TaxTMI 
TaxTMI 
2018 (6) TMI 148
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.... and whether the assessee is entitled for Exemption u/s. 11 of the Act or not is a debatable one and there is no concealment of income or furnishing inaccurate particulars by the assessee. 3. The Ld. Counsel for the assessee submitted that, on identical facts where Exemption u/s. 11 of the Act was denied to the assessee in the subsequent years and penalty was imposed, the Tribunal in ITA.No. 3831/MUM/2015 and 3833/MUM/2015 dated 18.01.2017 for the Assessment Years 2007-08, 2008-09 in ITA.No. 3834/MUM/2015 dated 24.05.2017 for the Assessment Year 2010-11 the penalty was deleted. Copy of the orders are placed on record. 4. Ld. DR vehemently supported the orders of the Authorities below. 5. We have heard the rival submissions, perused the orders of the authorities below. On perusal of the orders of the Lower Authorities show that penalty u/s. 271(1)(c) of the Act was levied for the reason that Exemption u/s. 11 of the Act was denied to the assessee as it was held that business of publishing newspaper itself cannot be said to be an object of general public utility entitled for exemption as a charitable institution. We also notice that in some of the years it has been held that....
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....e learned CIT(A). It is found by the learned CIT(A) that the assessee trust was granted registration u/s 12A of the Act and also under the Bombay Public Trust Act by the Charity Commissioner. However, the trust was denied exemption u/s 11 of the Act on the ground that income from running of newspaper had not been applied for charitable purposes. Instead, the income earned had been spent towards acquisition of assets. The learned CIT(A) has mentioned that the assessee did not furnish any evidence to prove that it was engaged in the activity of giving relief to the poor, or education, or medical relief. Also the learned CIT(A) has mentioned that since the onus cast on the assessee that it had used its income for charitable purposes, i.e. relief to the poor, education or medical relief etc. was not discharged, the AO has denied to the assessee grant of exemption u/s 11 of the Act even though the registration of the trust u/s 12A was subsisting. The learned CIT(A) has mentioned that the quantum appeal of the assessee for the A.Y. 2007-08 and 2008-09 have also been dismissed by both the CIT(A) and ITAT. 4.1 The learned CIT(A) has also mentioned that in the assessment year prior....
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....ve been dismissed by both the CIT(A) and the ITAT. He also relied on the order of the AO. 6. Per contra, the learned counsel of the assessee relied on the order of the ITAT in the assessee's own case for the A.Y. 1989-90, 1992-93, 1995-96, 1996-97, 1998-99 & 2003-04. Also he relied on the judgement of the Hon'ble Supreme Court in the case of Thanti Trust. 7. We have heard the rival submissions and perused the relevant material on record. We begin the discussion with the decisions relied on by the learned counsel of the assessee. In the case of the assessee for the A.Y. 1989-90 (1997) 50 ITD 135, the Tribunal has held that the donations collected in boxes marked as 'donation towards corpus' are not eligible for exemption u/s 11(1)(d); only the donations received with confirmatory letters stating that the donation was towards corpus is exempt. Also it is held therein that donations received by charitable trust without any direction whether it was towards corpus of trust is not exempt u/s 11(1)(d) and the same is assessable as income from other sources. Regarding set off loss u/s 71, the Tribunal held that the loss incurred in the said activity is a busi....
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.... of the AO to decide the same in the light of their decision for the A.Y. 1989-90 and to determine the application of income accordingly. 7.3 Now we come to the judgement of the Hon'ble Supreme Court in the case of Thanthi Trust (supra). In that case, it has been held that requirement of section 13(1)(bb) is that the exemption u/s 11 will not be available to such a trust that carries on any business unless the business is carried on "in the course of the actual carrying out of the primary purpose of the trust'', since the business of running a newspaper though held by the assessee- trust as a part of its corpus was not carried on in the course of actual accomplishment of the charitable objects of the trust, bar of section 13(1)(bb) was applicable and the assessee-trust was not entitled to exemption u/s 11 for assessment year 1979-80 to 1983-84. Further it has been held that as the assessee-trust was existing not only for public religious purposes and it is a trust and not an institution the newspaper business carried on by assessee did not fall within sub-section (4A) of section 11 and assessee was not entitled to exemption u/s 11 for the A.Y. 1984-85 to 1991-92 in res....
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....57,426-10,22,021) Rs. 12,35,405/- 2 Non-payment/late payment of ESIC contribution [Rs. 3,21,183-1,78,090) Rs. 1,43,093/- 3 Penalty for contravention of law Rs. 5,910/- 4 Non-deduction of TDS on payments attracting Provisions of section 40(a)(ia) Rs. 21,30,302/- 5 Prior Period Expenses disallowed u/s 43B Rs. 23,92,292/- Total Rs. 59,08,002/- 7.8 The AO has imposed a minimum penalty of Rs. 19,32,534/- u/s 271(1) (c) on the above additions / disallowances of Rs. 59,08,002/-. 7.9 It is found that for the A.Y. 2008-09 the following additions made by the AO have been sustained by the learned CIT(A): 1 Non-payment of employees & employers Contribution of Provident fund Rs. 8,55,110/- 2 Non-payment/late payment of ESIC contribution Rs. 2,99,385/- 3 Penalty for contravention of law Rs. 18,403/- 4 Non-deduction of TDS on payments attracting Provisions of section 40[a)(ia) Rs. 21,84,171/- 5 Prior Period Expenses disallowed u/s 43B Rs. 21,05,756/- 6 Disallowance of loss on sale of fixed assets Rs.16,297/- Rs.54,79,122/- 7.10. The A....
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....details supplied in the return, which are not accurate, not exact or correct, not according to truth or erroneous. In the instant case, there was no finding that any details supplied by the assessee in its return were found to be incorrect or erroneous or false. Such not being the case, there would be no question of inviting the penalty under section 271(1)(c). A mere making of the claim, which is not sustainable in law by itself will not amount to furnishing of inaccurate particulars regarding the income of the assessee. Such claim made in the return cannot amount to the inaccurate particulars. [Para 9] The revenue contended that since the assessee had claimed excessive deductions knowing that they were incorrect, it amounted to concealment of income. It was argued that the falsehood in accounts can take either of the two forms: (i) an item of receipt may be suppressed fraudulently; (ii) an item of expenditure may be falsely (or in an exaggerated amount) claimed, and both types attempt to reduce the taxable income and, therefore, both types amount to concealment of particulars of one's income as well as furnishing of inaccurate particulars of income. Such contention c....