TaxTMI 
TaxTMI 
2018 (5) TMI 2194
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....ment of conditions laid down in section 11,12 and 13 of the Income Tax Act, 1961. 2. The Ld. CIT(A) has erred on facts and in law in deleting the addition of Rs. 20,15,000 /- made u/s 40(a)(ia) of the Act. In the decisions of Hon'ble ITAT Amritsar, Hon'ble ITAT Mumbai and Hon'ble Mumbai High Court it is held that provisions of section 40(a) of the Act are not applicable in case of a charitable Trust or institutions where income exempted is computed in terms of Section 11 of the Act. In this case exemption u/s 11 of the Income Tax Act, 1961 has been denied for violation of section 13 of the Income Tax Act, 1961. 3. The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in restricting the Maximum Marginal Rate on the addition of Rs. 1,54,745/- and Rs. 2,95,185/- made u/s 13 of the Income Tax Act, 1961 whereas the exemption u/s 11 of the Income Tax Act, 1961 has been denied in this case in the assessment order dated 12.02.2016. 4. Appellant craves leave to add or amend any one or more of the grounds of appeal, as stated above as and when need of doing so arises with the prior permission of the Hon'ble Bench. 2. The fact....
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....et aside the matter back to the file of Ld. CIT(A) holding that judgement in case of M/s Goetze India impinges on powers of AO but not of CIT(A). This ground of appeal has been decided by the undersigned in the appellant order passed in the case of appellant dated 14.12.2016 for AY 2010-11 whereby it is held that on merit exemption u/s 10(23AA) should be allowed to the appellant. Since this ground of appeal has been decided in favour of the appellant in Appeal No. 68/CIT(A)-4/Lko/15-16 vide order dated 14.12.2016 in case of appellant for AY 2010-11, therefore, there is no need to repeat the same again in this order also. Therefore, this ground of appeal becomes academic in nature as same has been allowed vide separate order dated 14.12.2016." 4. We have perused the case records and we find that this issue has already been decided in favour of the assessee in appeal No.68 vide order dated 14/12/2016 for assessment year 2010-11 following which ld. CIT(A) has provided relief and therefore we do not find any infirmity with the findings of the ld. CIT(A) and relief provided to the assessee is sustained. 5. With regard to disallowance under section 40(a)(ia) to the tune of....
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.... case as recorded above has clearly proved that the assessee is an Educational Society running Educational Institution for nonprofit purposes. This fact is admitted by the AO in the assessment order itself and the exemption from the tax under section 10(22) of the Income Tax Act has been allowed in favour of the assessee in the assessment order. Copy of the audited balance sheet is filed in the paper book which shows that the assessee has prepared the income and expenditure account of the educational society and as such the assessee was not carrying on any business or profession and is also not carrying on any business as is referred to in section 49 AB(c) of the Income Tax Act. The assessee has no sales, turnover or gross receipts from the business or profession as specified under section 44AB, therefore, the provisions of section 44AB are not attracted in this case. The income of the assessee is exempt as admitted by the AO, therefore, the decision of the IT AT, Mumbai 'A' Bench in the case of Indian Magnum Fund (supra) Is clearly applicable to the present appeals.' 5.1 In the case of Asstt. CIT vs. India Magnum Fund reported in (2002) 74 TTJ (Mum) 620, the M....
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....venue is dismissed." 6.3 Similarly, the Hon'ble ITAT, Mumbai in case of Mahatama Gandhi Seva Mandir vs. DCIT(E), Mumbai for A.Y. 2007-08 in ITA No. 4138/Mum/2011 held that provisions of section 40(a) are not applicable in case of charitable trust or institution where income and expenditure is computed in terms of section 11 of the Act. The relevant portion of the order is reproduced as under:- 7. We have carefully considered the rival submissions of both the parties and also the impugned order before us. It is an admitted fact that the assessee is a charitable trust, which is duly registered under section 12A and accordingly its income and expenditure is computed in terms of section 11. The issue before us is whether the disallowance under Section 40(a)(ia) can be made for the non deduction of TDS under section 194 in the case of such kind of assessee. Under the Income Tax Act, computation of total income is made under the various heads of income, viz:- i) Salary ii) Income from house property iii) Profits and gains from business or profession iv) Capital gains v) Income from other sources. 7.1 Now, let us ....
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....ss profit of an assessee whose income is assessable under section 28 and not otherwise. Hence, provisions of section 40(a)(ia) are not applicable in case of charitable trust or institution where income and expenditure is computed in terms of section 11. 8. Accordingly, we do not find any merit in the orders passed by the assessing officer as well as by the CIT(A) and delete the disallowance made under section 40(a)(ia) on account of non-deduction of TDS for sum of Rs.3,06,457/- and the Ground No. 1 as raised by the assessee stands allowed. 6.4 Similarly, the Hon'ble Mumbai High Court in the case of M/s Bombay Stock Exchange vs. DDIT (Exemption), Mumbai reported in 365 ITR 181 in para 14(E) of the order held that the income of petitioner is exempted u/s 11 of the Ac and he is not carrying on any business, therefore, section 40(a)(ia) of the Act has no application. 6.5 In the present case, the appellant is a charitable institution/society registered u/s 12A of the Act. Its income is claimed as exempt u/s 11 of the Act. Section 11 falls under chapter III with heading "income which do not form part of total income." On the other hand section 40(a) of the ....