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TMI Blog2014 (12) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed within the stipulated time. 2.3 It is submitted that the failure on the part of the assessee to claim exemption was wilful and based on its conviction that they are not taxable entities. 2.4 Reliance is placed upon the decision of Apex Court in the case of Goetze (India) Ltd. Vs. CIT (284 ITR 323) which is delivered much later to the decision of Apex Court in the case of Jute Corporation of India Vs. CIT (187 ITR 688 (SC) which was relied upon by the CIT(A). 2.5 The CIT(A) ought to have appreciated that even a valid return filed in response to notice u/s.148 but beyond time limit allowed u/s.139(5) cannot uphold a fresh claim of the assessee as decided in the case of CIT Vs. Sun Engineering Works P.Ltd. (198 ITR 297)(SC). 2.6. The CIT(A) ought to have appreciated the fact that Department has not accepted the decision of the Hon'ble ITAT in ITA No.2118 & 2119/Mds/2010 dated 30.8.2011 and has filed appeal u/s.260A of the I.T. Act." 3. Counsel for the assessee at the time of hearing submits that the issue in appeal has been decided in favour of the assessee by this Tribunal in assessee's own case for the assessment years 2003-04 and 2004-05 in ITA Nos. 2118 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e went in appeal and the ld. (IT(A) partly confirmed the Assessing Officer's order. Being not satisfied, the assessee went in appeal before the Tribunal. 4. In the meantime, the assessee filed petition for registration u/s 12AA of the Act which was denied by the ld. (IT. But on further appeal, the Tribunal directed the ld. (IT to register the assessee u/s 12AA of the Act w.r.e.f. 2003-04. When the quantum appeals came for hearing before the Tribunal, again the assessment was set aside and restored to the file of the Assessing Officer for doing it afresh keeping in view the development between the earlier return and the passing of the order by the Tribunal Le. issue of registration had to be considered. The Assessing Officer issued notice for hearing. The assessee filed the revised return on 9.3.2009 for Assessment Years 2003-04 and 2004-05. The Assessing Officer examined the issue, heard the assessee and made it clear that the so called revised returns filed were not valid returns and assessee's claim u/s 11 and 12 of the Act will not be entertained. The assessee went to the Joint Director, Income-tax [Exemptions] for direction u/s 144 of the Act. The Joint Director][Exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not automatic and does not lead to exemption u/s 11 and 12 of the Act. The Assessing Officer has to examine each and every section before allowing exemption because the Tribunal has not given any relief as to whether the assessee was entitled to exemption u/s 11 and 12 of the Act or not. The ld. CIT had to confirm what are the objects of the trust and what are the activities carried on by the trust and that he cannot travel beyond that. In the registration certificate, it has been stated by the ld. CIT that it will not entitle the assessee to exemption u/s 11 and 12 of the Act and that it shall be independently considered by the Assessing Officer. The Assessing Officer has relied on several cases and has stated that the assessee cannot revise the return if there is no mistake or omission in the original return filed. The revised return in this case is an invalid return. The assessee has not complied with the pre-requisite condition for availing of exemption. The Assessing Officer has concluded that the assessee was not eligible for exemption u/s 11 of the Act and therefore, he disallowed the claim of the assessee u/s 11 of the Act. The assessee went to the ld. CIT(A). The ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es it clear that registration u/s.12A is a condition precedent for availing of benefit u/s.11 & 12 of the Act. Unless and until an institution is registered u/s.12A of the Act, it cannot claim benefit of section 11(1)(a) of the Act. He, therefore, submitted that as the registration was granted by the ld. CIT upon the direction of the Tribunal, therefore, the assessee filed original return' of income without claiming exemption u/s 11 and 12 of the Act. As the assessee was not having registration u/s 12A of the Act, it was not entitled to claim exemption u/ss 11 and 12 of the Act and, therefore, assessee did not get its accounts audited and file audit return along with original return of income. 7. The appeal against the original order passed by the Assessing Officer in the years under consideration came upto the Tribunal and vide order dated 23.5.2008 passed in ITA Nos. 1464 & 388/Mds/2007, the Tribunal set aside the matter for allowing exemption u/s 11 and 12 of the Act back to the file of the Assessing Officer to reframe and review assessment in the light of registration u Is 12AA of the Act granted to the assessee. He further relied on the decision of Hon'ble Madras High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment Year 2003-04. The Tribunal in the case of the assessee vide order dated 23.5.2008 in ITA Nos. 1464, 188, 182 and 839/Mds/2007 for Assessment Years under consideration restored the assessment back to the file of the Assessing Officer for reframing assessment in the light of the allowance of registration to the assessee u/s 12AA of the Act. In pursuance thereof, the A.O in the assessment made afresh on 29.12.2009 did not allow exemption u/s.11 and 12 of the Act on the ground that the claim was made for the first time in the revised return which was beyond the time and required audit report also was not filed. The CIT(A) in appeal there against allowed the claim of the assesse by observing as under:- "Hence I am satisfied that the ground raised by the appellant in this appeal is a bonafide one. In fact, the appellant had taken up this before the A.O. even during the course of assessment proceedings u/s.143(3) of the Act r.w.s 254 of the Act. Thus in consonance with the decision of the Apex court mentioned above and also in view of the registration u/s.12AA of the Act granted by the DIT(E)Chennai with retrospective effect from the assessment year 2003-04 the appellant had m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral public utility and since in view of the proviso to section 2(15) of the Act, the assessee lost its character of charitable organization and thereby not eligible for exemption under section 11 of the Act. Departmental Representative submits that assessee is treated as an AOP by the Assessing Officer rightly. Departmental Representative further submits that whether proviso to section 2(15) of the Act applies or is not decided by the Commissioner of Income Tax (Appeals). 9. Counsel for the assessee submits that gross payments are more than gross receipts during this assessment year and there is no taxable income at all. In such circumstances, the issue as to whether the assessee's activities fall under general public utility and the proviso to section 2(15) applies or not is only academic. The counsel further submits that since tax effect is Nil, the Revenue should not have filed any appeal in view of the circular No.3 of 2011 dated 9.2.2011. 10. Heard both sides. Perused orders of lower authorities. The assessee filed return of income for the assessment year 2009-10 on 29.9.2009 admitting Nil income. The return was processed under section 143(1) of the Act on 6.2.2011. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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