9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (4) TMI 406 - AT - Income TaxRevision u/s 263 - claim of exemption u/s.11 entitlement denied - Held that - As from the record we found that the assessee filed its return of income on 30.09.2009 along with the Income & Expenditure Account Balance Sheet and Audit Report in Form No.10B declaring total income at Rs.NIL. The trust is registered as a Charitable Organisation with DIT(E) Mumbai u/s. 12A under vide Registration No.INS/36714. The trust claims to be engaged in Planning and Development and during the course of scrutiny assessment AO after making detailed enquiry declared assessee s claim of exemption u/s.11. We had carefully gone through the order passed by the AO u/s.143(3) as well as the order passed by CIT(A) u/s.263 as well as the order of the Tribunal dated 31/10/2015. We found that exactly under similar facts and circumstances the order passed by CIT(A) u/s.263 was cancelled by observing that in so far as entire assessment order of the whole of the surplus amount has been challenged before the CIT(A) then the entire assessment order including taxing of the entire exempt income u/s.11 is the subject matter of the appeal and there is complete merger with the order of CIT(A) within the terms and ambit of section 263 read with clause (c) Explanation 1. Tribunal also observed that in so far as tax effect is concerned there is no difference at all between the income which was assessed in the original assessment order and the income which is now being sought to be assessed in wake of order u/s.263. Under both these assessments surplus amount will get 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. Respectfully following the order of the Tribunal in case of Slum Rehabilitation Authority 2016 (1) TMI 798 - ITAT MUMBAI we do not find any merit in the order of CIT(A) u/s.263 - Decided in favour of assessee
Issues Involved:
1. Validity and jurisdiction of the order passed under Section 263 of the Income Tax Act. 2. Whether the Assessing Officer (AO) conducted a proper inquiry before denying exemption under Section 11. 3. Applicability of the proviso to Section 2(15) of the Income Tax Act. 4. Merger of the assessment order with the order of the CIT(A) and its implications on the revisionary jurisdiction under Section 263. 5. Whether the order passed by the AO was prejudicial to the interest of the revenue. Detailed Analysis: 1. Validity and Jurisdiction of the Order Passed under Section 263: The assessee contended that the order passed by the DIT(E) under Section 263 of the Income Tax Act was invalid, bad in law, and without jurisdiction. The assessee argued that the AO had conducted a thorough inquiry and that the order could not be deemed erroneous merely because the DIT(E) held a different opinion or believed further inquiries were necessary. The Tribunal found merit in this argument, noting that the AO had indeed conducted a detailed inquiry before denying the exemption under Section 11. 2. Inquiry Conducted by the AO: The assessee argued that the AO had made a full inquiry and had obtained all necessary information before denying the exemption under Section 11. The Tribunal observed that the AO had assessed the entire income declared by the assessee and had denied the exemption after a detailed inquiry. Therefore, it could not be said that the order passed by the AO was erroneous. 3. Applicability of the Proviso to Section 2(15): The DIT(E) argued that the AO had failed to consider the amended provisions of Section 2(15), which could potentially classify the assessee's activities as non-charitable if they involved trade, commerce, or business. However, the Tribunal noted that the AO had already denied the exemption under Section 11, and the income had been fully taxed. The Tribunal held that the AO's failure to mention the proviso to Section 2(15) did not make the order erroneous, as the tax effect remained the same. 4. Merger of the Assessment Order with the Order of the CIT(A): The Tribunal noted that the entire assessment order, including the denial of exemption under Section 11, had been the subject of an appeal before the CIT(A). The CIT(A) had granted relief to the assessee, and the income had been assessed at "nil." The Tribunal held that the assessment order had merged with the order of the CIT(A), and the DIT(E) did not have the power to revise or set aside the order under Section 263. 5. Prejudicial to the Interest of the Revenue: The DIT(E) argued that the order was prejudicial to the interest of the revenue because the AO had not applied the newly inserted proviso to Section 2(15). The Tribunal, however, observed that there was no difference in the tax effect between the original assessment order and the order sought to be revised under Section 263. The entire surplus amount had been taxed in both scenarios, and thus, no prejudice was caused to the revenue. Conclusion: The Tribunal concluded that the order passed by the DIT(E) under Section 263 was not valid, as the AO had conducted a detailed inquiry, and the assessment order had merged with the order of the CIT(A). The Tribunal also noted that there was no prejudice to the interest of the revenue. Therefore, the appeal of the assessee was allowed, and the order passed under Section 263 was cancelled.
|
