The Income Tax Officer, Jammu V. M/s. Dogra Educational Trust, Jammu

ITA 557/ASR/2013

• Counselvise Citation: 55720914 RSA 2013
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-08-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 29-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P N ARORA
• Keywords: Capital asset; Rectification of order; Charitable institution; Rule of consistency; Revised return
• Section: 143(3); 139(5); 12AA; 54; 12; 154; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.397(ASR)/2012 ASSESSMENT YEAR:2009-10 PAN :AAATD3950A INCOME TAX OFFICER, VS. M/S. DOGRA EDUCATIONAL TRUS T, WARD 1(1), JAMMU. SHASTRI NAGAR, JAMMU. (APPELLANT) (RESPONDENT) I.T.A. NO.557(ASR)/2013 ASSESSMENT YEAR:2010-11 PAN :AAATD3950A INCOME TAX OFFICER, VS. M/S. DOGRA EDUCATIONAL TRU ST, WARD 1(1), JAMMU. SHASTRI NAGAR, JAMMU. (APPELLANT) (RESPONDENT) I.T.A. NO.537(ASR)/2013 ASSESSMENT YEAR:2010-11 PAN :AAATD3950A M/S. DOGRA EDUCATIONAL TRUST, VS. INCOME TAX OFFICE R, SHASTRI NAGAR, JAMMU. WARD 1(1), JAMMU. (APPELLANT) (RESPONDENT) ASSESSEE BY: SH.P.N.ARORA, ADVOCATE DEPARTMENT BY: SH.TARSEM LAL, DR DATE OF HEARING: 06/08/2014 DATE OF PRONOUNCEMENT:25/08/2014 ORDER ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 2 PER B.P.JAIN, AM ; THESE TWO APPEALS FILED BY THE REVENUE FOR THE ASS ESSMENT YEARS 2009-10 & 2010-11 AND ONE CROSS APPEAL BY THE A SSESSEE FOR THE ASSESSMENT YEAR 2010-11 ARISE FROM THE ORDER OF THE CIT(A), JAMMU DATED 23.08.21012 & 10.06.2013. THE REVENUE HAS RAISED FO LLOWING GROUNDS OF APPEAL IN ITA NO.397(ASR)/2012 FOR THE A.Y.2009-10 : 1. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT(A) WAS RIGHT IN ALLOWING EXEMPTION U/S 10(23C(VI) OF THE I NCOME TAX ACT, 1961 WHEN THE ASSESSEE IN ITS RETURN OF INCOME HAS CLAIMED EXEMPTION U/S 11 OF THE INCOME TAX ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN FACTS AND CIRCUMSTANCES AND IN LAW IN NOT CONSIDERING THE DECISION IN THE CASE OF M/S. GOETZE (INDIA) LTD . VS. CIT(2006) 323 WHEREIN THE HONBLE SUPREME COURT HAD HELD THAT CLAIM FOR DEDUCTION NOT MADE IN THE RETURN OF INCOME CANNOT BE ENTERTAINED BY THE A.O. OTHERWISE THAN BY FILING A REVISED RETURN. 3. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN HOLDING THAT THE ASSESSEE HAS BEEN ALLOWED EXEMPTION U/S 10(23C)(VI) OF THE INCOME TAX ACT, 1961 FOR THE A.Y. 2008- 09 WHEREAS, THE ASSESSEE HAS CLAIMED EXEMPTION U/S 11 OF THE ACT IN ITS RETURN OF INCOME FOR THE A.Y. 2008-09 AN D INCOME DECLARED ON THE BASIS OF EXEMPTION CLAIMED U/S 11 O F THE ACT HAS BEEN ACCEPTED BY THE AO AND NOT U/S 10(23)(VI) OF THE ACT. 4. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN DELETING THE PURCHASE/ADDITION MADE TO FIX ED ASSETS WHICH ARE NOT THE APPLICATION TOWARDS CHARITABLE PU RPOSE. ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 3 5. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN FACTS AND CIRCUMSTANCES AND IN LAW IN NOT CONSIDERING THE DECISION IN THE CASE OF CIT VS. M/S QUEEN EDUCA TIONAL SOCIETY 233 CTR 395 WHEREIN THE HONBLE HIGH COURT OF UTTARKHAND HAD HELD THAT THE ASSETS PURCHASED/CONST RUCTED OUT OF INCOME FROM IMPARTING THE EDUCATION WITH A VIEW TO EXPAND THE INSTITUTION AND TO EARN MORE INCOME. 6. THE APPELLANT CRAVES TO AMEND OR ADD ANY ONE OR MORE GROUNDS OF APPEAL. 2. IN ITA NO.557(ASR)/2012 FOR THE A.Y. 2010-11, TH E REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN DELETING THE ADDITION OF RS.79,18,190/- MA DE ON ACCOUNT OF DISALLOWANCE OF APPLICABLE OF INCOME BY WAY OF A DDITION TO THE FIXED ASSETS. 2. THAT THE APPELLANT CRAVES TO AMEND OR ADD ANY ON E OR MORE GROUNDS OF APPEAL. 