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TMI Blog2014 (2) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore a liberal approach to have been adopted – Relying upon Trustees Of Tulsidas Gopalji Charitable And Chaleshwar Temple Trust Versus Commissioner Of Income-Tax [1993 (9) TMI 75 - BOMBAY High Court] – the issue has been decided on wrong basis – Decided against Revenue and in favour of Assessee. - I.T.A. No.32/Ahd/2013, I.T.A. No.2632/Ahd/2012 - - - Dated:- 28-6-2013 - Shri A. Mohan Alankamony And Shri Kul Bharat,JJ. For the Petitioner : Shri Sumit Kumar, D.R, For the Respondent : Shri A.C. Shah ORDER Per Shri Kul Bharat, Judicial Member :- These cross-appeals filed by the Revenue and the Assessee are directed against the order of the Commissioner of Income Tax (Appeals)- Gandhinagar, ('CIT(A)' for short) dated 10.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs.4,44,58,747/- which includes interest income not shown in Profit Loss account Rs.54,69,936/-. 4. At the outset, it was pointed out by the ld.counsel for the assessee that this issue is covered in favour of the assessee by the decision of Hon'ble ITAT "C" Bench in ITA No.1690/Ahd/2012 for AY 2006-07, dated 21/02/2013. This fact is not controverted by the Departmental Representative. In view of this submission, first ground of Revenue's appeal is dismissed. 5. The second ground of Revenue's appeal is against allowing accumulation of income of Rs.59,17,000/- under Explanation-2 of section 11. Ld.DR submitted that the assessee has not exercised option within the time as prescribed by law, therefore, the assessee is not entitled for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in writing before the expiry of the time allowed under sub-section (1) of section 139 for furnishing the return of income) be deemed to be income applied to such purposes during the previous year in which the income was derived; and the income so deemed to have been applied shall not be taken into account in calculating the amount of income applied to such purposes. The contention of the ld.counsel for the assessee is that the option has been exercised and he has drawn our attention towards page No.8 of paper-book and also drew our attention towards page Nos.9 10. In letter dated 22/09/2009, it has been brought to the notice of DDIT Gandhinagar for option exercised by the trust to allow to spend the surplus of Rs.59,17,600/- which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alization of assessment proceedings as has been decided in case of section 11(2) is therefore not available to the assessee. As it is an option which decides taxation of income in two years, it cannot but extend to after the return has been filed. It would, in a way, mean revising the return through back door which is not permissible. Even otherwise, the letter of extra accumulation was filed only in November-2011, when even the time of filing the revised return u/s.139(5) has elapsed. This could not be permitted to be admitted. Therefore, the assessee was allowed accumulation of income under Explanation(2) to Section 11, to the extent of Rs.59,17,600/-. We have considered all aspects of the matter. In the present case, there is no dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i (248 ITR 769)(J K) on the option under Explanation-2 to section 11(1) is directory in nature, therefore ld.CIT(A) ought to have taken a liberal view and ought not to have denied the claim of the assessee. Taking a consistent view in this appeal also, we therefore following our observation in ITA No.32/Ahd/20s13 and the ratio laid in the judgement(s) of Hon'ble High Court of Jammu and Kashmir rendered in the case of CIT vs. Ziarat Mir Syed Ali Hamdani (supra) and of Hon'ble Bombay High Court rendered in the case of Trustees of Tulsidas Gopalji Charitable Chaleshwar Temple Trust vs. CIT (supra), we allow the ground raised in ITA No.2632/Ahd/2012. 8. In the result, appeal of the Revenue is dismissed and that of assessee is allowed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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