The Sonhira Foundation for Rural Development, Pune V. Deputy Commissioner of Income-tax,

ITA 538/PUN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1003 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 1999-2000
• Appeal Filed On: 20-03-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Capital asset; Charitable institution; Validity of assessment; Revised return; Revenue expenditure; Reassessment proceedings
• Section: 80G; 147; 148; 12; 11

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . . , , ' # BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.538/PN/2014 '% % / ASSESSMENT YEAR : 1999-2000 THE SONHIRA FOUNDATION FOR RURAL DEVELOPMENT, BHARATI VIDYAPEETH BHAWAN, LAL BAHADUR SHASTRI ROAD, NAVIPETH, PUNE 411030 PAN NO.AAATT1648P . / APPELLANT V/S DCIT, CENTRAL CIRCLE-2(2), PUNE . / RESPONDENT / APPELLANT BY : SHRI NIKHIL PATHAK / DEPARTMENT BY : SHRI RAVIKANT GUPTA ERAJ JAIN & B / ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 20-12-2013 OF THE CIT(A) CENTRAL, PUNE RELATING TO ASSESSMENT YEAR 1999-2000. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A REGISTERED TRUST HAVING ITS REGISTERED OFFICE AT BHARATI VIDYAPEETH B HAWAN, LBS ROAD, PUNE. IT IS REGISTERED UNDER THE SOCIETIES REGISTRA TION ACT, 1960 ON 01-10-1988 AND UNDER BOMBAY TRUST ACT, 1950 ON 21 -11-1988 WITH THE CHARITY COMMISSIONER, PUNE. REGISTRATION U/S.12A(A) OF THE I.T. / DATE OF HEARING :26.08.2015 / DATE OF PRONOUNCEMENT:26.10.2015 2 ITA NO.538/PN/2014 ACT, 1961 WAS ALSO GRANTED BY THE CIT-1, PUNE ON 02-03 -1992. THE TRUST HAS ALSO BEEN GRANTED REGISTRATION U/S.80G. THE TRUST HAS ALSO APPLIED FOR RENEWAL OF 80G REGISTRATION UNDER I.T. ACT, 196 1 ON 02-09- 2004. NOTICE U/S.148 WAS SERVED ON THE ASSESSEE ON 31 -03-2006 AFTER RECORDING REASONS. HOWEVER, NO RETURN WAS FILED WITHIN THE STIPULATED TIME. ON 02-08-2006 NOTICE U/S.142(1) WAS ISSUED FOR FILING TH E RETURN OF INCOME AND THE ASSESSEE WAS DIRECTED TO APPEAR ON 2 9-08-2006 FOR THE ASSESSMENT PURPOSE WHICH WAS ALSO NOT COMPLIED WITH. SUBSEQUENTLY, THE CASE WAS TRANSFERRED AND FRESH NOTICE U/S.142(1) WAS ISSUED BY THE NEW ASSESSING OFFICER. FINALLY THE RETURN O F INCOME WAS FILED ON 13-12-2006 DECLARING LOSS OF RS.17,62,802/- AFTER CLA IMING EXEMPTION OF RS.28,25,578/- AS EXEMPTION U/S.11 OF THE I.T. ACT. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTED THAT ALTHOUGH THE ASSESSEE HAS FILED THE RETURN OF INCOME FOR T HE IMPUGNED ASSESSMENT YEAR, HOWEVER, NO AUDITED ACCOUNTS HAVE BEE N SUBMITTED. NO DECLARATION IN FORM NO.10 R.W. RULE 17 OF THE I.T. RULES, 1961 HAS BEEN FILED FOR ENABLING THE DEPARTMENT TO VERIFY THE GENUIN ENESS OF THE TRUST WITH REGARD TO THE INCOME/RECEIPT OF ANY KIND OR IT S APPLICATION FOR THE OBJECTS OF THE TRUST OR THE ACCUMULATION OF THE SUR PLUS IN MANNER PRESCRIBED U/S.11 OF THE I.T. ACT. NO RETURNS HAVE BEEN FILED FOR THE SUBSEQUENT YEARS ALSO. 4. FROM THE VARIOUS DETAILS FURNISHED BY THE ASSESSEE TH E AO NOTED THAT THE TRUST HAS TOTAL FUNDS OF RS.1,32,37,720/- AS ON 3 1-03-1999 AFTER EXPENDITURE OVER ALL THE EARLIER YEARS FOR THE OBJEC TS OF THE TRUST. THE INCOME AND EXPENDITURE ACCOUNT FOR THE YEAR SHOWS THAT THE TOTAL REVENUE EXPENDITURE ON THE ESTABLISHMENT AND RUNNING OF THE TRUST IS MERELY RS.20,278/- WHICH INCLUDES AUDIT FEES OF RS.500/- AN D 3 ITA NO.538/PN/2014 CONTRIBUTION FEES RS.17,447/-. DURING THE RELEVANT PREVIOUS YEAR, THE TRUST HAS CLAIMED TO HAVE SPENT RS.8,05,300/- ON OBJECTS OF THE TRUST WHICH INCLUDES EDUCATIONAL EXPENSES OF RS.2,95,200/-, MEDICAL R ELIEF RS.10,000/- AND SOCIAL HELP RS.5,00,000/-. NO CAPITAL ASSET OR INFRASTRUCTURAL SET UP IN THE FORM OF BUILDING ETC OR MANPOW ER DEPLOYMENT HAS BEEN CREATED DESPITE ADEQUATE FUNDS IN T HE COFFER. THERE IS NO EVIDENT PROGRAMME/PLAN/SCHEME OR POLICY IN PL ACE TO SHOW AS TO HOW THE AVAILABLE FUNDS ARE PROPOSED TO BE UTILIZED TO MEET THE OBJECTS OF THE TRUST. 