3. IN ITA NO.537(ASR)/2013 FOR THE A.Y. 2010-11, TH E ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE LD. AO HAS GROSSLY ERRED IN LAW AND ON FACT S OF THE CASE IN DETERMINING THE INCOME OF THE ASSESSEE AT RS.1,77,9 4,350/- IN AN ORDER PASSED U/S 143(3) OF THE ACT. 2. THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AND ON F ACTS OF THE CASE IN CONFIRMING THE ORDERS OF AO IN NOT ALLOWING EXEMPTION U/S 10(23C)(VI) OF THE ACT. EXEMPTION U/S 10(23C)(V I) GRANTED BY THE LD. CCIT AFTER THE FILING OF RETURN AND AS F ROM THE ASSESSMENT YEAR 2005-06. THE AO WAS THEREFORE DUTY BOUND TO ALLOW THE EXEMPTION. THAT IN THE IMMEDIATELY PRECED ING YEARS THE EXEMPTION HAS BEEN ALLOWED. IT IS PRAYED THAT E XEMPTION U/S 10(23C)(VI) OF THE ACT AS GRANTED BY THE CCIT BE A LLOWED. ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 4 3. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN NOT CO NSIDERING THE CLAIM OF THE ASSESSEE WITH REGARD TO APPLICATION OF RS.1,41,08,968/- IN THE RIGHT PERSPECTIVE. THAT IN THE AY 2009-10 A SUM OF RS.1,41,08,968/- W AS CLAIMED AS DEEMED APPLICATION IN TERMS OF EXPLANATION 2 TO SECTION 11(1) OF THE ACT AT THE TIME OF ASSESSMENT IT WAS NOT ALL OWED. IT WAS PRAYED THAT AS THE SAID AMOUNT HAS NOT BEEN CONSIDERED AS DEEMED APPLICATION IN THE YEAR 2009-10, THE SAID AMOUNT SHOULD NOT BE REDUCED OUT OF APPLICATION FOR THE YE AR 2010-11. 4. FIRST OF ALL, WE SHALL DEAL WITH APPEAL OF THE R EVENUE IN ITA NO.397(ASR)2012, FOR THE A.Y. 2009-10. THE BRIEF FA CTS OF THE CASE ARE THAT THE ASSESSEE IS A TRUST REGISTERED UNDER SECTION 12 AA OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED THE ACT) VIDE ORDER DATE D 31.03.2008. THE ASSESSEE SUBMITTED THE DETAILS OF INCOME AND APPLICATION FOR CHARITABLE PURPOSES AS UNDER: PARTICULARS AMOUNT (RS) INCOME AS PER INCOME & EXPENDITURE ACCOUNT 2,63,31, 753 ADD: SALE OF CAR 1,22,500 ADD :ACCUMULATION FOR LAST 1,46,05,442 INCOME FOR APPLICATION FOR CHARITABLE PURPOSES 2,64 ,54,253 LESS: APPLICATION AS PER INCOME & EXPENDITURE A/C 1 ,75,97,901 LESS: APPLICATION AS PER STATEMENT OF AFFAIRS 53 ,84,680 LESS: APPLICATION @15% ALLOWABLE U/S 11(1) 39,68 ,138 ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 5 LESS: ACCUMULATION AS PER NOTICE U/S 11(1) R.W. EXP 1,41,08,968 TOTAL APPLICATION FOR CHARITABLE PURPOSE 2,64,54,25 3 THEREFORE, TOTAL INCOME NIL 4.1 THE AO OBSERVED THAT THE APPLICATION OF RS.53, 84,680/- WHICH WAS CLAIMED TO HAVE BEEN MADE THROUGH STATEMENT OF AFF AIRS WAS MADE ON THE PURCHASE/ADDITION TO THE FIXED ASSETS. FURTHER, IN RESPONSE OF ACCUMULATION CLAIMED TO HAVE BEEN MADE AS PER EXPLANATION TO SEC 11(1) OF THE I.T.ACT,1961, IT WAS ALSO NOTICED THAT NO APPLICATI ON FOR EXERCISE OF OPTION IN WRITING WAS FOUND ON RECORD. ACCORDINGLY, HE ASKED THE ASSESSEE THAT AS TO WHY THE EXPENDITURE MADE ON ADDITION/PURCHASE OF FI XED ASSETS MAY NOT BE TREATED AS APPLICATION FOR CHARITABLE PURPOSE IN VI EW OF THE RATIO OF DECISION IN THE CASE OF QUEENS EDUCATIONAL SOCIETY V. CIT OF THE HONBLE HIGH COURT OF UTTARAKHAND AND SINCE NO NOTICE AS PER SECTION 1 1(1) OF THE ACT R.W. EXP.2 TO THIS SECTION, WAS GIVEN WITHIN THE PRESCRI BED TIME LIMITS, WHY EXEMPTION MAY NOT BE WITHDRAWN ON SUCH ACCUMULATION . THE ASSESSEE SUBMITTED THE EXPLANATION WHICH IS REPRODUCED IN PA RA 2.3 TO 2.4.1 AT PAGES 2 TO 6 OF AOS ORDER. THE AO DID NOT CONSIDER THE P URCHASE OF FIXED ASSETS AS APPLICATION TOWARDS CHARITABLE PURPOSE AND ACCOR DINGLY WITHDRAWN THE ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 6 EXEMPTION OF RS.53,84,680/- AND ADDED THE SAME TO T HE INCOME OF THE ASSESSEE. 4.2 THE ASSESSEE ALSO SUBMITTED HIS EXPLANATION WIT H REGARD TO THE NOTICE IN VIEW OF EXPLANATION TO SECTION 11(1) OF THE ACT AVAILABLE IN PARA 2.5.1 TO 2.5.5 AT PAGE 8 OF THE ORDER. THE AO NOT BEING SATI SFIED WITH THE EXPLANATION OF THE ASSESSEE OBSERVED VIDE PARA 2.5.14 AS UNDER : 2.5.14 IN VIEW OF THE ABOVE DISCUSSION, SINCE NO OPTION WAS EXERCISED BY THE ASSESSEE IN WRITING IN TERMS OF THE EXPLANAT ION TO SEC. 11(1) OF THE I.T. ACT, 1961 WITHIN THE TIME ALLOWED U/S 139( 1) OF THE I.T. ACT, 1961, THE EXEMPTION CLAIMED BY THE ASSESSEE ON AN A MOUNT OF RS.1,41,08,968/- IS NOT ALLOWED AND THE AMOUNT IS B ROUGHT TO TAX. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASS ESSEE FILED AN AFFIDAVIT THROUGH HIS ACCOUNTANT, WHICH WAS AN UN SUCCESSFUL ATTEMPT TO CREATE EVIDENCE. 4.3. AS REGARDS THE CLAIM OF EXEMPTION U/S 10(23C)( VI) OF THE ACT, WHICH EXEMPTION WAS AVAILABLE TO THE ASSESSEE VIDE ORDER DATED 12.07.2010 WAS NOT ACCEPTED BY THE AO FOR THE REASONS BEING REPRODUCED FOR THE SAKE OF CONVENIENCE AS UNDER: I. REQUEST IN CHANGE IN CLAIM OF EXEMPTION CAN ONL Y BE MADE THROUGH A VALIDLY FILED REVISED RETURNED AS PER THE PROVISI ONS OF SECTION 139(5) OF THE I.T. ACT, 1961. RETURN OF INCOME CANN OT BE REVISED BY MERELY FILING AN APPLICATION ON PLAIN PAPER. THIS IS SETTLED LAW AS HAS BEEN HELD BY THE HONBLE SUPREME COURT IN THE C ASE OF GOETZE (INDIA) LTD; VS. CIT (2006) 286 ITR 323. IN THIS C ASE, THE HONBLE SUPREME COURT HAS CONCLUDED THAT CLAIM FOR DEDUCTIO N NOT MADE IN THE RETURN CANNOT BE ENTERTAINED BY THE A.O OTHERWI SE THAN BY FILING A REVISED RETURN. IN THIS CASE ALSO, THE APP ELLANT HAD SOUGHT TO CLAIM A DEDUCTION BY WAY OF A LETTER BEFORE THE A.O. & THUS THE FACTS OF THE CASE ARE TOTALLY IDENTICAL TO THE CASE OF THE ASSESSEE. ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 7 THEREFORE, THE REQUEST OF THE ASSESSEE IS NOT ACCEP TABLE AS THE ASSESSEE HAS NOT FILED ANY VALID REVISED RETURN. II) WITHOUT PREJUDICE TO THE ABOVE, EVEN IF IT IS ALLOW ED TO REVISE THE RETURN ON THE BASIS OF A MERE APPLICATION ON PLAIN PAPER, EVEN THEN THE BENEFIT OF REVISING THE RETURN U/S 139(5) OF TH E I.T. ACT, 1961, CANNOT BE GIVEN TO IT AS IT, AS THE TIME LIMITS FOR REVISING THE RETURN HAS ALREADY EXPIRED ON 31.3.2011. THUS, AGAIN THE R EQUEST OF THE ASSESSEE TO GRANT EXEMPTION U/S 10(23C)(VI) OF THE I.T.ACT, 1961 CANNOT BE ACCEPTED. III) THE REQUEST OF THE ASSESSEE FOR GRANT OF EXEMPTION U/S 10(23C)(VI) OF THE I.T.ACT, 1961 CANNOT BE ACCEPTED EVEN U/S 1 54 OF THE ACT, AS THIS IS NOT A MISTAKE APPARENT FROM RECORD. IT IS N OT CASE IN WHICH BENEFIT AS PER CIRCULAR NO.725 DATED 16.10.1995 OF THE CBDT CAN BE ALLOWED TO THE ASSESSEE IN VIEW OF THE FACT THAT ORIGINAL EXEMPTION WAS NOT CLAIMED U/S 10(23C)(VI) OF THE I. T.ACT, 1961. 3.2. KEEPING IN VIEW THE ABOVE FACTS, THE REQUEST O F THE ASSESSEE FOR GRANT OF EXEMPTION U/S 10(23C)(VI) OF THE I.T.ACT, 1961 CANNOT BE ACCEPTED. ACCORDINGLY, THE AO ADDED RS.1,41,08,968/- BEING T HE AMOUNT OF ACCUMULATION CLAIMED AS PER EXPLANATION TO SECTION 11(1) BUT NOT ALLOWED AS APPLICATION. 5. ON APPEAL, THE LD. CIT(A) DELETED THE ADDITION S O MADE VIDE PARAS 4 TO 5, WHICH FOR THE SAKE OF CONVENIENCE IS REPRODUC ED AS UNDER: 4. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF A SSESSEE. I HAVE ALSO CALLED THE INCUMBENT AO SH. KULBHUSHAN KUMAR, ITO, WARD- 1(1), JAMMU AND GONE THROUGH THE RECTIFICATION ORDE R PASSED BY HIS PREDECESSOR IN ASSESSMENT YEAR 2006-07 ALLOWING THE EXEMPTION U/S 10(23C)(VI) OF THE I.T.ACT AND ALSO THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2008-09 WAS SHOWN TO HIM TO HAVE HI S VIEWS. HE STATED THAT THE MATTER MAY BE DECIDED ON MERITS. ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 8 4.1. IT IS UNDISPUTED THAT VIDE ORDER U/S 154 OF I. T.ACT DATED 09.07.2010 WHICH IS ON RECORDS THE APPROVAL U/S 10( 23C)(VI) ALREADY GRANTED ON 13.08.2007 FOR ASSESSMENT YEAR 2005-06 O NLY BY THE CHIEF CIT WAS RECTIFIED TO HAVE EFFECT FROM ASSESSMENT YE AR 2005-06 ONWARDS AS ONE TIME EXEMPTION HOLDING AS UNDER: I HAVE CONSIDERED THE CONTENTIONS MADE BY THE ASSE SSEE IN ITS APPLICATION RECEIVED IN THIS OFFICE ON 10.12.2008 A ND 17.06.2010. SUB CLAUSE (3) OF RULE 2CA OF THE I.T. RULES, AFTER ITS AMENDMENT W.E.F. 24.11.2006 PROVIDES THAT THE A PPROVAL OF THE CHIEF COMMISSION U/S 10(23C)(VI) OF THE I.T.ACT GRANTED BEFORE THE IST FIRST DAY OF DEC., 2006 SHALL AT ANY TIME HAVE EFFECT FOR A PERIOD NOT EXCEEDING THREE ASSESSMENT YEARS. THUS, THE APPROVAL GRANTED ON OR AFTER 01.12.2006 WOULD B E ONE TIME. THE REQUEST OF THE