9911796707
TMI Blog2025 (5) TMI 1553X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manner as provided in section 11(5) of the Act read with Rule 17 of the Income Tax Rules. 3. Charging of tax @30% instead of applicable tax u/s. 2 of Finance Act, 2013 @10% is bad in law and facts. 4. On the facts and circumstances of the case, the learned AO (CPC) has erred, both on facts and in law, charging of tax @30% instead of 10% merely on account of error in punching of certain information in the Form ITR-7. 5. On the facts and circumstances of the case, the learned AO (CPC) has erred, both onfacts and in law, computing the income the under normal provisions of the Act. 6. On the facts and circumstances of the case, the learned AO (CPC) has erred, both on facts and in law, in charging tax at the maximum marginal rate which also being contrary to the provisions of law hence being without jurisdiction and contrary to the facts, such taxation be quashed. 7. That the said disallowed has been made despite the amount has been shown in the Form ITR-7. That the said amount has been disallowed despite the same has been claimed by complying with all the statutory conditions specified there in and ignoring the Statutory Auditor's Reports and other evidences filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, though liberal approach, justice- oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv Whether activity is,- 3. Your honour the undisputed facts are as under:- 3.1. The assessee is Registered u/s 12A/12AA since 1995 the copy of the certificate (at page no. 83-86.) 3.2. Kindly see ITR page no. 1 (at page no. 88), the details is given that the return was filed u/s 12. 3.3. The FORM NO. 10B was also filed along with the ITR: Audit report under section 12A(b) of the Income-tax Act, 1961, in the case of charitable or religious trusts or institutions (at page no. 81-82.) duly reflecting and claimed as such. All the details pertaining to the said claim of Rs. 43,272/- u/s. 11(1)(a) were duly apparent. 3.4. Kindly see ITR page no. 2 (at page no. 89) wherein point no. 6(iv) is appearing wherein the assessee claimed Rs. 43,272/- as "Amount accumulated or set apart / finally set apart for application to charitable or religious purposes to the extent it does not exceed 15 per cent. of income derived from property held in trust wholly or in part only for such purposes under section 11(1)(a)" 3.5. The assessee has e-filed the return of income (enclosed at page no. 87-100) on 06.9.2014 claiming exemption under section 11 of the Act. Hence, it is requested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 06.9.2014 declaring Rs. 2,45,210 income after claiming exemption under section 11 of the Act. The assessee is registered under Section 12A of the Act. (Copy of the Certificate u/s 12A of the Act is enclosed at page no. 83-86. The assessee claimed Rs. 43,272/- Amount accumulated or set apart / finally set apart for application to charitable or religious purposes to the extent it does not exceed 15 per cent. of income derived from property held in trust wholly or in part only for such purposes under section 11(1)(a). (Kindly see paper book page no. 89 point no. 6 (iv)). 1.2. The return of income was processed under section 143(1)(a) of the Act on 15.11.2014 by the CPC Bangalore, however, the amount accumulated or set apart for application to charitable purposes to the extent it does not exceed 15 per cent of the income, claimed at Rs. 43,272/- under section 11(1)(a) (11)(b) of the Act were not allowed. Accordingly, the income was computed at Rs. 2,88,480/-. 1.3. Further, your honour, income tax Charging of tax @30% instead of applicable tax u/s 2 of Finance Act, 2013 @10% is bad in law and facts. 1.4. On the facts and circumstances of the case, the learned CIT (Appeals) NFAC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (b) by any tax deducted at source, any tax collected at source, any advance tax paid, any relief allowable under an agreement under section 90 or section 90A, or any relief allowable under section 91, any rebate allowable under Part A of Chapter VIII, any tax paid on self assessment and any amount paid otherwise by way of tax or interest; (d) an intimation shall be prepared or generated and sent to the assessee specifying the sum determined to be payable by, or the amount of refund due to, the assessee under clause (c); and (e) the amount of refund due to the assessee in pursuance of the determination under clause (c) shall be granted to the assessee: Provided that an intimation shall also be sent to the assessee in a case where the loss declared in the return by the assessee is adjusted but no tax or interest is payable by, or no refund is due to, him: Provided further that no intimation under this sub-section shall be sent after the expiry of one year from the end of the financial year in which the return is made. Explanation.:-For the purposes of this sub-section,- (a) "an incorrect claim apparent from any information in the