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2022 (12) TMI 866
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....eing wholly contrary to facts and law applicable is to be disregarded. 2.2 The authorities below have erred in not appreciating the fact that the application filed for approval u/s 10(23c)(vi) of the Act having not been disposed off within the prescribed due date amounts to deemed approval u/s 10(23C)(vi) of the Act. 2.3 In any case. the learned AO had erred in holding that the Appellant is not entitled to make a fresh claim of deduction otherwise than by way of filing a revised return of income. On proper appreciation of facts and law applicable. fresh claim of deduction could be considered by the Appellate authorities during appellate proceedings. 2.4 In any case, the Appellant is eligible for deduction u/s 10(23C)(vi) of the Act and the same is to be granted to the appellant. 3. The learned AO had erred in holding that the application filed by the appellant u/s 154 of the Act stands disposed as the proceedings are subjudice in view of interim stay granted by the Honourable High Court of Karnataka with respect to notice u/s 143(2) of the Act. The conclusion of AO being erroneous both on facts and law applicable, is to be disregarded. 4....
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....come along with Form 10 and claimed refund of Rs.4,71,96,140/-. The assessee subsequently revised its return on 31/03/2017 with Nil income along with Form 10 claiming the refund of Rs.4,71,96,140/-. 2.2 The CPC, Bangalore issued intimation dated 21/02/2018 u/s. 143(1) according to which the gross total income of the assessee was determined at Rs.172,29,61,589/- by disallowing the sum of Rs.74,91,09,587/- that was claimed as accumulation u/s. 11(1)(a) and disallowing sum of Rs.70,83,56,256/- u/s. 11(2) being the amount accumulated and set apart for specific purposes. TDS credit of Rs.4,71,96,140/- claimed by the assessee was also not denied. The said intimation was challenged by the assessee by filing rectification application on 21/03/2018, and on 09/07/2018, order u/s. 154 was passed by the CPC enhancing the taxable income from Rs.172,29,61,598/- to Rs.176,99,71,700/- by withdrawing the deduction of Rs.4,70,10,101/- that was originally allowed in the intimation passed on 21/02/2018. 2.3 Against the order passed by the Ld.AO dated 09/07/2018, the assessee filed appeal before the Ld.CIT(A). The Ld.CIT(A) observed as under: "4. Discussion before the CIT(Appeal) ....
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....d electronically to the assessing officer with or without digital signature by the trust on or before due date of filing the return. Where 85% of income not applied (section 11(2)). Where 85% of the income is not applied for charitable purposes, the organisation is required to accumulate or set apart such income for future application. The income so accumulated will not be included in the total income of the organisation if the following conditions are applied. • Such trust or institution furnishes Form No 10 - notice of accumulation of income by charitable trust or institution electronically to assessing officer, on or before the due date for filing the R/I. • Mention the purpose for which income is being accumulated or set aside. • Income shall not be accumulated for more than 5 years and years in which income accumulated or set aside due to order or injunction of any court to be excluded in computing 5 years. • Money so accumulated or set aside is invested or deposited in specified mode as mentioned under sec 11(5). Above such option is to be exercised in Form 10 to be furnished electronic....
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....wards accumulation of funds under sec 11(1). Rs 70,83,56,256 is claimed towards accumulation u/s 11(2). This cannot be allowed for the following reasons - 1. Amount accumulated or finally set apart for specified purposes if all the conditions in section 11(2) and 11(5) are fulfilled. Sec 11[(2) [Where [eighty-five] per cent of the income_ referred to in clause (a) or clause (b) of subsection (1) read with the Explanation to that sub-section is not applied, or is not deemed to have been applied, to charitable or religious purposes in India during the previous year but is accumulated or set apart, either in whole or in part, for application to such purposes in India, such income so accumulated or set apart shall not be included in the total income of the previous year of the person in receipt of the income, provided the following conditions are complied with, namely:-] 1. such person specifies, by notice in writing given to the [Assessing] Officer in the prescribed manner, the purpose for which the income is being accumulated or set apart and the period for which the income is to be accumulated or set agar' which shall in no case exceed ten yea....
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.... Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959), a corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970), or under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980), or any other bank being a bank included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934); (iv) investment in units of the Unit Trust of India established under the Unit Trust of India Act, 1963 (52 of 1963); (v) investment in any security for money created and issued by the Central Government or a State Government; (vi) investment in debentures issued by, or on behalf of, any company or corporation both the principal whereof and the interest whereon are fully and unconditionally guaranteed by the Central Government or by a State Government; Unless the taxpayer makes deposits it these instruments specified in sec 11(5) the conditions for accumulation of income will not be satisfied and hence accumulation of income @ Rs 70,83,56,256 stands disallowed, since the taxpayer fails both the conditions for accumulation of i....
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....er for an institution to claim exemption u/s 10(23C)(vi) the institution must be approved by the concerned authorities. Since there is no order granting approval for the purposes of section 10(23C)(vi), the claim of the assessee cannot be considered. Furthermore the assessee is not entitled to make a fresh claim of deduction other-wise than by way of filing revised return of income. Accordingly the application of the assessee stands disposed"' 2.6 Against this order, the assessee filed appeal before the Ld.CIT(A). The Ld.CIT(A) vide order dated 04/02/2022 dismissed the appeal of the assessee by observing that as there is no order granting approval u/s. 10(23c)(vi) i.e. produced by the assessee from the competent authority, the appeal filed by assessee against the CPC intimation dated 04/02/2019 was rejected. 2.7 Against these orders of Ld.CIT(A), the assessee is in appeal before this Tribunal. ITA No. 563/Bang/2022: 3. The primary contention of the Ld.AR in this appeal is that disallowance has been made by the CPC in an intimation issued u/s. 143(1) dated 09/07/2018 denying the exemption claimed u/s. 11. She submitted that no disallowance could be made u/s. 11 by the CP....
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....ed or generated and sent to the assessee specifying the sum determined to be payable by, or the amount of refund due to, the assessee under clause (c); and ( e) the amount of refund due to the assessee in pursuance of the determination under clause (c) shall be granted to the assessee: Provided that an intimation shall also be sent to the assessee in a case where the loss declared in the return by the assessee is adjusted but no tax or interest is payable by, or no refund is due to, him: Provided further that no intimation under this sub-section shall be sent after the expiry of one year from the end of the financial year in which the return is made. Explanation.:-For the purposes of this sub-section,- (a) "an incorrect claim apparent from any information in the return" shall mean a claim, on the basis of an entry, in the return,- (i) of an item, which is inconsistent with another entry of the same or some other item in such return; (ii) in respect of which the information required to be furnished under this Act to substantiate such entry has not been so furnished; or (iii) in respect of a deduction, where such....