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

ITA 201/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9163 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 22-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Keywords: Assessment record; Reason to believe
• Section: 12AA; 147

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ITA NO. 201/AHD/2015 / ASSESSMENT YEAR: 2011-12 SHRI KALIKA MATA TEMPLE PUBLIC TRUST, PAVAGADH, PANCHMAHAL PAN : AACTS 7957 G VS ASSISTANT COMMISSIONER OF INCOME-TAX, PANCHMAHAL CIRCLE, GODHARA / (APPELLANT) / (RESPONDENT) ASSESSEE(S) BY : SUNIL TALATI, AR REVENUE BY : SONIA KUMAR, SR DR / DATE OF HEARING : 11/03/2016 / DATE OF PRONOUNCEMENT: 21/03/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-VI, BA RODA, DATED 01.10.2014 FOR ASSESSMENT YEAR 2011-12. 2. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE READ AS UNDER:- 1. THE LEARNED CIT (APPEALS)-VI, BARODA HAS ERRED & CO NFIRMING THE PROVISIONS OF SECTION 11(3)(C) AND HAS INCORRECTLY AN D ILLEGALLY ERRED IN CONFIRMING THE ADDITION OF RS.1,63,83,100/-. 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 AY 2005-06 AND COMPLIED WITH THE PROVISIONS OF I NCOME TAX ACT. IT IS SUBMITTED THAT THE ACTS AND DEEDS OF THE TRUS T, RESOLUTIONS PASSED AND THE ORDERS PASSED BY THE STATE GOVERNMEN T / DISTRICT ITA NO. 201/AHD/2015 SHRI KALIKA MATA TEMPLE PUBLIC TRUST VS. ACIT AY : 2011-12 2 COLLECTOR CLEARLY SHOW THAT IT WAS JUST NOT POSSIBL E FOR THE TRUST TO SPEND THE AMOUNT OF RS.1,63,83,100/- ACCUMULATED. IT IS SUBMITTED THAT IN VIEW OF THIS, THE TRUST SHOULD BE ALLOWED T O SPEND THE MONEY, AS PER THE RESOLUTION, AS AND WHEN THE ORDERS, WHIC H ARE CHALLENGED IN THE COURTS ARE CANCELLED AND THE TRUST IN A POSI TION TO BUY THE LAND AND SPEND THE AMOUNT AS PER THE RESOLUTIONS. IT IS SUBMITTED 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 AL LOWED TO SPEND THE MONEY FOR OTHER OBJECTS OF THE TRUST NOTWITHSTANDIN G THE RESOLUTION PASSED AND THE TRUST BE ALLOWED TO DO VARIATIONS AC CORDINGLY AND THE ADDITION OF RS.1,63,83,100/- 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. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. WE FIND THAT SIMILAR ISSUE AROSE IN ASS ESSEES OWN CASE FOR ASSESSMENT YEAR 2009-10 VIDE ITA NO.200/AHD/2015, W HEREIN THE ITAT HAS SET ASIDE THE ORDERS OF THE AUTHORITIES BE LOW AND RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECI SION AFRESH, BY OBSERVING AS UNDER:- 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. THE REASONS FOR ISSUING NOTICE U/S.148 OF THE ACT ARE R ECORDED IN THE ASSESSMENT ORDER AT PARA-2, WHICH ARE IN THE FOLLOW ING TERMS:- 2. THE FOLLOWING REASONS WERE RECORDED FOR ISSUE N OTICE U/S.148 OF THE ACT AND THE SAME ARE REPRODUCED