2017 (1) TMI 668 - AT - Income Tax

Revision u/s 263 - Exemption u/s 11 - Held that - The coordinate bench of this Tribunal while considering the appeal of assessee for AY 2009-10 examined the issue of exemption u/s 11 which may be the subject matter of appeal before CIT(A) or before the Tribunal. and concluded the Ld. DIT do not have the power to consider such matter by exercising power under section 263. The Tribunal also examined the second aspect, which is purely academic. The income which was assessed in the original assessment order and the income which is now being sought to be assessed by virtue of order u/s 263. Under both the assessments the surplus amount would be taxed. Hence, no prejudice is caused to the revenue so far as tax effect is concerned, except for the fact that section 11 is being sought to be examined from a different perspective. Thus the ground of appeal raised in the present appeal is squarely covered in favour of assessee. By following the order of Tribunal we hold that the order revised by ld DIT(E) is not prejudicial to the interest of revenue and the same is set-aside by accepting the appeal of the assessee.

Summary

Issues:
1. Invocation of section 263 of the Income Tax Act
2. Erroneous order by the Director of Income-tax (Exemption)
3. Prejudicial nature of the order
4. Inconsistent stand of the Director of Income-tax (Exemption)

Analysis:

Issue 1: Invocation of section 263 of the Income Tax Act
The appeal was directed against the order of the Director of Income-tax (Exemption) invoking section 263 of the Income Tax Act. The appellant contended that the order was erroneous and sought it to be held null and void. The grounds of appeal were centered around the application of Proviso to section 2(15) and the verification done by the Assessing Officer during assessment, arguing that the order was not erroneous. The appellant challenged the invocation of section 263, emphasizing that the order should be considered null and void.

Issue 2: Erroneous order by the Director of Income-tax (Exemption)
The Director of Income-tax (Exemption) set aside the assessment order, deeming it erroneous and prejudicial to the interests of Revenue, directing a fresh assessment considering the Proviso to section 2(15) of the Income Tax Act. The Director concluded that the appellant's activities were hit by the Proviso to section 2(15) due to the nature of its income sources. The appellant argued that the order was not prejudicial to Revenue's interests, citing the total income already assessed by the Assessing Officer.

Issue 3: Prejudicial nature of the order
The appellant contended that the order was not prejudicial to Revenue's interests, highlighting similarities with a previous year's case where the Tribunal had ruled in their favor. The Tribunal examined the matter of exemption under section 11, emphasizing that the Director lacked the power to revise such matters under section 263. It was noted that the income assessed under the original order and the revised order would result in the same tax effect, indicating no prejudice to Revenue.

Issue 4: Inconsistent stand of the Director of Income-tax (Exemption)
The appellant raised concerns regarding the inconsistent stand taken by the Director of Income-tax (Exemption) in canceling the appellant's registration under section 12AA(3) and subsequently directing the application of Proviso to section 2(15) in a separate order. This inconsistency was highlighted as a ground for appeal, questioning the coherence of the Director's decisions.

In conclusion, the Tribunal allowed the appellant's appeal, setting aside the revised order by the Director of Income-tax (Exemption) as it was determined not to be prejudicial to Revenue's interests. The decision was based on the Tribunal's previous ruling and the lack of tax effect differences between the original and revised assessments.