return" shall mean a claim, on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rief, are that the assessee is a trust. The assessee has e- filed the return of income (Kindly find enclosed herewith From page no. 87-100) on 06.9.2014 declaring Rs. 2,45,210 income after claiming exemption under section 11 of the Act. The assessee is registered under Section 12A of the Act. (Copy of the Certificate u/s 12A of the Act is enclosed at page no. 83-86. The assessee claimed Rs. 43,272/- Amount accumulated or set apart / finally set apart for application to charitable or religious purposes to the extent it does not exceed 15 per cent. of income derived from property held in trust wholly or in part only for such purposes under section 11(1)(a). (Kindly see paper book page no. 89 point no. 6 (iv)). 2.2. The return of income was processed under section 143(1)(a) of the Act on 15.11.2014 by the CPC Bangalore, however, the amount accumulated or set apart for application to charitable purposes to the extent it does not exceed 15 per cent of the income, claimed at Rs. 43,272/- under section 11(1)(a) (11)(b) of the Act were not allowed. Accordingly, the income was computed at Rs. 2,88,480/-. 2.3. Your honour, the assessee's professional while filing the ITR failed to punch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes and the provisions of that section and section 13 shall apply accordingly." 2.7. Your honour, the accumulation upto 15% of the income under sec 11(1) is permissible, i.e 15% can be retained by a charitable organisation without applying it for charitable purposes in the year in which the income was accrued. Your honour kindly see intimation page no. 2 point no. 9(iv) wherein it is clearly stated that Rs. 43,272/- was accumulated and the same is upto 15%. Hence, your honour, On the facts and circumstances of the case, the Ld. AO (CPC) has erred, both on facts and in law, in disallowance of Rs. 43,272/- under section 11(1)(a) of the Act on account of amount accumulated or set apart for charitable or religious purpose. That the said disallowance has been made despite the same has been accumulated in the manner as provided in section 11(5) of the Act read with Rule 17 of the Income Tax Rules. Your honour is requested to kindly allow the relief and delete the entire addition. 3. Your honour, kindly allow me to submit a defence of Ground no. 3, 4, 5, 6 and 7 together. These Grounds are as under:- GOA 3 CHARGING OF TAX @30% INSTEAD OF APPLICABLE TAX U/S 2 OF FINANCE AC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, not being a case to which any other Paragraph of this Part applies- Rates of income-lax (1) where the total income does not exceed Rs 2,00,000 Nil (2) where the total income exceeds Rs. 2,00,000 but does not exceed Rs. 5,00,000 N 10 per cent of the amount by which the total income exceeds Rs. 2,00,000. (3) where the total income exceeds Rs. 5,00,000 but does not exceed Rs. 10,00,000 Rs. 30,000 plus 20 per cent of the amount by which the total income exceeds Rs. 5,00,000; (4) where the total income exceeds Rs. 10,00,000 Rs. 1,30,000 plan 30 per cent of the amount by which the total income exceeds Rs. 10,00,000 3.3. The return of income was processed under section 143(1)(a) of the Act on 15.11.2014 by the CPC Bangalore, however, CPC charged the tax @30% on entire income of Rs. 2,45,210 instead of applicable tax as above u/s 2 of Finance Act, 2013. 3.4. Your honour, the assessee's professional while filing the ITR failed to punch the details correctly and made errors in punching of certain information in the Form ITR-7. Kindly see ITR page no. 1 (in the paper book page no. 88 "other details" point no. C). The relevant scanned portion of the ITR is as under:- C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R relied on the decisions held as under:- S NO PARTICULARS P NO 1 Chandraprabhu Swetamber Jain vs ACIT, Palghar Circle, on 12 August, 2016 Income Tax Appellate Tribunal - Mumbai 23-32 2 Rajasthan Cricket Association vs Add. Cit, Jaipur on 23 March, 2017 IN THE ITAT,JAIPUR ITA No. 388/JP/2012 & 944/JP/2013 AY: 2008-09& 2009-10. 33-72 3 The ICAI Vs ACIT (ITAT Delhi) Appeal Number : I.T.A. No. 2156/Del/2018 Date of Order : 13/04/2018 Related Assessment Year : 2014-15 Courts : All ITAT (6060) ITAT Delhi (1372) 73-79 So your honour is requested kindly to allow the appeal PRAYER:- 1. Your honor is requested kindly to delete the disallowance of Rs. 43,272/- under section 11(1)(a) of the Act. 2. Your honor is requested kindly to order for Charging of tax as applicable u/s 2 of Finance Act, 2013 @ nil upto Rs. 2 Lacs and @10% on balance Rs. 45,210. 6. On the other hand, the ld. DR supported the order of the lower authorities and submitted that assessee has not mentioned about the registration details in the ITR and therefore, treatment given in the order of the CPC is correct. 7. We have heard the rival contentions and perused material available on record. The bench no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
