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TMI Blog2020 (2) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... nds dismissed. Interest u/s 234C was to be charged on returned income and not on assessed income. Non-receipt of refund - Assessee has disputed receipt of any refund, which Ld.AO is directed to verify. The Ld. AO is also directed to re-compute the income in terms of this order and determine correct tax liability / refund against the assessee. All these grounds stand allowed for statistical purposes. - I.T.A. No.917/Mum/2017 And I.T.A. No.823/Mum/2017 - - - Dated:- 5-2-2020 - Shri Mahavir Singh, VP And Shri Manoj Kumar Aggarwal, AM For the Assessee : Shri J.D. Mistry- Ld. Sr. Counsel For the Revenue : Shri Rahul Raman-Ld. CIT-DR ORDER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1.1 Aforesaid cross appeals for Assessment Year [in short referred to as AY ] 2012-13, contest the order of Ld. Commissioner of Income-Tax (Appeals)-1, Mumbai, [in short referred to as CIT(A) ], Appeal No. CIT(A)-I/E-II (55)/2015-16 order dated 02/11/2016. 1.2 The grounds raised by the assessee read as under: - 1. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) erred in confirming the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 10(23EA) of the IT. Act, even though the claim was not made by the assessee during the filling of return of income but as alternative at the appellate stage before CIT(A)? 2. Whether on the facts of the case and in law the Ld.ClT(A) erred in allowing the exemption under section 10(23EA) of the IT. Act, relying on decision of Id. CIT(A) in assessee's own case for A.Y. 2011-12 which was decided by relying upon decision of Hon'ble ITAT for A.Y. 2010-11, ignoring the fact that the Revenue has not been accepted the said decisions and filed an appeals before Hon'ble High Court / ITAT which is pending for adjudication. 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. 2. The Ld. Sr. Counsel, at the outset, placed on record the decision of this Tribunal in assessee s own case in cross appeals for AY 2011-12, ITA Nos.2359,2329/Mum/2016 order dated 19/12/2019 to submit that substantial issues have already been delved upon by the co-ordinate bench of this Tribunal and therefore, similar view may be taken in the matter. The Ld. Sr. Counsel submitted that facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he object of the assessee were duly verified and therefore, there would be no occasion to deny the exemption u/s 11 12. 3.5 However, the arguments could not find favor with Ld.AO who, in the final analysis held that the assessee was hit by the provisions of Section 13(1)(c)(i) as well as (ii) and therefore, exemption as claimed by the assessee u/s 11 12 was not available to it. 3.6 Another observation was that Sec. 10(23EA) provides for separate exemption to such investor protection fund and therefore, the assessee could not claim its residual income to be exempt u/s 11. Resultantly, the income of ₹ 59.68 Crores was brought to tax. 3.7 As an alternative, in the event of assessee being allowed exemption u/s 11 at a later stage by any appellate authority, Ld. AO noted that as per Form No. 10, the assessee claimed accumulation of an amount of ₹ 50.71 Crores without specifying the purpose of accumulation but it merely reproduced its objects in Form No.10 and therefore, the income to the extent of ₹ 50.71 Crores was to be treated as its income for the year. 3.8 It is quite discernible from the quantum assessment order that under both the computa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has not attained finality. Our Adjudication 5. Upon due consideration, we find that learned CIT(A) has merely followed its own order for AY 2011-12, which in turn, relied upon the decision of Tribunal for AY 2010-11. 6. We find that the appellate decision for AY 2011-12 was subject matter of cross-appeal before this Tribunal vide ITA Nos.2359 2329/M/2016 order dated 19/12/2019. The para-3 of the said order contains the final outcome of issues in AY 2010-11 wherein it has been noted that pursuant to the directions of Tribunal, Ld.AO passed an order giving effect on 08/08/2014 allowing relief under Section 11 and determining the income at Nil . In the meantime, the revenue challenged the order of ITAT before Hon ble Bombay High Court on the issue of claim of exemption u/s 10(23EA), which was dismissed vide ITA No.12170 of 2016 order dated 04/01/2019. Following the said decision of Hon ble Bombay High Court, the appeal of the revenue, on the issue of exemption u/s 10(23EA), was dismissed. Regarding assessee s appeal on denial of exemption u/s 11(2), the findings of Tribunal were as under: - 7. We have heard the rival submissions of both the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 11(2) of the Act. We also note that similar claim of the assessee has been allowed in the earlier years by the Revenue. The case of the assessee finds support from the decision of Hon ble Supreme Court in the case of CIT(E) vs. Bochasanwasi Shri Akshar Purshottam Public Charitable Trust (supra) wherein Hon ble Supreme Court while dismissing the SLP filed by the Revenue upheld the order of the Hon ble Gujarat High Court in which the Hon ble High Court has held that non specification of purpose for which the funds were accumulated by assessee trust under section 11(2) would not be fatal to the exemption claimed. In the case of BharatKalyan Prathistan vs. DDIT(E) (Delhi HC) 299 ITR 406 the Hon ble Delhi High Court has held that specification of certain purpose or purposes is needed for accumulations of the trust s income under section 11(2) of the Act however, the details of the purposes for which the income was accumulated need not be specified. We, further, note that the decision of Hon ble Kolkata High Court in the case of DIT(E) vs. Trustees of Singapore Charitable Trust as relied upon by the AO is distinguishable to the present case as in that case the trust has multiple ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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