9911796707
TMI Blog2008 (1) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... community and it is to be noted that a charitable institution constituted for the benefit of a community, is not entitled to exemption.Revision petition dismissed. - - - - - Dated:- 17-1-2008 - C. N. Ramachandran Nair J.-This tax revision case is filed under section 78 of the Kerala Agricultural Income-tax Act, 1991 (for short " the Act"), challenging the order of the Tribunal produced as annexure C, confirming the petitioner's assessment for 1994-95. The petitioner, claiming to be a charitable trust, admittedly did not file return on the due date provided under section 35(1) of the Act. However, a belated return was filed on July 12, 1995. The Assessing Officer completed the assessment on March 13, 2000, whereunder, the petitioner's cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n though section 41 is not mentioned in the assessment order, it is still an assessment under section 41 read with section 39(4) of the Act. Learned counsel for the petitioner relying on the Division Bench judgments of this court reported in Commr. of Agrl. I. T. v. K. V. Sebastian [1996] KLJ (Tax Cases) 238 and STO v. Pathrose [1979] 44 STC 223, contended that a reassessment under section 41 is permissible only after completion of the regular assessment and since in this case there is only one assessment, it cannot be stated to be an assessment under section 41 of the Act as contended by the Department. Learned counsel has specifically stated that the assessment made by the officer is one under section 39(4) of the Act and, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eted under section 39(4) of the Act which provides for making a best judgment assessment in cases where the assessee failed to furnish return as required under section 35 or fails to comply with the notice issued under sub-section (4) of section 35 of the Act. Admittedly, the assessee did not furnish the return under section 35 of the Act inasmuch as no voluntary return was filed on due date and the officer did not issue notice calling for the production of accounts under section 35(2) of the Act. Since the belated return is not a return under section 35 of the Act, the Assessing Officer has taken it only as an information for commencing an assessment based on it. A notice issued pursuant to such a belated return can only be an income escap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment. We cannot accept this contention because section 41(1) with the proviso extracted hereunder does not say so. " 41. Income escaping assessment.-(1) If for any reason agricultural income chargeable to tax under this Act has escaped assessment in any financial year or has been assessed at too low a rate, the Agricultural Income-tax Officer may at any time within ten years of the end of that year and subject to the provision of sub-section (2), serve on the person liable to pay the tax, a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 35 and may proceed to assess or reassess such income and the provisions of this Act, shall, so far as may be apply accordingly as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment which only means that entire income would have escaped assessment, but for the income escaping assessment made under section 41 of the Act. We, therefore, hold that the assessment in this case, is in substance, one made under section 41(1) of the Act which is within time and is not barred by limitation. The next issue raised pertains to the claim of exemption as a charitable institution, under section 16 of the Act. We find from the Tribunal's order that the petitioner neither produced the original certificate of registration for claiming exemption under section 16 or the later order of the Deputy Commissioner, as claimed by him. It is further stated in the Tribunal's order that the petitioner has filed the return not as a charitab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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