2017 (1) TMI 1587 - AT - Income Tax

Entitlement to exemption from Union tax - whether the income of the assessee is taxable under the Income tax Act? - constitution of assessee u/s 11 of the West Bengal Town and Country (Planning and Development) Act, 1979 under the Govt. of West Bengal and engaged in the development activities - Held that - As in A.Yrs. 2004-05, 2006-07 and 2007-08 for assessee s own case herein 2015 (8) TMI 1443 - ITAT KOLKATA the Co-ordinate Bench remanded similar issue to the file of AO for fresh adjudication as per law Exemption u/s 11 - assessee as not registered u/s 12A - Held that - On perusal of the records we find that the ld. CIT(Exemption) has granted registration certificate u/s 12AA of the Act vide its order dated 16th November, 2016. It is also important to note that the registration was granted w.e.f. 01.04.2009. In view of the above we find that the assessment order has been passed by the AO without considering the fact that the assessee is entitled for exemption u/s 11 of the Act as this fact has not been considered by the AO at the time of assessment. We are inclined to restore this ground of appeal to the AO for fresh adjudication

Summary

Issues:
1. Whether the income of the assessee is taxable under the Income Tax Act.
2. Whether the provision of section 11 of the Act is applicable to the assessee as it is not registered under section 12A of the Act.

Analysis:
1. The first issue pertains to the taxation of the assessee's income under the Income Tax Act. The assessee contended that its income is not taxable in accordance with Article 289 of the Constitution of India, asserting that it is actually the income of the state and therefore exempt from Union tax under Article 289. The assessee's representative highlighted similar issues in previous years where the matter was remanded for fresh adjudication. The Tribunal noted the previous decision and remanded the current issue back to the Assessing Officer for reconsideration, following the statutory requirements.

2. The second issue revolves around the applicability of section 11 of the Act to the assessee due to its non-registration under section 12A of the Act. The assessment was initially completed presuming the assessee was not entitled to exemption under section 11. However, it was later revealed that the assessee had obtained registration under section 12AA of the Act, granting exemption from taxation under section 11. The Tribunal found that the assessment order did not consider this crucial fact and directed the issue to be reconsidered by the Assessing Officer for a fresh assessment under section 143(3) of the Act.

The Tribunal allowed both appeals of the assessee for statistical purposes, emphasizing the need for proper consideration of statutory provisions and registration status in determining tax liability.