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TMI Blog2015 (10) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... s incumbent on the ld. CIT(A) to have caused so after admitting the said Approval by way of additional evidence under rule 46A. Not only does he not do so, he also does not issue any finding qua the satisfaction or otherwise of those conditions, and proceeds, as afore-stated, on the basis of the matter being covered by the tribunal's order for the earlier years, and which is definitely not the case. The Revenue, on its part, has brought on record the copy of the order u/s.10(23C)(via) dated 31.12.2008 (for A.Ys. 1999-2000 to 2007-08) by the prescribed authority, refusing the approval there-under to the assessee, claiming it to have a bearing in the matter. The same, we observe, contains findings on the aspect of the surcharge @ 20% on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Revenue directed against the Order by the Commissioner of Income Tax (Appeals)-XXX, Mumbai ('CIT(A)' for short) dated 30.09.2008, allowing the Assessee's appeal contesting its assessment u/s.143(3) of the Income Tax Act, 1961 ('the Act' hereinafter) for the assessment year (A.Y.) 2005-06 vide order dated 31.12.2007. 2.1 This is the second round before the Tribunal. It shall be relevant to recount the background facts of the case. The assessee, a public trust, under the Public Trust Act, 1950, is registered as a charitable institution u/s.12A(a) of the Act. It functions through its two Wings, namely, a Hospital and a Research Centre; the latter being a notified research institution u/s.35(1)(ii) of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing its order for A.Y. 2001-02, which is a combined order for A.Ys. 1995-96 and 2001-02 (in ITA No. 3514/Mum/1999 and 2607/Mum/2005 respectively dated 03.07.2007) vide order dated 20.03.2013, which is again a combined order for A.Ys. 2005-06 and 2008-09 (copy on record). 2.2 The assessee subsequently moved an Application u/s.254(2) of the Act, contending that there had occurred a mistake apparent from record in the tribunal's order dated 20.03.2013 (supra) in-as-much as the tribunal had assumed that exemption u/s.10(21) was not an issue before the ld. CIT(A). The assessee had in fact furnished the extension of approval u/s. 35(1)(ii), i.e., beyond 31.03.2002, since granted, before the first appellate authority, and who had duly no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2008 (copy on record). The Revenue, on the other hand, would submit that the said issue is at large since the compliance of the conditions of approval u/s.35(1)(ii) had not been examined for their satisfaction, i.e., at any stage. Further and, in fact, placing a copy of the order u/s. 10(23C)(via) dated 31.12.2008 on record, it was claimed that the assessee's application for approval there-under stands since rejected, holding, after an analysis of the assessee's facts and figures, indicative of and including the manner of its functioning, that the assessee is not an institution existing solely for philanthropic purposes and not for profit and, accordingly, denied approval there-under vide the said order. 4. We have heard the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has not filed even audited Income Expenditure Account and Balance Sheet for this year. 3) On the facts, and in the circumstances of the case, and in law, the learned CIT(Appeals) erred in stating that the computation of the Assessing Officer is not correct in respect of income for assessment year 1995-96 after verifying from the audited accounts and Balance sheet of the assessee without allowing a reasonable opportunity to the Assessing Officer as provided in Rule 46A of the Income-Tax Rules, 1962.' The same stood accepted by the tribunal; the relevant part of its order dated 03.07.2007 reading as under: '17. We heard both sides in detail and considered the matter. The grounds no. 1, 2 3 raised by the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicability of s. 10(21). The same is subject to certain additions specified therein, and which have not been examined for their satisfaction by the A.O., being not furnished before him. It was thus incumbent on the ld. CIT(A) to have caused so after admitting the said Approval by way of additional evidence under rule 46A. Not only does he not do so, he also does not issue any finding qua the satisfaction or otherwise of those conditions, and proceeds, as afore-stated, on the basis of the matter being covered by the tribunal's order for the earlier years, and which is definitely not the case. The Revenue, on its part, has brought on record the copy of the order u/s.10(23C)(via) dated 31.12.2008 (for A.Ys. 1999-2000 to 2007-08) by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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