TMI Blog2021 (5) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeals of the assessee as well of the Revenue. The ultimate dispute was true determination of the income of the assessee. In the first round, the AO was of the view that benefit of sections 11 and 12 cannot be granted. This stand did not meet approval of the Tribunal. Once it is to be held that the assessee is a charitable institution and it is entitled for benefit u/s 11 and 12, then all other aspects of section 11(5) and 13(1)(d) etc are to be considered afresh. Somehow, it appears that the ld.AO failed to comprehend or concur with the higher appellate authorities about the status of the assessee being held as charitable institution, which is entitled for the benefit of section 11 and 12. Misc. Application of the Revenue is dismissed. - Misc. Application No.200/Ahd/2019 IN Cross Objection No.55/Ahd/2017 IN ITA No.2700/Ahd/2016 - - - Dated:- 24-5-2021 - SHRI RAJPAL YADAV, VICE-PRESIDENT AND SHRI WASEEMA AHMED, ACCOUNTANT MEMBER Assessee by : Shri S.N.Soparkar, Sr.Adv with Shri Parin Shah, AR Revenue by : Shri L.P. Jain, Sr.DR ORDER PER RAJPAL YADAV, VICE-PRESIDENT: Present Misc. Application is directed at the instance of the Revenue pointing out a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss Objection filed by the Department. The ITAT in its Order C.O. No. 55/Ahd/2017 dated 09-01-2019 for A.Y. 2012-13 has held that the issues agitated in the C.O. are not relevant and no specific findings required to be recorded in the present proceedings as all these things should be taken care of by the A.O. while passing fresh assessment order in pursuance of the Tribunal's Order dated 10-11-2017. But, it is revealed from the combined order dated 10-11-2017 that the ITAT has neither adjudicated the cross objection filed by the Department regarding violation of Section 11(5) r.w.s. 13(1)(d) of the Act nor issued any direction for re-examination of this issue. Secondly, the fresh assessment in pursuance of the Tribunal's Set aside Order was passed on 28-12- 2018 whereas the ITAT has decided the appeal on the Cross Objection on 09-01-2019. Therefore, there is no question of taking care of this issue by the A.O. while passing the fresh Assessment Order. 3. Thus, the aforesaid Order of the ITAT dated 10-11-2017 is devoid of merits and facts. It is therefore, requested that the issue may kindly be re-adjudicated. In view of the above, the Misc. Application is being filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e through the record carefully. It emerges out from the record that the assessee has filed its return of income on 26.9.2012 declaring a loss at ₹ 18,17,39,45,398/-. An assessment order was passed under section 143(3) on 25.3.2015. The ld.AO did not grant benefit of sections 11 and 12 of the Act and computed income as per normal provision of the Income Tax Act. He made various additions and ultimately determined taxable income at ₹ 16,76,42,10,676/-. On appeal, the ld.CIT(A) further upheld that income of the assessee is to be determined as per section 28 to 44 of the Act. According to the Revenue, assessee was not eligible for deduction under sections 11 and 12 of the Act. In this background, Revenue has raised grounds extracted (supra) in the CO. We find that the Tribunal has allowed appeal of the assessee and held that it is to be treated as charitable institution, which is entitled for exemption under sections 11 and 12. Its income has to be determined accordingly. Finding recorded by the Tribunal while adjudicating the appeal of both the parties read as under: 7. We have considered the rival submissions. The core issue in controversy is correctness of applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her issues raised in the respective appeals of the assessee and revenue would require re-examination in the light of conclusion drawn in favour of assessee towards applicability of section 2(15) of the Act as noted above. Thus, all other issues are kept open for re-examination at the end of the AO. 9. In the result, cross-appeals of the assessee as well as revenue in ITA No.2738/Ahd/2016 2700/Ahd/2016 relevant to AY 2012-13 are allowed for statistical purposes in terms of directions noted hereinabove. 4. Since very basic for determination of assessee s taxable income has been changed, therefore, all consequential issues were to be examined by the AO while giving effect to order of the Tribunal. The issues agitated in the CO are no more relevant and no specific finding is required to be recorded in the present proceedings. All these things should be taken care of by the AO while passing fresh assessment order in pursuance of the Tribunal s order in the appeal of the assessee. Status of the assessee has been changed. It is to be treated as a charitable institution and its income is accordingly to be determined. Thus, no fresh directions are required to be issued to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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