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Facts
The assessee, Andhra Pradesh Pollution Control Board, had an accumulated income of Rs.3,86,62,540/- for Assessment Year 2016-17 that remained unutilized within the prescribed 5 years. The Assessing Officer (AO) accepted the assessee's nil income return based on CBDT notifications under Section 10(46) of the Income Tax Act. However, the CIT (Exemptions) invoked Section 263 to revise the assessment, contending that the unutilized accumulated income should be brought to tax as it was erroneous and prejudicial to the revenue.
Held
The Income Tax Appellate Tribunal held that once the assessee is covered by notifications issued under Section 10(46) of the Income Tax Act, all its income, including accumulated income, is exempt from tax. Therefore, the provisions of Section 10(23C) and Sections 11 to 13 of the Act do not apply, and the revision order passed by the CIT (Exemptions) under Section 263 was not sustainable in law.
Key Issues
Whether the unutilized accumulated income of an entity, which is notified as exempt under Section 10(46) of the Income Tax Act, can be subjected to tax under Sections 10(23C) or 11/13, and if the CIT can revise the assessment under Section 263 on this ground.
Sections Cited
263, 10(46), 10(23C), 11(2), 11(5), 143(3), 144B, 142(1), 154, 139(4C)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, Visakhapatnam “Division” Bench, Visakhapatnam
Before: Shri Vijay Pal Rao, Vice-Shri Manjunatha, G.
(िनधा�रण वष�/Assessme298nt Year: 2021-22) Andhra Pradesh Pollution Vs. Dy. CIT Control Board, (Exemption Circle) VIJAYAWADA VIJAYAWADA PAN:AAAJA1610Q (Appellant) (Respondent) िनधा��रती �ारा/Assessee by: Shri Satyanarayana Murthy, CA राज� व �ारा/Revenue by:: Dr. Satyasai Rath, CIT(DR) सुनवाई की तारीख/Date of hearing: 30/07/2025 घोषणा की तारीख/Pronouncement: 06/08/2025 आदेश/ORDER
Per Vijay Pal Rao, Vice President
This appeal filed by the assessee is directed against the revision order dated 11/03/2025 of the learned CIT (Exemptions), passed u/s 263 of the Act for the A.Y.2021-22.
The assessee has raised the following grounds of appeal:
Page 1 of 18
The learned Counsel for the assessee has submitted that the assessee Andhra Pradesh Pollution Control Board is a statutory body and was granted approval u/s 10(23C) of the Act Page 2 of 18 dated 29/09/2010. Thereafter, the assessee has also applied for notification u/s 10(46) of the I.T. Act which was notified by the CBDT dated 24/08/2022 applicable for the financial year 2016- 17 to 2020-21. The learned Counsel for the assessee has pointed out that the said notification has been issued by the CBDT in pursuant to the decision of the Hon'ble Telangana High Court dated 26/07/2021 in Writ Petition No.4834/2020 and 15629/2020. Thus, the income of the assessee for the year under consideration is exempt in view of the notification issued by the CBDT dated 24/08/2022. Thereafter, another notification has been issued on 18/07/2025 for the A.Y 2022-23 to 2025/26. The learned Counsel for the assessee has thus submitted that once the income of the assessee is exempt as per the notification issued u/s 10(46) of the Act, then the accumulated income of the assessee is also not liable to tax. He has pointed out that the assessee filed its return of income for the year under consideration declaring nil income by claiming initially exemption income u/s 10(23C)(vi) of the Act and during the assessment proceedings, the notification dated 24/08/2022 u/s 10(46) of the Act was issued by the CBDT and therefore, in view of the said notification, the Assessing Officer has accepted the return of income of the assessee by considering all the relevant facts. In para 3.2 of the order the Assessing Officer has taken note of the fact that in pursuant to the decision of the Hon'ble Telangana High Court, the CBDT has issued a notification dated 24/08/2022 to treat the assessee as covered u/s 10(46) of the I.T.
