Shree Kalika Mataji Temple Public Trust, Panchmahal V. The ACIT, Panchmahal Circle, Godhra

ITA 1028/AHD/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5975 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Assessment record; Reason to believe
• Section: 143(3); 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE, SHRI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHRI S. S. GODARA, JUDICIAL MEMBER ITA NO. 1028/AHD/2016 (A SSESSMENT YEAR: 2008-09) KALIKA MATAJI TEMPLE PUBLIC TRUST, PAVAGADH, PANCHMAHALS APPELLANT VS. ASSISTANT COMMISSIONER OF INCOME TAX, PANCHMAHAL CIRCLE, GODHARA RESPONDE NT PAN: AAATK1776H /BY ASSESSEE : SHRI SUNIL TALATI, A.R. /BY REVENUE : SHRI MUDIT NAGPAL, SR. D.R. /DATE OF HEARING : 09.02.2018 /DATE OF PRONOUNCEMENT : 27.02.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2008-09 ARISES AGAINST THE CIT(A)-5, BARODAS ORDER DATED 05.01.2016, IN CASE NO. CAB/5-340/2014-15, IN PROCEEDINGS U/S. 143(3) R.W.S. 147 OF THE INCOME TA X ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. ITA NO. 1028/AHD/16 [KALIKA MATAJI TEMPLE PUBLIC TR UST VS. ACIT ] A.Y. 2008-09 - 2 - 2. THE ASSESSEE PLEADS ITS FOLLOWING SUBSTANTIVE GR OUNDS OF APPEAL IN THE INSTANT CASE: 1. THE LEARNED CIT (APPEALS)-VI, BARODA HAS ERRED & CONFIRMING THE PROVISIONS OF SECTION 11(3)(C) AND HAS INCORRECTLY AND ILLEGALLY ERRED IN CONFIRMING THE ADDITION OF RS. 1,31,16,480/-. IT IS SUBMITTED THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION IS NOT JUSTIFIED AND ADDITION BE DELETED. 2. WITHOUT PREJUDICE TO THE ABOVE THE LEARNED CIT ( APPEALS) - 5, BARODA HAS ERRED IN NOT APPRECIATING THE FACT THAT IT WAS IMPO SSIBILITY OF THE SITUATION THAT THE TRUST COULD NOT HAVE SPENT THE MONEY ACCUM ULATED IN A.Y. 2002-03 AND COMPLIED WITH THE PROVISIONS OF INCOME TAX ACT. IT IS SUBMITTED THAT THE ACTS AND DEEDS OF THE TRUST, RESOLUTIONS PASSED AND THE ORDERS PASSED BY THE STATE GOVERNMENT / DISTRICT COLLECTOR CLEARLY SHOW THAT IT WAS JUST NOT POSSIBLE FOR THE TRUST TO SPEND THE AMOUNT OF RS. 1 ,31,16,480/- ACCUMULATED. IT IS SUBMITTED THAT IN VIEW OF THIS, THE TRUST SHO ULD BE ALLOWED TO SPEND THE MONEY, AS PER THE RESOLUTION, AS AND WHEN THE ORDER S, WHICH ARE CHALLENGED IN THE COURTS ARE CANCELLED AND THE TRUST IN A POSI TION TO BUY THE LAND AND SPEND THE AMOUNT AS PER THE RESOLUTIONS. IT IS SUBM ITTED THAT IT BE HELD SO NOW. 3. WITHOUT PREJUDICE TO THE ABOVE IT IS SUBMITTED THAT THE TRUST BE ALLOWED TO SPEND THE AMOUNT ACCUMULATED AS SOON AS IT IS LEGAL LY POSSIBLE FOR IT TO SPEND THE SAME. IT IS SUBMITTED THAT DIRECTION BE G IVEN ACCORDINGLY. ALTERNATIVELY, THE TRUST BE ALLOWED TO SPEND THE MO NEY FOR OTHER OBJECTS OF THE TRUST NOT WITHSTANDING THE RESOLUTION PASSED AN D THE TRUST BE ALLOWED TO DO VARIATIONS ACCORDINGLY AND THE ADDITION OF RS.1, 31,16,480/- MADE BE DELETED. 3. WE NOTICE AT THE OUTSET THAT THE ASSESSEE HAD FI LED ITA NOS. 200 & 201/AHD/2015 FOR SUCCEEDING ASSESSMENT YEARS 2009-1 0 AND 2011-12 RAISING THE VERY SUBSTANTIVE GROUNDS. A CO-ORDINATE BENCH IN AS MANY DIFFERENT ORDERS 31.08.2015 AND 21.03.2016; RESPECTIVELY HAS RESTORE D THE SAID ISSUES BACK TO THE FILE OF ASSESSING OFFICER. WE NOTICE THAT ABOVE LATTER ORDER FOLLOWS THE FORMER ONE READING AS UNDER: 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THAT SIMILAR ISSUE AROSE IN ASSESSEE'S OWN CAS E FOR ASSESSMENT YEAR 2009-10 VIDE ITA NO.200/AHD/2015, WHEREIN THE ITAT HAS SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORED THE ISSUE TO THE FIL E OF THE ASSESSING OFFICER FOR DECISION AFRESH, BY OBSERVING AS UNDER:- ITA NO. 1028/AHD/16 [KALIKA MATAJI TEMPLE PUBLIC TR UST VS. ACIT ] A.Y. 2008-09 - 3 - '4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THE REASONS FOR ISSUING NOTICE U/S.148 OF THE ACT ARE RECORDED IN T HE ASSESSMENT ORDER AT PARA-2, WHICH ARE IN THE FOLLOWING TERMS:- '2. THE FOLLOWING REASONS WERE RECORDED FOR ISS UE NOTICE U/S.148 OF THE ACT AND THE SAME ARE REPRODUCED HEREINBELOW FOR THE SAKE OF REFERENCE. 'IN THIS CASE RETURN OF INCOME IS FILED ON 25.0 9.2009 DECLARING TOTAL INCOME OF RS.NIL/-. RETURN OF INCOME WAS PROCESSED ON 06.07.2 010 ACCEPTING THE RETURN INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR A.Y. 2010-11, WHILE ANALYZING VARIOUS FORM NO.10 SUBMITTED BY THE TRUST FOR RELEVANT ASSESSMENT YEARS, IT IS OBSERVED THAT THE TRUST HAS NOT APPLIED 75% O F ITS INCOME AS REQUIRED U/S.11(2) OF THE I.T. ACT TILL FINANCIAL 2008-09 OF F.Y. 2002 -03. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AR OF THE ASSESSEE AND T HE UNDERSIGNED HAVE DEPTH DISCUSSION REGARDING ACCUMULATIONS. BASED ON THE ASSESSMENT RECORD AVAILABLE IN THIS OF FICE, AND THE ASSESSEE'S SUBMISSION DATED 26.12.2012 REGARDING ACCUMULATION THE UNDERSIGNED COME TO KNOW THAT THE TRUST DID NOT SPEND ACCUMULATED FUND IN THE CONCERN FINANCIAL YEAR AS REQUIRED U/S.11(2) OF THE I.T.ACT. IN THE LIGHT OF THE ABOVE DISCUSSION AND, IT IS NOT ICED THAT THE TRUST HAS VIOLATED THE CONDITION PRESCRIBED U/S.11(3) (C) OF THE I.T.ACT. AS PER SECTION 11(3) (C) OF THE I.T. ACT, 1961. 'ANY INCOME REFERRED TO IN SUBSECTION 11(2) WHICH- (C) IS NOT UTILIZED FOR THE PURPOSE FOR WHICH IT IS SO ACCUMULATION OR SET APART, DURING THE PERIOD REFERRED TO IN A CLAUSE (A) OF TH AT SUB-SECTION OR IN THE YEAR IMMEDIATELY FOLLOWING THE EXPIRY THEREOF- SHALL BE DEEMED TO BE THE INCOME OF SUCH PERSON OF THE PREVIOUS YEAR IN WHICH IT IS SO APPLI ED OR CEASES TO BE SO ACCUMULATED OR SET APART.' THE FACTS AS BROUGHT OUT IN A.Y. 2010-11 AND AS MEN TIONED ABOVE ARE APPLICABLE TO THE CASE OF THE ASSESSEE FOR A.Y. 2009-10 AND THE P OINT PERTINENT TO NOTE THAT THE AR AGREED VIDE ORDER SHEET ENTRY DATED 26.12.2012 THAT HE DOES NOT HAVE ANY OBJECTION ABOUT THE ADDITION MADE ON THE SAME GROUND DURING A SSESSMENT PROCEEDING FOR A.Y. 2010-11. ACCORDINGLY I HAVE REASON TO BELIEVE THAT THE ASSESSEE HAS FAILED TO DISCLOSE TRULY AND FAIRLY ALL THE FACTS RELEVANT TO ITS ASSESSMENT FOR A.Y. 2009-10. THUS, I HAVE, THEREFORE REASON TO BELIEVE THAT INCO ME EXCEEDING RS. ONE LACS CHARGEABLE TO TAX HAS BEEN ESCAPED THE ASSESSMENT F OR 2009-10 WITHIN THE MEANING OF SECTION 147 OF THE INCOME TAX ACT. THEREFORE, IT IS A FIT CASE TO ISSUE NOTICE U/S.148 FOR A.Y. 2009-10.' 4.1. THE AO IN THE ASSESSMENT ORDER FOLLOWED THE OR DER OF THE LD.CIT(A) PASSED IN AYS 2010-11 & 2011-12, WHEREIN SIMILAR ADDITIONS WE RE CONFIRMED BY THE LD.CIT(A). ITA NO. 1028/AHD/16 [KALIKA MATAJI TEMPLE PUBLIC TR UST VS. ACIT ] A.Y. 2008-09 - 4 - 4.2. THE ONLY QUESTION WHICH ARISES FOR OUR CONSIDE RATION IS WHETHER THE PERIOD IN WHICH THE ORDER OF THE JT.DIST.JUDGE WAS IN OPERATI ON TO BE EXCLUDED FOR RECKONING THE PERIOD OF 10 YEARS AS MENTIONED IN SECTION 11(2 )(A) OF THE ACT UNDER THE FACTS OF THE PRESENT CASE. FOR THE SAKE OF CLARITY, SECTION 11(2) AND 11 (3) ARE REPRODUCED HEREINBELOW:- SECTION 11 [(2) [WHERE [EIGHTY-FIVE P ER CENT] OF THE INCOME REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OF SUB-SECTION (1) R EAD WITH THE EXPLANATION TO THAT SUB-SECTION IS NOT APPLIED, OR IS NOT DEEMED TO HAV E BEEN APPLIED, TO CHARITABLE OR RELIGIOUS PURPOSES IN INDIA DURING THE PREVIOUS YEA R BUT IS ACCUMULATED OR SET APART, EITHER IN WHOLE OR IN PART, FOR APPLICATION TO SUCH PURPOSES IN INDIA, SUCH INCOME SO ACCUMULATED OR SET APART SHALL NOT BE INC LUDED IN THE TOTAL INCOME OF THE PREVIOUS YEAR OF THE PERSON IN RECEIPT OF THE INCOM E, PROVIDED THE FOLLOWING CONDITIONS ARE COMPLIED WITH, NAMELY :--] (A) SUCH PERSON SPECIFIES, BY NOTICE IN WRITING GIV EN TO THE [ASSESSING OFFICER] IN THE PRESCRIBED MANNER, THE PURPOSE FOR WHICH THE IN COME IS BEING ACCUMULATED OR SET APART AND THE PERIOD FOR WHICH THE INCOME IS TO BE ACCUMULATED OR SET APART, WHICH SHALL IN NO CASE EXCEED TEN YEARS ; [(B) THE MONEY SO ACCUMULATED OR SET APART IS INVESTED OR DEPOSITED IN THE FORMS OR MODE S SPECIFIED IN SUB-SECTION (5) :] [PROVIDED THAT IN COMPUTING THE PERIOD OF TEN YEARS REFERRED TO IN CLAUSE (A), THE PERIOD DURING WHICH THE INCOME COULD NOT B E APPLIED FOR THE PURPOSE FOR WHICH IT IS SO ACCUMULATED OR SET APART, DUE TO AN ORDER OR INJUNCTION OF ANY COURT, SHALL BE EXCLUDED:] [PROVIDED FURTHER THAT IN RESPE CT OF ANY INCOME ACCUMULATED OR SET APART ON OR AFTER THE 1ST DAY OF APRIL, 2001, T HE PROVISIONS OF THIS SUB- SECTION SHALL HAVE EFFECT AS IF FOR THE WORDS 'TEN YEARS' A T BOTH THE PLACES WHERE THEY OCCUR, THE WORDS 'FIVE YEARS' HAD BEEN SUBSTITUTED.] [EXPL ANATION. : ANY AMOUNT CREDITED OR PAID, OUT OF INCOME REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OF SUB-SECTION (1), READ WITH THE EXPLANATION TO THAT SUB-SECTION, WHICH IS NOT APPLIED, BUT IS ACCUMULATED OR SET APART, TO ANY TRUST OR INSTITUTION REGISTERE D UNDER SECTION 12AA OR TO ANY FUND OR INSTITUTION OR TRUST OR ANY UNIVERSITY OR OTHER EDUCATIONAL ITA NO. 201/AHD/2015 SHRI KALIKA MATA TEMPLE PUBLIC TRUST VS. ACIT AY : 2011-12 INSTITUTION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION REFERRED TO I N SUB-CLAUSE (IV) OR SUB-CLAUSE (V) OR SUB-CLAUSE (VI) OR SUB-CLAUSE (VIA) OF CLAUSE (2 3C) OF SECTION 10, SHALL NOT BE TREATED AS APPLICATION OF INCOME FOR CHARITABLE OR RELIGIOUS PURPOSES, EITHER DURING THE PERIOD OF ACCUMULATION OR THEREAFTER.] SECTION 11 [(3) ANY INCOME REFERRED TO IN SUB-SECTION (2) WHICH-- (A) IS APPLIED TO PURPOSES OTHER THAN CHARITABLE OR RELIGIOUS PURPOSES AS AFORESAID OR CEASES TO BE ACCUMULATED OR SET APART FOR APPLIC ATION THERETO, OR [(B) CEASES TO REMAIN INVESTED OR DEPOSITED IN ANY OF THE FORMS OR MODES SPECIFIED IN SUB-SECTION (5), OR] (C) IS NOT UTILISED FOR THE PURPOSE FOR WHICH IT IS SO ACCUMULATED OR SET APART DURING THE PERIOD REFERRED TO IN CLAUSE (A) OF THAT SUB-SE CTION OR IN THE YEAR IMMEDIATELY FOLLOWING THE EXPIRY THEREOF, [(D) IS CREDITED OR P AID TO ANY TRUST OR INSTITUTION REGISTERED UNDER SECTION 12AA OR TO ANY FUND OR INS TITUTION OR TRUST OR ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION REFERRED TO IN SUB-CLAUSE (IV) OR SUB-C LAUSE (V) OR SUB-CLAUSE ITA NO. 1028/AHD/16 [KALIKA MATAJI TEMPLE PUBLIC TR UST VS. ACIT ] A.Y. 2008-09 - 5 - (VI) OR SUB-CLAUSE (VIA) OF CLAUSE (23C) OF SECTION 10,] SHALL BE DEEMED TO BE THE INCOME OF SUCH PERSON OF THE PREVIOUS YEAR IN WHICH IT IS SO APPLIED OR CEASES TO BE SO ACCUMULATED OR [SET APART OR CEASES TO REMAIN SO INVESTED OR DEPOSITED OR CREDITED OR PAID OR], AS THE CASE MAY BE, OF THE PR EVIOUS YEAR IMMEDIATELY FOLLOWING THE EXPIRY OF THE PERIOD AFORESAID.] [(3A) NOTWITHS TANDING ANYTHING CONTAINED IN SUB-SECTION (3), WHERE DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF THE PERSON IN RECEIPT OF THE INCOME, ANY INCOME INVESTED OR DEPOS ITED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE (B) OF SUB-SECTION (2) CANNOT BE APPLIED FOR THE PURPOSE FOR WHICH IT WAS ACCUMULATED OR SET APART, THE [ASSESSI NG OFFICER] MAY, ON AN APPLICATION MADE TO HIM IN THIS BEHALF, ALLOW SUCH PERSON TO APPLY SUCH INCOME FOR SUCH OTHER CHARITABLE OR RELIGIOUS PURPOSE IN INDIA AS IS SPECIFIED IN THE APPLICATION BY SUCH PERSON AND AS IS IN CONFORMITY WITH THE OBJ ECTS OF THE TRUST; AND THEREUPON THE PROVISIONS OF SUB-SECTION (3) SHALL APPLY AS IF THE PURPOSE SPECIFIED BY SUCH PERSON IN THE APPLICATION UNDER THIS SUB-SECTION WE RE A PURPOSE SPECIFIED IN THE NOTICE GIVEN TO THE [ASSESSING OFFICER] UNDER CLAUS E (A) OF SUB-SECTION (2) :] [PROVIDED THAT THE ASSESSING OFFICER SHALL NOT ALLO W APPLICATION OF SUCH INCOME BY WAY OF PAYMENT OR CREDIT MADE FOR THE PURPOSES REFE RRED TO IN CLAUSE (D) OF SUB- SECTION (3) OF SECTION 11 :] [PROVIDED FURTHER THAT IN CASE THE TRUST OR INSTITU TION, WHICH HAS INVESTED OR DEPOSITED ITS INCOME IN ACCORDANCE WITH THE PROVISI ONS OF CLAUSE (B) OF SUB-SECTION (2), IS DISSOLVED, THE ASSESSING OFFICER MAY ALLOW APPLICATION OF SUCH INCOME FOR THE PURPOSES REFERRED TO IN CLAUSE (D) OF SUB-SECTION ( 3) IN THE YEAR IN WHICH SUCH TRUST OR INSTITUTION WAS DISSOLVED.] 4.3. FROM THE MATERIAL AVAILABLE ON RECORD, THE UND ISPUTED FACTS ARE: (I) THAT, THE ORDER DATED 01/10/1994 WAS PASSED BY THE LD.JT.DISTRICT JUDGE, PANCHMAHAL, GODRA IN THE FOLLOWING TERMS:- 'ORDER 1. THE APPLICATIONS ARE ALLOWED. 2. AD-INTERIM INJUNCTION AS PRAYED FOR IN PARA-6-A BE ISSUED AGAINST THE DEFENDANT. 3. SHRI N.B.PATEL, SR.ADVOCATE & NOTARY, GODHRA BAR , IS HEREBY APPOINTED AS RECEIVER TO MANAGE THE PROPERTIES OF T HE PUBLIC TRUST KNOWN AS KALIKA MOTALI TEMPLE, AT PAVAGADH DURING THE PENDEN CY OF THIS SUIT. 4. THE RECEIVER SHALL MANAGE THE PROPERTY IN THE BE ST OF THE INTEREST OF THE TRUST AND SHALL PRODUCE ACCOUNTS OF THE TRUST E VERY THREE MONTHS BEFORE THE ASSISTANT CHARITY COMMISSIONER, NADIAD AND SHAL L ALSO PRODUCE A COPY THEREOF TO THIS COURT. HE SHALL TAKE ALL STEPS TO R EALIZE THE DUES OF THE TRUST. HE WILL BE ENTITLED TO A MONTHLY REMUNERATION OF RS .1,500/- (RUPEES ONE THOUSAND FIVE HUNDRED ONLY) TENTATIVELY FROM THE DA TE OF ISSUE OF RECEIVER PATRA IN ADDITION TO REASONABLE EXPENSES INCURRED B Y HIM FOR THE MANAGEMENT OF THE TRUST. HE SHALL COMMENCE THE WORK OF RECEIVER FORTHWITH. ITA NO. 1028/AHD/16 [KALIKA MATAJI TEMPLE PUBLIC TR UST VS. ACIT ] A.Y. 2008-09 - 6 - 5. SHRI M.M.PARMAR, C.O.C., DISTRICT COURT PANCHMAH ALS, AT GODHRA IS ALSO APPOINTED AS CO-RECEIVER TO ASSIST SHRI N.B .PATEL, THE RECEIVER, APPOINTED ABOVE. HE SHALL ALSO BE ENTITLED TO A MON THLY REMUNERATION OF RS.750/- TENTATIVELY IN ADDITION TO REASONABLE EXPE NSES INCURRED BY HIM FOR MANAGEMENT OF THE TRUST PROPERTIES. 6. THE REMUNERATION OF THE RECEIVER AND HIS ASSISTA NT ARE TO BE DRAWN FROM THE TRUST PROPERTY INCOME. 7. ALL THE DEFTS ARE DIRECTED TO HAND OVER THE POSS ESSION OF THE TRUST, IF ANY, WITH THEM INCLUDING MOVEABLE AND IMMOVEABLE PR OPERTIES OF THE TRUST. 8. THE DEFENDANTS, THEIR AGENTS, OFFICE BEARERS AND SERVANTS ARE HEREBY RESTRAINED FROM MANAGING THE PROPERTIES AND AFFAIRS OF THE PUBLIC TRUST KNOWN AS KALIKA MATAJI TEMPLE, AT PAVAGADH, REGISTE RED UNDER BOMBAY PUBLIC TRUST ACT NO.421/PANCHMAHALS, DURING THE PEN DENCY OF THIS APPEAL. 9. THE RECEIVER IS ALSO DIRECTED TO MAKE AN INVENTO RY OF THE TRUST PROPERTIES AND AFFAIRS BELONGING TO THE PUBLIC TRUS T, KNOWN AS KALIKA MATAJI TEMPLE. THE PLTFF IS DIRECTED TO PAY ADDITIONAL REM UNERATION FOR THE SAID WORK OF INVENTORY OF THE TRUST PROPERTIES AT RS.1,0 00/- (RUPEES ONE THOUSAND ONLY AT FIRST INSTANCE. PRONOUNCED IN THE OPEN COURT TODAY THIS 01ST D AY OF OCTOBER, 1994.' (II) FURTHER, THE LD.JT.DISTRICT JUDGE CONFIRMED TH E AD-INTERIM INJUNCTION GRANTED VIDE ORDER DATED 01/10/1994 BY ORDER DATED 29/10/19 94 IN THE FOLLOWING TERMS:- 'ORDER 1. THE AD-INTERIM INJUNCTION AND THE ORDER FOR THE APPOINTMENT OF RECEIVER PASSED BY THIS COURT BELOW EXH.3 DATED 1/10/1994 IS HEREBY CONFIRMED AND MADE ABSOLUTE TILL THE FINAL DECISION OF THE CIVIL SUIT NO.2 OF 1994. 2. THE OBJECTIONS FILED BY THE DEFENDANTS VIDE EXH. 23 ARE HEREBY REJECTED. 3. IT IS HEREBY ORDERED AND DECLARED THAT THE DEFEN DANTS ARE NOT ENTITLED TO GET THE RELIEF AS CLAIMED FOR IN THE WS EXH.23. 4. THE DEFENDANTS SHALL PAY THE COSTS OF THIS APPLI CATION TO THE PLAINTIFF AND BEAR THEIR OWN. PRONOUNCED IN THE OPEN COURT TODAY THIS 29TH DAY OF OCTOBER, 1994' 4.4. AS PER AD-INTERIM ORDER DATED 01/10/1994 SHRI N.B.PATEL, SR.ADVOCATE & NOTARY GODHRA BAR WAS APPOINTED AS RECEIVER TO MA NAGE PROPERTIES OF THE ASSESSEE-TRUST. THE RECEIVER WAS FURTHER AUTHOR IZED TO MANAGE THE PROPERTY IN THE BEST OF THE INTEREST OF THE TRUST A ND PRODUCE ACCOUNTS OF THE TRUST EVERY THREE MONTHS BEFORE THE ASSISTANT CHARI TY COMMISSIONER, NADIAD. THE COURT ALSO APPOINTED SHRI M.M.PARMAR, C .O.C., DISTRICT COURT, PANCHMAHALS, GODHRA AS CO-RECEIVER TO ASSIST SHRI N.B.PATEL, THE RECEIVER. THE DEFENDANTS WERE FURTHER RESTRAINED FR OM MANAGING THE PROPERTIES AND AFFAIRS OF THE TRUST DURING THE PEND ENCY OF THE APPEAL THE RECEIVER WAS DIRECTED TO MAKE AN INVENTORY OF THE T RUST PROPERTIES AND AFFAIRS BELONGING TO THE PUBLIC TRUST KNOWN AS KALI KA MATAJI TEMPLE. ITA NO. 1028/AHD/16 [KALIKA MATAJI TEMPLE PUBLIC TR UST VS. ACIT ] A.Y. 2008-09 - 7 - 4.5. FROM THE ABOVE ORDER, IT IS CLEAR THAT THE AFF AIRS OF THE ASSESSEE-TRUST WERE TAKEN OVER BY THE COURT APPOINTED RECEIVER AND , THEREFORE, IT CAN BE INFERRED FROM THE MATERIAL AVAILABLE ON RECORD THAT THE TRUSTEES OF THE ASSESSEE-TRUST WERE RESTRAINED FROM MANAGING THE AF FAIRS. IT IS THE CONTENTION OF THE ASSESSEE-TRUST THAT THE ABOVE ORD ER REMAINED IN FORCE TILL 30/08/2007. THE LD.CIT(A) DID NOT ACCEPT THE EXPLAN ATION OF THE ASSESSEE ON THE GROUND THAT THERE WAS NO PROHIBITION OR RESTRAI NING ORDER BY THE COURT THAT THE RECEIVER WOULD NOT COMPLY WITH THE PROVISI ONS OF THE ACT. SO FAR AS THE ASSESSEE-TRUST IS CONCERNED, ITS AFFAIRS WERE T AKEN OVER BY THE COURT APPOINTED RECEIVER, THEREFORE IT CANNOT BE INFERRED THAT THE ASSESSEE-TRUST WAS IN ANYWAY RESPONSIBLE FOR NOT MAKING AN APPLICA TION FOR ACCUMULATION OF INCOME U/S.11(1) OF THE ACT. THE CONTENTION OF T HE ASSESSEE IS THAT THE DELAY IN MAKING APPLICATION BY THE ASSESSEE-TRUST W AS DUE TO SUFFICIENT CAUSE AND THE AUTHORITIES BELOW OUGHT TO HAVE CONDO NED THE DELAY AND EXCLUDED THE PERIOD DURING WHICH THE AFFAIRS OF THE TRUST WAS TAKEN OVER BY THE COURT RECEIVER TRUST. HOWEVER, NO SUCH SITUATIO N IS CONTEMPLATED UNDER THE ACT WHERE THE AFFAIRS OF THE TRUST ARE TAKEN OV ER BY THE COURT APPOINTED RECEIVER AND COMPLIANCE OF THE PROVISION BY THE REC EIVER. SUB-SECTION(3A) OF SECTION 11 CONTEMPLATES A SITUATION WHERE DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF THE PERSON IN RECEIPT OF THE INCOME, ANY INCOME INVESTED OR DEPOSITED IN ACCORDANCE WITH THE PROVISIONS OF CLAU SE(B) OF SUB-SECTION (2) COULD NOT BE APPLIED FOR THE PURPOSE FOR WHICH IT W AS ACCUMULATED OR SET APART. IN THAT SITUATION, THE ASSESSING OFFICER MAY , ON AN APPLICATION MADE TO HIM IN THIS BEHALF, ALLOW SUCH PERSON TO APPLY S UCH INCOME FOR SUCH OTHER CHARITABLE OR RELIGIOUS PURPOSE IN INDIA AS IS SPEC IFIED IN THE APPLICATION BY SUCH PERSON AND AS IS IN CONFORMITY WITH THE OBJECT S OF THE TRUST; AND THEREUPON THE ITA NO. 201/AHD/2015 SHRI KALIKA MATA TEMPLE PUBLIC TRUST VS. ACIT AY : 2011-12 PROVISIONS OF SUB-SECTION(3) SHALL APPLY AS IF THE PURPOSE SPECIFIED BY SUCH PERSON IN THE APPLICATION UNDER THIS SUB-SECTION FOR A PURPOSE SPECIFIED IN THE NOTICE GIVEN TO THE ASSESSING OFFICER UNDER CLAUSE (A) OF SUB-SECTION (2). 4.6. IN THE PRESENT CASE, NO SUCH APPLICATION WAS M ADE BY THE ASSESSEE- TRUST OR THE COURT APPOINTED RECEIVER. HOWEVER, THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE TRUSTEES WERE RETRAINED FROM M ANAGING THE AFFAIRS. FOR THE OMISSION ON THE PART OF THE COURT APPOINTED REC EIVER WOULD NOT, IN OUR CONSIDERED, VIEW DISENTITLE THE ASSESSEE-TRUST FOR SEEKING CONDONATION OF DELAY, IF ANY, IN NOTIFYING THE AO IN THE TERMS OF PROVISION OF SECTION 11(2) OF THE ACT. THEREFORE, WE HEREBY SET ASIDE THE ORDE RS OF THE AUTHORITIES BELOW AND RESTORE THE ISSUE TO THE FILE OF AO FOR D ECISION AFRESH. THE AO WOULD VERIFY THE PERIOD DURING WHICH THE AFFAIRS OF THE ASSESSEE-TRUST WERE MANAGED BY THE COURT APPOINTED RECEIVER. HE WOULD E XCLUDE SUCH PERIOD IN THE LIGHT OF FIRST PROVISO TO SECTION 11(2) OF THE ACT AND WOULD VERIFY WHETHER THE MONEY SO ACCUMULATED OR SET APART WAS INVESTED OR DEPOSITED IN THE FORMS OR MODES SPECIFIED IN SECTION 11(5) OF THE AC T.' 4. ADMITTEDLY, THE FACTS OF THE YEARS UNDER CONSIDE RATION ARE IDENTICAL. WE, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE DECISIO N OF ITAT IN ASSESSEE'S OWN CASE FOR ASSESSMENT YEAR 2009-10, WE HEREBY SET ASIDE TH E ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE ISSUE TO THE FILE OF THE ASSE SSING OFFICER FOR DECISION AFRESH IN ITA NO. 1028/AHD/16 [KALIKA MATAJI TEMPLE PUBLIC TR UST VS. ACIT ] A.Y. 2008-09 - 8 - THIS YEAR AS WELL. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. LEARNED DEPARTMENTAL REPRESENTATIVE SEEKS TO INV ITE OUR ATTENTION TO THE FACT THAT THE CIT(A) HAS ALREADY TAKEN NOTE OF THE ABOVE EARLIER BENCHES ORDER. HE HOWEVER FAILS TO DISPUTE THE FACT THAT THE IMPUGNED RE-ASSESSMENT PROCEEDINGS HAVE ARISEN BECAUSE OF SAID SUCCEEDING ASSESSMENT YEARS ASSESSMENT PROCEEDINGS AND ALSO THAT THE ASSESSING OFFICER IS YET TO FRAME CON SEQUENTIAL ASSESSMENT THEREIN. WE THEREFORE DEEM IT APPROPRIATE IN THE LARGER INTE REST OF JUSTICE THAT LEARNED ASSESSING OFFICER SHALL FRAME ALL CONSEQUENTIAL ASS ESSMENTS TOGETHER FOR THE SAKE OF BREVITY AND UNIFORMITY. THE ASSESSEES INSTANT SUB STANTIVE GROUNDS ARE THEREFORE ACCEPTED FOR STATISTICAL PURPOSES. 5. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. [PRONOUNCED IN THE OPEN COURT ON THIS T HE 27 TH DAY OF FEBRUARY, 2018.] SD/- SD/- ( PRAMOD KUMAR ) ( S. S. GODARA) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD: DATED 27/02/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0