TMI Blog2017 (6) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... r to consider the same. Furthermore, the provisions of the act envisage that the assessee has to explain in the said notice the purpose for which the income is being accumulated or set apart. There is no whisper whatsoever in the assessee's submissions in this regard. Hence we are in full agreement with the learned CIT(A) that there was no occasion for the Assessing Officer to consider this aspect of assessee's plea. As clear from the above discussion, such a plea was not prima facie tenable also. - Decided against assessee. - ITA No.1097/Mum/2016 - - - Dated:- 25-5-2017 - Shri Shamim Yahya, AM And Shri Sandeep Gosain, JM For The Appellant : Shri Anant N.Pai For The Respondent : Ms.Pooja Swaroop ORDER Per Shamim Yahya, AM This appeal by the assessee is directed against order of learned CIT(A) dated 03.12.2015 and pertains to assessment year 2011-2012. 2. Grounds of appeal read as under:- 1. On facts and circumstances of the case and in law, the learned Commissioner (Appeals) erred in holding that the amount of ₹ 3,55,45,600 accrued to the Appellant as income for the year under appeal and was also received. 2. Without prejudice to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssignee to the assignor. Further, as per the addendum to the deed of assignment dated 20.01.2011, the consideration of ₹ 3,55,45,600/- was to be paid by the assignee to the assignor on or before 31st March, 2015 or on the date on which the B.C.C. of the building is obtained, whichever is earlier. It may be noted that in F.Y.2010- 11, there was no incidence of accrual of income in the hands of the appellant (as accrual of income depends upon the terms of the agreement), no amount has been actually received from the transferee on sale of lease rights and there was no definite possibility of cash inflow in the future years. Therefore, the consideration of ₹ 3,55,45,600/- was not treated as income for the year under consideration and not applied towards the objects of the Trust. 3.2 In conclusion, the assessee summarized the submissions before the Assessing Officer as under:- Hence there is no tax incidence in A.Y. 2011-12 because: 1. There was no incidence of accrual of income in the hands of the assessee. 2. No amount has been actually received from the transferee against the sale of rights. 3. There is no definite possibility of inflow in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances of the cases, the claim of the assessee that it has not received the consideration of ₹ 3,55,45,600 from M/s Super Value Properties Pvt. Td. Is not accepted and accordingly ₹ 3,55,45,600 is added to the total receipt of the assessee. Coming to the issue of addendum involving deferment of receipt till 31.03.2015 and hence is a contingent agreement, the same cannot be accepted as by the deed of assignment dated 19.01.2011, the assignor has assigned to rights to the assignee. The assignee has also acted on those rights constructed building. The issue that the amount will be received before 31.03.2015 has no relevance as the assessee is following accrual method and the deed of assignment has been concluded. All other terms remain the same except the deferment of receipt of income. In fact, the assessee should have charged interest on the assignee for the deferment of income when rights to possession of the property has been passed on to the assignee. The assignee is also liable to pay lease rentals to the confirming party as per the Lease Deed dated 27.01.2009. The deferment is only technical and does not make the assignment deed contingent. Therefore, addend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dum has not been registered with the registering authority. The appellant failed to explain as to why the subsequent agreement was not registered although the original deed was duly registered. Further, it is noted that the so called addendum is not signed by M/s. Kabra Associates the confirming party. Accordingly, the authenticity of this addendum is not proved by the appellant and hence, no cognizance of this document can be taken. It was held in the case of Sumati Dayal v. CIT 214 ITR 801 by Hon. Supreme Court that the apparent must be considered real unless shown otherwise. Taxing authorities are entitled to look into surrounding circumstances to find out reality and matter has to be decided by applying the test of human probabilities. Similar observations were made by Hon. Apex Court in the case of Durga Prasad More 82 ITR 540. Going by these observations of Hon. Supreme Court it is noted that the appellant has failed to explain the non registration of the addendum and also non-signing by M/s.Kabra Associates, the confirming party. Accordingly, it is held that as specifically mentioned in the original deed dated 19.01.2011 the consideration of ₹ 3,55,45,600/- had acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the A.O. should have referred the same. In this regard, learned Counsel further submitted that it is the duty of the Assessing Officer to advise the assessee regarding the actual tax payable by the assessee. 4.4 Per contra, learned Departmental Representative submitted that assessee has been altogether submitting that the said income has not accrued to the assessee. For this purpose assessee has proceeded to prepare self-serving documents like addendum to the deed of agreement. She submitted that only after it was clearly established that as per the valid agreement the said income of ₹ 3,55,45,600 has accrued to the assessee, and Revenue was not going to accept the same, assessee has developed a story of having exercised option indirectly. She claimed that learned CIT(A) is quite correct in holding that in availing the benefit of clause 2 of Explanation to section 11(1), assessee is required to intimate the A.O. before the date of filing of the return u/s 139(1). She pointed out that learned CIT(A) has noted that no such document has been placed on record before the learned CIT(A) nor before the Tribunal that assessee has given any such intimation to the A.O. In these circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st day of April, 1952, for a charitable purpose which tends to promote international welfare in which India is interested, to the extent to which such income is applied to such purposes outside India, and (ii) for charitable or religious purposes, created before the 1st day of April, 1952, to the extent to which such income is applied to such purposes outside India: Provided that the Board, by general or special order, has directed in either case that it shall not be included in the total income of the person in receipt of such income; [(d) income in the form of voluntary contributions made with a specific direction that they shall form part of the corpus of the trust or institution.] Explanation For the purposes of clause (a) and (b), - (1) in computing the [fifteen] per cent of the income which may be accumulated or set apart, any such voluntary contributions as are referred to in section 12 shall be deemed to be part of the income; (2) if, in the previous year, the income applied to charitable or religious purposes in India falls short of [eighty-five] per cent of the income derived during that year from property held under trust, or, as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h shall in no case exceed ten years; (b) the money so accumulated or set apart is invested or deposited in the form or modus specified in sub-section (5); 4.7 A reading of the above provisions of the Act makes it clear that income from trust property will be exempt from tax if 85% thereof is applied for the purpose of the trust. If the application of income falls short of 85% for the reason of non-receipt of income assessee may defer utilization of 85% of the income to another year. For this assessee was required to give notice in writing with the Assessing Officer in the prescribed manner explaining the purpose for which the income is been accumulated and set apart and the period for which the income is to be accumulated and set apart. It has further been provided that the money so accumulated and set apart is to be invested and deposited in specified manner. 4.8 We find that admittedly assessee has not exercised any such option. Assessee has been all along been claiming that the said income has not accrued. Hence there was no occasion for the Assessing Officer to consider the same. Furthermore, the provisions of the act envisage that the assessee has to explain in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
