R.B. GAUTAM SEWA SANSTHAN,GHAZIABAD vs. JCIT, GHAZIABAD

First three ground were not pressed by the ld. AR, which hereby stand dismissed as not pressed.

The only other issue challenged is about not considering the assessee’s claim for exemption u/s 10(23C)(iiiad) of the Act.

Succinctly, the facts of the case are that the assessee filed return declaring Nil income. The AO examined the assessee’s claim in terms of section 11 and made disallowance of depreciation amounting to Rs.19,38,802/-. The assessee argued before the ld. CIT(A) that its income was exempt u/s 10(23C)(iiiad) and, hence, there was no point in applying the provisions of section 11. The ld. CIT(A) rejected the assessee’s contention vide para 5.3 of his order by holding that this aspect was raised for the first time before him. The assessee is aggrieved against the decision of the ld. CIT(A) on this point.

I have heard the rival submissions and perused the relevant material on record. It is noticed that the only issue is as to whether the assessee was eligible for exemption u/s 10(23C)(iiiad) of the Act. Whereas the ld. CIT(A) did not grant such exemption by finding that this claim was made for the first time during the appellate proceedings, the return of income clearly mentions the assessee’s claim u/s 10(23C)(iiiad). A copy of such 2

return is available on record from which it is discernible that the assessee did make a claim for exemption u/s 10(23C)(iiiad). Under such circumstances, it cannot be said that the assessee raised the claim for exemption for the first time during the appellate proceedings. Since such claim needs to be examined on merits, I am of the considered opinion that the ends of justice would meet adequately if the impugned order is set aside and the matter is restored to the file of AO. I order accordingly and direct him to examine the assessee’s claim for exemption u/s 10(23C)(iiiad) and consequently frame the assessment.

In the result, the appeal is partly allowed for statistical purposes.