ASSESSEE ALSO FIND SUPPORT FROM THE NOTIFICATION NO.SO 2016(E) DATED 24.11.2006 OF THE CBDT NEW DELHI VIDE WHICH IT IS CLARIFIED THAT ANY APPRO VAL GRANTED AFTER 01.12.2006 UNDER CLAUSE (VI) AND (VIA) OF SEC TION 10(23C) WILL BE ONE TIME WITH NO REQUIREMENT OF RENEWAL. IN VIEW OF THE ABOVE, THE REQUEST MADE BY THE ASSES SEE IN ITS APPLICATION RECEIVED ON 10.12.2008 AND 17.06.2010 I S ACCEPTED AND THE ORDER DATED 13.07.2007 GRANTING APPROVAL U/ S 10(23)(VI) OF THE I.T.ACT WILL APPLY TO ASSESSMENT YEAR 2005-06 AND ONWARDS, SUBJECT TO THE CONDITIONS MENTIONED TH EREIN 4.2. THE ABOVE ORDER OF RECTIFICATION WAS PASSED ON 09.0 7.2010 AND ON THE BASIS OF WHICH THE ASSESSMENT ORDER PASSED U /S 143(3) OF I.T.ACT, 1961 DATED 22.12.2008 FOR ASSESSMENT YEAR 2006-07 GOT RECTIFIED BY THE A.O. HIMSELF ON 29.10.2010 AND TH E DEMAND OF RS.88,68,907/- WAS TAKEN TO NIL. CONSEQUENTLY, THE APPEAL OF ASSESSES PENDING BEFORE THIS OFFICE WAS DISMISSED. 4.3. FURTHER, IN ASSESSMENT YEAR 2008-09 ALSO, THE ASSESSMENT ORDER PASSED WAS ON 24.12.2010 AND THE EXEMPTION WAS ALLO WED BY THE AO ON THE BASIS OF THE ORDER OF CCIT, AMRITSAR DATED 0 9.07.2010 AND THE INCOME WAS ASSESSED AT NIL. IN THE ASSESSMENT YEA R 2008-09 ALSO THE SECTION UNDER WHICH THE EXEMPTION WAS SUPPOSED TO B E CLAIMED WAS MENTIONED BY THE ASSESSEE AS 10(23C)(VI) OF THE ACT WHICH IS THE IDENTICAL CASE IN THE IMPUGNED ASSESSMENT YEAR. ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 9 4.3. IN VIEW OF THE ABOVE, THERE IS A LOT OF FORCE, IN T HE EXEMPTION OF ASSESSEE THAT THE EXEMPTION ALLOWED TO U/S 10(23C)( VI) OF I.T.ACT, WAS IN FORCE FOR THE A.Y. 2009-10 ALSO AS IT WAS AN ONE TIME EXEMPTION AND THE ASSESSEE WAS ENTITLED TO EXEMPTION ON THE GROUN DS OF CONSISTENCY AND AS WELL AS ON MERITS. BUT BEFORE REACHING THERE SOME CONSIDERATION IS REQUIRED TO SEE WHETHER FACTS WERE IDENTICAL IN ALL THESE ASSESSMENT YEARS. THOUGH THE AO IN THE IMPUG NED ORDER HAS MADE ADDITIONS ON THE GROUNDS OF APPLICATION OF INC OME IN PURCHASE OF CAPITAL ASSETS AND NON-FILING OF NOTICE IN TERMS OF EXPLANATION TO SECTION 11(1) OF I.T.ACT, IT IS TO BE SEEN AT THE O UTSET THAT THE PROVISION OF SECTION 11(1) OF THE ACT ARE AS SUCH NOT APPLICA BLE IN CASES COVERED U/S 10(23C)(VI0 OF I.T.ACT WHICH ARE GOVERNED BY 3 RD PROVISO BELOW SECTION 10(23C0 WHICH READS AS UNDER , AS FAR AS AP PLICATION OF INCOME IS CONCERNED. PROVIDED THAT THE FUND OR TRUST OR INSTITUTION [OR ANY UNIV ERSITY OR OTHER EDUCATIONAL INSTITUTION OR ANY HOSPITAL OR OTHER ME DICAL INSTITUTION] REFERRED TO IN SUB-CLAUSE ( IV ) OR SUB-CLAUSE ( V ) [OR SUB-CLAUSE ( VI ) OR SUB-CLAUSE ( VIA )] SHALL MAKE AN APPLICATION IN THE PRESCRIBED FORM AND MANNER TO THE PRESCRIBED AUTHORITY FOR THE PURPOSE OF GRANT OF THE EXEMPTION, OR CONTINUAN CE THEREOF, UNDER SUB-CLAUSE ( IV ) OR SUB-CLAUSE ( V ) [OR SUB-CLAUSE ( VI ) OR SUB-CLAUSE ( VIA )]: ( A ) APPLIES ITS INCOME, OR ACCUMULATES IT FOR APPLI CATION, WHOLLY AND EXCLUSIVELY TO THE OBJECTS FOR WHICH IT IS ESTABLISHED AND IN A CASE WHERE MORE THAN FIFTEEN PER CENT OF ITS INCOME IS ACCUMULATED ON OR AFTER THE 1 ST DAY OF APRIL, 2002, THE PERIOD OF THE ACCUMULATION OF THE AMOUNT EXCEEDING FIFTEEN PER CENT OF ITS INCOME SHALL IN NO CASE EXCEED FIVE YEARS; AND] 4.5. THIS VIEW TAKEN BY AO THAT APPLICATION OF INCO ME IN CAPITAL ASSETS WOULD COME INTO THE WAY OF EXEMPTION IS BASE D ON THE DECISION OF HONBLE HIGH COURT OF UTTARAKHAND IN CASE OF M/S . QUEENS EDUCATIONAL SOCIETY, 223 CTR 395 WHICH IS DISCUSSED BY HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF M/S. PIN EGROVE INTERNATIONAL CHARITABLE TRUST, 327 ITR 73 (P&H) AN D WAS DISTINGUISHED WHEREIN IT WAS HELD AS UNDER: 8.8 WE HAVE NOT BEEN ABLE TO PERSUADE URSELVES TO ACCEPT THE VIEW EXPRESSED BY THE DIVISION BENCH OF THE UTTRAKHAND H IGH COURT IN THE CASE OF QUEENS EDUCATIONAL SOCIETY. THERE ARE VARIE TY OF REASONS TO SUPPORT OUR OPINION. FIRSTLY, THE SCOPE OF THE THIR D