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TMI Blog2017 (1) TMI 1449X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Assessment Year of 2004-05 when assessee actually spent the said sum, the claim made was to the extent of ₹ 79,54,625/-, as is borne out from the copy of statement of total income for Assessment Year 2004-05 placed in the Paper Book at pages 55 to 66. At the time of hearing, the learned representative pointed out that the claim of application of income to the extent of ₹ 79,54,625/- with respect to Assessment Year 2003-04 stands accepted in the assessment for Assessment Year 2004-05, which has been finalized u/s 143(3) of the Act dated 29.12.2006. Therefore, the furnishing of Form no. 10B at an understated figure of ₹ 75,78,521/- is ostensibly a mistake. Having regard to the entirety of facts and circumstances of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NGH, JUDICIAL MEMBER For The Assessee : Shri Ronak G. Doshi For The Revenue : Shri A.K. Kardam ORDER PER G.S. PANNU, AM : These are cross-appeals filed by the assessee and the Revenue against the order of CIT(A)-7, Mumbai dated 10.04.2015, pertaining to the Assessment Year 2003-04, which in turn has arisen from the order passed by the Assessing Officer dated 10.12.2010 under section 143(3) r.w.s 147 of the Income Tax Act, 1961 (in short the Act ). 2. The Grounds of appeal raised by the assessee and Revenue in their respective appeals are as under :- ITA No. 4221/Mum/2015 (Assessee s appeal) GROUND I: RE-OPENING OF ASSESSMENT IS INVALID 1. On the facts and in the circumstances of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the circumstances of the case and in law, the Ld CIT(A) erred in allowing the claim of the assessee for carry forward of the said loss, ignoring the fact that there was no express provision in the I T Act, 1961 permitting allowance of such claim. 3. The appellant prays that the order of the Commissioner of Income Tax (Appeals)-I, Mumbai be set aside and that of the Assessing Officer be restored. 3. In brief, the relevant facts are that the assessee is a charitable trust, which is registered u/s 12AA of the Act, and for Assessment Year 2003-04 it filed a return of income originally on 17.10.2003 declaring NIL income. In an assessment finalized u/s 143(3) of the Act dated 27.3.2006, the total income was determined at NIL. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of appeal. So however, with regard to the issue of set-off of carry forward of Long Term Capital Loss, the action of Assessing Officer has since been set-aside by the CIT(A), against which the Revenue is in appeal before us. In this manner, the rival counsels have been heard and the relevant material perused. 4. We may first take up the appeal of assessee with respect to the addition of ₹ 3,76,104/-. In this context, the relevant facts are that in the return of income, assessee had made a claim in terms of option available under Explanation-2(b) to Sec. 11(1)(a) of the Act of ₹ 79,54,625/-. In terms of the said claim, assessee exercised the option of accumulating and applying the said sum towards the objects of the Trust w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated in the Auditors report in Form no. 10B and, therefore, justified the disallowance. 7. We have carefully considered the rival submissions. In our considered opinion, the action of income-tax authorities is quite misconceived having regard to the facts and circumstances of the case, as our aforesaid discussion would show. In the present case, in the computation of income assessee claimed deduction of an amount of ₹ 79,54,625/- as application of money in terms of clause (ii)(b) of Explanation to Sec. 11(1) of the Act. It is also emerging that in the Audit report in prescribed Form no. 10B annexed with the return, said amount was shown as ₹ 75,78,521/-. The explanation of assessee is that the amount stated in Form no. 10B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) in assessee s own case for the instant assessment year dated 18.1.2007, wherein a similar issue was dealt with arising from the regular assessment framed by the Assessing Officer u/s 143(3) of the Act dated 27.3.2006. Before us, the learned representative for the respondent-assessee pointed out that in the original assessment proceedings, appeal of the assessee was allowed by the CIT(A) after receiving a Remand report from the Assessing Officer wherein such a claim was agreed to by the Assessing Officer. It has also been pointed out that against the order of CIT(A) dated 18.1.2007, which has since been followed by the CIT(A) now, the Department had not come in appeal before the Tribunal. 9. We find that the aforesaid factual matri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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