Page 3 of 18 Act. He has referred to the impugned order of the learned CIT (Exemptions) passed u/s 263 and submitted that the provisions of section 263 were invoked by the Commissioner on the issue that for the financial year 2015-16 relevant to the A.Y 2016-17, the assessee has accumulated a sum of Rs.74,38,61,538/- within the meaning of 3rd proviso to section 10(23C) of the Act. However, out of the said accumulated amount of Rs.74.38 crores, a sum of Rs.70.51 crores was utilized till the end of the financial year 2020-21 and thereby leaving unutilized balance of accumulated income of Rs.3,86,62,540/- which attracts the provisions of section 11(2) r.w.s. 11(5) of the Act. According to the learned CIT (Exemptions), non-utilization of the accumulated income within the prescribed time limit is assessable to tax. However, the Assessing Officer while completing the assessment u/s 143(3) r.w.s. 144B dated 21/12/2022 has not considered this unutilized balance of accumulated income. The learned Counsel for the assessee has submitted that the impugned order is passed whereby the assessment order is set aside being erroneous in so far it is prejudicial to the interest of the Revenue, and the Assessing Officer is directed to bring to tax the surplus amount as per the provisions of the I.T. Act, 1961. He has pointed out that once a notification is issued by the CBDT u/s 10(46) of the Act, then the question of liability of tax on un-utilized accumulated income does not arise. He has further submitted that even prior to the amendment in section 10(23C)(v), there was no such condition of utilization of the accumulated income within a period of 5 years Page 4 of 18 and therefore, the said accumulated income cannot be assessed to tax for the year under consideration. The learned Counsel for the assessee has further submitted that the Assessing Officer has duly considered this issue while completing the assessment and raised the queries in the show cause notice u/s 142(1) of the Act dated 08/10/2022 wherein a specific query was raised by the Assessing Officer regarding the unutilized income within 5 years of accumulation which is placed at page Nos. 1 to 11 of the Paper Book. Thus, the learned AR has submitted that the Assessing Officer has duly considered this issue and after the notification issued by the CBDT u/s 10(46) of the Act, the Assessing Officer has accepted the returned income of the assessee. The learned Counsel for the assessee has submitted that once the notification issued u/s 10(46) applied for the year under consideration, then the accumulation of income even if it is not applied within the prescribed limit u/s 10(23)(vi) is not taxable as all receipts in the income and expenditure account are receipts notified for the purpose of section 10(46) of the Act. Therefore, the surplus generated by the assessee after the notification u/s 10(46) of the Act is also exempted from tax. In support of his contention, the learned Counsel for the assessee has relied upon the judgment of the Hon'ble jurisdictional High Court in the case of Spectra Shares & Scrips (P.) Ltd. vs Commissioner of Income-tax reported in 354 ITR 35 dated, 21st February, 2013.
Page 5 of 18
On the other hand, the learned DR has submitted that the assessee has not disputed the fact that there was an accumulation of income during the financial year 2015-16, out of which a sum of Rs.3,86,62,546/- remained unutilized even after the expiry of 5 years i.e. at the end of the financial year 2020-21 and therefore, in view of the 3rd proviso to section 10(23C) as well as in view of the section 11(2) r.w.s. 11(5) of the I.T. Act, the unutilized accumulated income within the prescribed limit of 5 years is liable to be taxed for the year under consideration. He has relied upon the impugned order of the learned CIT (Exemptions).
We have considered the rival contentions as well as the relevant material available on record. There is no dispute that the assessee was earlier granted approval/exemption u/s 10(23C) of the Act vide order dated 29/09/2010. At the time of filing the return of income, the assessee claimed the exemption u/s 10(23C)(vi) of the I. T. Act and declared ‘NIL” income. During the assessment proceedings the Assessing Officer noted that there was an accumulation of income by the assessee during the financial year 2015-16 and out of the said accumulated amount, a sum of Rs.3,86,62,540/- remained unutilized within the prescribed period of 5 years. The Assessing Officer issued a show cause notice dated 18/10/2022 running into 11 pages. The relevant query raised by the Assessing Officer on this particular issue is as under:
Page 6 of 18 Page 7 of 18 Page 8 of 18
Thus, the Assessing Officer has specifically issued a show cause notice as to why this unutilized accumulated income within 5 years of accumulation should not be assessed to tax. In reply, the assessee submitted that after the assessee is declared as covered u/s 10(46) of the I.T. Act vide notification dated 24/08/2022, the said accumulation cannot be assessed to tax. The relevant reply of the assessee reads as under: “7. We will submit shortly the details of the tax deducted from the items of expenditure referred to by you in sub-para (ii) of 3.1.2 of your letter. You have proposed to compute the total income at Rs.3,86,62,540/- being the shortfall of the application against the amount accumulated for the A.Y 2016-17. We hae mentioned in the foregoing paragraphs that the pvosions of section 10(23C) of the Income Tax Act more so proviso 3 thereof, do not apply to the A.Y 2021-22 as section 10(46) is applicable to the A.Y 2021-22. Even if the income is determined at Rs.3,86,62,540/.- the same will be exempt u/s 10(46) as it is out of notified incomes”.
Thus, the assessee contended before the Assessing Officer that after the said notification issued u/s 10(46) of the Act applicable for the A.Y 2021-22, the unutilized income of Rs.3,86,62,540/- will be exempt, The Assessing Officer after considering the reply of the assessee has dealt with this issue in para 3.1 to 3.2 as under: “3.1. Regarding approval for claim of exemption: i) The assessee has claimed exemption u/s 10(23C) of the Act in its return of income and also furnished audit report in Page 9 of 18 form 10BB for the same. The computation of total income is also made accordingly in the |TR. ii) However, in the manual computation of total income furnished in response to notice issued u/s 142(1) of the Act, the assessee has claimed exemption u/s 11(1)(a) of the Act. ii) In course of hearing, the assessee was requested to furnish certified copy of registration or approval obtained by the assessee/documentary evidences in support of exemption claimed in the return of income. iv) In response, the assessee has not furnished any proof of Registration or Approval as asked for. Rather, it has furnished copy of notes of accounts for the year 2021-22 (for the period from 01.04.2021 to 31-03-2022) in which it is submitted that CBDT has notified the Board u/s 10(4G) of the Act on the basis of which the income of the Board is totally exempt. The assessee has also furnished copy of the notification issued by the CBDT vide Notification No. 103/2022 dated 24.08.2022. On examination of the notification, it is seen that the said Notification is applicable for the F.Y. 2016-17 to F.Y.2020-21 and thus, it is applicable for A.Y.2021-22 also. It is also found that the above Notification is issued in Compliance to the Hon'ble High Court for the State of Telangana's Common Order dated 26.07.2021 in W.P.No.4834/2020 and 15629/2020. v) In response to Show Cause Notice dated 18.10.2022, the assessee has furnished explanation on 18.11.2022 & 26,11.2022 wherein the assessee has reiterated that the assessee is entitled to get exemption as per provisions of Section 10(46) of the Income Tax Act in pursuance of the order of the Hon'ble Court and Notification issued by CBDT. It has been stated that all the receipts in the income and expenditure account are receipts notified for purpose of Section 10(46). The surplus reflected in the income and expenditure account, after debiting the expenses shown in the income and expenditure account, is also exempt U/s 10(46) as it is constituted of the notified receipts. Even if any disallowance is made out of the expenditure, such disallowance will increase the total income, and such increased total income will be exempt u/s 10(46). vi) The assessee has also explained that approval dated 29.9.2010 u/s 10(23C) [copy enclosed as Attachment-2] was cancelled with effect from 8th March, 2017, the date on Page 10 of 18 which application u/s 10(46) was filed. Copy of the Cancellation Order dated 04.05.2022 was furnished by way of Attachment-3. The Notification was issued pursuant to the directions of the High Court of Telangana. The Notification once issued by the Central Government, will operate unless it is withdrawn. The outcome of the SLP can be given effect to if any adverse decision is taken by the Supreme Court. Till such decision is given, the Notification continues to remain in operation. When once it operates, it has to be given effect io. However, If there is a subsequent judgment of Supreme Court cancelling the Notification u/s 10(46) the Assessment can always be rectified u/s 154 as the Order passed in contradiction to a subsequent Judgment of the Supreme Court is a mistake apparent from record and the assessment can be rectified within 4 years from the date of the Supreme Court's Judgment. 3.2 Considering the decision given by the Hon'ble Jurisdictional Telangana High Court for the State of Telangana, Notification issued by CBDT in Notification No.103/2022 dated 24 08.2022 to treat the assessee as covered u/s 10(46) of the Income Tax Act. 1961 explanation offered by the assessee and the declaration of rectification of income with regard to the outcome of the SLP filed before the Hon'ble Supreme Court, the total income of the assessee is assessed at Rs.Nil.”
Therefore, the Assessing Officer has consciously taken a decision that after the notification issued u/s 10(46) of the Act, even the accumulated amount not utilized by the assessee within 5 years would be exempt u/s 10(46) of the Act. The learned CIT (Exemptions) disagreed with this order of the Assessing Officer and has issued show cause notice dated 19/04/2024 u/s 263 of the Act to revise the assessment order. The relevant part of the show cause notice in para 5 to 8 as under: “5. The Assessee M/s AP Pollution Control Board was constituted under water (Prevention and Control) Act, 1974. It is adopted under Air (Prevention and Control) act 1981. The object of the Board is to restrict Water & Air Pollution in the state under these Acts. The assessee society was Page 11 of 18 registered u/s 10(23C) of the IT Act 1961, vide order No.CCIT-IIl/Tech/10(230) (vi)l41/2010-11, dt. 09.09.2010 approved by Chief Commissioner of Income Tax-lI, Hyderabad. The society registered u/s 10(23C) of the IT Act 1961, dt 29.09.2010 has been cancelled with effect from 8th March, 2017, the date on which application u/s 10(46) was filed. The CBDT vide no. 103/2022 dt.24-08-2022 has notified the Board u/s 10(46) of the Act on the basis of which the income of the Board is totally exempt. The Notification is applicable for the FY 2016-17 to FY 2020-21 and thus, it is applicable for A.Y 2021-22 also. Further the Notification is issued in compliance to the Hon'ble High court of Telangana common order dt. 26-7-2021 in WP.No.4834/2020 and 15629/2020. 5.1 Subsequently, the case has been selected for scrutiny under CASS and the Assessing Oficer (NaFAC) has completed the Scrutiny Assessment uls 143(3) r. w.s 144B of the Act on 21.12.2022 by accepting the returned income.
Further, It was noticed that, the assessee in the FY 2015- 16 had accumulated incomes of Rs.74,38,61,538/- within the meaning of third proviso to section 10(23C). However, it was observed that out of Rs.74,38,61,538- accumulated income, assessee utilized/applied for charitable purposes to the tune of Rs.70,51,98,998/- by the end of F.Y 2020-21 leaving unutilised balance of accumulated income of Rs.3,86,62,540/- which attracted provisions of section 11(2) rw.s 11(5). Non utlisation of accumulated incomes to the tune of Rs.3,86,62,540/-within the prescribed timelines should be brought to tax.
The Assessing Officer (NaFAC) has completed the Scrutiny Assessment on 21.12.2022 by accepting the Returned income without considering the unutilised balance of accumulated income of Rs.3,86,62,540/-. Since, this was erroneous and prejudicial in the interest of revenue the assessment u/s 143(3) r.w.s 144B of the Act dated 21.12.2022 need to be revised.
For the failure on part of the AO in determining the correct total income as stated above, the assessment made by the AO vide order u/s 143(3) r.W.s. 144B of the IT, Act, dt. 21.12.2022 for the A Y 2021-22, in your case without proper verification, is thus erroneous, in so far as it is prejudicial to the interest of revenue. Hence, it is proposed Page 12 of 18 to revise the said assessment made by the AO u/s 263 of the Income Tax Act.”
Thus, the learned CIT (Exemptions) was of the view that in the light of the provisions of section 10(23C) r.w 3rd proviso to said section as well as section 11(2) and 11(5) of the Act, the unutilized accumulated income of Rs.3,86,62,540/- attracts the above said provisions and should be brought to tax. Finally, the learned CIT (Exemptions) has set aside the order of the Assessing Officer by giving his finding in para 8 & 9 as under: “8 The ITR filed by the assessee for the year under consideration has been perused ana the detailed submission of the assessee has also been verified. The assessee vide its submissions mentioned supra has discussed and explained the application of income of accumulated income of Rs.3,86,62,540/- at length. The contention of the assessee in this matter has been perused and taken on record. However, the application of income out of the accumulated income is required to be explained with verifiable documentary. The assessee has not submitted any documentary evidence in the form of income and expenditure statement, ledgers, cash and bank statements, etc. 9. In view of the facts stated above, the order uls 143(3) r.w.s.144B of the I.T. Act. 1961 for the A.Y. 2020-21, so far as it pertains to the issues discussed above, is partially set aside to the file of the Assessing officer with a direction to bring to tax the surplus amount, if any, as per the provisions of the income tax act after giving reasonable opportunity to the assessee.”
9.1 Thus,, it is apparent from the concluding part of the impugned order that this is not in consonance with the show cause notice issued by the learned CIT (Exemptions) as there was no dispute about the accumulation of the income and unutilized part of the accumulated income to the extent of Rs.3,86,62,540/- Page 13 of 18 and Hence, , the question of explanation or verification of documents on this factual aspect does not arise. It is pertinent to note that once the assessee is notified as covered u/s 10(46) vide notification dated 22/08/2022, then the income which is arising to the assessee A.P Pollution Control Board as specified in the said notification is exempt. For the sake of completeness, the said notification dated 24/08/2022 is reproduced as under: Notification No. 103/2022-Income Tax, Dated: 24.08.2022 S.O. 4001(E).—In exercise of the powers conferred by clause (46) of section 10 of the Income-tax Act, 1961 (43 of 1961), the Central Government hereby notifies for the purposes of the said clause, the Andhra Pradesh Pollution Control Board (PAN AAAJA1610Q), a Board constituted by the State Government of Andhra Pradesh under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), in respect of the following specified income arising to that Board, namely:- (a) consent fee received under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) and Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981); (b) analysis fees or air ambient quality survey fees or noise level survey fees; (c) reimbursement of the expense received from Central Pollution Control Board towards National Water Quality Monitoring Programme and National Air Quality Monitoring Programme like Schemes; (d) bio medical authorization fees; (e) cess reimbursement and cess appeal fees; (f) grants from State or Central Government; (g) fees received under the Right to Information Act, 2005 (22 of 2005); Page 14 of 18 (h) sale of law books where no profit element is involved and the activity is not commercial in nature; (i) interest on loans and advances given to staff of the Board; (j) miscellaneous income like sale of old scrap items, tender fees; and (k) Interest earned on (a) to (j) above.
This notification shall be effective subject to the conditions that the Andhra Pradesh Pollution Control Board,- (a) shall not engage in any commercial activity; (b) activities and the nature of the specified income shall remain unchanged throughout the financial years; and (c) shall file return of income in accordance with the provision of clause (g) of sub-section (4C) of section 139 of the Income-tax Act, 1961.
This notification shall be deemed to have been applied for the financial years 2016-2017, 2017- 2018, 2018-2019, 2019-2020 and 2020-2021 subject to the outcome of the Special Leave Petition filed by Central Board of Direct Taxes vide SLP(C) No. 014351/2022 in the Hon’ble Supreme Court of India against the Common order dated 26.07.2021 in W.P.4834/2020 and 15629/2020 by the High Court for the State of Telangana. [Notification No. 103/2022/F. No. 300196/18/2017-ITA-I (PT.-1)] SOURABH JAIN, Under Secy.”
