Tauheed Educational Trust, Kishanganj V. ACIT, Purnea

CO 12/PAT/2013

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 2996 (ITAT-PATNA)
• Duration Of Justice: 3 year(s) 5 month(s) 1 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 07-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 05-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VARKEY JUDIC IA L M EMBER
• Assessee Lawyers: KAUSHIK KR DAS DR SHRI K N
• Keywords: Rejection of books of accounts; Unexplained investment; Value adopted by valuation officer; Charitable institution; Valuation report; Benefit of exemption
• Section: 143(3); 12A; 12AA; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PA T N A BENCH , PATNA BEFORE SHRI ABY. T. VARKEY , JUDICIAL MEMBER AND SHRI WASEEM AHMED , ACCOUNTANT MEMBER ITA NO. 220 / PAT / 2013 ASSESSMENT YEAR: 2006 - 07 ACIT, CIRCLE - 3, INCOME TAX OFFICE, NEW SIPAHI TOLA, PURNEA / V/S . TAUHEED EDUCATIONAL TRUST, MAHADABAD, KHAGRA, KISHANGANJ [ PAN NO. AAATT 7376 A ] /APPELLANT .. /RESPONDENT C.O. NO.12/PAT/2013 (A/O ITA NO.220/PAT/2013) TAUHEED EDUCATIONAL TRUST, MAHADABAD, KHAGRA, KISHANGANJ / V/S . ACIT, CIRCLE - 3,INCOME TAX OFFICE, NEW SIPAHI TOLA PURNEA CO - OBJECTOR .. /APPELLAN T / BY ASSESSEE SHRI KAUSHIK KR. DAS, DR / BY RE V EN UE SHRI K.N. PRASAD, ADVOCATE / DATE OF HEARING 04 - 04 - 2017 / DATE OF PRONOUNCEMENT 07 - 04 - 2017 /O R D E R PER BENCH : - THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - , PATNA DATED 2 1 .0 3 .2013 AND THE ASSESSEE HAS AGAINST IN CROSS OBJECTION (CO). ASSESSMENT WAS FRAMED BY AC IT , CIRCLE - 3 PURNEA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 3 0 .12.200 8 FOR ASSESSMENT YEAR 2006 - 0 7 . SHRI KAUSHIK KR. DAS, LD. DEPARTMENTAL REPRESENTATIVE REPRESENTED ON BEHALF OF REVENUE AND SHRI K.N. PRASAD, LD. ADVOCATE APPEARED ON BEHALF OF ASSESSEE. ITA NO. 220/PAT/2013 & CO.12/PAT/2013 A.Y. 2006 - 07 ACIT CIR - 3, PURNEA VS. TAUHEED EDUCATIONAL TRUST, MAHADABAD PAGE 2 2. REVENUES APPEAL IS DELAYED BY 26 DAYS AND CONDONATION PETITION HAS BEEN FILED STATING THE REASO NS FOR CONDONATION OF DELAY. LD. AR FOR THE ASSESSEE DID NOT OBJECT FOR CONDONING THE DELAY. HENCE, WE CONDONE THE SAME AND ADMIT THE REVENUES APPEAL FOR HEARING. FIRST WE TAKE UP REVENUES APPEAL IN ITA NO.220/PAT/2013 . 3. FIRST ISSUE RAISED BY REVENUE I N THIS APPEAL IS THAT LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY ASSESSING OFFICER DUE TO VIOLATION OF PROVISION OF SECTION 13(1)(B) OF THE ACT. 4. BRIEFLY STATED FACTS ARE THAT ASSESSEE IN THE PRESENT CASE IS A TRUST AND RUNNING EDUCATIONAL INSTITUTION. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO OBSERVED THAT ASSESSEE ENJOYED THE EXEMPTION BENEFIT U/S 11 OF THE ACT THOUGH THE REGISTRATION CERTIFICATE GRANTED U/S. 12A OF THE ACT BY THE LD. CIT WAS CANCELLED VIDE ORDER DATED 23.09.2005 . ACCORDINGLY, AO TREATED THE ASSESSEE AS AOP AND MADE THE FOLLOWING DISALLOWANCES : - A) THE ASSESSEE RECEIVED A SUM OF 8,91,792/ - IN THE YEAR UNDER CONSIDERATION UNDER FOREIGN CONTRIBUTION FROM ZAKAT HOUSE, KUWAIT. THE ASSESSEE HAS SHOWN THE AFORESAID SU M IN ITS BALANCE - SHEET WITHOUT SHOWING THE SAME UNDER INCOME & EXPENDITURE ACCOUNT ON THE GROUND THAT THE BANK ACCOUNT IN WHICH THE ABOVE SUM WAS DEPOSITED WAS ATTACHED BY FCRA AUTHORITY. HOWEVER, THE AO OBSERVED THAT EVEN THE BANK ACCOUNT HAS BEEN ATTACHE D BY FCRA AUTHORITY DOES NOT MEAN THAT THE FUND HAS NOT BEEN RECEIVED BY ASSESSEE. ACCORDINGLY, AO DISALLOWED THE SAID SUM OF 8,91,762/ - AND ADDED BACK TO THE TOTAL INCOME OF ASSESSEE. B) THE ASSESSEE IN THE YEAR UNDER CONSIDERATION HAS RECEIVED A SUM OF 5 LAKH AS DONATION TOWARDS CORPUS FUND WHICH WAS CLAIMED EXEMPTED U/S 11(1)(D) OF THE ACT. HOWEVER, AO FOUND THAT THE REGISTRATION CERTIFICATE/S. 12(A) OF THE ACT HAS BEEN CANCELLED, THEREFORE THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U/S 11 OF THE ACT. ACCORDINGLY, AO DISALLOWED THE DONATION OF 5 LAKH AND ADDED TO THE TOTAL INCOME OF ASSESSEE. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) WHO DELETED THE ADDITION MADE BY AO BY OBSERVING AS UNDER: - ITA NO. 220/PAT/2013 & CO.12/PAT/2013 A.Y. 2006 - 07 ACIT CIR - 3, PURNEA VS. TAUHEED EDUCATIONAL TRUST, MAHADABAD PAGE 3 REGARDING THE FCRA IT IS STATED THAT T HE OUTSIDE INDIA DONOR HAS REMITTED RS.89,17,621/ - DIRECTLY TO BANK UNDER FOREIGN CONTRIBUTION REGULATION ACT WHICH WAS SUSPENDED BY FCRA AUTHORITY THEREFORE THE SAME WAS NOT RECEIVED AS CONTRIBUTION AND HENCE THE SAME WAS CREDITED AS FOREIGN CONTRIBUTION FUND A/C IN BALANCE SHEET & DEBITED TO STATE BANK OF INDIA FCRA A/C ONLY TO RECONCILE THE BOOKS OF ACCOUNTS AS CERTIFIED BY CHARTERED ACCOUNTANT, ( REPORT OF CA ENCLOSED WITH BALANCE SHEET ). THEREFORE THE SAME AMOUNT WAS NOT SHOWN IN THE INCOME & EXPENDITUR E A/C. HENCE THE FOREIGN CONTRIBUTION WHICH HAS BEEN KEPT IN THE BALANCE SHEET SEPARATELY THEREFORE THE ADDITION MADE BY THE AO IS WRONG AS THE SAME IS NOT AVAILABLE FOR APPLICABLE TO CHARITABLE PURPOSE UNDER COMPULSION OF LAW. THIS IS SUPPORTED BY BANKS CERTIFICATE AS WELL AS THE CERTIFICATE OF THE CHARTERED ACCOUNTANT. HENCE THIS ADDITION IS WITHOUT ANY MERIT HENCE DELETED. AS A RESULT, THE ADDITION OF RS.89,17,621/ - IS DELETED. WITH REGARD TO ADDITION OF 5 LAKH WHICH WAS RECEIVED BY ASSESSEE UNDER CORPUS FUND, LD. CIT(A) DELETED THE ADDITION BY OBSERVING THAT THE REGISTRATION U/S. 12AA OF THE ACT WAS RESTORED BY HON'BLE ITAT OF THIS CO - ORDINATE BENCH IN ITA NO.471/PAT/2005 DATED 17.02.2010. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE IS IN APPEAL BEFORE ON THE FOLLOWING GROUND: - 1. THE ORDER OF COMMISSIONER OF INCOME - TAX (APPEAL) IS BAD IN LAW & FACTS SINCE ADDITION WAS MADE DUE TO VIOLATION OF SECTION 13(1)(B) OF THE INCOME - TAX ACT - 1961 AND NOT BECAUSE REGISTRATION U/S. 12A WAS CANCELLED BY THE COMMISSIONER OF INCOME - TAX, BHAGALPUR AND THEREFORE THE ORDER OF THE ITAT REFERRED BY THE CIT(A) IN RESPECT OF REGISTRATION U/S.12(A) IS DISTINGUISHABLE. 6. BEFORE US BOTH PARTIES RELIED ON THE ORD ER OF AUTHORITIES BELOW AS FAVO RABLE TO THEM. 7. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET, WE FIND THAT SIMILAR ISSUE WAS RAISED BY REVENUE IN ITA NO.219/PAT/2013 FOR A.Y 2005 - 06 WHICH DECIDED IN FAVOUR OF ASSESSEE BY THE CO - ORDINATE BENCH OF THIS TRIBUNAL DATED 22.11.2016 . FOR THE SAKE OF BETTER UNDERSTANDING AND CONVENIENCE , THE GROUND RAISED BY THE REVENUE IS REPRODUCED HEREUNDER: - 1. THE ORDER OF COMMISSIONER OF INCOME - TAX (APPEAL) IS BAD IN LAW & FACTS SINCE ADDITION WAS MADE DU E TO VIOLATION OF SECTION 13(1)(B) OF THE INCOME - TAX ACT - 1961 AND NOT BECAUSE REGISTRATION U/S. 12A WAS CANCELLED BY THE COMMISSIONER OF INCOME - TAX, BHAGALPUR AND THEREFORE THE ORDER OF THE ITAT REFERRED BY THE CIT( A ) IN RESPECT OF REGISTRATION U / S .12(A) I S DISTINGUISHABLE . ITA NO. 220/PAT/2013 & CO.12/PAT/2013 A.Y. 2006 - 07 ACIT CIR - 3, PURNEA VS. TAUHEED EDUCATIONAL TRUST, MAHADABAD PAGE 4 THE ABOVE GROUND OF APPEAL RAISED BY REVENUE WAS ADJUDICATED BY THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEES OWN CASE (SUPRA) IN FAVOUR OF ASSESSEE AND AGAINST THE REVENUE. THE RELEVANT OPERATIVE PORTION IS REPRODUCED BELOW: - 4. WE HEARD THE ARGUMENT OF THE LD. COUNSEL ON EITHER SIDE AND PERUSED THE MATERIALS ON RECORD. IT IS THE ARGUMENT OF THE LD. DR THAT INASMUCH AS THE AO DEALT WITH THE MATTER U/S. 13 B OF THE INCOME - TAX ACT AND NOT U/S. 12A OF THE SAME, THE LD. CIT(A) IS NO T JUSTIFIED IN DELETING THE ADDITIONS OF DONATION AND THE DIFFERENCE IN THE VIOLATION OF THE PROPERTY. LD. DR SUBMITS THAT AFTER GIVING AN OPPORTUNITY TO THE ASSESSEE ONLY AO PROCEEDED TO ADD THE DIFFERENCE IN VALUE OF THE PROPERTY. PER CONTRA , IT IS THE A RGUMENT OF THE LD.AR THAT U/S. 13(1) OF THE ACT, ONLY IF THE TRUST IS CREATED OR ESTABLISHED FOR THE BENEFIT OF ANY PARTICULAR RELIGIOUS COMMUNITY OR CASTE BUT HERE IN THIS MATTER THE TRUST IS WORKING FOR THE WHOLE OF THE MUSLIMS RELIGIOUS PEOPLE BUT NOT F OR THE BENEFIT OF RELIGIOUS COMMUNITY LIKE SHIA, SUNNI, AHMADI OR BHOR, AS SUCH IT HAS NO APPLICATION TO THE FACTS OF THE CASE. HE FURTHER SUBMITTED THAT IN VIEW OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN ACIT VS SURAT CITY GYMKHANA [2008] REPORTED IN 300 ITR 214 (SC) WHEREIN IT IS HELD THAT THE REGISTRATION U/S. 12A OF THE INCOME - TAX ACT 1961 ONCE DONE IS A FAIT ACCOMPLI , AO CANNOT THEREAFTER MAKE FURTHER PROBE INTO THE OBJECTS OF THE TRUST. 5. THE NEXT LIMB OF CONTENTION IS THAT THE LD. AR IS THAT W ITHOUT REJECTING THE ACCOUNTS O F THE ASSESSEE IS NOT OPEN TO CALL FOR ONFIR THE REPORT OF THE DVO AND ANY CONSEQUENTIAL ADDITIONS MADE TO THE INCOME OF THE ASSESSEE ARE BAD UNDER LAW. IN RESPECT OF THE ADDITIONS BASING ON THE ALLEGED VIOLATION OF THE SECTI ON 13(1) IS CONCERNED, CONTENTION OF THE LD. AR IS THAT THE MU9SLIMS RELIGIOUS PEOPLE AS A WHOLE ARE DIFFERENT FROM THE MUSLISMS RELIGIOUS COMMUNITIES LIKE SHIA, SUNNI, AHMADI AND|BHOR ETC., EVEN OTHERWISE ALSO IN ACIT VS. SURAT CITY GYMKHANA [2008] REPORT ED IN 300 ITR 214 (SC) WHEREIN THE SUPREME COURT HELD THAT THE AO CANNOT FRAME FURTHER PROBE INTO THE OBJECTS OF THE TRUST WHEN ONCE REGISTRATION OF A TRUST U/S. 12A OF THE ACT ONCE DONE. 6. IN VIEW OF THE JUDGMENT OF HON'BLE SUPREME COURT, WE FIND THAT S O LONG AS THE TRUST REGISTRATION U/S.12AA IS IN FORCE, AO CANNOT MAKE FURTHER PROBE INTO THE OBJECTS OF THE ACT. WITH THIS VIEW OF THE MATTER, WE FIND THAT THE FINDING OF THE LD. CIT(A) DOES NOT WARRANT ANY INTERFERENCE. SINCE THE LD. CIT(A) RELIED ON THE PRONOUNCEMENT OF APEX COURT ON THIS ASPECT,, WE ARE NOT INCLINED TO INTERFERE WITH THE SAME. IN VIEW OF THE AFORESAID DECISION OF THE TRIBUNAL DEALING WITH THE IDENTICAL ISSUE IN THE OWN CASE OF THE ASSESSEE, WE ARE OF THE VIEW THAT THERE IS NO MERIT IN THIS GROUND OF APPEAL FILED BY THE REVENUE. RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL REFERRED TO ABOVE, WE UPHOLD THE ORDER OF LD. CIT(A) AND DISMISS THE GROUND OF REVENUES APPEAL. ITA NO. 220/PAT/2013 & CO.12/PAT/2013 A.Y. 2006 - 07 ACIT CIR - 3, PURNEA VS. TAUHEED EDUCATIONAL TRUST, MAHADABAD PAGE 5 8. NEXT ISSUE RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN REJECTING THE VALUATION REPORT MADE BY THE DEPARTMENTAL VALUATION OFFICER (DVO) AFTER GIVING OPPORTUNITY TO ASSESSEE. 9. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO HAS REFERRED THE MATTER TO THE DVO U/S. 142 A OF THE ACT FOR ASCERTAININ G THE ACTUAL INVESTMENT MADE BY THE ASSESSEE IN ITS PROPERTY. THE DVO HAS SUBMITTED HIS REPORT VIDE LETTER NO.66 DATED 12.07.2007. THE AO ON THE BASIS OF DVOS REPORT HAS OBSERVED THE FOLLOWING DISCREPANCIES: - DETAIL OF PROPERTY COST DECLARED BEFORE THE VA LUATION OFFICER AND THE DEPARTMENT COST ESTIMATED BY THE VALUATION OFFICER DIFFERENCE BELWA, KISHANGANJ 1,58,863/ - 2,29,000/ - 70,137/ - PHULWARI SHARIF, PATNA 12,06,382/ - 47,70,000/ - 35,63,618/ - THE AO CALLED UPON THE ASSESSEE FOR THE EXPLANATION OF AFORESAID DIFFERENCE OF 36,33,755/ - WHO FAILED TO GIVE ANY SATISFACTORY REPLY. THEREFORE, THE AO TREATED THE DIFFERENCE OF 36,33,755/ - AS UNEXPLAINED INVESTMENT AND ADDED BACK TO THE TOTAL INCOME OF ASSESSEE. 10. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL B EFORE LD. CIT(A) WHO DELETED THE ADDITION MADE BY AO BY OBSERVING AS UNDER: - IN THIS CASE DURING THE ASSESSMENT PROCEEDINGS THE AUDITED BOOKS OF ACCOUNTS WERE PRODUCED BY THE ASSESSEE AND WERE EXAMINED BY THE ASSESSING OFFICER. THE BOOKS OF ACCOUNTS WERE CONTAINING THE CONSTRUCTION ACCOUNT, VOCUHERS, PURCHASE BILLS, AS AUTHENTICATE D AUDIT, REPORT, BANK STATEMENTS ETC. THE ASSESSING OFFICER HAS EXAMINED THEM ON DIFFERENT DATE AS PER THE ORDER SHEET AND NO DISCREPANCY OR DEFECT OF ANY KIND OR ANY SUPPRESSION AND ANY OMISSION WAS FOUND BY HIM IN THE BOOKS OF ACCOUNTS NEITHER THE BOOKS OF ACCOUNTS REJECTED BY HIM. THE ACIT HAS NOT COME ACROSS OF ANY KIND OF WRONG ENTRY OR MISSING ENTRY, ANY SUPPRESSION OR OMISSION OR ANY KIND OF UNDERSTATEMENT AS A RESULT OF CONTINUOUS SCRUTINY FOR SO MANY DAYS AND NO FAULT OF ANY KIND WAS FOUND WITH THE BOOKS OF ACCOUNTS AS THE ACIT HAS NOT DRAWN ANY ADVERSE IN THE BODY OF THE ASSESSMENT ORDER IN QUESTION. IN THE ABSENCE OF THE REJECTION OF THE BOOKS OF ACCOUNTS THE CASE WAS REFERRED TO DVO FOR VALUATION OF VARIOUS PROPERTY WHICH IS AGAINST THE LAW AS ST ATED IN THE SUPREME COURT DECISION 328 ITR 0513 (2010) SARGAM CINEMA WHEREIN IT HAS BEEN STATED. THE CRUX OF THE DECISION IS THAT NO REFERENCE CAN BE MADE TO THE DVO WITHOUT REJECTING THE BOOKS OF ACCOUNT. THE DECISION OF THE APEX COURT HAS BEEN FOLLOWED B Y THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. BAJRANG LAL BANSAL (2011) 241 CTR 71 (DEL) WHEREIN IT HAS BEEN HELD THAT ADDITION U/S. 69B COULD NOT BE MADE TOWARDS UNDISCLOSED INVESTMENT IN THE PROPERTY SOLELY ON THE BASIS OF DVOS REPORT WHEN THE B OOKS OF ACCOUNT OF THE ASSESSEE HAVE NOT BEEN REJECTED. ITA NO. 220/PAT/2013 & CO.12/PAT/2013 A.Y. 2006 - 07 ACIT CIR - 3, PURNEA VS. TAUHEED EDUCATIONAL TRUST, MAHADABAD PAGE 6 AS THE BOOKS OF ACCOUNTS WERE NOT REJECTED BY THE ASSESSING OFFICER HENCE THIS CASE IS SQUARELY COVERED UP BY THE ABOVE MENTIONED SUPREME COURT CASE AND AS WELL AS THE DELHI HIGH COURT CASE. THAT THE CONSTRUCTION AS PER THE STATEMENT FILED BY THE APPELLANT BEFORE THE DVO/VO AND AS WELL AS BEFORE THE LEARNED ACIT STATING THEREIN THE CONSTRUCTION WAS COMPLETED FOR FINANCIAL YEAR 2002 - 03, WAS CONSIDERED UNDER THE SCRUTINY FOR THE A/Y 2002 YEAR 2003 - 04 RE LEVANT TO A/Y 2004 - 05 WAS AGAIN CONSIDERED ON THE BASIS OF BOOKS OF ACCOUNTS AS ASSESSED U/S 143(3) DURING THE A/Y 2004 - 05. THE ACIT SIMPLY FOLLOWED THE DVO REPORT WITHOUT ANALYZING THE FACTS OF THE CASE AND MADE AN ADDITION OF R S.36,33,755/ - . MOST IMPORT ANT REASON IN THE METHOD OF VALUATION ADOPTED BY THE DVO / VO AS PER ITS REPORT COST INDEX METHOD ON THE SET FORMULA AT THE RATE APPROVED BY CPWD WHERE AS THE APPELLANT HAS ADOPTED ACTUAL COST METHOD AS & WHEN SUCH EXPENDITURE EXPENDED ON THE BASIS OF PWD RATES WHICH DEPEND ON SO MANY FACTORS. THE DUE TO THE DIFFERENCE IN METHOD ADOPTED BY THE VALUE & ACTUAL COST METHOD AS PER BOOKS OF ACCOUNTS, THE RE - APPEARS N ALLEGED DIFFERENCE OF RS.36,33,755/ - . IN VIEW OF THE ABOVE FACTS THE REFERENCE TO VALUATION OF FICER BY THE ACIT WITHOUT REJECTING THE BOOKS OF ACCOUNTS WAS NOT CORRECT FURTHER VALUATION REPORT IS ONLY AN ESTIMATE IT CANNOT BE THE SOLE BASIS FOR ADDITION. THE ASSESSING OFFICER COULD NOT FIND THAT THERE WAS ANY INVESTMENT OVER AND ABOVE THAN WHAT HAS BEEN DECLARED IN THE BOOKS OF ACCOUNTS. HENCE THE ADDITION MADE ON THIS ACCOUNT OF R S.36,33,755/ - IS DELETED . BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUND: - 2. THE ORDER OF THE CIT(A) HAS BAD IN LA W & FACTS SINCE THE ADDITION ON ACCOUNT OF VALUATION REPORT OF DVO WAS MADE AFTER GIVING OPPORTUNITY TO THE ASSESSEE AND AFTER CONSIDERING FACTS SUBMITTED BY THE ASSESSEE WITH DUE APPLICATION OF MIND. 11. BEFORE US BOTH THE PARTIES RELIED ON THE ORDER OF AUTHORITIES BELOW AS FAVOURABLE TO THEM. 1 2 . WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET, IT WAS OBSERVED THAT IDENTICAL ISSUE WAS RAISED BY REVENUE IN ITA NO.219/PAT/2013 FOR A.Y. 2005 - 06 IN THE OWN CASE OF THE ASSESSEE (SUPRA) . THE SAID GROUND OF APPEAL WAS ADJUDICATED BY THE CO - ORDINATE BENCH OF THIS TRIBUNAL VIDE ORDER DATED 29.11.2016 IN FAVOUR OF ASSESSEE AND AGAINST THE REVENUE . THE RELEVANT EXTRACT OF THE ORDER IS REPRODUCED BELOW: - ITA NO. 220/PAT/2013 & CO.12/PAT/2013 A.Y. 2006 - 07 ACIT CIR - 3, PURNEA VS. TAUHEED EDUCATIONAL TRUST, MAHADABAD PAGE 7 7 . NOW COMING TO THE DIFFERENCE IN THE VALUE OF THE PROPERTY, LD. CIT(A) BASED HIS ORDER ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF SARGAM CINEMA REPORTED AT 328 ITR 0513 (2010), WHEREIN IT WAS HELD THAT IN THE ABSENCE OF REJECTION OF BOOKS OF ACCOUNTS, CALLING FOR THE REPORT OF THE DVO FOR VALUATION OF PROPERTY IS NOT SUSTAINABLE. LD. CIT(A) FURTHER HELD THAT THE DECISION OF THE HON'BLE SUPREME CO URT HAS BEEN FOLLOWED BY THE DELHI HIGH COURT IN THE CASE OF CIT VS. BAJRANG LAL BANSAL (2011) REPORTED AT 241 CTR 71 (DEL) WHEREIN WHILE HOLDING THAT ADDITION U/S. 69B CANNOT BE MADE TOWARDS UNDISCLOSED INVESTMENT IN THE PROPERTY SOLELY ON THE BASIS OF D VOS REPORT WHEN THE BOOKS OF ACCOUNTS OF THE ASSESSEE HAVE NOT BEEN REJECTED. WHEN THE LD. CIT(A) BASED ON HIS FINDINGS ON THE PRONOUNCEMENT OF THE HON'BLE SUPREME COURT AND DELHI HIGH COURT, WE FIND THAT THE SAID FINDINGS ARE IMPECCABLE AND CANNOT BE INF ERRED. WITH THIS VIEW OF THE MATTER, WE FIND BOTH THE GROUNDS OF THE REVENUE FAILED AND CONSEQUENTLY THE APPEAL IS LIABLE TO BE DISMISSED. RESPECTFULLY FOLLOWING PRECEDENT OF THIS TRIBUNAL, WE FIND NO MERIT IN THE GROUND RAISED BY REVENUE AND NO INTERFER ENCE IS CALLED FOR IN THE ORDER OF LD. CIT(A). WE HOLD ACCORDINGLY. THIS GROUND OF REVENUES APPEAL IS DISMISSED. 13 . IN THE RESULT, REVENUES APPEAL IS DISMISSED. COMING TO ASSESSEES CO NO.12/PAT/2013 . 14 . GROUNDS RAISED BY ASSESSEE PER ITS CO ARE REPRODUCED BELOW - 1. FOR THAT THE GROUNDS OF CROSS OBJECTION HERETO ARE WITHOUT PREJUDICE TO EACH OTHER. 2. FOR THAT THE APPEAL FILED BY THE DEPARTMENT IS HOPELESSLY BARRED BY LIMITATION AND AS SUCH THE APPEAL AS FILED BY THE DEPARTMENT IS FIT TO BE DISM ISSED IN LIMINE. 3. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) IS FULLY JUSTI F IED IN OBSERVING THAT THE REGISTRATION OF THE TRUST U/S. 12AA HAS BEEN RESTORED BY THE ITAT ORDER MENTI O NED ABOVE THEREFORE THE TRUST CONTINUES T O ENJOY THE BENEFIT U/S. 11 OF THE IT ACT. AND THEREFORE THE ADDITION OF RS.5,00,000/ - MADE BY THE ASSESSING OFFICER IS DELETED. THERE HAS BEEN NO VIOLATION U/S. 13(1)(B) OF THE IT ACT, 1961. THERE IS NO INFIRMITY IN THE ORDER OF THE LEARNED CIT(A). IT IS PERTINENT TO MENTION HERE THAT THE LEARNED CIT(A) HAS PASSED THE ORDER AND DELETED THE ADDITION AFTER FULL APPRECIATION OF THE CASE. THE ORDER OF THE LEARNED CIT(A) IS NEITHER PERVERSE NOR BAD IN LAW. 4. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LEARNED CIT(A) IS FULLY JUSTIFIED IN OBSERVING THAT THE REFERENCE TO VALUATION OFFICER BY THE ACIT WITHOUT REJECTING THE BOOKS OF ACCOUNTS WAS NOT CORRECT FURTHER VALUATION REPORT IS ONLY AN ESTIMATE IT CANNOT BE THE SOLE BASIS FOR ADDITION. THE ASS ESSING OFFICER COULD NOT FIND THAT THERE WAS ANY INVESTMENT OVER AND ABOVE THAN WHAT HAS BEEN DECLARED IN THE BOOKS OF ACCOUNT. HENCE THE ADDITION MADE ON THIS ACCOUNT OF RS.30,33,755/ - IS DELETED. THE REPORT OF THE DVO IS ARBITRARY. THERE IS NO INFIRMITY IN THE ORDER OF THE LEARNED CIT(A). IT IS PERTINENT TO MENTION HERE THAT THE LEARNED CIT(A) HAS PASSED THE ORDER AND DELETED THE ADDITION AFTER FULL APPRECIATION OF THE CASE. ITA NO. 220/PAT/2013 & CO.12/PAT/2013 A.Y. 2006 - 07 ACIT CIR - 3, PURNEA VS. TAUHEED EDUCATIONAL TRUST, MAHADABAD PAGE 8 5. FOR THAT THE ASSESSEE RESERVES ITS RIGHT TO FILE DETAILED SUBMISSION AT THE TIME OF HEARING. 6. FOR THAT THE ASSESSEE CRAVES LEAVE TO URGE, ADD OR ALTER ANY OF THE GROUND OR GROUNDS AT THE TIME OF HEARING. 1 5 . AT THE OUTSET, WE FIND THAT GROUNDS RAISED IN ASSESSEES CO ARE SUPPORTIVE TO THE ORDER OF LD. CIT(A) AND WE HAVE ALREADY DISMISS THE REVENUES GROUNDS OF APPEAL. THEREFORE, THE CO FILED BY ASSESSEE HAS BECOME INFRUCTUOUS. HENCE, SAME IS DISMISSED AS INFRUCTUOUS. 1 6 . IN THE RESULT, REVENUES APPEAL STANDS DISMISSED AND THAT OF ASSESSEEC CO IS DISMISSED AS INFRUCTUOUS . ORDER PRONOUNCED IN OPEN COURT ON 07 / 04 /201 7 SD/ - SD/ - ( ABY. T. VARKEY ) ( WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER *DKP , SR.P.S - 0 7 / 04 /201 7 PATNA COPY OF ORDER FORWARDED TO: - 1 . /ASSESSEE - TAUH EED EDUCATIONAL TRUST, MAHADABAD, KHAGRA, KISHANGANJ 2 . / RE V EN UE - ACIT, CIRCLE - 3, INCOME - TAX OFFICE, NEW SIPAHI TOLA, PURNEA 3 . CONCERNED CIT 4 . CIT (A) 5 . DR, ITAT, PATNA 6 . GUARD FILE. BY ORDER/ , /TRUE COPY/ SR.PS/PS, ITAT, PATNA