TaxTMI 
TaxTMI 
2025 (8) TMI 1594
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.... "1. Because, the Ld. Commissioner of Income Tax (Appeals) has erred on facts and law while not allowing benefit of provisions of section10(23C) in A.Y. 2018-19 wherein subsequent year assessee was approved u/s 10(23C)(vi) of the Income Tax Act and eligible for deduction in parity of provisions of section 12A of the Income Tax Act. 2. Because, the Ld. Commissioner of Income Tax (Appeals) has erred on facts and law while restricting the application of fund to the extent of Rs. 3,77,87,472.07/- against gross receipt of Rs. 3,83,03,348.60/- and computing the surplus at Rs. 5,15,876.53/- without considering institution is existing solely for education purpose not for the propose of profit and eligible for exemption u/s 10(23C) of the Income Tax Act." (B) In this case, the assessee filed a return of income declaring total income at Nil. Vide assessment order dated 08.03.2021 [DIN No. ITBA/AST/S/143(3)/2020-21/1031317779(1)]. The assessee's income was assessed at Rs. 3,83,03,349/-. The relevant portion of the aforesaid assessment order is reproduced as under: - "5. The assessee society has claimed exemption u/s 10(23C)(iiiad) of the Income Tax Act, 1961 in its....
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....f income over Expenditure at Rs. 5,15,876.53/- in its income and expenditure account. This contentions of the appellant has force in it. Once the exemption is denied what can be taxed is the excess of receipt over eligible expenditure related to the business of the appellant. As mentioned by the appellant, even in earlier AY 2016-17, in the similar facts and circumstances, in appellants own case, the then AO has taxed the excess receipt over expenditure, as against the total receipt: Therefore. respectfully following the consistent approach of the department and in the facts of the case, only surplus receipt over expenditure is held taxable. 8.3 The AO shall therefore verify the expenditure claimed by the appellant and thereafter compute the income of the appellant as discussed above. Accordingly, Ground No.1 of appeal is partly allowed." (B.2) During the course of appellate proceedings in Income Tax Appellate Tribunal ("ITAT", for short), the assessee filed a paper book containing the following particulars: - 1 (2013) 38 Taxmann.com 100 (SC) para 28, 29, 30 & 31 CIT vs Excel Industries Ltd 2 (2017) 88 Taxmann.com 133 (Amritsar ITAT) para 25 to 28 Punjab Edu....
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....appeal before us pertains to assessment year 2018-19 and the impugned appellate order of the Ld. CIT(A) has been passed on 17.08.2023. Therefore, it is obvious that in the present case, the aforesaid proviso to Section 251(1)(a) of Act (inserted with effect from 01.10.2024 has no applications); and the Ld. CIT(A) could have only confirmed, reduced, enhanced, annulled the assessment but could not have set aside the assessment back to the Assessing Officer. In the present case before us, the direction of the Ld. CIT(A) to the Assessing Officer to verify the expenditure claimed by the assessee and thereafter compute the income of the assessee amounts to setting aside the assessment back to the Assessing Officer for fresh computation of the assessee's income. As discussed earlier, the Ld. CIT(A) did not have power to set aside the assessment back to the Assessing Officer. Therefore, the Ld. CIT(A) is directed to decide this issue at his own level exercising his powers to confirm, reduce, enhance or annul the assessment without referring the matter back to the Assessing Officer for computation of the assessee's income afresh. Accordingly, ground no. 1 of appeal is allowed. (C) As reg....
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....Y. 2018-19 also (to this present appeal pertains) on the strength of the approval granted to the assessee u/s 10(23C) of the Act in the subsequent year. For this purpose, the Ld. Counsel for the assessee relied on the following case laws: - (i) CIT vs Excel Industries Ltd (supra), (ii) Punjab Education Society vs ITO (supra) (iii) Prem Prakash Mandal Sewa Trust vs ITO Exemption (supra). The Ld. Departmental Representative supported the order of the Ld. CIT(A) on this issue, stating that the approval granted to the assessee u/s 10(23C) of the Act for subsequent assessment year had no application for A.Y. 2018-19 to which the present case pertains. (D.1.1) At the time of hearing, Ld. Counsel for the assessee was asked specifically by Bench whether there was any material on record to show that the objects and activities of the assessee were the same as was for the subsequent year in which assessee was granted approval u/s 10(23C) of the Act. The Ld. Counsel for the assesse responded in the negative and admitted that there was no such material. Therefore, even if the claim of parity of provisions of section 10(23C) of the Act with the provisions of Section 12A of the Act as claimed ....