Gordhandas Bhagawandas Charitable Trust, Salem V. ITO, Salem

CO 68/CHNY/2011

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7150 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 07-05-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 30-04-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 16-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V S JAYAKUMAR
• Assessee Lawyers: DR SIBENDU MOHARANA IRS
• Keywords: Capital asset; Charitable institution; Maximum Marginal Rate
• Section: 12AA; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER I.T.A. NO. 716/MDS/2011 ASSESSMENT YEAR : 2007-08 AND C.O.NO.68/MDS/2011 THE INCOME-TAX OFFICER, WARD-1(4), SALEM-7. VS. THE MANAGING TRUSTEE, GORDHANDAS BHAGAWANDAS CHARITABLE TRUST, 16-15, SAHADEVAPURAM, SALEM 636 007. PAN AAATG 2114 M (APPELLANT) (RESPONDENT/CROSS OBJECTOR) APPELLANT BY : DR. SIBENDU MOHARANA, IRS, CIT RESPONDENT BY : SHRI V.S.JAYA KUMAR, ADVOCATE DATE OF HEARING : 30 TH APRIL, 2012 DATE OF PRONOUNCEMENT : 7 TH MAY, 2012 O R D E R PER DR. O.K.NARAYANAN, VICE PRESIDENT THE APPEAL IS FILED BY THE REVENUE. THE RELEVANT ASSESSMENT YEAR IS 2007-08. THE CROSS OBJECTION IS FILED BY THE ITA 716 & CO 68/11 :- 2 -: ASSESSEE. THE APPEAL AND THE CROSS OBJECTION ARE D IRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) AT SALEM DATED 19.1.2011. THEY ARISE OUT OF THE ASSES SMENT COMPLETED UNDER SEC.143[3] READ WITH SEC.148 OF THE INCOME-TAX ACT, 1961. 2. THE ASSESSEE IS A TRUST ENJOYING REGISTRATION UN DER SEC.12AA. THE ASSESSEE FILED ITS RETURN FOR THE IM PUGNED ASSESSMENT YEAR AS NIL. 3. ON EXAMINATION OF THE ACCOUNTS OF THE ASSESSEE, THE ASSESSING OFFICER FOUND THAT THE ONLY MAJOR ACTIVIT Y CARRIED ON BY THE ASSESSEE TRUST IN THE RELEVANT PREVIOUS YEAR IS RUNNING OF A MARRIAGE HALL AGAINST COLLECTING OF RENT. THE SAID MARRIAGE HALL, THE ONLY PROPERTY OF THE ASSESSEE TRUST, WAS SOLD F OR ` 75 LAKHS ON 26.2.2007, FALLING WITHIN THE PREVIOUS YEAR. THE A SSESSEE CONSISTED OF TWO TRUSTEES, FATHER AND SON. THE ASS ESSING OFFICER FOUND THAT AS PER THE BALANCE SHEET A SUM OF ` 58,17,208/- WAS CREDITED IN SB ACCOUNT WITH UTI BANK OUT OF THE SAL E CONSIDERATION OF ` 75 LAKHS. ITA 716 & CO 68/11 :- 3 -: 4. THE ASSESSING OFFICER FOUND THAT THE SALE PROCEE DS OF THE PROPERTY WAS NOT INVESTED IN ACCORDANCE WITH SEC.11 (1A) AND ALSO THE ASSESSEE HAS NOT PAID ANY CAPITAL GAINS TAX. A S THE ASSESSEE HAS NOT INVESTED THE SALE PROCEEDS IN ANOTHER CAPIT AL ASSET NOR THE SALE PROCEEDS WERE APPLIED TOWARDS THE OBJECTS OF THE TRUST, THE ASSESSING OFFICER HELD THAT COMPUTATION OF CAPI TAL GAINS HAS TO BE MADE IN ACCORDANCE WITH SEC.11(1A). 5. HE ALSO OBSERVED THAT THE ASSESSEE HAS NOT FILED FORM 10 TILL THE COMPLETION OF THE ASSESSMENT AND, THEREFOR E, THE CLAIM OF EXEMPTION OF THE ASSESSEE IS AGAIN FETTERED BY SEC. 11(2). 