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TMI Blog2018 (6) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... verification by the AO. Even the claim of the assessee for exemption u/s 11 has been set aside by the Tribunal to the AO for deciding the same in the light of registration granted to the assessee u/s 12A with retrospective effect. We therefore restore the issue relating to disallowance u/s 43B to the file of the AO for deciding the same afresh after verifying the new claim made by the assessee that the provision of section 43B cannot be invoked in its case in the light of registration granted u/s 12A with retrospective effect. - ITA.Nos.1447 And 1448/Kol//2016 - - - Dated:- 6-6-2018 - Shri P.M.Jagtap, AM And Smt. Madhumita Roy, JM For The Appellant : Shri P.K.Srihari, CIT For The Respondent : Shri Samir Chakrabrty, Sr.Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by deleting the addition of ₹ 4,42,23,282/- under the head interest on Government loan on the ground that the same does not fall under the purview of section 43B of the Act. Further that whether the CIT(A) has erred in law by giving contradictory findings from that of the predecessor CIT(A) in assessee s own case thereby not following the proposition of judicial consistency. 5. The case of the assessee is this that it has debited ₹ 4,42,23,282/- in the profit and loss account under the head interest on loan. The assessee claimed that it is not carrying on any business activity and therefore the provision of section 28 to 44 of the Act is not applicable to it. The contentions of the assessee was not acceptable by the ld. AO s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rowing from any . public financial institution [ or a State financial corporation or a State industrial investment corporation], in accordance with the terms and conditions of the agreement governing such loan or borrowing [, or] [( e) any sum payable by the assessee as interest on any [term loan] from a scheduled bank in accordance with the terms and conditions of the agreement governing such loan [or advances],] [or] From the above it is clear that State Govt. is not covered under any clause of section 43B of the Act as public finance institution/ State financial corporation/ state industrial investment corporation or scheduled bank. State Govt. or Central Govt. are not covered under section 43B of the Act hence I accept the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ld. AR submitted before us that the assessee has been granted registration certificate u/s 12AA of the Act by an order dated 16.11.2016 passed by CIT(Exemption). Such registration was granted w.e.f. 01.04.2009. He further urged before us that the assessee was a local body constituted u/s 11 of the West Bengal Town and country planning and development Act 1979 engaged in the development activities. The income of the assessee was not taxable in terms of Article 289 of the Constitution of India as income of the assessee was the income of the state and therefore it is entitled for exemption. Whether the assessee is entitled to exemption has already been decided by the Coordinate Bench of this Tribunal in ITA No.1328/Kol/2012 and 500/Kol/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at similar issue arose in A.Yrs. 2004-05, 2006-07 and 2007-08 in ITA Nos. 1195,1996 and 1197/KoI/2007 dated 14.08.2015 wherein the Co-ordinate Bench remanded similar issue to the file of AO for fresh adjudication as per law. The Id. AR before us further submitted that no effective order has been passed by the AO till date and accordingly prayed to restore this ground of appeal to the file of AO for fresh adjudication. On the other hand, the Id. DR raised no objection and he agreed to the submission of Ld. AR. 5. We have heard the rival contentions of the parties and perused materials available on record. At the outset, we find that similar facts and circumstances and in the case of the assessee the Co-ordinate Bench of this Tribunal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the presumption that the assessee is not entitled for exemption u/s 11 of the Act. However, on perusal of the records we find that the Id. CIT (Exemption) has granted registration certificate u/s 12AA of the Act vide its order dated 16th November, 2016. It is also important to note that the registration was granted w.e.f .01.04.2009. In view of the above we find that the assessment order has been passed by the AO without considering the fact that the assessee is entitled for exemption u/s 11 of the Act as this fact has not been considered by the AO at the time of assessment. We are inclined to restore this ground of appeal to the AO for fresh adjudication as per law with the direction to frame the assessment u/s 143(3) of the Act de novo. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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