HEREINBELOW FOR THE SAKE OF REFERENCE. ITA NO. 201/AHD/2015 SHRI KALIKA MATA TEMPLE PUBLIC TRUST VS. ACIT AY : 2011-12 3 IN THIS CASE RETURN OF INCOME IS FILED ON 25.09.20 09 DECLARING TOTAL INCOME OF RS.NIL/-. RETURN OF INCOME WAS PROC ESSED ON 06.07.2010 ACCEPTING THE RETURN INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR A.Y. 2010-11, WHILE ANAL YZING VARIOUS FORM NO.10 SUBMITTED BY THE TRUST FOR RELEV ANT 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 COURS E OF ASSESSMENT PROCEEDINGS THE AR OF THE ASSESSEE AND T HE UNDERSIGNED HAVE DEPTH DISCUSSION REGARDING ACCUMUL ATIONS. BASED ON THE ASSESSMENT RECORD AVAILABLE IN THIS OF FICE, AND THE ASSESSEES SUBMISSION DATED 26.12.2012 REGARDING AC CUMULATION THE UNDERSIGNED COME TO KNOW THAT THE TRUST DID NOT SPEND ACCUMULATED FUND IN THE CONCERN FINANCIAL YEAR AS R EQUIRED 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, 19 61. ANY INCOME REFERRED TO IN SUBSECTION 11(2) WHICH- (C) IS NOT UTILIZED FOR THE PURPOSE FOR WHICH IT IS SO ACCUMULATION OR SET APART, DURING THE PERIOD REFERRED TO IN A CL AUSE (A) OF THAT SUB-SECTION OR IN THE YEAR IMMEDIATELY FOLLOWING TH E EXPIRY THEREOF- SHALL BE DEEMED TO BE THE INCOME OF SUCH P ERSON OF THE PREVIOUS YEAR IN WHICH IT IS SO APPLIED OR CEASES T O BE SO ACCUMULATED OR SET APART. THE FACTS AS BROUGHT OUT IN A.Y. 2010-11 AND AS MEN TIONED ABOVE ARE APPLICABLE TO THE CASE OF THE ASSESSEE FOR A.Y. 2009-10 AND THE POINT PERTINENT TO NOTE THAT THE AR AGREED VIDE ORD ER SHEET ENTRY DATED 26.12.2012 THAT HE DOES NOT HAVE ANY OBJECTIO N ABOUT THE ADDITION MADE ON THE SAME GROUND DURING ASSESSMENT PROCEEDING FOR A.Y. 2010-11. ACCORDINGLY I HAVE REASON TO BELI EVE THAT THE ASSESSEE HAS FAILED TO DISCLOSE TRULY AND FAIRLY AL L THE FACTS RELEVANT TO ITS ASSESSMENT FOR A.Y. 2009-10. THUS, I HAVE, THEREFORE REASON TO BELIEVE THAT INCO ME EXCEEDING RS.ONE LACS CHARGEABLE TO TAX HAS BEEN ESCAPED THE ASSESSMENT FOR 2009-10 WITHIN THE MEANING OF SECTION 147 OF THE IN COME TAX ACT. THEREFORE, IT IS A FIT CASE TO ISSUE NOTICE U/ S.148 FOR A.Y. 2009-10. ITA NO. 201/AHD/2015 SHRI KALIKA MATA TEMPLE PUBLIC TRUST VS. ACIT AY : 2011-12 4 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 AD DITIONS 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 I N 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 CA SE. FOR THE SAKE OF CLARITY, SECTION 11(2) AND 11 (3) ARE REPRODUCED HERE INBELOW:- SECTION 11 [(2) [WHERE [EIGHTY-FIVE PER CENT] OF THE INCOME REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OF SUB-SECTION (1) READ WI TH THE EXPLANATION TO THAT SUB-SECTION IS NOT APPLIED, OR IS NOT DEEME D TO HAVE BEEN APPLIED, TO CHARITABLE OR RELIGIOUS PURPOSES IN INDIA DURING THE PREVIOUS YEAR BUT IS ACCUMULATED OR SET APART, EITHER IN WHOLE OR IN PART, FOR APPLICATION TO SUCH PURPOSES IN INDIA, SUCH INCOME SO ACCUMULATED OR SET APART SHALL NOT BE INCLUDED IN THE TOTAL INCOME OF THE PREVIOUS YEAR OF THE PERSON IN RECEIPT OF THE INCOME, PROVIDED THE FOLLOWING CONDI TIONS 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 W HICH THE INCOME IS BEING ACCUMULATED OR SET APART AND THE PERIOD FOR W HICH THE INCOME IS TO BE ACCUMULATED OR SET APART, WHICH SHALL IN NO C ASE EXCEED TEN YEARS ; [(B) THE MONEY SO ACCUMULATED OR SET APART IS INVEST ED OR DEPOSITED IN THE FORMS OR MODES SPECIFIED IN SUB-SECTION (5) :] [PROVIDED THAT IN COMPUTING THE PERIOD OF TEN YEARS REFERRED TO IN CLAUSE (A), THE PERIOD DURING WHICH THE INCOME COULD NOT B E APPLIED FOR THE PURPOSE FOR WHICH IT IS SO ACCUMULATED OR SET APAR T, DUE TO AN ORDER OR INJUNCTION OF ANY COURT, SHALL BE EXCLUDED:] [PROVIDED FURTHER THAT IN RESPECT OF ANY INCOME ACC UMULATED OR SET APART ON OR AFTER THE 1ST DAY OF APRIL, 2001, THE P ROVISIONS OF THIS SUB- SECTION SHALL HAVE EFFECT AS IF FOR THE WORDS 'TEN YEARS' AT BOTH THE PLACES WHERE THEY OCCUR, THE WORDS 'FIVE YEARS' HAD BEEN S UBSTITUTED.] [EXPLANATION. : ANY AMOUNT CREDITED OR PAID, OUT OF INCOME REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OF SUB-SECTION (1), READ WITH THE EXPLANATION TO THAT SUB-SECTION, WHICH IS NOT APPLIED, BUT IS A CCUMULATED OR SET APART, TO ANY TRUST OR INSTITUTION REGISTERED UNDER SECTION 12AA OR TO ANY FUND OR INSTITUTION OR TRUST OR ANY UNIVERSITY OR OTHER EDUCATIONAL ITA NO. 201/AHD/2015 SHRI KALIKA MATA TEMPLE PUBLIC TRUST VS. ACIT AY : 2011-12 5 INSTITUTION OR ANY HOSPITAL OR OTHER MEDICAL INSTIT UTION REFERRED TO IN SUB-CLAUSE (IV) OR SUB-CLAUSE (V) OR SUB-CLAUSE (VI) O R SUB-CLAUSE (VIA) OF CLAUSE (23C) OF SECTION 10, SHALL NOT BE TREATED AS APPLICATION OF INCOME FOR CHARITABLE OR RELIGIOUS PURPOSES, EITHER DURING THE PERIOD OF ACCUMULATION OR THEREAFTER.] SECTION 11 [(3) ANY INCOME REFERRED TO IN SUB-SECTIO N (2) WHICH (A) IS APPLIED TO PURPOSES OTHER THAN CHARITABLE OR RELIGIOUS PURPOSES AS AFORESAID OR CEASES TO BE ACCUMULATED OR SET APART FOR APPLICATION THERETO, OR [(B) CEASES TO REMAIN INVESTED OR DEPOSITED IN ANY O F 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 UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION REFERRED TO IN SUB-CLAUSE (IV) OR SUB-CL AUSE (V) OR SUB-CLAUSE (VI) OR SUB-CLAUSE (VIA) OF CLAUSE (23C) OF SECTION 10 ,] SHALL BE DEEMED TO BE THE INCOME OF SUCH PERSON OF THE PREVIOUS YEAR IN WHICH IT IS SO APPLIED OR CEASES TO BE SO ACCUMULAT ED OR [SET APART OR CEASES TO REMAIN SO INVESTED OR DEPOSITED OR CREDIT ED OR PAID OR], AS THE CASE MAY BE, OF THE PREVIOUS YEAR IMMEDIATELY FOLLO WING THE EXPIRY OF THE PERIOD