6. WHEN THE ASSESSING OFFICER EXAMINED THE MINUTES OF THE TRUST, IT WAS FOUND THAT THE TRUST HAS RESOLVED TO SELL THIS PROPERTY FOR A PROPER AND VALUABLE CONSIDERATION AND INVEST THE SALE PROCEEDS IN PROPERTIES, WHICH ARE PRODUCTIVE, SO AS TO CARRY ON THE OBJECT OF THE TRUST IN A BETTER MANNER. THE ASSESS ING OFFICER FOUND THAT THE PURPOSE OF THE SALE OF PROPERTY BEIN G THE REASONS STATED IN THE RESOLUTION, THE ASSESSEE HAS DISPOSED OF THE SALE PROCEEDS IN A DIFFERENT MANNER. THE ASSESSEE HAS D ISPOSED OF THE SALE PROCEEDS BY WAY OF INTEREST FREE ADVANCES AND DEPOSITS ITA 716 & CO 68/11 :- 4 -: GIVEN TO OTHER TWO TRUSTS. HE FOUND THAT EVEN THIS DISPOSITION WAS SUPPORTED BY THE RESOLUTION OF THE TRUSTEES, THE EA RLIER RESOLUTION WAS NOT AT ALL CONSIDERED AT THAT POINT OF TIME. 7. FOR ALL THE REASONS STATED ABOVE, THE ASSESSING OFFICER HELD THAT THE ASSESSEE HAS VIOLATED THE RULES RELATING T O UTILIZATION AND MANAGEMENT OF TRUST FUND WITHIN THE MEANING OF SEC. 11(1A) AND ALSO AGAINST THE OBJECTS OF THE TRUST. HE ACCORDIN GLY, BROUGHT TO TAX THE SALE PROCEEDS AT THE MAXIMUM MARGINAL RATE. 8. IN FIRST APPEAL, THE COMMISSIONER OF INCOME-TAX( APPEALS) HAS HELD THAT ANY OF THE FINDINGS OF THE ASSESSING OFFICER IS NOT CORRECT AND ANYHOW THE ASSESSEE HAD KEPT THE AMOUNT S IN SB ACCOUNT AND FD ACCOUNT WHICH ARE HELD TO BE INVESTE D IN ACCORDANCE WITH THE PROVISIONS OF SEC.11(1A), IN VI EW OF THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. HINDUSTAN WELFARE TRUSTS (111 CTR 284). THE COMMIS SIONER OF INCOME-TAX(APPEALS) HAS ALSO FOUND THAT THE ASSESSE E HAD ALREADY INTIMATED THE ASSESSING OFFICER ABOUT ITS I NTENTION OF ACCUMULATION OF INCOME TOWARDS THE OBJECT OF THE TR UST AND SUBSEQUENTLY FILED FORM NO. 10 ON 28.1.2010. THE T RUST HAS NOT ITA 716 & CO 68/11 :- 5 -: DIVERTED ANY INCOME FOR REVENUE EARNING ACTIVITY. THE FUNDS AFTER WITHDRAWAL FROM THE BANK, WERE USED FOR DONATION OF ` 30 LAKHS TO A TRUST, M/S. MANASWINI FOUNDATION AND TO GIVE INTE REST FREE DEPOSITS TO ANOTHER TRUST, M/S. AVR SWARNAMAHAL EDU CATIONAL TRUST OF ` 49,50,000/- AND BOTH THOSE TRUSTS ARE REGISTERED U NDER SEC.12AA. THEREFORE, THE SALE PROCEEDS OF ` 75 LAKHS CANNOT BE BROUGHT TO TAX. THE COMMISSIONER OF INCOME-TAX(APP EALS), ACCORDINGLY DELETED THE ADDITION MADE BY THE ASSESS ING AUTHORITY. 9. IT IS AGAINST THE ABOVE THAT THE REVENUE HAS COM E IN APPEAL BEFORE US. 10. THE DETAILED GROUNDS RAISED BY THE REVENUE IN T HE PRESENT APPEAL READ AS UNDER : 2. THE C.I.T.(APPEALS) FAILED TO APPRECIATE THE I MPORT OF PROVISIONS OF SECTION 11 OF THE I.T.ACT FULLY. THE INCOMETAX ACT ENVISAGES THAT INCOME OF A PARTICULA R YEAR HAS TO BE UTILIZED TO THE EXTENT OF 85% DURING THE YEAR OR INVESTED AS PER THE PROVISIONS OF THE ACT A ND IF EITHER OF THE TWO IS NOT POSSIBLE THE TRUST HAS TO BE MAKE AN APPLICATION FOR ACCUMULATION WITH THE DEPARTMENT IN ITA 716 & CO 68/11 :- 6 -: FORM 10 BEFORE THE DUE DATE OF FILING OF THE RETURN STATING HOW IN SUBSEQUENT YEARS (UPTO 5 YEARS) THE IMPUGNED INCOME WILL BE UTILIZED OR APPLIED. THE C.I.T.(AP PEALS) ERRED IN GRANTING RELIEF TO THE ASSESSEE EVEN WHEN THE PROVISIONS OF SECTION 11 WERE VIOLATED BY THE ASSES SEE TRUST. 3. THE C.I.T.(APPEALS) ERRED IN APPRECIATING THE IMPORT OF SECTION 11(1A) OF THE ACT WHICH DEALS WIT H CAPITAL GAINS ARISING FROM SALE OF CAPITAL ASSET. THESE CAPITAL GAINS ARISING FROM TRANSFER OF A CAPITAL AS SET HELD BY TRUST ARE REQUIRED TO BE EITHER APPLIED FOR CHAR ITABLE PURPOSES DURING THE YEAR OR UTILIZED FOR ACQUIRING NEW CAPITAL ASSET. THE C.I.T.(APPEALS) ERRED IN GRANTI NG RELIEF TO THE ASSESSEE EVEN WHEN THE PROVISIONS OF SECTION 11(1A) WERE VIOLATED BY THE ASSESSEE TRUST. 4. THE C.I.T.(APPEALS) ERRED IN ACCEPTING BELATED FILING OF FORM 10 NEARLY 3 YEARS AFTER THE DUE DATE OF FILING OF RETURN FOR A.Y.2007-08 FOLLOWING THE DECISION OF C.I.T. VS. NAGPUR HOTEL OWNERS ASSOCIATION 209 ITR 441 ITA 716 & CO 68/11 :- 7 -: WITHOUT NOTICING THAT THIS DECISION HAS BEEN REVERS ED BY THE SUPREME COURT AND APEX COURT HAS HELD THAT FORM 10 HAS TO BE FILED BEFORE COMPLETION OF ASSESSMENT . THE C.I.T.(APPEALS) ERRED IN RELYING UPON THE CASE OF NAGPUR HOTEL OWNERS ASSOCIATION EVEN WHEN IT WAS REVERSED BY THE APEX COURT. THE CIT(A) HELD THAT F ILING OF FORM 10 AFTER 2 MONTHS OF THE ASSESSMENT ENABLED ASSESSEE TRUST TO ACCUMULATE INCOME ARISING IN FORM OF CAPITAL GAINS FOR UTILIZATION SUBSEQUENTLY IN THE F OLLOWING YEARS. 5. THE C.I.T.(APPEALS) ERRED IN TREATING DEPOSIT IN FIXED DEPOSIT WITH BANK AS INVESTMENT IN CAPITAL ASSET. THE C.I.T.(APPEALS) RELIED UPON THE DECISION OF C.I .T. VS. HINDUSTAN WELFARE TRUST 111 CTR 284(CAL.) IN SUPPOR T OF THIS. 6. WITHOUT PREJUDICE TO GROUND RAISED ABOVE, THE C.I.T.(APPEALS) FAILED TO APPRECIATE THAT DECISION OF HINDUSTAN WELFARE TRUST WAS RENDERED IN THE BACKGROUND OF DEDUCTION U/S 54E AND IN THAT CASE TH E ITA 716 & CO 68/11 :- 8 -: SALE PROCEEDS WERE DEPOSITED IN THE FIXED DEPOSIT I N THE SAME PREVIOUS YEAR IN WHICH THE CAPITAL ASSET WAS S OLD. THE FACTS OF THE PRESENT CASE ARE DISTINGUISHABLE. 7. THE C.I.T.(APPEALS) ERRED IN NOT FOLLOWING THE R ATIO OF TRUSTEES OF DR. SETHS CHARITABLE TRUST VS. I.T. O. 2 ITD 649(BOM) WHEREIN IT WAS HELD THAT COMMISSIONER WAS RIGHT IN REFUSING EXEMPTION AND BRINGING TO TAX THE UNUSED CAPITAL TO TAX WHEN THE CAPITAL GAIN WERE NO T REINVESTED IN ANOTHER CAPITAL ASSET WITHIN THE SAME ACCOUNTING YEAR EVEN THOUGH THE CAPITAL GAINS WERE RECEIVED JUST 3 DAYS BEFORE THE END OF THE ACCOUNTI NG YEAR. 8. THE C.I.T.(APPEALS) FAILED TO TAKE INCOME ACCOUN T THE FACT THAT DONATION GIVEN TO M/S. MAHESWARI FOUNDATION VIOLATED THE PROVISIONS OF SECTION 13(1) (D) AND ERRED IN GRANTING RELIEF U/S 11 OF THE ACT. 9. THE C.I.T.(APPEALS) ERRED IN TREATING THE LOAN GIVEN TO A.V.R. SWARNA MAHAL EDUCATIONAL TRUST WHIC H WAS NOT REGISTERED U/S 12AA OF THE INCOME-TAX ACT A T THE ITA 716 & CO 68/11 :- 9 -: TIME OF GIVING LOAN. EVEN OTHERWISE GIVING LOAN WO ULD NOT AMOUNT TO APPLICATION OF THE CAPITAL GAINS U/S 11(5) OF THE ACT. THE CIT (A) ERRED IN GRANTING RELIEF U/S 11 OF THE ACT. 11. WE HEARD DR. SIBENDU MOHARANA, THE LEARNED COMMISSIONER APPEARING FOR THE REVENUE AND SHRI V.S.JAYAKUMAR, THE LEARNED COUNSEL APPEARING FOR TH E ASSESSEE. 12. WE CONSIDERED THE FACTS OF THE CASE AVAILABLE O N RECORD. THE ASSESSEE IS A TRUST BY FATHER AND SON. THEY HA VE INVESTED THE TRUST MONEY IN CONSTRUCTING A KALYANA MANDAPAM. KALYANA MANADAPAM WAS BEING GIVEN ON RENT AND THAT WAS THE SOURCE OF INCOME OF THE TRUST. THERE IS NOTHING AVAILABLE WI TH THE ASSESSEE TO SHOW THAT THE INCOME SO EARNED BY LETTING OUT FR OM THE KALYANA MANDAPAM WAS UTILIZED FOR THE OBJECTIVES OF THE TRU ST. THE NOMINAL AMOUNT OF ` 9000/- IS STATED TO BE SPENT FOR CERTAIN CHARITABLE ACTIVITIES. THEREFORE, IT IS CLEAR THAT THE ASSESSEE HAS FAILED EVEN TO SHOW THAT THE INCOME OF THE TRUST EA RNED DURING THE RELEVANT PREVIOUS YEAR WAS APPLIED FOR CHARITABLE P URPOSES. THE SALE OF THE PROPERTY IS ANOTHER ISSUE. THE PROPERT Y WAS SOLD FOR ITA 716 & CO 68/11 :- 10 -: ` 75 LAKHS. IT IS TRUE THAT THE ASSESSEE HAS FILED F ORM NO.10 EVEN THOUGH BELATEDLY. IT IS ALSO TRUE THAT THE ASSESSE E HAD KEPT THE SALE CONSIDERATION IN TWO BANK ACCOUNTS ; SB ACCOUN T AND FD ACCOUNT AND THE ASSESSEE HAD DISPOSED OF THE FUNDS IMMEDIATELY AFTER THE SALE PROCEEDS EVEN THOUGH FALLING THE NEX T PREVIOUS YEAR. ALL THOSE MATTERS MAY NOT GO AGAINST THE ASSESSEE. 13. BUT THE CRUCIAL ISSUE IS THAT THE ASSESSEE HAS GIVEN A DONATION OF ` 30 LAKHS TO A TRUST, M/S. MANASWINI FOUNDATION. THERE IS NOTHING ON RECORD TO SHOW THAT THE OBJECTI VES OF THAT TRUST, M/S. MANASWINI FOUNDATION ARE THE SAME AS TH AT OF THE ASSESSEE TRUST. AN AMOUNT OF ` 49.50 LAKHS WAS GIVEN TO ANOTHER TRUST, M/S. AVR SWARNAMAHAL EDUCATIONAL TRUST AS IN TEREST FREE DEPOSITS/ADVANCES. IN THAT CASE ALSO THE QUESTION IS WHETHER THAT TRUST IS CARRYING ON THE SAME OBJECTIVES AS THAT OF THE ASSESSEE TRUST. IT IS OKAY. BUT THE QUESTION IS REGARDING THE GENUINENESS OF THE ACTIVITIES CARRIED ON BY THOSE TRUSTS. MERE RE GISTRATION UNDER SEC.12AA MAY NOT BE DECISIVE IN THE MATTER. 14. IF WE ARRANGE THE FACTS OF THE CASE IN A LOGICA L MANNER, THE PICTURE EMERGING OUT IS AS FOLLOWS: ITA 716 & CO 68/11 :- 11 -: FATHER AND SON DECLARED A TRUST AND THEY ARE THE ON LY TRUSTEES. THE ASSESSEE TRUST RUNS A MARRIAGE HALL AS INCOME EARNING ASSET. THE MARRIAGE HALL WAS LET OU T FOR RENT. NO OTHER CHARITABLE ACTIVITIES WERE TAKEN UP BY THE TRUST DURING THE RELEVANT PREVIOUS YEAR. THE TRUS T PASSES A RESOLUTION TO SELL THE PROPERTY TO RAISE F UNDS FOR INVESTING IN BETTER ASSETS TO EARN MORE INCOME SO THAT IT CAN CARRY ON ITS ACTIVITIES. THE PROPERTY WAS SOLD. THE EARLIER RESOLUTION WAS OVERLOOKED AND THE TRUST PASSES ANOTHER RESOLUTION STATING TO DONATE A SUM O F ` 30 LAKHS TO MANASWINI FOUNDATION AND THE BALANCE AMOUNT WAS GIVEN TO AVR SWARNAMAHAL EDUCATIONAL TRUST AS INTEREST FREE ADVANCES. THE MAIN PURPOSE OF SALE OF THE PROPERTY WAS TO REINVEST THE FUNDS SO T HAT THE ASSESSEE TRUST CAN CARRY ON CHARITABLE ACTIVITI ES IN A MORE MEANINGFUL WAY BUT WHEN THE FUNDS WERE GIVEN T O ANOTHER TRUSTS, THE ASSESSEE DE FACTO STOPPED ITS ACTIVITY. IT DOES NOT SPEAK WHAT EXACTLY IT WAS GO ING TO DO IN FUTURE. IT HAS ABANDONED ITS ACTIVITIES, BUT TO RETAIN THE COLOUR OF A CHARITABLE INSTITUTION, IT GIVES A PART OF THE ITA 716 & CO 68/11 :- 12 -: AMOUNT TO MANASWINI FOUNDATION AND THE OTHER PART AS INTEREST FREE ADVANCES TO AVR SWARNAMAHAL FOUNDATION TRUST. HERE ALSO THE PROPOSED CHARITABL E ACTIVITIES ARE NOT POINTED OUT BY THE ASSESSEE TRUS T. 15. THEREFORE, WE FIND, IN THE FACTS AND CIRCUMSTAN CES OF THE CASE THAT ALL THE TRANSACTIONS CARRIED OUT BY THE T RUST ARE ONLY TO SUBSERVE THE INTEREST OF THE TRUSTEES. THEREFORE, EVEN WITHOUT ASKING THE QUESTIONS OF REINVESTMENT OF THE SALE PR OCEEDS OR APPLICATION OF SALE PROCEEDS FOR CHARITABLE PURPOSE S, IT IS SEEN THAT THE ASSESSEE AS SUCH IS NOT A CHARITABLE INSTI TUTION AT ALL, EVEN THOUGH TECHNICALLY IT IS HAVING REGISTRATION U NDER SEC.12AA. THE ASSESSEE HAS FAILED IN THE FUNDAMENTAL TEST OF CARRYING ON CHARITABLE ACTIVITY. ONCE THE ASSESSEE HAS FAILED IN THE FUNDAMENTAL TEST, THE CASE OF EXEMPTION OF THE ASSE SSEE IS GONE FOR EVER AND THERE IS NO NEED EVEN TO GO TO THE PRO CEDURAL MATTERS. THE ASSESSEE IS NOT ENTITLED FOR ANY BENE FIT UNDER SEC.11 AT ALL. 16. THEREFORE, THE ASSESSING OFFICER HAS RIGHTLY BR OUGHT THE SALE CONSIDERATION TO TAX. IT IS NOT SURE THAT WHETHER THE SALE PROCEEDS ITA 716 & CO 68/11 :- 13 -: HAVE BEEN BROUGHT TO TAX AS REGULAR INCOME OR LONG TERM CAPITAL GAINS. THE ASSESSING OFFICER MAY LOOK INTO THIS MA TTER AND HE SHOULD ENSURE THAT THE SALE PROCEEDS NEED TO BE ASS ESSED AS CAPITAL GAINS EITHER AS SHORT TERM OR LONG TERM. 17. WITH THIS OBSERVATION, WE FIND THAT THE APPEAL FILED BY THE REVENUE IS TO BE ALLOWED. 18. IN THE CROSS OBJECTION, THE ASSESSEE HAS RAISED THE GROUND THAT THE COMMISSIONER OF INCOME-TAX(APPEALS) HAS NO T ADJUDICATED THE VALIDITY OF THE ASSESSMENT MADE UND ER SEC.143(3) READ WITH SEC.148 FOR THE IMPUGNED ASSESSMENT YEAR. IT IS THE CASE OF THE ASSESSEE THAT THE COMMISSIONER OF INCOM E- TAX(APPEALS) HAS FAILED TO NOTE THAT THE ASSESSING AUTHORITY HAS NOT SERVED ANY INTIMATION UNDER SEC.143(1) AS ALSO NO REFUND WAS ISSUED. IT IS THE CASE OF THE ASSESSEE THAT THERE IS NO ESCAPEMENT OF INCOME WARRANTING REOPENING OF THE ASSESSMENT, W HEN THE ORIGINAL RETURN WAS NOT ACTED UPON IN THE MANNER KN OWN TO LAW. ANOTHER GROUND RAISED BY THE ASSESSEE IS THAT THE A SSESSING OFFICER IS NOT CORRECT IN LAW IN STATING THAT FORM NO.10 OUGHT TO ITA 716 & CO 68/11 :- 14 -: HAVE BEEN FILED BY THE ASSESSEE TRUST, WHEN SUCH A REQUIREMENT IS NOT ENVISAGED UNDER SEC.11(1)(A). 19. REGARDING THE VALIDITY OF THE REOPENING OF THE ASSESSMENT, THE ANCHOR OF THE ARGUMENT OF THE ASSESSEE IS THAT THE ASSESSING AUTHORITY HAS NOT ACTED UPON THE RETURN IN ANY WAY UNDER SEC.143(1) AND, THEREFORE, NO NOTICE UNDER SEC.148 COULD HAVE BEEN ISSUED. A PLAIN READING OF THE STATUTE PROVID ES THAT THE AUTHORITY MAY ISSUE AN INTIMATION UNDER SEC.143(1) FOR THE REASON THAT THERE IS A LIMITATION OF PERIOD OF ONE YEAR TO SERVE INTIMATION UNDER SEC.143(1) AND WHAT HAPPENS IF NO SUCH INTIMA TION IS RECEIVED, IS NOT STATED IN THE STATUTE. IT MAKES I T CLEAR THAT THE ISSUE OF SUCH INTIMATION IS NOT MANDATORY. IN THE PRESENT CASE, SINCE THE TIME FOR ISSUING NOTICE UNDER SEC.143(2) LAPSED, THE ASSESSING AUTHORITY HAS ISSUED NOTICE UNDER SEC.148 . THE CASE OF NOT MAKING THE REFUND IS NOT A POINT TO BE CONSIDER ED HERE AS THE ASSESSEE COULD HAVE MOVED A PETITION BEFORE THE ASS ESSING OFFICER FOR THE REFUND. THE QUESTION OF LIMITATION IS TO BE CONSIDERED STRICTLY IN ACCORDANCE WITH THE PROVISIO NS OF STATUTE. THE ASSESSEE HAS FILED A RETURN, NO INTIMATION UNDE R SEFC.143(1) WAS GIVEN WITHIN A PERIOD OF ONE YEAR, THE TIME FOR ISSUING OF ITA 716 & CO 68/11 :- 15 -: NOTICE UNDER SEC,143(2) WAS ALREADY OVER AND IN SUC H CIRCUMSTANCES, THE ASSESSING AUTHORITY IS FULLY AUT HORIZED TO ISSUE NOTICE UNDER SEC.148. THEREFORE, THE CROSS OBJECTI ON FILED BY THE ASSESSEE IS REJECTED. 20. REGARDING FORM NO.10 ETC., AS WE HAVE DECIDED T HE ISSUE OF QUESTION OF APPLICABILITY OF SEC.11 ITSELF, SUCH QUESTION REGARDING FORM NO.10 BECOMES INFRUCTUOUS. 21. WE FIND THAT THE CROSS OBJECTION IS LIABLE TO B E DISMISSED. 22. IN RESULT, THE APPEAL FILED BY THE REVENUE IS A LLOWED AND THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON MONDAY, THE 07 TH OF MAY, 2012 AT CHENNAI. SD/- SD/- (CHALLA NAGENDRA PRASAD) JUDICIAL MEMBER (DR. O.K.NARAYANAN) VICE-PRESIDENT CHENNAI, DATED THE 7 TH MAY, 2012 MPO* COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR