ASSISTANT COMMISSIONER OF INCOME-TAX, EXEMPTION CIRCLE ,, AURANGABAD vs. M/S. EVEREST EDUCATION SOCIETY,, AURANGABAD

At the very outset, the Ld. DR for the Revenue submitted that the issues involved in these two appeals are identical and facts and circumstances are also common. In view of the submissions of the Ld. DR, these cases were heard together and disposed of vide this consolidated order.

The brief facts of the case are that the assessee trust constituted as a public trust under the Bombay Public Trusts Act, 1950, is a charitable institution registered u/s.12A of the Income Tax Act, 1961 (hereinafter referred to as „the Act‟) dated 06.12.2006 and u/s.80G of the Act dated 06.12.2006. The trust established with the predominant object of establishing and running educational institutions etc. The assessee trust had filed return of income on 03.11.2008 declaring Nil income. The return was accompanied with computation, audit report, audited statements of accounts, income & expenditure account, Balance Sheet, Consolidated Receipt and payment account notice etc. That thereafter, notice u/s.148 of the Act was issued on 15.01.2013 for the reason that the trust had applied less than 85% of its income towards objects/maintenance during the year. The reasons recorded for reopening of assessment u/s.147/148 of the Act was as follows:

It was contended by the assessee that the Assessing Officer made addition of Rs.1,83,74,601/- by invoking the provisions of Section 115BBC of the Act. The case was reopened under the provisions of Section 147 of the Act by issuing notice u/s.148 of the Act. That it is evident from the reasons for reopening that during the course of enquiry in connection with the application made by the assessee for aid from Islamic Development Bank, Jeddah, the Assessing Officer was of the opinion that there was violation of Section 11 of the Act since the assessee trust had spent less than 85% of its income on the objects of the trust. That from such reasons, it was clear that the intention of the Assessing Officer was to assess /reassess the income which in his opinion had escaped assessment after application of Section 11 of the Act. It was only for this purpose, the notice u/s.148 of the Act was issued. It was further pointed out that the entire assessment order does not touch on this issue as the Assessing Officer was convinced that no income had escaped assessment on the basis of which the case was reopened and notice u/s.148 of the Act was issued. It was further submitted by the assessee that although the issue on the basis of which the case was reopened did not form the basis for any addition. However, the Assessing Officer went on to reassess independently other income “anonymous donation” u/s.115BBC of the Act which does not form the subject matter of the notice. Meaning thereby, the Assessing Officer had reason to believe that income had escaped assessment because the assessee trust has spent less than 85% of its income on the objects of the trust which is very much evident from the reasons recorded for issuing notice u/s.147/148 of the Act. However, the Assessing Officer has made addition in the assessment order in respect of “anonymous donation” u/s.115BBC of the Act which itself is not the subject matter of notice issued u/s.147/148 of the Act.

The assessee has placed reliance on the decision of the Hon‟ble Bombay High Court in the case of Commissioner of Income Tax-5, Mumbai Vs. Jet Airways (I) Ltd. in ITA No.1714 of 2009 along with ITA(L) No.1526 of 2008 dated 12.04.2010. In this case, the issue before the Hon‟ble High Court was that in a case which has been reopened u/s.147 of the Act and the Assessing Officer does not assess or reassess the income in respect of which the Assessing Officer had reason to believe that income had escaped assessment and formed the basis for issue of notice u/s.148 of the Act, then is it open to the Assessing Officer to assess or reassess independently any other income which does not form the subject matter of such notice? The Hon‟ble High Court upheld the contention of the assessee that the words “and also” appearing in Section 147 signifies that the Assessing Officer may assess or reassess such income which forms the reason to believe that had escaped assessment “and also” any other income chargeable to tax which comes to his notice subsequently during the proceedings as having escaped assessment. The words “and also” have been used in a cumulative and conjunctive sense and hence it is incumbent on the Assessing Officer to assess and /or reassess the income which formed the basis for issuing of notice u/s.148 of the Act in addition to any other income which has also escaped assessment. It was stated that the notice issued by the Assessing Officer u/s.148 of the Act was on account of his opinion that the assessee has spent less than 85% of its income during the relevant previous year on the objects of the trust. However, the assessment order is silent on this issue and no addition has been made on the ground which formed the basis of issue of notice u/s.148 of the Act.