PROVISO WAS NOT ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 10 UNDER CONSIDERATION, INASMUCH AS, THE CASE BEFORE T HE UTTRAKHAND HIGH COURT PERTAINED TO SECTION 10(23C)(IIIAD) OF T HE ACT. THE THIRD PROVISO TO SECTION 10(23C)(VI) IS NOT APPLICABLE TO THE CASES FALLING WITHIN THE PURVIEW OF SECTION 10(23C)(IIIAD). SECON DLY, THE JUDGMENT RENDERED BY THE UTTRAKHAND HIGH COURT RUNS CONTRARY TO THE PROVISIONS OF SECTION 10(23C)(VI) OF THE ACT INCLUD ING THE PROVISOS THEREUNDER. SECTION 19(23C)(VI) OF THE ACT IS EQUIV ALENT TO THE PROVISIONS OF SECTION 10(22) EXISTING EARLIER, WHIC H WERE INTRODUCED WITH EFFECT FROM 1-4-1999 AND IT IGNORES THE SPEECH OF THE FINANCE MINISTER MADE BEFORE THE INTRODUCTION OF THE SAID P ROVISIONS, NAMELY, SECTION 10(23C) OF THE ACT [OBSERVATIONS IN AMERICA N HOTEL & LODGING ASSOCIATION, EDUCATIONAL INSTITUTE'S CASE]. THIRDLY, THE UTTRAKHAND HIGH COURT HAS NOT APPRECIATED CORRECTLY THE RATIO OF THE JUDGMENT RENDERED BY HON'BLE THE SUPREME COURT IN T HE CASE OF ADITANAR EDUCATIONAL INSTITUTION AND WHILE APPLYING THE SAID JUDGMENT INCLUDING THE JUDGMENT WHICH HAD BEEN REND ERED BY HON'BLE THE SUPREME COURT IN THE CASE OF CHILDREN BOOK TRUS T, IT LOST SIGHT OF THE AMENDMENT WHICH HAD BEEN CARRIED OUT WITH EFFEC T FROM 1-4-1999 LEADING TO THE INTRODUCTION OF THE PROVISIONS OF SE CTION 10(23C) OF THE ACT. LASTLY, THAT VIEW IS NOT CONSISTENT WITH THE L AW LAID DOWN BY HON'BLE THE SUPREME COURT IN AMERICAN HOTEL & LODGI NG ASSOCIATION, EDUCATIONAL INSTITUTE (SUPRA). 4.6. ALSO IN CASE OF M/S. MANAVI MANGAL SOCIETY 328 ITR 421 (P&H) A SIMILAR VIEW OF UPHELD. 4.7. THE JURISDICTIONAL HONBLE ITAT, AMRITSAR IN C ASE OF M/S. D.N. MEMORIAL TRUST, ITA NO.617(ASR)/2011 WHILE DECIDING THE APPEAL OF ASSESSEE AGAINST DENIAL OF REGISTRATION U/S 12AA OF I.T. ACT, BY CIT, JAMMU HAS HELD AS UNDER: 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THERE IS NOTHING ON RECORD BROUGHT OUT BY THE LD. CIT THAT FEES STRUCTURE IS IN-GENUINE OR AGAINST T HE ACCEPTED NORMS. NOTHING HAS BEEN BROUGHT ON RECORD BY THE LD . CIT THAT THE ACTIVITIES OF THE TRUST ARE FOR NON-CHARITABLE PURPOSE OR FOR PERSONAL PURPOSES OF THE TRUSTEES ETC. RATHER WHATE VER FUNDS WERE ACQUIRED BY THE TRUST HAVE BEEN UTILIZED FOR THE PURPOSE OF EDUCATIONAL ACTIVITIES OF THE INSTITUTION AND IN THE ABSENCE OF ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 11 ANY ADVERSE MATERIAL BROUGHT ON RECORD BY THE LD. C IT, THE APPLICATION BY THE ASSESSEE CAN NOT BE REJECTED. TH E DECISION OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT Y MONTESSORI SCHOOL (REGD.) VS UNION OF INDIA AND OTH ERS (SUPRA) AND DECISION OF HONBLE PUNJAB & HARYANA HI GH COURT, IN THE CASE OF CIT VS. MANAV MANGAL SOCIETY (SUPRA), SUPPORT OUR VIEW. 4.8. IN THE PRESENT CASE ALSO THERE IS NO CASE OF A O THAT THE ACTIVITIES OF THE TRUST ARE NOT GENUINE OR THE APPLICATION OF INCOME IS FOR PURPOSE OTHER THAN THOSE OF THE OBJECTS OF THE INSTITUTION. IT IS ALSO TO BE SEEN THAT THE CONDITIONS SET IN EXPLANATION TO SECTION 1 1(1) OF I.T.ACT . THE FACTOR OF CONSISTENCY AS DISCUSSED ABOVE ALSO COMES TO SUPPORT THE CASE OF ASSESSEE. 4.9. IN VIEW OF THE ABOVE, THE ACTION OF AO CANNOT BE UPHELD AND THE ADDITIONS MADE BY HIM AS CONTESTED IN GROUNDS NOS. 1 TO 3 ARE DELETED. 5. GROUND NO.5 IS REGARDING CLAIM OF EXEMPTION U/S 10(23C)(VI) OF I.T.ACT, WHICH AS PER ABOVE DISCUSSION, IS HELD TO BE AVAILABLE TO ASSESSEE. 