5. FROM THE VARIOUS DETAILS FURNISHED BY THE ASSESSEE, TH E AO NOTED THAT THE ASSESSEE HAS CLAIMED TO HAVE RECEIVED VOLUNTAR Y CONTRIBUTIONS IN CASH AMOUNTING TO RS.20.75 LAKHS. IT WAS EXPLAINED THAT THESE DONATIONS ARE COLLECTED WITH A SPECIFIC DIRECTION BY THE DON EES AS PART OF THE DEVELOPMENT FUNDS AND THESE AMOUNTS ARE COLLECTED T HROUGH VOLUNTEERS OF THE TRUST. IT WAS STATED THAT THESE VOLU NTEERS ARE PROVIDED WITH PRINTED COUPONS IN DENOMINATION RANGING FROM RS.5/- T O RS.1000/-. THE COLLECTED CASH AMOUNTS FROM THE RURAL AR EAS ARE HANDED OVER BY THE VOLUNTEERS AND SOCIAL WORKERS TO TH E TRUST AUTHORITIES WHENEVER THEY COME TO PUNE WHICH IS DEPOSITE D IN THE BANK ACCOUNT AND APPLIED IN FIXED DEPOSITS. IT WAS ARGUED TH AT THERE WAS NO NEED FOR MAINTAINING THE DETAILS OF IDENTITY AND ADDRESS OF S UCH DONOR CONTRIBUTING TO THE DEVELOPMENT FUND. 5.1 THE AO NOTED THAT THE ASSESSEE TRUST HAS NOT IDEN TIFIED EVEN ANY OF THE ALLEGED VOLUNTEERS, WHO HAVE BEEN APPOINTED OR AUT HORIZED TO COLLECT THE DONATIONS IN RURAL AREAS NOR THE VILLAGES OR PLA CES FROM WHERE THE DONATIONS HAVE BEEN COLLECTED IS IDENTIFIED. THERE ARE NO ACTIVITIES CARRIED OUT BY THE ASSESSEE TRUST WHEREBY LAR GE NUMBER OF 4 ITA NO.538/PN/2014 RURAL POPULATION WOULD GATHER FOR SUCH ACTIVITIES AND WILL BE IN A POSITION TO PAY SUCH DONATION TO THE VOLUNTEERS AFTER U NDERSTANDING THE OBJECTS AND ACTIVITIES OF THE TRUST. THE TRUST HAS NOT MADE ANY ARRANGEMENT FOR THE DONORS TO MAKE OFFERINGS. THE AO FU RTHER NOTED THAT EVEN IF IT IS PRESUMED THAT THE DONATIONS HAVE BEEN RECEIVED AGAINST THE COUPONS, IN DENOMINATION OF RS.5/- TO RS.1,000/ - AND CONSIDERING THAT THE AVERAGE DONATION PER PERSON WOULD BE RS.50/- WHICH WILL REQUIRE CONTRIBUTIONS FROM ABOUT 41,400 PERSONS T O COLLECT RS.20.70 LAKHS AND ABOUT 4000 VOLUNTEERS AND AS MANY VILLA GES TO APPROACH AND COLLECT FROM 100 VILLAGERS. ACCORDING TO THE AO WHERE MORE THAN 50% OF THE RURAL POPULATION IS ILLITERATE, THE WRITIN G ON THE PRE-PRINTED COUPONS ALLEGEDLY SUPPLIED BY THE TRUST TO S UCH VOLUNTEERS HARDLY MAKES ANY SENSE. THE COLLECTIONS COULD NOT BE CA LLED VOLUNTARY OR WITH A DIRECTION TO BE TOWARDS THE DEVELOPMENT FUND. THE ASSESSEE TRUST HAS NOT SHOWN ANY EXPENSES IN ITS BOOKS TOWARDS THE PRINTING OF SUCH COUPONS WITH PRE-PRINTED DIRECTION FOR THE DEVELOPME NT FUND OR PRODUCED SUCH BILLS/VOUCHERS EVIDENCING THE EXPENDITURE. HE, THEREFORE, HELD THAT THE TRANSACTIONS ARE NOT GENUINE. T HE AO REFERRED TO THE SEARCH ACTION U/S.132 ON 20-07-2005 CARRIED OUT IN THE CASE OF SHRI R.K. SHINDE, ACCOUNTS MANGER OF BHARATI VIDYAPEETH GR OUP OF TRUSTS AND INSTITUTIONS, PUNE. DURING SUCH SEARCH CASH A MOUNTING TO RS.3,14,83,870/- WAS FOUND AND SEIZED ALONG WITH LOOSE PAPER S IN THE FORM OF SLIPS CONTAINING NAMES OF THE ASPIRING STUDENTS, MARK S OBTAINED IN CLASS-12 AND THE CASH AMOUNT PAID OR WILLING TO PAY FOR THE ADMISSIONS IN VARIOUS COURSES. 6. SHRI SHINDE IN HIS STATEMENT RECORDED U/S.132(4) HAD AD MITTED THAT THE CASH SO FOUND FROM HIS OFFICE CABIN BELONGED TO TH E BHARATI VIDYAPEETH, PUNE AND THE SAME WAS RECEIVED BY HIM AS AD MISSION 5 ITA NO.538/PN/2014 COMMISSION FROM TIME TO TIME. HE HAD FURTHER ADMITTED IN HIS REPLY TO QUESTION NO.7 THAT THE TOTAL AMOUNT MIGHT HAVE ACCUMULAT ED IN ADDITION TO THE REGULAR FEES OF RS.2 CRORES AND ACCORDING TO HIS KNOWLEDGE THAT AMOUNT MIGHT HAVE BEEN DEPOSITED IN THE BANK IN BUILDING FUND ACCOUNT OR TRUST ACCOUNT. 7. THE AO FURTHER OBSERVED THAT THE OTHER CIRCUMSTANT IAL EVIDENCES INDICATED THAT BHARATI VIDYAPEETH IS NOT MAKING CHARITY O R EDUCATIONAL SERVICE BUT MAKES PROFIT BY GIVING SEATS AFTER TAKING CASH OVER AND ABOVE THE AUTHORIZED FEES. IT WAS FURTHER FOUND THAT T HE SAID UNACCOUNTED MONEY WAS DIVERTED TO THE CONCERNS/TRUST S LIKE ASSESSEE TRUST FOR OTHER REASONS. IN VIEW OF THE ABOVE, THE AO R EJECTED THE CLAIM OF ASSESSEE REGARDING THE SOURCE AND NATURE OF CASH RE CEIPTS DEPOSITED IN THE BANK CLAIMED TO BE VOLUNTARY CONTRIBUTIONS U/S.11(1)(B ) AND TREATED THE SAME AS UNEXPLAINED INCOME OF THE ASSESSEE. SIMILARLY, THE AO NOTED THAT THE ASSESSEE TRUST HAS CLAIMED CERTAIN E XPENDITURE IN CONNECTION TO THE OBJECTS OF THE TRUST. FROM THE VARIO US DETAILS FURNISHED BY THE ASSESSEE, HE OBSERVED THAT ASSESSEE H AD GIVEN RS.2,95,300/- TO SHRI SHRIPATRAO KADAM COLLEGE FOR GIVING AWA RDS TO STUDENTS. AN AMOUNT OF RS. 5 LAKHS HAS BEEN SHOWN AS M EDICAL RELIEF TO CERTAIN INDIVIDUALS. HE OBSERVED THAT THOSE EXPENSES ARE NOT DIRECTLY CONNECTED TO THE OBJECTS OF THE ASSESSEE TRUST. THE VARIOUS OTHER EXPENDITURE CLAIMED BY THE ASSESSEE TRUST WAS DISBELIEVED BY THE AO WHO HELD THAT THE TRUST IS NOT GENUINE AND ITS INCOME AN D EXPENDITURE ARE ALSO NOT GENUINE. HE, THEREFORE, HELD THAT THE RECEIP TS CLAIMED TO BE FROM DONATIONS HAS TO BE TREATED AS INCOME AND HE DISA LLOWED THE EXPENDITURE. THUS, THE AO MADE ADDITION OF RS.20,70,000/- S HOWN BY THE ASSESSEE AS VOLUNTARY CONTRIBUTION AND HE DISALLOWED EXPENDITURE 6 ITA NO.538/PN/2014 OF RS.8,05,300/-. IN EFFECT HE MADE ADDITION OF RS.28,75,300/- TO THE RETURNED LOSS OF RS.17,62,800/-. 