Panchi Bibi Wakf Estate, Kolkata V. DDIT (E)-II, Kolkata, Kolkata

ITA 1198/KOL/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5069 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 14-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUDIPA GUHA JCITSRDR
• Keywords: Business income; Charitable institution; Deemed to accrue or arise in india; Question of law; Benefit of exemption
• Section: 12A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1193 TO 1198 / KOL / 2012 ASSESSMENT YEARS :2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE FEROZE BELAL (MUTWALLI) 54/2, RAFI AHMED KIDWAI ROAD, 6 TH FLOOR, P.O. & P.S. PARK STREET, KOLKATA-700 016 [ PAN NO.AAATP 8292 K ] V/S . DDIT(E)-II, CIT(A)-XIV, 54/1, RAFI AHMED KIDWAI ROAD, KOLKATA- 700016 /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI SUBASH AGARWAL, ADVOCATE /BY REVENUE MS. SUDIPA GUHA, JCIT-SR-DR /DATE OF HEARING 29-01-2016 ! /DATE OF PRONOUNCEMENT 29-02-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THESE SIX APPEALS BY SAME ASSESSEE ARE ARISING OUT OF ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS)-XIV, KOLKATA I N APPEALS NO.382- 377/CIT(A)-XIV/KOL/10-11 DATED 29.06.2012. ASSESSME NTS WERE FRAMED BY DIT(E)-II, KOLKATA U/S 143(3)/147/13 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDERS DATED 31. 12.2010 FOR ASSESSMENT YEARS 2003-04 TO 2008-09 RESPECTIVELY. ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 2 2. AT THE OUTSET, IT WAS OBSERVED THAT THIS APPEAL HAS BEEN REMANDED BACK TO THE TRIBUNAL BY THE HON'BLE JURISDICTIONAL HIGH COURT IN TERMS OF G.A. NO. 2180 OF 2014 DATED 06.08.2014 WITH REGARD TO THE FO LLOWING QUESTION OF LAW RAISED BY THE ASSESSEE :- I) WHETHER THE TRIBUNAL WAS JUSTIFIED IN LAW IN DE CIDING THE APPEALS WITHOUT GIVING ADEQUATE/PROPER OPPORTUNITY OF HEARING TO TH E APPELLANT? II) WHETHER AND IN ANY EVENT THE PROVISION OF REMUN ERATION AND RESIDENCE AS PART OF SUCH REMUNERATION TO THE MUTWALLIS UNDER TH E SCHEME OF MANAGEMENT OF THE WAKF IS HIT BY THE PROVISIONS OF SECTION 13( 2) READ WITH SECTION 13(3) OF THE INCOME TAX ACT, 1961 WHEN THE WAKF WAS CREATED BEFORE THE COMMENCEMENT OF THE SAID ACT AND THE FIRST PROVISO TO SECTION 13(1)(C) IS APPLICABLE IN ITS CASE? III) WHETHER THE PROVISIONS OF SECTION 11(4A) OF TH E INCOME TAX ACT, 1961 ARE APPLICABLE IN RESPECT OF RUNNING OF MEHMANSARI INCI DENTAL TO THE ATTAINMENT OF THE OBJECTIVES OF THE WAKF AND NOT AS A BUSINESS AC TIVITY AND THE APPELLANT IS ENTITLED TO EXEMPTION UNDER SECTION 11 OF THE SAID ACT? AS PER THE DIRECTION IN ABOVE GA NO. 2180 OF 2014 O F THE HON'BLE JURISDICTIONAL HIGH COURT, ASSESSEE CAME SECOND TIME BEFORE US ON THE FOLLOWING COMMON GROUNDS OF ITS APPEALS INVOLVING SIX ASSESSMENT YEA RS, THEREFORE, WE HEARD THEM TOGETHER AND DEEM IT APPROPRIATE TO DISPOSE OF THEM BY WAY OF THIS COMMON ORDER. SHRI SUBASH AGARWAL, LD. AUTHORIZED REPRESENTATIVE APPEARING ON BEHALF OF ASSESSEE AND MS. SUDIPTA GUHA, LD DEPARTMENTAL REPR ESENTATIVE APPEARING ON BEHALF OF REVENUE. 3. IN ALL THESE APPEALS, ASSESSEE HAS CHALLENGED TH E ORDERS OF LD. CIT(A) WHEREBY LD. CIT(A) CONFIRMED THE ORDER OF ASSESSING OFFICER. EXCEPT THE FIGURE, THE FACTS IN ALL THE APPEALS ARE SAME, THER EFORE WE ARE TAKING THE FACTS OF THE CASE FOR THE AY 2008-09 AS A LEAD ( ITA NO.1198/KOL/2012 ) CASE FOR THE SAKE OF CONVENIENCE AND PASSING A CONSOLIDATED ORDE R FOR ALL THE APPEALS. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- ITA NO. 1198/KOL/2012 (A.Y 08-09 ). ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 3 I. FOR THAT THE LD. C.I.T.(A) GROSSLY ERRED BOTH I N LAW AND IN FACT IN DENYING EXEMPTION UNDER SECTION 11 OF THE ACT AND HIS PURPO RTED FINDINGS IN THAT BEHALF ARE WHOLLY ARBITRARY, ERRONEOUS, UNREASONABL E AND PERVERSED. II. FOR THAT THE LD C.I.T.(A) GROSSLY ERRED BOTH I N LAW AND IN FACT IN HOLDING THAT THE RUNNING OF THE MEHMANSARI WAS A BUSINESS ACTIVI TY OR NOT INCIDENTAL TO THE ATTAINMENT OF THE OBJECTIVES OF THE WAKF OR THAT TH E ASSESSEE SHOULD HAVE MAINTAINED SEPARATE BOOKS OF ACCOUNT IN RESPECT THE REOF OR WAS HIT BY SECTION 11(4A) OF THE ACT AND THEREFORE BENEFIT U/S II IS N OT APPLICABLE TO THE ASSESSEE, WITHOUT CONSIDERING THE FACT THAT MEHMANS ARI WAS A PROPERTY HELD IN TRUST BEING A PART OF THE CORPUS OF THE WAKF AND THAT THE ACTIVITY OF THE MEHMANSARI IS THE PRINCIPAL OBJECT BEHIND THE CREAT ION OF THE WAKF. III. FOR THAT THE LD. C.I.T.(A) GROSSLY ERRED BOTH IN LAW AND IN FACT BY CONFIRMING ADDITION OF RS.1,32,744/- TOWARDS MUTWALLI ALLOWANC E ON THE ALLEGED GROUND THAT THE PRESENT MUTWALLIS ALLEGEDLY BEING PERSONS SPECIFIED IN SECTION 13(3) OF THE ACT PAYMENT OF REMUNERATION OR PROVISION FOR ACCOMMODATION TO THEM WAS IN VIOLATION OF SECTION 13(2) OF THE ACT. IN TH E PROCESS THE C.I.T.(A) FAILED TO CONSIDER THAT THE ALLOWANCE TO MUTWALLI AND PROV ISION FOR ACCOMMODATION FOR THEM WAS IN COMPLIANCE TO THE SCHEME OF MANAGEM ENT OF THE WAKF WHICH WAS CREATED BEFORE THE COMMENCEMENT OF THE ACT AND THEREFORE, BY VIRTUE OF FIRST PROVISO TO SECTION 13(1)(C) SUCH ALLOWANCE OR ACCOMMODATION TO MUTWALLI IS NOT HIT BY THE PROVISIONS OF SECTION 13(2) READ WITH SECTION 13(3) OF THE INCOME TAX ACT 1961 IV. FOR THAT THE LD. C.I.T.(A) GROSSLY ERRED BOTH I N LAW AND IN FACT IN CONFIRMING ADDITION OF RS.14,11,200/- AS DEEMED INCOME ON THE ALLEGED GROUND THAT PROVISIONS FOR RENT FREE ACCOMMODATION FOR THE MUTW ALLIS IS IT BY THE PROVISIONS OF SECTION 13(2) READ WITH SECTION 13(3) OF THE ACT WITHOUT CONSIDERING THAT THE MUTWALLIS WERE AUTHORIZED UNDER THE MANDATORY RULE FRAMED BY THE HON'BLE HIGH COURT AT CALCUTTA IN RESPECT OF THE ASSESSEE W AKF WHICH WAS CREATED MUCH PRIOR TO THE COMMENCEMENT OF THIS ACT, TO ENJO Y RENT FREE ACCOMMODATION AND AS SUCH NO ADDITION ON ACCOUNT OF DEEMED INCOME SHOULD HAVE BEEN MADE. V. FOR THAT THE LD. C.I.T.