THE INCOME-TAX OFFICER (EXEMPTION) WARD 2(1), MUMBAI V. SAI SHIVA EDUCATION TRUST, , MUMBAI

ITA 124/MUM/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 3009 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2006-2007
• Appeal Filed On: 24-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D. C. JAIN
• Keywords: Charitable institution; Principle of natural justice; Additional evidence; Set aside
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “G” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI SANDEEP SINGH KARHAIL (JUDICIAL MEMBER) ITA No. 124/MUM/2022 Assessment Year: 2006-07 The Income-tax Officer (Exemption) Ward 2(1), Room No. 617, 6 th floor, MTNL Building, Cumballa Hill, Peddar Road, Mumbai-400026. Vs. Sai Shiva Educational Trust, Ground Floor, Amar Mahal, Near Chandan Cinema, A.D. Road, Juhu, Mumbai-400049. PAN No. AAATS 2744 P Appellant Respondent C.O. No. 71/MUM/2022 (ITA No. 124/MUM/2022) Assessment Year: 2006-07 Sai Shiva Educational Trust, Ground Floor, Amar Mahal, Near Chandan Cinema, A.D. Road, Juhu, Mumbai-400049. Vs. The Income-tax Officer (Exemption) Ward 2(1), Room No. 617, 6 th floor, MTNL Building, Cumballa Hill, Peddar Road, Mumbai-400026. PAN No. AAATS 2744 P Appellant Respondent Assessee by : Mr. D.C. Jain Revenue by : Mr. Hoshang B. Irani, DR Date of Hearing : 28/07/2022 Date of pronouncement : 26/08/2022 PER OM PRAKASH KANT, AM This appeal by assessee are directed against order dated 15.09.2021 passed by the National Faceless Appeal Centre (in short ‘the Ld. First Appellate Authority’) for assessment Revenue are reproduced as under: 1. Whether on the facts and circumstances of the case and in law, the Id. CIT(A) has erred in granting the relief to the assessee, on the issue of granting advance of Rs. 4,39,75,000/ to M/s Ritika Hotels Pvt. Ltd, by relying on CIT(A) order dated 29.05.2011 in A.Y. 2008 2009, while ignoring the fact that Hon'ble ITAT Mumbai vide its order in ITA NO. 5803 / M * UM / 2011 dated 31.07.2015, has set aside the CIT(A) order dated 29.05.2011 ba adjudication and that the said appellate order dated 29.05.2011 is not in existence?" 2. "Whether on the facts and circumstances of the case and in law, the Id. CIT(A) has erred in concluding that the provisions of section 13(1)(c)(ii) of the Act are not applicable to the assessee while ignoring that in the remand report, the AO has established that the directors of M / s Ritika Hotels Pvt. Ltd. Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 ORDER PER OM PRAKASH KANT, AM the Revenue and the Cross-objection by the assessee are directed against order dated 15.09.2021 passed by the National Faceless Appeal Centre (in short ‘the Ld. First Appellate Authority’) for assessment year 2006-07. The grounds raised by the Revenue are reproduced as under: Whether on the facts and circumstances of the case and in law, the Id. CIT(A) has erred in granting the relief to the assessee, on the issue of granting advance of Rs. 4,39,75,000/ M/s Ritika Hotels Pvt. Ltd, by relying on CIT(A) order dated 29.05.2011 in A.Y. 2008 2009, while ignoring the fact that Hon'ble ITAT Mumbai vide its order in ITA NO. 5803 / M * UM / 2011 dated 31.07.2015, has set aside the CIT(A) order dated 29.05.2011 back to the file of Id. CIT(A) for de novo adjudication and that the said appellate order dated 29.05.2011 is not in existence?" "Whether on the facts and circumstances of the case and in law, the Id. CIT(A) has erred in concluding that the provisions tion 13(1)(c)(ii) of the Act are not applicable to the assessee while ignoring that in the remand report, the AO has established that the directors of M / s Ritika Hotels Pvt. Ltd. Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 2 objection by the assessee are directed against order dated 15.09.2021 passed by the National Faceless Appeal Centre (in short ‘the Ld. First Appellate 07. The grounds raised by the Whether on the facts and circumstances of the case and in law, the Id. CIT(A) has erred in granting the relief to the assessee, on the issue of granting advance of Rs. 4,39,75,000/ M/s Ritika Hotels Pvt. Ltd, by relying on CIT(A) order dated 29.05.2011 in A.Y. 2008 2009, while ignoring the fact that Hon'ble ITAT Mumbai vide its order in ITA NO. 5803 / M * UM / 2011 dated 31.07.2015, has set aside the CIT(A) order dated ck to the file of Id. CIT(A) for de novo adjudication and that the said appellate order dated "Whether on the facts and circumstances of the case and in law, the Id. CIT(A) has erred in concluding that the provisions tion 13(1)(c)(ii) of the Act are not applicable to the assessee while ignoring that in the remand report, the AO has established that the directors of M / s Ritika Hotels Pvt. Ltd. i.e. Shri Arunkumar Muchhala and Mrs. Ritika Arunkumar Muchhala are the per section 13(3)?" 3. Whether on the facts and circumstances of the case and in law, the ld. CIT(A) has failed to appreciate the property of the trust or the institution is used or applied, directly for the benefit of M / s Ri referred to in sub 1961 in the grab of advances for construction of school building in violation of the provis 4. Whether on the facts and circumstan law, the ld. CIT(A) has failed to appreciate that M/s Ritika Hotels Pvt. Ltd. has not commenced the construction work for the proposed school and the agreements referred to by the ld. ClT(A) are ruse to enable it to use the trust fun payment of any interest?" 