8. BEFORE CIT(A) THE ASSESSEE APART FROM CHALLENGING THE A BOVE TWO ADDITIONS CHALLENGED THE VALIDITY OF REOPENING OF ASSESSMENT U/S.147 THROUGH ADDITIONAL GROUND. THE ASSESSEE HAD ALSO TAKEN THE SECOND ADDITIONAL GROUND WHICH RELATES TO THE REQUIREMENT OF FILING OF FORM NO.10 AND THE THIRD ADDITIONAL GROUND PERTAIN TO A LOAN ST ATED TO HAVE BEEN GIVEN TO BHARATI VIDYAPEETH, PUNE. 9. SO FAR AS THE VALIDITY OF ASSESSMENT U/S.147 IS CONCERN ED THE LD.CIT(A) UPHELD THE ACTION OF THE AO. THE LD. COUNSEL FOR THE ASSESSEE DURING THE HEARING OF THE APPEAL ALSO DID NOT PRESS FOR TH E ABOVE GROUND. THEREFORE, WE ARE NOT CONCERNED WITH THIS ISSUE. 10. SO FAR AS THE GROUND RELATING TO DENIAL OF BENEFIT OF E XEMPTION U/S.11 FOR NON SUBMISSION OF FORM NO.10 ALONG WITH RETURN OF INCOME IS CONCERNED, IT WAS ARGUED THAT FORM NO.10 CAN BE FILED A T ANY TIME DURING THE ASSESSMENT PROCEEDINGS OR EVEN BEFORE THE A PPELLATE AUTHORITIES. FOR THE ABOVE PROPOSITION THE ASSESSEE TRU ST RELIED UPON THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF HASTIMAL SANCHETI RESEARCH FOUNDATION VIDE ITA NO.225/PN/2008 OR DER DATED 26-03-2010 FOR A.Y. 2004-05. IT WAS ARGUED THAT AS TH ERE WAS NO ASSESSMENT U/S.143(3) IN THIS CASE AND ACTION U/S.148 WAS THE ONLY ASSESSMENT, THERE WAS NO OCCASION TO SUBMIT FORM NO.10 IN ANY OTHER PROCEEDINGS. IT WAS ARGUED THAT WHEN THE AO DECIDED TO TAX THE COUPON DONATIONS AS THE INCOME OF THE ASSESSEE THAT THE QUEST ION OF FILING FORM NO.10 AROSE SINCE OTHERWISE THE ASSESSEE TRUSTS INCOME FOR THE YEAR WAS NIL AND AS SUCH THERE WAS NOTHING TO BE ACCUMULA TED. IT WAS ACCORDINGLY ARGUED THAT FORM NO.10 FILED BEFORE THE CIT(A) D URING 7 ITA NO.538/PN/2014 APPEAL PROCEEDINGS BY THE ASSESSEE SHOULD BE CONSIDERED PROPER COMPLIANCE FOR THE PROVISIONS OF SECTION 11(2). 11. ON THE BASIS OF THE ARGUMENTS ADVANCED BY THE ASS ESSEE THE LD.CIT(A) CALLED FOR A REMAND REPORT FROM THE AO. AFTER CON SIDERING THE COMMENTS OF THE ASSESSEE AND THE REMAND REPORT OF THE AO, THE LD.CIT(A) HELD THAT IT IS NOT THE RATIO EMERGING FROM ANY O F THE DECISIONS CITED BY THE ASSESSEE THAT FORM NO.10 CAN BE FILED BEFORE THE CIT(A) OR ANY AUTHORITY OTHER THAN THE AO. HE ACCORDINGLY REJEC TED THE CLAIM OF ASSESSEE TRUST THAT FORM NO.10 CAN BE FILED BEFORE THE APPELLATE AUTHORITIES AND ACCORDINGLY REJECTED THE BENEFIT OF ACCUM ULATION OF INCOME TO THE ASSESSEE. THE LD.CIT(A) ALSO REJECTED THE CONTENTION OF THE ASSESSEE THAT THE DONATIONS RECEIVED AMOUNTING RS.2 0,70,000/- WERE TOWARDS THE CORPUS OF THE TRUST AND THEREFORE AR E EXEMPT U/S.11 AND 12 OF THE I.T. ACT. 12. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : THE FOLLOWING GROUNDS ARE TAKEN WITHOUT PREJUDICE T O EACH OTHER - ON FACTS AND IN LAW, 1] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE RE ASST. U/S. 147 WAS VALID WITHOUT APPRECIATING THAT THE REOPENING U/S. 148 WAS INVALID IN LAW AND HENCE, THE REASST. SHOULD HAVE BEEN DECLARED NULL AND VOID. 2] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE DO NATIONS RECEIVED BY THE ASSESSEE OF RS.20,70,000/- WERE NOT ENTITLED TO EXEMPTION U/S 11 AND 12. 2.1] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE HAD RECEIVED VOLUNTARY DONATIONS TOWARDS THE CORPUS OF THE TRUST AND HENCE, THE TOTAL AMOUNT OF DONATIONS RECEIVED WERE EXEMPT U/S 11(1)(D) AND ACCORDINGLY, NO ADDITION WAS WARRANTED. 2.2] WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE ASSE SSEE SUBMITS THAT EVEN IF THE DONATIONS RECEIVED ARE NOT TREATED AS TOW ARDS THE CORPUS OF THE TRUST, THE SAME COULD NOT BE TAXED AS AN INCOME OF TH E ASSESSEE SINCE THE ASSESSEE WAS ENTITLED TO EXEMPTION U/S.11 8 ITA NO.538/PN/2014 3] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ASSE SSEE WAS NOT ENTITLED TO CLAIM EXEMPTION U/S. 11 SINCE FORM NO. 10 WAS NOT FILED BY THE ASSESSEE ALONG WITH THE RETURN. 3.1] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT SIMPLY BECAUSE THE ASSESSEE HAD NOT FILED FORM NO. 10 ALONG WITH THE RETUR N, THERE WAS NO REASON TO DENY THE EXEMPTION U/S. 11 PARTICULARLY BECAUSE THE ASSESSEE HAD FILED THE FORM NO. 10 IN THE APPELLATE PROCEEDINGS. 3.2] THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT IN THE ORIGINAL RETURN FILED BY THE ASSESSEE, THERE WAS NO INCOME WHICH WAS TO BE ACCUMULATED AND HENCE, THE ASSESSEE HAD NOT FILED FORM NO. 10 ALONG WITH THE RETURN AND AS THE SAME WAS FILED IN APPELLATE PROC EEDINGS, THE EXEMPTION U/S. 11 SHOULD HAVE BEEN ALLOWED. 4] THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND O R DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 13. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS GROU ND OF APPEAL NO.1 FOR WHICH THE LD. DEPARTMENTAL REPRESENTATIVE HAS NO OBJECTION. ACCORDINGLY, THE SAID GROUND IS DISMISSED AS NOT PRESSED. 14. SO FAR AS THE REMAINING GROUNDS ARE CONCERNED, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS A PART OF BHARATI VIDYAPEETH GROUP. THE SEARCH TOOK PLACE AT THE PREMISE S OF MR. R.K. SHINDE ON 20-07-2005 WHO WAS THE ACCOUNTS MANAGER OF BHARATI VIDYAPEETH GROUP. NO SEARCH WAS CONDUCTED EITHER ON B HARATI VIDYAPEETH OR ANY OF THE TRUSTEES. AFTER THE SEARCH WA S CONDUCTED ON MR. SHINDE, THE CASE OF THE ASSESSEE WAS REOPENED. HE S UBMITTED THAT THE REGISTRATION GRANTED EARLIER U/S.12A OF THE I.T. ACT H AS NOT BEEN WITHDRAWN. THEREFORE, THE ASSESSEE, WHEN FILED THE RETURN, TREATED THE COUPON DONATIONS RECEIVED FROM THE PUBLIC AS CORPUS DONA TION. HE SUBMITTED THAT AS PER PROVISIONS OF SECTION 11 THE ASSES SEE HAS TO SPEND 85% OF THE INCOME FOR CHARITABLE PURPOSES. ONLY W HEN SUCH EXPENDITURE IS LESS THAN 85% OF THE TOTAL RECEIPTS, THE AS SESSEE IS REQUIRED TO FILE FORM 10. SINCE THE ASSESSEE HAS FILED THE R ETURN PRIOR TO THE DATE OF SEARCH CONSIDERING THE DONATIONS AS CORPUS DONATION, THERE 9 ITA NO.538/PN/2014 WAS NO REQUIREMENT OF FILING OF FORM 10. THE AO DID NOT CONSIDER IN THE REASSESSMENT PROCEEDINGS THE COUPON DONATIONS TOWARDS CORPUS AND DIRECTLY MADE THE ADDITION THAT TOO WITHOUT CONFRONTING T HE ASSESSEE. THE ASSESSEE FILED FORM 10 BEFORE THE CIT(A) WITH A REQUES T TO GRANT AN OPPORTUNITY TO ACCUMULATE SUCH INCOME FOR NEXT 5 YEARS. 15. HE SUBMITTED THAT THE LD.CIT(A) WITHOUT APPRECIATING T HE FACTS PROPERLY HELD THAT FORM 10 CANNOT BE SUBMITTED IN APPE AL PROCEEDINGS. FURTHER, ACCORDING TO HIM, BHARATI VIDYAPEETH BEING A LEAD ING EDUCATIONAL INSTITUTION, HAS COLLECTED HUGE DONATIONS IN THE GUISE OF CAPITATION FEE. HE ACCORDINGLY HELD THAT SUCH COUPON DON ATIONS WILL NOT BE ELIGIBLE FOR EXEMPTION U/S.11. HE FURTHER HELD THAT ALTHOU GH THE AO HAS NOT MADE ADDITION U/S.68 AND SINCE THE AMOUNT HAS A LREADY BEEN GRANTED AS RECEIVED BY THE ASSESSEE TRUST, THERE IS NO QUESTION OF ANY ADDITION OF THE SAME AMOUNT BEING MADE ONCE AGAIN. HOWEV ER, SINCE THE SOURCE OF THE FUNDS HAS NOT BEEN ESTABLISHED TO BE FROM VOLUNTARY CONTRIBUTIONS (DONATIONS) THE AMOUNT WILL NOT BE ELIGIBLE FOR EX EMPTION U/S.11 AND 12. 16. REFERRING TO THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE VIDE ITA NO.857PN/2011 ORDER DATED 31-12-2012 FOR A.Y. 2 006-07 HE SUBMITTED THAT THE TRIBUNAL HAS HELD THAT SUCH DONATION CANNOT BE TREATED AS CORPUS DONATION. 17. HE SUBMITTED THAT SINCE THE ASSESSEE TRUST IS NOT IN EDUCATION, THEREFORE, COLLECTING CAPITATION FEE IS NOT POSSIBLE. AS REGAR DS THE FINDING OF THE CIT(A) THAT FORM 10 CANNOT BE FILED DURING A PPEAL PROCEEDINGS THE LD. COUNSEL FOR THE ASSESSEE DREW THE A TTENTION OF THE BENCH TO THE ORDER OF THE TRIBUNAL CITED (SUPRA) AND SUBM ITTED THAT THE TRIBUNAL AFTER CONSIDERING VARIOUS DECISIONS HAS ALLOWED TH E EXEMPTION 10 ITA NO.538/PN/2014 U/S.11 WHICH WAS EARLIER DENIED ON ACCOUNT BELATED FILING OF FORM 10 BY THE ASSESSEE. 18. REFERRING TO THE DECISION OF HONBLE GUJARAT HIGH COUR T IN THE CASE OF CIT VS. MAYUR FOUNDATION REPORTED IN 274 ITR 56 2 HE SUBMITTED THAT THE HONBLE HIGH COURT IN THE SAID DECISION HAS HELD THAT PROCEEDINGS BEFORE THE TRIBUNAL ARE MEANT TO CORR ECTLY ASSESS THE TAX LIABILITY OF ASSESSEE. IF THIS BE SO IT FOLLOWS THAT ASSESS MENT PROCEEDINGS CANNOT BE SAID TO BE COMPLETE BUT ARE PEND ING TILL THE APPEAL IS HEARD AND DISPOSED OF BY THE TRIBUNAL AND THE O RDER OF THE TRIBUNAL HAS GIVEN EFFECT TO BY THE ASSESSING AUTHORITY BY COMPUTING CORRECT TAX LIABILITY OF AN ASSESSEE. IN OTHER WORDS WHER E THE ASSESSEE IS REQUIRED TO PAY TAX OR BECOMES ENTITLED TO, A REFUND W OULD BE ASCERTAINED BY THE ASSESSING AUTHORITY AFTER GIVING EFFECT TO THE ORDER OF THE TRIBUNAL. 19. REFERRING TO THE DECISION OF THE PUNE BENCH OF THE T RIBUNAL IN THE CASE OF M/S. MATESHWARI DEVELOPERS VS. ITO AND VICE VERSA VIDE CONSOLIDATED ORDER DATED 30-01-2015 FOR A.YRS. 2005-06 A ND 2006-07 HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION HAS H ELD THAT THOUGH AN AUDIT REPORT IN FORM 10CCB CAN BE FILED DURING APPEAL PROCEEDINGS AS THE SAME ARE CONTINUATION OF ASSESSMENT PROCEEDINGS. THEREFORE, WHEN THE ASSESSEE HAS FILED THE FORM 10 BEFORE THE CIT(A) THE CIT(A) SHOULD NOT HAVE REJECTED THE SAME. 20. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER H AND HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED THAT THE SOCALLED DONATIONS SHOWN BY THE ASSESSEE ARE ACTUALLY NOT DONA TIONS BUT CAPITATION FEE RECEIVED IN THE GUISE OF DONATIONS. FURTHER, NOWHERE IT IS MENTIONED THAT FORM 10 CAN BE FILED BEFORE APPEAL PROCEED INGS. THE 11 ITA NO.538/PN/2014 TRIBUNAL HAS NOT STATED SO. HE ACCORDINGLY SUBMITTED TH AT THE ORDER OF THE CIT(A) BEING IN ACCORDANCE WITH LAW SHOULD BE UPHELD A ND THE GROUNDS RAISED BY THE ASSESSEE SHOULD BE DISMISSED. 