TaxTMI 
TaxTMI 
2023 (12) TMI 414
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....or making compliance; c. restrain the respondent nos. 2 and 3/revenue authorities from continuing the reassessment proceedings over the petitioner, else the petitioner will suffer grave and irreparable loss and injury; d. grant such other ad-interim ex-parte relief in terms of prayer (a)(b) and (c) above. 3. Learned counsel for the petitioner submitted that the petitioner is a society created on 14.02.2006 and got itself registered with the Registrar of Society, Uttar Pradesh under Societies Registration Act, 1860 bearing registration no. 1398/2005-06 for carrying out charitable work by imparting education through its institutions run by it. It had also the registered under section 12A of the Act on 25.09.2008 by the CIT-1, Kanpur, vide certificate of registration no. 630/1335/निबंधक/तकनीकी/कानपुर/2474. 4. The petitioner society was maintaining regular books of account and other records which were subjected to audit under section 12-A(b) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act'). For the year under consideration, that is, A.Y. ....
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.... Maa Bhagwati Devi Shikchhna Sewa Samiti for A.Y. 2013-14 u/s 147 of the Act. 1. Brief details of the assessee The assessee is a society involved in running a educational institute(s). 2. Brief details of information collected/received by the AO: Return of income in this case was filed on 31.03.2014 at total income of Rs. Nil. Thereafter the case was selected under scrutiny and assessment was completed on 20.01.2016 at total income at Rs. Nil. From the records it is noticed that there was unapplied surplus income of Rs. 1,58,86,689/- for which assessee has submitted form 10 on 31.03.2014 for accumulation of aforesaid amount of surplus income. Under the provision of section 11(2), assessee had to submit the form 10 for accumulation of income upto the date of filing its return provided u/s 139(1) i.e. 30.09.2013 but it was submitted after due date as provided u/s 139(1) of IT Act,1961. 3. Analysis of information received: Since, there was unapplied surplus income of Rs. 1,58,86,689/- for which assessee has submitted form 10 on 31.03.2014 belatedly for accumulation of aforesaid amount of surplus income. Under the provision of secti....
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....ed filing of Form - 10, as several judicial pronouncements have held that if the same is filed during the course of assessment proceedings, then the same is to be accepted; b) Nothing is contained in section 11(2)(a) of the Act regarding period for furnishing of Form - 10, the period provided under Rule 17. This period of filing on or before due date under section 139(1) which relates to the time period for furnishing of return, was provided only with effect from A.Y. 2016-17 by Finance Act, 2015. c) As per various judicial pronouncements time limit provided under Rule 17 was directive in nature and not mandatory. d) Reason to believe as recorded is wholly based on the review of Assessment Order made under section 143(3) of the Act which has taken cognizance of Form - 10 furnished by assessee belatedly but accepted by the Assessing Officer during the course of regular assessment proceedings, therefore, it amounts to review of assessment order; e) Reason to believe as recorded is vitiated by the legal mischief of the change of opinion. Reliance in this regard was placed on decisions of CIT Vs. Kelvinator of India Ltd., reported in (2010) 320 ITR 5....
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.... filed by the petitioner. 11. The petitioner further contended that umpteen judgments of Supreme Court and various High Courts have held that delay in filing Form-10 is condonable and Rule 17 of the Act is directly and not mandatory. Contentions of the respondents 12. Per contra, learned counsel for the respondents supported the initiation of reassessment proceedings, the order passed on March 3, 2022 and the assessment order passed on March 19, 2022. Learned counsel submitted that non filing of Form-10 within time is fatal in nature and the petitioner could not have claimed the exemption under Section 11 of the Act if such form was not filed within time. He further submitted that the factual aspect of late receiving of Form-10 came to the knowledge of the Assessing Officer on a later date and accordingly amounts to new material. He also submitted that this clearly shows that it is not a mere change of opinion that has led to the initiation of reassessment proceedings. Analysis and Conclusion 13. Before entering into the controversy, we would like to put on record the relevant Section 11(2) of the Act and Rule 17 of the Rules. The same are provided below: "S....
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....the assessing authority under section 11 before the assessment is concluded. It was held that the assessing authority must have this information at the time he completes the assessment. In the absence of any such information it will not be possible for the assessing authority to give the assessee the benefit of such exclusion and once the assessment is so completed, it would be futile to find fault with the assessing authority for having included such income in the assessable income of the assessee. Therefore, even assuming that there is no valid limitation prescribed under the Act and the Rules even then. It is reasonable to presume that the intimation required under section 11 has to be furnished before the assessing authority completes the concerned assessment. In the present case, the application under section 11(2) was not filed with the return. The information, however, was given during the process of the assessment, before the assessment was completed. The assessee had given notice under section 11(2)(a) of the Act read with rule 17 of the Rules of 1962 for accumulation of income to the Additional Commissioner of Income-tax. The Assessing Officer, however, did not consider t....
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....such income in the assessable income of the assessee. Therefore, even assuming that there is no valid limitation prescribed under the Act and the Rules even then, in our opinion, it is reasonable to presume that the intimation required under Section 11 has to be furnished before the assessing authority completes the concerned assessment because such requirement is mandatory and without the particulars of this income the assessing authority cannot entertain the claim of the assessee under Section 11 of the Act, therefore, compliance of the requirement of the Act will have to be any time before the assessment proceedings." Emphasis Added 16. One may also refer to judgment of CIT Vs. Sakal Relief Fund, reported in (2017) 81 taxmann.com 396 (Bombay)/[2017] 248 Taxman 31 (Bombay) wherein their lordships have observed and held as under: "12. Today when the matter was called out, Mr. Tejveer Singh, learned Counsel for the Revenue does not dispute the fact that the decision of the Delhi High Court in Association of Corporation and Apex Societies of Handlooms (supra) and of this Court in Trustees of Tulsidas Gopalji Charitable and Chaleshwar Temple Trust (supra) would a....