TaxTMI 
TaxTMI 
2022 (9) TMI 722
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....arned CIT(A)(3) has grievously erred in confirming that the adjustment so done by the CPC is within the jurisdiction vested u/s 14391) of the Act. 3. That the appellant craves for leave to add, amend and or modify the grounds of appeal." 3. The only issue raised by the assessee is that the Ld. CIT(A) erred in confirming the order of the AO by sustaining the addition of Rs. 17,00,000/- representing the deemed income under Section 11(3) of the Act. 4. The facts in brief are that the assessee in the present case is a public charitable trust and duly registered under Section 12A of the Act. The assessee in the year under consideration filed its return of income at NIL after claiming exemption under Section 11 of the Act. One of the exemption claimed by the assessee in the return of income was representing the deemed income under Section 11(3) of the Act amounting to Rs. 17,00,000/- only which was denied in the intimation generated under section 143(1) of the Act. Accordingly, the demand was raised in the intimation generated under Section 143(1) of the Act amounting to Rs. 3,50,200/- only. 5. Aggrieved assessee preferred an appeal before the Ld. CIT(A) who has confirm....
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....on Kolkata High Court there is no reference to these circulars which directly address the issue at hand and therefore in my considered opinion the decision of Hon. Calcutta High Court is distinguishable on the facts. Therefore the contentions of the assessee are rejected on merits too and action of the AO calls for no interference. In view of above discussion the grounds of appeal are dismissed." 6. Being aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before us. 7. The Ld. A.R. before us filed a Paper Book running from Pages 01 to 67 and contended that the adjustment made by the CPC does not fall under the purview of the provisions of Section 143(1) of the Act. As such there is no arithmetical error or inaccurate claim in the return of income. Therefore, such adjustment cannot be made in the intimation generated under Section 143(1) of the Act. It was also contended by the Ld. A.R. that the issue involved in the present case is a debatable issue and therefore, the same cannot be made subject to the adjustment under the provision of Section 143(1) of the Act. 8. On the other hand, the Ld. D.R. vehemently supported the order of the authorities b....
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....above judgment, it is transpired that the assessee can claim the benefit of accumulation even on the deemed income specified under the provisions of Section 11(3) of the Act. However, the Ld. CIT-A in his order has not pointed out any distinguishing features in the case on hand viz-a-viz in the judgment of Hon'ble Calcutta High Court as discussed above. However, it is pertinent to note that the assessee has already claimed the benefit of exemption under Section 11(2) of the Act with respect to the deemed income specified under Section 11(3) of the Act and if the same is allowed to accumulate again, then the assessee will be claiming the benefit twice. 12. It is also pertinent to note that the Ld. CIT-A denied to follow the judgment of Hon'ble Calcutta High Court as discussed above on the reasoning that there were CBDT circulars denying the benefit of the deemed income specified under Section 11(3) of the Act but these circulars were not considered by the Hon'ble Calcutta High. However, the law laid down by the Hon'ble Calcutta High Court as of now is applicable on us even it was passed by the non-jurisdictional High Court. For the reason that, the Ld. DR and the AR has not broug....
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....ich has not been accepted by the board will also not make any differences to this position." 14. The Bombay High Court in the case of Bajaj Auto Finance Ltd. vs. CIT reported in ITR No. 25 of 2000 has also held as under: Once, reliance is placed upon a decision of a Court and / or Tribunal to make a claim, then even if the Assessing Officer has a different view and does not accept the view, yet the claim itself becomes debatable. This is so laid down in Instruction No.1814 dated 4 th April, 1989 issued by the CBDT in respect of the scope of prima facie disallowance under Section 143(1)(a) of the Act. In fact, paragraph no.9 thereof provides that where a claim for deduction has been made on the basis of a decision of a High Court / Tribunal, then, even if there is contrary view expressed by another High Court and / or Tribunal or an appellate Authority, the issue itself becomes debatable. In such cases, no adjustment under Section 143(1)(a) of the Act is permissible. 15. The Hon'ble Gujarat High Court in the case of CIT vs. Rughuvir Synthetics Ltd. in Tax Appeal No. 333 of 2004 has also held as under: 12. In view of the above submissions, in our considered vi....