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TMI Blog2020 (12) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee is only entitled to only 1% of the receipts and the balance money belongs to the State Government which is highly unjustified and uncalled for. 3. That on law, facts and circumstances of the case, the Worthy CIT(A) has erred in confirming the action of Ld. AO wherein he erred in treating Rs. 98.14 crores on account of interest income from FDRs as income of the assessee even when the said interest was not income of the assessee. 4. That on law, facts and circumstances of the case, the Worthy CIT(A) has erred in confirming the action of Ld. AO in not allowing the accumulation u/s 11(2) of the act. 5. That on law, facts and circumstances of the case, the Worthy CIT(A) has erred in confirming the action of Ld. AO wherein he did not condone the delay in filing Form 10 electronically even when the delay was with reasonable cause. 6. That the appellant craves leave for any addition, deletion or amendment in the grounds of appeal on or before the disposal of the same. 3. The Ld. Counsel for the assessee, at the outset, has submitted that the appeals of the assessee for earlier assessment years 2009-10, 201415 and 2013-14 have been decided by the Tribunal vide order co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies was identical as in earlier years appeal dealt with us above, with the assessee contending that the fund belonged to the state while the Revenue contending that it was a distinct and separate entity. In the impugned year, we find that the facts differ with the earlier years since, by virtue of a notification dated 05-04-13, amendments were made to the HDRUA Act, 1975, vesting the Fund to a Board. This Board, we have noted from the amendments made, was created as an entity distinct and separate from the State. This is evident from section 3AA of the HDRUA Act stating in clear terms the constitution of the Board on its incorporation as a body corporate having perpetual succession and common seal and power to acquire, hold and dispose off property and to contract and sue or be sued in its own name. Even the constitution of the Board, provided for in the said section, reflected that it was distinct from the State, by clearly showing that not all members were to be representative of the State and some members could be nominated by the State Government. The relevant provisions of the HDRUA Act stating so are reproduced hereunder for clarity: Section 3A (7) The Fund shall be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty referred to in clause (i) to concessionaire and to modify or rescind allotments, including the right and power to evict the allottees concerned on breach of any of the terms or conditions of such allotment; (iv) borrow and raise money in such manner as the Board may think fit and to secure the repayment of any money borrowed, raised or owing by mortgage, charge, standard security, lien or other security upon the whole or any part of the Board's property or assets (whether present or future), and also by a similar mortgage, charge, standard security, lien or security to secure and guarantee the performance by the Board of any obligation or liability, it may have undertaken or which may become binding on it; (v) constitute a professional multi-disciplinary Project Management Team and one or more Advisory Committee or Committees or Sectoral Sub-Committee or Project Implementation Sub-Committee, or engage suitable service providers or advisors or consultants to advise the Board for the efficient discharge of its functions; (vi) enter into and perform all such contracts as it may think necessary or pedient for performing any of its functions; and (vii) do such other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: 3AC. Functions and Powers of Board.-(1) The Board shall be the apex body for overall planning and development of infrastructure sector and infrastructure projects for the benefit of State of Haryana, subject to the limitations specified in sub-section (3). (2) The Board shall- (i) act as a nodal agency to co-ordinate all efforts of the Government regarding the development and implementation of infrastructure sectors and infrastructure projects for the benefit of State of Haryana, involving private participation and funding from sources other than those provided by State budget and shall,- (a) identify infrastructure projects for private participation; (b) promote competitiveness and progressively involve private participation while ensuring fair deal to the end-users; (c) identify and promote technology initiatives in urban development and infrastructure development sector for improving efficiency in the system; (d) identify bottlenecks in the infrastructure sectors and recommend to the Government policy initiatives to rectify the same; (e) select, prioritise and determine sequencing of infrastructure projects; (f) formulate clear and transparent po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral, Town and Country Planning Haryana, and is presently administered by a High Powered Committee constituted for the purpose for investment on major infrastructure projects and for the purpose of stimulating socio-economic growth for the benefit of State of Haryana. Owing to the increasing complexities involved in such infrastructure projects and in order to leverage the Fund available for structuring and implementation of larger infrastructure projects in Public Private Partnership, the Government has decided for setting up of Haryana Infrastructure Development Board (hereinafter referred as the Board) as a dedicated agency for encouraging private sector investment in infrastructure projects across all sectors through innovative development and financial structuring of infrastructure projects for implementation in Public Private-Partnership mode, viz., Build-Operate-Transfer, Build Own-Operate-Transfer, Joint Venture Agreement, concessionaire agreement, equity participation by State, subsidy support, incentivisation in form of tax exemptions, Viability Gap funding, Grant of Government guarantee, etc. The Section 3AA is accordingly proposed to be introduced for the constitution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... op of facts the Hon'ble Court held the assessee to be a mere nodal agency for executing a specific project and the Fund therefore not taxable in its hands.In the case of Saharanpur Development authority ,(supra) the Fund was found to have been received by the assessee from the Government of Uttar Pradesh to be utilized as per the directions of a High Powered Committee. The assessee was found to have no control over the utilization of the Funds and accordingly was held to be a mere nodal agency of the Government. 17. We therefore hold that the Fund vested in the Board which was an entity distinct and separate from the State and was also not a nodal agency of the State. In view of the same the receipts of IDC and interest on FDR's created from the IDC receipts are liable to tax under the Act. Ground No 1 & 2, agitating addition made on account of the same respectively, are therefore dismissed. 19. Ground No 3 is against the non allowance of benefit of accumulation of income as per section 11(2) of the Act. Briefly put ,the AO, after holding the IDC and IAC ( Infrastructure Augmentation Charges) receipts taxable as Revenue receipts of the assessee ,as opposed to capital re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act and the rules, for the AY 2014-15, only filing of Form 10 electronically was mandatory. However, the provisions that the Form 10 has to be filed before the due date for filing the return of income has been bought in Section 11 (2) and Rule 1 7 w.e.f 01.04.2016 only. Thus are not applicable to the year in hand. * The assessee for the year under reference has duly filed the Form 10 for accumulation of income before the AO during the course of assessment proceedings These facts have been admitted by AO in the assessment order. * It is well settled that if the assessee has filed the Form 10 during the course of assessment proceedings, the assessee cannot be denied the benefit of accumulation u/s 11(2) of the Income Tax Act. For this reliance is placed on the following judicial pronouncements:- * ADDITIONAL DIRECTOR OF INCOME TAX (EXEMPTION) vs. MANAV (2008) 20 SOT 0517 (Del) * MOTI RAM GOPI CHAND CHARITABLE TRUST vs. ADDITIONAL COMMISSIONER OF INCOME TAX (2013) 59 SOT 0197 (Delhi) * JOINT COMMISSIONER OF INCOME TAX vs. SEWA EDUCATION TRUST 27 ITR (Trib) 0292 (Agra) * V. RAMAKRISHNA CHARITABLE TRUST vs. DEPUTY DIRECTOR OF INCOME TAX (EXEMPTIONS)-II (2015) 155 ITD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee during assessment proceeding. The cases relied upon by the appellant are distinguishable on facts from the facts in the case of the appellant. In the case of the appellant, it is not only not furnishing of form 10 within time but also that the information given in the audit report in Form 10B regarding accumulation etc. were not in conformity with the details in the balance sheet. In Form 10, the assessee is under obligation to put forth the details of accumulation, the purpose for accumulation etc. before the assessing officer which has not been done in this case. The appellant has failed to satisfy the conditions prescribed under section 11(2) read with rule 17 of the IT Rules , 1962 and no specific objects for which benefit of accumulation has been sought has been mentioned. And therefore, A.O has rightly disallowed the benefits claimed u/s 11(2) of the Act. Assessing Officer has given detailed findings in the assessment order, the same are upheld. Grounds of appeal no 3 is therefore dismissed. Brief submissions in writing were also filed before us which are reproduced hereunder: Issue 5: (a) Denial of benefits of exemption u/s 11 by disallowing the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to the amendment carried out prior to 2016, whereas, as per the Rule 17 of the Income tax Rules, 1962 read with section 11(2) of the Income Tax Act w.e.f. 1.4.2016, the assessee to claim benefit of accumulation is required to file the form No.10 on or before the due date as specified u/s 139(1) of the Act for furnishing of return of income.
5. However, the Ld. Authorised Representative of the assessee has invited our attention to the relevant para Nos. 22 & 23 of the order dated 31.7.2020 (supra) to submit that the aforesaid contention has already been considered by the Tribunal and the issue has been decided in favour of the assessee in the light of various case laws. We find force in the above contention of the Ld. AR. In view of this, all the issues are covered by the order of the Tribunal in the own case of the assessee for assessment year 2014-15. Respectfully following the said decision and for the sake of consistency, ground Nos. 4 & 5 of the appeal are decided in favour of the assessee, whereas, ground Nos. 1 to 3 are decided in favour of the Revenue.
In the result, the appeal of the assessee stands partly allowed. Order pronounced on 24.08.2020 X X X X Extracts X X X X X X X X Extracts X X X X
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