(A) GROSSLY ERRED BOTH IN LAW AND IN FACT IN NOT GIVING RELIEF TO THE ASSESSEE ON ACCOUNT OF WRONGFUL ACTIO N OF THE ASSESSING OFFICER IN SUBJECTING TO TAX THE EXEMPT MUTUAL FUND INCOME. VI. FOR THAT FURTHER AND IN ANY EVENT AND WITHOUT P REJUDICE TO THE AFORESAID, THE COMPUTATION OF INCOME AS MADE BY THE ASSESSING OFF ICER AND CONFIRMED BY THE LD. C.I.T.(A) AT RS.27,18,767/- IS CONTRARY TO THE PROVISION OF THE ACT. VII. FOR THAT THE LD. C.I.T.(A) GROSSLY ERRED BOTH IN LAW AND IN FACT IN NOT ALLOWING DUE CREDIT IN RESPECT OF THE TDS FOR THE A SSESSMENT YEAR 2008-09. VIII. FOR THAT THE ASSESSEE DENIES LIABILITY TO PAY TAX COMPUTED AND INTEREST UNDER SECTION 234(B) CHARGED IN THE ASSESSMENT. ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 4 FIRST WE TAKE UP GROUND NO. 1 & 2, THE COMMON RAISE D BY ASSESSEE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN CONFIRMING THIS ORDER OF THE ASSESSING OFFICER BY DISALLOWING THE EXEMPTION U/S 11 OF THE ACT FOR THE INCOME ARISING FROM THE GUEST HOUSE ON ACCOUNT OF VIOLATION OF THE PROVISIO NS OF SEC. 11(4A) OF THE ACT. 4. FACTS OF THE CASE ARE THAT ASSESSEE IN THE PRESE NT CASE IS A WAKF WHICH WAS EXECUTED BY A DEED SOMETIME IN THE YEAR 1 803 BY LT. PANCHI BIBI BY ASSIGNING, AND DEDICATING 2 BIGHAS 5 COTTAHS OF LAND FOR MANAGEMENT AND EXPENSES OF THE MOSQUE AND THE MEHMANSARIA AND FOR TWO IDS AND THE 10 TH DAY OF MOHARRAM. THE SAME DEED WAS LATER ENROLLED U NDER BENGAL WAKF ACT 1934. THE INCOME OF THE ASSESSEE-TRUST INTER ALIA W AS COMPRISING OF GUEST HOUSE INCOME FOR AN AMOUNT OF 10,97,035/- FOR THE RELEVANT AY 2008-09. THE INCOME FROM THE GUEST HOUSE WAS SHOWN AS BUSINESS I NCOME OF THE ASSESSEE. FOR THIS INCOME OF GUEST HOUSE THE ASSESS EE CLAIMED THE EXEMPTION U/S 11 OF THE ACT. DURING THE COURSE OF A SSESSMENT, AO FOUND THAT ASSESSEE HAS NOT MAINTAINED THE SEPARATE PROFIT AND LOSS ACCOUNT IN RESPECT TO THE INCOME EARNED FROM GUEST HOUSE. THE FACT OF NON MAINTENANCE OF SEPARATE PROFIT AND LOSS ACCOUNT IN RESPECT OF GUES T HOUSE INCOME WAS ALSO ADMITTED BY MUTAWALI OF THE WAKF. SO AO FOUND THAT THERE WAS A CLEAR VIOLATION OF PROVISIONS OF SEC. 11(4A) OF THE ACT. AS PER THIS SECTION THE BENEFIT OF INCOME TAX EXEMPTION AS PROVIDED UNDER SECTION 1 1(1) OF THE ACT SHALL NOT BE AVAILABLE FOR THE BUSINESS UNDERTAKING UNLESS TH E BUSINESS IS INCIDENTAL TO THE ATTAINMENT OF OBJECTIVES OF THE TRUST AND SEPAR ATE BOOKS OF ACCOUNTS ARE MAINTAINED BY SUCH TRUST IS RESPECT OF SUCH BUSINES S. IN THE INSTANT CASE THE ASSESSEE FAILS TO MAINTAIN THE SEPARATE BOOKS OF AC COUNTS AS REQUIRED UNDER SECTION 11(4A) OF THE ACT. ACCORDINGLY THE AO DISAL LOWED THE EXEMPTION U/S.11 OF THE ACT. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHERE ASSESSEE SUBMITTED THAT MOSQUE AND GUEST HOUSE (GH FOR SHORT) WAS PART OF THE WAKF ESTATE AND NOT FOR SEPARATE USE FOR THE PU RPOSE OF BUSINESS. THE GH ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 5 WAS USED FOR THE PURPOSE OF PIOUS, RELIGIOUS AND CH ARITABLE ACTIVITIES. THE ISSUE RAISED BY ASSESSING OFFICER WITH REGARD TO TH E APPLICATION OF SECTION 11(4A) OF THE ACT HAS TO BE CONSIDERED IN THE CONTE XT OF DIFFERENCE BETWEEN PROPERTY HELD IN FAVOUR OF ASSESSEE-TRUST AND PROFI T ARISEN TO ASSESSEE-TRUST OUT OF BUSINESS. THIS SEC. 11(4A) OF THE ACT IS NOT APPLICABLE IN THE INSTANT CASE AS THE PROPERTY IS HELD IN ASSESSEE-TRUST. THE GA WAS ALWAYS A PART OF THE WAKF ESTATE. SO THE ACCOUNTS ARE AUDITED OF WAK F ESTATE. HOWEVER, LD. CIT(A) REJECTED THE PLEA TAKEN BY ASSESSEE-TRUST ON THE GROUND THAT THE ACTIVITY OF RUNNING THE GUEST HOUSE IS A COMMERCIAL ACTIVITY. THE RECEIPTS FROM THE GA ARE SUBSTANTIAL IN NATURE AND THE ASSESSEE F AILED TO PROOF THAT THE INCOME HAS BEEN UTILIZED FOR THE OBJECT OF WAKF. TH ERE WAS ALREADY SURPLUS FUND WITH THE WAKF BESIDES INCOME OF THE GA. NO DOC UMENTARY PROOF WAS PRODUCED THAT THE ACTIVITY OF GA IS NOT COMMERCIAL AND IT DOES NOT CONSTITUTE THE BUSINESS. NO SEPARATE BOOKS OF ACCOUNT WERE MAI NTAINED BY ASSESSEE- TRUST AS REQUIRED IN TERMS OF SEC. 11(4A) OF THE AC T. AS THE OBJECT OR ACTIVITY OF GA FOR PROVIDING THE REST OF GA TO THE POOR PILGRIM AGES THEN ITS NAME SHOULD BE REST HOUSE INSTEAD OF VICTOR GUEST HOUSE. THE GA WAS OPENED TO ALL GUESTS IRRESPECTIVE OF PILGRIMAGES OR NOT. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSE E PREFERRED SECOND APPEAL BEFORE US. 6. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PART IES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. LD. AR SUBMITTED WRI TTEN SUBMISSIONS AND PAPER BOOK WHICH ARE RUNNING PAGES 1 TO 96 AND VARI OUS CASE LAWS RUNNING PAGES 1 TO 119 RESPECTIVELY. LD. AR SUBMITTED THAT PANCHI BIBI ESTATE WAS CREATED BY THE LT. WAKIF PANCHI BIBI BY A WAKF DEED EXECUTED SOMETIME IN THE YEAR 1803 BY ASSIGNING AND DEDICATING 2 BIGHAS 5 CO TTAHS OF LAND FOR MANAGEMENT AND EXPENSES OF THE MOSQUE AND THE MEHMA NSARIA AND FOR TWO IDDS AND THE 10 TH DAY OF MOHARRAM. THE SAID WAKF WAS ENROLLED UNDER THE BENGAL WAKF ACT 1934 (THIS FACT IS STATED IN THE HO N'BLE JURISDICTIONAL HIGH COURTS ORDER DATED 22.12.1961). THE MOSQUE AND THE MEHMANSARI ARE PART OF ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 6 THE WAKF ESTATE AND ARE NOT SEPARATELY USED FOR THE PURPOSE OF BUSINESS. BOTH THE MOSQUE AND MEHMANSARI ARE DEDICATED IN THE NAME OF ALLAH FOR PIOUS, RELIGIOUS AND CHARITABLE PURPOSE WHICH IS IMPLICATE D BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE AFORESAID ORDER DA TED 