Therefore, the said notification is applicable from financial year 2016-17 to 2020-21 relevant for the A.Y 2017-18 to 2021-22. Even thereafter, there is another notification issued u/s 10(46) dated 18/07/2025 which reads as under:
Page 15 of 18 [भाग II—खण् ड 3(ii)] भारत का राि◌प� : असाधारण 3 MINISTRY OF FINANCE (Department of Revenue) (CENTRAL BOARD OF DIRECT TAXES) NOTIFICATION New Delhi, the 18th July, 2025 S.O. 3289(E).— In exercise of the powers conferred by clause (46) of section 10 of the Income-tax Act, 1961 (43 of 1961), the Central Government hereby notifies for the purposes of the said clause, ‘Andhra Pradesh Pollution Control Board’ (PAN: AAAJA1610Q), a Board established by the State Government of Andhra Pradesh under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), in respect of the following specified income arising to the said Board, namely: (a) Consent fees received under the Water (Prevention & Control of Pollution) Act, 1974 (6 of 1974) and Air (Prevention & Control of Pollution) Act, 1981 (14 of 1981); (b) Analysis fees or air ambient quality survey fees or noise level survey fees; (c) Reimbursement of the expense received from Central Pollution Control Board towards National Water Quality Monitoring Programme and National Air Quality Monitoring Programme like schemes; (d) Bio medical authorization fees; (e) Cess reimbursement and cess appeal fees; (f) Grants received from State or Central Governments; (g) Fees received under the Right to Information Act, 2005 (22 of 2005); (h) Sale of law books where no profit element is involved and the activity is not commercial in nature; (i) Interest on loans and advances given to staff of the Board; (j) Miscellaneous income like sale of old scrap items, tenders fees etc.; (k) Interest earned arising out of the above.
This notification shall be effective subject to the conditions that Andhra Pradesh Pollution Control Board – Page 16 of 18 (a) shall not engage in any commercial activity; (b) activities and the nature of the specified income shall remain unchanged throughout the financial years; and (c) shall file return of income in accordance with the provision of clause (g) of sub-section (4C) of section 139 of the Income-tax Act, 1961.
This notification shall be deemed to have been applied for assessment years 2022-2023, 2023-2024, 2024- 2025, 2025-2026, relevant to financial years 2021-2022, 2022- 2023, 2023-2024, 2024-2025, and shall be applicable for assessment years 2026-2027 relevant to financial years 2025-2026. [Notification No. 119 /2025/F. No. 300196/18/2017-ITA- I/Part-II] MEENAKSHI SINGH, Dy. Secy. “
Thus, when the income was originally earned by the assessee as specified in these notifications issued u/s 10(46) of the Act, then the accumulation of the said income would not attract the provisions of section 10(23C) r.w.s. 3rd proviso as well as section 11(2) and 11(5) of the I.T. Act. Once the assessee is covered u/s 10(46) of the Act, then the income of the assessee cannot be assessed under the provisions of section 10(23C) or section 11 to 13 of the I.T. Act, 1961. Accordingly, in view of the above discussions, we are of the considered opinion that the impugned order passed by the learned CIT (Exemptions) u/s 263 of the Act is not sustainable in law and liable to be set aside. We order accordingly.
Page 17 of 18
In the result, appeal filed by the assessee is allowed.
Order pronounced in the Open Court on 6th August, 2025. Sd/- Sd/- (MANJUNATHA, G) (VIJAY PAL RAO) ACCOUNTANT MEMBER VICE-PRESIDENT Hyderabad, dated 6th August, 2025 Vinodan/sps Copy to: S.No Addresses 1 AP. Pollution Control Board, Paryavaran Bhavan, APIIC Colony Road, Gurunanak Colony, Autonagar, Vijayawada 520007 AP 2 Dy. CIT (Exemption Circle) CR Building, Vijayawada 520001 3 Pr. CIT – Exemptions, Vijayawada 4 DR, ITAT Visakhapatnam Bench 5 Guard File By Order Page 18 of 18