TaxTMI 
TaxTMI 
2018 (1) TMI 1660
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....for the following reasons. 2.1 The provisions of section 13(8) of the Act is applicable only if the first proviso to section 2(15) of the Act are applicable to the assessee and accordingly the provisions of section 13(8) will not survive if the appellant is not hit by the first proviso to section 2(15). 2.2 The Order of the Commissioner of Income Tax (Appeals)-III in the Assessee's own case for the AY 2010-11 in ITA No.316/EXEM/EKM/CIT(A)-III/15- 16 has confirmed that the provisions of section 2(15) of the Act is not applicable to The Choice Foundation, the Appellant, and accordingly the very basis on which the Order u/s.263 is passed does not survive and accordingly the whole proceedings u/s. 263 are void and bad in law. 3. Without prejudice to the above it is respectfully submitted that there are several infirmities in the proceedings u/s.263 as detailed below and rendering it null and void. 3.1 any proceedings u/s.263 is valid only if the twin conditions of; * prejudicial to revenue and * erroneous are simultaneously fulfilled. In the above case there is no error at all in the Order u/s.143(3) r.w.s. 147 in so fa....
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....(1). By virtue of provisions of subsection (2) of section 263 the period of limitation for initiating a valid proceedings u/s 263 would expire on 31.03.2014. Therefore the revisional jurisdiction has been invoked by the Commissioner of Income Tax (Exemptions) vide his notice dated 02-05- 2016 and Order dated 22-12-2016 which are both beyond the period of limitation and therefore invalid. For these and other grounds that may be urged at the time of the hearing, it is prayed that the Order of the Commissioner of Income Tax (Exemptions), Kochi may be set aside and appropriate relieves granted." 2.2 The above additional ground raised is a pure legal issue, which goes into the root of the case and does not require any fresh investigation of facts. Hence, the additional ground raised is admitted and taken on record for adjudication. 3. Brief facts of the case are as follows:- 3.1 The assessee is a Trust. It is engaged in running of schools. For the assessment year 2010-2011 return of income was filed on 18.10.2010 declaring `Nil' income after claiming exemption u/s 11 of the Income-tax Act. The return was processed u/s 143(1) of the Income-tax Act. The assessment was re....
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....ed, It is a voluntary contribution and, therefore, income of the assessee within the meaning of section 2(24)(iia) of the Income Tax Act, 1961. If it is to be treated as a corpus donation, the same can only be excluded In computing the total income under the provisions of section 11 & 12 of the Income Tax Act, 1961. By virtue of section 13(8) of the Income Tax Act, the Assessing Officer had held that nothing contained in section 11 or section 12 shall operate so as to exclude any income from the total income of the assessee for the assessment year 2010-11. Accordingly, I am of the opinion that the income assessed for the assessment year 2010-11 is short by Rs. 2,08,91,000/-. 5. In the light of the above discussion, I find that the assessment order passed by the Assessing Officer u/s 143(3) of the Income Tax Act dated 10/03/2015 for the assessment year 2010-11 is erroneous in so far as it is prejudicial to the interests of revenue. Accordingly, invoking the provisions of section 263 of the Income Tax Act, 1961, the assessment order dated 10/03/2015 is set aside with a direction to the Assessing Officer to redo the same afresh after considering all issues raised herein above....
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.....Act, the period of limitation for initiating a valid proceedings u/s 263 would expire on 31.03.2014 and since revisionary jurisdiction has been invoked in this case by the Commissioner of Income-tax (Exemption), vide notice dated 02.05.2016, the same is beyond the period of limitation. The learned AR had relied on the judgment of the Hon'ble Apex Court in the case of CIT v. Alagendran Finance Ltd. (supra) 5.1 The above contention that the revisionary jurisdiction is barred by limitation will hold good, if the period of limitation is reckoned from the date of intimation u/s 143(1) of the I.T.Act. On the contrary, if the period of limitation is reckoned from the date of reassessment order (reassessment order dated 10.03.2015), the revisionary order u/s 263 of the I.T.Act would be valid and within the time limit prescribed u/s 263(2) of the I.T.Act. 5.2 The Hon'ble Apex Court in the case of Alagendran Finance Ltd. (supra) had categorically held that time limit u/s 263(2) of the I.T.Act has to be reckoned from the date of assessment order and not from the date of reassessment when the issue raised in the revision u/s 263 of the I.T.Act was not subject matter of reassessment u/s ....
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....86 of the paper book filed by the assessee). 5.5 In view of the judgment of the Hon'ble Apex Court in the case of Alagendian Finance Limited (supra), since the revisional jurisdiction to reopen the order of assessment was exercised in respect of corpus donation received, which was not subject matter of reassessment proceedings u/s 147 r.w.s. 148 of the I.T.Act, the period of limitation provided u/s 263(2) of the I.T.Act would begin to run from the date of intimation u/s 143(1) of the I.T.Act and not from the date of order of reassessment. As mentioned earlier, if the period of limitation is to be reckoned from the date of intimation u/s 143(1) of the I.T.Act, the Commissioner ought to have initiated revisionary proceedings on or before 31.03.2014. In the instant case the notice u/s 263 of the I.T.Act was issued much subsequently, i.e., on 02.05.2016 and order u/s 263 of the I.T.Act was completed on 22.12.2016. Hence the revisional jurisdiction is beyond the period of limitation u/s 263 of the I.T.Act and is a nullity. 5.6 The learned Departmental Representative had submitted that the issue of limitation was not raised before the CIT, hence cannot be raised before the Tribunal....