AFORESAID.] [(3A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECT ION (3), 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) CANNOT BE APPLIED FOR THE PURPOSE FOR WHICH IT WAS ACCUMULATED OR SET APART, THE [ASSESSING OFFICER] MAY, ON AN APPLICATION MADE TO HIM IN THIS BEHALF, ALLOW SUCH PERSON TO APPLY SUCH INCOME FOR SUCH OTHER CHARITAB LE OR RELIGIOUS PURPOSE IN INDIA AS IS SPECIFIED IN THE APPLICATION 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 WERE A PURPOSE SPECIFIED IN THE NOTICE GIVEN TO THE [ASSESSING OFF ICER] UNDER CLAUSE (A) OF SUB-SECTION (2) :] ITA NO. 201/AHD/2015 SHRI KALIKA MATA TEMPLE PUBLIC TRUST VS. ACIT AY : 2011-12 6 [PROVIDED THAT THE ASSESSING OFFICER SHALL NOT ALLO W APPLICATION OF SUCH INCOME BY WAY OF PAYMENT OR CREDIT MADE FOR THE PUR POSES REFERRED TO IN CLAUSE (D) OF SUB-SECTION (3) OF SECTION 11 :] [PROVIDED FURTHER THAT IN CASE THE TRUST OR INSTITU TION, WHICH HAS INVESTED OR DEPOSITED ITS INCOME IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE (B) OF SUB-SECTION (2), IS DISSOLVED, THE ASS ESSING OFFICER MAY ALLOW APPLICATION OF SUCH INCOME FOR THE PURPOSES R EFERRED TO IN CLAUSE (D) OF SUB-SECTION (3) IN THE YEAR IN WHICH SUCH TRUS T 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 FOLLOW ING TERMS:- ORDER 1. THE APPLICATIONS ARE ALLOWED. 2. AD-INTERIM INJUNCTION AS PRAYED FOR IN PARA-6-A BE ISSUED AGAINST THE DEFENDANT. 3. SHRI N.B.PATEL, SR.ADVOCATE & NOTARY, GODHRA BAR , IS HEREBY APPOINTED AS RECEIVER TO MANAGE THE PROPERTIES OF T HE PUBLIC TRUST KNOWN AS KALIKA MOTALI TEMPLE, AT PAVAGADH DURING T HE PENDENCY OF THIS SUIT. 4. THE RECEIVER SHALL MANAGE THE PROPERTY IN THE BE ST OF THE INTEREST OF THE TRUST AND SHALL PRODUCE ACCOUNTS OF THE TRUST EVERY THREE MONTHS BEFORE THE ASSISTANT CHARITY COMMISSIO NER, NADIAD AND SHALL ALSO PRODUCE A COPY THEREOF TO THIS COURT . HE SHALL TAKE ALL STEPS TO REALIZE THE DUES OF THE TRUST. HE WILL BE ENTITLED TO A MONTHLY REMUNERATION OF RS.1,500/- (RUPEES ONE THOU SAND FIVE HUNDRED ONLY) TENTATIVELY FROM THE DATE OF ISSUE OF RECEIVER PATRA IN ADDITION TO REASONABLE EXPENSES INCURRED BY HIM FOR THE MANAGEMENT OF THE TRUST. HE 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 S HRI N.B.PATEL, THE RECEIVER, APPOINTED ABOVE. HE SHALL ALSO BE ENT ITLED TO A MONTHLY REMUNERATION OF RS.750/- TENTATIVELY IN ADD ITION TO ITA NO. 201/AHD/2015 SHRI KALIKA MATA TEMPLE PUBLIC TRUST VS. ACIT AY : 2011-12 7 REASONABLE EXPENSES INCURRED BY HIM FOR MANAGEMENT OF THE TRUST PROPERTIES. 6. THE REMUNERATION OF THE RECEIVER AND HIS ASSISTA NT ARE TO BE DRAWN FROM THE TRUST PROPERTY INCOME. 