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2016 (5) TMI 1102 - ITAT DELHI

2016 (5) TMI 1102 - ITAT DELHI - TMI - Exemption u/s 11 - whether CIT(A) was right in allowing the claim of deduction raised by the assessee by way of an additional ground u/s 11 & 12 - Held that:- Hon'ble Supreme Court in the case of Goetze India Ltd. (2006 (3) TMI 75 - SUPREME Court ) holds that if the Assessing Officer looks into a particular claim once the assessee has filed original return of income it is possible only by way of filing a revised return. There was no claim under law from the .....

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aulted for more than one reason. In view of above discussion, the ratio laid down by Hon'ble Supreme Court in various judgements and Hon'ble High Courts, we are inclined to dismiss the grounds raised by the Revenue. - Decided in favour of assessee - I.T.A. No. 338/Del/2014 - Dated:- 3-5-2016 - Shri S. V. Mehrotra, Accountant Member And Smt. Beena Pillai, Judicial Member For the Appellant : Shri M K Jain, Sr. DR For the Respondent : Shri R. P. Basia, CA ORDER Per Beena Pillai, JM: The present app .....

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he circumstances of the case, CIT(A) has erred in not appreciating the position that the assessee did not make claim of exemption u/s 11 in the return of income. Nor such claim was made by way of revised return of income inspite of the fact that assessee had ample time and opportunity at its disposal for doing so. 4. On the facts and in the circumstances of the case, ClT(A) has erred in not appreciating the position that inspite of having ample time and opportunity for making claim of exemption .....

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(A) has erred in not appreciating the correct position Of law that the fresh claim of exemption under section 11 of the Income-tax Act, 1961 cannot be entertained at appeal stage as the AO did not have any opportunity to carry out due process of examination and adjudication regarding claim of exemption u/s 11 of the I.T. Act including examination of conditions of eligibility for availing the exemption u/s 11 of the I.T. Act, 1961. 7. On the facts and in the circumstances of the case, CIT(A) has .....

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rom Distt. Registrar Firms & Societies under Society Registration Act, 1860. The assessee had filed his return of income on dt. 27.09.2010 declaring income of Rs. Nil as per details mentioned here below:- Excess of income over expenditure from running school under the name of Vaish Model Primary School, Bhiwani ₹ 41,02,736.00 Less: - Exemption u/s 10(23C)(vi) Rs. 41,02,736.00 Nil 2.2 The assessee society was also entitled to deductions under section 11 and 12 of the, income tax act, 19 .....

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xt that on purchase of Shisham Wood of ₹ 4,68,246/- has not been put to use till the closing of the year. 2.5 The Assessing Officer also disallowed vouchers for a total sum of ₹ 130131/- as related to Vaish Sen Sec. School and not found them genuine as fund of the assessee society are not utilized for the society itself. 3. Aggrieved by the order of the Assessing Officer, the assessee filed appeal before Ld. CIT(A). 3.1 Before Ld. CIT(A), assessee took up an additional ground of allo .....

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re Ld. CCIT, Panchkula. As the society is fulfilling all the terms and conditions of section 10(23C)(vi) of income tax Act, 1961, therefore assessee is eligible to claim the said exemption under section 10(23C)(vi), which wrongly denied by the Ld. Assessing Officer'. ii) From the aims and objects-running from 1 to 15 it can be observed that the sole aim of the assessee is education and thus charitable in nature. The Assessing Officer failed to consider the same. 3.3 Assessee argued before Ld .....

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claim of exemption under section 10(23C)(vi), is justified. 3.4 Assessee had submitted before Ld. CIT(A) that assessee society is entitled to get deduction u/s 11 and 12 of the I.T. Act, 1961. Since the assessee was registered u/s 12A vide letter dated 23.09.2010 w.e.f. 30.03.2010 issued by Ld. CIT himself, the same was applicable for the Assessment Year 2010-11. Ld. A.R. had submitted that at the time of filing of return of income on 27.09.2010 for the Assessment Year under consideration, the r .....

