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

ITA 200/AHD/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1152 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 15-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 22-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL SRDR
• Keywords: Period of limitation; Assessment record; Reason to believe
• Section: 12AA; 147

Judgement Text

O , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , , BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.200/AHD/2015 ( / ASSESSMENT YEAR : 2009-10) KALIKA MATAJI TEMPLE PUBLIC TRUST PVAGADH PANCHMAHALS / VS. ACIT PANCHMAHAL CIRCLE GODHRA ./ ./ PAN/GIR NO. : AAATK 1776 H ( ' / APPELLANT ) .. ( #' / RESPONDENT ) ' $ / APPELLANT BY : SHRI SUNIL TALATI, AR #' % $ / RESPONDENT BY : SHRI P.L. KUREEL, SR.DR &'( % ) / DATE OF HEARING 16/07/2015 *+, % ) / DATE OF PRONOUNCEMENT 31/08/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-VI, BARODA [CIT(A) IN SHORT] DATED 01/10/2014 PERTAINING TO ASSESSMENT Y EAR (AY) 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- YOUR APPELLANT BEING AGGRIEVED BY THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-VI, BARODA PRE SENTS THIS APPEAL AGAINST THE SAME ON THE FOLLOWING AMONGST OTHER GRO UNDS. ITA NO.200 /AHD /2015 KALIKA MATAJI TEMPLE PUBLIC TRUST VS. ACIT ASST.YEAR 2009-10 - 2 - 1. THE LEARNED CIT(APPEALS)-VI, BARODA HAS ERRED & CO NFIRMING THE PROVISIONS OF SECTION 11(3)(C) AND HAS INCORRECTLY AND ILLEGALLY ERRED IN CONFIRMING THE ADDITION OF RS.1,35,70,420/-. IT IS SUBMITTED THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADD ITION IS NOT JUSTIFIED AND ADDITION BE DELETED. 2. WITHOUT PREJUDICE TO THE ABOVE THE LEARNED CIT(APPE ALS)-VI, BARODA HAS ERRED IN NOT APPRECIATING THE FACT THAT IT WAS IMPOSSIBILITY OF THE SITUATION THAT THE TRUST COULD NOT HAVE SPENT THE M ONEY ACCUMULATED IN A.Y. 2003-04 AND COMPLIED WITH THE PROVISIONS OF INCOME TAX ACT. IT IS SUBMITTED THAT THE ACTS AND DEEDS OF THE TRUS T, RESOLUTIONS PASSED AND THE ORDERS PASSED BY THE STATE GOVERNMENT/DISTR ICT COLLECTOR CLEARLY SHOW THAT IT WAS JUST NOT POSSIBLE FOR THE TRUST TO SPEND THE AMOUNT OF RS.1,35,70,420/- ACCUMULATED. IT IS SUBM ITTED THAT IN VIEW OF THIS, THE TRUST SHOULD BE ALLOWED TO SPEND THE M ONEY, AS PER THE RESOLUTION, AS AND WHEN THE ORDERS, WHICH ARE CHALL ENGED IN THE COURTS ARE CANCELLED AND THE TRUST IN A POSITION TO BUY THE LAND AND SPEND THE AMOUNT AS PER THE RESOLUTIONS. IT IS SUB MITTED 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 LEGALLY POSSIBLE FOR IT TO SPEND THE SAME. IT IS SUBMITTED THAT DIRECTION BE GIVEN ACCORDINGLY. ALTERNATIVELY, THE TRUST BE ALL OWED TO SPEND THE MONEY FOR OTHER OBJECTS OF THE RUST NOTWITHSTANDING THE RESOLUTION PASSED AND THE TRUST BE ALLOWED TO DO VARIATIONS AC CORDINGLY AND THE ADDITION OF RS.1,35,70,420/- MADE BE DELETED. 4. THE ORDER PASSED BY CIT(APPEALS)-VI, BARODA IS BAD IN LAW AND CONTRARY TO THE PROVISIONS OF LAW AND FACTS. IT IS SUBMITTED THAT THE SAME BE HELD SO NOW. 5. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER AND/OR TO AMEND ALL/OR ANY OF THE GROUNDS BEFORE FINAL HEARING OF THE APPEAL. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS REOPENED AND THE ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT ,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DAT ED 31/03/2014, ITA NO.200 /AHD /2015 KALIKA MATAJI TEMPLE PUBLIC TRUST VS. ACIT ASST.YEAR 2009-10 - 3 - THEREBY THE ASSESSING OFFICER (AO IN SHORT) MADE AD DITION OF ACCUMULATED INCOME PERTAINING TO AY 2003-04 OF RS.1 ,35,70,474/-. AGAINST THE SAID ASSESSMENT ORDER, ASSESSEE PREFERR ED AN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSION S DISMISSED THE APPEAL. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), T HE ASSESSEE IS NOW IN APPEAL BEFORE US. 3. THE LD.COUNSEL FOR THE ASSESSEE ARGUED AT LENGTH AND SUBMITTED THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN MAKING THE ADDITION. HE SUBMITTED THAT COMPETENT COURT OF JUDICATURE, THE J OINT DISTRICT JUDGE, PANCHAMAHAL, GODHRA VIDE ORDER DATED 01/10/1994 AP POINTED RECEIVERS FOR MANAGEMENT OF THE PROPERTIES AND AFFAIRS OF THE SHREE KALIKA MATAJI TEMPLE, A REGISTERED PUBLIC TRUST. HE SUBMITTED TH AT DURING THE PERIOD, THE TRUSTEES OF THE APPELLANT TRUST WERE RESTRAINED FROM MANAGING THE AFFAIRS OF THE TRUST. THE AFFAIRS OF THE TRUST WER E MANAGED BY COURT APPOINTED RECEIVERS. THE LD.COUNSEL FOR THE ASSE SSEE SUBMITTED THAT THE PERIOD WHEN THE COURT ORDER WAS IN OPERATION SUCH P ERIOD SHOULD BE EXCLUDED FOR THE PURPOSE OF COMPUTING THE PERIOD OF TEN YEARS IN TERMS OF PROVISION TO SECTION 11(2) OF THE ACT. THE LD.C OUNSEL FOR THE ASSESSEE HAD DRAWN OUR ATTENTION TOWARDS THE ORDER OF THE JO INT DISTRICT JUDGE, PANCHAMAHAL, GODHRA. THE LD.COUNSEL FOR THE ASSESS EE SUBMITTED THAT THE ORDER FO THE COURT REMAINED IN FORCE FROM 1/10/1994 TO 30/08/2007. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AUTH ORITIES BELOW FAILED TO ITA NO.200 /AHD /2015 KALIKA MATAJI TEMPLE PUBLIC TRUST VS. ACIT ASST.YEAR 2009-10 - 4 - APPRECIATE THAT PERIOD OF LIMITATION AS PER SECOND PROVISO TO SECTION 11(2) OF THE ACT WOULD BEGIN WITH AY 2008-09 RELEVANT TO FY 2007-08 AND NOT WITH AY 2003-04 AND, THEREFORE, ERRED IN CONSIDERIN G THAT ACCUMULATION INCOME AVAILABLE TO AY 2003-04 EXIGIBLE TO TAX AS P ER SECTION 11(3) OF THE ACT. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD.ACIT OUGHT TO HAVE APPRECIATED THAT THE PROVISIONS OF SE CTION 11(2) OF THE ACT READ WITH THE SECOND PROVISO THERETO BELOW WERE APP LICABLE TO THE CASE OF THE APPELLANT-TRUST AND THEREFORE THE APPELLANT-TRU ST HAD NOT CONTRAVENED THE PROVISIONS OF SEC.11(3)(C) OF THE INCOME-TAX AC T 1961 IN ANY MANNER WHATSOEVER AND NOR WERE THE PROVISIONS OF SEC. 11(3 A) OF THE INCOME-TAX ACT 1961 APPLICABLE TO THE APPELLANT-TRUST. THE LD .COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PROVISIONS OF SECTION 1 1(3A) WOULD BECOME OPERATIVE ONLY WHEN THE PERSON