6. THE LD. DR, MR. TARSEM LAL, AT THE OUTSET, RELIE D UPON THE ORDER OF THE A.O. WITH REGARD TO GROUNDS NO. 1, 2 & 3 OF THE REVENUE. HE ARGUED THAT NO NOTICE WITH REGARD TO EXPLANATION TO SECTION 11( 1) HAS BEEN FILED WITH THE RETURN OF INCOME AS IS REQUIRED UNDER STATUTE TO B E FILED UNDER SECTION 139(1) OF THE ACT. THE CLAIM OF THE ASSESSEE IS THAT THE S AME HAS BEEN FILED ALONGWITH RETURN OF INCOME AND AFFIDAVIT SWORN BY THE ACCOUNTANT HAS BEEN PLACED ON RECORD IS WRONG. THEREFORE, HE ARGUED THA T ACCUMULATION CLAIMED TO BE EXEMPTED CANNOT BE ALLOWED AND AO HAS RIGHTLY ADDED THE SAME TO THE ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 12 INCOME OF THE ASSESSEE. HE FURTHER ARGUED THAT THE LD. CIT(A) HAS NOT DEALT WITH EXPLANATION TO SECTION 11(1) WITH REGARD TO TH E SAID ACCUMULATION AND THE LD. CIT(A) PROCEEDED TO DECIDE THE ISSUE OF EXE MPTION UNDER SECTION 10(23C)(VI) OF THE ACT. WITH REGARD TO THE EXEMPTIO N U/S 10(23C)(VI) OF THE ACT, THE LD. DR ARGUED THAT ANY CLAIM IF REVISED B Y THE ASSESSEE WHICH HAS TO BE IN THE FORM OF REVISED RETURN, WHICH HAS NOT BEEN FILED BY THE ASSESSEE AND IN VIEW OF THE DECISION OF HONBLE SUPREME COUR T IN THE CASE OF GOETZE (INDIA) LTD., VS. CIT (2006) 284 ITR 323, NO CLAIM CAN BE ACCEPTED AND THE AO HAS RIGHTLY REJECTED SUCH CLAIM SINCE THE SAME H AS NOT BEEN CLAIMED BY FILING THE REVISED RETURN. HE FURTHER ARGUED THAT THE ASSESSEE GOT THE EXEMPTION U/S 10(23C)(VI) OF THE ACT ON 12.07.2010 ONLY AND AT THE MOST HE COULD HAVE APPLIED FOR EXEMPTION BEFORE THE A.O. IM MEDIATELY WHICH IN FACT, WAS APPLIED BEFORE THE A.O. MUCH LATER. ACCOR DINGLY, HE PRAYED TO REVERSE THE ORDER OF THE LD. CIT(A). 7. THE LD. COUNSEL FOR THE ASSESSEE, MR. P.N.ARORA, AT THE OUTSET, RELIED UPON THE ORDER OF THE LD. CIT(A) AND ARGUED THAT A T THE TIME OF FILING THE RETURN OF INCOME, THE DEDUCTION WAS CLAIMED U/S 11 OF THE ACT AND THE ASSESSEE WAS NOT HAVING APPROVAL U/S 10(23C)(VI) OF THE ACT, THOUGH THE ASSESSEE MADE AN APPLICATION TO THE CCIT WHO VIDE H ER ORDER DATED 13.08.2007 APPROVED THE INSTITUTION U/S 10(23C)(VI) OF THE ACT, BUT FOR THE ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 13 ASSESSMENT YEAR 2005-06 ONLY, WHEREAS THE SAME SHOU LD HAVE BEEN ALLOWED FOR THE ASSESSMENT YEAR 2005-06 AND ONWARDS I.E. FO R ALL THE TIMES TO COME FOR THE ASSESSEE-INSTITUTION. THE ASSESSEE ACCORDIN GLY MOVED AN APPLICATION WITH THE PRAYER BEFORE THE CCIT FOR RECTIFICATION A ND THE LD. CCIT RECTIFIED HER ORDER DATED 12.07.2010 AND GRANTED THE APPROVAL FOR THE ASSESSMENT YEAR 2005-06 AND ONWARDS FOR ALL THE TIMES TO COME. THE ASSESSEE HAD ALREADY FILED RETURN OF INCOME ON 31.03.2010 BEFORE THE RE CEIPT OF THE ORDER OF RECTIFICATION FROM THE LD. CCIT AND ACCORDINGLY TH E ASSESSEE REVISED HIS CLAIM FOR TAKING EXEMPTION U/S 10(23C)(VI) INSTEAD OF DEDUCTION U/S 11(1) OF THE ACT. HE ARGUED THAT EXEMPTION TO THE ASSES SEE WAS AVAILABLE FOR THE ASSESSMENT YEAR 2005-06 AND ONWARDS UNDER SECTION 1 0(23C)(VI) OF THE ACT, VIDE ORDER DATED 13.08.2007, IN FACT, WHICH WAS MIS TAKE APPARENT FROM RECORD BY THE CCIT WHICH WAS RECTIFIED VIDE ORDER D ATED 12.07.2010 SUNDER SECTION 154 OF THE ACT. HE RELIED UPON THE DECISION OF THE ITAT, PUNE BENCH IN THE CASE OF BHARATI VIDYAPEETH MEDICAL FOUNDATI ON VS. ACIT REPORTED IN (2013) 155 TTJ 152 AND THE RELEVANT DECISION OF TH E PUNE BENCH IS PLACED AT CASE LAWS (PB 30 TO 52) WHERE IT HAS BEEN HELD T HAT WHEN THE ACTIVITIES OF THE ASSESSEE ARE COVERED UNDER SECTION 2(15), THE A SSESSEE COULD HAVE CLAIMED EXEMPTION U/S 10(23C) IF IT DESIRES, AND I T CANNOT BE SAID THAT THE ASSESSEE WAS NOT ENTITLED TO BENEFIT OF DEDUCTION U /S 11 AND THE ASSESSEE TRUST ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 14 HAD BOTH OPTIONS AVAILABLE BEFORE IT, EITHER IT CAN APPLY FOR EXEMPTION U/S 10(23C) OR CLAIM DEDUCTION U/S 11 AND CHOICE WAS LE FT TO ASSESSEE AND THE DEPARTMENT CANNOT FORCE ASSESSEE TO ADOPT ONLY PART ICULAR PROVISION. 8. AS REGARDS EXEMPTION UNDER SECTION 11, THE LD. C OUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO PB-2 WHERE IT IS EVIDENT THAT THE ASSESSEE HAS ALREADY SPENT MORE THAN 85% AND THE ASSESSEE WA S NOT REQUIRED TO FILE ANY NOTICE UNDER EXPLANATION TO SECTION 11(1) OF TH E ACT. THE LD. COUNSEL FOR THE ASSESSEE ALSO RELIED UPON CIRCULAR NO.725 DATE D 16.10.1995 AND READ PARA 3 & 4 OF THE ORDER AND ALSO THE RULE OF CONSI STENCY WHERE THE ASSESSEE HAD BEEN CLAIMING EXEMPTION U/S 10(23C)(VI) IN THE PRECEDING YEAR AS WELL AS IN THE FOLLOWING YEAR. THE NECESSARY ORDERS FOR DIFFERENT ASSESSMENT YEARS WERE PLACED ON RECORD WITH REGARD TO EXEMPTION SO C LAIMED AND ALLOWED TO THE ASSESSEE. THEREFORE, THE LD. COUNSEL FOR THE AS SESSEE PLEADED THAT THE RULE OF CONSISTENCY SHOULD BE FOLLOWED. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. AS REGARDS GROUNDS NO.1, 2 & 3 OF THE REVENUE, THER E IS NO DISPUTE TO THE FACT THAT DEDUCTION WAS CLAIMED U/S 11 OF THE ACT I N THE RETURN OF INCOME AND THE ASSESSEE WAS NOT HAVING EXEMPTION U/S 10(23C(VI ) OF THE ACT AT THE TIME OF FILING OF THE RETURN OF INCOME. THE ASSESSEE HAD MADE AN APPLICATION FOR THE SAID APPROVAL WHICH WAS RECEIVED BY THE ASSESSE E VIDE ORDER DATED ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 15 13.08.2007 FOR THE ASSESSMENT YEAR 2005-06 WRONGLY WHICH WAS RECTIFIED BY THE CCIT VIDE HER ORDER DATED 12.07.2010 FOR THE AS SESSMENT YEAR 2005-06 AND ONWARDS FOR ALL THE TIMES TO COME. FROM THE SA ID CHRONOLOGY, IT IS EVIDENT THAT THE ASSESSEE WAS HAVING APPROVAL U/S 1 0(23C)(VI) FROM THE CCIT VIDE ORDER DATED 13.08.2007, THOUGH THE SAME W AS RECTIFIED U/S 154 OF THE ACT ON 12.07.2010. THUS, THE ARGUMENT OF THE LD . DR THAT THE LD. CIT(A) HAS NOT DEALT WITH THE NON-FILING OF NOTICE UNDER EXPLANATION TO SECTION 11(1) OF THE ACT, IS WRONG SINCE THE SAME HAS BEEN DEALT WITH BY THE LD. CIT(A) VIDE PARA 4.4 OF HIS ORDER. IN FACT, THE ASSESSEE H AD OPTION TO MAKE CLAIM UNDER SECTION 10(23C)(VI) OR SECTION 11(1) OF THE A CT, IN VIEW OF THE DECISION OF THE ITAT, PUNE BENCH IN THE CASE OF BH ARATI VIDYAPEETH MEDICAL FOUNDATION VS. ACIT (SUPRA) AND THE ASSESSE E CANNOT BE FORCED TO GO FOR DEDUCTION U/S 11 OF THE ACT. THOUGH THE CLAI M WAS MADE BEFORE THE AO DURING ASSESSMENT PROCEEDINGS, AS AND WHEN THE A SSESSEE GOT THE RECTIFIED ORDER FROM CCIT. IT WAS ONLY UNDER THE EX CEPTIONAL CIRCUMSTANCES THAT THE ASSESSEE COULD NOT CLAIM EXEMPTION U/S 10( 23C(VI) OF THE ACT, AS MENTIONED HEREINABOVE. SUCH RECTIFICATION IS BOUND TO BE THERE IN VIEW OF CIRCULAR NO.725 DATED 16.10.1995 ISSUED BY THE CBDT , WHICH IS REPRODUCED FOR THE SAKE OF CONVENIENCE AS UNDER: ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 16 3. THE BOARD HAVE RECEIVED REPRESENTATIONS THAT QUITE OFTEN THE NOTIFICATIONS ARE ISSUED MUCH AFTER THE COMPLETION OF ASSESSMENTS OF RELEVANT PERSONS FOR THE RELEVANT ASSESSMENT YEARS. THE ASSESSING OFFICERS HAVE REJECTED APPLICATIONS UNDER SECTION 1 54 ON THE GROUND THAT THE NOTIFICATION WAS ISSUED SUBSEQUENT TO THE PASSING OF THE ASSESSMENT ORDER AND THUS THERE WAS NO MISTAKE APPA RENT FROM RECORD. 4. THE MATTER HAS BEEN EXAMINED. THE BOARD ARE OF THE VIEW THAT IN VIEW OF THE NOTIFICATION ISSUED AT A SUBSEQUENT DAT E BUT WHICH IS APPLICABLE TO THE ASSESSMENT YEAR/S INVOLVED IN THE APPLICATION, THERE IS A MISTAKE APPARENT FROM RECORD WHICH CAN BE RECT IFIED UNDER SECTION 154 OF THE INCOME-TAX ACT. HOWEVER, WHILE D ISPOSING OF THE RECTIFICATION APPLICATIONS, THE ASSESSING OFFICER M UST ENSURE THAT THE CONDITIONS SUBJECT TO WHICH THE APPROVAL WAS GRANTE D ARE SATISFIED. 10. IN VIEW OF CIRCULAR NO.725 DATED 16.10.1995 OF CBDT, MENTIONED HEREINABOVE, THE AO WAS UNDER OBLIGATION TO ALLOW E XEMPTION U/S 10(23C)(VI) OF THE ACT AND THERE IS NOTHING ON RECO RD THAT THE ASSESSEE HAS CONTRAVENED ANY OF THE CONDITIONS AS REQUIRED UNDE R SECTION 10(23C)(VI) OF THE ACT. THEREFORE, THE AO DURING ASSESSMENT PROCEE DINGS, IN VIEW OF THE SAID CIRCULAR, SHOULD HAVE ALLOWED EXEMPTION U/S 1 0(23C)(VI) INSPITE OF THE FACT THAT THE CLAIM ORIGINALLY MADE FOR DEDUCTION U /S 11 OF THE ACT. AS REGARDS THE DECISION IN THE CASE OF GOETZE (INDIA) LTD; VS CIT (2006) 284 ITR 323 BY THE HONBLE SUPREME COURT, THE DECISION IN SUCH CASES IS RESTRICTED TO THE POWER OF THE AO BUT IT DOES NOT I MPINGE POWERS OF THE ITAT UNDER SECTION 254 OF THE ACT. SINCE THE ASSESS EE IN VIEW OF THE CBDT ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 17 CIRCULAR NO.725 DATED 16.10.1995, AS MENTIONED HER EINABOVE AND ORDER OF CCIT DATED 13.08.2007 THOUGH RECTIFIED VIDE ORDER D ATED 12.07.2010 W.E.F. ASSESSMENT YEAR 2005-06 AND ONWARDS FOR ALL THE TIM ES TO COME, WE ARE OF THE VIEW THAT ASSESSEES INCOME IS EXEMPT UNDER SEC TION 10(23C)(VI) OF THE ACT AND WE FIND NO INFIRMITY IN THE ORDER OF THE LD . CIT(A) IN THIS REGARD. THUS, GROUNDS NO. 1, 2 & 3 OF THE REVENUE ARE DISMI SSED. 11. AS REGARDS GROUNDS NO. 4 & 5, WE CONCUR WITH T HE VIEWS OF THE LD. CIT(A), AS REPRODUCED HEREINABOVE, IN VIEW OF THE D ECISION IN THE CASE OF M/S. PINEGROVE INTERNATIONAL CHARITABLE TRUST (SUPR A), M/S. MANAV MANGAL SOCIETY (SUPRA) AND M/S. D.N.MEMORIAL TRUST (SUPRA) AND IN VIEW OF FINDINGS OF LD. CIT(A), IN PARTICULAR IN PARA 4.8 H EREINABOVE. ACCORDINGLY, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) . THUS, GROUNDS NO. 4 & 5 OF THE REVENUE ARE DISMISSED. 12. IN THE RESULT, THE APPEAL OF THE REVENUE IN ITA NO.397(ASR)/2012 FOR THE ASSESSMENT YEAR 2009-10 IS DISMISSED. 13. NOW, WE TAKE UP APPEAL OF THE REVENUE IN ITA NO .557(ASR)/2013 FOR THE A.Y. 2010-11. THE FACTS IN THE PRESENT APPEAL O F THE REVENUE ARE THAT THE AO DID NOT CONSIDER THE AMOUNT UTILIZED IN THE PURC HASE OF FIXED ASSETS FOR ACHIEVING THE EDUCATIONAL OBJECTIVES OF THE TRUST I N VIEW OF THE DECISION OF THE HONBLE HIGH COURT OF UTTRAKHAND IN THE CASE O F QUEENS EDUCATIONAL ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 18 SOCIETY. THE LD. CIT(A) RELYING UPON THE DECISION O F THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF M/S. PINEGROVE I NTERNATIONAL CHARITABLE TRUST (SUPRA) AND THE DECISION OF ITAT, AMRITSAR BE NCH IN THE CASE OF M/S. D.N. MEMORIAL TRUST (SUPRA) ALLOWED THE RELIEF TO T HE ASSESSEE. 14. THE FACTS IN THE PRESENT APPEAL OF THE REVENUE ARE IDENTICAL TO THE FACTS AS IN REVENUES APPEAL IN ITA NO.397(ASR)/201 2 FOR THE A.Y. 2009-10 IN GROUNDS NO. 4 & 5 DECIDED BY US HEREINABOVE. SIN CE THE FACTS ARE IDENTICAL, AS MENTIONED HEREINABOVE, OUR DECISION H EREINABOVE, IN THE CASE OF THE ASSESSEE FOR THE A.Y. 2009-10 ON THE ISSUE SHAL L BE IDENTICALLY APPLICABLE IN THE PRESENT APPEAL. ACCORDINGLY, WE FIND NO INFI RMITY IN THE ORDER OF THE LD. CIT(A). THUS, THE SOLE GROUND OF THE REVENUE IN ITA NO.557(ASR)/2013 IS DISMISSED. 15. NOW, WE TAKE UP APPEAL OF THE ASSESSEE IN ITA N O.537(ASR)/2013 FOR THE A.Y. 2010-11. GROUND NO.1 OF THE ASSESSEE HAS N OT BEEN PRESSED BY THE LD. COUNSEL FOR THE ASSESSEE AND THE SAME IS DISMIS SED AS NOT PRESSED. 16. WITH REGARD TO GROUNDS NO. 2 & 3, THE ADDITION ON ACCOUNT OF ACCUMULATION CLAIMED IN THE RETURN OF INCOME AS P ER EXPLANATION TO SECTION 11(1) WAS MADE AND THE ASSESSEE HAD CLAIMED THE EXE MPTION U/S 10(23C)(VI) OF THE ACT DURING THE ASSESSMENT PROCEEDINGS. THE SAID ACTION OF THE AO WAS CONFIRMED BY THE LD. CIT(A). SINCE THE FACTS IN THE PRESENT GROUNDS ARE ITA NO. 397(ASR)/2012 ITA NOS. 557 & 537(ASR)/2013 19 IDENTICAL TO THE FACTS IN REVENUES APPEAL IN GRO UNDS NO. 1, 2 & 3 ( ITA NO.397(ASR)/2012) FOR THE ASSESSMENT YEAR 2009-10 H EREINABOVE AND BEING IDENTICAL FACTS, OUR ORDER IN GROUNDS NO. 1, 2 & 3 FOR THE A.Y. 2009-10 HEREINABOVE SHALL BE IDENTICALLY APPLICABLE AND CL AIM OF THE ASSESSEE U/S 10(23C)(VI) OF THE ACT IS ALLOWED. ACCORDINGLY GROU NDS NO. 2 & 3 OF THE ASSESSEE ARE ALLOWED. THUS, THE APPEAL OF THE ASSES SEE IN ITA NO.537(ASR)/2013 IS PARTLY ALLOWED. 17. IN THE RESULT, THE APPEALS OF THE REVENUE IN IT A NO. 397(ASR)/2012 & ITA NO.557(ASR)/2013 ARE DISMISSED AND THAT OF THE ASSESSEE IN ITA NO.537(ASR)/2013 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25T H AUGUST, 2014. SD/- SD/- (A.D.JAIN) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 25TH AUGUST, 2014 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. DOGRA EDUCATIONAL TRUST, JAMMU 2. THE ITO WARD 1(1), JAMMU 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR