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TMI Blog2017 (5) TMI 1570X X X X Extracts X X X X X X X X Extracts X X X X ..... icial authorities has decided that assessee is not doing a charitable activity" 4. The Appellant prays that, to the extent of above grounds, the order of the Commissioner of Income Tax (Appeal)-7, Mumbai be set aside and that of the Assessing Officer be restored. 5. The Appellant craves leave to amend or alter any ground or add a new ground which may be necessary." 2. At the very outset, Ld. AR appearing on behalf of the assessee submitted that the present case is fully covered by the order of Hon'ble ITAT in ITA No. 3831 & 3833/Mum/2015 for AY 2007-08 and 2008-09 in assessee's own case as the identical grounds raised in the present appeal have already been decided on merits. The operative portion of the order of Hon'ble ITAT is reproduced below:- 7. We have heard the rival submissions and perused the relevant material on record. We begin the discussion with the decisions relied on by the learned counsel of the assessee. In the case of the assessee for the A.Y. 1989-90 (1997) 50 ITD 135, the Tribunal has held that the donations collected in boxes marked as 'donation towards corpus' are not eligible for exemption u/s 11(1)(d); only the donations received with confirmatory lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee cannot be treated as application of income. However, the balance amount spent for acquisition of fixed assets, on which no depreciation has been allowed, is to be treated as application of income as per the test laid down by the Tribunal in assessee's own case for A.Y. 1989-90. Accordingly the Tribunal restored the issue to the file of the AO to decide the same in the light of their decision for the A.Y. 1989-90 and to determine the application of income accordingly. 7.3 Now we come to the judgement of the Hon'ble Supreme Court in the case of Thanthi Trust (supra). In that case, it has been held that requirement of section 13(1)(bb) is that the exemption u/s 11 will not be available to such a trust that carries on any business unless the business is carried on ''in the course of the actual carrying out of the primary purpose of the trust'', since the business of running a newspaper though held by the assessee- trust as a part of its corpus was not carried on in the course of actual accomplishment of the charitable objects of the trust, bar of section 13(1)(bb) was applicable and the assessee-trust was not entitled to exemption u/s 11 for assessment year 1979- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .7 However, the learned CIT(A), considering the facts of the case, allowed certain expenses to the assessee and confirmed the following additions: 1. Non-payment of employees & employers Contribution of Provident fund (Rs. 22,57,426-10,22,021) Rs. 12,35,405/- 2. Non-payment/late payment of ESIC contribution (Rs. 3,21,183-1,78,090) Rs. 1,43,093/- 3. Penalty for contravention of law Rs. 5,910/- 4. Non-deduction of TDS on payments attracting Provisions of section 40(a)(ia) Rs. 21,30,302/- 5. Prior Period Expenses disallowed u/s 43B Rs. 23,92,292/- Total Rs. 59,08,002/- 7.8 The AO has imposed a minimum penalty of Rs. 19,32,534/- u/s 271(1)(c) on the above additions / disallowances of Rs. 59,08,002/-. 7.9 It is found that for the A.Y. 2008-09 the following additions made by the AO have been sustained by the learned CIT(A) : 1. Non-payment of employees & employers Contribution of Provident fund Rs. 8,55,110/- 2. Non-payment/late payment of ESIC contribution Rs. 2,99,385/- 3. Penalty for contravention of law Rs. 18,403/- 4. Non-deduction of TDS on payments attracting Provisions of section 40(a)(ia) Rs. 21,84,171/- 5. Prior Period Expenses disallowed u/s 43B Rs. 21, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty would arise. [Para 8] The word 'particulars' must mean the details supplied in the return, which are not accurate, not exact or correct, not according to truth or erroneous. In the instant case, there was no finding that any details supplied by the assessee in its return were found to be incorrect or erroneous or false. Such not being the case, there would be no question of inviting the penalty under section 271(1)(c). A mere making of the claim, which is not sustainable in law by itself will not amount to furnishing of inaccurate particulars regarding the income of the assessee. Such claim made in the return cannot amount to the inaccurate particulars. [Para 9] The revenue contended that since the assessee had claimed excessive deductions knowing that they were incorrect, it amounted to concealment of income. It was argued that the falsehood in accounts can take either of the two forms: (i) an item of receipt may be suppressed fraudulently; (ii) an item of expenditure may be falsely (or in an exaggerated amount) claimed, and both types attempt to reduce the taxable income and, therefore, both types amount to concealment of particulars of one's income as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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