21. THE LD. COUNSEL FOR THE ASSESSEE IN HIS REJOINDER REFE RRED TO COPIES OF FEW DONATION RECEIPTS AND SUBMITTED THAT THE B ONAFIDENESS OF THE DONATIONS SHOULD NOT BE DOUBTED. REFERRING TO THE COPY OF THE ORDER OF THE TRIBUNAL IN THE CASE OF PATANGRAO KADAM PR ATISHTHAN VIDE ITA NO.289 & 312/PN/2011 ORDER DATED 31-12-2012 FOR A .Y. 2006-07 HE SUBMITTED THAT THE TRIBUNAL HAS ALREADY ANSWERED THE ISSUE IN FAVOUR OF THE ASSESSEE. THEREFORE, THERE SHOULD NOT BE A NY DISPUTE REGARDING THE SAME. 22. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOT H THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIO US DECISIONS CITED BEFORE US. THE ONLY DISPUTE THAT REQUIRES OUR AD JUDICATION IN THE VARIOUS GROUNDS OF APPEAL IS REGARDING THE DENIAL OF EXEMP TION U/S.11 AND 12 TO THE DONATIONS RECEIVED BY THE ASSESSEE AMOU NTING TO RS.20,70,000/- AND THE ADMISSIBILITY OF FORM 10 FILED BEFORE THE CIT(A) INSTEAD OF FILING THE SAME BEFORE THE AO ALONG WITH RETURN OF INCOME. 23. SO FAR AS THE COUPON DONATION OF RS.20,70,000/- IS CON CERNED, WE FIND AN IDENTICAL ISSUE HAD COME UP BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2006-07 VIDE ITA NO.857/PN/ 2011 AND THE TRIBUNAL VIDE ORDER DATED 31-12-2012 HAS HELD THAT SUCH DONATIONS CANNOT BE CONSIDERED AS CORPUS DONATIONS. HO WEVER, IT HAS BEEN HELD THAT EXEMPTION U/S.11 IS ALLOWABLE ON SUCH DONAT IONS. THE RELEVANT OBSERVATION OF THE TRIBUNAL AT PARA 11.1 AND 11.2 READ AS 12 ITA NO.538/PN/2014 UNDER : 11.1 AFTER HEARING BOTH THE SIDES WE FIND THE ABOVE GROUNDS ARE IDENTICAL TO THE GROUND OF APPEAL NO.2 TO 2.2 IN THE CASE OF P ATANGRAO KADAM PRATISHTHAN VIDE ITA NO.289/PN/2011 FOR A.Y. 2006-07 . WE, VIDE OUR ORDER OF EVEN DATE HAVE DISCUSSED THE ISSUE AND HELD AS U NDER : 19. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE AO & CIT(A) AND THE PAPER B OOK FILED ON BEHALF OF THE ASSESSEE. SINCE THE COUPON DONATION RECEIPTS DO NO T CONTAIN THE COMPLETE ADDRESS OF THE DONORS, THE NAME OF THE RECIPI ENT ON BEHALF OF THE TRUST AND THERE IS NO WRITTEN DIRECTION BY THE DONOR TO TREAT THE DONATION TOWARDS CORPUS OF THE TRUST, THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT SUCH DONATIONS CANNOT BE CONSIDERED AS CORPUS DONA TIONS. HOWEVER, THE ALTERNATE SUBMISSION OF THE LEARNED COUNSEL FOR TH E ASSESSEE THAT THE SAME SHOULD BE CONSIDERED AS REVENUE RECEIPTS IS ACCEPTAB LE. SINCE IN THE PRECEEDING PARAS WE HAVE HELD THAT THERE IS NO VIOLAT ION OF PROVISIONS OF SECTION 11(5) R.W.S. 13(1)(D) AND ALSO HELD THAT EXEMP TION U/S.11 CANNOT BE DENIED FOR LATE FILING OF FORM NO.10, THEREFORE, SIN CE THE DONATIONS ARE TREATED AS REVENUE RECEIPTS, IT DOES NOT MAKE ANY DIFF ERENCE. WE, THEREFORE, HOLD THAT EXEMPTION U/S.11 IS ALLOWABLE ON SUCH DONATI ONS. THE GROUNDS BY THE ASSESSEE ARE DECIDED ACCORDINGLY. 11.2 SINCE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THE FACTS OF THE CASE CITED ABOVE, THEREFORE, FOLLOWING THE SAME RATIO, TH E ABOVE GROUNDS BY THE ASSESSEE ARE ALLOWED. 24. SINCE IN THE INSTANT CASE ALSO THE COUPON DONATIONS DO NOT GIVE THE COMPLETE DETAILS OF THE DONORS NOR THERE ANY DIRECTIO N TO TREAT SUCH DONATIONS AS TOWARDS ANY PARTICULAR PURPOSES/CORPUS OF THE TRUST, THEREFORE, FOLLOWING THE DECISION CITED (SUPRA) WE HOLD THAT SU CH DONATION CANNOT BE CONSIDERED AS CORPUS DONATION. HOWE VER, THE SAME IN OUR OPINION CAN BE CONSIDERED FOR EXEMPTION U/S.11. WE HOLD AND DIRECT ACCORDINGLY. 25. SO FAR AS THE ISSUE RELATING TO BELATED FILING OF FORM 10 IS CONCERNED WE FIND THE TRIBUNAL IN ASSESSEES OWN CASE VID E ITA NO.857/PN/2011 ORDER DATED 31-12-2012 FOR A.Y. 2006-07 HAD CONSIDERED SUCH ISSUE AND HAS HELD AS UNDER : 8. GROUNDS OF APPEAL NO.4 TO 4.6 BY THE ASSESSEE RELATE S TO DENIAL OF EXEMPTION U/S.11 ON ACCOUNT OF BELATED FILING OF FOR M NO.10 BY THE ASSESSEE. 13 ITA NO.538/PN/2014 8.1 AFTER HEARING BOTH THE SIDES WE FIND THE ABOVE GR OUNDS ARE IDENTICAL TO GROUNDS OF APPEAL NO.3 TO 3.6 IN THE CASE OF PATA NGRAO KADAM PRATISHTHAN VIDE ITA NO.289/PN/2011 FOR A.Y. 2006-07 . WE, VIDE OUR ORDER OF EVEN DATE HAVE ALLOWED THE CLAIM OF THE ASSE SSEE BY HOLDING AS UNDER : 12. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE P APER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND THE AO TREATED THE APP LICATION IN FORM NO.10 FOR ACCUMULATION U/S.11(2) AS NOT VALID BECAUSE IT WAS FILED LATE AND NOT ALONG WITH THE RETURN OF INCOME AND FURTHER IT WAS FILED BEFORE HIM AND NOT BEFORE THE CIT. WE FIND THE LEARNED CIT(A) UPH ELD THE ACTION OF THE AO ON THE GROUND THAT THE FORM NO.10 WAS NOT FILED BY T HE ASSESSEE ALONG WITH THE RETURN OF INCOME. FURTHER, IT WAS ACCOMPANIED B Y A RESOLUTION DATED 03-05-2007 FOR APPLICATION OF INCOME AND THE RESOLUT ION SHOULD HAVE BEEN PASSED BEFORE THE DUE DATE FOR FILING THE RETURN OF I NCOME. HE FURTHER OBSERVED THAT THE ASSESSEE HAS FILED SUCH FORM NO.10 DURI NG REASSESSMENT PROCEEDINGS. DISTINGUISHING THE VARIOUS DECISIONS HE UPH ELD THE ACTION OF THE AO. IT IS THE SUBMISSION OF THE LEARNED COUNSEL FO R THE ASSESSEE THAT THE ASSESSEE HAD FILED THE RETURN OF INCOME CLAIMING THE CO UPONS DONATION AS CORPUS DONATION NOT CHARGEABLE TO TAX. IT WAS ONLY W HEN THE AO DURING ASSESSMENT PROCEEDINGS OPINED THAT SUCH DONATION WILL BE TREATED AS REVENUE RECEIPT, THE ASSESSEE FILED FORM NO.10 DURING T HE ASSESSMENT PROCEEDINGS. IT IS ALSO THE SUBMISSION OF THE LEARNED C OUNSEL FOR THE ASSESSEE THAT FORM NO.10 FILED BEFORE THE COMPLETION OF ASSESSMENT IS VALID AND SHOULD BE ACCEPTED. 12.1 WE FIND THE HONBLE SUPREME COURT IN THE CASE O F CIT VS. NAGPUR HOTEL OWNERS ASSOCIATION REPORTED IN 247 ITR 201 (SC) HAS OBSERVED AS UNDER : IT IS ABUNDANTLY CLEAR FROM THE WORDING OF SUB-SECTIO N (2) OF SECTION 11 THAT IT IS MANDATORY FOR THE PERSON CLAIMING THE B ENEFIT OF SECTION 11 TO INTIMATE TO THE ASSESSING AUTHORITY THE PARTICULA RS REQUIRED, UNDER RULE 17 IN FORM NO. 10 OF THE RULES. IF DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER DOES NOT HAVE THE NECE SSARY INFORMATION, QUESTION OF EXCLUDING SUCH INCOME FROM ASSESSMENT DOES NOT ARISE AT ALL. AS A MATTER OF FACT, THIS BENEFI T OF EXCLUDING THIS PARTICULAR PART OF THE INCOME FROM THE NET OF TAXAT ION ARISES FROM SECTION 11 AND IS SUBJECTED TO THE CONDITIONS SPECIFIED THEREIN. THEREFORE, IT IS NECESSARY THAT THE ASSESSING AUTHORITY MU ST HAVE THIS INFORMATION AT THE TIME HE COMPLETES THE ASSESSMENT. IN THE ABSENCE OF ANY SUCH INFORMATION, IT WILL NOT BE POSSIBLE FOR T HE ASSESSING AUTHORITY TO GIVE THE ASSESSEE THE BENEFIT OF SUCH EXCL USION AND ONCE THE ASSESSMENT IS SO COMPLETED, IN OUR OPINION, IT WOULD BE FUTILE TO FIND FAULT WITH THE ASSESSING AUTHORITY FOR HAVING INC LUDED 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 REASON ABLE TO PRESUME THAT THE INTIMATION REQUIRED UNDER SECTION 11 HAS TO BE FURNISHED BEFORE THE ASSESSING AUTHORITY COMPLETES THE CONCERNED ASSESSMENT BECAUSE SUCH REQUIREMENT IS MANDATORY AND WITHOUT THE PARTICULARS OF THIS INCOME, THE ASSESSING AUTHORITY CANNOT ENTERTAIN THE CLAIM OF THE ASSESSEE UNDER SECTION 11 OF THE ACT, THEREFORE, COM PLIANCE WITH THE REQUIREMENT OF THE ACT WILL HAVE TO BE ANY TIME BEFORE THE ASSESSMENT PROCEEDINGS. 14 ITA NO.538/PN/2014 12.2 WE FIND THE DELHI F BENCH OF THE TRIBUNAL IN THE CASE OF ADDITIONAL DIRECTOR OF INCOME TAX (EXEMPTION) VS. MANAV BHARATI CHILD INSTITUTE & CHILD PSYCHOLOGY REPORTED IN 20 SOT 517 (DELHI) HAS O BSERVED AS UNDER : 4. AS REGARDS CROSS-OBJECTION BY ASSESSEE, IT IS SUBMITTE D THAT THE ASSESSEE WAS CLAIMING EXEMPTION UNDER S.10(23C)(VI) O F THE ACT BUT PENDING THE APPROVAL BY THE APPROPRIATE AUTHORI TIES, EXEMPTION UNDER SS.11 AND 12 WAS CLAIMED. HOWEVER, SINCE IT WAS NOT FORESEEN THAT THE EXEMPTION UNDER ALTERNATE PROVISION WAS REQU IRED TO BE CLAIMED, IN RESPECT OF SURPLUS, THE ASSESSEE COULD NOT FI LE FORM NO.10 FOR ACCUMULATION OF SURPLUS INCOME WHICH WILL RESULT I NTO TAXABILITY OF SURPLUS FUND AFTER EXHAUSTING THE EXEMPTION AVAILA BLE UNDER SS.11 AND 12 OF THE ACT. LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSMENT PROCEEDINGS PENDING BEFORE THE TRIBU NAL IS CONTINUATION OF ASSESSMENT PROCEEDINGS AND HENCE, EVEN DURING SUCH PENDENCY FORM NO.10 CAN BE FILED WHICH MAY BE C ONSIDERED WHILE COMPUTING INCOME UNDER THE ACT. FOR THIS PURP OSE, RELIANCE WAS PLACED ON THE DECISION OF GUJARAT HIGH COURT IN T HE CASE OF CIT VS. MAYUR FOUNDATION 92005) 194 CTR (GUJ) 197 : (20 05) 274 ITR 562 (GUJ). 5. WE ARE IN AGREEMENT WITH THE SUBMISSIONS OF LEARNED COUNSEL FOR ASSESSEE. THE ASSESSEE COULD NOT ENVISAGED THAT APPLICA TION FOR REGISTRATION UNDER S.10(23C)(VI) WOULD BE DELAYED. T HUS, THE ASSESSEE WAS REQUIRED TO MAKE ALTERNATE CLAIM UNDER SS.11 AND 12 OF THE ACT. AS HELD BY HONBLE GUJARAT HIGH COURT IN T HE CASE OF MAYUR FOUNDATION (SUPRA), ASSESSMENT PROCEEDINGS ARE COMPLETE WHEN APPEAL AGAINST ORDER OF ASSESSMENT IS DECIDED BY THE TRI BUNAL. VARIOUS COURTS HAVE TIME AND AGAIN HELD THAT THOUGH F ILING OF FORM NO.10 IS MANDATORY TO CLAIM EXEMPTION UNDER SS. 11 AND 12 OF THE ACT, THE SAME CAN BE FILED AT ANY TIME DURING THE PE NDENCY OF ASSESSMENT PROCEEDINGS. IF SO FILED THE BENEFIT OF ACCUM ULATION OF INCOME FOR CHARITABLE PURPOSE CANNOT BE DENIED. WE ACCORDINGLY DIRECT THE AO TO COMPUTE THE INCOME AFTER ALLOWING EXEMPTION UNDER SS. 11 AND 12 OF THE ACT AND ALSO CONSIDERING THE APPLI CATION IN FORM NO.10 REGARDING ACCUMULATION OF SURPLUS INCOME FOR TH E PURPOSE OF OBJECTS OF THE TRUST. 12.3 IN VIEW OF THE ABOVE DECISIONS WE ARE OF THE CON SIDERED OPINION THAT THE ASSESSEE CAN FILE FORM NO.10 AT ANY TIME BEFORE COM PLETION OF THE ASSESSMENT. WE, THEREFORE, DO NOT AGREE WITH THE FINDI NGS OF THE CIT(A) THAT THE ASSESSEE WAS NOT PERMITTED TO FILE FORM NO.10 IN THE REASSESSMENT PROCEEDINGS AND THAT THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NAGPUR HOTEL OWNERS ASSOCIATION IS NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE. THIS VIEW OF OURS DERIVES SUPPORT FROM TH E DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF ACIT VS. ST OCK EXCHANGE OF AHMADABAD WHEREIN THE HONBLE HIGH COURT, AFTER CON SIDERING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NAGPUR HOTEL OWNERS ASSOCIATION (SUPRA) HAS HELD THAT THE ASSESSEE BY FILING FORM NO.10 ALONG WITH REVISED RETURN AND BEFORE COMPLETION OF ASSESSMENT HAS DULY COMP LIED WITH REQUIREMENTS OF SECTION 11(2) AND WAS THEREFORE ENTITL ED TO BENEFIT OF SECTION 11. THE RELEVANT OBSERVATION OF HONBLE HIGH COURT READS AS UNDER : 8. FROM THE FACTS AND CONTENTIONS NOTED HEREINABOVE, THE SOLE QUESTION THAT ARISES FOR CONSIDERATION IS WHETHER THE T RIBUNAL WAS JUSTIFIED IN HOLDING THAT THE TIME LIMIT PRESCRIBED F OR FILING FORM 15 ITA NO.538/PN/2014 NO.10 UNDER RULE 17 OF THE RULES READ WITH SECTION 11 (2) OF THE ACT IS DIRECTORY. IN THE PRESENT CASE, IT IS AN ADMITTED POSIT ION THAT THE ASSESSEE HAD FILED FORM NO.10 AS REQUIRED UNDER RULE 17 OF THE RULES ALONGWITH THE REVISED RETURNS FILED IN RESPECT OF ALL THE ASSESSMENT YEARS UNDER CONSIDERATION. THUS, ADMITTEDLY, THE FORMS HAD BEEN SUBMITTED BEFORE THE ASSESSMENT CAME TO BE COMPLETED. AT THIS JUNCTURE REFERENCE MAY BE MADE TO THE DECISION OF TH E SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX VS. NAG PUR HOTEL OWNERS' ASSOCIATION (SUPRA) ON WHICH RELIANCE HAD BEEN PLACED BY THE LEARNED COUNSEL FOR THE REVENUE, WHEREIN IT HAS B EEN HELD THUS: 6. IT IS ABUNDANTLY CLEAR FROM THE WORDINGS OF SUB-SEC TION (2) OF SECTION 11 THAT IT IS MANDATORY FOR THE PERSON CLAIMI NG THE BENEFIT OF SECTION 11 TO INTIMATE TO THE ASSESSING AUTHORITY THE P ARTICULARS REQUIRED, UNDER RULE 17 IN FORM 10 OF THE ACT. IF D URING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER DOES NOT HAVE TH E NECESSARY INFORMATION, QUESTION OF EXCLUDING SUCH INCOM E FROM ASSESSMENT DOES NOT ARISE AT ALL. AS A MATTER OF FACT, THI S BENEFIT OF EXCLUDING THIS PARTICULAR PART OF THE INCOME FROM TH E NET OF TAXATION ARISES FROM SECTION 11 AND IS SUBJECT TO THE CONDITIONS SPECIFIED THEREIN. THEREFORE, IT IS NECESSARY THAT THE ASSESSING A UTHORITY MUST HAVE THIS INFORMATION AT THE TIME HE COMPLETES THE ASSE SSMENT. IN THE ABSENCE OF ANY SUCH INFORMATION, IT WILL NOT BE P OSSIBLE 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 H AVING INCLUDED SUCH INCOME IN THE ASSESSABLE INCOME OF THE ASSESSEE. THERE FORE, EVEN ASSUMING THAT THERE IS NO VALID LIMITATION PRESCRI BED UNDER THE ACT AND THE RULES EVEN THEN, IN OUR OPINION, IT IS RE ASONABLE TO PRESUME THAT THE INTIMATION REQUIRED UNDER SECTION 1 1 HAS TO BE FURNISHED BEFORE THE ASSESSING AUTHORITY COMPLETES THE A SSESSMENT CONCERNED BECAUSE SUCH REQUIREMENT IS MANDATORY AND WI THOUT THE PARTICULARS OF THIS INCOME THE ASSESSING AUTHORITY CANNOT ENTERTAIN THE CLAIM OF THE ASSESSEE UNDER SECTION 11 OF THE ACT, THEREFORE, COMPLIANCE WITH THE REQUIREMENT OF THE ACT WILL HAV E TO BE ANY TIME BEFORE THE ASSESSMENT PROCEEDINGS. FURTHER, ANY CLAIM FO R GIVING THE BENEFIT OF SECTION 11 ON THE BASIS OF INFORMATION SUP PLIED SUBSEQUENT TO THE COMPLETION OF ASSESSMENT WOULD MEAN THA T THE ASSESSMENT ORDER WILL HAVE TO BE REOPENED. IN OUR OPINI ON, THE ACT DOES NOT CONTEMPLATE SUCH REOPENING OF THE ASSESSMENT. IN THE CASE IN HAND IT IS EVIDENT FROM THE RECORDS OF THE CASE TH AT THE RESPONDENT DID NOT FURNISH THE REQUIRED INFORMATION TILL AFTER THE ASSESSMENTS FOR THE RELEVANT YEARS WERE COMPLETED. IN THE LIGHT OF THE ABOVE, WE ARE OF THE OPINION THAT THE STAND OF THE REVENUE THA T THE HIGH COURT ERRED IN ANSWERING THE FIRST QUESTION IN FAVOUR OF THE ASSESSEE IS CORRECT, AND WE REVERSE THAT FINDING AND ANSWER THE SA ID QUESTION IN THE NEGATIVE AND AGAINST THE ASSESSEE. 9. EXAMINING THE FACTS OF THE PRESENT CASE IN THE LIGH T OF THE PRINCIPLES ENUNCIATED IN THE ABOVE DECISION, AS NOTICE D EARLIER, THE ASSESSEE FILED FORM NO.10 UNDER RULE 17 OF THE RULES AT THE TIME OF FILING REVISED RETURNS IN RESPECT OF EACH OF THE ASSESSMEN T YEARS UNDER CONSIDERATION. THUS, EVIDENTLY, THE REQUIREMENT S OF SECTION 11(2) OF THE ACT HAD BEEN COMPLIED WITH BEFORE THE COMPLETION OF THE ASSESSMENTS. THEREFORE, WHILE COMPLETING THE ASSESSMENT S FOR THE ASSESSMENT YEARS UNDER CONSIDERATION, THE ASSESSING OFFIC ER HAD 16 ITA NO.538/PN/2014 THE NECESSARY INFORMATION IN RESPECT OF THE CLAIM FOR EXEMPTION UNDER SECTION 11 OF THE ACT MADE BY THE ASSESSEE BEFORE HIM. THUS, THIS IS NOT A CASE WHERE INFORMATION IN RESPECT OF THE CLAIM OF THE ASSESSEE FOR GIVING BENEFIT OF SECTION 11 OF THE ACT WAS FURNISHED AFTER THE ASSESSMENTS FOR THE RELEVANT ASSESSMENT YEARS WER E COMPLETED. UNDER THE CIRCUMSTANCES, THE PRESENT CASE IS SQUARELY COVERED BY THE AFORESAID DECISION OF THE SUPREME COUR T. THE ASSESSEE WAS, THEREFORE, ENTITLED TO THE BENEFIT OF SECTI ON 11 OF THE ACT ON THE BASIS OF THE INFORMATION SUPPLIED BY IT PRI OR TO FRAMING OF THE ASSESSMENT ORDERS. 10. IT MAY ALSO BE NOTED THAT THIS COURT IN THE CASE O F C.I.T. V. MAYUR FOUNDATION (SUPRA) HAS HELD THAT THE ASSESSMENT PROCEEDI NGS CANNOT BE SAID TO BE COMPLETE AND ARE PENDING TILL T HE APPEAL IS HEARD AND DISPOSED OF BY THE TRIBUNAL AND ACCORDINGLY HELD THAT THE TRIBUNAL WAS JUSTIFIED IN CONSIDERING A NEW GROUND BY THE ASSESSEE CLAIMING BENEFIT UNDER SECTION 11 OF THE ACT DURING THE COURSE OF THE APPEAL. AS RIGHTLY URGED BY THE LEARNED COUNSEL FOR THE ASSESSEE, IN THE PRESENT CASE, THE ASSESSEE STANDS ON AN EVEN STRONGER FO OTING INASMUCH AS THE PARTICULARS IN FORM NO.10 UNDER RULE 1 7 OF THE RULES HAD BEEN FURNISHED ALONGWITH THE REVISED RETURN BEFORE THE ASSESSMENT CAME TO BE COMPLETED. 11. IN THE LIGHT OF THE ABOVE DISCUSSION, IT IS NOT POSSI BLE TO STATE THAT THERE IS ANY LEGAL INFIRMITY IN THE IMPUGNED ORDER O F THE TRIBUNAL IN HOLDING THAT RULE 17 OF THE RULES IS DIRECTORY IN NAT URE AND IN HOLDING THAT THE ASSESSEE HAD DULY COMPLIED WITH THE REQUIREME NTS OF SUB- SECTION (2) OF SECTION 11 OF THE ACT. 12.4 IN THE LIGHT OF THE ABOVE DISCUSSION WE ARE OF TH E CONSIDERED OPINION THAT SINCE THE FORM NO.10 WAS FILED PRIOR TO COMPLETI ON OF ASSESSMENT, THEREFORE, THE ASSESSEE IS ENTITLED TO BENEFIT OF SECTION 11 OF THE I.T. ACT. WE THEREFORE SET ASIDE THE ORDER OF THE CIT(A) ON THIS ISSU E AND THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 8.2 SINCE FACTS OF THE PRESENT CASE ARE IDENTICAL TO T HE FACTS OF THE CASE CITED ABOVE, THEREFORE, FOLLOWING THE SAME RATIO, TH E ABOVE GROUNDS BY THE ASSESSEE ARE ALLOWED. 26. FURTHER, THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. MATESHWARI DEVELOPERS VS. ITO VIDE ITA NO.214/PN/2009 FOR A.Y. 2005-06 AND BATCH OF OTHER APPEALS ORDER DATED 30-01- 2015 FOLLOWING THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. MAYUR FOUNDATION REPORTED IN 274 ITR 562 AND THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF HASTIMAL SANCHETI RESE ARCH FOUNDATION VS. ITO VIDE ITA NO.225/PN/2008 ORDER DATED 26-03-2010 FOR A.Y. 2004-05 HAS HELD THAT AUDIT REPORT IN FORM 10CCB CAN BE FILED 17 ITA NO.538/PN/2014 DURING APPEAL PROCEEDINGS AS THE SAME ARE CONTINUATION O F ASSESSMENT PROCEEDINGS. SINCE THE ASSESSEE IN THE INSTANT CASE HAS FILED FORM 10 BEFORE CIT(A) WHICH IS CONTINUATION OF ASSESSMENT PROCEEDING S, I.E. IN OTHER WORDS HAS FILED THE FORMNO.10 BEFORE COMPLETION OF AS SESSMENT PROCEEDINGS, THEREFORE, WE ARE OF THE CONSIDERED OPINION T HAT THE ASSESSEE IS ENTITLED TO CLAIM THE BENEFIT OF SECTION 11 OF TH E I.T. ACT. WE ACCORDINGLY SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO ALLOW BENEFIT OF DEDUCTION U/S.11 AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. GROUNDS RAISED BY THE ASSESSEE ON THIS ISSUE ARE ACCORDINGLY ALLOWE D. 27. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26-10-2015. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) ' / JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE ; DATED : 26 TH OCTOBER, 2015. ( )'+ , / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. & ( ) , / THE CIT(A) CENTRAL, PUNE 4. & / THE CIT CENTRAL, PUNE 5. 6. ) ,,-, -, / DR, ITAT, A PUNE; 1 / GUARD FILE. / BY ORDER , ) , //TRUE C ) , //TRUE COPY// 34 , - / SR. PRIVATE SECRETARY -, / ITAT, PUNE