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DECIDED BY: HIGH COURT OF KERALA, IN THE CASE OF: ACIT Vs. Hukum Chand Jain, APPEAL NO: ITA Nos. 18 and 20 to 22 of 2006, DECIDED ON August 10, 2009 JUDGMENT Ramachandran Nair, J. Though the issue raised in these connected appeals filed by the Revenue stands decided in favour of the assessees by […]
The fact that a surplus may incidentally arise from the activities of the trust, after meeting the expenditure incurred for conducting educational activities, would not disentitle the trust of the benefit of the provisions of Section 10(23C).
Where the assessee was not provided with any opportunity of being heard in the matter, the reasons assigned in the order which was “administrative convenience and for co-ordinating effective investigation” also could not be said to be the reasons as envisaged in Section 127(1).
Even if there is any lacuna in the procedure followed by the Assessing Authority while rejecting the objections raised by the assessee against the notices issued under sections 147 and 148(1), it is not as if the assessee is left in lurch and deprived of its right from raising such issue, and it is open to the assessee to challenge the same, even at the time of questioning the final assessment orders.
The decision of the High Court would bring some relief to NBFCs. However, given the fact that this is a debatable issue and unless affirmed by the SC, the tax authorities may continue to dispute the issue. This debate arises primarily due to the fact that under the Act, there is a specific provisions under Section 43D of the Income tax Act, 1961 dealing with interest on NPA with respect to specified financial institutions (including banks) which does not include NBFCs.
Brief:- The DRP, being an authority created under a statute and conferred with the powers, has the obligation to act as a body living to the expectations which the law mandates. The DRP has to afford adequate opportunity for personal hearing and deal with the issues urged by a speaking order which would reflect cogent reasons. This is apt to say so that no assessee can have any kind of apprehension that the approach to the DRP is perfunctory.
Brief: High Court held that It is not possible to carry on educational activity in such a way that the expenditure exactly balances the income and there is no resultant profit, for, to achieve this, would not only be difficult of practical realization but would reflect unsound principles of management. The assumption that for exemption there should not be any surplus and if it is otherwise the institution society exists for profit and not charity is not justified.
When there is no specific provision in the Income Tax Act for protective assessment, power lies with the AO to make such an assessment on protective basis under certain circumstances. When there is such a power to make the protective assessment while carrying out the normal assessment proceedings even in the absence of specific provision, we fail to understand how the absence of provision should be a ground to preclude the AO for making protective assessment in block assessment proceedings under Section 158BC/BD of the Act. Principle of law laid down by the Supreme Court holding that the AO has power to make protective assessment even when there is no specific provision under the Act would equally apply to the block assessment also.
As the department had examined the fundamental nature of the transaction in the earlier years and its nature remained unchanged, the department could not have changed its view as regards the nature of the transaction by dubbing it as erroneous.
Rubber stamping of underlying material is hardly a process which can get the imprimatur of the Court as it suggests that the decision has been taken in a mechanical manner. Even if the reasoning set out by the ITO was to be agreed upon, the least, which is expected, is that an appropriate endorsement is made in this behalf setting out brief reasons. If a material is not in existence or if a material is such of which the assessee had no knowledge there would be no duty to disclose such material.