ITO(E), Jaipur V. KAMAKSHA MAA SHAILEDRA BABA KAMDHENU SEVA SANSTHAN TRUST, JHUNJHUNU

ITA 1077/JPR/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2139 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 07-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL
• Assessee Lawyers: RAMESH SHARMA DHK
• Keywords: Question of law; Corroborative evidences; Benefit of exemption
• Section: 143(3); 142(1); 80G; 12A; 11

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 1077/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13. INCOME TAX OFFICER (EXEMPTION), WARD-2, JAIPUR. CUKE VS. M/S KAMAKSHA MAA SHAILENDRA BABA KAMDHENU SEVA SANSTHAN TRUST, MUKUNDGARH, JHUNJHUNU. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AABTM 7746 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI S.L. CHANDEL (ADDL. CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAMESH SHARMA (ADVOCATE) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 02.08.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 11/08/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A)-5, JAIPUR, DATED 29.09.2016 PERTAINING TO A.Y. 2012-13 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL :- 1. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 62 ,21,111/- ON ACCOUNT OF ANONYMOUS DONATION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 6, 20,456/- AS SURPLUS IN SPITE OF THE FACTS THAT DOCUMENTARY EVIDENCES SUCH AS BOOKS OF ACCOUNTS, BILLS, VOUCHERS ETC. WERE NOT PRODUCED DU RING THE PROCEEDINGS BEFORE THE AO. 3. ANY OTHER QUESTION OF LAW AS DEEMED FIT IN THE F ACTS AND CIRCUMSTANCES OF THE CASE ANY ALSO BE FRAMED BEFORE THE HONBLE T RIBUNAL IN THE INTEREST OF JUSTICE. 2 ITA NO. 1077/JP/2016. M/S KAMAKSHA MAA SHAILENDRA BABA KAMDHENU SEVA SANSTHAN TRUST. 2. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT WAS FRAMED U NDER SECTION 143(3) OF THE IT ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE ORDER DATED 25/03/2015. DURING THE ASSESSMENT PROCEEDINGS, IT WAS OBSERVED THAT TH E INFORMATION REQUIRED THROUGH NOTICE U/S 142(1) OF THE ACT WAS PARTLY SUBMITTED. BOOKS OF ACCOUNTS AND SUPPORTING VOUCHERS, BILLS & DONATION RECEIPTS WERE NOT PRODUCED ON THE BASIS THAT THE SAME HAVE BEEN DESTROYED IN AN ACCIDENTAL FIRE THAT OCCURRED ON 14/03/2012. IT IS OBSERVED BY THE ASSESSING OFFICER THAT THE AUDIT REPORT IN FORM -10B WAS SIGNED ON 14/09/2012 BY THE AUDITOR, HOW COULD THE AUDITOR VERIFY THE BOOKS OF ACCOUNTS WHEN THE SAME WERE LOST IN FIRE. THE ASSESSING OFF ICER TREATED THE DONATION OF RS. 62,21,111/- AS ANONYMOUS DONATION. FURTHER, THE AS SESSING OFFICER TREATED BALANCE INCOME ASSESSED AS INCOME FROM OTHER SOURCES, TRE ATING THE STATUS AS AOP, WITHOUT DEDUCTING ANY EXPENSES THEREON. AGAINST TH IS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT, WHO AFTER CONSIDERING THE SU BMISSIONS, ALLOWED THE APPEAL. 3. NOW, THE REVENUE HAS FILED THE PRESENT APPEAL. 4. GROUND NO. 1, IS AGAINST DELETING THE ADDITION OF RS. 62,21,111/ - ON ACCOUNT OF ANONYMOUS DONATION. 4.1 LD. DEPARTMENTAL REPRESENTATIVES VEHEMENTLY ARG UED THAT THE LD. CIT WAS NOT JUSTIFIED AND CASUALLY BELIEVE THE VERSION OF T HE ASSESSEE WITHOUT MAKING FURTHER INQUIRY ABOUT THE VERACITY OF THE CLAIM OF THE ASSE SSEE. 4.2 ON THE CONTRARY, LD. COUNSEL FOR THE ASSESSEE S UPPORTED THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT A FIRE WAS ACTUALLY OCCUR RED AND THE FIRE IS NOT UNDER THE 3 ITA NO. 1077/JP/2016. M/S KAMAKSHA MAA SHAILENDRA BABA KAMDHENU SEVA SANSTHAN TRUST. CONTRARY AND THE INCIDENT IS AN ACT OF THE GOD SINC E, THE FIRE WAS OCCURRED BY THE SHORT CIRCUIT. HE REITERATED THE SUBMISSIONS AS MAD E IN THE WRITTEN SUBMISSIONS. THE WRITTEN SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED AS UNDER:- 1. THE LD. APPELLANT AUTHORITY IS RIGHT IN LAW IN DELETING THE ABSOLUTELY WRONG DEMAND. 2. RESPONDENT HAS VALID REGISTRATION U/S 12A & 80G OF INCOME TAX ACT MEANS ALL INCOME OF TRUST IS EXEMPT. 3. MY LORD FIRE, FLOOD, CYCLONE, EARTHQUAKE AND SKY POWER FALLON EARTH, THESE INCIDENTS ARE INEVITABLE ACCIDE NTS AND CONTROL ON THESE INCIDENTS IS OVER ALL OF GOD, THESE ACCIDENTS ARE ARCANA AELESTIA 4. THE LD. APPELLATE AUTHORITY IS RIGHT IN LAW AND DELETED DEMAND IN THE LIGHT OF FOLLOWING DECISIONS:- G) HONOURABLE SUPREME COURT (FULL BENCH) IN THE CA SE OF LATA WADHAWA & ORS V/S STATE OF BIHAR ON 16-08- 2011, IN THIS CASE FIRE TOOK PLACE IN PANDAL AND DU E TO FIRE 60 PERSONS WERE KILLED AND 113 PERSONS WERE INJURED . BY THE HONOURABLE SUPREME COURT DECIDED AWARD/CLAIMS T O VICTIM. H) HONOURABLE SUPREME COURT (DOUBLE BENCH) IN THE C ASE OF INSURANCE COMPANY V/S ZUARI INDUSTRIES LTD. AND ORS DECIDED 01-09-2009. IN THIS CASE FIRE TOOK PLACED DUE TO ELECTRIC SHORT CIRCUITS AND COURTS DECIDED ADMITTED FACT. (COPY OF DECISION ATTACHED) I) HONOURABLE DELHI HIGH COURT, IN THE CASE OF JAIPUR GOLDEN GAS VICTIM ASSOCIATION V/S UDI & ORS ON 23-1 0- 2009, IN THIS CASE FIRE TOOK PLACED IN THE PREMISES OF JAIPUR GOLDEN GODOWN AND THERE MEN KILLED AND INJUR ED, BY THE HONOURABLE HIGH COURT AWARD/CLAIMS GIVEN TO KITH AND KIN OF DECEASED AND INJURED PERSONS. 4 ITA NO. 1077/JP/2016. M/S KAMAKSHA MAA SHAILENDRA BABA KAMDHENU SEVA SANSTHAN TRUST. (COPY OF DECISION ATTACHED) 5. IN THE CASE FIRE TOOK PLACE DUE TO ELECTRIC SHOR T CIRCUIT AND ALL RECORD OF TRUST WAS BURNT IN FIRE, FIR WAS LODGED TO POLICE S TATION, MUKUNDGARH. 6. BALANCE OF CONVEYANCE BE ALLOWED IN FAVOUR OF RE SPONDENT. 4.3 WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD. THE LD. CIT(A) ALLOWED THE APPEAL OF THE A SSESSEE BY OBSERVING AS UNDER:- 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE, THE PENALT Y ORDER AND THE SUBMISSIONS OF THE APPELLANT. THE CORE ISSUE INVOL VED IS THE VERACITY RECEIPTS BOOKS AND EXPENSES VOUCHERS ETC. THE AO HAS DOUBLE D THE DESTRUCTION OF RECEIPT BOOKS AND EXPENSE VOUCHERS ETC. THE AO HAS DOUBLED THE DESTRUCTION OF RECEIPT BOOKS AND EXPENSE VOUCHERS AND HAS CONSE QUENTLY PROCEEDED TO TREAT ALL DONATIONS AS ANONYMOUS IN NATURE AND HAS TAXED THE SAME IN ACCORDANCE WITH ALL PROVISIONS OF S. 115BC R.W.S 13 (7), DENYING THE BENEFIT OF EXEMPTION U/S 11. ON GOING THROUGH THE POLICE RECO RDS AND REPORTS, WHICH WERE ALSO SUBMITTED BEFORE THE AO, IT IS SEEN THAT THE POLICE HAS FIRST RECORDED THE FIRE INCIDENT AS A DAILY DIARY REPORT (ROJNAMCH A) AND NOT AS A PROPER FIR PRESUMABLY SINCE THE INCIDENT IS NOT A COGNIZABLE O FFENCE. HOWEVER, THE VERACITY OF THE SAME IS NOT DILUTED BY THE ABOVE FA CT SINCE THE POLICE HAS PROCEEDED WITH SUBSEQUENT INVESTIGATIONS IN THE MAT TER AND IS HAS BEEN UNAMBIGUOUSLY MENTIONED IN INQUIRY REPORT DATED 22. 03.2012 SIGNED BY THE SHO CONCERNED, THAT THE FIRE TOOK PLACE IN THE ROOM OF WORSHIP AND LED TO THE DESTRUCTION OF DOCUMENTS, VOUCHERS AND AROUND 100 B OOKS AMONG OTHER ITEMS SUCH AS ALMIRAHS, FAX MACHINE, COMPUTER, WORS HIP ITEMS ETC. THE SAME FACTS ARE REPEATED IN THE INVESTIGATION REPORT DATE D 28.03.2012 OF THE ASI, POLICE SH. BALBIR SHARMA. THE FACT THAT POLICE HAS DONE FURTHER INVESTIGATION ENTRUSTING THE CASE TO SH. BALBIR SHARMA, ASI IS ME NTIONED IN THE 'ROJNAMCHA', WHICH IS ALSO AUTHENTICATED BY THE SIG NATURE OF THE SHO CONCERNED. BASED ON THESE DOCUMENTS IT IS QUITE CL EAR THAT THE FIRE ON 14.03.2012 GUTTED THE VOUCHERS, RECEIPTS ETC. AMON GST OTHER ITEMS. IT IS 5 ITA NO. 1077/JP/2016. M/S KAMAKSHA MAA SHAILENDRA BABA KAMDHENU SEVA SANSTHAN TRUST. FURTHER STATED BY THE ASSESS THAT THE LEGAL ADVISOR OF THE TRUST USED TO VISIT TWICE A MONTH AND NOTE DOWN ALL TRANSACTIONS AND EN TER THE SAME IN HIS COMPUTER IN 'TALLY' SOFTWARE ON THE BASIS OF RECEIP TS FOR DONATIONS AND VOUCHERS/BILLS FOR EXPENSES, WHICH SUBSEQUENTLY GOT DESTROYED IN FIRE. HOWEVER, THE AUDIT WAS COMPLETED ON THE BASIS OF TH E BOOKS OF ACCOUNT SO MAINTAINED, SINCE THESE WERE BASED ON THE RECEIPT A ND VOUCHERS. THE ASSESSEE HAS CONTENDED THAT THE NAMES AND ADDRESSES OF DONORS WERE ALSO MAINTAINED IN THE BOOKS OF ACCOUNT MAINTAINED ON CO MPUTER. IT WAS HOWEVER SEEN THAT THE COMPUTERIZED BOOKS ONLY CONTAIN THE N AME AND TOWN OF RESIDENCE OF THE DONOR AND DOES NOT CONTAIN THE FUL L POSTAL ADDRESS. BE THAT AS IT MAY, THE COMPLETE DETAILS WERE CLAIMED TO BE MAINTAINED IN THE DONATION RECEIPTS WHICH GOT DESTROYED IN FIRE. IT IS SEEN THAT DURING THE ASSESSMENT FOR A. Y. 2011-2012 ALSO, THE SAME ISSUE REGARDING DESTRUCTION OF RECORDS IN FIRE CAME UP BEFORE THE AO, WHO PASSED THE ORDER U/ S 143 (3) ON 16.01.2014, BY WHICH TIME THE FIRE INCIDENT HAD TAKEN PLACE. H OWEVER, THE AO ACCEPTED THE FACT OF FIRE AS POINTED OUT BY THE ASSESSEE IN ITS SUBMISSIONS DURING ASSESSMENT PROCEEDINGS FOR A. Y 2011-12. ACCORDING LY, NO DISALLOWANCE OR ADDITION WAS MADE IN A. Y. 2011-12. ALTHOUGH THE A BOVE STATED FACTS ARE SUFFICIENT TO ACCEPT THE DESTRUCTION OF RELEVANT DO CUMENTS IN FIRE, THE ASSESSEE HAS ALSO PRODUCED A CERTIFIED COPY OF THE RELEVANT NOTING IN 'AGNISAHAYATA' REGISTER MAINTAINED BY THE TEHSILDAR, NAWALGARH, AC CORDING TO WHICH THE ASSESSEE' CASE WAS , ON SUBSEQUENT INQUIRIES, FOUND TO BE GENUINE AND WAS APPROVED FOR ASSISTANCE BY THE STATE GOVERNMENT AS PER C. R. F. (N. C. C. F.) NORMS, WHICH INDEPENDENTLY ESTABLISHES THE VERACITY OF THE APPELLANT'S CONTENTIONS. AS REGARDS THE AO'S CONTENTION RELATI NG TO NON-PRODUCTION OF RECEIPTS AND VOUCHERS RELATING TO THE POST-FIRE PER IOD, IT IS NOTED FROM THE CORRESPONDENCE WITH THE ASSESSEE AND SUBMISSIONS OF THE ASSESSEE DURING ASSESSMENT PROCEEDINGS THAT SUCH DETAILS WERE NOT C ALLED FOR BY THE AO SPECIFICALLY. IT IS THEREFORE HELD THAT THE ASSESS EE WAS UNABLE TO PRODUCE THE RELEVANT RECEIPTS AND VOUCHERS RELATING TO THE PERI OD BEFORE FIRE, DUE TO THEIR LOSS IN THE FIRE INCIDENT AND AS A RESULT IT WAS IM POSSIBLE TO PRODUCE SUCH 6 ITA NO. 1077/JP/2016. M/S KAMAKSHA MAA SHAILENDRA BABA KAMDHENU SEVA SANSTHAN TRUST. DOCUMENTS. IN SIMILAR CIRCUMSTANCES, THE AO HAD AC CEPTED THE APPELLANT'S CONTENTIONS IN THE ASSESSMENT FOR A. Y. 2011-12. H ENCE THERE IS NO REASON TO DOUBT THE FIRE ACCIDENT AND TAKE A DIFFERENT STAND FOR THE YEAR UNDER CONSIDERATION. THEREFORE, THE TREATMENT OF DONATIO NS OF RS. 62,21,111 AS ANONYMOUS AND TAXING THE AMOUNT OF RS. 59,10,055, B EING EXCESS OVER THE ALLOWABLE 5 % DONATION U/S 115BBC, IS INCORRECT. S IMILARLY, THE AO'S ACTION IN TAXING THE BALANCE RECEIPTS OF RS. 6,10,456 UNDER T HE HEAD 'INCOME FROM OTHER SOURCES' WITHOUT ALLOWING ANY EXPENSES THEREO N AND DENYING THE BENEFIT OF EXEMPTION U/S 11 IS NOT IN ACCORDANCE WITH THE F INDINGS ABOVE. SINCE THE TOTAL RECEIPTS SHOWN BY THE ASSESSEE IS RS. 65,20,5 11 OUT OF WHICH THE SURPLUS IS RS. 9,05,890 WHICH IS LESS THAN 15 %, THE TAXABL E INCOME OF THE APPELLANT GETS REDUCED TO NIL. 4.4 FROM THE ABOVE ORDER OF THE LD. CIT(A), IT IS E VIDENT THAT THE LD. CIT(A) HAS ACCEPTED THE CONTENTION OF THE ASSESSEE ON THE BASI S THAT THE DETAILS OF TRANSACTIONS WERE RECORDED IN COMPUTER. IT IS ALSO CONTENDED TH AT THE AUDITOR HAS CERTIFIED THAT THE ACCOUNTS OF THE ASSESSEE PRESENTS TRUE AND FAIR PICTURE OF THE STATE OF FINANCIAL AFFAIR OF THE TRUST. AFTER CONSIDERING THE FACTS OF THE PRESENT CASE, WE ARE OF THE VIEW THAT THE LD. CIT OUGHT TO HAVE EXAMINED THE AUDITOR WHO HAD GIVEN THE AUDIT REPORT. THEREFORE, WE RESTORE THIS GROUND TO THE FILE OF TH E LD. CIT(A) FOR DECISION AFRESH. LD. CIT(A) WOULD DECIDE THE ISSUE AFTER EXAMINING T HE AUDITOR WHO HAS GIVEN THE AUDIT REPORT. SINCE, THE CLAIM OF THE ASSESSEE IS THAT THE SUPPORTING EVIDENCES I.E. BILLS AND VOUCHERS ANOTHER MATERIAL WERE DESTROYED IN FIRE. THEREFORE, IT WAS NECESSARY TO FIND OUT WHAT WAS THE BASIS OF THE AUD IT REPORT HAS GIVEN BY THE AUDITOR. GROUND NO. 1 OF THE REVENUES APPEAL IS A LLOWED FOR STATISTICAL PURPOSE. 5. APROPOS TO GROUND NO. 2 , LD. D/R VEHEMENTLY ARGUED THAT LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE DISALLOWANCE. 7 ITA NO. 1077/JP/2016. M/S KAMAKSHA MAA SHAILENDRA BABA KAMDHENU SEVA SANSTHAN TRUST. 5.1 ON THE CONTRARY, LD. COUNSEL FOR THE ASSESSEE S UPPORTED THE ORDER OF THE LD. CIT(A). 5.2 WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD. THE CONTENTION WAS MADE BY THE AO TREATING THE AMOUNT AS INCOME FROM OTHER SOURCES. THIS ISSUE IS ALSO RELATED TO GROUN D NO. 1. THEREFORE, WE RESTORE THIS GROUND TO THE FILE OF THE LD. CIT(A) FOR DECISION A FRESH. 6. IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO. 1077/JP/2016 IS ALLOWED FOR STATISTICAL PURPOSE. ORDER IS PRONOUNCED IN THE OPEN COURT ON FRIDAY, THE 11 TH DAY OF AUGUST 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 11/08/2017. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- INCOME-TAX OFFICER (EXEMPTION), W ARD-2, JAIPUR. 2. THE RESPONDENT M/S M/S KAMAKSHA MAA SHAIL ENDRA BABA KAMDHENU SEVA SANSTHAN TRUST, MUKUNDGARH, JHUNJHUNU. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 1077/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 8 ITA NO. 1077/JP/2016. M/S KAMAKSHA MAA SHAILENDRA BABA KAMDHENU SEVA SANSTHAN TRUST.