AI Drafter 
TaxTMI 
TaxTMI 
2023 (8) TMI 1085
X X X X Extracts X X X X
X X X X Extracts X X X X
....achandra Rao, Chief Justice The Revenue has filed the instant appeals under Section 260A of the Income Tax Act,1961 (for short, "the Act") : i. for the assessment year 2004-05 (ITA no.1 of 2020), ii. for the assessment year 2005-06 (ITA no.28 of 2019), iii. for the assessment year 2006-07 (ITA no.31 of 2019), iv. for the assessment year 2007-08 (ITA no.29 of 2019), v. for the assessment year 2008-09 (ITA no.30 of 2019) and vi. for the assessment year 2009-10 (ITA no.32 of 2019). 2. In all these appeals, orders passed by the Income Tax Appellate Tribunal, Division Bench Chandigarh on different dates for the respective assessment years in respect of the respondent-assessee are under ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the assessment year 2005-06, the same substantial questions of law arise; and as regards ITA no.29 of 2019, ITA no.30 of 2019 and ITA no.32 of 2019 for the assessment years 2006-07, 2007-08, 2008-09 and 2009-10, respectively questions 2, 3 and 4 raised in ITA no.1 of 2020 arise. In addition, according to the Revenue, the following question also arises in these 4 appeals: "Whether on the facts and in the circumstances and in law, the order of the Appellate Tribunal is contrary to the evidence and material on record of the case and therefore perverse?" 5. We may point out that these appeals had initially been filed before the High Court of Punjab and Haryana, but the said High Court had returned the same in 2016 directing the Rev....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sing Officer. 10. By order dt. 29th January, 2015, the 2 appeals for the assessment years 2004-05 and 2005-06 were decided by the CIT(Appeals) by a consolidated order. He dismissed the appeals filed by the assessee, and while doing so enhanced the taxable income of the assessee on the ground that the assessee was not entitled to the benefit of exemption of 15% under Section 11(1)(a) and (d) of the Act as they were unable to spend 85% of its income during the year in question. He enhanced the income of the assessee to Rs.9,97,09,788/-. 11. The assessee then preferred appeals before the Income Tax Appellate Tribunal, which passed the order on 20.01.2016 allowing the appeals of the assessee. It accepted the plea of the assessee that the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssessing Officer had formed an opinion that they were corpus funds, and hence were not to be included in the income of the assessee. The Tribunal held that having thus formed an opinion on the treatment of earmarked funds shown as "Funds Pending Utilization", the Assessing Officer could not have resorted to re- opening the case of the assessee on the same issue, since it amounts to change of opinion which cannot be resorted to in re-assessment proceedings. The Tribunal held that proceedings for re-opening of assessment on the ground of income escaping assessment are an exception to the finality of proceedings arrived at under Section 143(3) of the Act during the regular assessment proceedings of the assessment years; the Assessing Off....
X X X X Extracts X X X X
X X X X Extracts X X X X
....% and the assessee is entitled to claim exemption under Section 11 of the Act. Consideration by the Court ITA no.1 of 2020 and ITA no.28 of 2019 for the assessment years 2004-05 and 2005-06. 13. In Kelivinator of India Limited (1supra), it was held that there can be re-opening of assessment under Section 148 of the Act only if the Assessing Officer has reason to believe that any income chargeable to tax had 'escaped assessment' for any assessment year; that the use of this power is conditional upon the fact that the Assessing Officer has some reason to believe that the income has 'escaped assessment'; that the words 'reason to believe' in Section 147 of the Act cannot be interpreted to have the consequence of conferring arbitrary p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pply the correct provisions of Section 12(1) of the Act. The said assessment orders were set aside with a direction to the Assessing Officer to pass fresh assessment orders. 15. Thereafter fresh assessment orders for the assessment years 2006-07 and 2008-09 were passed on 27.12.2010. 16. Assessment order for the assessment year 2009-10 was passed on 27.12.2011. 17. On 30.11.2012, CIT (Appeals) allowed the appeals for the assessment year 2009-10 and deleted the additions made by the Assessing Officer. 18. CIT (Appeals) also allowed the appeals on 21.03.2012 pertaining to the assessment years 2006-07 and 2007-08 and 2008- 09, holding that the assessee had in fact spent much more than 85% of its receipts under the head 'Funds Pendi....