2021 (8) TMI 59 - AT - Income Tax

Reopening of assessment u/s 147 - exemption u/s 10(23C)(vi) - objection raised to the initiation of proceedings u/s 147 were not responded by AO and no specific order was passed by AO disposing off objection raised by appellant - HELD THAT - Quite interestingly, in the present case the assessee had filed objection to the reasons on 5.2.2015 and thereafter reiterated the same objection in the subsequent reply dated 23rd February 2015. The above said fact is clear from the reply dated 23rd February 2015 reproduced herein above which clearly mentioned that the assessee had filed the similar reply at the threshold on 5 February 2015. The order of the learned CIT(A), clearly shows that the assessing officer after considering the objections of the assessee had dispose of the objection by reason order dated 11 February 2015. When the assessing officer has dispose of the objection of the assessee vide order dated 11 February 2015 and also in the light of the judgement relied upon by the revenue in the case of Sunil Bhaseen vs Commissioner of Income Tax 2008 (11) TMI 665 - HIGH COURT OF PUNJAB AND HARYANA we are of the opinion that the ground raised by the assessee is devoid of merit and the same is liable to be dismissed and we accordingly dismiss the same. Exemption u/s 11 - Whether assessee's case was fully covered by amended provisions of section 12A as reproduced on account of addition of proviso to section 12A(2)? - The purpose of insertion of the new proviso in the act was to mitigate the hardship of the society/trust like assessee who were into charitable activities, and on account of some technical reasons, the registration has not been accorded or sought in time. Admittedly the assessee was running the educational institution and was having the requisite approval under section 10(23) for the year prior to the year under consideration and the assessee was granted the registration under section 12 A of the Act with effect from 25.9.2009. In the year under consideration, the assessee was neither having registration under section 12 A of the Act nor was having approval under section 10 (23) of the Act. However, the activities of the assessee continued to be charitable and there was no change in activities of the assessee. In our view the assessee, though was registered on 25.9.2009, however the assessee, was entitled to the benefit of section 11, 12 and 13 of the income tax Act for the assessment year 2007-08 under consideration in terms of the proviso to section 12A Thus the benefit of section 11 and 13 of the income tax Act considering the assessee as charitable institution should be accorded. In the result the 2nd ground raised by the assessee is liable to be allowed. As the assessee is entitled to the benefit of the section 11 and 13 of the Income Tax Act for the AY 2007-08, therefore we deem it appropriate to remand the matter to the file of the assessing officer with the direction to the assessee to produce the books of account before the assessing officer. The assessing officer is directed to give the benefit of section 11 and 13 to the assessee in accordance with law and complete the assessment

Summary

Issues Involved:
1. Validity of reopening the case under Section 147 of the Income Tax Act.
2. Entitlement to benefits under Section 11 and 13 of the Income Tax Act in light of the proviso to Section 12A.
3. Necessity of remanding the case back to the Assessing Officer.

Detailed Analysis:

1. Validity of Reopening the Case Under Section 147:
The appellant contested the reopening of the case under Section 147, arguing that the Assessing Officer (AO) did not provide a specific order addressing the objections raised against the reopening. The AO had issued a notice under Section 148 on 26.03.2014, citing that the appellant's income was not exempt under Section 10(23C)(vi) as the approval was not valid for AY 2007-08. The appellant argued that the AO failed to pass a speaking order on the objections, rendering the reopening void ab initio, referencing the Supreme Court's decision in GKN Driveshaft's (India) Ltd V ITO 259 ITR 19. However, the AO had responded to the objections by a letter dated 11.02.2015, rejecting them and proceeding with the assessment. The Tribunal found that the AO had considered the objections and dismissed the appellant's argument, citing the jurisdictional High Court's decision in Sunil Bhaseen vs Commissioner of Income Tax.

2. Entitlement to Benefits Under Section 11 and 13:
The appellant argued that the amended provisions of Section 12A, effective from 01.10.2014, should apply to their case. The appellant had been granted registration under Section 12AA for AY 2009-10 on 25.09.2009. The proviso to Section 12A(2) states that benefits under Sections 11 and 12 apply to any income derived from property held under trust for any preceding assessment year if the assessment proceedings were pending as of the date of registration and the trust's activities remained the same. The Tribunal agreed that the appellant was entitled to these benefits for AY 2007-08, as the activities remained charitable, and the registration was granted before the amendment. The Tribunal relied on similar cases, such as Shyam Mandir Committee, Khatushyamji V ACIT and SNDP Yogam V ADIT (Exemption), which supported the retrospective application of the proviso to Section 12A(2).

3. Remanding the Case Back to the Assessing Officer:
Given the Tribunal's decision that the appellant was entitled to the benefits under Sections 11 and 13, the case was remanded back to the AO. The AO was directed to reassess the case, providing the appellant an opportunity to present their books of account and any relevant documents. The Tribunal emphasized that the AO should complete the assessment in accordance with the law, granting the appellant the benefits of Sections 11 and 13.

Conclusion:
The Tribunal dismissed the appellant's argument regarding the invalidity of reopening the case under Section 147. However, it allowed the appellant's claim for benefits under Sections 11 and 13, remanding the case back to the AO for reassessment. The other grounds of appeal were deemed academic and not addressed. The appeal was partly allowed.