7. ALL THE DEFTS ARE DIRECTED TO HAND OVER THE POSS ESSION OF THE TRUST, IF ANY, WITH THEM INCLUDING MOVEABLE AND IMM OVEABLE PROPERTIES 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 PAVA GADH, REGISTERED UNDER BOMBAY PUBLIC TRUST ACT NO.421/PANCHMAHALS, DURING THE PENDENCY OF THIS APP EAL. 9. THE RECEIVER IS ALSO DIRECTED TO MAKE AN INVENTO RY OF THE TRUST PROPERTIES AND AFFAIRS BELONGING TO THE PUBLIC TRUS T, KNOWN AS KALIKA MATAJI TEMPLE. THE PLTFF IS DIRECTED TO PAY ADDITIONAL REMUNERATION FOR THE SAID WORK OF INVENTORY OF THE TRUST PROPERTIES 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 THE AD-INTERIM INJUNCTION GRANTED VIDE ORDER DATED 01/10/1994 BY O RDER DATED 29/10/1994 IN THE FOLLOWING TERMS:- ORDER 1. THE AD-INTERIM INJUNCTION AND THE ORDER FOR THE APPOINTMENT OF RECEIVER PASSED BY THIS COURT BELOW EXH.3 DATED 1/10/1994 IS HEREBY CONFIRMED AND MADE ABSOLUTE TILL THE FINAL D ECISION OF THE CIVIL SUIT NO.2 OF 1994. 2. THE OBJECTIONS FILED BY THE DEFENDANTS VIDE EXH. 23 ARE HEREBY REJECTED. 3. IT IS HEREBY ORDERED AND DECLARED THAT THE DEFEN DANTS ARE NOT ENTITLED TO GET THE RELIEF AS CLAIMED FOR IN THE WS EXH.23. 4. THE DEFENDANTS SHALL PAY THE COSTS OF THIS APPLI CATION TO THE PLAINTIFF AND BEAR THEIR OWN. PRONOUNCED IN THE OPEN COURT TODAY THIS 29 TH DAY OF OCTOBER, 1994 ITA NO. 201/AHD/2015 SHRI KALIKA MATA TEMPLE PUBLIC TRUST VS. ACIT AY : 2011-12 8 4.4. AS PER AD-INTERIM ORDER DATED 01/10/1994 SHRI N.B.PATEL, SR.ADVOCATE & NOTARY GODHRA BAR WAS APPOINTED AS RE CEIVER TO MANAGE PROPERTIES OF THE ASSESSEE-TRUST. THE RECEIV ER WAS FURTHER AUTHORIZED TO MANAGE THE PROPERTY IN THE BEST OF TH E INTEREST OF THE TRUST AND PRODUCE ACCOUNTS OF THE TRUST EVERY THREE MONTH S BEFORE THE ASSISTANT CHARITY COMMISSIONER, NADIAD. THE COURT A LSO APPOINTED SHRI M.M.PARMAR, C.O.C., DISTRICT COURT, PANCHMAHAL S, GODHRA AS CO-RECEIVER TO ASSIST SHRI N.B.PATEL, THE RECEIVER. THE DEFENDANTS WERE FURTHER RESTRAINED FROM MANAGING THE PROPERTIES AND AFFAIRS OF THE TRUST DURING THE PENDENCY OF THE APPEAL THE RECEIVER WAS DIRECTED TO MAKE AN INVENTORY OF THE TRUST PROPERTIES AND AFFAIRS BELON GING TO THE PUBLIC 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 RECEIVER AND , THEREFORE, IT CAN BE INFERRED FROM THE MATERIAL AVAILABLE ON RECORD T HAT THE TRUSTEES OF THE ASSESSEE-TRUST WERE RESTRAINED FROM MANAGING THE AF FAIRS. IT IS THE CONTENTION OF THE ASSESSEE-TRUST THAT THE ABOVE ORD ER REMAINED IN FORCE TILL 30/08/2007. THE LD.CIT(A) DID NOT ACCEPT THE EX PLANATION OF THE ASSESSEE ON THE GROUND THAT THERE WAS NO PROHIBITIO N OR RESTRAINING ORDER BY THE COURT THAT THE RECEIVER WOULD NOT COMP LY WITH THE PROVISIONS OF THE ACT. SO FAR AS THE ASSESSEE-TRUST IS CONCERNED, ITS AFFAIRS WERE TAKEN OVER BY THE COURT APPOINTED RECE IVER, THEREFORE IT CANNOT BE INFERRED THAT THE ASSESSEE-TRUST WAS IN A NYWAY RESPONSIBLE FOR NOT MAKING AN APPLICATION FOR ACCUMULATION OF INCOM E U/S.11(1) OF THE ACT. THE CONTENTION OF THE ASSESSEE IS THAT THE DEL AY IN MAKING APPLICATION BY THE ASSESSEE-TRUST WAS DUE TO SUFFIC IENT CAUSE AND THE AUTHORITIES BELOW OUGHT TO HAVE CONDONED THE DELAY AND EXCLUDED THE PERIOD DURING WHICH THE AFFAIRS OF THE TRUST WAS TA KEN OVER BY THE COURT RECEIVER TRUST. HOWEVER, NO SUCH SITUATION IS CONTE MPLATED UNDER THE ACT WHERE THE AFFAIRS OF THE TRUST ARE TAKEN OVER B Y THE COURT APPOINTED RECEIVER AND COMPLIANCE OF THE PROVISION BY THE REC EIVER. SUB- SECTION(3A) OF SECTION 11 CONTEMPLATES A SITUATION W HERE DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF THE PERSON IN R ECEIPT OF THE INCOME, ANY INCOME INVESTED OR DEPOSITED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE(B) OF SUB-SECTION (2) COULD NOT BE APPLIED FOR THE PURPOSE FOR WHICH IT WAS ACCUMULATED OR SET APART. IN THAT SITU ATION, THE ASSESSING OFFICER MAY, ON AN APPLICATION MADE TO HIM IN THIS BEHALF, ALLOW SUCH PERSON TO APPLY SUCH INCOME FOR SUCH OTHER CHARITAB LE OR RELIGIOUS PURPOSE IN INDIA AS IS SPECIFIED IN THE APPLICATION BY SUCH PERSON AND AS IS IN CONFORMITY WITH THE OBJECTS OF THE TRUST; AND THEREUPON THE ITA NO. 201/AHD/2015 SHRI KALIKA MATA TEMPLE PUBLIC TRUST VS. ACIT AY : 2011-12 9 PROVISIONS OF SUB-SECTION(3) SHALL APPLY AS IF THE P URPOSE SPECIFIED BY SUCH PERSON IN THE APPLICATION UNDER THIS SUB-SECTI ON FOR A PURPOSE 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, THE RE 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 CO URT 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 ISSUE TO THE FILE OF AO FOR DECISION AFRESH. THE AO WOULD VERIFY THE PERIOD DURING WHICH THE AFFAIRS OF THE ASSESSEE-TRUST WERE MANAGED BY THE C OURT APPOINTED RECEIVER. HE WOULD EXCLUDE SUCH PERIOD IN THE LIGHT OF FIRST PROVISO TO SECTION 11(2) OF THE ACT AND WOULD VERIFY WHETHER TH E MONEY SO ACCUMULATED OR SET APART WAS INVESTED OR DEPOSITED IN THE FORMS OR MODES SPECIFIED IN SECTION 11(5) OF THE ACT. 4. ADMITTEDLY, THE FACTS OF THE YEARS UNDER CONSIDE RATION ARE IDENTICAL. WE, THEREFORE, RESPECTFULLY FOLLOWING T HE ABOVE DECISION OF ITAT IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 200 9-10, WE HEREBY SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND R ESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECISION AFRESH I N THIS YEAR AS WELL. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 21 ST MARCH, 2016 AT AHMEDABAD. SD/- SD/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER (KUL BHARAT) JUDICIAL MEMBER AHMEDABAD; DATED 21/03/2016 *BIJU T. ITA NO. 201/AHD/2015 SHRI KALIKA MATA TEMPLE PUBLIC TRUST VS. ACIT AY : 2011-12 10 '#$%&'&($ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD