The ACIT, Circle-1,, JAMNAGAR v. Oswal Education Trust,, JAMNAGAR

ITA 586/RJT/2012 | 2009-2010
Pronouncement Date: 18-10-2013 | Result: Dismissed

Appeal Details

RSA Number 58624914 RSA 2012
Assessee PAN AAATO0229R
Bench Rajkot
Appeal Number ITA 586/RJT/2012
Duration Of Justice 11 month(s) 17 day(s)
Appellant The ACIT, Circle-1,, JAMNAGAR
Respondent Oswal Education Trust,, JAMNAGAR
Appeal Type Income Tax Appeal
Pronouncement Date 18-10-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 18-10-2013
Date Of Final Hearing 13-08-2013
Next Hearing Date 13-08-2013
Assessment Year 2009-2010
Appeal Filed On 31-10-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH RAJKOT. .. .. BEFORE SHRI T. K. SHARMA JM AND SHRI D. K. S RIVASTAVA AM ITA NO. 586/RJT/2012 / ASSESSMENT YEAR 2009-10 THE ASSISTANT. COMMISSIONER OF INCOME-TAX CIRCLE-1 JAMNAGAR. ( / APPELLANT) OSWAL EDUCATION TRUST HARIA SCHOOL BUILDING INDIRA MARG JAMNAGAR. PAN : AAATO0229R / RESPONDENT C.O. NO. 43/RJT/2012 / ASSESSMENT YEAR 2009-10. OSWAL EDUCATION TRUST HARIA SCHOOL BUILDING INDIRA MARG JAMNAGAR. PAN : AAATO0229R ( / APPELLANT) THE ASSISTANT. COMMISSIONER OF INCOME-TAX CIRCLE-1 JAMNAGAR. / RESPONDENT ! '# / REVENUE BY SHRI AVINASH KUMAR DR $% ! '# / ASSESSEE BY SHRI J. C. RANPURA CA ' & ' %( / DATE OF HEARING 13-08-2013 ) %( / DATE OF PRONOUNCEMENT 18-10-2013 / ORDER .. / T. K. SHARMA J. M. : THIS APPEAL BY THE REVENUE AND CROSS OBJECTIONS BY THE ASSESSEE ARE AGAINST TH E ORDER DATED 07-08-2012 OF LD. CIT (A) JAMNAGAR FOR THE ASSESSMENT YEAR 2009- 10. ITA NO.586/RJT/2012: 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A T RUST. FOR THE ASSESSMENT YEAR UNDER APPEAL IT FILED THE RETURN OF INCOME DE CLARING LOSS OF RS.35 96 372/- ON 29-09-2009. SUBSEQUENTLY ON 23-20-2010 A REVISE D RETURN WAS FILED DECLARING LOSS OF RS.40 78 990/-. AO FRAMED THE ASSESSMENT U/ S.143(3) OF THE I.T. ACT ON 09-12-2011 WHEREIN HE COMPUTED THE TOTAL LOSS AT R S.35 54 160/-. IN THIS ASSESSMENT ORDER AO TREATED THE DONATION OF RS.2 6 4 500/- AS VOLUNTARY CONTRIBUTION AND DEEMED INCOME IN TERMS OF SEC.10 OF THE ACT INS TEAD OF CLAIM OF THE ASSESSEE TRUST THAT IT IS A CORPUS DONATION . APART FROM THIS IN THE ASSESSMENT ORDER AO HELD THAT RS.52 96 900/- IS NO T A DONATION AS ASSESSEE ITA 586-12 & CO. 43-12 OSWAL EDUCATION TRUST 2 ITSELF DISALLOWED THE SAME IN THE REVISED RETURN FI LED ON 25-10-2010 WITH THE FOLLOWING NARRATION: LAST RETURN OF INCOME FILED ON 29/09/2008 VIDE ACK . NO. 0155002310. THE CLAIM OF DONATION AS CORPUS DONATION (RS.12780396/- ) INCLUDES DEVELOPMENT FUND OF RS.52 96 900/-. THERE IS DIFFER ENCE OF OPINION ABOUT ADMISSIBILITY OF SUCH A CLAIM. OUT OF ABUNDANT PREC AUTION THE SAME IS REDUCED FROM THE CLAIM. REVISED RETURN IS FILED ACC ORDINGLY. THE CARRY FORWARD DEFICIT FROM LAST ASSESSMENT YEAR IS ARRIVE D AT AFTER REDUCING THE CLAIM OF DEVELOPMENT FUND. IN VIEW OF INCOME BELOW TAXABLE LIMIT EXCESS UTILI ZATION OF RS.21691963/- LOSS CLAIMED OF RS.25499317/- LESS DEDUCTION FOR CO RPUS DONATION NOT ALLOWED RS.38 07 354/-) IS NOT ADJUSTED. FURTHER IN PARA-4 OF THE ASSESSMENT ORDER AO HELD THAT ASSESSEE IS NOT ENTITLED TO CARRY FORWARD AND SET OFF OF EARLIER YEARS LOSS/ DEFICIT I.E. RS.2 16 91 963/- AS PER RETURN OF INCOME FOR ASSESSMENT YEAR 2008-09. F INALLY IN PAR-4.3 THE AO REJECTED THE CLAIM OF THE ASSESSEE TO TREAT FIGURE OF RS.4 38 66 230/ BEING INCOME APPLIED FOR THE OBJECT OF THE TRUST FOLLOWIN G THE JUDGMENT OF APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT IN CIVIL APPEAL NO.1761 OF 2006 WHEREIN IT HAS BEEN SPELLED OUT VERY CLEARLY THAT NO CLAIM CAN BE MADE BY THE ASSESSEE OTHER THAN BY WAY OF FILING A REVISED RETU RN. 3. ON APPEAL IN THE IMPUGNED ORDER THE LD. CIT (A ) FOR THE DETAILED REASON GIVEN IN PARA-4.2 ON PAGE-4 DIRECTED THE AO TO TREA T THE DONATION AMOUNTING TO RS.2 64 500/- AS CORPUS DONATION AND THEREBY HOLD THAT SAME IS ELIGIBLE FOR EXEMPTION U/S.11(1)(D) OF THE ACT. IN PARA-5.2 TH E LD. CIT (A) DIRECTED THE AO TO ALLOW THE CLAIM OF ASSESSEE TRUST FOR CARRY FORWARD AND SET OFF OF EARLIER YEARS LOSS/DEFICIT AMOUNTING TO RS.2 16 91 963/- AGAINST THE CURRENT INCOME FOLLOWING THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE C ASE OF CIT V. PLOT SHEWTAMBER MURTIPUJAK JAIN MANDAL 211 ITR 293 AS WELL AS BY BO MBAY HIGH COURT IN CASE OF CIT V. INSTITUTE OF BANKING PERSONNEL SELECTION 264 ITR 110. 4. FINALLY IN PARA-6.2 THE LD. CIT (A) DIRECTED T HE AO TO CONSIDER THE CLAIM OF THE ASSESSEE FOR TOTAL EXPENSE TOWARDS ITS OBJECT B Y TAKING INTO CONSIDERATION A CLAIM OF RS.2 97 23 892/- AS REVENUE EXPENDITURE AS AGAINST THE ORIGINAL CLAIM MADE BY ASSESSEE AS RS.2 46 08 128/-. THE PARA-6.2 OF THE IMPUGNED ORDER ON PAGE-9 IS REPRODUCED HEREUNDER:- ITA 586-12 & CO. 43-12 OSWAL EDUCATION TRUST 3 6.2 I HAVE DULY CONSIDERED THE SUBMISSION OF THE A PPELLANT AND THE DISCUSSION MADE BY THE AO IN THE ASSESSMENT ORDER. APPELLANT EXPLAINED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH E TRUST HAS NOTICED THAT THERE WAS AN APPARENT ARITHMETIC MISTAKE IN CA LCULATING TOTAL UTILIZATION OF REVENUE EXPENDITURE AND CAPITAL EXPENDITURE I.E . WHILE CALCULATING TOTAL APPLICATION OF INCOME TOTAL OF SURPLUS AMOUNT OF R S.2 46 08 128 AND CAPITAL EXPENDITURE OF RS.1 92 58 102 WAS INADVERTE NTLY MADE INSTEAD OF MAKING CORRECT TOTAL OF RS.2 97 23 892 BEING TOTAL REVENUE EXPENDITURE AND RS.1 92 58 102 BEING CAPITAL EXPENDITURE. APPEL LANT HAS ALSO GIVEN DETAILS OF ITEMS IN THE WRITTEN SUBMISSION. IN SUPP ORT OF ITS CLAIM THE APPELLANT RELIED ON THE RECENT DECISION OF HON. BOM BAY HIGH COURT IN THE CASE OF CIT VS. PRUTHVI BROKERS & SHAREHOLDERS P. L TD. IN WHICH HON. BOMBAY HIGH COURT HAS DISTINGUISHED THE DECISION OF SUPREME COURT IN THE CASE OF GOETZE INDIA LTD. IN WHICH PARA 23 OF THE JUDGMENT READS IT IS CLEAR TO US THAT THE SUPREME COURT DID NOT HOLD ANYTHING CONTRARY TO WHAT WAS HELD IN THE PREVIOUS JUDGMENT TO THE EFFEC T THAT EVEN IF A CLAIM IS NOT MADE BEFORE THE ASSESSING OFFICER IT CAN BE MA DE BEFORE APPELLATE AUTHORITIES.. FROM THE DETAILS SUBMITTED DURING THE APPELLATE PR OCEEDINGS I FIND THAT THERE IS ARITHMETIC MISTAKE IN CALCULAT ING TOTAL UTILIZATION OF REVENUE EXPENDITURE & CAPITAL EXPENDITURE. AO IS TH EREFORE DIRECTED TO CONSIDER APPELLANT CLAIM BY TAKING CORRECT FIGURE A S CLAIMED BY THE APPELLANT WHILE GIVING EFFECT TO THIS ORDER. AGGRIEVED WITH THE ORDER OF LD. CIT (A) THE REVEN UE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS:- 1. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO TREAT THE DONATION AMOUNTING TO RS.264500/- AS CORPUS DONATI ON AND THEREBY HOLDING THE SAME AS ELIGIBLE FOR EXEMPTION U/S.11(1 )(D) OF THE ACT THOUGH THE ASSESSEE ADMITTEDLY COULD NOT PROVE ITS CONTENTIONS WITH DOCUMENTARY EVIDENCE. 2. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO ALLOW THE CLAIM OF THE ASSESSEE TRUST FOR CARRY FORWARD AND S ET OFF OF EARLIER YEARS DEFICIT AMOUNTING TO RS.2 16 91 963/- AGAINST THE C URRENT YEAR INCOME. 3. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE EXCESS OF EXPENDITURE IN EARLIER YEARS CAN BE ADJUSTED AGA INST INCOME OF SUBSEQUENT YEAR AND ADJUSTMENT SHOULD BE TREATED AS APPLICATION OF INCOME IN SUCH SUBSEQUENT YEAR FOR CHARITABLE PURPO SE. 4. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO CONSIDER THE CLAIM OF THE ASSESSEE FOR TOTAL EXPENSE TOWARDS ITS OBJECTS BY TAKING INTO CONSIDERATION A CLAIM OF RS.29723892/- AS REVENUE EXPENDITURE AS AGAINST ORIGINAL CLAIM MADE BY THE A SSESSEE AT RS.24608128/-. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. C.O. NO. 43/RJT/2012: 5. THE ASSESSEE HAS FILED THE CROSS OBJECTIONS ON T HE FOLLOWING GROUNDS:- 1. THE GROUNDS OF CROSS-OBJECTIONS MENTIONED HEREUN DER ARE WITHOUT PREJUDICE TO ONE ANOTHER. 2. THE APPEAL FILED BY THE DEPARTMENT AFTER EXPIRY OF DUE DATE FOR FILING OF APPEAL DESERVES NOT TO BE ENTERTAINED. THE APPEAL M AY KINDLY BE NOT ALLOWED TO BE PROCEEDED WITH. ITA 586-12 & CO. 43-12 OSWAL EDUCATION TRUST 4 3. THE ORDER PASSED BY THE LD. COMMISSIONER OF INCO ME TAX (APPEALS) JAMNAGAR [CIT(A)] IN SO FAR AS HE TREATED THE DONAT ION OF RS.2 64 500/- AS CORPUS DONATION IS FULLY JUSTIFIED ON FATS AS ALSO IN LAW AND DESERVES TO BE UPHELD AND MAY KINDLY BE UPHELD. 