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TMI Blog2015 (2) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Learned A.R. of the assessee and we also do not find any merit in the various grounds of the assessee because the same do not arise out of the order passed by the Assessing Officer u/s 154 of the Act. In proceedings u/s 154, the scope is very limited i.e. an apparent mistake can be rectified in an order passed u/s 154. Since the issue involved here is this that there is accumulation of income or not, it is not an apparent mistake in the assessment order and hence, the same cannot be disputed and decided in the proceedings u/s 154. - Decided against assessee. - ITA No. 763/LKW/2014 - - - Dated:- 7-1-2015 - Shri Sunil Kumar Yadav And Shri A. K. Garodia,JJ. For the Appellant : Shri S. C. Dixit, Advocate For the Respondent : Shri Vivek Mishra, C.I.T., D. R. ORDER Per A. K. Garodia, A.M. This is an assessee s appeal directed against the order passed by learned CIT(A)-I, Lucknow dated 18/09/2014 for the assessment year 2010- 2011. 2. The grounds raised by the assessee are as under: 1. BECAUSE the impugned orders dated 18.09.2014 and 17.05.2013 passed by the both authority against as per requirement provision of proviso 1st of clause (ii) of sub s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of ₹ 15,58,53,973/- at the end of the financial years 2002- 03. (b) Such an accumulated income remained utilized till financial year 2008-09 (relevant to the assessment year 2009-10) (c) Such unutilized accumulated income is chargeable to tax as per section 1 1(3)(C) in the precious year 2009- 10 and in subjecting the appellant to taxation on the said sum in the assessment year 2010-11, the year under appeal, by invoking the provisions of section 11(3)(C). 9. BECAUSE clause (C) of sub section (3) of section 11 merely refers to income remaining unutilized for the purpose for which it is so accumulated or set apart but the same being not covered by the charging part of sub section (3) given after clause (d) thereof, the appellant could not have been subjected to assessment on the said sum of ₹ 155853973/-. 10. BECAUSE on a correct and conjoint reading of sub section (2) (3) of section 11 of the Act. the surplus at the end of the financial year 2002-03 included surplus for earlier year also, stood fully utilized during the next five the Assessing Officer to hold that the sum remained unutilized by the end of the 5th year i.e. financial year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or fund or trust or institution has been rescinded. He submitted that in the present case, this requirement has not been fulfilled and therefore, assessment order passed by the Assessing Officer deserves to be quashed as void ab initio. He placed reliance on a judgment of Hon'ble Kerala High Court rendered in the case of CIT vs. Janatha Steel Mills P. Ltd. [2007] 294 ITR 668 (Ker) and on another judgment of Hon'ble Kerala High Court rendered in the case of CIT vs. Kesaria Tea Co. Ltd. [1998] 233 ITR 700 (Ker). 4. Learned D.R. of the Revenue supported the order of learned CIT(A). 5. We have considered the rival submissions. We find that in the assessment order passed by the Assessing Officer on 30/03/2013 u/s 143(3) of the Act, it is observed by the Assessing Officer that the assessee has not furnished the year-wise break-up of accumulated income of ₹ 52,00,45,745/- and therefore, he presumed that the entire accumulation of income is in respect of assessment year 2002-03 which should have been utilized till financial year 2008-09 and because the assessee has not utilized this accumulation, he has made addition of this amount. In Para 9 of the assessment order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings u/s 154. 7. Regarding this argument of Learned A.R. of the assessee that the Assessing Officer has not made assessment as per the proviso to section 143(3), we are of the considered opinion that as per the first proviso to section 143(3), the Assessing Officer cannot deny benefit u/s 10 without intimating the Central Government but we find that in the present case, the Assessing Officer has not made any addition on this basis. The Assessing Officer had made addition on the basis that there is violation of requirement of section 11(2) and 11(3). Hence, this argument of Learned A.R. of the assessee is not rendering any help to the assessee. As per the assessment order dated 30/03/2013, it is observed by the Assessing Officer that the assessee has not furnished year-wise break-up of accumulated income of ₹ 52,00,45,745/- and therefore, the Assessing Officer presumed that the same is accumulated income for assessment year 2002-03 and accordingly the same is chargeable to tax in the present year because the same remained unutilized till financial year 2008-09. The Assessing Officer also observed that the addition is open to rectification if the assessee furnished y ..... X X X X Extracts X X X X X X X X Extracts X X X X
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