WHO WAS IN RECEIPT O F INCOME AND WHO HAD INVESTED THE SAME AS PER THE PROVISIONS OF SECT ION 11(5) COULD NOT APPLY THE SAME FOR THE PURPOSE FOR WHICH IT WAS ACC UMULATED OR SET APART, REQUIRED PERMISSION TO APPLY SUCH INCOME FOR SUCH O THER CHARITABLE OR RELIGIOUS PURPOSE IN INDIA. SECTION 11(3A) STARTS WITH THE NON-OBSTANTE CLAUSE RESTRICTED TO THE PROVISIONS OF SECTION 11(3 ). THE PERIOD REFERRED TO IN CLAUSE (C) OF SECTION 11(3) REFERS TO THE PERIOD REFERRED TO IN CLAUSE(A) OF SECTION 11(2). THE PROVISO BELOW SECTION 11(2) CARVES OUT AN EXCEPTION WITH RESPECT TO THE PERIOD THAT NEEDS TO BE COMPUTED AS PER THE PROVISIONS OF SECTION 11(2)(A) AND DUE TO THE OPERA TION OF THE INJUNCTION OF THE DISTRICT COURT THE CASE OF THE APPELLANT SQU ARELY FALLS WITHIN THIS ITA NO.200 /AHD /2015 KALIKA MATAJI TEMPLE PUBLIC TRUST VS. ACIT ASST.YEAR 2009-10 - 5 - EXCEPTION. FURTHER, THE LD.COUNSEL FOR THE ASSESSE E REITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE LD.CIT(A). 3.1. ON THE CONTRARY, LD.SR.DR SUBMITTED THAT THERE IS NO ILLEGALITY IN THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE WAS REQUIRED TO APPLY THE FUND IN ACCORDANCE WITH THE PROVISIONS OF THE A CT, BUT THE ASSESSEE- TRUST FAILED TO DO SO. THEREFORE, THE AO WAS JUSTI FIED IN MAKING THE ADDITION. HE SUBMITTED THAT THE APPELLANT TRUST HA D NOT FILED THE REQUISITE APPLICATION AS CONTEMPLATED U/S.11 OF THE ACT. HE SUBMITTED THAT THE APPOINTMENT OF RECEIVER WOULD NOT IPSO FACTO BE SUFFICIENT TO NOT TO COMPLY WITH THE MANDATORY PROVISIONS OF THE ACT. H E SUBMITTED THAT THE LD.COURT HAD NOT RESTRAINED THE RECEIVER FROM APPLY ING THE FUND AS PER THE PROVISIONS OF THE ACT. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE REASONS FOR ISSUING NOTICE U/S.148 OF THE ACT A RE RECORDED IN THE ASSESSMENT ORDER AT PARA-2, WHICH ARE IN THE FOLLOW ING TERMS:- 2. THE FOLLOWING REASONS WERE RECORDED FOR ISSUE 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 25.09.20 09 DECLARING TOTAL INCOME OF RS.NIL/-. RETURN OF INCO ME WAS PROCESSED ON 06.07.2010 ACCEPTING THE RETURN INCOME . DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR A.Y . 2010- ITA NO.200 /AHD /2015 KALIKA MATAJI TEMPLE PUBLIC TRUST VS. ACIT ASST.YEAR 2009-10 - 6 - 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% OF 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 THE UNDERSIGNED HAVE DEPTH DISCUSSION REGARDING ACCUMULATIONS. BASED ON THE ASSESSMENT RECORD AVAI LABLE IN THIS OFFICE, AND THE ASSESSEES SUBMISSION DATED 26 .12.2012 REGARDING ACCUMULATION THE UNDERSIGNED COME TO KNOW THAT THE TRUST DID NOT SPEND ACCUMULATED FUND IN THE CON CERN 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 REFERR ED TO IN A CLAUSE (A) OF THAT SUB-SECTION OR IN THE YEAR IMMED IATELY FOLLOWING THE EXPIRY THEREOF- 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 . THE FACTS AS BROUGHT OUT IN A.Y. 2010-11 AND AS MEN TIONED ABOVE ARE APPLICABLE TO THE CASE OF THE ASSESSEE FO R A.Y. 2009-10 AND THE POINT PERTINENT TO NOTE THAT THE AR AGREED VIDE ORDER SHEET ENTRY DATED 26.12.2012 THAT HE DOE S NOT HAVE ANY OBJECTION ABOUT THE ADDITION MADE ON THE S AME GROUND DURING ASSESSMENT PROCEEDING FOR A.Y. 2010-1 1. ACCORDINGLY I HAVE REASON TO BELIEVE THAT THE ASSES SEE HAS FAILED TO DISCLOSE TRULY AND FAIRLY ALL THE FACTS R ELEVANT TO ITS ASSESSMENT FOR A.Y. 2009-10. ITA NO.200 /AHD /2015 KALIKA MATAJI TEMPLE PUBLIC TRUST VS. ACIT ASST.YEAR 2009-10 - 7 - THUS, I HAVE, THEREFORE REASON TO BELIEVE THAT INCO ME EXCEEDING RS.ONE LACS CHARGEABLE TO TAX HAS BEEN ES CAPED THE ASSESSMENT FOR 2009-10 WITHIN THE MEANING OF SE CTION 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 WERE CONFIRMED BY THE LD.CIT(A). 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 OPERATION TO BE EXCLUDED FOR RECKONING THE PERIOD OF 10 YEARS AS ME NTIONED 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 HE REINBELOW:- SECTION 11 [(2) [WHERE [EIGHTY-FIVE PER CENT] OF THE INCOME REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OF SUB-SECTION (1) READ WITH THE E XPLANATION TO THAT SUB-SECTION IS NOT APPLIED, OR IS NOT DEEMED TO HAVE BEEN APPLIED , TO CHARITABLE OR RELIGIOUS PURPOSES IN INDIA DURING THE PREVIOUS YEAR BUT IS A CCUMULATED OR SET APART, EITHER IN WHOLE OR IN PART, FOR APPLICATION TO SUCH PURPOSES I N INDIA, SUCH INCOME SO ACCUMULATED OR SET APART SHALL NOT BE INCLUDED IN TH E TOTAL INCOME OF THE PREVIOUS YEAR OF THE PERSON IN RECEIPT OF THE INCOME, PROVIDED THE FOLLOWING CONDITIONS ARE COMPLIED WITH, NAMELY :] (A) SUCH PERSON SPECIFIES, BY NOTICE IN WRITING GIVE N TO THE [ASSESSING OFFICER] IN THE PRESCRIBED MANNER, THE PURPOSE FOR WHICH THE INC OME 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 INVESTE D OR DEPOSITED IN THE FORMS OR MODES SPECIFIED IN SUB-SECTION (5) :] [PROVIDED THAT IN COMPUTING THE PERIOD OF TEN YEARS R EFERRED TO IN CLAUSE (A), THE PERIOD DURING WHICH THE INCOME COULD NOT BE APPLIED FOR THE PURPOSE FOR WHICH IT ITA NO.200 /AHD /2015 KALIKA MATAJI TEMPLE PUBLIC TRUST VS. ACIT ASST.YEAR 2009-10 - 8 - IS SO ACCUMULATED OR SET APART, DUE TO AN ORDER OR INJ UNCTION OF ANY COURT, SHALL BE EXCLUDED:] [PROVIDED FURTHER THAT IN RESPECT OF ANY INCOME ACCU MULATED OR SET APART ON OR AFTER THE 1ST DAY OF APRIL, 2001, THE PROVISIONS OF THIS SUB-SECTION SHALL HAVE EFFECT AS IF FOR THE WORDS 'TEN YEARS' AT BOTH THE P LACES WHERE THEY OCCUR, THE WORDS 'FIVE YEARS' HAD BEEN SUBSTITUTED.] [ EXPLANATION. : ANY AMOUNT CREDITED OR PAID, OUT OF INCOME REFERRED T O IN CLAUSE (A) OR CLAUSE (B) OF SUB-SECTION (1), READ WITH THE EX PLANATION TO THAT SUB- SECTION, WHICH IS NOT APPLIED, BUT IS ACCUMULATED OR S ET APART, TO ANY TRUST OR INSTITUTION REGISTERED UNDER SECTION 12AA OR TO ANY F UND OR INSTITUTION OR TRUST OR ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION OR A NY HOSPITAL OR OTHER MEDICAL INSTITUTION REFERRED TO IN SUB-CLAUSE (IV) OR SUB-CLA USE (V) OR SUB-CLAUSE (VI) OR SUB-CLAUSE (VIA) OF CLAUSE (23C) OF SECTION 10, SHAL L 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 RE LIGIOUS PURPOSES AS AFORESAID OR CEASES TO BE ACCUMULATED OR SET APART FOR APPLICAT ION 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-SECTION OR IN THE YEAR IMMEDIATELY FOLLOWING THE EXPIRY THEREOF, [(D) IS CREDITED OR PAID TO ANY TRUST OR INSTITUTION REGISTERED UNDER SECTION 12AA OR TO ANY FUND OR INSTITUTION OR TRUST OR ANY UNIVERSIT Y OR OTHER EDUCATIONAL INSTITUTION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUT ION REFERRED TO IN SUB-CLAUSE (IV) OR SUB-CLAUSE (V) OR SUB-CLAUSE (VI) OR SUB-CLA USE (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 PREVIOUS YEAR IMMEDIATELY FOLLOWING THE EXPIRY OF THE PERIOD A FORESAID.] [(3A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECT ION (3), WHERE DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF THE PERSON IN REC EIPT OF THE INCOME, ANY INCOME INVESTED OR DEPOSITED IN ACCORDANCE WITH THE P ROVISIONS OF CLAUSE (B) OF ITA NO.200 /AHD /2015 KALIKA MATAJI TEMPLE PUBLIC TRUST VS. ACIT ASST.YEAR 2009-10 - 9 - SUB-SECTION (2) CANNOT BE APPLIED FOR THE PURPOSE FOR WHICH IT WAS ACCUMULATED OR SET APART, THE [ASSESSING OFFICER] MAY, ON AN APP LICATION MADE TO HIM IN THIS BEHALF, ALLOW SUCH PERSON TO APPLY SUCH INCOME FOR SU CH OTHER CHARITABLE OR RELIGIOUS PURPOSE IN INDIA AS IS SPECIFIED IN THE A PPLICATION BY SUCH PERSON AND AS IS IN CONFORMITY WITH THE OBJECTS OF THE TRUST; AND TH EREUPON THE PROVISIONS OF SUB-SECTION (3) SHALL APPLY AS IF THE PURPOSE SPECI FIED BY SUCH PERSON IN THE APPLICATION UNDER THIS SUB-SECTION WERE A PURPOSE SPEC IFIED IN THE NOTICE GIVEN TO THE [ASSESSING OFFICER] UNDER CLAUSE (A) OF SUB-SEC TION (2) :] [PROVIDED THAT THE ASSESSING OFFICER SHALL NOT ALLOW APPLICATION OF SUCH INCOME BY WAY OF PAYMENT OR CREDIT MADE FOR THE PURPOSES REFERR ED TO IN CLAUSE (D) OF SUB- SECTION (3) OF SECTION 11 :] [PROVIDED FURTHER THAT IN CASE THE TRUST OR INSTITUT ION, WHICH HAS INVESTED OR DEPOSITED ITS INCOME IN ACCORDANCE WITH THE PROVISIO NS 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 SU B-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 FOLL OWING 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 BA R, IS HEREBY APPOINTED AS RECEIVER TO MANAGE THE PROPERTIES OF T HE PUBLIC TRUST KNOWN AS KALIKA MOTALI TEMPLE, AT PAVAGADH DURING T HE PENDENCY OF THIS SUIT. 4. THE RECEIVER SHALL MANAGE THE PROPERTY IN THE BEST OF THE INTEREST OF THE TRUST AND SHALL PRODUCE ACCOUNTS OF THE TRUST E VERY THREE MONTHS BEFORE THE ASSISTANT CHARITY COMMISSIONER, NADIAD A ND SHALL ALSO PRODUCE A COPY THEREOF TO THIS COURT. HE SHALL TAK E ALL STEPS TO REALIZE THE DUES OF THE TRUST. HE WILL BE ENTITLED TO A MO NTHLY REMUNERATION OF RS.1,500/- (RUPEES ONE THOUSAND FIVE HUNDRED ONLY) TENTATIVELY FROM THE DATE OF ISSUE OF RECEIVER PATRA IN ADDITION TO REASONABLE EXPENSES ITA NO.200 /AHD /2015 KALIKA MATAJI TEMPLE PUBLIC TRUST VS. ACIT ASST.YEAR 2009-10 - 10 - INCURRED BY HIM FOR THE MANAGEMENT OF THE TRUST. H E SHALL COMMENCE THE WORK OF RECEIVER FORTHWITH. 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.PA TEL, THE RECEIVER, APPOINTED ABOVE. HE SHALL ALSO BE ENTITLED TO A MO NTHLY REMUNERATION OF RS.750/- TENTATIVELY IN ADDITION TO REASONABLE E XPENSES INCURRED BY HIM FOR MANAGEMENT OF THE TRUST PROPERTIES. 6. THE REMUNERATION OF THE RECEIVER AND HIS A SSISTANT 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 PENDENCY 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 ADDITI ONAL REMUNERATION FOR THE SAID WORK OF INVENTORY OF THE TRUST PROPERT IES AT RS.1,000/- (RUPEES ONE THOUSAND ONLY AT FIRST INSTANCE. PRONOUNCED IN THE OPEN COURT TODAY THIS 01 ST DAY 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 29/10/1994 IN THE FOLLOWING TERMS:- ORDER 1. THE AD-INTERIM INJUNCTION AND THE ORDER FOR THE APP OINTMENT OF RECEIVER PASSED BY THIS COURT BELOW EXH.3 DATED 1/1 0/1994 IS HEREBY CONFIRMED AND MADE ABSOLUTE TILL THE FINAL D ECISION OF THE CIVIL SUIT NO.2 OF 1994. 2. THE OBJECTIONS FILED BY THE DEFENDANTS VIDE EXH.23 ARE HEREBY REJECTED. ITA NO.200 /AHD /2015 KALIKA MATAJI TEMPLE PUBLIC TRUST VS. ACIT ASST.YEAR 2009-10 - 11 - 3. IT IS HEREBY ORDERED AND DECLARED THAT THE DEFENDAN TS ARE NTO ENTITLED TO GET THE RELIEF AS CLAIMED FOR IN THE WS EXH.23. 4. THE DEFENDANTS SHALL PAY THE COSTS OF THIS APPLICAT ION TO THE PLAINTIFF AND BEAR THEIR OWN. PRONOUNCED IN THE OPEN COURT TODAY THIS 29 TH 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 R ECEIVER TO MANAGE PROPERTIES OF THE ASSESSEE-TRUST. THE RECEIVER WA S FURTHER AUTHORIZED TO MANAGE THE PROPERTY IN THE BEST OF THE INTEREST OF THE TRUST AND PRODUCE ACCOUNTS OF THE TRUST EVERY THREE MONTHS BEFORE THE ASSISTANT CHARITY COMMISSIONER, NADIAD. THE COURT ALSO APPOINTED SHR I M.M.PARMAR, C.O.C., DISTRICT COURT, PANCHMAHALS, GODHRA AS CO-R ECEIVER TO ASSIST SHRI N.B.PATEL, THE RECEIVER. THE DEFENDANTS WER E FURTHER RESTRAINED FROM MANAGING THE PROPERTIES AND AFFAIRS OF THE TRU ST DURING THE PENDENCY OF THE APPEAL THE RECEIVER WAS DIRECTED TO MAKE AN INVENTORY OF THE TRUST PROPERTIES AND AFFAIRS BELONGING TO THE PUBLI C TRUST KNOWN AS KALIKA MATAJI TEMPLE. 4.5. FROM THE ABOVE ORDER, IT IS CLEAR THAT THE AFF AIRS OF THE ASSESSEE- TRUST WERE TAKEN OVER BY THE COURT APPOINTED RECEIV ER AND, THEREFORE, IT CAN BE INFERRED FROM THE MATERIAL AVAILABLE ON RECO RD THAT THE TRUSTEES OF THE ASSESSEE-TRUST WERE RESTRAINED FROM MANAGING TH E AFFAIRS. 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 EXPLA NATION OF THE ASSESSEE ITA NO.200 /AHD /2015 KALIKA MATAJI TEMPLE PUBLIC TRUST VS. ACIT ASST.YEAR 2009-10 - 12 - ON THE GROUND THAT THERE WAS NO PROHIBITION OR REST RAINING ORDER BY THE COURT THAT THE RECEIVER WOULD NOT COMPLY WITH THE PROVISIONS OF THE ACT. SO FAR AS THE ASSESSEE-TRUST IS CONCERNED, ITS AFFA IRS WERE TAKEN OVER BY THE COURT APPOINTED RECEIVER, THEREFORE IT CANNOT B E INFERRED THAT THE ASSESSEE-TRUST WAS IN ANYWAY RESPONSIBLE FOR NOT MA KING AN APPLICATION FOR ACCUMULATION OF INCOME U/S.11(1) OF THE ACT. T HE CONTENTION OF THE ASSESSEE IS THAT THE DELAY IN MAKING APPLICATION BY THE ASSESSEE-TRUST WAS DUE TO SUFFICIENT CAUSE AND THE AUTHORITIES BELOW O UGHT TO HAVE CONDONED THE DELAY AND EXCLUDED THE PERIOD DURING WHICH THE AFFAIRS OF THE TRUST WAS TAKEN OVER BY THE COURT RECEIVER TRUST. HOWEVE R, NO SUCH SITUATION IS CONTEMPLATED UNDER THE ACT WHERE THE AFFAIRS OF THE TRUST ARE TAKEN OVER BY THE COURT APPOINTED RECEIVER AND COMPLIANCE OF T HE PROVISION BY THE RECEIVER. SUB-SECTION(3A) OF SECTION 11 CONTEMPLAT ES A SITUATION WHERE DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF THE PERS ON IN RECEIPT OF THE INCOME, ANY INCOME INVESTED OR DEPOSITED IN ACCORDA NCE WITH THE PROVISIONS OF CLAUSE(B) OF SUB-SECTION (2) COULD N OT BE APPLIED FOR THE PURPOSE FOR WHICH IT WAS ACCUMULATED OR SET APART. IN THAT SITUATION, THE ASSESSING OFFICER MAY, ON AN APPLICATION MADE TO HI M IN THIS BEHALF, ALLOW SUCH PERSON TO APPLY SUCH INCOME FOR SUCH OTH ER CHARITABLE OR RELIGIOUS PURPOSE IN INDIA AS IS SPECIFIED IN THE A PPLICATION BY SUCH PERSON AND AS IS IN CONFORMITY WITH THE OBJECTS 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-SECTI ON FOR A PURPOSE ITA NO.200 /AHD /2015 KALIKA MATAJI TEMPLE PUBLIC TRUST VS. ACIT ASST.YEAR 2009-10 - 13 - SPECIFIED IN THE NOTICE GIVEN TO THE ASSESSING OFFI CER 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 RETR AINED FROM MANAGING THE AFFAIRS. FOR THE OMISSION ON THE PART OF THE COURT APPOINTED RECEIVER WOULD NOT, IN OUR CONSIDERED, VIEW DISENTITLE THE A SSESSEE-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 ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE ISS UE TO THE FILE OF AO FOR DECISION AFRESH. THE AO WOULD VERIFY THE PERIOD DU RING WHICH THE AFFAIRS OF THE ASSESSEE-TRUST WERE MANAGED BY THE COURT APP OINTED RECEIVER. HE WOULD EXCLUDE SUCH PERIOD IN THE LIGHT OF FIRST PROVISO TO SECTION 11(2) OF THE ACT AND WOULD VERIFY WHETHER THE MONEY SO AC CUMULATED OR SET APART WAS INVESTED OR DEPOSITED IN THE FORMS OR MOD ES SPECIFIED IN SECTION 11(5) OF THE ACT. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON MONDAY, THE 31ST D AY OF AUGUST, 2015 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( PRAMOD KUMAR ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 31/ 08 /2015 ITA NO.200 /AHD /2015 KALIKA MATAJI TEMPLE PUBLIC TRUST VS. ACIT ASST.YEAR 2009-10 - 14 - 0)..& , '.&../ T.C. NAIR, SR. PS !'#$%&' &$ / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 123 4 / CONCERNED CIT 4. 4 ( ) / THE CIT(A)-VI, BARODA 5. 5'6 &23 , ) 23 , , 1 / DR, ITAT, AHMEDABAD 6. 689 :( / GUARD FILE. ! / BY ORDER, #5 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 21.8.15 (DICTATION-PAD 14 +PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..26/27.8.15 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.31.8.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 31.8.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDE 11. R