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TMI Blog2015 (4) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in the total income of the previous year of the person / assessee. That may be a person who receives or derives income from property held under trust wholly for charitable or religious purposes. Thus, the income which is not to be included in computation of the total income is a matter dealt with by section 10 and by section 11 the case of an assessee who has received income derived from property held under trust only for charitable or religious purposes to the extent to which such income is applied to such property in India and that any such income is accumulated or set apart for application for such purposes in India to the extent of which the income so accumulated or set apart in computing 15% of the income of such property, is dealt with. Therefore, it is a particular assessee and who is in receipt of such income as is falling under clause (a) of sub-section (1) of section 11 who would be claiming the exemption or benefit. That is a income derived by a person from property. It is that which is dealt with and if the property is held in trust for the specified purpose, the income derived therefrom is exempt and to the extent indicated in section 11(1)(a) of the Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act ? B. Whether, on the facts and in the circumstances of the case and in law, the Hon'ble Tribunal was justified in holding that the entire foundation of section 11 is based on the premise that the income is otherwise chargeable to tax, which is not supported by the provisions of the Act ? C. Whether, on the facts and in the circumstances of the case and in law, the Hon'ble Tribunal was justified in granting exemption u/s. 10, when the same amounts to allowance of exemption within exemption whereby dividend income and long term capital gain derived from property held under trust but not applied for purposes of the trust is held to be exempt ? D. Whether, on the facts and in the circumstances of the case and in law, the Hon'ble Tribunal was justified in giving relief to the assessee in respect of ₹ 30 lakhs which was accumulated and set aside u/s. 11(2) of the Act but not utilized for the specified purpose within the stipulated period of five years ? E. Whether, on the facts and in the circumstances of the case and in law, the Hon'ble Tribunal was justified in giving relief to the assessee in respect of ₹ 30 lakhs which was accumulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson which may include a trust or an assessee before us, the exclusion in terms of section 10 would not apply. It is after such exclusions that the income from property held for charitable or religious purposes would have to be dealt with and in that amount the matters covered by section 11 would not be included. Therefore, when the words total income of the previous year of the person in receipt of the income have been used in both places, then, there was no scope for the Assessing Officer to arrive at the conclusion which he did. He was rightly corrected though his view was confirmed by the Commissioner of Income Tax (Appeals). The Tribunal's order does not give rise to the questions of law and particularly formulated as Questions (A) to (C). 5. In relation to the other three questions, Mr. Malhotra would submit that the Tribunal erred in holding that the Commissioner's direction to the Assessing Officer to reconsider the assessee's claims deserves to be set aside. The Commissioner had directed that the Assessing Officer should verify whether ₹ 30,00,000/- which was accumulated and set aside under section 11(2) was utilised for the specified purpose and withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s finding of the Assessing Officer is based only on reading of sections 10, 11, 12 and 13. In his view, if the provisions of section 11, 12, and 13 of the Income Tax Act are the governing provisions and relate to exemption claimed by charitable institutions, then, the assessee has no option to choose whether it wants to avail the exemption under section 10(33) or section 11 of the Income Tax Act, 1961. He relied upon a circular of 1968 issued by the Central Board of Direct Taxes. He also relied upon the language of section 11(1) and the expression total income defined in section 2(45) of the Income Tax Act, 1961, as the total amount of income computed in the manner laid down in this Act. The Assessing Officer was of the view that the word income used in section 11(1)(a) does not have the same meaning as has been specifically assigned to the expression total income vide section 8. Upon a perusal of the order of the Assessing Officer and that of the Commissioner upholding it, we are of the view that the Tribunal was correct in setting aside these concurrent orders. The language of the two sections is plain and clear. The provisions, namely, sections 10 and 11 fall under a Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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