M/s The Philanthropic Society of the Orthodox Church, Kolkata v. DDIT (EXEMPTIONS)-1, KOLKATA, Kolkata

ITA 763/KOL/2016 | 2011-2012
Pronouncement Date: 26-10-2016 | Result: Allowed

Appeal Details

RSA Number 76323514 RSA 2016
Assessee PAN AAATT3245J
Bench Kolkata
Appeal Number ITA 763/KOL/2016
Duration Of Justice 6 month(s) 3 day(s)
Appellant M/s The Philanthropic Society of the Orthodox Church, Kolkata
Respondent DDIT (EXEMPTIONS)-1, KOLKATA, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 26-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 26-10-2016
Date Of Final Hearing 08-09-2016
Next Hearing Date 08-09-2016
Assessment Year 2011-2012
Appeal Filed On 22-04-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI WASEEM AHMED ACCOUNTANT MEMBER AND SHRI K.NARSIMHA CHARY JUDICIAL MEMBER ITA NO.763/KOL/2016 ASSESSMENT YEAR:2011-12 M/S THE PHILANTHROPIC SOCIETY OF THE ORTHODOX CHURCH 2A LIBRARY ROAD KALIGHAT KOLKATA-700 026 [ AAATT 3245 J ] / V/S . DDIT(EXEMPTIONS)-I 10B MIDDLETON ROW KOLKTA-700 071 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI S. JHAJHARIA ADVOCATE /BY RESPONDENT SHRI MIRAJ KUMAR CIT-DR /DATE OF HEARING 08-09-2016 /DATE OF PRONOUNCEMENT 26-10-2016 /O R D E R PER WASEEM AHMED ACCOUNTANT MEMBER:- THE ASSESSEE HAS FILED THIS APPEAL DISPUTING THE OR DER OF LD. COMMISSIONER OF INCOME TAX (EXEMPTIONS) KOLKATA VIDE NO. CIT(E)/KOL /263/2015-16 DATED 15.02.2016 PASSED U/S 263 OF THE INCOME TAX ACT 19 61 (HEREINAFTER REFERRED TO AS THE ACT) BY WHICH THE LD. CIT SET ASIDE THE ASSESSMEN T ORDER 10.03.2014 U/S 143(3) OF THE ACT WITH A DIRECTION TO REDO THE ASSESSMENT IN RESPECT OF THE ISSUE MENTIONED THEREIN. SHRI S.JHAJHARIA LD. ADVOCATE APPEARED ON BEHALF O F ASSESSEE AND SHRI NIRAJ KUMAR LD. DEPARTMENTAL REPRESENTATIVE APPEARED ON BEHALF OF REVENUE. ITA NO.763/KOL/2016 A.Y.2011-12 M/S THE PHILANTHROPIC SOCIETY OF THE ORTHODOX CHURC H VS. DDIT(EX)-I KOL. PAGE 2 2. SOLITARY ISSUE RAISED BY ASSESSEE IN ITS APPEAL IS THAT LD. CIT ERRED BY HOLDING THE ORDER PASSED BY ASSESSING OFFICER U/S 143(3) AS ERRONEOUS IN SO FAR PREJUDICIAL TO THE INTEREST OF REVENUE. 3. THE FACTS IN BRIEF ARE THAT ASSESSEE IN THE PRE SENT CASE IS A SOCIETY REGISTERED U/S 12A OF THE ACT. THE ASSESSEE-SOCIETY FILED ITS RETU RN OF INCOME BY CLAIMING EXEMPTION U/S. 11(1) OF THE ACT. THE ASSESSEE EXERCISED OPTIO N UNDER CLAUSE (2) OF EXPLANATION TO SEC. 11(1) OF THE ACT FOR TREATING SUM OF 51 83 397.41 AS AMOUNT FALLING SHORT OF REQUISITE 85% AS INCOME DEEMED TO HAVE BEEN APPLIED . THE ASSESSEE SUBMITTED THAT AMOUNT FALL SHORT OF REQUISITE 85% WILL BE APPLIED IMMEDIATELY IN THE FOLLOWING FINANCIAL YEAR 2011-12 AS PER CLAUSE (2) OF EXPLANA TION TO SEC. 11(1) OF THE ACT. THE ASSESSEE CAN EXERCISE THE OPTION IN WRITING ON OR B EFORE THE DUE DATE FOR SUBMISSION OF RETURN OF INCOME AS SPECIFIED U/S 139(1) OF THE ACT WHICH IN THE INSTANT CASE IS 30.09.2011. HOWEVER LD. CIT IN HIS IMPUGNED ORDER U/S 263 OBSERVED THE RETURN HAS BEEN FIELD ON 20.10.2011 WHICH IS AFTER THE DUE DAT E OF FILING OF RETURN OF INCOME AS SPECIFIED U/S. 139() OF THE ACT. IN VIEW OF THE ABO VE LD. CIT OBSERVED THAT ORDER PASSED BY AO IS ERRONEOUS AND PREJUDICIAL TO THE IN TEREST OF REVENUE AND THEREFORE NOTICE WAS ISSUED UPON ASSESSEE. IN RESPONSE THERET O ASSESSEE SUBMITTED THAT THE CONDITION MENTIONED IN CLAUSE-(2) OF EXPLANATION TO SEC. 11(1) OF THE ACT FOR EXERCISING THE OPTION IS DIRECTORY IN NATURE AND NO T MANDATORY IN NATURE. THE AO IS EMPOWERED TO CONDONE THE DELAY IF HE SATISFIES THAT ASSESSEE WAS PREVENTED FROM THE SUFFICIENT CAUSE FOR FILING ITS RETURN INCOME. ACCO RDINGLY AO AFTER CONSIDERING THE SUFFICIENT CAUSE FOR SUCH DELAY GRANTED OPTION TO T HE ASSESSEE THEREFORE THE VIEW OF AO CANNOT BE HELD AS ERRONEOUS AND PREJUDICIAL TO T HE INTEREST OF REVENUE. HOWEVER LD. CIT IN HIS IMPUGNED ORDER U/S. 263 OF THE ACT D ISREGARDED THE CLAIM OF ASSESSEE BY OBSERVING AS UNDER:- HENCE FROM THE ABOVE IT IS CLEAR THAT FOR QUALIF YING THE FIFTEEN PER CENT OF INCOME TO BE SET APART THE PRIMARY AND BASIC CONDI TION IS DECLARATION OF OPTION BY THE ASSESSEE BEFORE THE DUE DATE OF FILING RETUR N OF INCOME US/S 139(1) WHICH IN THE INSTANT CASE HAS NOT BEEN FULFILLED. THE CON TENTION OF THE ASSESSEE DURING THE PROCEEDINGS US/S 263 THAT THE AO AFTER DUE CONS IDERATION HAS ALLOWED SUCH INCOME TO BE SET APART CANNOT BE ACCEPTED SINCE SU CH OPTION FOR CONSIDERATION IS NOT AVAILABLE TO THE AO REGARDING ACCEPTANCE OF THE OPTION EXERCISED BY THE ITA NO.763/KOL/2016 A.Y.2011-12 M/S THE PHILANTHROPIC SOCIETY OF THE ORTHODOX CHURC H VS. DDIT(EX)-I KOL. PAGE 3 ASSESSEE DURING THE ASSESSMENT PROCEEDINGS U/S. 143 (3) AS PER PROVISIONS OF INCOME TAX ACT 1961. THE STATUTE EXPRESSLY DID NOT PROVIDE ANY SCOPE FOR CONSIDERATION AND CONDONATION OF DELAY BY THE AO W HERE THERE WAS ADMITTEDLY DELAY IN EXERCISE OF OPTION AS PER EXPLANATION 2 OF SECTION 11(1)OF THE ACT. HENCE THE ASSESSMENT ORDER PASSED BY THE AO IS CON SIDERED ERRONEOUS TO THAT EXTENT BEYOND THE AMBIT OF THE PROVISION OF LAW AND CONSEQUENTLY PREJUDICIAL TO THE INTEREST OF REVENUE AS WELL. ACCORDINGLY THE O RDER U/S 143(3) DATED 10.03.2014 IS ERRONEOUS AND PREJUDICIAL TO THE INTE REST OF REVENUE. THE ASSESSING OFFICER IS DIRECTED TO MODIFY THE EAR LIER ORDER AND DO FRESH ASSESSMENT AFTER CONSIDERATION OF ALL THE ISSUES AN D GIVING DUE OPPORTUNITY TO THE ASSESSEE. BEING AGGRIEVED BY THIS ORDER OF LD. CIT ASSESSEE C AME IN APPEAL BEFORE US ON FOLLOWING GROUND:- 1. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE HON'BLE CIT WAS WHOLLY WRONG AND UNJUSTIFIED IN PASSING A REVI SIONARY ORDER U/S 263 OF THE ACT AND SETTING ASIDE THE ASSESSMENT ORDER U/S 143( 3) OF THE ASSESSEE A CHARITABLE SOCIETY I TRUST FOR THE A.Y 2011-12 AND DIRECTING THE A.O TO MAKE A FRESH ASSESSMENT AFTER GIVING THE DUE OPPORTUNITY O F HEARING TO THE ASSESSEE AND AFTER CONSIDERING THE ISSUES RAISED IN THE ORDER U/ S 263 REGARDING THE ADMISSIBILITY OF THE BELATED EXERCISE OF THE OPTION BY THE ASSESSEE UNDER CLAUSE (2) OF THE EXPLANATION TO SECTION 11 (( 1) OF THE A CT IN RESPECT OF THE ACCUMULATION I SET APART OF A PART OF THE INCOME ( NOT EXCEEDING 15% OF THE INCOME DERIVED FROM THE TRUST PROPERTY DURING THE Y EAR) AND CLAIMING IT AS DEEMED APPLICATION OF INCOME U/S 11 (1) FOR THE A. Y 2011-12. THE ORDER PASSED U/S 263 WITHOUT PROPERLY CONSIDERI NG THE FACTS AND WITHOUT APPLICATION OF MIND IS LIABLE TO BE QUASHED I CANCE LLED AS NONE OF THE CONDITIONS PRECEDENT FOR ASSUMING THE JURISDICTION U/S 263 WERE FULFILLED IN THIS CASE. 2. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE HON'BLE CIT WAS WHOLLY WRONG AND UNJUSTIFIED IN SETTING ASIDE T HE ASSESSMENT VIDE HIS AFORESAID ORDER U/S 263 ON THE ALLEGED GROUND THAT (I) OWING TO THE FAILURE OF THE ASSESSEE TO EXERCISE THE OPTION UNDER CLAUSE (2 ) OF THE EXPLANATION TO SECTION 11 (1) OF THE ACT WITHIN THE DUE DATE OF FI LING THE RETURN U/S 139(1) FOR THE A.Y 2011-12 (I.E WITHIN 30.09.2011 ) IT IS NOT ELIGIBLE TO GET THE BENEFIT OF ACCUMULATION / SET APART OF THE PART OF THE INCOME (BEING THE AMOUNT FALLING SHORT OF THE REQUIRED 85% OF THE INCOME DERIVED FRO M THE TRUST PROPERTY DURING THE YEAR BUT NOT EXCEEDING 15% OF THE INCOME SO DER IVED) AND CLAIM THE INCOME SO ACCUMULATED / SET APART AS DEEMED APPLICATION OF INCOME U/S 11 (1) FOR THE A.Y 2011-12 ITSELF AND (II) THE A.O HAS NO DISCRETI ON TO CONDONE THE ASSESSEE'S DELAY IN EXERCISING THE OPTION. ITA NO.763/KOL/2016 A.Y.2011-12 M/S THE PHILANTHROPIC SOCIETY OF THE ORTHODOX CHURC H VS. DDIT(EX)-I KOL. PAGE 4 3. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE HON'BLE CIT WAS WHOLLY WRONG AND UNJUSTIFIED IN PASSING THE ORD ER U/S 263 WITHOUT CONSIDERING AND APPRECIATING THE FACTS THAT THE OPT ION EXERCISED BY THE ASSESSEE ON 20.10.2011 UNDER CLAUSE (2) OF THE EXPLANATION T O SECTION 11(1) IN THE RETURN ( ITR - 7 ) FILED ON 20.10.2011 CLAIMING ACC UMULATION I SET APART OF THE INCOME AS DEEMED APPLICATION OF INCOME U/S 11(1) FO R THE A.Y 2011-12 SHOULD BE ACCEPTED IN ASSESSMENT EVEN IF IT WAS DELAYED B Y ONLY 20 DAYS BEYOND THE DUE DATE 30.09.2011 IN VIEW OF VARIOUS JUDICIAL DE CISIONS WHERE IT WAS HELD THAT SUCH AN EXERCISE OF OPTION WHICH IS DIRECTORY IN NATURE MADE BEFORE THE A.O AT ANY TIME BEFORE THE COMPLETION OF ASSESSMENT IS A VALID OPTION FOR THE PURPOSE OF GRANTING THE BENEFIT OF EXEMPTION U/S 11 (1 )(A) OF THE ACT AS IN THIS CASE. 4. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE HON'BLE CIT WAS WHOLLY WRONG AND UNJUSTIFIED IN PASSING THE ORD ER U/S 263 WITHOUT CONSIDERING THE FACTS THAT A CONJOINT READING OF SE CTION 11 READ WITH SECTIONS 139(4) AND 139(4A) OF THE ACT MAKES IT CLEAR THAT T HE RETURN FILED BY THE ASSESSEE FOR THE A.Y 2011-12 ON 20.10.2011 U/S 139( 4A) OF THE ACT IN THE PRESCRIBED FORM NO. ITR - 7 HAS TO BE CONSIDERED AS A RETURN HAVING BEEN MADE WITHIN THE TIME PRESCRIBED IN SECTION 139(1) O F THE ACT AND THE OPTION EXERCISED BY THE ASSESSEE IN SUCH RETURN HAVE SATIS FIED THE REQUIREMENTS AS CONTEMPLATED UNDER CLAUSE (2) OF THE EXPLANATION TO SECTION 11(1) OF THE ACT AND THE ASSESSEE'S CLAIM OF EXEMPTION U/S 11(1)(A) STANDS JUSTIFIED IN VIEW OF THE DECISION HELD IN THE CASE OF TRUSTEES OF TULSID AS GOPALJI TRUST VS. CIT (1994) 73 TAXMAN 612 BORN). 5. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE HON'BLE CIT WAS WHOLLY WRONG AND UNJUSTIFIED IN PASSING THE ORD ER U/S 263 RAISING A MERE PROCEDURAL AND / OR TECHNICAL ISSUE WITHOUT CONSIDE RING THE FACTS THAT THE ORIGINAL ASSESSMENT U/S 143(3) DT. 10.03.2014 WAS M ADE BY THE A.O WITH FULL APPLICATION OF MIND AND AFTER TAKING INTO CONSIDERA TION ALL THE MATERIAL FACTS OF THE CASE INCLUDING THE TIME AND MERIT OF THE OPTION EXERCISED BY THE ASSESSEE UNDER CLAUSE (2) OF THE EXPLANATION TO SECTION 11 ( 1) OF THE ACT IN THE RETURN FILED ON 20.10.2011 FOR ITS DUE CONSIDERATION BEFOR E THE COMPLETION OF THE SCRUTINY ASSESSMENT ON 10.03.2014. THERE WAS NO ERR OR OR MISTAKE IN THE ASSESSMENT BOTH IN TERMS OF THE FACTS .AND THE LAW WHICH CAN INVITE INVOCATION OF THE REVISIONARY PROCEEDING U/S 263 OF THE ACT. 6. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE HON'BLE CIT WAS WHOLLY WRONG AND UNJUSTIFIED IN SETTING ASIDE T HE ASSESSMENT VIDE HIS AFORESAID ORDER U/S 263 MERELY ON A CHANGE OF OPINI ON WITHOUT APPLICATION OF MIND AND ALSO ON MERE ASSUMPTION AND PRESUMPTION WHEN THE CONCERNED ISSUES REFLECTED IN THE AUDITED A/CS AND THE AUDIT REPORT AND THE OPTION EXERCISED IN THE RETURN FILED ON 20.10.2011 WERE DU LY EXAMINED BY THE A.O DURING THE COURSE OF ASSESSMENT AND BEFORE THE COMP LETION OF THE ASSESSMENT ITA NO.763/KOL/2016 A.Y.2011-12 M/S THE PHILANTHROPIC SOCIETY OF THE ORTHODOX CHURC H VS. DDIT(EX)-I KOL. PAGE 5 U/S 143(3) OF THE ACT ON 10. 03.2014. THE ORDER PAS SED U/S 263 BEING NOT VALID IN THE EYE OF LAW IS LIABLE TO BE QUASHED / CANCELL ED. 4. BEFORE US LD. AR FOR THE ASSESSEE FILED PAPER BO OK WHICH IS RUNNING PAGES 1 TO 60 AND SUBMITTED THAT THE CONDITION FOR FLING THE O PTION UNDER CLAUSE 2 OF THE EXPLANATION TO SEC. 11(1) OF THE ACT IS DIRECTORY I N NATURE. THE ASSESSEE IN THE INSTANT CASE CANNOT BE DEPRIVED FROM THE EXEMPTION AS PROV IDED U/S. 1 OF THE ACT ON ACCOUNT OF TECHNICAL REASON I.E. THE RETURN WAS NOT FILED ON TIME. ON THE OTHER HAND LD. DR FAIRLY RELIED UPON THE IM PUGNED ORDER PASSED BY LD. CIT U/S. 263 OF THE ACT. 5. WE HAVE GONE THROUGH THE SUBMISSION MADE BY BOTH TH E SIDES AND ORDER OF LOWER AUTHORITIES AS WELL AS JUDGMENT RELI ED BEFORE US. FROM THE FOREGOING DISCUSSION WE UNDERSTAND THAT ADMITTEDLY THE ASSESSEE IS A CHARITABLE TRUST AND IS REGISTERED WITH THE CIT UND ER SECTION 12A OF THE ACT. IT WAS NOT DISPUTED THAT THE ASSESSEE FOR THE PAST SE VERAL YEARS WAS TREATED AS A CHARITABLE INSTITUTION AND GRANTED EXEMPTION UNDE R SECTION 11 OF THE ACT. THE ASSESSEE HAS BEEN GIVEN THE BENEFIT OF EXEMPTION UN DER SECTION 11 OF THE ACT AT THE TIME OF ASSESSMENT ALTHOUGH IT FAILED TO EXE RCISE THE OPTION IN WRITING FOR ACCUMULATING OR SET APART THE VOLUNTARY CONTRIBUTIO NS IN EXCESS OF MORE THAN 15% OF TOTAL CONTRIBUTION AS MANDATED UNDER EXPLANA TION 2 OF SECTION 11(1) OF THE ACT. THEREFORE THE LD. CIT UNDER SECTION 263 OF THE ACT HAS HELD THAT THE ORDER OF THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. HOWEVER WE FIND THAT PROVISIONS OF SECTIONS 11 ARE NOT MANDATORY IN NATURE BUT DIRECTORY IN NATURE. THERE IS NO DOUBT THAT SEC TION 11 OF THE ACT SPECIFICALLY REQUIRES THE ASSESSEE TO EXERCISE THE OPTION IN WRI TING FOR ACCUMULATING OR SET APART THE VOLUNTARY CONTRIBUTIONS BEFORE THE EXPIRY OF THE TIME ALLOWED FOR FILING THE RETURN UNDER SECTION 139(1) OF THE ACT. IF THE PROVISIONS OF SECTION 11 OF THE ACT IS READ IN ISOLATION AND THE RULE OF STRICT AND LITERAL CONSTRUCTION IS APPLIED THE APPROACH OF THE REVENUE IN THIS CASE HAS TO BE HELD AS CORRECT. BUT THERE IS NO JUSTIFICATION FOR APPLYING THE RULE OF STRICT CONSTRUCTION OR FOR CONSIDERING ITA NO.763/KOL/2016 A.Y.2011-12 M/S THE PHILANTHROPIC SOCIETY OF THE ORTHODOX CHURC H VS. DDIT(EX)-I KOL. PAGE 6 THE PROVISIONS OF SECTION 11 OF THE ACT IN ISOLATIO N. HAVING REGARD TO THE OTHER PROVISIONS OF THE ACT REGARDING FILING OF THE RETUR N OR REVISED RETURN OR RECTIFYING THE DEFECTS IN THE RETURN THE PROVISIONS OF SECTIO N 11 OF THE ACT ARE DIRECTORY IN THE SENSE THAT THE ASSESSING OFFICER IS NOT POWERLE SS TO ALLOW AN ASSESSEE TO FILE THE OPTION IN WRITING UNDER EXPLANATION 2 OF T HE SECTION 11(1) OF THE ACT AFTER THE DUE DATE OF FILING RETURN OF INCOME BUT B EFORE THE COMPLETION OF THE ASSESSMENT. ONE HAS TO LOOK AT THE PURPOSE OF THE P ROVISIONS. ONE HAS TO CONSTRUE THE PROVISION TO ENSURE COHERENCE AND CONS ISTENCY TO AVOID UNDESIRABLE CONSEQUENCES. WHERE THE RETURN WAS FILE D ALONG WITH THE OPTION IN WRITING THERE WAS NO REASON WHY SUCH OPTION FOR ACCUMULATING OR SET APART OF THE CONTRIBUTIONS SHOULD NOT BE ALLOWED FOR EXEM PTION BEFORE THE COMPLETION OF THE ASSESSMENT. NO CASE HAS BEEN MADE OUT THAT T HE DELAY IN FURNISHING THE RETURN AND ACCORDINGLY DENYING THE BENEFIT UNDE R SECTION 11(1) OF THE ACT IN ANY OBJECT OF THE ACT OR THE ASSESSEE'S ACTION W AS IN SUBSTANCE NOT IN CONFORMITY WITH THE INTENT AND PURPOSE OF THE ACT. THE LD. CIT FELL INTO ERROR IN DENYING THE CLAIM OF EXEMPTION UNDER SECTION 11 OF THE ACT. IT WAS NOT DISPUTED THAT THE ASSESSEE FOR THE PAST SEVERAL YE ARS WAS TREATED AS A CHARITABLE INSTITUTION AND GRANTED EXEMPTION UNDER SECTION 11 OF THE ACT. IN THIS CONNECTION WE RELY IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ZIARAT MIR SYED ALI HAMDANI WHERE THE HONBLE HIGH COURT OF JAMMU & KASHMIR (2001) 248 ITR 0769 HAS HELD AS UND ER : IT IS CLEAR FROM A PLAIN READING OF CLAUSE (2) OF THE EXPLANATION TO S. 11(1) THAT THE LEGISLATURE WAS CONSCIOUS OF THE FACT THAT THE REQUIREMENT THAT AT LEAST 75 PER CENT OF THE INCOME OF THE TRUST SHOULD BE AP PLIED FOR THE SPECIFIED PURPOSES DURING THE PREVIOUS YEAR WAS LIKELY TO CAU SE HARDSHIP IN PRACTICE AND WITH A VIEW TO MITIGATING THE SAME PROVIDED INTER ALIA THAT IT WOULD BE SUFFICIENT COMPLIANCE OF THE REQUIREMENT OF S. 11(1 ) IF THE ASSESSEE APPLIED THE INCOME FOR THE SPECIFIED PURPOSES IN THE PREVIOUS Y EAR FOLLOWING THE YEAR OF ACCRUAL. THIS RELAXATION IS HOWEVER SUBJECT TO TH E ASSESSEE EXERCISING IN WRITING THE OPTION BEFORE THE EXPIRY OF THE TIME FO R FURNISHING THE RETURN OF INCOME UNDER SUB-S. (1) OR SUB-S. (2) OF S. 139. ON A CONJOINT READING OF THE VARIOUS SUB-SECTIONS OF S. 139 SUB-S. (1) AND SUB- S. (4) OF S. 139 HAVE TO BE READ TOGETHER AND ON SUCH A READING THE INEVITABL E CONCLUSION IS THAT A RETURN MADE WITHIN THE TIME SPECIFIED IN SUB-S. (4) HAS TO BE CONSIDERED HAVING BEEN MADE WITHIN THE TIME PRESCRIBED IN SUB-S. (1) OR SU B-S. (2) OF S. 139. IN VIEW OF ITA NO.763/KOL/2016 A.Y.2011-12 M/S THE PHILANTHROPIC SOCIETY OF THE ORTHODOX CHURC H VS. DDIT(EX)-I KOL. PAGE 7 THE ABOVE POSITION IN THE INSTANT CASE THE OPTION EXERCISED BY THE ASSESSEE UNDER CL. (2) OF THE EXPLANATION TO S. 11(1) ALONG WITH THE RETURN SUBMITTED UNDER SUB-S. (4) HAS TO BE REGARDED AS A VALID EXER CISE OF OPTION WITHIN THE TIME FIXED FOR FURNISHING RETURN UNDER SUB-S. (1) OF S. 139. TRUSTEES OF TULSIDAS GOPALJI CHARITABLE & CHALESHWAR TEMPLE TRUST VS. CI T (1994) 118 CTR (BOM) 305 : (1994) 207 ITR 368 (BOM) : TC 23R.1592 RELIED ON. IN OUR VIEW THEREFORE THE ACTION OF LD. CIT(A) HO LDING THE ORDER OF THE AO AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E IS NOT SUSTAINABLE IN LAW. IN THE RESULT APPEAL OF THE ASSESSEE STANDS ALLOWE D. ORDER PRONOUNCED IN OPEN COURT ON 26/10/2016 SD/- SD/- (K.NARSIMHA CHARY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER *DKP SR.P.S ! - 26/10/2016 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S THE PHILANTHROPIC SOCIETY OF THE ORT HODOX CHURCH 2A LIBRARY RO AD KALIGHAT KOLKATA-26 2. /RESPONDENT-DDIT (EXEMPTIONS)-I KOLKATA MIDDLETON ROW KOLKATA-71 3. '# % / CONCERNED CIT 4. % - / CIT (A) 5. &'( ))'# '# / DR ITAT KOLKATA 6. (*+ / GUARD FILE. BY ORDER/ /TRUE COPY/ / '#