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TMI Blog2015 (8) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, the assessee is raising this argument/contention that the case of the assessee should have been considered u/s 11 of the Act. Such a claim cannot be entertained in Misc. Application proceedings because the proceedings u/s 254(2) are in respect of any apparent mistake in the Tribunal order and when no such claim of exemption u/s 11 was raised by the assessee before the Assessing Officer or before CIT(A) or before the Tribunal, it cannot be said to be an apparent mistake in the Tribunal order. Hence, we do not find any merit in any of the Misc. Applications filed by the assessee. - Decided against assessee. - M. A. No.48,49,50,51/LKW/2015, I. T. A.No.724, 392, 391, 470/Lkw/2013, - - - Dated:- 13-8-2015 - SHRI SUNIL KUMAR YADAV AND SHRI A.K. GARODIA, JJ. For The Appellant : Shri Abhinav Mehrotra, Advocate For The Respondent : Smt. Swati Ratna, D. R. ORDER PER A. K. GARODIA, A. M. All these four Misc. Applications are filed by the assessee pointing out certain alleged mistake in the combined Tribunal order for assessment year 2005-06, 2006-07, 2008-09 and 2009-10. 2. All these Misc. Applications are identical and therefore, we reproduce the Misc. Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 10(23C)(iiiae) b. Dividend income is Exempt U/s 10(34) c. the assessee is NOT entitled to the benefit of Section 10(23C)(iiiae) over interest income. 8. It is a matter of fact that, during the course of arguments, the AR of the assessee, has submitted that the interest income may be reckoned for the purpose of computation under Section 11 as the entity is duly registered under Section 12A/12AA. This aspect of the matter has inadvertently escaped the attention of the Hon ble Tribunal. 9. The Hon ble Tribunal has observed as under it is noted by the Assessing Officer that although the assessee trust is registered u/s 12AA with effect from 03/02/82 but in the year under consideration, the assessee claimed exemption u/s lO(23C)(iiiae) and not u/s 11 as it was clarified in writing by the assessee. On this basis, the Assessing Officer held that claim of exemption u/s 11 cannot be considered. 10. That during the course of hearing, it was clarified by the AR of the assessee, that the assessee has indeed preferred his claim towards receipts from hospital under Section 10(23C)(iiiae) and not under section 12A/12AA and that there is no dispute to the aforementioned. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the maintainability/merits of an appeal, it must be deemed to be a mistake apparent from the record which can be rectified by the Tribunal by its subsequent order. E) It is settled position of Law, that there cannot be any Estopple against Law and hence the nonconsideration of the argument of the assessee, deserved to be corrected in these rectification proceedings. F) It is held by the Hon ble SC, in the case of Saurashtra Kutch Stock Exchange V Asst. Commissioner of Income Tax, reported at 305 ITR 227 that non-observation and consideration of the Orders of the Jurisdictional High Court and that of the Co-ordinate Bench of the Tribunal, constitutes mistake apparent from record and is rectifiable U/s 254(2) of the Act, which in the instant case is decision reported at 216 CTR 167. Prayer In the aforesaid facts and circumstances of the case, it is humbly requested that Your Honour be pleased to recall the above Order and hear the appeal of the assessee/department on this issue. Most respectfully submitted. 3. During the course of hearing of the Misc. Applications, same contentions were raised by Learned A. R. of the assessee as are contained in the Misc. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The assessee has also debited donation of ₹ 25.08 lacs and net excess of income over expenditure was ₹ 41.79 lacs. Thereafter, on page No. 5 of the assessment order, the Assessing Officer has reproduced income and expenditure account of Mumbai Liaison office as per which the credit of income side is ₹ 9.12 lacs consisting of bank interest, dividend income and profit on redemption of Mutual Fund and against this, various expenses are debited by the assessee including salary to administrative staff, printing and stationery, postage and telegram, telephone expenses, travelling expenses and financial aid to poor and indigents patients at ₹ 7,470/-. The Assessing Officer has allowed all other expenses except donation of ₹ 25 lacs and financial aid to poor and indigent patients at ₹ 7,470/- and worked out the income at ₹ 71,93,691/-. Now the question is whether the assessee is eligible for exemption u/s 10(23C)(iiiae) of the Act. Hence, we reproduce the provisions of relevant clause (iiiae) of section 10(23C), which is as under: (iiiae) any hospital or other institution for the reception and treatment of persons suffering from illness or m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding rejection of the claim of exemption of dividend. Ground No. 9, 10 and 11 are general. Hence, it is seen that the assessee has given in writing to the Assessing Officer that although the assessee trust is registered u/s 12AA with effect from 03/02/81 but the assessee has claimed exemption u/s 10(23C) and not u/s 11 of the Act. Even after this finding of the A.O. in the assessment order, no such ground was raised by the assessee before CIT(A) that the case of the assessee should be considered for exemption u/s 11 and no such appeal has been filed by the assessee before the Tribunal also because out of these 4 appeals, 3 appeals are filed by the Revenue and although an appeal was filed by the assessee for assessment year 2006-07, no such ground is raised by the assessee in that year also that the case of the assessee should be considered u/s 11 of the Act. Now by way Misc. Applications, the assessee is raising this argument/contention that the case of the assessee should have been considered u/s 11 of the Act. Such a claim cannot be entertained in Misc. Application proceedings because the proceedings u/s 254(2) are in respect of any apparent mistake in the Tribunal order and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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