TaxTMI 
TaxTMI 
TaxTMI 
2024 (3) TMI 882
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....ct but during the course of assessment proceedings. 4. That the Ld. CIT(A) has erred both in facts and in law by not accepting Form 10 for accumulation of income under section 11(2) filed during the course of assessment proceedings. 5. That the Ld. CIT(A) has erred both in facts and in law holding that delay in filing Form 10 can only be considered by the CIT and no application was made by the assessee. 6. That the Ld.CIT(A) has erred in holding the action of the AO that case laws filed by the assessee are not linked to the findings in this case. The appellant prays leave to add, alter, omit or substitute any or all of the above grounds of appeal, at any time before or at the time of hearing." 2. Briefly stated facts are that the assessee filed its return of income on 27.09.2015 declaring a taxable income of Rs. NIL. Subsequently, the case was selected for scrutiny and the assessment u/s 143(3) of the Income tax Act, 1961 ("the Act") was issued on 29.7.2016 which was duly served on the assessee. Subsequent to that notice u/s. 142(1) of the Act alongwith detailed questionnaire was issued to the assessee on 29.5.2017. While framing the assessment, the Assessing Officer notic....
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....el/2019 vide order dated 12.4.2022, a copy of which has been placed on record. In order to impart completeness, we may hereinafter, refer to the relevant discussions in Tribunal order for AY 2016-17 with respect to the instant issues. "9. I have heard the rival contentions and perused the material available on record and gone through the orders of the authorities below. I find that the AO did not accept the submissions of the assessee on account of set off of excess utilization of funds of earlier years against the surplus of the current year and accumulation of funds. In sofar as the question of filing of Form No.10, the Hon'ble Supreme Court in the case of CIT vs Nagpur Hotel Owner's Association (supra) has held that "if during the assessment proceedings the Assessing Officer does not have the necessary information, question of excluding such income from assessment does not arise at all. As a matter of fact, this benefit of excluding this particular part of the income from the net of taxation rises from section 11 and is subjected to the conditions specified therein. Therefore, it is necessary that the assessing authority must have this information at the time it completes the ....
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....has answered this question by observing as under:- 6. "We find from the order of the Income Tax Appellate Tribunal (hereinafter referred to as 'the Tribunal') that the Tribunal has decided the issue in favour of the assessee by placing reliance on the aforesaid judgment of the Gujarat High Court. We have gone through the judgment of Gujarat High Court in Shri Plot Swetamber Murti Pujak Jain Mandai's case (supra). It could not be disputed by the learned counsel for the Revenue that the question of law raised and answered in the said case was identical to the one raised in the present appeals. This question was decided in favour of the assessee interpreting the provisions of section 11 of the Act. The relevant discussion contained in the said judgment is in the following terms: "3. The learned DR sought to rely upon the finding of Assessing Officer. None was present on behalf of the assessee. We find that the issue is answered by Hon'ble Gujarat High Court in the case of CIT v. Shri Plot Swetamber Murti Pujak Jain Mandai [1995] 211 ITR 293, wherein the High Court observed as under: "We are, therefore, of the opinion that the adjustment of he (sic. the) expenses ....
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....venue to repel the same in the following words: "Now coming to question No, 3, the point which arises for consideration is : whether excess of expenditure in the earlier years can be adjusted against the income of the subsequent year and whether such adjustment should be treated as application of income in the subsequent year for charitable purposes? It was argued on behalf of the Department that expenditure incurred in the earlier years cannot be met out of the income of the subsequent year and that utilization of such income for meeting the expenditure of earlier years would not amount to application of income for charitable or religious purposes. In the present case, the Assessing Officer did not allow carry forward of the excess of expenditure to be set off against the surplus of the subsequent years on the ground that in the case of a charitable trust, their income was assessable under self-contained code mentioned in section 11 to section 13 of the Income-tax Act and that the income of the charitable trust was not assessable under the head "Profits and gains of business" under section 28 in which the provision for carry forward of losses was relevant. That, in the case of a....