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TMI Blog2023 (12) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... owed under Section 11(2). Insofar as the issue concerning the timing of the filing of Form No. 10 is concerned, i.e., in the course of reassessment proceedings, this stands covered by a decision of a coordinate Bench of this court rendered in Association of Corporation Apex Societies of Handlooms case [ 2013 (1) TMI 317 - DELHI HIGH COURT] Clearly, the respondent/assessee is not precluded from filing a revised Form No. 10 during reassessment proceedings. The record also shows that the appellant/revenue had carried the judgment rendered in Association of Corporation Apex Societies of Handlooms in appeal to the Supreme Court. The appeal preferred by the appellant/revenue, i.e., Civil Appeal 2020 (1) TMI 1664 - SUPREME COURT] was dismissed as withdrawn, on account of low tax effect. Given this position, according to us, no substantial question of law arises for our consideration. - HON'BLE MR. JUSTICE RAJIV SHAKDHER AND HON'BLE MR. JUSTICE GIRISH KATHPALIA For the Appellant Through: Mr Abhishek Maratha, Sr Standing Counsel. For the Respondent Through: None. RAJIV SHAKDHER, J.: (ORAL) CM Appl. 63256/2023 [Application moved on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee submitted its ROI and also filed objections to the reopening of the case. This time around, in the ROI filed, the respondent/assessee included the amount disbursed as advance for purchasing the subject property. 10. During the assessment proceedings, the respondent/assessee was asked to explain why the amount advanced had not been shown in the original ROI, and why the said amount should not taxed in the period under consideration. 11. The respondent/assessee, via its reply dated 30.03.2016, submitted before the AO that Rs. 5,85,00,000/- was received back in AY 2008-09 and that this amount was kept in a fixed deposit (FD) as per Section 11(5) of the Act. Furthermore, it stated that due to an inadvertent error, the respondent/assessee had failed to show this in its original ROI. The respondent/assessee also submitted that it had revised not only its ROI but also the audit report submitted in the prescribed form, i.e., Form No. 10. 12. However, via the assessment order dated 31.03.2016, the revised ROI and Form No. 10 were rejected by the AO. 13. Aggrieved by the order of the AO, the respondent/assessee filed an appeal before the Commissioner of Income Tax (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fifteen per cent of the income from such property; xxx xxx xxx (2) Where eighty-five per cent of the income referred to in clause (a) or clause (b) of sub-section (1) read with the Explanation to that sub-section is not applied, or is not deemed to have been applied, to charitable or religious purposes in India during the previous year but is accumulated or set apart, either in whole or in part, for application to such purposes in India, such income so accumulated or set apart shall not be included in the total income of the previous year of the person in receipt of the income, provided the following conditions are complied with, namely: ] (a) such person specifies, by notice in writing given to the Assessing Officer in the prescribed manner, the purpose for which the income is being accumulated or set apart and the period for which the income is to be accumulated or set apart, which shall in no case exceed ten years; (b) the money so accumulated or set apart is invested or deposited in the forms or modes specified in sub-section (5)]:] [Emphasis is ours] 17. A perusal of sub-section (2) of Section 11 would show that where 85% of the income refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to intimate to the assessing authority the particulars required, under rule 17 in Form No. 10 of the Rules. If during the assessment proceedings, the Assessing Officer does not have the necessary information, question of excluding such income from assessment does not arise at all. As a matter of fact, this benefit of excluding this particular part of the income from the net of taxation arises from section 11 and is subjected to the conditions specified therein. Therefore, it is necessary that the assessing authority must have this information at the time he completes the assessment. In the absence of any such information, it will not be possible for the assessing authority to give the assessee the benefit of such exclusion and once the assessment is so completed, in our opinion, it would be futile to find fault with the assessing authority for having included such income in the assessable income of the assessee. Therefore, even assuming that there is no valid limitation prescribed under the Act and the Rules even then, in our opinion, it is reasonable to presume that the intimation required under section 11 has to be furnished before the assessing authority completes the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on this portion of the finding of the Supreme Court to contend that during re-assessment proceedings, the said Form-10 could not be furnished by an assessee. However, we have to keep in mind the fact that while reopening of an assessment cannot be asked for by the assessee on the ground that he had not furnished the Form-10 during the original assessment proceedings, this does not mean that when the revenue re-opens the assessment by invoking Section 147 of the said Act, the assessee would be remediless and would be barred from furnishing Form-10 during those assessment proceedings. Consequently, insofar as the second question is concerned and with regard to the appeal No.s 524/2012, 525/2012 and 526/2012, the same has to be answered in favour of the assessee/appellant and against the revenue. However, with regard to the ITA No. 523/2012 because the Form-10 was filed only before the Tribunal, the question has to be decided, in that appeal, against the assessee and in favour of the revenue. [Emphasis is ours] 22. Clearly, the respondent/assessee is not precluded from filing a revised Form No. 10 during reassessment proceedings. 23. The record also shows that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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