Commissioner of Income Tax vs Shreyas Nidhi

K.A. Puj, J.

At the instance of the revenue, following question of law is referred to this court for its opinion :

"Whether, on the facts and in the circumstances of the case, the provisions of sections 13(2)(h) and 13(3) applied and whether the assessee trust entitled to exemption u/s 11 of the Income Tax Act, 1961 ?"

The assessee has claimed exemption u/s 11 of the Income Tax Act, 1961 (hereinafter referred to as ''the Act''). The Income Tax Officer, however, denied the said exemption to the assessee on the ground that the provisions of section 13(2)(h) of the Act were applicable to it. Further, the Income Tax Officer took an adverse inference against the assessee as he was of the view that the assessee had not filed audit report as contemplated u/s 12A(b) of the Act, within the prescribed time. In appeal, the Appellate Assistant Commissioner held that the provisions of section 13(2)(h) were not applicable in the assessee''s case. He further held that the default if at all in filing the audit report was ''technical lapse''. He, therefore, held that the Income Tax Officer was not justified in denying the benefit of exemption u/s 11.

Being aggrieved by the order of the Appellate Assistant Commissioner, the revenue came up in appeal before the Tribunal. At the time of hearing of the said appeal, the learned counsel for the assessee placed before the Tribunal a copy of its order in the case of Ambalal Sarabhai Trust No. 19 [IT Reference No. 595 (Ahd) of 1980 dated 28-1-1981] and highlighted the fact that on an identical point which came up before the Tribunal in that case, the Tribunal was pleased to hold that the provisions of section 13(2)(h) were not applicable and, therefore, the assessee was entitled to exemption u/s 11. He, therefore, urged that the Tribunal should likewise hold in the said appeal also.

While disposing of the appeal by the Tribunal, a reference was made to the Tribunal''s own decision in the case of Ambalal Sarabhai Trust No. 19 (supra) and the Tribunal has taken the view that the provisions of section 13(2)(h) were not applicable and the assessee was, therefore, entitled to exemption u/s 11. The said issue was taken by the revenue in reference before this court and while deciding the said reference, this court has referred to and relied on its earlier decision in the case of Commissioner of Income Tax Vs. Insaniyat Trust (Now merged with Sarabhai Foundation), , wherein, after elaborately discussing the provisions contained in sections 11 and 13, this court had come to the conclusion that the provisions of section 13(2)(h) are not applicable and the assessee was entitled to the exemption u/s 11. The facts of the present case are similar to the facts of the Insaniyat Trust''s case (supra) and other similar matters. We follow the decision taken by this court in the above judgments. Accordingly, we answer the question referred to us partly in the negative and partly in the affirmative. However, it is in favour of the assessee and against the revenue.

The reference is, accordingly, disposed of with no order as to costs.