22.12.1961. THE CONTENTION OF THE AO THAT THE PROVISIONS OF SEC. 11 (4A) WERE APPLICABLE IN THE INSTANT CASE IS UNJUSTIFIED AND AGAINST THE PROVISI ON OF LAW. THE AO IN THE INSTANT CASE, HAS OPINED THAT THE MEHMANSARAI RUN B Y THE WAKF-ESTATE WAS NOT MAINTAINING SEPARATE BOOKS OF ACCOUNTS AND AS S UCH THE BENEFIT U/S 11 WAS NOT AVAILABLE TO IT. IT IS SUBMITTED BY LD AR T HAT THE OBJECT OF RUNNING THE MEHMANSARAI IS TO PROVIDE REST HOUSE TO THE PILGRIM S AND, WHEN VACANT, TO NON-PILGRIMS ALSO BUT THE OBJECT WAS NOT TO EARN AN Y PROFIT OUT OF SUCH ACTIVITY AND MEHMANSARAI IS NOT AT ALL A BUSINESS ACTIVITY. FROM THE COMPOSITE INCOME AND EXPENDITURE ACCOUNT FOR THE FY 2007-08 ON 31.03 .2008. IT CAN BE SEEN THAT THE GROSS RECEIPT FROM THE MEHHMMANSARAI I.E., GUEST HOUSE IS AT RS.10,97,037/-. IT IS PERTINENT TO NOTE HERE THAT T HE GUEST HOUSE IS AT 4 TH AND 5 TH FLOOR OF THE WAKF-ESTATE IN QUESTION, 1 ST AND 3 RD FLOOR ARE SOLELY TENANTED AND 6 TH FLOOR IS IN THE OCCUPATION OF THE MUTWALLIS. LD. AR SUBMITTED THAT THE GROSS RECEIPTS FROM THE MEHMANSARAI IS LESS THAN RS.1 LAC PER MONTH WHEREAS THE RENTAL RECEIPTS OF THE WAKF-ESTATE IS AT RS.20,10,8 65/- FOR THE YEAR UNDER CONSIDERATION. IT CAN BE ALSO SEEN FROM THE DEBIT S IDE OF I & E THAT SUBSTANTIAL COMPOSITE AND EXCLUSIVE EXPENSES TOWARDS THE MEHMAN SARAI AS BELOW:- (A) REPAIR AND RENEWAL RS.1,20,728/- (B) SALARY & WAGES RS.2,73,080/- (C) MEHMANSARAI RS. 40,710/- (D) ELECTRICITY RS.2,81,539/- (E) GENERATOR RS. 21,275/- (F) LIFT MAINTENANCE RS. 18,959/- (G) KMC TAXES RS.1,11,942/- (H) MATERIALS, MISTRI AND LABOUR RS.2,31,952/- (I) ROOM UPKEEP RS.3,61,675/- RS.10,68,052/- ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 7 FROM THE ABOVE, IT S EVIDENT THAT THERE ARE NO NOMI NAL EXPENSES AGAINST THE GROSS RECEIPTS FROM MEHMANSARAI AS CONTENDED BY THE AUTHORITIES BELOW. LD. AR FURTHER SUBMITTED THAT VARIOUS COURTS HAVE ALSO HELD THAT WHEN THE PREDOMINANT OBJECT OF THE TRUST IS TO CARRY OUT AN OBJECT OF GENERAL PUBLIC UTILITY AND NOT TO EARN PROFIT THEN IT WOULD NOT LOSE ITS C HARACTER OF A CHARITABLE/RELIGIOUS PURPOSE MERELY BECAUSE SOME PR OFIT WAS ARISING FROM THE SAID ACTIVITY. IT IS FURTHER SUBMITTED THAT LD. CIT (A) IN HIS FINDING WAS OVERLY INFLUENCED BY THE TERMINOLOGY USED BY THE ASSESSEE IN RESPECT OF THE MEHMANSARAI VIZ., VICTORIA GH WHEN IT IS A SETTLED POSITION OF LAW THAT SUBSTANCE OF A MATTER IS IMPORTANT AND NOT THE NOME NCLATURE. WITHOUT PREJUDICE TO THE ABOVE, IT IS HUMBLY SUBMITTED BY L D. AR THAT AO HAD MISTAKENLY TREATED THE MEHMANSARAI RUN BY THE WAKF- ESTATE AS A BUSINESS INCIDENTAL TO THE WAKF. IT IS SUBMITTED THAT THE ME HMANSARAI IS A PROPERTY/BUSINESS HELD UNDER THE TRUST AND AS SUCH THE PROVISIONS OF SEC. 11(4A) OF THE ACT IS NOT APPLICABLE. DISTINCTION HA S TO BE DRAWN BETWEEN A PROPERTY HELD IN TRUST AND PROFIT AND GAINS ARISING TO THE TRUST OUT OF BUSINESS. THE PROVISIONS OF SEC. 11(4A) WILL NOT APPLY IN A C ASE WHERE THE PROPERTY ITSELF IS HELD UNDER THE TRUST AND AS SUCH THE TRUST WOULD BE ELIGIBLE FOR EXEMPTION U/S 11 OF THE ACT. IN THE INSTANT CASE, IT IS THE U NDISPUTED FACT THAT MEHMANSARAI IS THE PROPERTY HELD UNDER THE TRUST AS EVIDENCED BY THE WAKF DEED EXECUTED BY LT. PANCHI BIBI. LD. AR FURTHER RE LIED ON VARIOUS JUDGMENTS WHICH ARE DISCUSSED HEREUNDER:- A) CIT VS. DHARMODAYAM CO. 225 ITR 686 (KER) [FOLLO WING THE HONBLE SUPREME COURT JUDGMENT IN THE CASE OF CIT VS. DHARM ODAYAN CO. 109 ITR 527 (SC)] B) THANTHI TRUST V. CENTRAL BOARD OF DIRECT TAXES A ND OTHERS 213 ITR 639 (MAD) IT IS FURTHER SUBMITTED THAT THE WAKF-ESTATE HAS BE EN GRANTED EXEMPTION U/S 12A VIDE A CERTIFICATE OF REGISTRATION DATED 27.01. 1997 ISSUED BY DIT (EXEMPTION). FURTHER, THE INCOME OF THE WAKF-ESTATE HAS BEEN SET ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 8 APART/ACCUMULATED AS THE PROVISIONS OF THE ACT FOR THE PURPOSES/OBJECTS OF THE WAKF AS PER THE CAS CERTIFICATE IN FORM NO. 10. TH US, FROM THE ABOVE, IT IS SUBMITTED THAT THE EXEMPTION DISALLOWED BY THE AO A ND LATER ON SUSTAINED BY LD. CIT(A) IS UNJUSTIFIED AND AGAINST THE PROVISION OF LAW. IN THE PRESENT CASE, THE PROVISIONS OF SEC. 11(4A) ARE NOT APPLICABLE AN D THUS THE NON- MAINTENANCE OF SEPARATE BOOKS OF ACCOUNTS CANNOT BE A GROUND FOR DISALLOWING THE CLAIM EXEMPTION U/S. 11 OF THE ACT. 7. ON THE OTHER HAND, LD. DR SUBMITTED THAT THE ROO MS RENT CHARGED FROM THE CUSTOMERS/PILGRIMAGES CAN BE COMPARED WITH OTHE R GH LOCATED IN THE SAME VICINITY. SO THE ARGUMENT RAISED BY LD. AR THA T THE CHARGE FOR ROOMS RENT AT A NOMINAL RENT IS NOT ACCEPTABLE. THEREFORE , THE RUNNING OF GH IS SOLELY FOR THE PURPOSE OF BUSINESS ACTIVITY AND THE BENEFI T OF SEC. 11(4A) CANNOT BE GIVEN TO WAKF ESTATE AS IT FAILED TO COMPLY WITH TH E PROVISION OF SEC. 11(4A) OF THE ACT. LD. DR VEHEMENTLY RELIED ON THE ORDERS OF AUTHORITIES BELOW. 8. FROM THE AFORESAID DISCUSSION, WE FIND THAT ASSE SSEE IS A WAKF ESTATE AND HAVING ITS REGISTRATION U/S. 12A OF THE ACT. TH E ASSESSEE HAS DECLARED INCOME FROM THE GUEST HOUSE WHICH WAS MANAGED IN TH E NAME & STYLE OF VICTORIA GUEST HOUSE. WE FIND THAT DURING THE ASSES SMENT PROCEEDINGS, AO FOUND THAT ASSESSEE IS RUNNING A BUSINESS ACTIVITY OF THE GUEST HOUSE BUT NOT MAINTAINING SEPARATE BOOKS OF ACCOUNT AS REQUIRED U /S 11(4A) OF THE ACT. THEREFORE, THE EXEMPTION CLAIMED BY ASSESSEE WITH R EGARD TO GH INCOME WAS DENIED BY AO. HOWEVER WE FIND THAT THE BUSINESS IS HELD UNDER TRUST AND IT IS NOT SEPARATE FROM THE ASSESSEE. SO THE PROVISIONS O F SECTION 11(4A) ARE NOT APPLICABLE IN THE INSTANT CASE. WE ARE PUTTING OUR RELIANCE IN THE CASE LAW OF HONBLE KERALA HIGH COURT IN THE CASE OF CIT V. DHA RMODAYAM CO. 225 ITR 686 (KER), HEAD-NOTE; THE ASSESSEE WHICH WAS ENGAGED IN CONDUCTING KURIE S (CHIT FUNDS) WAS BEING HELD TO BE A CHARITABLE INSTITUTION ENTITLED TO CLAIM EXEMPTION UNDER SECTION 11(1) OF THE INCOME-TAX ACT, 1961, TILL THE ASSESSMENT YEAR 1983-84. THE ASSESSEE HAD COMPUTED ITS NET PROFIT FROM KURY BUSINESS AT RS.2,64,939 AND DEDUCTED THE AMOUNT SPENT ON CHARITY, SCHOLARSH IPS, ETC., FROM THE ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 9 BUSINESS INCOME. FOR THE ASSESSMENT YEAR 1984-85, T HE ASSESSING OFFICE TOOK THE VIEW THAT THE COMPANY WAS NOT ELIGIBLE TO EXEMPTION UNDER SECTION 11(1) IN VIEW OF THE INSERTION OF SUB-SECTION (4A) IN SECTION 11 BECAUSE THE DEDUCTIONS CLAIMED BY THE ASSESSEE WERE NOT ADMISSI BLE AND THE ENTIRE INCOME WOULD BE SUBJECT TO TAX AS INCOME FROM BUSIN ESS. THE COMMISSIONER (APPEALS) UPHELD THE ORDER OF THE ASSESSING OFFICER . THE TRIBUNAL ON FURTHER APPEAL, HELD THAT THE KURY BUSINESS ITSELF WAS HELD IN TRUST BY THE ASSESSEE ANT IT COULD NOT BE DENIED THE BENEFIT OF EXEMPTION UND ER SECTION 11(1) IN RESPECT OF THE INCOME FROM THE KURY BUSINESS. ON A REFERENC E, THE ASSESSEE CONTENDED THAT THE PROVISIONS OF SECTION 11(4AA) WO ULD NOT APPLY IN RESPECT OF BUSINESS WHICH WAS HELD UNDER TRUST FOR PROMOTION O F CHARITABLE OBJECTS: HELD , THAT A READING OF SUB-SECTION (4A) OF SECTION 11 WOULD SHOW THAT IT DOES NOT DEAL WITH THE INCOME BEING PROFITS AND GAINS OF BUSINESS WHICH IS HELD IN TRUST FOR PUBLIC RELIGIOUS PURPOSES OR A BUSINESS C ARRIED ON BY AN INSTITUTION WHOLLY OR CHARITABLE PURPOSES. IF THE BUSINESS OF K URY IS TO BE TREATED AS A BUSINESS CARRIED ON BY THE ASSESSEE FOR THE PURPOSE OF ACHIEVING ITS BUSINESS OBJECTS, THE ASSESSEE WOULD HAVE TO SATISFY THE CON DITIONS CONTAINED IN CLAUSES (A) AND ((B) OF SECTION 11(4A) TO BE ELIGIB LE FOR EXEMPTION. BUT IF THE KURY BUSINESS IS HELD IN TRUST THE INCOME THEREFROM WOULD NOT BE GOVERNED BY SUB-SECTION (4A). HOWEVER, IT HAD BECOME CONCLUSIVE THAT THE KURY BUSINESS WAS HELD IN TRUST BY THE ASSESSEE AND THAT IT WAS N OT A BUSINESS CARRIED ON BY THE ASSESSEE. BY SUB-SECTION (4A) THE BENEFIT DUE T O AN ASSESSEE IN THE CASE OF AN INCOME FROM A BUSINESS HELD IN TRUST WAS EXTE NDED TO AN INCOME FROM A BUSINESS CARRIED ON BY IT ON ITS SATISFYING THE CON DITIONS LAID DOWN UNDER CLAUSES (A) AND (B). THE TRIBUNAL WAS RIGHT IN HOLD ING THAT THE ASSESSEE WAS ENTITLED TO CLAIM EXEMPTION UNDER SECTION 11(1) OF THE INCOME-TAX ACT, 1961, IN RESPECT OF ITS INCOME FROM THE KURY BUSINESS. SIMILAR WE ALSO FIND THE SUPPORT FROM THE CASE LAW OF HONBLE MADRAS HIGH COURT IN THE CASE OF THANTHI TRUST V. CBDT AND OTHERS (1995)213 ITR 639 (MAD), WHERE IT WAS HELD THAT : AS ALREADY POINTED OUT ACCORDING TO SECTION 11(1)( A) OF THE ACT INCOME DERIVED FROM PROPERTY HELD UNDER TRUST (WHICH INCLU DES A BUSINESS UNDERTAKING), WHOLLY FOR CHARITABLE OR RELIGIOUS PU RPOSES TO THE EXTENT TO WHICH SUCH INCOME IS APPLIED TO SUCH PURPOSES IN INDIA, S HALL NOT BE INCLUDED IN THE TOTAL INCOME OF THE PREVIOUS YEAR OF THE PERSON REC EIVING THE SAME. IT IS CLEAR THAT SECTION 11(1)(A) CONCERNS ITSELF WITH INCOME D ERIVED FROM THE PROPERTY HELD UNDER TRUST WHICH INCLUDES BUSINESS UNDERTAKIN G SO HELD, WHOLLY FOR CHARITABLE OR RELIGIOUS PURPOSES, WHEREAS SUB-SECTI ON (4A) OF SECTION 11, DOES NOT CONCERN ITSELF WITH ANY INCOME DERIVED FROM PRO PERTY HELD UNDER TRUST FOR CHARITABLE PURPOSES, BUT ONLY CONCERNS ITSELF WITH INCOME BEING PROFITS AND GAINS OF BUSINESS CARRIED ON BY A TRUST WHOLLY FOR PUBLIC RELIGIOUS PURPOSES OR BUSINESS CARRIED BY AN INSTITUTION WHOLLY FOR CHARI TABLE PURPOSES. THUS, IT IS CLEAR THAT THE PROVISIONS OF SUB-SECTION (4A) CAN B E APPLIED ONLY TO INCOME BEING PROFITS AND GAINS OF BUSINESS CARRIED ON BY A TRUST, WHICH IS NOT HELD UNDER TRUST AND THE SAID SUB-SECTION (4A) CANNOT BE APPLIED TO A CASE WHERE THE BUSINESS UNDERTAKING ITSELF IS HELD UNDER TRUST FOR CHARITABLE PURPOSES AS IN ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 10 THE PRESENT CASE. THERE IS FORCE IN THE CONTENTION OF LEARNED SENIOR COUNSEL FOR THE PETITIONER THAT SUB-SECTION (4A) OF SECTION 11 WILL APPLY ONLY IN A CASE WHERE THE BUSINESS CARRIED ON BY THE TRUST IS NOT H ELD UNDER TRUST FOR A CHARITABLE PURPOSE, BUT THE SAID INCOME FROM BUSINE SS BEING THE PROFITS AND GAINS OF BUSINESS EARNED BY A TRUST CREATED WHOLLY FOR PUBLIC RELIGIOUS PURPOSES OR BY AN INSTITUTION IN SUCH A CASE, THE I NCOME WILL BE ELIGIBLE FOR EXEMPTION ONLY WHEN THE TWO CONDITIONS LAID DOWN IN CLAUSES (A) AND (B) OF SUB-SECTION (4A) OF SECTION 11 ARE SATISFIED. IN TH PRESENT CASE, INASMUCH AS THE BUSINESS CARRIED ON BY THE PETITIONER IS ITSELF HELD UNDER TRUST FOR PUBLIC CHARITABLE PURPOSES AND THE BUSINESS IS CARRIED ON ONLY FOR THE PURPOSES OF CARRYING ON THE CHARITABLE OBJECTS AS FOND BY THE D IVISION BENCH OF THIS COURT IN CIT V. THANTHI TRUST [1982] 137 ITR 735, THE PR OVISIONS OF SUB-SECTION (4A) OF SECTION 11 CANNOT HAVE ANY APPLICATION. SECTION 11(1)(A) GRANTS EXEMPTION TO INCOME DERIVED FROM PROPERTY HELD UNDER TRUST WH OLLY FOR CHARITABLE OR RELIGIOUS PURPOSES TO THE EXTENT INDICTED IN THAT S ECTION., WHEREAS SECTION 11(4A) DENIES EXEMPTION TO INCOME BEING PROFITS AND GAINS OF BUSINESS CARRIED ON BY A TRUST WHOLLY FOR PUBLIC RELIGIOUS P URPOSES OR AN INSTITUTION, UNLESS THE CONDITIONS PRESCRIBED IN CLAUSE (A) OR ( B) OF SUB-SECTION (4A) OF SECTION 11 ARE SATISFIED. SECTION 11(4A) HAS NO APP LICATION TO THE PETITIONER- TRUST AS IT IS NOT A TRUST WHOLLY FOR PUBLIC RELIGI OUS PURPOSES, BUT IT IS A TRUST CREATED FOR PUBLIC CHARITABLE PURPOSES. FROM THE ABOVE WE FIND THAT IT IS NOT DISPUTED THAT THE BUSINESS UNDERTAKING OF THE ASSESSEE IS HELD UNDER TRUST AND IT IS FOR THE ATTAINMENT OF THE OBJECTS OF THE TRUST. THE ASSESSEE HAS MAINTAINED ITS BOOKS OF ACCOUNTS AS A WHOLE AND GOT THEM DULY AUDITED. SINCE THE BUSINESS OF THE AS SESSEE IS HELD UNDER TRUST AND THERE IS NO SEPARATE BUSINESS ACTIVITY, SO THE ASSESSEE IS OUT OF THE PURVIEW OF THE PROVISIONS OF SECTION 11(4A) OF THE ACT. WE ARRIVED AT THIS CONCLUSION AFTER HAVING RELIANCE ON THE ABOVE CASE LAWS. THEREFORE IN OUR CONSIDERED VIEW WE ARE INCLINED TO REVERSE THE ORDE R OF AUTHORITIES BELOW BUT ASSESSEES GROUND IS ALLOWED. 