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TMI Blog2014 (12) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... is a trust registered under the Bombay Public Trust Act, 1950 by the Charity Commissioner of Maharashtra State. It is also registered under section 12A of the Income Tax Act. The objects of the trust remained unchanged. The scrutiny revealed that the corpus donation and its application, application of capital nature and claim of depreciation thereon and deficit are the issues which have cropped up and they will have the impact on the income of the Trust. The assessment was finalized on 20th September, 2009 making a change or variation in the income returned on account of; (a) donation of Rs. 5,66,68,898/- received from M/s. Shapoorji Pallonji Trust and in kind in the form of old age home, lift, furniture, EPBX System and kitchenware and cash of Rs. 73,803/towards corpus fund; (b) disallowance of depreciation of Rs. 1.16,26,771/-. The deficit of Rs. 9,96,83,553/- which was reduced to Rs. 3,13,87,884/- was not allowed to be carried forward. 4. The Assessee did not claim exemption under section 10(23C)(via) in the return where it claimed exemption under section 11. Therefore, for want of this exemption in the return of income the Assessing Officer was not empowered to entertain tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied itself and for the deduction that it claimed. Mr. Malhotra strenuously submitted that it is income derived from property held for charitable or religious purposes and which is the subject matter of section 11 whereas in terms of section 12 and particularly under section 12A the requirement or condition for applicability of section 11 and section 10(23C) has been set out. Subsection (1) of section 12A has been relied upon to urge that section 11 will not apply in relation to the income of any trust or institution unless the conditions stipulated therein have been satisfied. In the present case, the said conditions have not been fulfilled and that is why the Assessing Officer was right in his conclusion. Hence, the Appeal deserves admission. 8. Mr. Pardiwalla, on the other hand, brought to our notice the fact that the computation of income and as submitted before the Assessing Officer itself indicated that the hospital management had made applications from time to time for approval by the prescribed authority in the Form 56D to exempt the institution under section 10(23C) of the Income Tax Act. The applications were made from 1st April, 1998 upto 31st March, 2007. That is from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 that was exempting the hospital from assessment year 2000-2001 and onwards until withdrawn. A similar order was there in favour of the Trust dated 23rd August, 2004 for the assessment year 1999-2000. The Tribunal further found that this approval was duly intimated to the Assessing Officer by the Assessee's authorised representative by a letter dated 7th April, 2009. It is in these circumstances that the Tribunal proceeded to grant the relief. We do not think that any substantial question of law arises once the Tribunal took into account the peculiar facts. The facts peculiar to the Assessee would reveal that the Assessee had throughout maintained that it had obtained the approval from the competent authority exempting it under the relevant legal provision. The application was also made in that behalf. This led the Tribunal to hold that compliance with the legal provision was made by producing before the Assessing Officer the relevant order. During the pendency of the assessment proceedings by a communication the order which was dated 31st March, 2009 it came to be forwarded. In such circumstances, any larger question or wider controversy need not be addressed and decided. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax (Appeals) erred in law and facts by allowing exemption under section 10(23C)(via), when the assessee is not satisfying the conditions laid down in section 10(23C)(via), as far as income received by gift of Rs. 5,66,68,898/is concerned which is for old age home purpose, which is not covered under the activity covered under section 10(23C)(via)." 14. What we have found from perusal of the order passed by the Commissioner and equally by the Tribunal is that the conclusion of both essentially rests on the receipt of the order by the Assessee during the course of the assessment proceedings and referable to section 10(23C) (via) of the Income Tax Act. We do not see as to how the Revenue can make a complaint only by reading out ground Nos.2 and 3 from the memo of Appeal, copy of which is annexed at page 38 of the paper book. 15. In a decision rendered by the Hon'ble Supreme Court reported in AIR 1985 SC 973 in the case of Daman Singh and others V/s. State of Punjab and others, the Hon'ble Supreme Court has commented and rather strongly on the tendency of parties to urge before the Higher Court that a particular ground in the Petition or memo of Appeal was pressed but not c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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