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- i) CIT Vs Pruthvi Brokers & Shareholders (P) Ltd. 252 CTR 152 (Bom.) ii) Jute Corporation of India Ltd. Vs CIT & Anr. 88 CTR 66 (S.C.) iii) Kedarnath Jute Manufacturing Company Ltd. Vs CIT 82 ITR 363. iv) CIT Vs Jai Parabolic Springs Ltd. 6 DTR 233 (Del.) (Delhi H.C.). 3.4 Ld. CIT(A) after considering the decisions and judgements relied upon by the Ld. A.R., held as under:- 4.3 It is indeed a question of exercise of discretion whether or not to allow an assessee to raise a claim which .....

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orities to considered a fresh or new ground or claim is not restricted to cases were such a ground did not exists when the return was filed and the assessment order was made. 4.4 In view of the facts discussed above and decisions by various courts and the explanation and the production of letter of granting registration under section 12A which subsequent to the filing of return of income, I hold that the assessee society was entitled to claim deduction under section 11 & 12 which I allow bas .....

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to verify such claim. He submitted that Ld. CIT(A) has erred in assuming the powers of the Assessing Officer without appreciating the correct position of law as laid down by Hon'ble Supreme Court in the case of M/s. Goetze (Indi) Ltd. Vs CIT reported in 284 ITR 324. He vehemently argued that the Assessing Officer could not entertain the claim made otherwise then by way of revised return and therefore the claim made by the assessee u/s 11 & 12 of the Act. Almost it is a fresh claim which .....

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ome of any trust or institution unless the following conditions are fulfilled, namely:- …………… Provided that where an application for registration of the trust or institution is made after the expiry of the period aforesaid, the provisions of section 11 and 12 shall apply in relation to the income of such trust or institution,- (i) from the date of the creation of the trust or the establishment of the institution if the commissioner is, for reasons to be recorde .....

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ation for exemption u/s 11 & 12 of the Act that the letter for exemption was issued on 30.03.2010 and the same was applicable for the Assessment Year 2010-11. Ld. A.R. further submitted that the powers of Commissioner (Appeals) u/s 2521(1)(a) is synonymous with the powers of the Tribunal u/s 154 of the Act. He submitted that the decision relied upon by Ld. D.R. in the case of Goetze India Ltd. Vs CIT (supra), the Hon'ble Supreme Court had decided the issue relating to the powers of Asses .....

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s thus expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorizes is to assess correctly the tax liability of an assessee in accordance with law. We do not see any reason to restrict the power of the Tribunal under section 254 only to decide the grounds which arise from the order of the CIT(A). Both the assessee as well as the Department have a right to file an appeal / cross objections before the Tribunal. We fail to see why the Tribunal shoul .....

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l return of income filed on 27.09.2010, it is clear from the above stated facts there is no dispute that the assessee has been granted the certificate u/s 11 & 12 of the Act on 30.03.2010 which was effective for the Assessment Year 2010-11 (the year under consideration before us). Section 251(1)(a) gives coterminous powers to the Commissioner (Appeals) in an appeal against the assessment order to confirm, reduce, enhance or annul the assessment so made. Hon'ble Supreme Court in the case .....

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f the AAC in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the ITO. This Court further observed that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered on its own facts. The AAC must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons. The AAC should exercise his discretion in permitting or not p .....

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under the Act to make amendment in the return without filing a revised return. Appeal to the Supreme Court, as the decision was upheld by the Tribunal and the High Court, was dismissed making clear that the decision was limited to the power of the assessing authority to entertain claim for deduction otherwise than by a revised return, and did not impinge on the power of the Tribunal." 5.2 Hon ble Jurisdictional High Court in the case of CIT Vs Sam Global Securities Ltd (supra) has observed .....

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