5. "Whether on the facts and circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition made by the AO ignoring the discussion of the AO in assessment as well as remand proceedings?" 2. The grounds raised in the cross reproduced as under: 1. Whether on the facts and circumstances of the case and in law the Learned CIT(A) has erred in not considering the facts that Notice for reopening the assessment was without Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 i.e. Shri Arunkumar Muchhala and Mrs. Ritika Arunkumar Muchhala are the person who are squarely covered by sub section 13(3)?" Whether on the facts and circumstances of the case and in law, the ld. CIT(A) has failed to appreciate the property of the trust or the institution is used or applied, directly for the benefit of M / s Ritika Hotels Pvt. Ltd., being a concern referred to in sub-section 13(3)(ii) of the Income 1961 in the grab of advances for construction of school building in violation of the provisions of section 13(1)(c)(ii)? Whether on the facts and circumstances of the case and in law, the ld. CIT(A) has failed to appreciate that M/s Ritika Hotels Pvt. Ltd. has not commenced the construction work for the proposed school and the agreements referred to by the ld. ClT(A) are ruse to enable it to use the trust fun payment of any interest?" "Whether on the facts and circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition made by the AO ignoring the discussion of the AO in assessment as well as remand proceedings?" unds raised in the cross-objection of the assessee are reproduced as under: Whether on the facts and circumstances of the case and in law the Learned CIT(A) has erred in not considering the facts that Notice for reopening the assessment was without Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 3 i.e. Shri Arunkumar Muchhala and Mrs. Ritika Arunkumar son who are squarely covered by sub- Whether on the facts and circumstances of the case and in law, the ld. CIT(A) has failed to appreciate the property of the trust or the institution is used or applied, directly for the tika Hotels Pvt. Ltd., being a concern section 13(3)(ii) of the Income-tax Act, 1961 in the grab of advances for construction of school ions of section 13(1)(c)(ii)? ces of the case and in law, the ld. CIT(A) has failed to appreciate that M/s Ritika Hotels Pvt. Ltd. has not commenced the construction work for the proposed school and the agreements referred to by the ld. ClT(A) are ruse to enable it to use the trust funds without "Whether on the facts and circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition made by the AO ignoring the discussion of the AO in assessment as well objection of the assessee are Whether on the facts and circumstances of the case and in law the Learned CIT(A) has erred in not considering the facts that Notice for reopening the assessment was without complyi not providing reasons recorded for reopening was in gross violation of principles of natural justice and reassessment. 2. Whether on the facts and circumstances of the case and in law the Learned CIT (A) fai jurisdiction the service of a notice under section 143 (2) is mandatory and any assessment without notice would be against the principles of natural justice and order would be invalid. 3. Whether on the facts and circumstan law the Learned CIT(A) erred in considering the fact that as provided in Section 144 (1) of I.T. Act to provide an opportunity before passing ex parte order to the assesse, no such opportunity was provided to the assesse. 4. Whether on law the learned CIT (A) failed to appreciate that : (i) The assessing officer has taken the Gross receipts of Rs. 2,32,12,740/ Rs. 1,30,04,532/ trust, thereby net income would be at Rs. 1,02,08,208/ tax purposes. (ii) A sum of Rs. 1,01,00,000/ building fund resulting net balance of Rs. 1,08,208/ allowable for deduction U/s. 11. 3. Briefly stated, the facts of the case are that the asessee is a public charitable trust Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 complying the requirement of Section 151(2) of the Act and not providing reasons recorded for reopening was in gross violation of principles of natural justice and reassessment. Whether on the facts and circumstances of the case and in law the Learned CIT (A) failed to consider that to attain the jurisdiction the service of a notice under section 143 (2) is mandatory and any assessment without notice would be against the principles of natural justice and order would be invalid. Whether on the facts and circumstances of the case and in law the Learned CIT(A) erred in considering the fact that as provided in Section 144 (1) of I.T. Act to provide an opportunity before passing ex parte order to the assesse, no such opportunity was provided to the assesse. Whether on the facts and circumstances of the case and in law the learned CIT (A) failed to appreciate that : (i) The assessing officer has taken the Gross receipts of Rs. 2,32,12,740/- as income, without allowing the deduction of Rs. 1,30,04,532/- the expenses incurred for the object of the trust, thereby net income would be at Rs. 1,02,08,208/ tax purposes. A sum of Rs. 1,01,00,000/- was set apart for the building fund resulting net balance of Rs. 1,08,208/ allowable for deduction U/s. 11. ed, the facts of the case are that the asessee is a public charitable trust and during the year under consideration Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 4 ng the requirement of Section 151(2) of the Act and not providing reasons recorded for reopening was in gross violation of principles of natural justice and reassessment. Whether on the facts and circumstances of the case and in led to consider that to attain the jurisdiction the service of a notice under section 143 (2) is mandatory and any assessment without notice would be against the principles of natural justice and order would be ces of the case and in law the Learned CIT(A) erred in considering the fact that as provided in Section 144 (1) of I.T. Act to provide an opportunity before passing ex parte order to the assesse, no the facts and circumstances of the case and in (i) The assessing officer has taken the Gross receipts of Rs. as income, without allowing the deduction of rred for the object of the trust, thereby net income would be at Rs. 1,02,08,208/- for was set apart for the building fund resulting net balance of Rs. 1,08,208/ ed, the facts of the case are that the asessee is a and during the year under consideration was engaged in running a polytechnic college. The assessee filed its return of income for the year under consideration on 31.10.2006 declaring Nil income. The of notice u/s 148 of the Act on 25.03.2011. completed re-assessment u/s 147 r.w.s. 144 of the Act on 30.12.2011. In the said assessment order u/s 11 of the Act was denied determined at ₹2,32,12,740/ in view of the finding of the Ld. Assessing Officer in assessment year 2008-09 on the ground that interest one of the trustee and the business concern wherein the trustee were having substantial filed additional evidence before the Ld. CIT(A). The Ld. CIT(A) after considering the remand report of the Assessing Officer and rejoinder of the assessee exemption to the assessee u/s 11 of the Act. Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 running a polytechnic college. The assessee filed its return of income for the year under consideration on 31.10.2006 ng Nil income. The assessment was reopened by way of issue /s 148 of the Act on 25.03.2011. The Assessing Officer assessment u/s 147 r.w.s. 144 of the Act on the said assessment order, the claim of exemption the Act was denied and income of the assessee was 2,32,12,740/-. The said exemption was withdrawn, n view of the finding of the Ld. Assessing Officer in assessment year 09 on the ground that interest-free advances were given to the trustee and the business concern wherein the trustee were having substantial interest. On further appeal, the filed additional evidence before the Ld. CIT(A). The Ld. CIT(A) after considering the remand report of the Assessing Officer and ejoinder of the assessee, directed the Assessing Officer exemption to the assessee u/s 11 of the Act. Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 5 running a polytechnic college. The assessee filed its return of income for the year under consideration on 31.10.2006 was reopened by way of issue Assessing Officer assessment u/s 147 r.w.s. 144 of the Act on the claim of exemption income of the assessee was he said exemption was withdrawn, n view of the finding of the Ld. Assessing Officer in assessment year free advances were given to the trustee and the business concern wherein the trustee’s interest. On further appeal, the assessee filed additional evidence before the Ld. CIT(A). The Ld. CIT(A) after considering the remand report of the Assessing Officer and the Assessing Officer to grant 4. Before us, the Ld. Counsel of the assessee has filed a Paper Book containing pages 1 to 60. 5. We have heard rival submissions of the parties dispute and perused the material on record. In the case of the assessee addition in assessment year 2008 ground that interest-free advances have been granted to the persons covered u/s 13(3) of the Act and therefore, entitled for exemption u/s 11 of the Act. In the assessment year 2008-09, the Tribunal issue to the Assessing Officer interest-free advances was benefit of the trustee. The relevant finding of the Tribunal reproduced as under: “6. We have heard the rival contentions and have perused the material available on record. It is seen that the learned CIT(A) as well as seems to be plausible. But on these contentions, reasonings Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 Before us, the Ld. Counsel of the assessee has filed a Paper Book containing pages 1 to 60. We have heard rival submissions of the parties dispute and perused the material on record. In the case of the assessee addition in assessment year 2008-09 was made on the free advances have been granted to the persons of the Act and therefore, the assessee was entitled for exemption u/s 11 of the Act. In the assessment year 09, the Tribunal in ITA No. 5803/Mum/2011 to the Assessing Officer for verification of the fact whether the free advances was for benefit of the trust benefit of the trustee. The relevant finding of the Tribunal reproduced as under: 6. We have heard the rival contentions and have perused the material available on record. It is seen that the learned CIT(A) as well as by the learned Counsel for the assessee seems to be plausible. But on these contentions, reasonings Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 6 Before us, the Ld. Counsel of the assessee has filed a Paper on the isuse-in- dispute and perused the material on record. In the case of the 09 was made on the free advances have been granted to the persons assessee was not entitled for exemption u/s 11 of the Act. In the assessment year in ITA No. 5803/Mum/2011 restored the for verification of the fact whether the the trust or was for the benefit of the trustee. The relevant finding of the Tribunal (supra) is 6. We have heard the rival contentions and have perused the material available on record. It is seen that the learned by the learned Counsel for the assessee seems to be plausible. But on these contentions, reasonings have to be supported with the facts and evidences. Certain questions still remain unanswered and the learned Counsel for the assessee could not show any mat of these questions e.g., what happened to the advance and whether any such or any other property was actually purchased, or whether the advance was returned, or the same was squared off, or it was adjusted against some other property purchased was of any use for the assessee trust, etc., etc. All these facts need to be analysed and only then appropriate decision can be taken to decide the issue whether the interest free advance was for the benefi the benefit of the trustee. The learned CIT(A), while adjudicating this issue, has not passed a speaking order and has not given any such facts or referred to any such evidence in support of the contentions of the assessee. In our opi this issue deserves to be restored to the file of the learned CIT(A) for denovo adjudication after examining all the evidences which the assessee may place before the learned CIT(A) to decide the issue with the help of actual facts and figures, as to the benefit of the assessee trust, or for the benefit of the trustees. The questions that came to our mind some of which have been referred to herein above, need to be answered with the help of evidences and CIT(A) is free to call for any other details / evidence to decide the issue as per law and facts. We thus set aside the impugned order passed by the learned Commissioner Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 have to be supported with the facts and evidences. Certain questions still remain unanswered and the learned Counsel for the assessee could not show any material to find answers of these questions e.g., what happened to the advance and whether any such or any other property was actually purchased, or whether the advance was returned, or the same was squared off, or it was adjusted against some other property and whether the property proposed to be purchased was of any use for the assessee trust, etc., etc. All these facts need to be analysed and only then appropriate decision can be taken to decide the issue whether the interest free advance was for the benefit of trust or was for the benefit of the trustee. The learned CIT(A), while adjudicating this issue, has not passed a speaking order and has not given any such facts or referred to any such evidence in support of the contentions of the assessee. In our opi this issue deserves to be restored to the file of the learned CIT(A) for denovo adjudication after examining all the evidences which the assessee may place before the learned CIT(A) to decide the issue with the help of actual facts and figures, as to whether the interest free advance was given for the benefit of the assessee trust, or for the benefit of the trustees. The questions that came to our mind some of which have been referred to herein above, need to be answered with the help of evidences and in addition to that the learned CIT(A) is free to call for any other details / evidence to decide the issue as per law and facts. We thus set aside the impugned order passed by the learned Commissioner Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 7 have to be supported with the facts and evidences. Certain questions still remain unanswered and the learned Counsel erial to find answers of these questions e.g., what happened to the advance and whether any such or any other property was actually purchased, or whether the advance was returned, or the same was squared off, or it was adjusted against some other and whether the property proposed to be purchased was of any use for the assessee trust, etc., etc. All these facts need to be analysed and only then appropriate decision can be taken to decide the issue whether the t of trust or was for the benefit of the trustee. The learned CIT(A), while adjudicating this issue, has not passed a speaking order and has not given any such facts or referred to any such evidence in support of the contentions of the assessee. In our opinion, this issue deserves to be restored to the file of the learned CIT(A) for denovo adjudication after examining all the evidences which the assessee may place before the learned CIT(A) to decide the issue with the help of actual facts and whether the interest free advance was given for the benefit of the assessee trust, or for the benefit of the trustees. The questions that came to our mind some of which have been referred to herein above, need to be answered in addition to that the learned CIT(A) is free to call for any other details / evidence to decide the issue as per law and facts. We thus set aside the impugned order passed by the learned Commissioner (Appeals) and allow ground no.1, raised by the Revenu statistical purposes. 5.1 All the grounds raised by the Revenue are related to the issue in-dispute of exemption u/s 11 of the Act. In Ground No. 1, the Revenue has urged that since order for the assessment year 2008 09 has been restored to the file in the year under consideration also the issue should be restored to the file of the Assessing Officer. under consideration, the Ld. CIT(A) sent the additional evidences to the Assessing Officer for calling his comments Officer in the remand report after verifying the documents furnished by the assessee has categorically stated that no direct benefit or advantage had been given to the persons specified u/s 13(3) of th Act. The relevant finding of the Assessing Officer has been reproduced by the Ld. CIT(A) in para 5.7 and 5.8 of the impugned order. For ready reference, the said finding is extracted as under: Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 (Appeals) and allow ground no.1, raised by the Revenu statistical purposes.” All the grounds raised by the Revenue are related to the issue dispute of exemption u/s 11 of the Act. In Ground No. 1, the Revenue has urged that since order for the assessment year 2008 09 has been restored to the file of the Assessing Officer. Therefore, in the year under consideration also the issue should be restored to he Assessing Officer. However, we find that in the year under consideration, the Ld. CIT(A) sent the additional evidences to ng Officer for calling his comments. The Officer in the remand report after verifying the documents furnished by the assessee has categorically stated that no direct benefit or advantage had been given to the persons specified u/s 13(3) of th Act. The relevant finding of the Assessing Officer has been reproduced by the Ld. CIT(A) in para 5.7 and 5.8 of the impugned order. For ready reference, the said finding is extracted as under: Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 8 (Appeals) and allow ground no.1, raised by the Revenue for All the grounds raised by the Revenue are related to the issue- dispute of exemption u/s 11 of the Act. In Ground No. 1, the Revenue has urged that since order for the assessment year 2008- of the Assessing Officer. Therefore, in the year under consideration also the issue should be restored to , we find that in the year under consideration, the Ld. CIT(A) sent the additional evidences to The Ld. Assessing Officer in the remand report after verifying the documents furnished by the assessee has categorically stated that no direct benefit or advantage had been given to the persons specified u/s 13(3) of the Act. The relevant finding of the Assessing Officer has been reproduced by the Ld. CIT(A) in para 5.7 and 5.8 of the impugned order. For ready reference, the said finding is extracted as under: “5.7 During the course of the appellate proceedings the appellant furnished the copies of the land agreement made with Ritika Hotels Pvt. Ltd., Memorandum of Understanding with Ritika Hotels Pvt. Ltd. and with Shri. Arun Kumar Muchhala. Since these before the Assessing Officer, the same were sent to the Assessi were not produced Officer for submission of a remand report. 5.8 The Assessing Officer vide his reply dated 11/03/2020 submitted that the trustees Shri. Arunkumar Muchhala and Smt. Ritika Arun kumar Muchhala were also directors in Ritika H between the Trust and Ritika Hotels Pvt. Ltd., it was mentioned that developers shall be entitled to retain the 5th floor of the building for their own exclusive and the bona fide use, however no direct been given to these persons. 5.9 From the remand report of the Assessing Officer, it could be observed that no evidence has been brought on record against the appellant to prove that the provisions of Section 13(1)(c)(ii) could be case. Appellant had clearly established that the advances made to the trustee Shri. Arun Kumar Muchhala was towards purchase of vacant plot/land for the use of the trust.” Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 5.7 During the course of the appellate proceedings the appellant furnished the copies of the land agreement made with Ritika Hotels Pvt. Ltd., Memorandum of Understanding with Ritika Hotels Pvt. Ltd. and with Shri. Arun Kumar Muchhala. Since these before the Assessing Officer, the same were sent to the Assessing hese werences were not produced Officer for submission of a remand 5.8 The Assessing Officer vide his reply dated 11/03/2020 submitted that the trustees Shri. Arunkumar Muchhala and Smt. Ritika Arun kumar Muchhala were also directors in Ritika Hotels Pvt. Ltd. It could be seen that as per the MOU between the Trust and Ritika Hotels Pvt. Ltd., it was mentioned that developers shall be entitled to retain the 5th floor of the building for their own exclusive and the bona fide use, however no direct benefit to/advantage has been given to these persons. 5.9 From the remand report of the Assessing Officer, it could be observed that no evidence has been brought on record against the appellant to prove that the provisions of Section 13(1)(c)(ii) could be applied to the appellant's case. Appellant had clearly established that the advances made to the trustee Shri. Arun Kumar Muchhala was towards purchase of vacant plot/land for the use of the Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 9 5.7 During the course of the appellate proceedings the appellant furnished the copies of the land agreement made with Ritika Hotels Pvt. Ltd., Memorandum of Understanding with Ritika Hotels Pvt. Ltd. and with Shri. Arun Kumar Muchhala. Since these before the Assessing ng hese werences were not produced Officer for submission of a remand 5.8 The Assessing Officer vide his reply dated 11/03/2020 submitted that the trustees Shri. Arunkumar Muchhala and Smt. Ritika Arun kumar Muchhala were also directors in otels Pvt. Ltd. It could be seen that as per the MOU between the Trust and Ritika Hotels Pvt. Ltd., it was mentioned that developers shall be entitled to retain the 5th floor of the building for their own exclusive and the benefit to/advantage has 5.9 From the remand report of the Assessing Officer, it could be observed that no evidence has been brought on record against the appellant to prove that the provisions of applied to the appellant's case. Appellant had clearly established that the advances made to the trustee Shri. Arun Kumar Muchhala was towards purchase of vacant plot/land for the use of the 5.2 In our opinion, the Assessing Officer himself has ver facts and accepted that there is no direct benefit or advantage to the person specified u/s 13(3) of the Act. no need to restore the matter back to the file of the Assessing Officer. The Assessing Officer himself has accepted that no advantage has been passed on to the specified persons u/s 13(3) of the Act still the Assessing Officer has filed the appeal issue. This action of the Assessing Officer is not justified unless same is not bonafide. Before us, the Revenue has nowhere said anything on the bonafidy of the Assessing Officer while sending the remand report. 5.3 In view of the above facts any error in the order of the Ld. CIT(A) on the issue accordingly, we uphold the same. Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 In our opinion, the Assessing Officer himself has ver facts and accepted that there is no direct benefit or advantage to the person specified u/s 13(3) of the Act. In such circumstances, t no need to restore the matter back to the file of the Assessing Officer. The Assessing Officer himself has accepted that no advantage has been passed on to the specified persons u/s 13(3) of the Act still the Assessing Officer has filed the appeal issue. This action of the Assessing Officer is not justified unless same is not bonafide. Before us, the Revenue has nowhere said anything of the Assessing Officer while sending the remand In view of the above facts and circumstances, we do not find any error in the order of the Ld. CIT(A) on the issue accordingly, we uphold the same. Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 10 In our opinion, the Assessing Officer himself has verified these facts and accepted that there is no direct benefit or advantage to the In such circumstances, there is no need to restore the matter back to the file of the Assessing Officer. The Assessing Officer himself has accepted that no advantage has been passed on to the specified persons u/s 13(3) of the Act still the Assessing Officer has filed the appeal on the same issue. This action of the Assessing Officer is not justified unless same is not bonafide. Before us, the Revenue has nowhere said anything of the Assessing Officer while sending the remand and circumstances, we do not find any error in the order of the Ld. CIT(A) on the issue-in-dispute and 6. In the result, the appeal filed by the Revenue is accordingly dismissed. The cross- and therefore, same is Order pronounced in the open Court in Sd/- (SANDEEP SINGH KARHAIL JUDICIAL MEMBER Mumbai; Dated: 26/08/2022 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 In the result, the appeal filed by the Revenue is accordingly -objection filed by the assessee was not pressed and therefore, same is also dismissed as infructuous. ounced in the open Court in 26/08/2022. Sd SANDEEP SINGH KARHAIL) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary ITAT, Mumbai Sai Shiva Educational Trust ITA No. 124/M/2022 & CO No. 71/M/2022 11 In the result, the appeal filed by the Revenue is accordingly was not pressed dismissed as infructuous. /08/2022. Sd/- OM PRAKASH KANT) MEMBER Sr. Private Secretary) ITAT, Mumbai