TaxTMI 
TaxTMI 
2009 (1) TMI 276
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....come-tax Appeal No. 106/Luck./2006 for the assessment year 2001-02. 2. Heard Sri D. D. Chopra, learned counsel for the appellant and Sri Amit Singh Bhadauria holding brief of Sri J. N. Mathur, learned counsel for the respondent. 3. The abovementioned appeal was admitted on April 11, 2008, with the following substantial questions of law: "1. Whether, on the facts and the circumstances of the case, the Income-tax Appellate Tribunal was correct in allowing exemption under section 11 of the Income-tax Act to the appellant without appreciating the fact that the original return was filed on March 27, 2002, though the due date was October 31, 2001, and was not even accompanied by audit report in Form No. 10B? 2. The Income-tax Appellat....
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.... at B-Block, Rajajipuram, Lucknow. The assessee had applied long back for exemption under section 10 (23C) (vi) but no decision on it was taken till the date of the assessment order or the order passed by the first appellate authority. However, the society was also registered under section 12A of the Income-tax Act, 1961, and was claiming exemption under section 11 of the Act. For the assessment year under consideration, the respondent (hereinafter referred to as "the assessee") has filed its return for the assessment year under consideration on March 27, 2002, showing the "nil income" after claiming the exemption under section 10(23C) of the Income-tax Act. This original return was filed in Form 2D "Saral". Later on, when the assessee came....
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....e cannot be given. He further submitted that the assessee in his original return has claimed the exemption under section 10(23C) (vi) for which no exemption was granted ever. 6. Regarding the second return, he submitted that the so-called revised return is non est in the eye of law as the original return was not submitted under section 139(1) or (2). No advantage can be given to the assessee for the information submitted in the second return. For this purpose, he relied on the ratio laid down by the apex court in Kumar Jagdish Chandra Sinha v. CIT [1996] 220 ITR 67 where it was observed that the return voluntarily filed under section 139(4), the assessee is not entitled to file the revised return. He read out section 139(4) and (5) which....
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.... for the respondent-assessee has supported the order of the first and second appellate authorities. He submitted that long back, the assessee has applied for exemption under section 10(23C) but there was no communication from the Department regarding it, so under bona fide belief after 3-4 years, the assessee has claimed the exemption under section 10(23C). When the assessee came to know that exemption was wrongly claimed, then the assessee filed the revised return along with Form l0B, as the exemption under section 11 was already with the assessee since long. The exemption which was claimed in revised return was duly supported by the necessary documents for claiming the exemption. Similar exemption was given to the assessee in the previous....
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....upporting the necessary documents like audit report, etc. 12. In the facts and circumstances of the case, we are of the view that the Assessing Officer has treated the revised return as "non est" wrongly for the reason that the Assessing Officer himself has passed the order under section 143(3) on the basis of the original return where the assessee was legally entitled for the exemption under section 11, if not under section 10 (23C). The Department should not take advantage of the ignorance of the assessee as per the Central Board of Direct Taxes Circular No. 14 (XL-35)/1955 dated April 11, 1955, quoted in Parekh Brothers v. CIT [1984] 150 ITR 105 (Ker). Hence, it was the duty of the Assessing Officer to ask information from the assesse....