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TMI Blog2020 (2) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... er. 2. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) ought to have deleted interest charged by the learned Assessing Officer u/s. 234C of the Act of Rs. 67,01,749/- and not doing so is wrong and contrary to the facts of the case, the provisions of the Act and rules made thereunder. 3. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) ought to have deleted interest charged by the learned Assessing Officer u/s. 234D of the Act of Rs. 3,73,828/- and not doing so is wrong and contrary to the facts of the case, the provisions of the Act and rules made thereunder. 4. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) ought to have allowed ground relating to non-receipt of refund of Rs. 32,96,542/- being wrongly mentioned as refunded by the learned Assessing Officer in the Income Tax Computation Form accompanying the assessment order u/s 143(3) though no such refund was received by the appellant and thereby erred in dismissing the said ground by treating it as consequent in nature, which is wrong and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record would reveal that the assessee being registered Trust, was assessed for year under consideration u/s. 143(3) on 12/03/2015 wherein the income of the assessee was determined at Rs. 59.68 Crores after denial of exemption us 11 as against Nil return filed by the assessee on 28/09/2012. The income, in the alternative, was assessed at Rs. 50.71 Crores, the facts of which shall be enumerated subsequently in the order. 3.2 The assessee Trust was stated to be established on 11/07/1995, with National Stock Exchange (NSE) being the settlor and the trustee of the trust. The said trust was stated to be created to provide an appropriate avenue for payment of compensation under bylaws of the settlor NSE to persons acting as a trading member of the settlor NSE or as a constituent of the trading member in case of loss subject to certain terms and conditions. 3.3 It transpired that the assessee received contribution exceeding Rs. 50,000/- each from settlor i.e. NSE as well as from trading members. Another fact was that NSE and trading members were related parties in terms of Sec.13(3) of the Act. Upon perusal of the terms of Trust Deed, a conclusion was drawn by Ld. AO that income of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar stand and partly allowed ground nos. 1,3,4 of the appeal but dismissed ground no.2 of assessee's appeal. In ground nos.5 to 9, the assessee had contested the charging of interest, for which Ld.AO was directed to charge interest as per law. Resultantly, the appeal was partly allowed. Decision of Ld. CIT(A) in AY 2011-12 4.2 The stated decision of Ld. CIT(A) for AY 2011-12, in turn relied upon the decision of this Tribunal in assessee's own case for AY 2010- 11, ITA No. 1021/Mum/2014 order dated 23/05/2014 wherein the matter of exemption u/s 11(2) was restored back by the Tribunal to Ld. AO for verification of certificate of auditors and re-adjudication of issue in the light of the facts arising out of the certificate. The fresh claim of exemption u/s 10(23EA) was admitted by Tribunal following the decision of Hon'ble Bombay High Court in CIT V/s Pruthvi Brokers & Shareholders Pvt. Ltd. (349 ITR 336) and Ld. AO was directed to entertain this claim of the assessee and adjudicate the same. Accordingly, Ld. CIT(A) directed Ld. AO to follow the aforesaid observations / directions of the Tribunal. However, the observation of Ld. AO that the purpose of accumulation as mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of the trust comprising contribution from the members, stock exchanges and income on investments were exempt, however w.e.f. 01.04.2007 the provisions of section 10(23EA) of the Act were amended and the exemption was restricted only to the contributions received by the trust from stock exchanges and it's members and thus the assessee started claiming the exemption under section 11(1) & 11(2) of the Act qua the income from investments. During the year the assessee claimed the accumulation to the tune of Rs. 33,19,23,133/- by filing form No.10 along with return of income and the purpose of accumulation was mentioned in the form 10 as under: "(i) to compensate for any loss which may be suffered by any person including a trading member or a constituent arising from a Trading Member being declared as a defaulter by the settler under Chapter XII of the Bye-laws of the settler, upto a limit as may be determined by the Trustees. (ii) for such other purpose of the public utility as the trustees may deem fit and consistent with the object of the trust. (iii) to utilize interest income earned on the investments made out of Investor Protection Fund either in part or in whole, for edu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 10. 7. Upon perusal of factual matrix as enumerated in preceding paragraphs, it appears that facts are pari-materia the same in this year. Nothing has been placed on record to demonstrate any distinguishing features. Therefore, keeping in view the fact that exemption u/s 11(2) was ultimately allowed to the assessee in AY 2010-11 as well as in AY 2011-12. we hold that the assessee is entitled for exemption u/s 11(2). Ground No. 1 of assessee's appeal stand allowed. 8. The revenue is aggrieved by admission of new claim u/s 10(23EA). However, as noted by us in preceding para 3.8, this exemption was already allowed to the assessee by Ld. AO himself while framing quantum assessment order. Nevertheless, this issue also stood covered in assessee's favor by the order of Tribunal for AY 2011-12. It is also noteworthy that Special Leave Petition (SLP) filed by the revenue for AY 2010-11 has already been dismissed by Hon'ble Apex Court which is reported at 109 Taxmann.com 276. Therefore, we see no reason to interfere in the impugned order, in this regard. Resultantly, the revenue's appeal stands dismissed. 9. In ground nos.2 to 5, the assessee has contested levy of interest. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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