SHRI ISHWARLAL GULABCHAND VARDHAMANTAP AYAMBIL TRUST,PUNE V. ITO WARD 7(1), PUNE

ITA 1287/PUN/2025

AI Insights

The case involves two trusts, Shri Ishwarlal Gulabchand Vardhamantap Ayambil Trust and Shri Vasupujya Swami Maharaj Temple Trust, appealing against the orders of the National Faceless Appeal Centre, Delhi, which disallowed their claims for unspent amounts from their accumulation funds for FY 2016-17. The primary legal issue was whether the unspent amounts could be considered as income under section 11(3) of the Income Tax Act, 1961, and whether the amendment to this section was applicable retrospectively. The Tribunal referenced a similar case, Yashwantrao Chavan Maharashtra Open University Vs. CIT, which supported the trusts' position that the amendment was prospective and the funds could be utilized up to five years plus the year immediately following the accumulation period.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 711958 (ITAT-PUNE)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Assessment Year: 2023-2024
• Other Referred Cases: Yashwantrao Chavan Maharashtra Open University Vs. CIT, CIT vs. Vatika Township Pvt. Ltd., M/s. Phulchand Gulabchand Charitable Trust vs. ITO
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK KUMAR KEDIA
• Assessee Lawyers: PRAMOD S. SHINGTE
• Keywords: Set aside; Opportunity of being heard; Retrospective amendment; Principle of natural justice; Deemed to accrue or arise in india; Charitable institution
• Section: 143(3); 11; 12AA; 139; 10

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES “SMC”, PUNE BEFORE DR.MANISH BORAD, ACCOUNTANT MEMBER आयकर अपील सं. / ITA Nos.1287/PUN/2025 Shri Ishwarlal Gulabchand Vardhamantap Ayambil Trust, 657 Sachapir Street, Vasupujya Swami Jain Mandir, Jain Mandir Path, Camp, Pune 411001, Maharashtra PAN : AAGTS6900B Vs. Income Tax Officer Ward-7(1), Pune Appellant Respondent आयकर अपील सं. / ITA Nos.1288/PUN/2025 Shri Vasupujya Swami Maharaj Temple Trust 657 Sachapir Street, Camp, Pune 411001 Maharashtra PAN : AAATV4906E Vs. Income Tax Officer Exemption Ward-1(2), Pune Appellant Respondent आदेश / ORDER The captioned appeals at the instance of two different assessees are directed against the separate orders dated 11.04.2025 and 18.03.2025 of National Faceless Appeal Centre, Delhi passed u/s.250 of the Income-tax Act, 1961 (hereinafter also called ‘the Act’) arising out of the respective Intimation Orders passed u/s.143(1) of the Act. 2. Since common issues have been raised in both the impugned assessment years, I proceed to dispose these appeals by way of this consolidated order for the sake of convenience. Assessee by : Shri Pramod S. Shingte Revenue by : Shri Deepak Kumar Kedia Date of hearing : 09.07.2025 Date of pronouncement : 22.07.2025 Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 2 3. In ITA No.1287/PUN/2025 assessee has raised following grounds of appeal : “1. On the facts and in the circumstances of the case and in law, Ld. CPC has erred in disallowing the claim of Rs.22,86,213/- being unspent amount out of accumulation of FY 2016-17 by relying on omission of particular sentence from clause (c) of Subsection (2) of section (11), of IT Act, it is your appellants contention that said omission amounts to substantive amendment and therefore it cannot be applied retrospectively and such debatable issue cannot be considered as prima facie adjustment u/s.143(1) of IT Act. Your appellant prays for allowing such deduction of unspent amount. Your appellant prays for deletion of entire addition. Your appellant craves for to add, alter amend, modify, delete any or all grounds of appeal before or during the course of hearing in the interest of natural justice.” 4. In ITA No.1288/PUN/2025 assessee has raised following grounds of appeal : “1. On the facts and in the circumstances of the case and in law, Ld. CPC has erred in disallowing the claim of Rs. 26.03,230/- being unspent amount out of accumulation of FY 2016-17 by relying on omission of particular sentence from clause (c) of Subsection (2) of section (11), of IT Act, it is your appellants contention that said omission amounts to substantive amendment and therefore it cannot be applied retrospectively and such debatable issue cannot be considered as prima facie adjustment u/s.143(1) of IT Act. Your appellant prays for allowing such deduction of unspent amount. Your appellant prays for deletion of entire addition. Your appellant craves for to add, alter amend, modify, delete any or all grounds of appeal before or during the course of hearing in the interest of natural justice.” 5. I will first deal with ITA No.1287/PUN/2025 in the case of Shri Ishwarlal Gulabchand Vardhamantap Ayambil Trust. 6. At the outset, Ld. Counsel for the assessee submitted that the impugned disallowance has been made for not applying set apart accumulation funds during F.Y. 2016-17 within the period of five years as provided u/s.11(2) of the Act. Ld. Counsel for the assessee further submitted that issue in Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 3 the instant appeal is squarely covered by the decision of this Hon’ble Tribunal in the case of Yashwantrao Chavan Maharashtra Open University Vs. CIT – ITA No.505/PUN/2025 order dated 23.06.2025 wherein it has been held that amendment to provisions of section 11(3) are prospective in nature and that the funds accumulated and being set apart in the F.Y. 2016-17 can be applied upto 31.03.2023, i.e. five years plus the year immediately following the expiry period. 7. On the other hand, ld. Departmental Representative while supporting the order of ld.CIT(A) failed to controvert the contention of ld. Counsel for the assessee. 8. I have heard the rival contentions and perused the record placed before me. Assessee is a trust and filed return of income for A.Y. 2023-24 on 25.11.2023 declaring Nil income. CPC processed the return u/s.143(1)(a) of the Act and made addition of Rs.22,86,213/- being the unspent amount out of the accumulation fund of F.Y. 2016-17 by relying on the omission of particular sentence from clause (c) of sub-section (2) of section 11 of the Act. In the appeal before ld.CIT(A), it was stated from assessee’s side that the said omission amounts to substantive amendment and therefore it cannot be applied retrospectively and such debatable issue cannot be considered as prima-facie adjustment u/s.143(1) of the Act. Ld.CIT(A) was not satisfied with the contentions putforth by the assessee and dismissed the assessee’s appeal. 9. I further note that assessee is a charitable trust registered u/s.12A of the Act and is accumulating the funds as per the provisions of section 11(2) of the Act. Details for A.Y. 2017-18 to 2023-24 are as under : Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 4 Details of Accumulation u/s.11(2) Amount Set off C/F A.Y.2017-18 18,82,665 18,82,665 - A.Y. 2018-19 24,33,548 1,47,335 22,86,213 A.Y. 2019-20 24,50,201 - 24,50,201 A.Y. 2020-21 26,95,164 - 26,95,164 A.Y. 2021-22 13,85,953 - 13,85,953 A.Y. 2022-23 24,78,168 - 24,78,168 A.Y. 2023-24 25,69,983 - 25,69,983 Total 1,33,25,699 20,30,000 1,12,95,699 10. Now as per the above details of accumulation of funds, it has been claimed from the assessee’s side that for the accumulation during A.Y.2018-19 assessee could have applied the funds upto A.Y. 2024-25 relevant to F.Y. 2023-24 whereas ld.CIT(A) has held that the assessee was required to apply the accumulated funds within five years from the F.Y. 2018-19, i.e. upt A.Y. 2023-24. Now the very same issue has been dealt by this Coordinate Bench in the case of Yashwantrao Chavan Maharashtra Open University (supra) and the finding of this Tribunal reads as under : “15. We have heard the rival arguments made by both the sides, perused the order passed by the CPC and the Ld. Addl / JCIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the assessee in the instant case filed its return of income on 30.11.2023 declaring total income as Nil. Since the assessee has accumulated an amount of Rs.90,70,20,511/- during the financial year 2016-17 and has utilized the same by 31.03.2023 i.e. in the 6th year of accumulation, the CPC taxed it in the 6th year i.e. financial year 2022-23. We find in appeal the Ld. Addl / JCIT(A) upheld the addition made by the CPC, the reasons of which have already been reproduced in the preceding paragraphs. It is the submission of the Ld. Counsel for the assessee that the provisions of the Income Tax Act, 1961 as applicable to assessment year 2023-24 provides for taxation in the 5th year only and not in 6th year, therefore, taxing it in the 6th year ought to be deleted. It is his submission that for the amounts which are accumulated in assessment year 2017-18, the amount was taxable only if such accumulated amount was not Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 5 applied within 6 years from the year of accumulation i.e. 5 years plus one year. Since the assessee has applied such accumulated amount within 6 years therefore, it is not taxable in that year also. It is also his alternate submission that since the issue is a debatable one, therefore, no adjustment can be made by the CPC. Further, it is his submission that the amendment to section 11(3) of the Act is to be applicable prospectively i.e. applicable for the amounts accumulated from assessment year 2023-24 and onwards and not for the amounts which were accumulated earlier. 16. We find some force in the arguments of the Ld. Counsel for the assessee on this issue. The provisions of section 11(2) and 11(3) of the Act as stood at the relevant time read as under: “11(1)….. (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 furnishes a statement in the prescribed form and in the prescribed manner to the Assessing Officer, stating 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 five years; (b) the money so accumulated or set apart is invested or deposited in the forms or modes specified in sub-section (5); (c) the statement referred to in clause (a) is furnished on or before the due date specified under sub-section (1) of section 139 for furnishing the return of income for the previous year: Provided that in computing the period of five years referred to in clause (a), the period during which the income could not be applied for the purpose for which it is so accumulated or set apart, due to an order or injunction of any court, shall be excluded. Explanation.—Any amount credited or paid, out of income referred to in clause (a) or clause (b) of sub-section (1), read with the Explanation to that sub-section, which is not applied, but is accumulated or set apart, to any trust or institution registered under section 12AA [or section 12AB] or to any fund or institution or trust or any university or other educational institution or any hospital or other medical Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 6 institution referred to in sub-clause (iv) or sub-clause (v) or sub-clause (vi) or sub-clause (via) of clause (23C) of section 10, shall not be treated as application of income for charitable or religious purposes, either during the period of accumulation or thereafter. (3) Any income referred to in sub-section (2) which— (a) is applied to purposes other than charitable or religious purposes as aforesaid or ceases to be accumulated or set apart for application thereto, or (b) ceases to remain invested or deposited in any of the forms or modes specified in sub-section (5), or (c) is not utilised for the purpose for which it is so accumulated or set apart during the period referred to in clause (a) of that sub-section [or in the year immediately following the expiry thereof], (d) is credited or paid to any trust or institution registered under section 12AA [or section 12AB] or to any fund or institution or trust or any university or other educational institution or any hospital or other medical institution referred to in sub-clause (iv) or sub-clause (v) or sub-clause (vi) or sub- clause (via) of clause (23C) of section 10, [shall be deemed to be the income of such person of the previous year in which it is so applied or ceases to be so accumulated or set apart or ceases to remain so invested or deposited or credited or paid or, as the case may be, of the previous year immediately following the expiry of the period aforesaid]” 17. A perusal of the above shows that the words “or in the year immediately following the expiry thereof” was omitted by the Finance Act, 2022 w.e.f. 01.04.2023 which is applicable for assessment year 2023-24 onwards. It is an admitted fact that when the trust accumulated an amount of Rs.90,70,20,511/- during the financial year 2016-17 it was required to utilize the same within a period of 5 years from the end of the relevant assessment year or in the year immediately following the expiry thereof. In other words, the assessee was required to utilize the same before the end of the 6th year i.e. financial year 2022-23. The assessee in the instant case undisputedly has utilized the amount before 31.03.2023. 18. We find the relevant provisions of Memorandum explaining provisions of the Finance Bill, 2022 read as under: “4. Bringing consistency in the provisions of two exemption regimes As mentioned earlier, there is a requirement for alignment of certain provisions of the two regimes as they both intend to grant similar benefit. 4.1 Accumulation provisions Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 7 i) Under the existing provisions of the Act, a trust or institution is required to apply 85% of its income during any previous year. However, if it is not able to apply 85% of its income during the previous year, it is allowed to accumulate such income for a period not exceeding 5 years as per the following provisions, namely: (I) sub-section (2) of section 11 of the Act for the trusts or institution under the second regime; and (II) third proviso to clause (23C) of section 10 of the Act for trusts or institution under the first regime. ii) However, the accumulation of income, as per the provisions of sub-section (2) of section 11 of the Act is allowed subject to the fulfilment of certain conditions while there are no such conditions specifically provided under the third proviso to clause (23C) of section 10 of the Act; iii) Similarly, sub-section (3) of section 11 of the Act provides for the specific previous year in which the accumulated income will be subjected to tax in case of different types of violations. It, inter alia, provides that if the accumulated income is not applied within 5 years, it shall be taxed in the 6th year. While, on the other hand, there are no such specific provisions under clause (23C) of section 10 of the Act and therefore, if the accumulated income is not applied within 5 years, the same shall be taxed in the 5th year itself. iv) In order to bring consistency in the two regimes, the following are proposed:- A) It is proposed to amend the provisions of sub-section (3) of section 11 of the Act to provide that any income referred to in sub-section (2) which is not utilised for the purpose for which it is so accumulated or set apart shall be deemed to be the income of such person of the previous year being the last previous year of the period, for which the income is accumulated or set apart under clause (a) of subsection (2) of section 11, but not utilised for the purpose for which it is so accumulated or set apart. B) It is proposed to insert Explanation 3 to the third proviso to clause (23C) of section 10 of the Act to provide that for the purposes of determining the amount of application under this proviso, where eighty-five per cent of the income referred to in clause (a) of the third proviso, is not applied, wholly and exclusively to the objects for which the trust or institution under the first regime is established, during the previous year but is accumulated or set apart, either in whole or in part, for application to such objects, 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:— Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 8 (a) such person furnishes a statement in the prescribed form and in the prescribed manner to the Assessing Officer, stating 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 five years; (b) the money so accumulated or set apart is invested or deposited in the forms or modes specified in sub-section (5) of section 11; and (c) the statement referred to in clause (a) of Explanation 3 is furnished on or before the due date specified under sub-section (1) of section 139 for furnishing the return of income for the previous year; C) It is proposed to insert a proviso to the proposed Explanation 3 to the third proviso to clause (23C) of section 10 of the Act to provide that in computing the period of five years referred to in sub-clause (a), the period during which the income could not be applied for the purpose for which it is so accumulated or set apart, due to an order or injunction of any court, shall be excluded. D) It is also proposed to insert an Explanation (Explanation 4) to third proviso to clause (23C) of section 10 to provide that any income referred to in the proposed Explanation 3 shall be deemed to be the income of the previous year in which the following takes place— (a) the income is applied for purposes other than wholly and exclusively to the objects for which the trust or institution under the first regime is established or ceases to be accumulated or set apart for application thereto, or (b) the income ceases to remain invested or deposited in any of the forms or modes specified in sub- section (5) of section 11, or (c) the income is not utilised for the purpose for which it is so accumulated or set apart during the period referred to in clause (a) of the proposed Explanation 3, (d) the income is credited or paid to any trust or institution under the first or second regime. For the circumstances referred to in clause (c), it is proposed that the income shall be deemed to be the income of previous year which is the last previous year of the period, for which the income is accumulated or set apart under sub-clause (a) of clause (iii) of the proposed Explanation 3, but not utilised for the purpose for which it is so accumulated or set apart. E) It is proposed to insert an Explanation (Explanation 5) to third proviso to clause (23C) of section 10 of the Act to enable the Assessing Officer to allow trusts or institutions under the first regime in circumstances beyond their control to apply such accumulated income for such other purpose in India as is Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 9 specified in the application by such person subsequent to fulfilment of specified conditions. These other purposes are required to be in conformity with the objects for which the trust or institution under the first regime is established. If it is done, the provisions of Explanation 4 to third proviso to clause (23C) of section 10 shall apply as if the purpose specified by such person in the application under this Explanation were a purpose specified in the notice given to the Assessing Officer under clause (a) of the proposed Explanation 3 of the third proviso to clause (23C) of section 10. F) It is proposed to insert a proviso to proposed Explanation 5 to third proviso to clause (23C) of section 10 of the Act to provide that the Assessing Officer shall not allow the application of any accumulated income, as referred to in the proposed Explanation 3, to be credited or paid to any trust or institution under the first or second regime, as referred to in clause (d) of proposed Explanation 4 to the third proviso to clause (23C) of section 10 v) These amendments will take effect from 1st April, 2023 and will accordingly apply in relation to the assessment year 2023-24 and subsequent assessment years. [Clauses 4 and 5 ]” 19. We find the Hon'ble Supreme Court in the case of CIT vs. Vatika Township Pvt. Ltd. (2014) 367 ITR 466 (SC) on the issue of interpretation of taxing statutues about retrospective amendment and prospective amendment, has held as under: “30. A legislation, be it a statutory Act or a statutory Rule or a statutory Notification, may physically consists of words printed on papers. However, conceptually it is a great deal more than an ordinary prose. There is a special peculiarity in the mode of verbal communication by a legislation. A legislation is not just a series of statements, such as one finds in a work of fiction/non fiction or even in a judgment of a court of law. There is a technique required to draft a legislation as well as to understand a legislation. Former technique is known as legislative drafting and latter one is to be found in the various principles of ‘Interpretation of Statutes’. Vis-à-vis ordinary prose, a legislation differs in its provenance, lay-out and features as also in the implication as to its meaning that arise by presumptions as to the intent of the maker thereof. 31. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow’s backward adjustment of it. Our belief in the nature of the law is founded on the bed rock Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 10 that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit : law looks forward not backward. As was observed in Phillips vs. Eyre[3], a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. 32. The obvious basis of the principle against retrospectivity is the principle of 'fairness’, which must be the basis of every legal rule as was observed in the decision reported in L’Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co.Ltd[4]. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later. 33. We would also like to point out, for the sake of completeness, that where a benefit is conferred by a legislation, the rule against a retrospective construction is different. If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural provisions as retrospective. In Government of India & Ors. v. Indian Tobacco Association[5], the doctrine of fairness was held to be relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. The same doctrine of fairness, to hold that a statute was retrospective in nature, was applied in the case of Vijay v. State of Maharashtra & Ors.[6] It was held that where a law is enacted for the benefit of community as a whole, even in the absence of a provision the statute may be held to be retrospective in nature. However, we are confronted with any such situation here. 34. In such cases, retrospectively is attached to benefit the persons in contradistinction to the provision imposing some burden or liability where the presumption attaches towards prospectivity. In the instant case, the proviso added to Section Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 11 113 of the Act is not beneficial to the assessee. On the contrary, it is a provision which is onerous to the assessee. Therefore, in a case like this, we have to proceed with the normal rule of presumption against retrospective operation. Thus, the rule against retrospective operation is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. Dogmatically framed, the rule is no more than a presumption, and thus could be displaced by out weighing factors.” 20. We find the Bangalore ‘C' Bench of the Tribunal in the case of M/s. Phulchand Gulabchand Charitable Trust vs. ITO (supra) has observed as under: “3. The facts are that assessee had surplus income of Rs.1,93,64,000 in FY 2007-08 relevant to AY 2008-09 on account of sale of immovable property of the assessee trust. The objects of the trust, we may notice, was to run schools, colleges, dispensaries, Dharmashalas, etc. The assessee could not apply the aforesaid surplus for charitable purposes in AY 2008-09 and had applied for accumulation of such surplus in terms of section 11(2) of the Act. As per the provisions of section 11(2), accumulation is allowed for a period of 5 years. It is not in dispute that such accumulation was allowed by the AO for the AY 2008-09. 4. In AY 2013-14 which is the Assessment year in appeal, the AO held that since the five years period expires in AY 2013- 14, and since the assessee did not utilize the sum accumulated for charitable purpose in terms of section 11(3)(c) of the Act, the sum accumulated and which remains unspent for charitable purposes, shall be deemed to be income of the person, of the previous year, immediately following the expiry of the period aforesaid. The relevant provisions of Sec.11(3) read as follows: “(3) Any income referred to in sub-section (2) which— (a) is applied to purposes other than charitable or religious purposes as aforesaid or ceases to be accumulated or set apart for application thereto, or (b) ceases to remain invested or deposited in any of the forms or modes specified in sub-section (5), or (c) is not utilised for the purpose for which it is so accumulated or set apart during the period referred to in clause (a) of that subsection or in the year immediately following the expiry thereof, (d) is credited or paid to any trust or institution registered under section 12AA or to any fund or institution or trust or any university or other educational institution or any hospital or other medical institution referred to in sub-clause (iv) or sub- Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 12 clause (v) or sub-clause (vi) or sub-clause (via) of clause (23C) of section 10, shall be deemed to be the income of such person of the previous year in which it is so applied or ceases to be so accumulated or set apart or ceases to remain so invested or deposited or credited or paid or], as the case may be, of the previous year immediately following the expiry of the period aforesaid.” 5. A reading of Clause (c) of Sec.11(3) of the Act would show that the time allowed for applying accumulation for charitable purpose is 5 year and one year following the expiry of 5 years. This is clear from the expression used “or in the year immediately following the expiry thereof”. The previous year following the expiry of period of 5 years from AY 2008-09 will be AY 2014-15 and not AY 2013-14. This appeal relates to AY 2013-14 in which the AO sought to apply the provisions of section 11(3)(c). The Assessee did not raise such a plea regarding the applicability of the aforesaid provisions in AY 2014-15 only. 6. There is a reference to section 11(3)(d) in the order of AO, which in our opinion, is not the correct provision of law. Since the assessee did not give any explanation in not utilising the surplus funds accumulated, the AO brought to tax a sum of Rs.1,93,54,000. 7. Before the CIT(Appeals), the plea of assessee was that it had utilised the accumulated surplus for construction of a hostel building and products accounts evidencing income & expenditure towards the same. This plea of the assessee was rejected for the following reasons:- “5.0) I have gone through the facts of the case and the submissions of the appellant. The provisions of section 11(2)(a) is as under: \"If the accumulated amount or any part thereof is not utilised for the specified purposes during the period of accumulation or during the year immediately following the expiry thereof, the amount which has not been so utilised will be liable to tax as income of the previous year immediately following the expiry of the accumulation period.\" In course of appellate proceedings the appellant has not furnished any details before me with regard to the said claim of expenditure pertaining to construction of hostel building and the advances given for the construction of building over the periods, which it claimed. A simple claim of maintenance of book of account is not sufficient. Further no details whatsoever were furnished before me regarding the claim that advance for purchase of property was made, with any corroborative evidence, that it incurred expenditure out of the Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 13 above surplus amount. In absence of the above, I do not hesitate in concluding that the action of the AO was correct and the addition was made rightly. The grounds 1 to 4 and 6 are hereby dismissed.” 8. The Assessee did not raise plea regarding the applicability of the aforesaid provisions of Sec.11(3)(c ) of the Act only in AY 2014-15 only. Aggrieved by the order of CIT(Appeals), the assessee has preferred the present appeal before the Tribunal. 9. As we have already noticed, the period of 5 years for spending the accumulated surplus for AY 2008-09 “or in the year immediately following the expiry thereof” is only AY 2014-15. This aspect has been highlighted by the assessee in ground Nos.2 to 4 in its appeal before the Tribunal, which reads as follows:- “2. That the learned CIT( A) ought to have appreciated that u/s 11(3)(c) of the Income Tax Act, 1961 provides that accumulated income should be utilized during the 5 years period of accumulation or in the year immediately following the expiry thereof. That means, in the facts & circumstances of this case, the assesee at liberty to utilize the accumulated surplus up to 31-03- 2014. Now in this case, the assessee has utilized of Rs,1,67,47,400/- as investment in poor student hostel in the year 2013-14. Therefore, there is no contravention of section 11(3) and the accumulated surplus up to 31- 3-2013 cannot become deemed income of the assessee for the assessment year 2013-14. 3. That the learned CIT(A) has failed to take note of the AO assessment order u/s.143(3) of the Act, dated 26..12,2016 for the A Y 2014-15, Wherein the learned .A0 has concluded the assessment after considering the bonafide explanation offered by the assessee and allowed the claim of Rs.1„67,47,400/- out of total surplus of Rs.1,93,54,529/- and the remaining balance of Rs:26 07,129 was treated as income u/s. 13(1)(c) of the Act. 4. That the learned CIT(A) has failed to appreciate the fact that the appellant has furnished all the details with regard to claim of expenditure pertaining to construction of hostel building and other advances given for building over the periods have been produced before the AO during the course of assessment proceedings for the A Y 2014-15 and the same was considered and accepted by the AO.” 10. The ld. counsel for the assessee has also filed before us a copy of the order of assessment for AY 2014-15 wherein the AO has accepted the utilization of accumulated surplus in AY 2008-09 for charitable purpose in AY 2014-15. The ld. Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 14 Counsel for the assessee drew our attention to the fact that the assessee had spent a sum of Rs.1,67,47,400 and to this extent, the application of income for charitable purposes has been accepted by the AO in AY 2014-15 in the order of assessment dated 26.12.2016 passed u/s. 143(3) of the Act. 11. The ld. DR while relying on the order of CIT(Appeals) submitted that this aspect has not been examined either by the AO or the CIT(Appeals) and therefore the issue should be sent back to the AO for fresh consideration in the light of order of assessment for AY 2014-15. 12. We have considered the rival submissions and are of the view that the issue raised now before the Tribunal in the form of grounds of appeal which we have extracted in the earlier part of the order should be considered by the AO. If AY 2013- 14 is not the period within which the accumulated surplus has to be applied, then the addition made should be deleted. We therefore set aside the order of CIT(Appeals) and remand this issue for fresh consideration by the AO, after affording opportunity of being heard to the assessee. 13. In the result, the appeal by the assessee is treated as allowed for statistical purposes.” 21. In light of the above discussion, we are of the considered opinion that since the assessee in the instant case has utilized the accumulated surplus funds in the year immediately following the prescribed period of 5 years i.e. before 31.03.2023 and the amendment to the provisions of section 11(3) are held to be prospective in nature, therefore, the Ld. Addl / JCIT(A) in our opinion is not justified in upholding the intimation of the CPC making adjustment of Rs.90,70,20,511/- u/s 11(3) as deemed income of the assessee which was accumulated in the financial year 2016-17 and when the provisions at the relevant time prescribed the utilization of the amount within a period of 5 years or in the year immediately following the prescribed period of 5 years. Even otherwise also we find merit in the argument of the Ld. Counsel for the assessee that the 5 year period ends on 31.03.2022 and therefore the unutilized amount could have been brought to tax in assessment year 2022-23 and not in assessment year 2023-24. In the light of the above discussion, we set aside the order of the Ld. Addl / JCIT(A) on this issue and direct the Assessing Officer/CPC to delete the adjustment. The grounds raised by the assessee are accordingly allowed. 22. In the result, the appeal filed by the assessee is allowed.” 11. After going through the facts of the instant case in the light of decision cited (supra), I find that the above decision is squarely applicable and at the relevant time when the funds were accumulated and set apart the prescribed time for Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 15 utilisation of the amount was within a period of five years or in the year immediately following the prescribed period of five years and therefore for the case under consideration where the amount was accumulated during F.Y. 2016-17 assessee had time to apply the accumulated funds for charitable purposes upto 31.03.2024, i.e. A.Y. 2024-25. Therefore, ld.CIT(E) erred in confirming the action of CPC making the addition for the year under appeal for A.Y. 2023-24. Finding of ld.CIT(E) is set aside and the impugned addition is hereby deleted. Grounds of appeal raised by the assessee are allowed. 12. Since the facts and issues in the case of ITA No.1288/PUN/2025 are identical to the facts and issues in ITA No.1287/PUN/2025 except for the amount of accumulation fund amount, i.e. Rs.26,03,230/- being unspent amount out of the accumulation for F.Y. 2016-17, therefore, my decision given in ITA No.1287/PUN/2025 would apply mutatis mutandis to this appeal as well. 11. In the result, appeals of the respective assessees are allowed as per terms indicated hereinabove. Order pronounced on this 22nd day of July, 2025. Sd/- (MANISH BORAD) ACCOUNTANT MEMBER पुणे / Pune; \u0001दनांक / Dated : 22nd July, 2025. Satish Printed from counselvise.com ITA Nos.1287 and 1288/PUN/2025 16 आदेश क\u0002 \u0003ितिलिप अ ेिषत / Copy of the Order forwarded to : 1. अपीलाथ / The Appellant. 2. \u000eयथ / The Respondent. 3. The Pr. CIT concerned. 4. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, “SMC” ब\u0014च, पुणे / DR, ITAT, “SMC” Bench, Pune. 5. गाड\u0004 फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune Printed from counselvise.com "