9. COMING TO NEXT ISSUE RAISED BY ASSESSEE IN ITS G ROUND NO.3 IS THAT LD. CIT(A) ERRED IN CONFIRMING THE ACTION BY AO BY MAKI NG DISALLOWANCE OF 1,32,744/- TOWARDS SALARY/MUTWALLI ALLOWANCE. 9.1 DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO FOUND THAT THERE WERE THREE MUTAWALI AND ALL OF THEM WERE PAID REMUN ERATION @ 10% OF THE ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 11 GROSS RECEIPT OF THE WAKF ESTATE. OUT OF THREE MUTA WALI ONE MUTAWALI IS A LIEUTENANT IN INDIAN MILITARY SECOND IS ADVOCATE AN D REMAINING THIRD WAS THE PERSON WHO WAS LOOKING AFTER THE AFFAIRS OF WAKF ES TATE. THE AO FOUND THAT ALL THE MUTWALLIS ARE INTERESTED PERSONS IN TERMS OF SE C. 13(3) OF THE ACT THEREFORE THE PAYMENT OF REMUNERATION WILL BE SUBJECT TO COMP LIANCE OF SEC. 13(2) OF THE ACT. ON QUESTION PUT BY AO, THE ASSESSEE SUBMITTED THAT THREE MUTAWALI WERE APPOINTED SINCE 1988 BY THE ORDER OF BOARD OF WAKF ESTATE AND ALSO AS PER HON'BLE JURISDICTIONAL HIGH COURT ORDER DATED 22.12.1961 . SO NO STRANGER SHALL BE APPOINTED AS MUTAWALI TILL LINEAL DESCENDANT OF WAKF LT.PANCHI BIBI ARE THERE. HOWEVER, AO DISREGARDED THE CLAIM OF ASSESSE E BY HOLDING THAT SINCE MUTAWALIS ARE THE RELATIVES OF THE FOUNDER OF THE A SSESSEE-TRUST. SO THE PROVISION OF SEC.13(2) OF THE ACT ARE VERY MUCH ATT RACTED. OUT OF TWO MUTAWALI ONE IS THE RANK OF LIEUTENANT OF ARMY AND OTHER I S ADVOCATE AND BOTH MUST BE BUSY SO THEY WILL NOT BE IN A POSITION TO GIVE T HE TIME TO LOOK AFTER THE AFFAIRS OF WAKF ESTATE. THEREFORE PAYING THE SALARY TO THEM CANNOT BE ALLOWED AS DEDUCTION. ACCORDINGLY, AO OPINED THAT THE REASONAB LE AMOUNT OF MUTWALLI @ 15,000/- P.M. HENCE, THE TOTAL REMUNERATION FOR THE YEAR UNDER CONSIDERATION IS COMING TO 1.80 LACS. THEREFORE, AO DISALLOWED THE CLAIM OF 1,32,744/- (RS.3,12,744 RS.1,80,000.00). 10. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) WHO CONFIRMED THE ACTION OF AO BY OBSERVING AS UNDER:- 7. GROUND NO. III, IV AND V OF THE APPEAL ARE DIRE CTED AGAINST DISALLOWANCE OF MUTWALLIS ALLOWANCES / REMUNERATION TO THE EXTENT O F RS.1,32,744/-. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICE D THAT THE APPELLANT HAD PAID MUTWALLIS REMUNERATION TO THE TUNE OF RS.3,12, 744/- TO THE THREE MUTWALLIS @ 10% OF GROSS RECEIPTS OF THE ESTATE. ONE OF THE M UTWALLIS IS LIEUTENANT IN INDIAN ARMY AND ANOTHER IS ADVOCATE. THESE FACTS AR E NOT DISPUTED AS THE MUTWALLIS ARE DIRECTLY RELATED WITH THE FOUNDER OF THE TRUST. THE ASSESSING OFFICER HAS INVOKED THE PROVISIONS OF SECTION 13(2) AND 13(3) OF THE ACT. THE TWO OF THE MUTWALLIS, I.E. ONE BEING LIEUTENANT IN INDIAN ARMY AND ANOTHER BEING ADVOCATE WERE NOT ABLE TO GIVE ANY TIME TO TH E AFFAIRS OF MANAGEMENT OF TRUST AND AT THE SAME TIE ENJOYED BENEFITS OF THE T RUST. ACCORDINGLY THE ASSESSING OFFICER HELD THAT THERE IS VIOLATION OF S ECTION 13(2) AND 13(3) AND THEREFORE, HE PROCEEDED TO DENY THE BENEFIT OF SECT ION 11 TO THE ASSESSEE. AFTER CAREFUL PERUSAL OF THE SUBMISSIONS OF THE APP ELLANT AND FACTS NARRATED IN ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 12 THE ASSESSMENT ORDER, I FIND THAT AS PER ORDER DT. DEC. 2, 1961 IN APPEAL NO. 5/59, THE DIVISION BENCH OF THE HON'BLE HIGH COURT HELD THAT A SCHEME OF MANAGEMENT OF THE WAKF ESTATE SHOULD BE FRAMED WHIC H SHOULD ALSO PROVIDE FOR A REMUNERATION OF THE MUTAWALI AND AS PART OF T HE REMUNERATION, A RESIDENCE FOR HIM IN A PORTION OF THE WAKF ESTATE S HOULD BE PROVIDED. HOWEVER, THERE IS NO SPECIFIC DIRECTION IN THE SAID ORDER THAT THE REMUNERATION WOULD BE STRICTLY 10% OR ANY OTHER SUM OR ANY SUCH PERCENTAGE. HOW THE SAME PERCENTAGE OF 10% WAS ARRIVED AT, HAS NOT BEEN EXPLAINED. SECONDLY, THE HON'BLE HIGH COURT HAS USED THE WORD HIM WHICH CONNOTES SINGULAR ONLY AND NOT PLURAL. THERE WAS NO NEED FOR ENGAGING THREE MUTAWALIS AT A TIME. OUT OF THE THREE, ONE IS AN ACTING LIEUTENANT OF THE INDIAN ARMY AND ANOTHER IS A PRACTICING ADVOCATE OF THE HIGH COURT BOTH OF THEM CAN HARDLY GIVE ANY TIME TO THE NEEDS OF THE WAKF PROPERTY MAN AGEMENT. HENCE PAYMENT OF REMUNERATION TO THEM IS TOTALLY UNJUSTIF IED. THIRDLY PROVISION OF RESIDENCE IS A PART OF THE REMUNERATION AS PER THE VERY WORDS USED BY THE HON'BLE HIGH COURT. BUT THE HON'BLE HIGH COURT HAS NEVER STATED THAT IT WOULD BE A RENT FREE ACCOMMODATION. ALSO PART OF THE REMUNERATION CAN BE INTERPRETED AS ADJUSTMENT OF OCCUPATION CHARGES AGA INST REMUNERATION. THE HON'BLE HIGH COURT HAS ASKED FOR PROVIDING RESIDENC E OF THE MUTAWALI IN A PORTION OF THE WAKF ESTATE. BUT THAT DOES NOT MEAN THAT ONE ENTIRE FLOOR WILL HAVE TO BE PROVIDED FOR THEIR RESIDENCE FREE OF COS T AND THAT TWO FOR THREE MUTAWLIS AT A TIME AND TWO OF THEM NON-FUNCTIONING. MOREOVER, IT IS VERY MUCH APPARENT THAT ALL THE MUTAWALIS ARE ENJOYING FULL B ENEFITS WHEREAS NO SERVICES ARE BEING RENDERED AT ALL BY TWO OUT OF THE ORIGINA L THREE. THIS IS REALLY A DEVICE OF SIPHONING OF THE INCOME. 7.1 THE APPELLANT HAS ARGUED THAT THE PROVISIONS OF SECTION 13(2) AND 13(3) WILL NOT APPLY IN VIEW OF FIRST PROVISO TO SECTION 13(1)(C) AS THE WAKF WAS CREATED PRIOR TO THE COMMENCEMENT OF THE ACT. HOWEV ER, THIS ARGUMENT OF THE APPELLANT IS NOT ACCEPTABLE FOR FOLLOWING THREE REA SONS:- (I) THE APPELLANT HAS NOT EXPLAINED THE EXISTENCE O F THE MANDATORY TERM OF THE WAKF OR MANDATORY RULE UNDER WHICH THE BENEFIT TO PERSONS REFERRED IN SUB-SECTION (3) WERE REQUIRED TO BE GIVEN. (II) EVEN IF IT IS ACCEPTED THAT THE WAKF WAS CREAT ED PRIOR TO THE COMMENCEMENT OF THE ACT THE RULE REGARDING REMUNERA TION OF MUTWALLIS WAS FRAMED BY THE REGISTRAR (O.S) ORDER DATED 22.12 .1962, I.E., AFTER THE COMMENCEMENT OF THE ACT. HOWEVER, AS DISCUSSED EARLIER THE RESIDENTIAL ACCOMMODATION WAS GRANTED IN EXCESS OF WHAT WAS REQUIRED AS PER THE ORDER. AS ALSO EXCESSIVE BENEFIT IN FORM OF MUTWALLI ALLOWANCE WAS GRANTED TO THE NON-FUNCTIONING MUTWAL LIS WHICH WAS NOT ENVISAGED BY THE SCHEME OF RULES FRAMED BY THE ORDE R DATED 22.12.1962. (III) SINCE THE RULES WERE FRAMED AS PER ORDER DATE D 22.12.1962, I.E. AFTER THE COMMENCEMENT OF THE I.T. ACT, 1961 THE APPELLAN T CANNOT GET RELIEF FROM THE RESTRICTION IMPOSED BY FIRST PROVISO TO SE C. 13(1)(C). THEREFORE, IT IS HELD THAT THE PROVISIONS OF SEC. 1 3(2) AND SEC. 13(3) ARE SQUARELY APPLICABLE ON THE FACTS OF THE CASE AND TH E ASSESSING OFFICER HAS RIGHTLY DENIED THE BENEFIT U/S. 11 OF THE ACT, BY I NVOKING THE SAID PROVISIONS. ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 13 7.2 ALL MUTAWALIS ARE TO BE APPOINTED IN TERM OF TH E CALCUTTA HIGH COURT ORDER DATED 22.12.1961. IT IS A FACT THAT NO STRANGERS/OU TSIDERS SHALL BE APPOINTED. ALL OF THEM ARE DIRECT RELATIVES AND FALL WITHIN TH E PURVIEW OF SEC. 13(3) AND AS SUCH, SEC 13(2) IS EQUALLY APPLICABLE TO ALL OF THE M. HENCE, THE ASSESSING OFFICER HAS RIGHTLY DENIED BENEFIT U/S. 11 OF THE I .T. ACT AND HE WAS RIGHT IN LAW IN RESTRICTING THE GRANT OF REMUNERATION ONLY TO TH E PRINCIPAL MUTWALLI. ACCORDINGLY GROUNDS NO. III, IV AND V ARE DISMISSED . BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSE E PREFERRED SECOND APPEAL BEFORE US. 11. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. LD. AR SUBMITTED THAT ASSESSEE HAD MADE PAY MENT TO THE MUTWALIS RESIDING AT THE 6 TH FLOOR OF THE PREMISES. LD. AR SUBMITTED THE REMUNE RATION WAS MADE IN PURSUANCE OF THE ORDER OF HON'BLE JURIS DICTIONAL HIGH COURT IN REGARD TO AN APPEAL FILED BY ASSESSEE-TRUST IN CONS EQUENCE OF LITIGATION BETWEEN THE COMMISSIONER OF WAKF, WEST BENGAL AND T HE MUTWALLIS. THE HON'BLE JURISDICTIONAL HIGH COURT IN ITS ORDER HAD DIRECTED THAT A SCHEME OF MANAGEMENT OF THE WAKF ESTATE SHOULD BE FRAMED WHIC H SHOULD PROVIDE FOR REMUNERATION TO THE MUTWALLIS AND AS A PART OF THE REMUNERATION, A RESIDENCE FOR MUTWALLIS IN A PORTION OF THE WAKF ESTATE. ACCO RDINGLY, DR. MOHAMMAD BELA (A RELATIVE DESCENDANT OF PANCHI BIBI) WAS APPOINTE D AS LIFETIME MUTWALLI TO MANAGE THE SAID PANCHI BIBI WAKF ESTATE BY THE HON' BLE JURISDICTIONAL HIGH COURT VIDE ORDER DATED 09.10.1974. LD. AR FURTHER S UBMITTED THAT ACCORDING TO AO, ASSESSEE-TRUST HAS APPLIED THE INCOME OF THE WA KF ESTATE FOR THE BENEFIT OF INTERESTED PERSONS SPECIFIED IN SEC. 13(3) OF TH E ACT WHICH INCLUDES, INTER ALIA , PAYMENT TO THE AUTHOR, RELATIVES OR THE MANAGER/T RUSTEE, THE BENEFIT OF EXEMPTION WAS DENIED BY AO. THE LD. AR FURTHER SUBM ITTED THAT AO HAS IGNORED THE PROVISION OF 1 ST PROVISO TO SEC. 13(1) OF THE ACT, ACCORDING TO WHICH THE ABOVE DISABILITY WILL NOT APPLY, IF THE F OLLOWING CONDITIONS ARE SATISFIED:- (A) THE TRUST/INSTITUTION IS ESTABLISHED BEFORE THE COMMENCEMENT OF THE ACT. (IN THE INSTANT CASE, UNDISPUTEDLY, THE WAKF E STATE WAS ESTABLISHED BEFORE THE COMMENCEMENT OF THE ACT. ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 14 (B) IF SUCH USE/APPLICATION OF INCOME IS BY WAY OF COMPLIANCE WITH THE MANDATORY TERM OF THE TRUST OR RULE GOVERNING THE T RUST. IN THE INSTANT CASE, THE MANDATORY RULE/TERM AS PROVIDED BY THE HO N'BLE HIGH COURT VIDE ITS ORDER DATED 22.12.61 AT PAGE 17 AND AT PAG E 26, MANDATED PAYMENT OF REMUNERATION TO THE MUTAWALLI BY THE SCH EME FRAMED BY REGISTRAR OF THE COURT.) LD. AR FURTHER SUBMITTED THAT AS PER SEC. 13(2)(C), INCOME OF A TRUST IS DEEMED TO HAVE BEEN USED OR APPLIED FOR THE BENEFIT OF AN INTERESTED PERSON ONLY IF THE SALARY/REMUNERATION PAID IS IN EXCESS O F A REASONABLE SUM. IN THE PRESENT CASE, ADMITTEDLY THE REMUNERATION PAID TO T HE THREE MUTAWALLIS IS 10% OF THE GROSS RECEIPTS, WHICH IS QUITE A REASONABLE SUM AND AS PER THE COMMENTARY ON THE LAW OF WAKF IN INDIA, SALARY MAY BE PAID TO THE MUTAWALLI NOT EXCEEDING 1/10 TH OF ITS INCOME (KINDLY REFER TO ANNEXURE C HERETO , INTERNAL PAGE-47). LD. AR SUBMITTED THAT AS FOR DISALLOWANCE OF PAYMENTS ATTRIBUTABLE TO MUTAWALLIS ONE OF WHOM IS AN ARMY MAN AND ANOTHE R AN ADVOCATE, IT S SUBMITTED THAT AS PER THE COMMENTARY ON THE WAKF LA W, THE FUNCTION OF A MUTAWALLI IS, INTER ALIA, TO TAKE ALL NECESSARY STE PS FOR THE PROPER MANAGEMENT AND SAFETY OF THE WAKF. IT IS SUBMITTED THAT AN ADV OCATE AND AN ARMY MAN ARE THE BEST PERSONS TO ENSURE PROPER MANAGEMENT AND SA FETY OF THE WAKF ESTATE AND AS SUCH NO CHARGE OF MISAPPROPRIATION OR MISMAN AGEMENT HAS BEEN BROUGHT AGAINST THE ESTATE, WHICH IS CLOSELY MONITO RED BY THE WAKF ESTATE CONSTITUTED BY THE GOVERNMENT. LD. AR RELIED A CASE LAW IN THE CASE OF ACIT V. IDICULA TRUST SOCIETY (REGD.) (2012) 21 TAXMANN.COM 144 (DEL), WHERE THE ITAT DELHI BENCH HELD THAT ONUS IS ON THE DEPARTMEN T TO PROVE THAT THE SALARY PAID BY THE ASSESSEE-TRUST TO ITS OFFICE BEARERS IS UNREASONABLE AND IN THE PRESENT CASE REVENUE HAS FAILED TO DISCHARGE ITS ON US. 12. ON THE OTHER HAND, LD. DR SUBMITTED THAT A PERS ON WHO IS A CENTRAL GOVT. EMPLOYEE CANNOT DEVOTE HIS TIME IN THE DAY-TO -DAY AFFAIRS OF THE ASSESSEE-TRUST. BESIDES, HIS JOB IS TRANSFERABLE IN INDIA. MOREOVER, THE ARMY ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 15 NEEDS TO TAKE PERMISSION FROM HIS SENIOR AUTHORITY CONCERN FOR ACCEPTING THE POST OF MUTAWALI IN WAKF ESTATE IN ADDITION TO HIS GOVT. JOB. THEREFORE THE LD. DR VEHEMENTLY RELIED ON THE ORDERS OF AUTHORITIES B ELOW. 13. FROM THE AFORESAID DISCUSSION, WE UNDERSTAND TH AT THERE WERE THREE MUTAWLIS OF THE WAKF ESTATE OUT OF THREE, ONE WAS E NGAGED IN OTHER GOVT. JOB AND THE ONE WAS ENGAGED IN ADVOCACY WORK. THEREFORE , THE AO OPINED THAT THEY ARE NOT IN A POSITION TO LOOK AFTER THE DAY-TO -DAY AFFAIRS OF THE WAKF ESTATE. ACCORDINGLY, AO HELD THAT ONE MUTAWALI IS ENOUGH TO CONTROL THE AFFAIRS OF THE TRUST AND ALLOWED HIM THE REMUNERATION @ RS. 15,000 /- PER MONTH. SO THE TOTAL REMUNERATION WAS ALLOWED FOR RS. 1.80 LACS AND THE EXCESS REMUNERATION WAS DISALLOWED FOR RS. 1,32,744/-. WE FIND THAT AS PER THE TRUST DEED, THE MANAGEMENT EXPENSES CAN BE INCURRED OUT OF THE INCO ME OF THE TRUST AND SAME HAS ALSO BEEN UPHELD BY THE HONBLE JURISDICTI ONAL HIGH COURT. NOW IN OUR VIEW, THE MUTAWALI WHO IS ACTUALLY WORKING FOR THE TRUST SHOULD BE ENTITLED FOR THE REMUNERATION. HERE IN THE INSTANT CASE, THE AO DISALLOWED THE EXPENSES OF REMUNERATION OF TWO MUTAWALIS ON THE PR ESUMPTION THAT THE MUTAWALI WORKING IN ARMY AND OTHER ONE ACTING AS AN ADVOCATE WILL NOT BE HAVING TIME TO LOOK AFTER THE DAY-TO-DAY AFFAIRS OF THE WAKF-TRUST. SO THEY HAVE NO ROLE IN THE AFFAIRS OF THE TRUST THEREFORE THEY ARE NOT ENTITLED TO GET REMUNERATION. WE AGREE WITH THIS PROPOSITION BUT AT THE SAME TIME WE FIND NOTHING HAS BEEN BROUGHT ON RECORD WHETHER THEY ARE ACTUALLY PARTICIPATING IN THE AFFAIRS OF THE TRUST NOT. IT IS ALSO IMPORTANT TO NOTE THAT THE THERE WAS SINGLE MUTAWALI AT THE TIME THEN ORDER PASSED BY THE HONBL E CALCUTTA HIGH COURT THOUGH AT PRESENT THERE ARE THREE MUTAWALIS WHO ARE THE DESCENDANTS OF THE OLD MUTAWALI. IN VIEW OF THIS OBSERVATION, WE ARE R ESTORING THIS MATTER TO THE FILE OF THE AO WITH THE DIRECTION TO CHECK HOW MANY PEOP LE ARE ACTUALLY PARTICIPATING IN THE AFFAIRS OF THE WAKF-TRUST. IN OUR VIEW, THE MUAWALI WHO IS ACTUALLY PARTICIPATING IN THE AFFAIRS OF THE TRUST SHOULD ONLY BE ENTITLED FOR THE REMUNERATION. IN TERMS OF ABOVE, WE REMIT THIS ISSU E BACK TO THE FILE OF AO WITH ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 16 A DIRECTION TO VERIFY THE ABOVE STATED FACTS AND AD JUDICATE THE MATTER AS PER LAW. THIS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 14. COMING TO ISSUE NO.3 RAISED BY ASSESSEE IS THAT WAKF ESTATE HAS SIX STORIED BUILDING SITUATED AT NO. 54/2, RAFI AHMED K IDWAI ROAD, KOLKATA-700 016. THE GROUND FLOOR IS USED FOR CAR PARKING. THE FIRST AND THIRD FLOOR GIVEN TO RENT AND FORTH AND FIFTH FLOORS WERE USED FOR THE R UNNING VICTORIA GUEST HOUSE. THE TOP FLOOR I.E., SIXTH WAS USED FOR THE PURPOSE OF MUTAWALIS WHO ARE THE DIRECT DESCENDENTS OF THE AUTHOR OF THE ASSESSEE-TR UST. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AO FOUND THAT PROVISION OF S EC. 13(2) WAS SQUARELY APPLICABLE AS THE MUTAWALLIS WERE DIRECT DESCENDANT S OF THE FOUNDER OF THE ASSESSEE-TRUST. ALL THE DESCENDANTS MEMBERS WERE ST AYING IN THE PROPERTY OF ASSESSEE-TRUST FOR THEIR PERSONAL RESIDENT AND THEY ARE NOT PAYING RENT TO ASSESSEE-TRUST. THE AO FURTHER OBSERVED THAT HAD TH E SIXTH FLOOR NOT BEEN IN THE OCCUPATION OF THREE MUTAWALLIS SAME WOULD HAVE FETCH ANNUAL INCOME OF 14,11,200/- AS RENT. THE ASSESSEE-TRUST IS ALREADY EARNING SAME RENT FROM ITS FIRST AND THIRD FLOORS. THEREFORE, AO TREATED THE D EEM INCOME OF 14,11,200/- BY VIRTUE OF PROVISION OF SEC. 13(2) OF THE ACT. 15. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) WHO CONFIRMED THE ACTION OF AO BY OBSERVING AS UNDER:- 8. GROUND NO. VI, VII AND VIII ARE DIRECTED AGAINS T THE ACTION OF THE ASSESSING OFFICER IN TAXING DEEMED INCOME, BEING THE RENT OF 6 TH FLOOR OCCUPIED BY THE MUTWALLIS BY INVOCATION OF PROVISIONS OF SECTION 13 (2) OF THE IT ACT 1961. THE ASSESSEE OWNS A 6-STORIED BUILDING AT PREMISES NO. 54/E, RAFI AHMED KIDWAI ROAD, KOLKATA-700 016. THE GROUND FLOOR OF WHICH IS FOR CAR PARKING. THE FIRST AND 3 RD FLOOR ARE LET OUT TO COMMERCIAL ORGANIZATION, 4 TH & 5 TH FLOOR ARE USED FOR RUNNING VICTORIA GUEST HOUSE BY THE APPELLANT AND 6 TH FLOOR IS ENTIRELY USED FOR THE PURPOSE OF THE MUTAWALIS WHO ARE THE DIRECT DES CENDENTS OF THE AUTHOR OF THE TRUST. THE ASSESSING OFFICER FOUND THAT THE PRO VISIONS OF SECTION 13(2) ARE APPLICABLE IN THIS CASE AS THE MUTAWALIS I.E, MR. F EROZ BELAL, MR. FAISAL BELAL AND IMTAZ BELAL, ARE CONTINUOUSLY USING THE TRUST P ROPERTY FOR THEIR PERSONAL RESIDENCE WITHOUT PAYING ADEQUATE RENT OR COMPENSAT ION AND THESE PERSONS ARE DIRECT DESCENDENTS OF THE AUTHOR OF THE TRUST. ACCORDINGLY, THE ASSESSING OFFICER TOOK THE FAIR MARKET RENTAL VALUE OF 6 TH FLOOR AT RS.1,17,600/- PER MONTH WHICH IS SAME AS THE ACTUAL RENT OF 3 RD FLOOR RECEIVED BY THE APPELLANT FROM DDFC BANK LIMITED. ACCORDINGLY, THE ASSESSING OFFIC ER ADDED RS.14,11,200/- ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 17 AS DEEMED INCOME FOR THE ASSESSMENT YEAR 2008-09. I HAVE CAREFULLY CONSIDERED THE FACTS NARRATED IN THE ASSESSMENT ORD ER AND STATEMENTS GIVEN BY THE APPELLANT. I FIND THAT AT PAGE 72 OF THE PAP ER BOOK ( PART OF THE DOUBLE BENCH JUDGMENT DR. 22.12.1961 ) THE BENCH DIRECTED AS FOLLOWS WHILE PROVIDING FOR SUCH RESIDENCE THE REFEREE SHOULD IN NO EVENT ALLOW ACCOMMODATION IN EXCESS OF THE ACCOMMODATION NOW EN JOYED BY THE APPELLANT WAHIDUNNESSA BIBI, MR. MASUD STATED BEFOR E US THAT AT PRESENT SHE IS IN OCCUPATION OF A ROOM, A VERANDHA AND A SEPARA TE PRIVY ONLY. THE SAME VIEW HAS AGAIN BEEN QUOTED BY THE REGISTRAR VIDE HI S ORDER DTD. 29/11/1962 AT PAGE 87 OF THE PAPER BOOK. WHILE PROVIDING FOR SUCH RESIDENCE THE REGISTRAR SHOULD IN NO EVENT ALLOW AN ACCOMMODATION IN EXCES S OF THE ACCOMMODATION IF ANY NOW ENJOYED BY MUSST. WAHIDUNNESSA BIBI . AGAINST THIS BACKGROUND, I FIND THAT ONE ENTIRE 6 TH FLOOR IS BEING OCCUPIED BY THE MUTAWALIS WHICH IS CLEARLY AGAINST THE DIRECTION OF THE HON'BLE HIGH C OURT JUDGEMENT DT. 22/12/61 AND 29/11/1962. 8.1 AT PAGE 91 OF THE PAPER BOOK BEING EXHIBIT- A (SCHEDULE OF PROPERTIES) TO THE REGISTRAR (O.S) ORDER DATED 22/12/1962, VIDE CL AUSE G IT IS CLEARLY STATED REMUNERATION FOR MUTAWALIS RS.30 PER MONTH (I.E. RS.60/- LESS RS.30/- FOR RENT) AND FREE QUARTERS AT THE PORTION ON CLOSED IN RED IN THE PLAN OF PREMISES NO. 6 RIPON STREET. AS SUCH 50% OF THE REMUNERATIO N WAS TREATED AS RENTAL THAT TOO FOR ONE ROOM, ONE VERANDA AND ONE PRIVY AS PER SUBMISSION BEFORE THE HON'BLE HIGH COURT. PRESENTLY THE MUTAWALIS ARE IN POSSESSION/OCCUPATION OF THE ENTIRE 6 TH FLOOR IN VIOLATION OF THE ORDER OF THE HON'BLE HIG H COURT. HENCE THE FINDINGS OF THE ASSESSING OFFICER IS VERY LOGIC AL AND CORRECT IN VIEW OF THE SAID EXHIBIT. ACCORDINGLY, IT IS HELD THAT THE ASSE SSING OFFICER WAS RIGHT IN LAW IN TAXING DEEMED INCOME. HENCE, GROUND NO VI, VII A ND VIII ARE DISMISSED. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSE E CAME IN SECOND APPEAL BEFORE US. 16. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. LD. AR SUBMITTED THAT THE PREMISE USED BY T HE MUTWALLIS WAS IN CONSEQUENCE OF THE ORDER PASSED BY HON'BLE JURISDIC TIONAL HIGH COURT. MOREOVER, THE PROVISIONS OF SEC. 13(2) OF THE ACT W ILL NOT APPLY IN THE PRESENT CASE AS THE ISSUE IS COVERED BY THE FIRST PROVISO T O SEC. 13(1)(C). IN OTHER WORDS, THE RESIDENCE TO MUTAWALLIS IS TO BE CONSIDE RED AS A PART OF REMUNERATION AS PER THE ABOVE-MENTIONED ORDER OF TH E HON'BLE HIGH COURT. THE AR ALSO SUBMITTED THAT SIXTH FLOOR OF THE WAKF ESTATE WAS CONSTRUCTED 50% AND 50% WAS OPEN. IT WAS USED IN SPECIFIC FOR T HE PURPOSE OF RESIDENCE IN TERMS OF DIRECTION OF HON'BLE JURISDICTIONAL HIG H COURT. THUS THE AMOUNT ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 18 DEEMED AS THE INCOME OF ASSESSEE IS UNJUSTIFIED AND AGAINST THE LAW. LD. AR REQUESTED THE BENCH TO REVERSE THE ORDERS OF AUTHOR ITIES BELOW. 17. ON THE OTHER HAND, LD. DR VEHEMENTLY RELIED ON THE ORDERS OF AUTHORITIES BELOW. 18. FROM THE AFORESAID DISCUSSION, WE FIND THAT THE AO HAS ADDED THE INCOME OF RS. 14,11,200/- ON THE PREMISE THAT OTHER FLOOR OF THE SAME BUILDING IS FETCHING THE RENT OF THE SAME AMOUNT. AND THE ON E FLOOR IS IN FULL OCCUPATION OF MUTAWALIS WITHOUT ANY RENT. HOWEVER BEFORE US TH E LD. AR SUBMITTED THAT IT IS CONSTRUCTED ONLY TO THE EXTENT OF 50% AND THE BA LANCE 50% IS OPEN TO SKY. WE ALSO FIND THAT THE HONBLE JURISDICTIONAL HIGH C OURT HAS DIRECTED TO THE REGISTRAR OF THE COURT TO FRAME THE SCHEME OF MANAG EMENT FOR THE APPOINTMENT OF MUTAWALI AND THEIR REMUNERATION AND PART OF SUCH REMUNERATION A RESIDENCE FOR MUTAWALI IN A PORTION OF THE WAKF ESTATE. THE R ELEVANT PORTION OF THE ORDER IS EXTRACTED BELOW. THE REGISTRAR OF THIS COURT DO FRAME A SCHEME OF M ANAGEMENT OF THE WAKF- ESTATE AND WHILE FRAMING THE SCHEME HE DO PROVIDE F OR THE APPOINTMENT OF A NEW MUTWALLI HE DO GIVE PREFERENCE TO THE FAMILY OF SK. MUNWAR INCLUDING IN PARTICULAR THE SON IF ANY OF MUSSTT. WAHIDUNNESSA B IBI. IN FRAMING THE SCHEME OF MANAGEMENT THE REGISTRAR WILL BE AT LIBERTY TO P ROVIDE FOR THE REMUNERATION OF THE MUTWALLI AND PART OF SUCH REMUNERATION A RES IDENCE FOR THE MUTWALLI IN A PORTION OF THE WAKF PROPERTY/. WHILE PROVIDING FOR SUCH RESIDENCE, THE REGISTRAR SHOULD IN NO EVENT ALLOW AN ACCOMMODATION IN EXCESS OF THE ACCOMMODATION IF ANY NOW ENJOYED BY MUSSTT. WAHIDUN NESSA BIBI IN THE EARLIER ISSUE OF THE REMUNERATION WE HAVE RE STORED THE FILE TO AO WITH SOME DIRECTION AS DISCUSSED ABOVE. THIS GROUND OF A PPEAL IS CONSEQUENTIAL TO THE ISSUE OF THE REMUNERATION OF MUTAWALI. THE ISSU E OF REMUNERATION HAS BEEN RESTORED TO THE FILE OF AO FOR FRESH ADJUDICAT ION. SIMILARLY WE ARE RESTORING THIS MATTER TO THE FILE OF THE AO WITH THE DIRECTIO N TO ADJUDICATE AFRESH AS PER LAW. THE MUTAWALI WHO WILL BE ENTITLED FOR THE REMU NERATION SHALL ALSO BE ENTITLED FOR THE PLACE OF RESIDENCE IN THE WAKF PRO PERTY AS A PART OF REMUNERATION. ACCORDINGLY WE SET ASIDE THIS ISSUE T O THE FILE OF THE AO FOR FRESH ITA NO.1193-1198/KOL/2012 A.YS. 2003-04 TO 2008-09 PANCHI BIBI WAKF ESTATE V. DDIT(E)-II, KOL. PAGE 19 ADJUDICATION AS PER LAW. THIS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 19. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLO WED. 20. IN THE REMAINING APPEALS, SINCE THE FACTS ARE E XACTLY IDENTICAL, BOTH THE PARTIES ARE AGREED WHATEVER VIEW TAKEN IN THE ABOVE APPEAL (ITA NO.1198/KOL/2012) MAY BE TAKEN IN THOSE APPEALS ALS O, WE HOLD ACCORDINGLY. 21. IN THE RESULT, ALL THE APPEALS OF ASSESSEE ARE PART LY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 29/ 02/2016 SD/- SD/- (MAHAVIR SINGH) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP '#$- 29 / 02 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-PANCHI BIBI WAKF ESTATE, FEROZE BELAL (MU TWALLI), 54/2, RAFI AHMED KIDWAI ROAD, 6 TH FLOOR, P.O. & P.S. PARK STREET, KOLKATA-16 2. /REVENUE-DDIT(E)-II, CIT(A)-XIV, 54/1, RAFI AHMED K IDWAI ROAD, KOLKATA-16 3.#,#-. / / CONCERNED CIT KOLKATA 4. /- / CIT (A) KOLKATA 5.2 3455-., -.!, / DR, ITAT, KOLKATA 6.489:; / GUARD FILE. BY ORDER/ , /TRUE COPY/ /# -.!,