9911796707
TMI Blog2018 (7) TMI 1874X X X X Extracts X X X X X X X X Extracts X X X X ..... section (5) of section 11 of the Act"? (ii) Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT is right in setting aside the order passed by CIT(E) inspite of the fact that the assessee has not invested its funds in the modes specified u/s 11(5) of the IT Act, 1961? (iii) Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT is right in setting aside the order passed by the CIT(E) inspite of the fact that the assessee has provided undue benefit to the specified person covered u/s 13(3) of the IT Act, 1961? (iv) Whether on the facts and in circumstances of the case and in law, the Hon'ble ITAT is right in deciding that show cause notice should be signed by CIT(E) inspite of the fact that only requirement under 13th proviso to the section 10(23C) has complied by conducting personal hearing? (v) Whether on the facts ad in circumstances of the case and in law, the Hon'ble ITAT is right in travelling beyond law in pointing defect in show cause notice, when there is no requirement of issuing notice under the 13th proviso to section 10(23C)? (vi) Whether on the fact ad in circumstances of the case and in law, the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducational institution or any hospital or other medical institution, rescind the notification or, by order, withdraw the approval, as the case may be, and forward a copy of the order rescinding the notification or withdrawing the approval to such fund or institution or trust or any university or other educational institution or any hospital or other medical institution and to the Assessing Officer" The 13th proviso to section 10(23C)(vi) confers the power/ jurisdiction to withdraw the approval to the Government or the prescribed authority. It further postulates that the prescribed authority, if satisfied that such fund or institution has not complied with the conditions as provided thereunder, can withdraw the approval. For Initiation of proceedings to withdraw the approval the mandatory pre-condition is the satisfaction of the prescribed authority. Undisputedly the prescribed authority is the ld. CIT(E) and the satisfaction of the prescribed authority is a must before issuing the show cause notice for withdrawal of the approval granted u/s 10(23C) (vi) of the Act. Therefore, what is material and mandatory condition is the satisfaction of the prescribed authority and non else. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the modes prescribed u/s 11(5) of the Act. In the Balance Sheet as on 31.03.2013, it is noticed that the society has shown loans and advances in the following names:- S.No. Name Amount 1 Trumurti Colonisers & Builders Pvt. Ltd. 1,38,00,000/- 2 A.K. Education Welfare Society 1,00,00,000/- 3 Ambience Land Developer 60,07,953/- 4 Surendra Kumar Meena 3,00,00,000/- 5.1 M/s Trimurti Colonizers & Builders Pvt. Ltd.: On perusal of ledger accounts of M/s Trimurti Colonizers & Builders Pvt. Ltd produced during the course of assessment proceedings, it has been revealed that the balance as on 31.03.2013 was of Rs. 1,38,00,000-. The balance advances as on 31.03.2014 in the name of aforesaid company is also shown as Rs. 1,38,00,000/-. The society has submitted that it has given advances to aforesaid company for purchasing of land and society has not charged any interest on such advances. Perusal of 'Application Form' submitted by the assessee in respect of allotment of plot, it has been revealed that date, amount and place etc. are not mentioned on the said form. As per submission of the society, even till today any land/immovable property was not purchased out of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed and issued by C.I.T. and had come for consideration before this Tribunal in the case of Bardhman Co-op Milk Producers' Union Ltd. Vs CIT, Burdwan (supra). This Tribunal on identical facts as in the present case has held as follows :- "4. We have carefully considered the submissions and perused the record and we find that delay of 290 days in filing in these cases has been attributed to mistake on the part of assessee's counsel. The counsel has clearly admitted the mistake on his part. When the delay in filing of these appeals is attributed to the mistake of the consultant, in our considered opinion, assessee should not be penalized on this count. The case law referred by the Ld. counsel for the assessee also supports this proposition. Accordingly, we condone the delay. 5. As regards the matter in appeal, we note that the same is against order passed by the Ld. CIT u/s. 263 of the Act. At the outset, in this case, Ld. counsel for the assessee pointed out that the notice to the assessee u/s. 263 of the Act in these case, was issued by letter dated 06-03-2007. The said notice was signed by ACIT, Hqrs., Burdwan for Commissioner. Referring to this aspect, the Ld. counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be abundantly clear that the provisions of Section 299-BB deals with the procedure for service of notice and in case, there is a defective service of notice, it provides that if the assessee has cooperated, it will not be open for him to raise the plea, whereas in the instant case, it is not the case of the service of notice, but the initial issuance of notice, which has not been signed by the competent authority as a finding has been recorded by the Tribunal that the notice has been issued under the signature of Income-tax (technical), whereas in view of the provisions of powers under Section 263(1), it is only the Commissioner of Income-tax to issue notice. It is also relevant to add that pleas can be raised only out of the judgment passed by the Tribunal or other authorities, but the plea, which was not raised at any stage, cannot be raised for the first time before this Court. No other arguments have been advanced in respect of other questions framed in the memo of appeal." 8. Similarly, we note that in the case of Satish Kr. Keshari (supra), the Tribunal had held that when the notice u/s. 263 of the Act was not under the seal and signature of Ld. CIT and suffered for want of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
