M/s. Bhartiya Jeevan Dhara Educational & Charitable Trust, New Delhi V. ACIT, New Delhi

CO 357/DEL/2009

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8240 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 26 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 31-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-01-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 04-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANURADHA MISRA
• Assessee Lawyers: V MOHAN C AS; VED JAIN SMT RANO JAIN
• Keywords: Charitable institution
• Section: 133A; 12A; 131; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER ITA NOS.1062 & 2849/DEL/2009 ASSESSMENT YEARS : 2005-06 & 2004-05 ACIT, CENTRAL CIRCLE-9, ROOM NO.357, ARA CENTRE, JHANDEWALAN, NEW DELHI. VS. BHARTIYA JEEVAN DHARA EDUCATIONAL & CHARITABLE TRUST, C-128/2, BHIKAJI CAMA PLACE, NEW DELHI. PAN : AAATB4308E CO NOS.357 & 358/DEL/2009 (ITA NOS. 1062 & 2849/DEL/2009 ASSESSMENT YEARS : 2005-06 & 2004-05 BHARTIYA JEEVAN DHARA EDUCATIONAL & CHARITABLE TRUST, C-128/2, BHIKAJI CAMA PLACE, NEW DELHI. PAN : AAATB4308E ACIT, CENTRAL CIRCLE-9,ROOM NO.357, ARA CENTRE, JHANDEWALAN, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VED JAIN, SMT. RANO JAIN & SHRI V MOHAN, CAS REVENUE BY : SMT. ANURADHA MISRA, CIT, DR ORDER PER A.D. JAIN, JUDICIAL MEMBER THESE ARE DEPARTMENTS APPEALS AND ASSESSEES CROSS OBJECTIONS FOR ASSESSMENT YEARS 2005-06 & 2004-05 AGAINST THE ORDERS DATED 22.12.2008 AND 19.03.2009 PASSED BY THE CIT (A) -II, NEW DELHI AND CIT (A)-III, NEW DELHI RESPECTIVELY. ITA NOS.1062 & 2849/DEL/2009 CO NO.357 & 358/DEL/2009 2 ITA NO.2849/DEL/2009 & CO NO.358/DEL/2009 2. THE DEPARTMENT HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN DELETING ADDITION OF RS.3.97 CRO RE MADE ON ACCOUNT OF BOGUS DONATIONS WHEN HE HIMSELF HAS OBSERV ED THAT THE SAID DONATIONS OF RS.3.97 CRORES WERE NOT RECEIVED FOR CHARITABLE ACTIVITIES ELIGIBLE U/S 11 FOR APPROVED P ROJECT U/S 35AC DURING THE YEAR UNDER REFERENCE. 2. THAT THE LD. CIT (A) HAS ERRED IN DIRECTING THE ASSESS ING OFFICER TO ASSESS RS.39.70 LAKH IN ITS HAND AS COMMI SSION INCOME EARNED FROM OTHER THAN TRUST ACTIVITIES AS AG AINST THE ADDITION OF RS.3.97 CRORES MADE BY HIM ON ACCOUNT OF ALLEGED DONATIONS RECEIVED FROM M/S LAXMI OVERSEAS INDUSTRIES LTD. AND M/S M.P. BEERS PRODUCTS LTD. TOWARD PROJECTED U/S 35AC OF THE INCOME TAX. 3. THAT THE LD. CIT (A) HAS ERRED IN HOLDING THAT ONLY 10% OF ALLEGED DONATION I.E., RS.39.70 LAKH WAS RETAINED BY THE ASSESSEE OUT OF ALLEGED DONATION OF RS.3.97 CRORES AS ITS COMMISSION FOR ACTING AS A CONDUIT PARTICULARLY WHEN THERE IS NO SUCH OUTGOINGS EITHER IN CASH BOOK OR BANK ACCOUNT OF THE ASSESSEE. 4. THAT LD. CIT (A) HAS ERRED IN HOLDING THAT 90% OF THE DONATION RECEIVED FROM ALLEGED DONORS NAMELY M/S LAXMI OVERS EAS INDUSTRIES LTD. AND M/S BEER PRODUCTS LTD. WAS RETURNED BACK BY THE ASSESSEE TO THE SAME DONORS WHEN THERE IS NO EVIDEN CE PRODUCED TO THIS EFFECT EITHER AT THE STAGE OF ASSESSMENT O R DURING THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT (A ). 5. THAT THE LD. CIT (A) HAS IGNORED THE FACT THAT IN ITS AUDI TED BOOKS OF ACCOUNTS ASSESSEE HAS CLAIMED THAT IT HAS USED/EARMARKED THE DONATION OF RS.3.97 CRORE FOR APPL ICATION TOWARDS APPROVED PROJECTS WHICH MEANS THAT THE ASSESSEE WAS NOT LEFT WITH ANY AMOUNT OUT OF WHICH ALLEGED RETURN OF 9 0% OF DONATION COULD HAVE BEEN MADE. 2.1 THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE CROSS OBJECTIONS:- 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT (A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRM ING THE ADDITION OF RS.39,70,000 TO THE EXTENT OF 10% OF THE RECE IPTS. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) HAS ERRED BOTH ON FACTS AND IN LAW IN IGNORING THE FACT THAT ITA NOS.1062 & 2849/DEL/2009 CO NO.357 & 358/DEL/2009 3 INCOME APPLIED AS PER A.OS OWN FINDINGS IS MORE THA N THAT REQUIRED UNDER SECTION 11 OF THE ACT AND AS SUCH NO IN COME WILL BE CHARGEABLE TO TAX. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) HAS ERRED BOTH ON FACTS AND IN LAW IN IGNORING THE PROVISION OF SECTION 11 OF THE ACT WHILE CONFIRMING THE ABOVE ADDITI ON. 3. THE FACTS ARE THAT THE ASSESSEE IS A REGISTERED TRUST U/ S 12A OF THE INCOME-TAX ACT. THE ASSESSEE FILED ITS RETURN FOR A SSESSMENT YEAR 2004-05 ON31.10.2004 AT NIL TAXABLE INCOME, HOWEVER , SHOWING TOTAL INCOME/RECEIPTS FROM DONATIONS AND OTHERS AT RS.11,11,6 2,796/- AND CLAIMED AS EXEMPT U/S 11 OF IT ACT. THE ASSESSEE ALSO HA D A PROJECT APPROVED U/S 35AC OF THE IT ACT. THE ASSESSING OFFICER NOTED THAT A SUM OF RS.3,97,00,000/- WAS SHOWN AS DONATIONS RECEIVED F ROM FOLLOWING TWO PARTIES:- (I) M/S LAXMI OVERSEAS INDUSTRIES LTD. RS.2,75,00,000/- (II) M/S M.P. BEERS PRODUCTS LTD. RS.1,22,00,000/- RS.3,97,00,000/- 4. THE ASSESSEE HAD ISSUED CERTIFICATE TO M/S LAXMI OVERSEA S INDS. LTD. FOR ENABLING THEM TO CLAIM 100% DEDUCTION U/S 3 5AC OF THE INCOME-TAX ACT, 1961. A SURVEY U/S 133A OF IT ACT WAS CONDUCTED IN THE CASE OF THE ASSESSEE ON 25.10.2004. THE ASSESSING OFFICER ST ATED THAT DURING THE COURSE OF SURVEY, VARIOUS INCRIMINATING DOC UMENTS AND PAPERS WERE FOUND TO ESTABLISH THAT THE ACTIVITIES OF T HE ASSESSEE WERE NOT CHARITABLE IN NATURE. DURING THE COURSE OF SURVE Y, STATEMENT OF SHRI N.K. TRIPATHI, CHAIRMAN OF THE TRUST WAS RECORDE D ON OATH. THIS STATEMENT HAS BEEN REPRODUCED BY THE ASSESSING OFFICER IN FULL IN THE ASSESSMENT ORDER ON PAGES 2 TO 6 STATING THAT THIS STATEME NT IS GIVING A CLEAR VIEW OF THE GROUND REALITIES OF THE CASE BECA USE IT IS VERY CRUCIAL AND FORMS THE BACKBONE OF THE CASE FOR ASCERTA INING THE REAL ACTIVITIES OF THE ASSESSEE. IN THE STATEMENT, THE CHAIR MAN OF THE TRUST STATED THAT UNDER PRIOR ORAL AGREEMENT, 90% OF DONAT ION RECEIVED FROM ITA NOS.1062 & 2849/DEL/2009 CO NO.357 & 358/DEL/2009 4 TWO PARTIES, NAMELY, M/S LAXMI OVERSEAS INDS. LTD. AND M /S M.P. BEERS PRODUCTS LTD., WERE RETURNED BACK THROUGH VARIOUS MEA NS AND ONLY 10% WAS RETAINED BY THE TRUST. THE AMOUNT RETURNED B ACK WAS PARTLY IN THE FORM OF DONATIONS TO OTHER CHARITABLE ORGANIZ ATIONS/INSTITUTIONS AND PARTLY IN CASH. DONATION TO OTHER ORGANIZATION S WERE PAID DIRECTLY FROM THE BANK ACCOUNT OF THE TRUST AND CASH WAS PAID THROUGH CASH WITHDRAWALS FROM BANK ACCOUNT OF M/S NIRMAN ENGINEER S ASSOCIATES, OPERATED BY BROTHER IN LAW OF THE CHAIRMAN OF THE T RUST AFTER TRANSFERRING THE EQUIVALENT AMOUNT FROM THE BANK AC COUNT OF THE TRUST. THE SAID PAY BACK OF 90% AND RETENTION OF 10% WAS ALSO RE- CONFIRMED ON 01.12.2006 BY MR. N.K.TRIPATHI, CHAIRM AN, IN HIS STATEMENT BEFORE ACIT, CENTRAL CIRCLE, PATIALA IN RE SPONSE TO NOTICE U/S 131 IN THE CASE OF M/S LAXMI OVERSEAS INDS. LTD. ON TH E BASIS OF THESE STATEMENTS, THE ASSESSING OFFICER OBSERVED THAT DONATION RECEIVED U/S 35AC WERE NOT ACTUALLY MEANT FOR CHARITABLE ACTIVIT IES. THE TRUST HAS MADE SUBSTANTIAL PAYMENTS TO M/S NIRMAN ENGINEERS ASSOCIA TES, A PROPRIETORSHIP CONCERN OF MR. SANJAY MISHRA BROTH ER-IN-LAW OF SHRI N.K. TRIPATHI, CHAIRMAN OF THE TRUST NOT FOR ANY CON STRUCTION WORK OF THE PROJECT BUT FOR SOME OTHER USE WHICH HAS BEEN STATE D TO BE AS PAYING BACK TO THE ORIGINAL DONORS. THE TRUST HAS NO T OBTAINED ANY RECEIPT WHILE PAYING BACK THE MONEY TO THE DONOR. THIS IS A CLEAR CUT CASE OF VIOLATIONS OF PROVISIONS OF SECTION 13 OF THE I T ACT. HENCE, EXEMPTION U/S 11 OR 12 IS NOT AVAILABLE TO THE ASSESSEE. BACKED WITH THESE FINDINGS, THE ASSESSING OFFICER CONCLUDED THAT THE DONATION RECEIVED U/S 35AC WERE NOT ACTUALLY MEANT FOR CHARIT ABLE ACTIVITIES AND ADDED THE ABOVE RECEIPT OF RS.3.97 CRORES IN TAXABLE INCOME OF THE ASSESSEE TRUST. 5. BY VIRTUE OF THE IMPUGNED ORDER, THE LD. CIT (A) PARTLY ALLOWED THE ASSESSEES APPEAL, OBSERVING, INTER ALIA, THAT THE D ONATIONS OF ` 3.97 CRORE HAD NOT BEEN RECEIVED BY THE ASSESSEE TRUST F OR CHARITABLE ITA NOS.1062 & 2849/DEL/2009 CO NO.357 & 358/DEL/2009 5 ACTIVITIES ELIGIBLE U/S 11, OR APPROVED PROJECT U/S 36 AC OF THE ACT; THAT THUS, THESE DONATIONS COULD NOT BE GIVEN ANY BENEFIT O F EITHER SECTION 11 OR SECTION 35AC DURING THE YEAR UNDER CONSIDERATI ON; THAT, HOWEVER, SINCE THE STATEMENT OF THE CHAIRMAN WAS THE SOLE BASIS OF THE ADDITION, WHEREAS SUCH STATEMENT HAD NEITHER BEEN ACCEPTED IN FU LL NOR REJECTED IN TOTO; THAT IF THE STATEMENT WERE TO BE IGNORED, THERE WAS NO CASE OF ANY ADDITION; THAT THE ASSESSEE TRUST HAD BEEN USED AS A C ONDUIT FOR RECEIVING THE DONATION AND PAYING THEM BACK TO THE DONORS THROUGH DIFFERENT MEANS, FOR EARNING COMMISSION INCOME; THAT T HE ASSESSEE HAVING RETAINED 10% AS COMMISSION FOR SUCH QUID PRO QUO SERVICES, EVEN IN VIEW OF SECTION 35AC (6) OF THE ACT, NO ADD ITION OF THE TOTAL ADDITION COULD BE MADE IN THE YEAR UNDER CONSIDERATI ON, SINCE THE APPROVAL U/S 35AC HAD BEEN WITHDRAWN VIDE NOTIFICATI ON DATED 20.06.2006; THAT THEREFORE, ONLY THE NET RECEIPT OF 35.70 LACS, BEING 10% OF THE AMOUNT OF ` 3.97 CRORES, WAS REQUIRED TO BE ASSESSED AS INCOME UNDER THE HEAD COMMISSION NOT CONNECTED TO TH E ACTIVITIES OF THE TRUST; AND THAT AGAINST THIS INCOME, THE ASSESSEE C OULD NOT TAKE ANY BENEFIT OF APPLICATION OF INCOME UNDER GENERAL TRUST ACTIVITIES. 6. THE DEPARTMENT IS IN APPEAL BEFORE US AGAINST THE ACTION OF THE LD. CIT (A) IN RESTRICTING THE ADDITION TO 10% OF TH E RECEIPT OF ` 3.97 CRORES, AS ABOVE, WHEREAS THE ASSESSEE, IN ITS CROSS OBJECT IONS, HAS CHALLENGED SUCH CONFIRMATION OF THE ADDITION, CONTEN DING THAT THE ENTIRE ADDITION OUGHT TO HAVE BEEN DELETED. 7. THE LD. DR HAS CONTENDED THAT THE LD. CIT (A) HA S WRONGLY RETAINED THE ADDITION ONLY TO 10%, WHEREAS THE ENTIR E ADDITION MADE BY THE ASSESSING OFFICER WAS IN ACCORDANCE WITH LAW. TH E LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS SUBMITTED THAT T HE ASSESSING OFFICER USED THE STATEMENT OF SHRI N.K. TRIPATHI, CH AIRMAN OF THE ASSESSEE TRUST, WHEREIN HE HAS SUBMITTED THAT 10% OF THE D ONATION ITA NOS.1062 & 2849/DEL/2009 CO NO.357 & 358/DEL/2009 6 WAS THE ASSESSEES INCOME; THAT SINCE THE ASSESSEE HAS UTILIZE D THIS INCOME, IT SHOULD BE GRANTED EXEMPTION U/S 11 OF THE ACT. 8. AT THE OUTSET, IT IS SEEN THAT THE ASSESSING OFFICER, I N THE LAST PORTION OF THE ASSESSMENT ORDER, HAS OBSERVED, INTER ALIA , AS FOLLOWS:- III) IN THE EXPLANATION TO THIS SECTION, THE TERM RELATIVE HAVE BEEN DEFINED WHICH INCLUDES BROTHER OR SISTER OF THE S POUSE OF THE INDIVIDUAL. IN THE PRESENT CASE, SHRI N.K. TRIPATHI IS THE CHAIRM AN OF THE TRUST. SH. SANJAY MISHRA IS HIS BROTHER-IN-LAW THAT IS BROTHER OF THE SPOUSE. HUGE AMOUNTS HAVE BEEN DIVERTED TO HIS BA NK ACCOUNT IN THE NAME OF A PROPRIETARY CONCERN. THIS IS A CLEAR CUT CASE OF VIOLATIONS OF PROVISIONS OF SECTION 13 OF THE IT ACT. HENCE, EXEMPTION U/S 11 OR 12 IS NOT AVAILABLE TO THE A SSESSEE IN THE PRESENT CASE. 9. THUS, THE ASSESSING OFFICER HAS GIVEN A SPECIFIC FINDIN G REGARDING THE ASSESSEE HAVING VIOLATED THE PROVISIONS OF SECTION 13 OF THE ACT, DUE TO WHICH, ACCORDING TO THE ASSESSING OFFICER, EXEMP TION UNDER SECTIONS 11 AND 12 WAS NOT AVAILABLE TO THE ASSESSEE. IN THIS REGARD, IT IS SEEN THAT THE LD. CIT (A) HAS OBSERVED AS FOLLOWS:- THE APPELLANT FURTHER SUBMITTED THAT SECTION 13 GE TS ATTRACTED ONLY WHEN TRANSFER OF FUNDS WAS FOR ANY DIRE CT OR INDIRECT BENEFIT OF PERSON MENTIONED IN SECTION 13 (3 ). AS AGAINST THIS, HARD FACT ON RECORD AND NOT DISPUTED BY THE LEARNED A.O. IS THAT NOT A SINGLE RUPEE OF THE TRUST W AS UTILIZED DIRECTLY OR INDIRECTLY FOR THE BENEFIT OF SAID MR. SANJAY MISHRA AND/OR NIRMAN ENGINEERS ASSOCIATES. IT W AS CONTENDED THAT RATIO OF THE DECISION HELD BY HONBLE HIGH COURTS, IN THE CASES OF DIRECTOR OF INCOME-TAX EXEMPT ION VS PARIWAR SEWA SANSTHAN (2002) 254 ITR, DELHI AND CIT VS KAMLA TOWN TRUST (2005) 279 ITR 89 ARE SQUARELY APPLICABLE ON THIS ISSUE. THUS, IT WAS CONTENDED THAT T HERE WAS NO VIOLATION OF PROVISION OF SECTION 13, HENCE DEN IAL OF EXEMPTION U/S 11/12 IS MISCONCEIVED AND ERRONEOUS AND DESERVE TO BE DELETED. ITA NOS.1062 & 2849/DEL/2009 CO NO.357 & 358/DEL/2009 7 9.1 THE LD. COMMISSIONER (APPEALS) HAS FOUND AS FOLLOWS:- 6. I HAVE CONSIDERED THE SUBMISSIONS AS WELL AS FAC TS OF THE CASE. ON A CAREFUL CONSIDERATION OF THE FACTS INCLUD ING THE STATEMENT RECORDED U/S 133A OF SHRI N.K. TRIPATHI, CHAI RMAN, IT IS CLEAR THAT RECEIPT OF DONATION OF RS.397.00 LACS FR OM TWO PARTIES NAMELY M/S LAXMI OVERSEAS INDUSTRIES LTD. AND M/S M.P. BEER PRODUCTS LTD., WERE TIED-UP RECEIPTS UNDER GUISE OF APPROVED SCHEME OF MAHAVIDHYALAYA AND HOSPITAL PROJE CT U/S 35AC. IN THE LIGHT OF MORE THAN CANDID CONFESSION BY THE CHAIRMAN HIMSELF, THESE DONATIONS OF RS.397.00 LACS WERE NOT RECEIVED FOR CHARITABLE ACTIVITIES ELIGIBLE U/S 11 OR APPROVED PROJECT U/S 35AC. THUS, THESE DONATIONS RECEIPTS CAN NE ITHER BE GIVEN ANY BENEFIT OF SECTION 11 NOR U/S 35AC DURING THE YEAR UNDER REFERENCE. HOWEVER, THERE IS A FORCE IN THE ASS ESSEES SUBMISSION THAT WHOLE BASIS OF THE IMPUGNED ADDITION IS THE STATEMENT OF THE CHAIRMAN. STATEMENT EITHER HAS TO BE ACCEPTED IN TOTO OR TO BE DISREGARDED ALTOGETHER. IF ONE DOES NOT ACCEPT THE STATEMENT, THEN THERE IS NO CASE. CONSIDE RING THE FACTS AND CIRCUMSTANCES OF THESE TWO TRANSACTIONS, IT I S CLEAR THAT THE TRUST HAS BEEN USED AS CONDUIT FOR RECEIVING THE SAID DONATIONS AND PAYING BACK TO ORIGINAL DONORS THROUGH D IFFERENT MEANS, FOR EARNING COMMISSION INCOME. I AM OF THE C ONSIDERED VIEW THAT AGAINST THE DONATION FROM THESE TWO PARTIES, THE ASSESSEE RETAINED 10% AS COMMISSION FOR SUCH QUID PR O QUO SERVICES WHICH IS REAL NET INCOME OF THE APPELLANT. E VEN IN VIEW OF SUB-SECTION (6) OF SECTION 35AC, NO ADDITION OF TH E TOTAL AMOUNT CAN BE MADE IN THE YEAR UNDER CONSIDERATION AS THE APPROVAL U/S 35AC WAS WITHDRAWN VIDE NOTIFICATION DATE D 20.06.2006. THEREFORE, NET RECEIPT OF RS.39.70 LACS I.E., 10% OF RS.397.00 LACS IS REQUIRED TO BE ASSESSED AS INCOME UNDER THE HEAD COMMISSION NOT CONNECTED TO THE TRUST ACTIVITIES . AGAINST THIS INCOME, THE APPELLANT CANNOT TAKE ANY BENEFIT OF APP LICATION OF INCOME UNDER GENERAL TRUST ACTIVITIES. ACCORDINGL Y, THE A.O. IS DIRECTED TO ASSESS THE COMMISSION INCOME EARNED OTHER THAN TRUST ACTIVITIES AT RS.39,70,000/- AS AGAINST THE ADDITION OF RS.3,97,00,000/- MADE BY HIM. 10. THE LD. CIT (A), THUS, HAS NOT GIVEN ANY SPECIFIC FINDING REGARDING THE AFORESAID OBSERVATION OF THE LD. ASSESSING OFFICER RE GARDING THE VIOLATION OF SECTION 13 OF THE ACT BY THE ASSESSEE AND THE NON- AVAILABILITY OF EXEMPTION UNDER SECTIONS 11 AND 12 O F THE ACT TO THE ASSESSEE. FURTHER, THE LD. COUNSEL FOR THE ASSESSEE HAS CONT ENDED BEFORE US THAT THE AMOUNT, AS PER THE STATEMENT OF SHR I N.K. TRIPATHI WAS RECEIVED IN MAY AND JUNE, 2004 AND THE CHEQUES WE RE ENCASHED IN ITA NOS.1062 & 2849/DEL/2009 CO NO.357 & 358/DEL/2009 8 THE PERIOD FROM 20.07.2004 TO 10.09.2004, AND THAT ACCORDINGLY, NO ADDITION IN THIS YEAR ON THIS ACCOUNT, CAN BE MADE. THE LD. CIT (A) HAS ALSO NOT EXAMINED THIS ISSUE. 11. ACCORDINGLY, THE MATTER IS REMITTED TO THE FILE OF THE LD. CIT (A) TO EXAMINE THESE ISSUES AND DECIDE THE SAME IN ACCORDANCE WITH LAW, IN VIEW OF OUR ABOVE OBSERVATIONS. ITA NO.1062/DEL/2009 AND CO NO.357/DEL/2009 . 12. THIS IS DEPARTMENTS APPEAL AND ASSESSEES CROSS OBJECTI ONS FOR ASSESSMENT YEAR 2005-06. THE MATTER INVOLVED HEREIN, IT IS SEEN, IS SUBSTANTIALLY THE SAME AS THAT INVOLVED IN ITA NO.2849 AND CO NO.358 (SUPRA), BUT FOR THE DONATION INVOLVED, I.E., ` 31 LACS IN THIS YEAR. 13. SINCE THE MATTER FOR ASSESSMENT YEAR 2004-05 STANDS R EMITTED TO THE LD. CIT (A) AS ABOVE AND DUE TO THE FACT THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL AND CO IS SUBSTANTIALLY THE SAME, THIS MATTER IS ALSO REMANDED TO THE FILE OF THE LD. CIT (A), TO BE DECIDED AFRESH IN ACCORDANCE WITH THE LAW, AS PER OUR DIRECTIONS ISSUED F OR ASSESSMENT YEAR 2004-05 (SUPRA). 14. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APPEAL S OF THE DEPARTMENT AS WELL AS THE CROSS OBJECTIONS OF THE ASSESSEE A RE TREATED AS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 31.01.20 13. SD/- SD/- [J.S. REDDY] [A.D. JAIN] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 31.01.2013. DK ITA NOS.1062 & 2849/DEL/2009 CO NO.357 & 358/DEL/2009 9 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES .