TATTWAJNANA VIDYAPEETH,MUMBAI V. DCIT(E)-2(1), MUMBAI

ITA 4800/MUM/2024

AI Insights

The case involves Tattwajnana Vidyapeeth, a trust, appealing against the orders of the National Faceless Appeal Centre (NFAC), Delhi, which had added certain income to the trust's taxable income for the assessment years 2009-10, 2010-11, and 2011-12. The income in question was derived from dividends and agricultural activities, which the trust claimed were exempt under sections 10(34) and 10(1) of the Income Tax Act. The Assessing Officer had disagreed with these claims, leading to the appeals. The Tribunal considered the precedents set in similar cases, particularly the decisions of the CIT(A) in favor of the assessee based on judicial interpretations that income exempt under section 10 cannot be subjected to tax under section 11 when derived from property held under trust. The Tribunal's decision also involved a detailed examination of the application of section 11 concerning the trust's expenditures on construction, which was a point of contention in the disallowance of deductions.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 39668 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 19-11-2024
• Assessment Year: 2009-2010
• Appeal Filed On: 19-09-2024
• Other Referred Cases: DIT(E) vs. Jasubhai Foundation, Jamsetji Tata Trust vs. JDIT
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ SINGH MEEL; DR
• Assessee Lawyers: RAJESH SHAH; AR
• Keywords: Set aside; Opportunity of being heard; TDS; Earning of tax free income; Deemed to accrue or arise in india; Charitable institution
• Section: 147; 11; 194A; 13; 10

Judgement Text

" | | | | आयकरअपीलीयअिधकरण\fायपीठ,मुंबई| | | | IN THE INCOME TAX APPELLATE TRIBUNAL “E” BENCH, MUMBAI BEFORE SHRI SANDEEP GOSAIN, HON’BLE JUDICIAL MEMBER & SHRI PRABHASH SHANKAR, HON’BLE ACCOUNTANT MEMBER I.T.A. No.4800/Mum/2024 Assessment Year: 2009-10 I.T.A. No. 4798/Mum/2024 Assessment Year: 2010-11 & I.T.A. No. 4799/Mum/2024 Assessment Year: 2011-12 Tattwajnana Vidyapeeth 2, Nirmal Niketan Dr. Bhajekar Street Prathna Samaj Mumbai - 400004 [PAN: AAATT0261E] Vs DCIT(E)-2(1), Mumbai अपीलाथ\u0015/ (Appellant) \u0016त् यथ\u0015/ (Respondent) Assessee by : Shri Rajesh Shah, A/R Revenue by : Shri Raj Singh Meel, Sr. D/R सुनवाईकीतारीख/Date of Hearing : 19/11/2024 घोषणाकीतारीख/Date of Pronouncement : 27/11/2024 आदेश/O R D E R PER SANDEEP GOSAIN, JM: The present appeals by theassesseeare preferred against the separate orders passed by the NFAC, Delhi [hereinafter ‘the ld. CIT(A)’]dated 30/07/2024, 29/07/2024 & 01/08/2024pertaining to AYs2009-10, 2010-11 & 2011-12 respectively. 2. As the issues arising in all these appeals are identical, they were heard together and are disposed off by way of this common order. 3. At the concession of the representatives, we have heard the appeal for AY 2009-10 and are considering the facts for AY 2009-10 as the facts for AY 2010-11 & 2011-12 are mutatis mutandis the same. 4. The ld. A/R, stated before the Bench that he did not want to press Ground No. 1 and 2 which relate to challenging the initiation of re assessment proceedings u/s 147 of the Act. Therefore, considering the statement of the ld. A/R, Ground No. 1 & 2 stands d pressed. 5. Coming to Ground No submitted that the above ground is squarely covered in favour of the assessee by the decision of the Co for AY 2012-13. The ld. D/R, though not leaving his grounds, could not place on record any contrary decision in favour of the revenue. 6. We have heard rival contentions. We find that the Co Bench in assessee’s own case for AY 2012 identical facts and held as under “3. The brief facts of the case are that during the year the assessee has derived in by way of dividend Rs.66,06,853/ claimed as exempt under section 10(34) and 10(1) of the Act respectively. However, the AO did not agree with the contentions of the assessee that the said incomes are exempt under section 10 and accordingly added the same to the income of the assessee by holding that the exemption under section 10 is not available where the income is derived from property held under Trust and the income has to be dealt with as per provision of section 11 of the Act. 4. The Ld. CIT(A) allowed the appeal of the assessee after considering the contentions and submissions of the assessee during the appellate proceeding and after relying on the decision of ITAT in the case of Jamsetji Tata Tru the decision of the Hon’ble Bombay High Court in the case of DIT(E) vs. Jasubhai Foundation 374 ITR 215 (Bombay HC). 5. The Ld. A.R. prayed before the Bench that the issue involved in the appeal of the Revenue is covered in Court in the case of DIT(E) vs. Jasubhai Foundation (supra) wherein it has been held that the income which is exempt under the provision of section 10 can not be subject to the provision of section 11 and thus upheld the decision of the IT relied on the decision of Jamsetji Tata Trust vs. JDIT (supra) wherein a similar I.T.A. No. 4800/Mum/2024 I.T.A. No. 4798/Mum/2024 I.T.A. No. 4799/Mum/2024 2 The ld. A/R, stated before the Bench that he did not want to press Ground No. 1 and 2 which relate to challenging the initiation of re assessment proceedings u/s 147 of the Act. Therefore, considering the statement of the ld. A/R, Ground No. 1 & 2 stands dismissed as not Coming to Ground Nos. 3 & 4, at the very outset, the ld. A/R submitted that the above ground is squarely covered in favour of the assessee by the decision of the Co-ordinate Bench in assessee’s own case D/R, though not leaving his grounds, could not place on record any contrary decision in favour of the revenue. We have heard rival contentions. We find that the Co Bench in assessee’s own case for AY 2012-13 had the occasion to consider identical facts and held as under :- “3. The brief facts of the case are that during the year the assessee has derived in by way of dividend Rs.66,06,853/- and agricultural income Rs.1,82,866/ claimed as exempt under section 10(34) and 10(1) of the Act respectively. However, the AO did not agree with the contentions of the assessee that the said incomes are xempt under section 10 and accordingly added the same to the income of the assessee by holding that the exemption under section 10 is not available where the income is derived from property held under Trust and the income has to be dealt with as per ion of section 11 of the Act. 4. The Ld. CIT(A) allowed the appeal of the assessee after considering the contentions and submissions of the assessee during the appellate proceeding and after relying on the decision of ITAT in the case of Jamsetji Tata Trust vs. JDIT (E) 148 ITR 388 and the decision of the Hon’ble Bombay High Court in the case of DIT(E) vs. Jasubhai Foundation 374 ITR 215 (Bombay HC). 5. The Ld. A.R. prayed before the Bench that the issue involved in the appeal of the Revenue is covered in favour of the assessee by the decision of the Jurisdictional High Court in the case of DIT(E) vs. Jasubhai Foundation (supra) wherein it has been held that the income which is exempt under the provision of section 10 can not be subject to section 11 and thus upheld the decision of the ITAT. The Ld. A.R. also the decision of Jamsetji Tata Trust vs. JDIT (supra) wherein a similar I.T.A. No. 4800/Mum/2024 I.T.A. No. 4798/Mum/2024 & I.T.A. No. 4799/Mum/2024 The ld. A/R, stated before the Bench that he did not want to press Ground No. 1 and 2 which relate to challenging the initiation of re- assessment proceedings u/s 147 of the Act. Therefore, considering the ismissed as not . 3 & 4, at the very outset, the ld. A/R submitted that the above ground is squarely covered in favour of the ordinate Bench in assessee’s own case D/R, though not leaving his grounds, could not place on We have heard rival contentions. We find that the Co-ordinate 13 had the occasion to consider “3. The brief facts of the case are that during the year the assessee has derived income and agricultural income Rs.1,82,866/- which were claimed as exempt under section 10(34) and 10(1) of the Act respectively. However, the AO did not agree with the contentions of the assessee that the said incomes are xempt under section 10 and accordingly added the same to the income of the assessee by holding that the exemption under section 10 is not available where the income is derived from property held under Trust and the income has to be dealt with as per 4. The Ld. CIT(A) allowed the appeal of the assessee after considering the contentions and submissions of the assessee during the appellate proceeding and after relying on st vs. JDIT (E) 148 ITR 388 and the decision of the Hon’ble Bombay High Court in the case of DIT(E) vs. Jasubhai 5. The Ld. A.R. prayed before the Bench that the issue involved in the appeal of the favour of the assessee by the decision of the Jurisdictional High Court in the case of DIT(E) vs. Jasubhai Foundation (supra) wherein it has been held that the income which is exempt under the provision of section 10 can not be subject to AT. The Ld. A.R. also the decision of Jamsetji Tata Trust vs. JDIT (supra) wherein a similar question was decided in favour of the assessee by holding that a dividend income on share, mutual fund section 10(36), 10(34), 10(38) respectively and can not be brought to a tax by application of section 11 and 13 of the Act. 6. The Ld. D.R., on the other hand, relied on the grounds of appeal an AO. 7. We have heard the rival submissions of both the parties and perused the material on record including the decisions cited by the Ld. A.R. The undisputed facts are that the assessee received income of Rs.66,06,853/ way of agricultural income which were claimed exempt under section 10(34) and 10(1) of the Act respectively. The AO denied the said exemption under section 10 as claimed by the assessee and invoked the provision of section 11 to th holding that where the income is derived from a property held under Trust that has to be dealt with in accordance with the provisions of section 11 and provisions of section 10 has no application. The Ld. CIT(A) allowed the appeal of the a following the jurisdictional High Court in the case of DIT(E) vs. Jasubhai Foundation (supra) and Jamsetji Tata Trust vs. JDIT (supra). From the perusal of the above decisions, it is apparent that the case of the assessee is squarely covered the ratio laid down by the Hon’ble Bombay High Court and co Tribunal holding that where the Trust derives income from dividend or any other exempt income which is claimed exempt under section 10 of the Act, the same c not be brought to tax by invoking the provision of section 11 of the Act. Keeping in view the facts if the assessee in the light of the decisions as discussed hereinabove, we dismiss the appeal of the Revenue by upholding the order of Ld. CIT(A). 7. Consistent with the decision of the Co allow Ground Nos. 3 & 4 raised by the assessee. 8. As regards Ground No. 5 which relates to disallowance of deduction u/s 11 of the Act, at the very outset, the ld. A/R submitted that the above ground is squarely covered in favour of the assessee by the decision of the Co-ordinate Bench in assessee’s own case for AY 2012 The ld. D/R, though not leaving his grounds, could not place on record any contrary decision in favour of the revenue. 9. We have heard rival contentions. We find that the Co Bench in assessee’s own case for AY 2012 identical facts and held as under : I.T.A. No. 4800/Mum/2024 I.T.A. No. 4798/Mum/2024 I.T.A. No. 4799/Mum/2024 3 question was decided in favour of the assessee by holding that a dividend income on share, mutual fund and long term capital gain on sale of shares is exempt under section 10(36), 10(34), 10(38) respectively and can not be brought to a tax by application of section 11 and 13 of the Act. 6. The Ld. D.R., on the other hand, relied on the grounds of appeal an 7. We have heard the rival submissions of both the parties and perused the material on record including the decisions cited by the Ld. A.R. The undisputed facts are that the assessee received income of Rs.66,06,853/- by way of dividend and Rs.1,82,866/ way of agricultural income which were claimed exempt under section 10(34) and 10(1) of the Act respectively. The AO denied the said exemption under section 10 as claimed by the assessee and invoked the provision of section 11 to th holding that where the income is derived from a property held under Trust that has to be dealt with in accordance with the provisions of section 11 and provisions of section 10 has no application. The Ld. CIT(A) allowed the appeal of the a following the jurisdictional High Court in the case of DIT(E) vs. Jasubhai Foundation (supra) and Jamsetji Tata Trust vs. JDIT (supra). From the perusal of the above decisions, it is apparent that the case of the assessee is squarely covered the ratio laid down by the Hon’ble Bombay High Court and co-ordinate Bench of the Tribunal holding that where the Trust derives income from dividend or any other exempt income which is claimed exempt under section 10 of the Act, the same c not be brought to tax by invoking the provision of section 11 of the Act. Keeping in view the facts if the assessee in the light of the decisions as discussed hereinabove, we dismiss the appeal of the Revenue by upholding the order of Ld. CIT(A). Consistent with the decision of the Co-ordinate Bench allow Ground Nos. 3 & 4 raised by the assessee. As regards Ground No. 5 which relates to disallowance of deduction u/s 11 of the Act, at the very outset, the ld. A/R submitted that the bove ground is squarely covered in favour of the assessee by the ordinate Bench in assessee’s own case for AY 2012 The ld. D/R, though not leaving his grounds, could not place on record any contrary decision in favour of the revenue. We have heard rival contentions. We find that the Co Bench in assessee’s own case for AY 2012-13 had the occasion to consider identical facts and held as under :- I.T.A. No. 4800/Mum/2024 I.T.A. No. 4798/Mum/2024 & I.T.A. No. 4799/Mum/2024 question was decided in favour of the assessee by holding that a dividend income on and long term capital gain on sale of shares is exempt under section 10(36), 10(34), 10(38) respectively and can not be brought to a tax by 6. The Ld. D.R., on the other hand, relied on the grounds of appeal and the order of the 7. We have heard the rival submissions of both the parties and perused the material on record including the decisions cited by the Ld. A.R. The undisputed facts are that the end and Rs.1,82,866/- by way of agricultural income which were claimed exempt under section 10(34) and 10(1) of the Act respectively. The AO denied the said exemption under section 10 as claimed by the assessee and invoked the provision of section 11 to the said income by holding that where the income is derived from a property held under Trust that has to be dealt with in accordance with the provisions of section 11 and provisions of section 10 has no application. The Ld. CIT(A) allowed the appeal of the assessee after following the jurisdictional High Court in the case of DIT(E) vs. Jasubhai Foundation (supra) and Jamsetji Tata Trust vs. JDIT (supra). From the perusal of the above decisions, it is apparent that the case of the assessee is squarely covered in its favour by ordinate Bench of the Tribunal holding that where the Trust derives income from dividend or any other exempt income which is claimed exempt under section 10 of the Act, the same could not be brought to tax by invoking the provision of section 11 of the Act. Keeping in view the facts if the assessee in the light of the decisions as discussed hereinabove, we dismiss the appeal of the Revenue by upholding the order of Ld. CIT(A).” ordinate Bench (supra), we As regards Ground No. 5 which relates to disallowance of deduction u/s 11 of the Act, at the very outset, the ld. A/R submitted that the bove ground is squarely covered in favour of the assessee by the ordinate Bench in assessee’s own case for AY 2012-13. The ld. D/R, though not leaving his grounds, could not place on We have heard rival contentions. We find that the Co-ordinate 13 had the occasion to consider “9. The only issue raised by the assessee is against theconfirmation of disallo Rs.1,15,00,000/- by Ld. CIT(A)as made by the AO by denying the benefit of section 11 of theAct in respect of advance given by the assessee for theconstruction of the building of the Trust. 10. The facts in brief are that the assessee is a Trust w imparting education. The assesseeacquired land at Nashik, Aurangabad and Ahmedabad for theconstruction of building to be used for or in connection withthe purposes of achieving the objects of the assessee. Theassessee has acc section 11(2) of the Act thefollowing amounts to be spent till 31.03.2012: ******************* Against the said expenditure the assessee has incurredthe following expenditure: *************** The AO during the assessment proceedings accepted assessee as application of incometo the tune of Rs.86,00,000/ Nashikand Rs.18,49,423/ Rs.1,15,00,000/- which represented the advancegiven for construction and Aurangabad byobserving that the payment was made at the fag end of theyear to extend the time limit for utilization of this amount asprovided under section 11(2) of the Act. 11. In the appellate proceedings the Ld. CIT(A) upheld theasse that AO rightly made the additionby relying on the judgment in case of CIT vs. Shree P.Subramaniam Religious Trust (2009) 179 TAXMAN 144. 12. The Ld. A.R. vehemently submitted before us that the AOhas completely ignored the fact that there was an openingbalance of advance given in earlier year for constructionpurposes and similar type of payment was made during theyear. The ld counsel further argued that said advance wasfinally capitalized and transferred to the asset account on the year Rs.1,15,00,000/ 10.02.2012 and Rs.20 lakhs on29.03.2012 for Aurangabad and Rs.20 lakh on 23.02.2012 forNashik. The Ld. A.R. als architect and completion certificate from themunicipal corporation of Aurangabad during the year. Thusthe Ld. A.R. submitted that the AO has confused the facts ofthe case by wrongly considering the payment ma for Nashik unit. The Ld.A.R. prayed before the Bench that the matter should bereferred back to the file of the AO to verify the openingbalance along with the current advance of Rs.95 lakhs spenton Aurangabad project wh next year and the balance of Rs.20 lakhs paid for Nashikunit was also used for the purpose of construction. Finallythe Ld. A.R. prayed before the Bench that considering all thefacts as placed before the Bench the matter for necessary verification of these factsand allow the claim accordingly. 13. The Ld. D.R., on the other hand, strongly objected to bysubmitting that I.T.A. No. 4800/Mum/2024 I.T.A. No. 4798/Mum/2024 I.T.A. No. 4799/Mum/2024 4 “9. The only issue raised by the assessee is against theconfirmation of disallo by Ld. CIT(A)as made by the AO by denying the benefit of section 11 of theAct in respect of advance given by the assessee for theconstruction of the building of the Trust. 10. The facts in brief are that the assessee is a Trust whichcarries on the activity of imparting education. The assesseeacquired land at Nashik, Aurangabad and Ahmedabad for theconstruction of building to be used for or in connection withthe purposes of achieving the objects of the assessee. Theassessee has acc section 11(2) of the Act thefollowing amounts to be spent till 31.03.2012: Against the said expenditure the assessee has incurredthe following expenditure: The AO during the assessment proceedings accepted theexpenditure incurred by the assessee as application of incometo the tune of Rs.86,00,000/- for purchase of land at Nashikand Rs.18,49,423/- towards repairs. However, the AOdisallowed which represented the advancegiven for construction and Aurangabad byobserving that the payment was made at the fag end of theyear to extend the time limit for utilization of this amount asprovided under section 11(2) of 11. In the appellate proceedings the Ld. CIT(A) upheld theassessment order by holding that AO rightly made the additionby relying on the judgment in case of CIT vs. Shree P.Subramaniam Religious Trust (2009) 179 TAXMAN 144. 12. The Ld. A.R. vehemently submitted before us that the AOhas completely ignored at there was an openingbalance of advance given in earlier year for constructionpurposes and similar type of payment was made during theyear. The ld counsel further argued that said advance wasfinally capitalized and transferred to the asset account on thecompletion of the project. The assessee submitted that duringthe year Rs.1,15,00,000/- was paid as advance on variousdates namely Rs.75 lakhs on 10.02.2012 and Rs.20 lakhs on29.03.2012 for Aurangabad and Rs.20 lakh on 23.02.2012 forNashik. The Ld. A.R. also placed before the Bench a certificatefrom the architect and completion certificate from themunicipal corporation of Aurangabad during the year. Thusthe Ld. A.R. submitted that the AO has confused the facts ofthe case by wrongly considering the payment made forAurangabad unit as payment made for Nashik unit. The Ld.A.R. prayed before the Bench that the matter should bereferred back to the file of the AO to verify the openingbalance along with the current advance of Rs.95 lakhs spenton Aurangabad project which was completed immediately inthe next year and the balance of Rs.20 lakhs paid for Nashikunit was also used for the purpose of construction. Finallythe Ld. A.R. prayed before the Bench that considering all thefacts as placed before the Bench the matter may be restoredto the file of the AO for necessary verification of these factsand allow the claim accordingly. 13. The Ld. D.R., on the other hand, strongly objected to thearguments of the Ld. A.R. submitting that all thesedocuments as placed before the Tribunal were I.T.A. No. 4800/Mum/2024 I.T.A. No. 4798/Mum/2024 & I.T.A. No. 4799/Mum/2024 “9. The only issue raised by the assessee is against theconfirmation of disallowance of by Ld. CIT(A)as made by the AO by denying the benefit of section 11 of theAct in respect of advance given by the assessee for theconstruction of the hichcarries on the activity of imparting education. The assesseeacquired land at Nashik, Aurangabad and Ahmedabad for theconstruction of building to be used for or in connection withthe purposes of achieving the objects of the assessee. Theassessee has accumulated under section 11(2) of the Act thefollowing amounts to be spent till 31.03.2012: Against the said expenditure the assessee has incurredthe following expenditure: theexpenditure incurred by the for purchase of land at towards repairs. However, the AOdisallowed which represented the advancegiven for construction work at Nashik and Aurangabad byobserving that the payment was made at the fag end of theyear to extend the time limit for utilization of this amount asprovided under section 11(2) of ssment order by holding that AO rightly made the additionby relying on the judgment in case of CIT vs. Shree 12. The Ld. A.R. vehemently submitted before us that the AOhas completely ignored at there was an openingbalance of advance given in earlier year for constructionpurposes and similar type of payment was made during theyear. The ld counsel further argued that said advance wasfinally capitalized and transferred to the completion of the project. The assessee submitted that duringthe was paid as advance on variousdates namely Rs.75 lakhs on 10.02.2012 and Rs.20 lakhs on29.03.2012 for Aurangabad and Rs.20 lakh on o placed before the Bench a certificatefrom the architect and completion certificate from themunicipal corporation of Aurangabad during the year. Thusthe Ld. A.R. submitted that the AO has confused the facts ofthe de forAurangabad unit as payment made for Nashik unit. The Ld.A.R. prayed before the Bench that the matter should bereferred back to the file of the AO to verify the openingbalance along with the current advance ich was completed immediately inthe next year and the balance of Rs.20 lakhs paid for Nashikunit was also used for the purpose of construction. Finallythe Ld. A.R. prayed before the Bench that considering may be restoredto the file of the AO for necessary verification of these factsand allow the claim accordingly. thearguments of the Ld. A.R. the Tribunal were afterthoughtand were never placed before the authorities below. The ld DRcontended that assessee has created all these evidences inorder to justify his claim. The Ld. D.R. prayed before theBench that the order of Ld. CIT(A) should be affi the appeal of the assessee. 14. We have heard the rival submissions of both the partiesand perused the material on record. We find that theassessee has placed before the Bench some additionalevidences which were not placed before the aut matter has to go back tothe file of the AO so that the issue could be decided after dueexamination and appreciation of these evidences which havebeen filed before the Tribunal for the first time. Needless tos building has tobe allowed as application of income of the trust. Accordingly,we restore the matter back to the file of the AO with thedirection to decide the same as per the facts and law afteraffording a rea 10. Consistent with the decision of the Co Ground No. 5 raised by the assessee is allowed for statistical purposes. 11. Accordingly, appeal of the assessee for AY 2009 allowed for statistical purposes. 12. The facts for AY 2010 variance in quantum. Therefore, as mentioned elsewhere our decision rendered for AY 2009 2011-12, except for a s which reads as under: “On the facts and under the circumstances of the case and in law, the Ld. CIT(A) erred in rejecting the claim u/s 11(1) in respect of TDS of Rs. 46,25,661 / considering the fact tha which appellant receives the refund and the said treatment has been has been consistently followed by the appellant. 13. After hearing rival contentions, we find that this issue covered in favour of the assessee by the decision of the Co Bench in the case of 6571/Mum/2017; AY 2012 identical circumstances, it was held as under: I.T.A. No. 4800/Mum/2024 I.T.A. No. 4798/Mum/2024 I.T.A. No. 4799/Mum/2024 5 afterthoughtand were never placed before the authorities below. The ld DRcontended that assessee has created all these evidences inorder to justify his claim. The Ld. D.R. prayed before theBench that the order of Ld. CIT(A) should be affi the appeal of the assessee. 14. We have heard the rival submissions of both the partiesand perused the material on record. We find that theassessee has placed before the Bench some additionalevidences which were not placed before the authorities belowand in such ab event/scenario the matter has to go back tothe file of the AO so that the issue could be decided after dueexamination and appreciation of these evidences which havebeen filed before the Tribunal for the first time. Needless tostate that advance given for the construction of building has tobe allowed as application of income of the trust. Accordingly,we restore the matter back to the file of the AO with thedirection to decide the same as per the facts and law afteraffording a reasonable opportunity of being heard to theassessee. Consistent with the decision of the Co-ordinate Bench Ground No. 5 raised by the assessee is allowed for statistical purposes. Accordingly, appeal of the assessee for AY 2009 allowed for statistical purposes. The facts for AY 2010-11 & 2011-12 are identical, except for variance in quantum. Therefore, as mentioned elsewhere our decision rendered for AY 2009-10 apply mutatis mutandis for AY 2010 12, except for a separate Ground No. 6 raised in AY 2011 which reads as under:- “On the facts and under the circumstances of the case and in law, the Ld. CIT(A) erred in rejecting the claim u/s 11(1) in respect of TDS of Rs. 46,25,661 / considering the fact that the refund amount is offered for taxation in the year in which appellant receives the refund and the said treatment has been has been consistently followed by the appellant.” After hearing rival contentions, we find that this issue covered in favour of the assessee by the decision of the Co Bench in the case of Bhav Vardhan Trust vs. ITO ; AY 2012-13, order dt. 11/04/2018, wherein under identical circumstances, it was held as under:- I.T.A. No. 4800/Mum/2024 I.T.A. No. 4798/Mum/2024 & I.T.A. No. 4799/Mum/2024 afterthoughtand were never placed before the authorities below. The ld DRcontended that assessee has created all these evidences inorder to justify his claim. The Ld. D.R. prayed before theBench that the order of Ld. CIT(A) should be affirmed bydismissing 14. We have heard the rival submissions of both the partiesand perused the material on record. We find that theassessee has placed before the Bench some additionalevidences horities belowand in such ab event/scenario the matter has to go back tothe file of the AO so that the issue could be decided after dueexamination and appreciation of these evidences which havebeen filed before the tate that advance given for the construction of building has tobe allowed as application of income of the trust. Accordingly,we restore the matter back to the file of the AO with thedirection to decide the same as per the sonable opportunity of being heard to theassessee.” ordinate Bench (supra), Ground No. 5 raised by the assessee is allowed for statistical purposes. Accordingly, appeal of the assessee for AY 2009-10 is partly 12 are identical, except for variance in quantum. Therefore, as mentioned elsewhere our decision for AY 2010-11 & eparate Ground No. 6 raised in AY 2011-12, “On the facts and under the circumstances of the case and in law, the Ld. CIT(A) erred in rejecting the claim u/s 11(1) in respect of TDS of Rs. 46,25,661 /- without t the refund amount is offered for taxation in the year in which appellant receives the refund and the said treatment has been has been After hearing rival contentions, we find that this issue also stands covered in favour of the assessee by the decision of the Co-ordinate Bhav Vardhan Trust vs. ITO in ITA No. wherein under “7. We have perused the aforesaid judgment of the Hon’ble HighCourt of Calcutta and find that the High Court had observed thatthough the income that has not been applied for charitablepurpose or accumulated beyond the prescribed limit for charitablepurpose will not taxation, but however,the exclusion from the immunity that has been granted by s. 11must be confined to the ‘real income’ of the trust. We though arenot oblivious of the fact that Sec. 198 provides that the amountsdeducted by way o income-tax shall be deemed to be \"incomereceived\", but then, as observed by the Hon’ble High Court, theamount of income which is taken away by deduction of tax atsource, can neither be spent nor accumulated for charitablepurpose, as \"application\" or \"acc been received by an assessee,therefore, such portion of income that has been taken away byway of income tothe assessee for application or accumulation. W that as observed by the Hon’ble High Court, Sec.11 cannot be interpreted to mean that the amount which has beendeducted at source by way of income shall be included in the\"total income\" of the trust and brought to tax. We fi that theHigh Court had rather observed that though Sec. 198 providesthat the sums deducted by way of income the deeming provisions of s. 198 shouldnot be construed in a way to frustrate the object of s. 11. Court, are of theconsidered view that in the case of the assessee before us, theimmunity from taxation that has been granted to the income ofthe said charitable trust cannot be denied on the ground sec. 198, i.e tax deducted at source underSec. 194A of Rs. 13,28,823/ been actually spent for thepurpose of charity during the year. The ld. A.R had averred thatthe tax deducted at source of Rs. 13,28,823/ underconsideration, viz. A.Y 2012 refund on 20.03.2014, i.e in the period relevant toA.Y 2014 the assessee as its income in the saidyear of receipt, viz. A.Y 2014 working out its entitle thus set asidethe matter to the file of the A.O for the limited purpose ofverifying the veracity of the aforesaid claim so raised before us bythe ld. A.R. That in case the claim of the ld. A.R that the t shown by the assesseeas its income in A.Y 2014 the saidamount shall not be treated as the income of the assessee underSec. 11 for the year under consideration i.eA.Y 2012 14. Consistent with the decision of the Co Ground No. 6 raised by the assessee is allowed for statistical purposes. I.T.A. No. 4800/Mum/2024 I.T.A. No. 4798/Mum/2024 I.T.A. No. 4799/Mum/2024 6 ve perused the aforesaid judgment of the Hon’ble HighCourt of Calcutta and find that the High Court had observed thatthough the income that has not been applied for charitablepurpose or accumulated beyond the prescribed limit for charitablepurpose will not enjoy the immunity from taxation, but however,the exclusion from the immunity that has been granted by s. 11must be confined to the ‘real income’ of the trust. We though arenot oblivious of the fact that Sec. 198 provides that the amountsdeducted by way o tax shall be deemed to be \"incomereceived\", but then, as observed by the Hon’ble High Court, theamount of income which is taken away by deduction of tax atsource, can neither be spent nor accumulated for charitablepurpose, as \"application\" or \"accumulation\" can only be of realincome which has actually been received by an assessee,therefore, such portion of income that has been taken away byway of income-tax deducted at source, would not be available tothe assessee for application or accumulation. We are of theconsidered view that as observed by the Hon’ble High Court, Sec.11 cannot be interpreted to mean that the amount which has beendeducted at source by way of income shall be included in the\"total income\" of the trust and brought to tax. We fi that theHigh Court had rather observed that though Sec. 198 providesthat the sums deducted by way of income-tax shall be deemed tobe income received, but, the deeming provisions of s. 198 shouldnot be construed in a way to frustrate the object of s. 11. We thusrespectfully following the view taken by the High Court, are of theconsidered view that in the case of the assessee before us, theimmunity from taxation that has been granted to the income ofthe said charitable trust cannot be denied on the ground that thedeemed income under sec. 198, i.e tax deducted at source underSec. 194A of Rs. 13,28,823/ been actually spent for thepurpose of charity during the year. The ld. A.R had averred thatthe tax deducted at source of Rs. 13,28,823/ underconsideration, viz. A.Y 2012-13, which was received by theassessee as a refund on 20.03.2014, i.e in the period relevant toA.Y 2014- the assessee as its income in the saidyear of receipt, viz. A.Y 2014 working out its entitlementof exemption under Sec. 11 for the said year. We thus set asidethe matter to the file of the A.O for the limited purpose ofverifying the veracity of the aforesaid claim so raised before us bythe ld. A.R. That in case the claim of the ld. A.R that the taxdeducted at source of Rs. 13,28,823/ shown by the assesseeas its income in A.Y 2014-15 is found to be in order, then the saidamount shall not be treated as the income of the assessee underSec. 11 for the year under consideration i.eA.Y 2012-13.” Consistent with the decision of the Co-ordinate Bench Ground No. 6 raised by the assessee is allowed for statistical purposes. I.T.A. No. 4800/Mum/2024 I.T.A. No. 4798/Mum/2024 & I.T.A. No. 4799/Mum/2024 ve perused the aforesaid judgment of the Hon’ble HighCourt of Calcutta and find that the High Court had observed thatthough the income that has not been applied for charitablepurpose or accumulated beyond the enjoy the immunity from taxation, but however,the exclusion from the immunity that has been granted by s. 11must be confined to the ‘real income’ of the trust. We though arenot oblivious of the fact that Sec. 198 provides that the amountsdeducted by way of tax shall be deemed to be \"incomereceived\", but then, as observed by the Hon’ble High Court, theamount of income which is taken away by deduction of tax atsource, can neither be spent nor accumulated for charitablepurpose, as umulation\" can only be of realincome which has actually been received by an assessee,therefore, such portion of income that has been tax deducted at source, would not be available e are of theconsidered view that as observed by the Hon’ble High Court, Sec.11 cannot be interpreted to mean that the amount which has beendeducted at source by way of income-tax shall be included in the\"total income\" of the trust and brought to tax. We find that theHigh Court had rather observed that though Sec. 198 providesthat the tax shall be deemed tobe income received, but, the deeming provisions of s. 198 shouldnot be construed in a way to frustrate We thusrespectfully following the view taken by the High Court, are of theconsidered view that in the case of the assessee before us, theimmunity from taxation that has been granted to the income ofthe said that thedeemed income under sec. 198, i.e tax deducted at source underSec. 194A of Rs. 13,28,823/- had not been actually spent for thepurpose of charity during the year. The ld. A.R had averred thatthe tax deducted at source of Rs. 13,28,823/- for the year 13, which was received by theassessee as a -15, was shown by the assessee as its income in the saidyear of receipt, viz. A.Y 2014-15 while mentof exemption under Sec. 11 for the said year. We thus set asidethe matter to the file of the A.O for the limited purpose ofverifying the veracity of the aforesaid claim so raised before us bythe ld. A.R. That in case axdeducted at source of Rs. 13,28,823/- was 15 is found to be in order, then the saidamount shall not be treated as the income of the assessee underSec. 11 ordinate Bench (supra), Ground No. 6 raised by the assessee is allowed for statistical purposes. 15. In the result, the appeals filed by the assessee are partly allowed for statistical purposes. Order pronounced in the Court on Sd/- (PRABHASH SHANKAR ACCOUNTANT MEMBER Mumbai, Dated 27/11/2024 * * * *SC SrPs SC SrPs SC SrPs SC SrPs आदेशकी\u0014ितिलिपअ\u0019ेिषत/Copy of the Order forwarded to : 1. अपीलाथ\u001b/ The Appellant 2. \u0014\u001cथ\u001b/ The Respondent 3. संबंिधतआयकरआयु!/ Concerned Pr. CIT 4. आयकरआयु! ) अपील ( / The CIT(A) 5. िवभागीय\u0014ितिनिध ,आयकरअपीलीयअिधकरण 6. गाड%फाई/Guard file. I.T.A. No. 4800/Mum/2024 I.T.A. No. 4798/Mum/2024 I.T.A. No. 4799/Mum/2024 7 In the result, the appeals filed by the assessee are partly allowed for statistical purposes. in the Court on 27th November, 2024 at Mumbai. Sd/- PRABHASH SHANKAR) (SANDEEP GOSAIN MEMBER JUDICIA 4 Copy of the Order forwarded to : / The Appellant / Concerned Pr. CIT / The CIT(A)- आयकरअपीलीयअिधकरण,मुंबई/DR,ITAT, Mumbai, आदेशानुसार आयकरअपीलीयअिधकरण I.T.A. No. 4800/Mum/2024 I.T.A. No. 4798/Mum/2024 & I.T.A. No. 4799/Mum/2024 In the result, the appeals filed by the assessee are partly allowed , 2024 at Mumbai. SANDEEP GOSAIN) JUDICIAL MEMBER आदेशानुसार/ BY ORDER, TRUE COPY Assistant Registrar आयकरअपीलीयअिधकरण ITAT, Mumbai Sr. No. 1. Draft dictated on 2. Draft placed before author 3. Draft proposed & placed before the second member 4. Draft discussed/approved by Second Member. 5. Approved Draft comes to the Sr.PS/PS 6. Kept for pronouncement on 7. File sent to the Bench Clerk 8. Date on which file goes to the AR 9. Date on which file goes to the Head Clerk. 10. Date of dispatch of Order. 11. Dictation Pad is enclosed I.T.A. No. 4800/Mum/2024 I.T.A. No. 4798/Mum/2024 I.T.A. No. 4799/Mum/2024 8 Date Initial Draft dictated on 19/11/2024 Draft placed before author 21/11/2024 Draft proposed & placed before the second member discussed/approved by Second Member. Approved Draft comes to /11/2024 Kept for pronouncement on /11/2024 File sent to the Bench Clerk /11/2024 Date on which file goes to which file goes to the Head Clerk. Date of dispatch of Order. Dictation Pad is enclosed Yes I.T.A. No. 4800/Mum/2024 I.T.A. No. 4798/Mum/2024 & I.T.A. No. 4799/Mum/2024 Sr.PS Sr.PS JM/AM JM/AM Sr.PS/PS Sr.PS Sr.PS "