The Ld. CIT(Appeals) observed at Para 10 of his order that as apparent from the reasons recorded by the Assessing Officer was of the opinion that the assessee had not applied its income towards the objects of the trust which left it with a surplus of Rs.89,88,923/- after taking into consideration the exemption provided u/s.11(1)(a) of the Act. The Assessing Officer was of the opinion that this amount of income had escaped taxation within the meaning of Section of 147 of the Act and therefore, he reopened the assessment u/s.148 of the Act. It was observed by the Ld. CIT(Appeals), as evident from records that the assessment order shows no addition has been made on the ground that the assessee had applied less than 85% of the income towards the objects of the trust. Instead, the Assessing Officer has enquired into the donations received by the assessee and as held them to be in the nature of “anonymous donations” within the meaning of Section 115BBC of the Act. The Ld. CIT(Appeals) further opined that the facts of the present case is squarely covered within the facts and also with the decision of the Hon‟ble Bombay High Court in the case of Commissioner of Income Tax-5, Mumbai Vs. Jet Airways (I) Ltd. (supra.).

Therein, the question before the Hon‟ble High Court was that on the subject matter involving in the issue of notice u/s.147/148 of the Act by the Assessing Officer, he has not assessed or reassessed as regards that specified subject matter as appearing in the said notice and also no addition has been made in respect thereof. However, the Assessing Officer has gone on to make

Thus, according to this judgment, after insertion of Explanation 3 to Section 147 of the Act by Finance (No.2) Act, 2009 w.e.f. 01.04.1989, Section 147 has an effect that the Assessing Officer has to assess or reassess income which escaped assessment and which was basis of formation of belief and if he does so, he can also assess or reassess any other income which has escaped assessment and which comes to his notice during the course of proceedings. However, if after issuing a notice u/s.148 of the Act, he accepts the contention of the assessee and holds that income for which he has initially formed a reason to believe that had escaped assessment, has, as a matter of fact, not escaped assessment, it is not open to him to independently assess some other income. In view of the law laid down by the Hon‟ble High Court, the Assessing Officer had travelled beyond the jurisdiction to assess the alleged „anonymous donations” when he did not assess that income for which he had initially formed a reason to believe that it had escaped

We observe from the grounds of appeal filed by the Revenue in this appeals, as per aforesaid discussion and the law laid down by the Hon‟ble Bombay High Court in the case of Commissioner of Income Tax-5, Mumbai Vs. Jet Airways (I) Ltd. (supra.), first we would analyze the facts in this case. The limited issue for which the notice u/s.147/148 of the Act was issued by the Assessing Officer, is for the reason that as per Section 11 of the Act, the assessee trust has under utilized its income towards objects of the trust. However, we find there has been no addition made in the assessment order in respect of this issue. The Assessing Officer on the other hand has gone into treating the donations received as “anonymous donations” and made the addition thereof u/s.115BBC of the Act which however was not forming a part of reasons recorded for issuance of notice u/s.147/148 of the Act. To this extent, the Hon‟ble Jurisdictional High Court in the case of Commissioner of Income Tax-5, Mumbai Vs. Jet Airways (I) Ltd. (supra.), has held that in such event, the Assessing Officer exceeds his jurisdiction and he has to assess or reassess in respect of that subject matter only which formed the subject matter to the reasons for which the notice u/s.147/148 was issued. It is definitely open to the Assessing Officer to assess or reassess any other income which he has reason to believe has escaped assessment but for that purpose, he has to issue separate notice to the assessee u/s.148 of the Act. In present scenario, when specific subject matter reasons recorded and notice issued u/s.147/148 of the Act was with respect to under utilization of income of the assessee for which there has been no addition made, but the Assessing Officer has made addition entirely on the different

In the result, both the appeals of the Revenue in ITA Nos.1916 & 1917/PUN/2017 are dismissed.