4. THE ORDER PASSED BY THE LD. CIT (A) IN ALLOWING CARRY FORWARD AND SET OFF OF EARLIER YEARS DEFICIT OF RS.2 16 91 963/- I S FULLY JUSTIFIED ON FACTS AS ALSO IN LAW AND DESERVES TO BE UPHELD AND MAY KI NDLY BE UPHELD. 5. THE ORDER PASSED BY THE LD. CIT (A) HOLDING THAT EXCESS OF EXPENDITURE IN EARLIER YEARS CAN BE ADJUSTED AGAINST THE INCOME OF SUBSEQUENT YEAR AND ADJUSTMENT SHOULD BE TREATED AS APPLICATION OF INCOME IN SUCH SUBSEQUENT YEAR FOR CHARITABLE PURPOSES IS FULLY JU STIFIED ON FACTS AS ALSO IN LAW AND DESERVES TO BE UPHELD AND MAY KINDL Y BE UPHELD. 6. THE ORDER PASSED BY LD. CIT(A) IN SO FAR AS ALLO WING CLAIM OF EXPENSES TO THE TUNE OF RS.2 97 23 892/- AS AGAINST OF RS.2 46 08 128/- ALLOWED BY AO IS FULLY JUSTIFIED ON FACTS AS ALSO IN LAW A ND DESERVES TO BE UPHELD AND MAY KINDLY BE UPHELD. 6. AT THE TIME OF HEARING BEFORE US ON BEHALF OF R EVENUE SHRI AVINASH KUMAR DR APPEARED AND POINTED OUT THAT THE ASSESSE E-TRUST RECEIVED DONATIONS TO THE TUNE OF RS.1 27 80 396/- TOWARDS CORPUS FUND ; HOWEVER BEFORE THE ASSESSING OFFICER THE ASSESSEE PRODUCED DIRECTION L ETTERS FROM THE DONORS TO THE EFFECT THAT THE DONATIONS WERE WITH SPECIFIC DIRECT IONS THAT THE SAME SHALL FORM PART OF THE CORPUS OF THE ASSESSEE TRUST TO THE EX TENT OF RS.2 64 500/- AND THEREFORE THE ASSESSING OFFICER TREATED THIS AMOUN T AS VOLUNTARY CONTRIBUTIONS NOT FORMING PART OF THE CORPUS AND TREATED THE SAME AS INCOME WITHIN THE MEANING OF SECTION 12 OF THE INCOME-TAX ACT. HE SU BMITTED THAT IT WAS THE DUTY OF THE ASSESSEE-TRUST TO FURNISH THE DIRECTION LETTERS IN RESPECT OF EACH AND EVERY CORPUS DONATION AND SINCE THESE WERE NOT PRODUCED T O THE EXTENT OF RS.2 64 500/- THE LD CIT(A) IS RIGHT IN DIRECTING THE ASSESSING OFFICER TO TREAT THE SAME AS CORPUS DONATION. 7. AS AGAINST THIS THE LD COUNSEL OF THE ASSESSEE POINTED OUT THAT THE ASSESSEE HAS PRODUCED DIRECTION LETTERS IN RESPECT OF ALL THE CORPUS DONATIONS EXCEPT TO THE EXTENT OF RS.2 64 500/- WHICH IS 3.51 % OF THE TOTAL DONATIONS AND THIS IS A SMALL PERCENTAGE AND THEREFORE IT SHOULD NOT BE LOOKED WITH SUSPICION BECAUSE NO APPARENT BENEFIT WILL OCCUR TO THE ASSES SEE-TRUST IN CASE OF ACCEPTANCES OF SUCH SMALL CLAIM. HE FURTHER SUBMIT TED THAT THE LD CIT(A) IN THE IMPUGNED ORDER DELETED THE ADDITION RELYING ON THE JUDGMENT OF THE HONBLE ITA 586-12 & CO. 43-12 OSWAL EDUCATION TRUST 5 KARNATAKA HIGH COURT IN THE CASE OF DIT(EXEMPTIONS) & ANR VS. SRI RAMAKRISHNA SEVA ASHRAM 258 CTR 201; WHEREIN IT IS HELD THAT IT IS NOT NECESSARY THAT A VOLUNTARY CONTRIBUTION SHOULD BE MADE WITH A SPECIF IC DIRECTION TO TREAT IT AS CORPUS; IF THE INTENTION OF THE DONOR IS TO GIVE THAT MONEY TO A TRUST WHICH THEY WILL KEEP IT IN TRUST ACCOUNT IN DEPOSIT AND THE INCOME FROM THE SAME IS UTILIZED FOR CARRYING ON A PARTICULAR ACTIV ITY IT SATISFIES THE DEFINITION PART OF THE CORPUS; ASSESSEE WOULD BE EN TITLED TO THE BENEFIT OF EXEMPTION UNDER SECTION 11(1)(D). APART FROM THIS HE ALSO RELIED ON THE JUDGMENT OF HONBLE ITAT JAIPUR BENCH IN THE CASE OF MALIRAM POORANMAL CHARITABLE TRUST 12 TTJ 245 WHEREIN IT HAS BEEN H ELD THAT NO SPECIFIC MODE OF GIVING THE DIRECTION IS PRESCRIBED BY THE STATUT E THE DIRECTION CAN BE GATHERED FROM THE FACTS AND CIRCUMSTANCES OF THE CA SE AND THEREFORE HE SUBMITTED THAT THE VIEW TAKEN BY THE LD CIT(A) BE U PHELD. 8. RIVAL SUBMISSIONS WERE CONSIDERED. IT IS PERTINE NT TO NOTE THAT THE ONLY EVIDENCE REGARDING 3.51% OF THE DONATIONS ARE NOT A VAILABLE WHICH IS A SMALL PERCENTAGE. BONA FIDE CLAIM IS NOT DISPUTED AND DOU BTED. HONBLE ITAT JAIPUR BENCH IN THE CASE OF MALIRAM POORANMAL CHARITABLE T RUST (SUPRA) HELD THAT NO SPECIFIC MODE OF GIVING THE DIRECTION IS PRESCRIBED BY THE STATUTE THE DIRECTION CAN BE GATHERED FROM THE FACTS AND CIRCUMSTANCES OF THE CASE. LOOKING TO THE SMALLNESS OF THE AMOUNT WE DO NOT FIND ANY INFIRMI TY WITH THE DIRECTION OF THE LD CIT(A) IN THE IMPUGNED ORDER IN DIRECTING THE ASSES SING OFFICER TO ACCEPT THE DONATION OF RS.2 64 500/- AS CORPUS DONATION. T HE GROUND NO.1 TAKEN BY THE REVENUE IS REJECTED. 9. IN RESPECT OF GROUND NOS.2 & 3 OF REVENUE THE O NLY GRIEVANCE OF THE LD DEPARTMENTAL REPRESENTATIVE IS THAT THE SET OFF IS ONLY PERMISSIBLE FOR BUSINESS INCOME AND LONG TERM CAPITAL GAINS. AS AGAINST THIS LD COUNSEL OF THE ASSESSEE SUBMITTED THAT WHILE COMPUTING THE INCOME U/S 11 OF THE INCOME-TAX ACT THERE IS NO PROVISION TO ALLOW SET OFF OF THE EARLIER YEARS DEFICIT. HE FURTHER SUBMITTED THAT IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08 THE LD CIT(A) RELYING ON THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. ITA 586-12 & CO. 43-12 OSWAL EDUCATION TRUST 6 SHRI PLOT SWETAMBAR MURTIPUJAK JAIN MANDAL 211 ITR 293 (GUJ) DELETED THE ADDITION. AGAISNT THE ORDER OF LD CIT(A) FOR ASSESS MENT YEAR 2007-08 THE APPEAL FILED BY THE DEPARTMENT WAS GROUND WAS DISMISSED BY THE HONBLE ITAT RAJKOT BENCH RAJKOT IN ITAT NO.1068/RJT/2010 DATED 15.12. 2011. APART FROM THIS THE LD COUNSEL OF THE ASSESSEE RELIED UPON THE DECISION OF HONBLE MUMBAI HIGH COURT IN THE CASE OF CIT VS. INSTITUTE OF BANKING PERSONN EL SELECTION 264 ITR 110; WHEREIN IT WAS HELD THAT IN CASE OF A CHARITABLE TRUST WHOSE INCOME IS EXEMPT UNDER SECTION 11 EXCESS OF EXPENDITURE IN T HE EARLIER YEARS CAN BE ADJUSTED AGAINST INCOME OF SUBSEQUENT YEARS AND SUC H ADJUSTMENT WOULD BE APPLICABLE OF INCOME FOR SUBSEQUENT YEARS. 10. AFTER HEARING BOTH THE SIDES IN RESPECT OF GROU ND NOS. 2 & 3 WE HAVE CAREFULLY GONE THROUGH THE REASONING GIVEN BY LD CI T(A) AS CONTAINED IN PARAGRAPH 5.2 OF THE ORDER WHICH READS AS UNDER:- 5.2 I HAVE DULY CONSIDERED THE SUBMISSION OF THE A PPELLANT AND THE DISCUSSION MADE BY THE AO IN THE ASSESSMENT ORDER. I FIND THAT SIMILAR ISSUE WAS INVOLVED IN APPELLANTS OWN CASE FOR A.Y. 2007-08 AND MY PREDECESSOR CIT(A) VIDE ORDER NO.CIT(A)/JAM/212/09- 10 DTD. 28.05.2010 HAS HELD THAT IF A TRUST HAS INCURRED A DEFICIT DU RING THE YEAR THE SURPLUS MADE BY IT IN SUBSEQUENT YEAR TO MAKE UP FOR THE PA ST DEFICIT SHOULD BE SET OFF AGAINST SUCH DEFICIT. THIS ISSUE IS COVERED IN FAVOUR OF THE APPELLANT BY THE DECISION OF HONBLE GUJARAT HIGH COURT IN CASE OF CIT V. PLOT SHEWTAMBER MURTIPUJAK JAIN MANDAL 211 ITR 293 AS WE LL AS BY BOMBAY HIGH COURT IN CASE OF CIT VS. INSTITUTE OF BANKING PERSONNEL SELECTION 264 ITR 110. THEREFORE AO IS DIRECTED TO ALLOW DEFICIT OF EARLIER YEARS OF RS.2 59 71 053/- AS SET OFF AGAINST CURRENT YEARS INCOME. I ALSO FIND THAT HONBLE ITAT RAJKOT BENCH ALSO VIDE ITS ORDER IN I TA NO.1068/RJT/2010 DATED 15.12.2011 HAS UPHELD THE ABOVE ORDER OF MY P REDECESSOR CIT(A). IN VIEW OF THE ABOVE LEGAL POSITION THE AO IS DIRE CTED TO ALLOW DEFICIT OF EARLIER YEARS OF RS.2 16 91 963 AS SET OFF AGAINST CURRENT YEARS INCOME. THESE GROUNDS OF APPEAL ARE ALLOWED. 11. BEFORE US THE LD DEPARTMENTAL REPRESENTATIVE H AS NOT DISPUTED THE FACTS NARRATED BY THE LD CIT(A) REGARDING DISMISSAL OF RE VENUES APPEAL FOR THE AY 2007-08 ON THIS ISSUE; THEREFORE WE INCLINED TO UP HELD THE VIEW TAKEN BY THE LD CIT(A) IN THIS REGARD AND ACCORDINGLY GROUND NO.2 & 3 OF THE REVENUE ARE REJECTED. 12. WITH REGARD TO GROUND NO.4 THE LD DEPARTMENTAL REPRESENTATIVE POINTED OUT THAT THE CLAIM MADE IN THE ORIGINAL RETURN CANN OT BE REVISED WITHOUT FILING THE ITA 586-12 & CO. 43-12 OSWAL EDUCATION TRUST 7 REVISED RETURN HAS HELD BY HONBLE SUPREME COURT IN THE CASE OF GOETZE INDIA LTD [2006] 284 ITR 323 (SC). HE ALSO SUBMITTED THAT SIN CE THE ASSESSEE-TRUST HAS NOT FILED THE REVISED RETURN THE LD CIT(A) IS NOT RIGHT IN DIRECTING TO ACCEPT THE REVISION IN THE CLAIM MADE DURING THE COURSE OF ASS ESSMENT PROCEEDINGS WITHOUT FILING THE REVISED RETURN OF INCOME. AS AGAINST TH IS THE LD COUNSEL OF THE ASSESSEE POINTED OUT THAT IF THE CLAIM IS NOT MADE BEFORE THE ASSESSING OFFICER IT CAN BE MADE BEFORE THE APPELLATE AUTHORITY; THEREFO RE THE VIEW TAKEN BY THE LD CIT(A) IN THIS REGARD BE UPHELD. 13. WE HAVE CAREFULLY GONE THROUGH THE REASONING GI VEN BY THE LD CIT(A) AS CONTAINED IN PARAGRAPH 6.2 WHICH READ AS UNDER:- 6.2 I HAVE DULY CONSIDERED THE SUBMISSION OF THE A PPELLANT AND THE DISCUSSION MADE BY THE AO IN THE ASSESSMENT ORDER. APPELLANT EXPLAINED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH E TRUST HAS NOTICED THAT THERE WAS AN APPARENT ARITHMETIC MISTAKE IN CA LCULATING TOTAL UTILIZATION OF REVENUE EXPENDITURE AND CAPITAL EXPENDITURE I.E . WHILE CALCULATING TOTAL APPLICATION OF INCOME TOTAL OF SURPLUS AMOUNT OF R S.2 46 08 128 AND CAPITAL EXPENDITURE OF RS.1 92 58 102 WAS INADVERTE NTLY MADE INSTEAD OF MAKING CORRECT TOTAL OF RS.2 97 23 892 BEING TOTAL REVENUE EXPENDITURE AND RS.1 92 58 102 BEING CAPITAL EXPENDITURE. APPEL LANT HAS ALSO GIVEN DETAILS OF ITEMS IN THE WRITTEN SUBMISSION. IN SUPP ORT OF ITS CLAIM THE APPELLANT RELIED ON THE RECENT DECISION OF HON. BOM BAY HIGH COURT IN THE CASE OF CIT VS. PRUTHVI BROKERS & SHAREHOLDERS P. L TD. IN WHICH HON. BOMBAY HIGH COURT HAS DISTINGUISHED THE DECISION OF SUPREME COURT IN THE CASE OF GOETZE INDIA LTD. IN WHICH PARA 23 OF THE JUDGMENT READS IT IS CLEAR TO US THAT THE SUPREME COURT DID NOT HOLD ANYTHING CONTRARY TO WHAT WAS HELD IN THE PREVIOUS JUDGMENT TO THE EFFEC T THAT EVEN IF A CLAIM IS NOT MADE BEFORE THE ASSESSING OFFICER IT CAN BE MA DE BEFORE APPELLATE AUTHORITIES. FROM THE DETAILS SUBMITTED DURING THE APPELLANT PROCEEDINGS I FIND THAT THERE IS ARITHMETIC MISTAKE IN CALCULATIN G TOTAL UTILIZATION OF REVENUE EXPENDITURE & CAPITAL EXPENDITURE. AO IS TH EREFORE DIRECTED TO CONSIDER APPELLANT CLAIM BY TAKING CORRECT FIGURE A S CLAIMED BY THE APPELLANT WHILE GIVING EFFECT TO THIS ORDER. THIS GROUND OF APPEAL IS ALLOWED. 14. THE VIEW TAKEN BY THE LD CIT(A) FORTIFY BY THE DECISION OF ITAT RAJKOT BENCH IN THE CASE OF DCIT VS. ATUL AUTO LTD. REPOR TED IN [2013] 36 TAXMANN.COM 90 (RAJKOT - TRIB.) (TM). THEREFORE WE DECLINE TO INTERFERE. GROUND NO. 4 IS REJECTED. 15. IN RESPECT OF GROUND NOS. 1 & 2 OF CROSS-OBJECT IONS NO SPECIFIC ARGUMENTS WERE MADE BY THE LD COUNSEL OF THE ASSESSEE AT THE TIME OF HEARING; THEREFORE BOTH THESE GROUNDS ARE REJECTED. ITA 586-12 & CO. 43-12 OSWAL EDUCATION TRUST 8 16. THE REMAINING GROUNDS OF CROSS-OBJECTIONS I.E. GROUND NO.3 TO 6 ARE MERELY IN SUPPORT OF ORDER OF LD CIT(A); THEREFORE IN VIEW OF OUR DECISION IN REVENUES APPEAL THESE ARE RENDERED INFRUCTUOUS A ND THEREFORE DISMISSED. 17. IN THE RESULT THE APPEAL OF THE REVENUE AND CR OSS-OBJECTIONS FILED BY THE ASSESSEE-TRUST BOTH ARE DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD/- SD/- ( *.#. % D. K. SRIVASTAVA ) ( .#. -. / T. K. SHARMA) #( '/ / ACCOUNTANT MEMBER '/ /JUDICIAL MEMBER /#- 0/1/ ORDER DATE 18.10.2013. /RAJKOT NVA/BT* !'# $%'& / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT- ACIT CIRCLE-1 JAMNAGAR 2. /RESPONDENT- OSWAL EDUCATION TRUST HARIA SCHOOL B UILDING INDIRA MARG JAMNAGAR. 3. '151 % & 6% / CONCERNED CIT JAMNAGAR. 4. & 6%- / CIT (A) JAMNAGAR. 5. :;< % / DR ITAT RAJKOT 6. <* >? / GUARD FILE. /#- '# / BY ORDER TRUE COPY PRIVATE SECRETARY ITAT RAJKOT