9911796707
TMI Blog2021 (5) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent error, which reads as under: "2. In this case during the assessment proceedings assessee was not allowed benefit of Section 11 and 12 and provisions of section 2(15) was made applicable. The assessee filed an appeal before the CIT(A), Gandhinagar against the assessment order passed u/s. 143(3) of the Act on 25-03-2015. The then CIT(A), Gandhinagar vide his Order No. CIT(A)/GNR/508/2015-16 dated 31-08-2016 decided the appeal in favour of the Department following his earlier decision in assessee's own case for A.Y. 2009-10, 2010-11 and 2011-12 (issue of premium received on land and plot and issue of depreciation were decided in favour of the assessee.) Aggrieved by r-'tr a*"cresaid order, the assessee filed an appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-01-2019 dismissed the Cross 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee. The fact regarding pendency of CO was not brought to the notice of the Bench, who has decided the appeals and CO for the Asstt.Years2012-13 and 2013-14. When the fact was brought to the notice of the Tribunal, then it has decided CO on 9.1.2019. 3. The Revenue has filed MA pointing out apparent error in the order of the Tribunal dated 10.11.2017. In this application extracted (supra) it has pleaded that the grounds of appeal (Ground No.i, ii and iii) taken by the Revenue in its CO were not decided as (extracted (supra) above while taking note of the MA of the Revenue). In the paragraph 2, the ld.ACIT(Exemption), Cir.1, who has drafted this MA has pointed out that CO No.55/Ahd/2017 has been dismissed by the Tribunal on 9.1.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled 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 applicability of proviso to s.2(1t) in due facts of the case. We find that the identical issue arose in assessee's own ITA Nos.2700/Ahd/16 & 427/Ahd/17 (by Assessee) ITA Nos.2738/Ahd/16 & 544/Ahd/17 (By Revenue) GIDC vs. DCIT/ACIT Asst.Years - 2012-13 & 2013-14 case in the preceding three assessment years. We find that the Coordinate Bench has determined the issue in favour of assessee and held that proviso to section 2(15) does not apply in the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of 'charitable purpose' contemplated under s.2(15) of the Act. In view of ITA Nos.2700/Ahd/16 & 427/Ahd/17 (by Assessee) ITA Nos.2738/Ahd/16 & 544/Ahd/17 (By Revenue) GIDC vs. DCIT/ACIT Asst.Years - 2012-13 & 2013-14 the foregoing, we find that the relief sought by the assessee to the extent that the activities carried on by the assessee should be recognized to be of charitable nature requires to be endorsed. However, all other 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefit of sections 11 and 12 of the Act, and considering its nature as a charitable institution, the exercise of determining the income has to be carried out afresh. In such circumstances, quantification and impact of section 11(5) and 13(1)(d) has to be examined afresh. The Tribunal has observed that this aspect could be looked into while determining the taxable income of the assessee. In the first round, the income of the assessee was determined by denying exemption under section 11 and 12. This stand of the AO was reversed by the Tribunal, and the matter was relegated to him to examine afresh. We fail to understand how it can be pleaded that CO filed by the Revenue has not been considered on merit. These very issues were available in app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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