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2016 (7) TMI 669 - ITAT JAIPUR

2016 (7) TMI 669 - ITAT JAIPUR - TMI - Reopening of assessment - Eligibility of exemption from income tax U/s 10(20) - Held that:- Assessing Officer was duty bound to furnish the reasons within the reasonable time on receipt of the request from the assessee, since the ld Assessing Officer has failed to provide the reasons for issuing the notice within reasonable time, therefore, we are left with no other option but to set aside the proceedings to the file of the Assessing Officer with direction .....

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elow and allow the appeals of the assessee for statistical purposes only. - ITA No. 452/JP/2014, ITA No. 453/JP/2014, ITA No. 403/JP/2014, ITA No. 454/JP/2014, ITA No. 404/JP/2014, ITA No. 455/JP/2014, ITA No. 405/JP/2014, ITA No. 456/JP/2014, ITA No. 406/JP/2014 - Dated:- 8-6-2016 - SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM For The Assessee by : Shri Prakul Khurana (Adv), Shri Aditya Vijay (Adv) and Shri Dipesh Kaur Jani (CA) For The Revenue : Shri B.K. Gupta (CIT) ORDER PER LALIET KUMAR, .....

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section 147/148 of the Income Tax Act, 1961, as invalid/nullity and thereby not quashing the assessment order itself passed in consequence thereof. 2. Under the facts and the circumstances of the case and in law, the Ld. Commissioner of Income-tax (Appeals), Kota has erred in not quashing/nullifying the ex-parte assessment order passed under section 144 read with section 147 of the Income Tax Act, 1961. 3. Under the facts and the circumstances of the case and in law, the Ld. Commissioner of Inc .....

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allowing carry forward and set off of losses for computation of the total income of the Appellant Trust. 6. Under the facts and the circumstances of the case and in law, the Ld. Commissioner of Income-tax (Appeals), Kota has erred in sustaining the charging of interest under sections 234A and 234B of the Income Tax Act, 1961 as charged by the ld Income-tax Officer, Ward 1(2), Kota. Similar identical grounds have been taken by the assessee in all the assessment years i.e. for A.Y. 2006-07 to 200 .....

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ollected by the assessee also constituted the shares of State Government and Municipal Bodies and were never part of assessee s income; Grounds of ITA No. 404/JP/2014 (revenue s appeal) (A.Y. 2007- 08) On the facts and in the circumstances of the case, the ld CIT(A) has erred in:- (i) treating the rental income of ₹ 34.35 lakhs assessed under the head income from house property as Income from business ; (ii) allowing the expenses of ₹ 1673.46 lakhs by treating the same as revenue exp .....

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om house property as Income from business ; (ii) allowing the expenses of ₹ 3662.54 lakhs by treating the same as revenue expenditure; (iii) allowing the deduction of ₹ 1617.59 lakhs by holding that ground rent, conversion charges, transfer fee etc. collected by the assessee also constituted the shares of State Government and Municipal Bodies and were never part of assessee s income; (iv) allowing expenses of ₹ 1111.08 lakhs out of total expenses claimed at ₹ 1567.79 lakh .....

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by holding that ground rent, conversion charges, transfer fee etc. collected by the assessee also constituted the shares of State Government and Municipal Bodies and were never part of assessee s income; 2. Grounds No. 1 and 2 of all the assessee s appeals are the legal grounds. The ITAT vide its order in ITA No. 366 & 367/JP/2010 order dated 18/3/2011 for the assessment year 2003-04 and 2004-05 held that the assessee is not exempted from income tax U/s 10(20) of the Income Tax Act, 1961 (he .....

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for A.Y. 2008-09 dated 07/10/2011, for A.Y. 2009-10 dated 07/10/2011, for A.Y. 2010-11 dated 07/10/2011 by the ld Assessing Officer. The appellant/assessee Trust filed separate writ petition before the Hon ble Jurisdictional High Court challenging the issuance of notice issued by the revenue. In one of the writ petition bearing No. 10706/2011, the Hon'ble High Court, after referring to the judgment of Hon'ble Supreme Court in the case of GKN DRIVESHAFTS (INDIA) LTD. Vs INCOME-TAX OFFICER .....

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t including the objection that the petition Trust prohibited in law from generating income is not exigible to any taxable income nor thus required under the 1961 Act to file return of income. In the even such objections as to lack of jurisdiction of the Income Tax Officer are filed by the petitioner Trust, it is directed that the said objections shall be decided as a preliminary issue by a reasoned and speaking order. In the event the petition Trust is aggrieved of the decision of its preliminar .....

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irection were issued in respect of assessment year 2005-06 to 2009- 10 . It was submitted that as the petitions became infructuous in view of the order passed by the Hon'ble High Court for the assessment year 2010- 11 , therefore it were not pressed before the Hon'ble High Court. As the case may be, the revenue in compliance of the order of the Hon'ble High Court dated 16/10/2012 have forwarded the reasons for issuing the notice U/s 148 of the Act for the AY 2010-11. After receiving .....

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taken by the UIT by way of various rules of Rajasthan Urban Improvement Trust Rules of 1959 and details of Improvement Fund. But these have no relevance as far as filing of return of income is concerned in view of the order of the Hon ble ITAT. You have submitted that in absence of exemption, an assessee may not have any income on the basis that none of the provisions of the Act, 1959 permit the assessee trust to generate income. But no exemption is available U/s 10(20) of IT Act, 1961 and as p .....

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of I.T. Act, 1961. Therefore, your objections stands disposed off accordingly. Thereafter, the ld Assessing Officer has called upon the assessee to file reply, accordingly, the assessee has filed reply and the AR of the assessee appeared before the ld Assessing Officer and has submitted copy of receipt and payment for the assessment year under consideration. The ld Assessing Officer had called upon the assessee to file return of income in pursuance to the notice U/s 142(1) of the Act. However, t .....

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ns of Section 145 of the Act vide order dated 18/02/2013. The ld AR of the assessee ,for the appeals under considerations , has submitted that the orders passed by the Assessing Officer qua the ground Nos. 1 and 2 are bad in law as the assessee was not subjected to file the Income tax return and is exempted U/s 10(20) of the Act and it is further the case of the assessee that the revenue has not complied with the provisions of the Act by supplying the reasons and has not complied the judgment of .....

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ed by the assessee. Hence the assessment proceedings carried out by the revenue is in accordance with law. 5. We have heard the rival contentions of both the parties and perused the material available on the record. The assessee vide letter dated 30/08/2012 has specifically asked the revenue to provide the reasons U/s 148 of the Act. The application of the assessee provides as under:- SUB:- Decision of Hon ble High Court in writ petition filed by UIT Kota for the A.Y. 2010-11 With reference to t .....

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Return. * Such objections shall be decided as preliminary issue by reasoned and speaking order to be passed by you. This order is for the A.Y. 2010-11, but in the light of the above case your honour is requested to follow the same directions not only for the A.Y. 2010-11 but also for the all A.Y. 2005-06 to 2009-10 also. ( supplied by us) Despite Assesssee asking the revenue to supply the reasons before filing the return, the revenue has not supplied the reasons and has only supplied the reasons .....

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we clarify that when a notice under section 148 of the Income-tax Act is issued, the proper course of action for the noticee is to file a return and if he so desires, to seek reasons for issuing notices. The Assessing Officer is bound to furnish reasons within a reasonable time. On receipt of reasons owners of the instant case, as the reasons have been disclosed in these proceedings, the Assessing Officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding .....

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