2020 (12) TMI 1148

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....the case the Ld Commissioner of Income Tax (Appeals) is not justified in upholding the reopening of the case under section 147 r.w.s. 148 of the Income Tax Act, 1961. The reopening of the case is bad in law and as such is not sustainable in the eyes of law. 2. That in the facts circumstances of the case the Ld Commissioner of Income Tax (Appeals) is not justified in upholding the assessment of income of the appellant at Rs. 11,50,110/- and further upholding that the benefit of the exemption under section 10(23C)(iiiad) was not available to the assessee. That fact of the matter is that the income of the appellant is exempt under section 10(23C)(iiiad) and also qualifies for exemption under section 11 and 12 of the I.T. Act, 1961. ....

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....as attached with the return from which it could have been gathered by the Assessing Officer that the assessee had not applied 85% of his receipts for charitable purposes for the year under consideration. However, the Ld. counsel is fair enough to admit that in this case even form No. 10B was not filed by the assessee but the Ld. counsel in this respect has submitted that even without form No. 10B, the Assessing Officer, at the first instance, had admitted the return and assessed the income of the assessee u/s. 143(3) of the Act, therefore, there was no failure on the part of the assessee to disclose fully and truly all material necessary facts for his assessment for that assessment year. The Ld. Counsel for the assessee has also relied upon....

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....)(iiiad) also. That once the Assessing Officer during the re-assessment proceedings found that the assessee was not eligible to claim deduction u/s. 11 of the Act because of the default on the part of the assessee in applying 85% of the assessee's receipt for charitable purposes, then, the Assessing Officer should have considered the alternative claim of the assessee u/s. 10(23C)(iiiad) of the Act. 7. After considering the rival submissions, we find force in the above contention of the assessee. If the assessee otherwise is eligible for deduction under the provisions of section 10(23C)(iiiad) of the Act, the said claim of the assessee, in our view, is required to be examined by the Assessing Officer. The issue is, therefore, restored....