Income Tax Appellate Tribunal - Lucknow
Astt. Commisioner Of Income Tax ... vs M/S U.P Expressway Industrial ... on 3 May, 2018
I.T.A. No.163/Lkw/2017
1
Assessment Year:2009-10
IN THE INCOME TAX APPELLATE TRIBUNAL
LUCKNOW BENCH 'B', LUCKNOW
BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND
SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER
ITA No.163/Lkw/2017
Assessment Year:2009-10
A.C.I.T. (Exemptions), Vs. M/s U.P. Expressway Industrial
Lucknow. Development Authority,
C-13, 2nd Floor, Paryatan Bhawan,
Vipin Khand, Gomti Nagar,
Lucknow.
(Appellant) (Respondent)
Appellant by Dr. A. K. Singh, CIT (D.R.)
Respondent by Shri Yogesh Agrawal, Advocate
Date of hearing 02/05/2018
Date of pronouncement 03/05/2018
ORDER
PER T. S. KAPOOR, A.M.
This is an appeal filed by the Revenue against the order of CIT(A) dated 14/12/2016. The grounds of appeal taken by the Revenue are reproduced below:
"1. Learned CIT(A) has erred in law by allowing the assessee for accumulation of income ignoring the fact that Form No. 10, is a notice for accumulation of income by charitable or religious trust or institution or association u/s 11(2) of the Income Tax Act, should be filed within the time allowed for furnishing of return u/s 139(1) of the I.T.Act, however in this case the assessee had submitted Form No. 10 dated 18/06/2010 relevant to assessment year 2009-10 on 21.01.2016.
2. The order of Ld. CIT(A) be cancelled and the order of the A.O. restored."
I.T.A. No.163/Lkw/2017 2 Assessment Year:2009-10
2. At the outset, Learned D. R. submitted that assessee had not filed Form No. 10 which is a necessary document for claiming exemption u/s 11 of the Act and learned CIT(A) has wrongly allowed relief to the assessee ignoring the fact that Form No. 10 was not filed. He submitted that Form No. 10 was filed on 21/01/2016 whereas it was to be filed along with the return of income.
3. Learned A. R., on the other hand, submitted that Form No. 10 was duly filed along with revised return of income and was actually filed on 26/07/2010. It was submitted that on 21/01/2016, Form No. 10 was again filed before the Assessing Officer only on his specific request as the files containing original as well as revised return were not traceable by him in his office. Learned A. R. submitted that the Assessing Officer had completed the assessment on 25/02/2014 by not considering the exemption u/s 11 and 12 of the Act as by that time the assessee was not enjoying registration u/s 12A of the Act. However, by an order dated 27/05/2014 of I.T.A.T. Lucknow Bench, the assessee was granted registration with effect from 01/04/2008 and therefore, the learned CIT(A) vide order dated 28/03/2014 directed the Assessing Officer to assess the income after allowing exemption u/s 11 of the Act. It was submitted that the Assessing Officer vide order dated 25/02/2016 instead of giving effect to the order of learned CIT(A), passed order on 25/02/2016 and held that the accumulation of income was not allowable in view of non filing of Form No. 10. It was submitted that again the assessee filed appeal before learned CIT(A) and explained the whole facts and learned CIT(A) vide order dated 14/12/2016 has rightly allowed relief to the assessee. It was submitted that learned CIT(A) has made a finding of fact that assessee had filed Form No. 10 along with the revised return on 26/07/2010.
I.T.A. No.163/Lkw/2017 3 Assessment Year:2009-10
4. We have heard the rival parties and have gone through the material placed on record. We find that the Assessing Officer vide original assessment order dated 25/02/2014 disallowed the claim of assessee regarding exempt income u/s 11 because of the fact that the assessee was not enjoying registration u/s 12A of the Act. The assessee in the meantime got orders for registration u/s 11 from I.T.A.T., Lucknow vide order dated 27/05/2014 which was placed before learned CIT(A) and therefore, learned CIT(A) vide order dated 23/12/2015 directed the Assessing Officer to calculate the exemption u/s 11 of the Act. However, the Assessing Officer disallowed accumulated balance of income by holding that Form No. 10 was filed on 21/01/2016. From the arguments of Learned A. R., we find that Form No. 10 was originally filed along with the return of income on 26/07/2010 and it was only on the request of the Assessing Officer in second round before him that he wanted copy of Form No. 10 as the original file was not traceable with him and therefore, the same was filed. We find that learned CIT(A) has duly noted such arguments of the assessee in his order in para 7 and vide para 9.4 has categorically held that assessee had filed Form No. 10 along with the revised return on 26/07/2010 itself. For the sake of completeness the findings of learned CIT(A) are reproduced below:
"6. I have gone through the order passed of the A.O. u/s 143(3)/250 of the Act along with written submissions filed by the appellant during appellate proceedings as well as the facts of the case. I now proceed to decide the appeal on the basis of the grounds of appeal raised before me. Ground No. I to V relate to only one issue that being the disallowance of accumulation of the income for the year. This has been disallowed by the AO for the reason that according to him the Form No. 10 has been filed only on 21-01-2016 and hence the surplus cannot be allowed to be accumulated.
7. The appellant contends that the Form No. 10 was duly filed on 26-07-2010 along with the Revised Return for the year I.T.A. No.163/Lkw/2017 4 Assessment Year:2009-10 under consideration. That the same was again filed before the AO only on his specific request that the file containing the original as well as the Revised Return are not traceable by him in the office. Thus the appellant claims that the Form was filed well within the time allowed and further this aspect was never ever raised or confronted by the AO during proceedings u/s 250 of the Act. The appellant has also raised an issue that the AO was only directed to compute the income of the year and allow the accumulation and he has exceeded his jurisdiction by disallowing the same on a new ground.
8. Firstly I find that in my previous order 1 had given direction that the AO should calculate the exemption u/s 11 of the Act and assess the total income of the appellant accordingly. The AO while passing the order has traveled beyond his jurisdiction by disallowing the accumulation on the ground that the Form No. 10 has been filed late. The direction of my previous order are very categorical that the Assessing Officer should calculate the exemption u/s 11 of the Act and assess the total income of the appellant. The appellant has submitted the copy of the judgment of the Hon'ble Madras High Court in the case of Raja D. V. Seetharamayya Bahadur Vs. Sixth Wealth Tax Officer reported in 213 ITR 502. According to the judgment of the Hon'ble High Court the AO was confined to the points mentioned in the appellate order and hence he was bound to look into those points only. The same view is has also been followed in the judgment of the Hon'ble Calcutta High Court in the case of Surendra Overseas Ltd. Vs. CIT reported in 120 ITR 872 and also the decision of the Hon'ble Allahabad High Court in the case of Cawnpore Chemicals Works (P.) Ltd. Vs. CIT-reported in 197 ITR 296. Therefore I feel that the AO has exceeded his jurisdiction by disallowing the accumulation without any valid reason by taking a fresh plea. Therefore I am inclined to agree with the appellant that the accumulation of income for the year of Rs.2,13,90,859/- should be allowed.
9.1 Without prejudice to above, the appellant has stated that Form 10 was filed alongwith the revised return of income on 26.07.2010. It was contended that inspite of these facts the AO has raised objection that Form 10 was not filed due to the reason that relevant files were not traceable in his office. The AO has not brought any material on record to show and confirm that Form 10 was not filed earlier by the appellant and it was only filed on 21.01.2016.
I.T.A. No.163/Lkw/2017 5 Assessment Year:2009-10 9.2 The Hon'ble Apex Court in the case of Nagpur Hotel Owners Association reported in 247 ITR 201 has held that even if Form No. 10 is not filed in the time allowed u/s 139(1) of the Act, even then, if the same is provided before the completion of assessment (during course of computation of exemption) then the exemption has to be allowed. Thus, the Hon'ble Apex Court has held that even if Form 10 is filed late and has been filed before completion of the assessment (during course of computation of exemption), even then, the exemption has to be allowed.
9.3 The Hon'ble Gujarat High Court in the case of Mayur Foundation reported in 194 CTR 197 (Guj.) decided upon the issue of specific time limit prescribed u/s 11(2) of the Act i.e. whether the time limit prescribed in Rule 17 for submission of Form 10 rule making authority is valid. The question, therefore, arose is when can an assessment be said to be complete or till what point of time the assessment proceedings can be said to be alive. On this issue the Hon'ble Court held as under:-] "13. Thus, the proceedings before the Tribunal are meant to correctly assess the tax liability of an assessee. If this be so, it follows that the assessment proceedings cannot be said to be complete and is pending till the appeal is heard and disposed of by the Tribunal and the order of the Tribunal is given effect to by the assessing authority by computing the correct tax liability of an assessee. In other words, whether an assessee is required to pay tax or becomes entitled to a refund, would be ascertained by the assessing authority after giving effect to the order of the Tribunal.
9.4 In the present case the appellant had filed Form No. 10 alongwith the revised return on 26.07.2010. In view of these facts and decisions of Hon'ble Apex Court (as outlined in para 9.2 above) and Hon'ble Gujrat High Court (as outlined in para 9.3 above) the addition made by the AO cannot be sustained. The addition of Rs. 2,13,90,859/- made by the AO is ordered to be deleted. Grounds of appeal No. I to V are allowed and AO is directed to give the relief accordingly."
I.T.A. No.163/Lkw/2017 6 Assessment Year:2009-10 4.1 The above findings of learned CIT(A) are quite exhaustive and he has passed a speaking order after taking entire facts and circumstances of the case and we do not find any infirmity in the same.
5. In the result, the appeal of the Revenue is dismissed.
(Order pronounced in the open court on 03/05/2018) Sd/. Sd/.
(PARTHA SARATHI CHAUDHURY) ( T. S. KAPOOR )
Judicial Member Accountant Member
Dated:03/05/2018
*Singh
Copy of the order forwarded to :
1. The Appellant
2. The Respondent.
3. Concerned CIT
4. The CIT(A)
5. D.R., I.T.A.T., Lucknow