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TMI Blog2009 (1) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... April 11, 1955, quoted in Parekh Brothers v. CIT. Hence, it was the duty of the Assessing Officer to ask information from the assessee at the time of scrutiny but he has not asked any information before completing the assessment under section 143(3) of the Act. - 134 of 2007 - - - Dated:- 9-1-2009 - DEVI PRASAD SINGH and DR. SATISH CHANDRA JJ. D. D. Chopra for the appellant. Amit Sing Bhadauria and J. N. Mathur for the respondent. JUDGMENT The judgment of the court was delivered by DR. SATISH CHANDRA J. - This is an appeal filed by the Department under section 260A of the Income-tax Act, 1961, against the judgment and order dated June 29, 2007, passed by the Income-tax Appellate Tribunal, Lucknow, in Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 002, along with the audit report in Form No.10B was non est. The hon'ble Tribunal erred in granting exemption under section 11 of the Act to the assessee even though the assessee failed to comply with the provisions of the Act in letter and spirit. 4. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal erred in deleting the addition of Rs.67,28,272 shown as surplus as per the income and expenditure accounts relating to the two branches of the assessee-society ?" The brief facts of the case are that the assessee is a registered society registered under the Societies Registration Act, 1860, since November 12, 1991. It is running two branches of Lucknow Public School, one at A-Block and another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he addition of Rs.67,28,272 shown as surplus income. In appeal, first appellate authority has deleted the said addition which was confirmed by the Income-tax Appellate Tribunal by the impugned order. Not being satisfied, the Department is in the present appeal. 5. With this background, learned counsel for the appellant has submitted that as per sections 12A and 12B, the exemption under sections 11 and 12 are not available unless the assessee furnishes the audit report in Form l0B along with return where its income exceeds to Rs.50,000 as per the then law. In the original return filed on March 27, 2002, the assessee has not filed the audit report in Form l0B nor any exemption was claimed under section 11 of the Income-tax Act, so the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn under sub-section (1), or in pursuance of a notice issued under sub-section (1) of section 142, discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier Provided that where the return relates to the previous years relevant to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, the reference to one year afore said shall be construed as a reference to two years from the end of the relevant assessment year." 7. Lastly, he justified the order passed by the Assessing Officer. 8. On the other hand, learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 10(23C)(vi) since long but no decision was taken on this application by the competent authority in spite of the fact that 3-4 years have passed, so the assessee was under bona fide belief that the exemption might have been given under section 10(23C), so the assessee has filed original return where the claim for exemption under section 10(23C) was made. The original return was filed in Form 2D "Saral" where the limited information can be given with-out enclosures. For claiming the exemption, the necessary documents were required. So the assessee filed the second return in Form 3A after knowing that the exemption is not available under section 10(23C). In the second return, the assessee has claimed the exemption under section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC AC was treated as procedural in nature. The mistake was treated as a technical breach and the Assessing Officer was duty bound to ask for it before denying claim as observed in the following cases: CIT v. Gujarat Oil and Allied Industries [1993] 201 ITR 325 (Guj); and CIT v. Berger Paints (India) Ltd. (No. 2) [2002] 254 ITR 503 (Cal). 14. In the instant case, the Assessing Officer has not asked any information before denying the exemption for which the assessee was legally entitled. On the other hand, he has rejected the second return which was enclosed with the necessary documents for claiming the exemption. 15. The ratio laid down in Kumar Jagdish Chandra's [1996] 220 ITR 67 (SC), is not applicable in the instant case a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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