satsangi), who was the Principal of CSKM Public School, Delhi. It was stated that she was highly qualified - she was an M.ed and a Ph.D. (from IIT, Delhi) - and had been advanced the aforesaid sum in the normal course as an employee. It is also asserted that the said amount was received back along with interest of ₹ 83,527/-. Further, a sum .....

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. Jaiman was also highly qualified; was working for the Assessee; and was advanced the aforesaid sum in the normal course as was granted to other employees. 72. With regard to the advances made to Col. Satsangi, it was explained that it was for the purposes of acquiring land at Malbaro, Gurgaon for the purposes of the Assessee. It was further asserted that the land so purchased had been registered and mutated in the name of the society. 73. In the aforesaid facts, we find it difficult to accept .....

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e had been so distributed. The fact that certain advances had been made to Col. Satsangi and some of its family members who were also involved in running the school cannot be construed as diluting the predominant object of the Assessee. Seen from the overall perspective, it could hardly be disputed that the predominant activity of the Assessee was managing schools and the substratal purpose of its activities was education. Thus, in our view, the conclusion that the Assessee did not exist solely .....

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essed relates to the Assessee s challenge to the order dated 29th December, 2010 passed by DGIT(E) rejecting the petitioner s application for approval under Section 10(23C) of the Act. A perusal of the order dated 29th December, 2010 indicates that DGIT(E) rejected the petitioner s application principally for the reasons that the Assessee had not filed an audit report in Form No.10BB along with its application; the Assessee had allegedly made investments which were in violation of Section 11(5) .....

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on 10(23C)(vi) of the Act and whether the university or institution actually existed. It was pointed out that the approval contemplated under Section 10(23C)(vi) is to be granted at the beginning of the assessment year and, therefore, compliance of provisos to Section 10(23C), which also included the manner of utilization of funds by the Assessee was outside the jurisdiction of DGIT(E). Although mis-utilization or misapplication of funds would disentitle the Assessee for benefit of Section 10(23 .....

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3C)(vi) of the Act could not be rejected only on the ground that it was not accompanied with an audit report. 79. Before considering other issues, it would be appropriate to consider the Assessee s contention that the scope of inquiry for the purposes of granting approval under section 10(23C) of the Act is limited. We find considerable merit in the Assessee s contention that for purposes of granting approval under Section 10(23C)(vi) of the Act, the prescribed authority, i.e. DGIT(E), would not .....

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the purposes of education and not for profit. In this regard, the DGIT(E) has to examine the Charter of the Society/Trust including its objects as also the bye-laws, rules and regulations for conduct of affairs of the Society/Trust. The DGIT(E) also has to satisfy himself that an educational institution does, in fact, exist. The provisos to Section 10(23C) contain further requirements that need to be complied with - such as applying minimum of 75% of income in the relevant year and investing ac .....

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hellip;.In this connection, learned counsel placed reliance on the second proviso and submits that the said proviso clarifies that at the stage of approval what is required to be seen by CBDT is the nature and genuineness of the activities of the petitioner- Institution under consideration. According to learned counsel, the provisos to the said section sets out conditions which must be adhered, to by the Institution, and compliance therewith can never be tested at the stage of approval, since th .....

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vious year after "income", if any, is determined and thereafter accumulated. One more example is given by the learned counsel. The requirement of investment/deposit of funds, referred to in the third proviso, can only be tested at the stage of investment which can only take place after profit/ surplus is established. Under the 13th proviso CBDT is empowered to withdraw the approval earlier granted. That proviso, according to learned counsel, also proceeds on the basis that the withdraw .....

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ble to ascertain compliance at the stage of approval... ***** ***** ***** Having analysed the provisos to Section 10(23C)(vi) one finds that there is a difference between stipulation of conditions and compliance thereof. The threshold conditions are actual existence of an educational institution and approval of the prescribed authority for which every petitioner has to move an application in the standardized form in terms of the first proviso. It is only if the pre-requisite condition of actual .....

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we are of the view that the monitoring conditions in the third proviso like application/utilization of income, pattern of investments to be made etc. could be stipulated as conditions by the PA, subject to which approval could be granted. For example, in marginal cases like the present case, where petitioner-Institute was given exemption up to financial year ending 31.3.1998 (assessment year 1998-99) and where an application is made on 7.4.1999, within seven days of the. new dispensation coming .....

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oner has undertaken in its Constitution, MoU's and Agreement with Government of India/ National Council. ..." 81. Having held that the prescribed authority is not required to examine whether the Assessee has complied with the provisos to section 10(23C) of the Act while granting approval under section 10(23C)(vi) of the Act, we must also add that the prescribed authority would also necessarily have to examine the manner in which the affairs of the university or an educational institutio .....

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use the objects prohibit pursuing any purpose other than as specified under Section 10(23C) of the Act. It would be well within the powers of the prescribed authority to take into account the actual nature of the functions and activities carried on by an Assessee. 82. However, in the facts of the present case, we are unable to accept that the Assessee was not pursuing a charitable purpose within the meaning of section 2(15) of the Act. 83. The next issue to be considered is whether the approval .....

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counts and in the annual reports with special reference to the appropriation of income towards objects of the university or other educational institution or hospital or other medical institution ….. . In our view, the Assessee s contention that an audit report is not required to accompany the audited accounts is meritless. The auditor s report contains the auditor s view on the accounts audited by the auditor and without such report, the accounts would only indicate the accounts as furnis .....

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n is an incurable defect. It would be erroneous to ignore the report if the same was supplied, albeit belatedly, and was available with the prescribed authority at the time of considering the grant of approval as sought for by the Assessee. 85. There are several provisions under the Act, including under Chapter VI-A of the Act, that require the Assessee to file audit reports/certificates for claiming benefit under those provisions. In that context, the Courts have held that the exemption/allowan .....

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d disentitle an assessee from claiming the benefit of deduction under section 32AB(1) ? and held as under: In view of the above discussion, we hold that section 32AB(5) is not mandatory and the Assessing Officer has the discretion to entertain the audit report even though the same has not been filed with the return and give benefit of the deduction to the assessee in terms of section 32AB(1). 86. Mention may also be made of Circular No. 689 of 1994 issued by the Central Board of Direct Taxes in .....

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income, is not so filed, the deduction claimed under that section can be disallowed as a prima facie adjustment. Some more examples in this regard are the non-filing of audit reports or other evidence along with the return of income as required under section 12A(b), 33AB(2), 35E(6), 43B (first proviso), 54(2), 54B(2), 54D(2), 54F(4), 54G(2), 80HH(5), 80HHA(4), 80HHB(3), 80HHD(6), 80HHE(4), 80-I(7), 80-IA(8) and the like. But if evidence is subsequently furnished, rectification under section 154 .....

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