SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST, THANE V. ASST CIT PALGHAR CIRCLE, PALGHAR, PALGHAR

ITA 264/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7806 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 03-01-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 15-01-2016
• Court: TRIBUNAL
• Keywords: Capital asset; Gift; Charitable institution; Maximum Marginal Rate; Corroborative evidences; Capital receipt
• Section: 143(3); 12A; 12AA; 6; 11

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, D MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K.PRADHAN, ACCOUNTANT MEMBER ITA NO.264/MUM/2016 ASSESSMENT YEAR: 2011-12 SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST C/O. ANOOPCHANDJI KARNAVA, T MAIN ROAD, DAHANU TOWN DAHANU ROAD, DIST: THANE / VS. ACIT, PALGHAR CIRCLE, PALGHAR ( '# /ASSESSEE) ( % / REVENUE) PAN. NO .AAETS4024L & %' ( ) / DATE OF HEARING: 15/03/2017 ( ) / DATE OF ORDER: 15/03/2017 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 21/10/2015 OF THE LEARNED FIRST APPELLATE AUT HORITY, MUMBAI. '# ! / ASSESSEE BY SHRI RAHUL K HAKANI % ! / REVENUE BY SHRI PURUSHOTTAM KUMAR ITA NO. 264/MUM/2016 SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST 2 2. DURING HEARING THE LEARNED COUNSEL FOR THE ASSES SEE SHRI RAHUL K HAKANI CONTEDED THAT GROUND NO.1 & 2 W ITH RESPECT TO SURPLUS OF RS.6,62,623/- WHICH WAS TREAT ED AS INCOME AND REGISTRATION OF THE ASSESSEE U/S.12A AND THE PLEA THAT THE CORPUS DONATION OF RS.10,56,555/- WAS DERIVED FROM PROPERTY HELD IN THE TRUST AND ENTITLE D TO EXEMPTION MAY BE DECIDED AGAINST THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE ADMITTED THAT NO E VIDENCE WAS PRODUCED BY THE ASSESSEE AT ANY STAGE THAT THE ASSESSEE IS A REGISTERED TRUST U/S.12A OF THE ACT. IN VIEW OF THIS FACT, BOTH THESE GROUNDS ARE DECIDED AGAINST T HE ASSESSEE. 2.1. GROUND NO.4 THAT THE CIT(A) DID NOT APPRECIATE THAT ALL SURPLUS / CORPUS DONATION OF THE ASSESSEE WAS EXEMP TED U/S.11 THEREFORE, THE PROVISIONS OF SECTION 164 (2) OF THE ACT IS NOT APPLICABLE. THIS GROUND WAS ALSO NOT PRE SSED BY THE LEARNED COUNSEL FOR THE ASSESSEE, THEREFORE, TH IS GROUND IS DISMISSED AS NOT PRESSED. 3. THE ONLY GROUND REMAINED FOR ADJUDICATION OR ARG UED BY THE LEARNED COUNSEL FOR THE ASSESSEE IS THAT THE AM OUNT OF RS.10,56,555/- IS A CAPITAL RECEIPT, HENCE, NOT TAX ABLE. THE LEARNED COUNSEL ADVANCE ARGUMENTS WHICH IS IDENTICA L TO THE GROUND RAISED BY CONTENDING THAT THIS ISSUE IS COVERED BY THE DECISION OF THE TRIBUNAL DATED 10/08/2016 IN THE CASE OF CHANDRAPRABHU JAIN SWETAMBER MANDIR VS ACIT (ITA NO.230/M/2016). THE LEARNED DR SHRI PURUSHOTTA M ITA NO. 264/MUM/2016 SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST 3 KUMAR DEFENDED THE ADDITION AND CONTENDED THAT THE AFORESAID ORDER OF THE TRIBUNAL HAS NOT BEEN ACCEPT ED BY THE DEPARTMENT AND APPEAL IS LIKELY TO BE FILED BEF ORE THE HON'BLE HIGH COURT. THE LEARNED COUNSEL FOR THE ASS ESSEE ALSO RELIED UPON THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF PATANJALI YOGPETH (NYAS) VS . ADIT (EXEMPTION)(2017) 78 TAXMANN.COM 128 (DELHI)(TRIBUN AL) 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. BEFORE COMING TO ANY CONCLUSION, WE ARE REPRODUCING HEREUNDER THE RELEVA NT PORTION FROM THE AFORESAID ORDER OF THE TRIBUNAL DA TED 12/08/2016 (ITA NO. 230/MUM/2016) FROM THE CO- ORDINATE BENCH OF THE MUMBAI TRIBUNAL FOR READY REF ERENCE AND ANALYSIS. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESS EE-TRUST IN THE MEMO OF APPEAL FILED WITH THE INCOME TAX APPELLATE TRIBUNAL , MUMBAI (HEREINAFTER CALLED 'THE TRIBUNAL') READS AS UNDER:- 'I. TREATING CORPUS DONATION OF RS. 4,55,446/- AS INCOME 1. THE LEARNED CIT (A) FAILED TO APPRECIATE THAT THE APPELLANT IS A DULY REGISTERED TRUST, AND HENCE, CO RPUS DONATION OF RS. 4,55,446/- WAS INCOME DERIVED FROM PROPERTY HELD UNDER TRUS T, AND HENCE, ENTITLED TO EXEMPTION. 2. WITHOUT PREJUDICE TO THE ABOVE , THE LEARNED CIT (A) FAILED TO APPRECIATE THAT RS. 4,55,466/- IS CA PITAL RECEIPT, AND HENCE, NOT TAXABLE. 3. WITHOUT PREJUDICE TO THE ABOV E, EVEN IF RS. 4,55,446/- IS HELD LIABLE TO TAX, THE DEFICIT OF RS. 2, 00,897/- IN RECEIPT & EXPENDITURE ACCOUNT SHOULD HAVE BEEN DEDUCTED FR OM THE SAME, AND ONLY BALANCE SHOULD HAVE BEEN-TAXED. ILL. INVOKING SECTION 164(2) ITA NO. 264/MUM/2016 SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST 4 4 . THE LEARNED CIT (A) FAILED TO APPRECIATE THAT ALL SURPLUS CORPUS DONATION OF THE APPELLANT WAS EXEMPT U/S 11. HENCE, THE PROVISIONS OF SECTION 164(2) OF THE ACT ARE NOT APPLICABLE.' 3. THE BRIEF FACTS OF THE CASE ARE THAT THE A SSESSEE IS A RELIGIOUS CHARITABLE TRUST REGISTERED UNDER BOMBAY PUBLIC TRUST ACT, 195 0 ENGAGED IN PROVIDING STAY FACILITIES TO SADHUS AND SADHVIS , AND POOJA FACILITIES TO SWETAMBER JAINS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S. 143(3) READ WITH SECTION 143(2) OF THE ACT, THE A.O. OBSERVED THAT THE ASSE SSEE HAS NOTSUBMITTED COPY OF REGISTRATION U/S 12AA OR U/S 1 0(23C) OF THE ACT. THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE TRU ST SHOULD NOT BE ASSESSED AS ASSOCIATION OF PERSON (AOP) AND ALSO TO TAX CORP US DONATIONS RECEIVED BY THE TRUST. IN REPLY, THE ASSESSEE SUBMITTED THAT TH E ASSESSEE HAS MISPLACED THE COPY OF APPLICATION SUBMITTED TO THE COMMISSIONER O F INCOME TAX, THANE(CIT). THE A.O. OBSERVED THAT THE ASSESSEE HAS NOT SUBMITTED THE COPY OF REGISTRATION U/S. 12AA OF THE ACT GRANTED IN FAV OUR OF THE ASSESSEE OR THE APPLICATION MADE TO THE CIT FOR GRANTING OF REGISTR ATION AND MADE THE CLAIM WITHOUT ANY SUPPORTING EVIDENCE, THEREFORE, THE TRU ST WAS ASSESSED AS AOP AND ALSO TAXED AT MARGINAL MAXIMUM RATE U/S 167B(1) OF THE ACT. ON PERUSAL OF THE BALANCE SHEET OF THE ASSESSEE, THE A.O. NOTE D THAT THE ASSESSEE HAS RECEIVED A CORPUS DONATIONS, THE DETAILS OF WHICH A RE AS UNDER:- 1. BUILDING FUND - RS. 50,000/- 2. DEV DRAVYA FUND - RS. 2,92,066/- 3. GYAN FUND - RS. 41,541/- 4. VEYA VACHA FUND - RS. 1,809/- 5. AKHAND DEEPAK FUND - RS . 12,951/- 6. DADAWADI FUND - RS. 25,020/- 7. JIV DAYA FUND - RS. 18,063/- 8. AYAMBIL FUND - RS. 13,996/- TOTAL - RS. 4,55,446/- ========== THE A.O. ASKED THE ASSESSEE TO EXPLAIN WHY CORPUS F UND DONATIONS RECEIVED OF RS.4,55,446/- SHOULD NOT BE ADDED TO THE INCOME OF THE ASSESSEE AND TAXED AS DEDUCTION U/S 11 IS NOT AVAILABLE TO THE TRUST. THE ASSESSEE SUBMITTED THAT ANY RECEIPT CANNOT BE TAXED UNLESS IT IS AN INCOME WITH IN THE MEANING OF SECTION 2(24)(IIA) R.W.S. 12 OF THE ACT. IT IS SUBMITTED BY THE ASSES SEE THAT CONTRIBUTION MADE WITH A SPECIFIC DIRECTION THAT THEY SHALL FORM PART OF THE CORPUS OF THE TRUST WOULD NOT BE CONSIDERED AS INCOME OF THE TRUS T. THE A.O. REJECTED THE CONTENTIONS OF THE ASSESSEE AS THE ASSESSEE IS NOT HAVING REGISTRATION U/S 12A/12AA OF THE ACT AND THE BENEFIT GIVEN BY SECTION 2(24)(IIA) R.W.S. 12 OF THE ACT IS NOT AVAILABLE TO THE ASSESSEE. THE A.O. HELD THAT THE PROVISIONS OF SECTION 11 & 12 ARE NOT APPLICABLE TO THE ASSESSEE AS THE ASSESSEE IS NOT A REGISTERED TRUST U/S 12A/12AA OF THE ACT. THE AO OB SERVED THAT AS PER THE ITA NO. 264/MUM/2016 SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST 5 PROVISIONS OF SECTION 11(1)(D) OF THE ACT INCOME IN THE 4 ITA 230/MUM/2016 FORM OF VOLUNTARY CONTRIBUTIONS MADE WITH A SPECIFI C DIRECTION THAT THEY SHALL FORM PART OF THE CORPUS OF THE TRUST SHALL NOT BE I NCLUDED IN THE TOTAL INCOME OF THE PREVIOUS YEAR OF THE TRUST IN RECEIPT OF THE IN COME. IN THE ABSENCE OF REGISTRATION U/S 12A OR 12AA OF THE ACT THE IMMUNIT Y GRANTED BY SECTION 11(1)(D) IS NOT AVAILABLE TO THE ASSESSEE FOR CORPUS DONATI ON AS SECTION 11 OF THE ACT IS NOT APPLICABLE FOR AOP. THUS , THE A.O. ADDED AN AMOUNT OF RS. 4,55,446/- TO THE TOTAL INCOME OF THE ASSESSEE BEIN G CORPUS DONATION RECEIVED BY THE ASSESSEE, VIDE ASSESSMENT ORDER DATED 31.01. 2014 PASSED U/S 143(3) OF THE ACT. 4. AGGRIEVED BY THE ASSESSMENT ORDER DATED 31.01.20 14 PASSED BY THE A.O. U/S. 143(3) OF THE ACT, THE ASSESSEE FILED ITS FIRS T APPEAL BEFORE LEARNED CIT(A). 5. BEFORE THE LD. CIT(A), THE ASSESSEE TRUST SUBMIT TED THAT ASSESSEE IS CHARITABLE TRUST FORMED FOR RELIGIOUS AND CHARITABL E PURPOSES AND IS DULY REGISTERED WITH THE CHARITY COMMISSIONER UNDER THE BOMBAY PUBLIC TRUST ACT,1950 VIDE REGISTRATION CERTIFICATE DATED 5TH SE PTEMBER, 1953 AND WAS ALSO REGISTERED WITH THE CIT. THE ASSESSEE SUBMITTED THA T THE ASSESSEE HAS RECEIVED CORPUS DONATION TO THE TUNE OF RS. 4,55,44 6/- AND FILED ITS RETURN OF INCOME DECLARING NIL INCOME. THE ASSESSEE SUBMITTED THAT THE CERTIFICATE U/S 12 A OF THE ACT GRANTED IN FAVOUR OF THE ASSESSEE-TRUST WAS NOT TR ACEABLE AND THE ASSESSEE FILED ANOTHER APPLICATION FOR OBTAININ G COPY OF THE CERTIFICATE OF REGISTRATION U/S 12A/12AA OF THE ACT WITH CIT LONG BACK BUT NO REPLY HAS BEEN RECEIVED AND HENCE IT SHALL BE DEEMED THAT REG ISTRATION HAS BEEN GRANTED. THE ASSESSEE SUBMITTED THAT THE CORPUS FUN D OF RS.4,55,446/- RECEIVED ARE IN THE NATURE OF DONATIONS WITH SPECIF IC DIRECTIONS AS TO ITS APPLICATION TOWARDS SPECIFIC PURPOSES FOR WHICH RES PECTIVE FUNDS WERE CREATED WHICH CANNOT BE USED FOR ANY OTHER PURPOSES AS PER RELIGIOUS CUSTOMS AND THUS BEING CAPITAL RECEIPTS CANNOT BE TAXED. TH US, IT WAS SUBMITTED THAT BY VIRTUE OF PROVISIONS OF SECTION 11(1)(D) AND SECTION 12(1) OF THE ACT , DONATIONS RECEIVED TOWARDS CORPUS OF THE TRUST/VARI OUS FUNDS SHALL NOT BE DEEMED TO BE INCOME DERIVED FROM PROPERTY HELD UNDE R TRUST WHOLLY FOR CHARITABLE OR RELIGIOUS PURPOSES. IT WAS SUBMITTED THAT RECEIPT CANNOT BE TAXED AS INCOME UNLESS IT IS AN INCOME WITHIN MEANI NG OF SECTION 2(24)(IIA) OF THE ACT READ WITH SECTION 12 OF THE ACT. SECTION 12 OF THE ACT MAKES IT CLEAR THAT CONTRIBUTIONS MADE WITH A SPECIFIC DIRECTIONS THAT THEY SHALL FORM PART OF THE CORPUS OF THE TRUST OR INSTITUTION SHALL NOT BE CONSIDERED AS INCOME OF THE TRUST. THE ASSESSEE ALSO SUBMITTED THAT BEING AOP, BY VIRTUE OF PROVISIONS OF SECTION 56(2)(VII) OF THE ACT, SUCH RECEIPTS ARE NOT TAXABLE IN THE H ANDS OF THE ASSESSE AS INCOME FROM OTHER SOURCES. IT WAS AL SO SUBMITTED THAT THE AO ALSO ERRED IN TAXING THE ASSESSEE'S INCOME AT MAXIM UM MARGINAL RATE IN THE STATUS OF AOP. IT WAS SUBMITTED THAT NO PART OF THE ASSESSE INCOME IS LIABLE TO BE CHARGED AT MAXIMUM MARGINAL RATES SINCE NO PART OF THE INCOME OF THE ASSESSEE ENURES OR IS USED OR APPLIED DIRECTLY OR I NDIRECTLY FOR THE BENEFIT OF SPECIFIED CATEGORY OF PERSONS REFERRED TO IN SECTION 13(3) OF THE ACT, THAT NO PART OF THE TRUST FUNDS ARE INVESTED IN CONTRAVENTI ON OF THE INVESTMENT PATTERN ITA NO. 264/MUM/2016 SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST 6 PRESCRIBED U/S 13(5) OF THE ACT, THE ASSESSEE TRUST IS NOT ENGAGED IN THE ANY BUSINESS AND THE OBJECTS OF TRUST IS NOT TO EARN PR OFIT AND TO SHARE AMONG THE MEMBERS . THE ASSESSEE RELIED UPON THE FOLLOWING CA SE LAWS:- 1. PEETADHIPATHI TRUST, MYSORE V. DEPARTMENT OF INC OME TAX, BANGALORE ITAT ITA NO. 1382 & 1535/BANG/2010. 2. SREE RAMKRISHNA SAMITY V. DCIT CIR. 2, SILIGIRI, ITA NO. 1680 TO 1685/2012 DATED 9-10-2015. 3. GAUDIYA GRANTH ANUVED TRUST V. DEPARTMENT OF INCOME TAX, ITA NO . 386/AGRA/2012. 4. SHRI SHANKAR BHAGWAN ESTATE V. INCOME TAX OFFICER ( CALCUTTA ), [1997] 061 ITD 0196(CAL). 5. SOCIETY FOR THE PROMOTION OF EDUCATION, ADVENTURE,SPORTS AND CONSERVATION OF ENVIRONMENT V. CIT (2008) 171 TAXMANN 113(ALL.) 6. REV. FATHER TRUST OSCAR COLASO MEMORIAL MEDICAL ASSOCIATION V. CIT (2009) 31 SOT 1(MUM.) 7. R.B.SHREERAM RELIGIOUS & CHARITABLE TRUST V. CIT (1988) 172 ITR 373(BOM) THE ASSESSEE SUBMITTED THAT THE A.O. HAS ERRED IN B RINGING TO TAX THE INCOME OF THE ASSESSEE AT MAXIMUM MARGINAL RATE IN THE STA TUS OF AOP. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE REJECTED THE CONTENTION OF THE ASSESSEE. THE LD. CIT(A) HELD THA T THE ASSESSEE FAILED TO SUBMIT THE COPY OF REGISTRATION U/S 12AA OR U/S 10( 23C) OF THE ACT NOR COPY OF APPLICATION MADE TO CIT FOR APPLYING FOR REGISTRATI ON WAS PRODUCED BEFORE THE AO, HENCE, EXEMPTION CLAIMED U/S 11 OF THE ACT WAS RIGHTLY REJECTED BY THE A.O.. THE LD. CIT(A) FURTHER HELD THAT THE ASSE SSEE IS NOT ENTITLED TO EXEMPTION U/S 11 OF THE ACT BEING UNREGISTERED TRUS T, THEREFORE, THE ASSESSEE'S STATUS HAD TO BE TREATED AS AOP AND THE CORPUS FUND DONATION RECEIPT IS LIABLE TO BE TAXED. HOWEVER, IN THE ABSENCE OF ELABORATE D ISCUSSION BY THE A.O. AS TO WHETHER THE AOP HAS TO BE TAXED U/S 167B(1) OR U/S 164(2), AND THE OBJECTS OF THE SETTING UP OF THE TRUST IS FOR PUBLIC TRUST, TH EREFORE THE PROVISIONS OF SECTION 164(2) OF THE ACT ARE APPLICABLE AND THE ASSESSEE INCOME SHALL BE TAXED AT NORMAL RATES INSTEAD OF MAXIMUM MARGINAL R ATES, VIDE APPELLATE ORDERS DATED 21-10-2015. 6. AGGRIEVED BY THE APPELLATE ORDER DATED 21-10-201 5 PASSED BY THE LD. CIT(A), THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS RELIGIOUS CHARITABLE TRUST DULY REGISTERED UNDER THE BOMBAY P UBLIC TRUST ACT,1950. IT IS SUBMITTED THAT THE ASSESSEE HAS RECEIVED CORPUS DON ATIONS OF RS. 4,55,446/- DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR. THE LEARNED COUNSEL SUBMITTED THAT THE ASSESSEE IS NOT REGISTER ED U/S 12AA OF THE ACT. THE ASSESSEE HAS RECEIVED CORPUS DONATIONS OF RS.4,55,4 66/- WHICH CANNOT BE CHARGED TO TAX UNDER THE ACT. THE LEARNED COUNSEL S UBMITTED THAT THE ASSESSEE COULD NOT TRACE THE APPLICATION MADE TO THE CIT FOR APPLYING FOR COPY OF CERTIFICATE OF REGISTRATION U/S 12A/ 12AA OF THE AC T , WHICH WAS NOT REJECTED ITA NO. 264/MUM/2016 SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST 7 BY THE CIT AND THE SAME SHALL BE DEEMED TO BE GRANT ED. IT WAS SUBMITTED THAT THE A.O. DENIED THE EXEMPTION TO THE ASSESSEE AND B ROUGHT TO TAX CORPUS DONATION AT MAXIMUM MARGINAL RATE OF TAX. IT IS SUB MITTED THAT THERE IS CORPUS DONATIONS OF RS. 4,55,446/- WHICH IS NOT TAXABLE EV EN IF THE TRUST IS NOT REGISTERED UNDER 12A/12AA OF THE ACT. IT IS SUBMITT ED THAT THE DONORS HAVE DONATED THE CORPUS DONATIONS WITH SPECIFIC DIRECTIO NS ABOUT ITS APPLICATION TOWARDS SPECIFIC PURPOSE FOR WHICH THE RESPECTIVE F UNDS WERE CREATED AND IT CANNOT BE USED FOR ANY OTHER PURPOSES. THE LD. COUN SEL RELIED UPON THE FOLLOWING DECISIONS:- 1. ITO V. SMT. BASANTI DEVI & SHRI CHAKHAN LAL GARG EDUCATION TRUST, ITA NO. 5082/DEL./2010 DATE 19.1.2011, DELHI TRIBUNAL. 2. DIRECTOR INCOME TAX V. SMT. BASANTI DEVI & SHRI CHAKHAN LAL GARG EDUCATION TRUST, ITA NO. 927/2009 DATE 23.9.2009, D ELHI TRIBUNAL. 3. ITO V. GUDIYA GRANTH ANUVED TRUST (2013) 28 ITR (TRIB) 161 (AGRA) (TRIB). 4. INDIAN SOCIETY OF ANAESTHESIOLOGISTS V. ITO (201 4) 32 ITR (TRIB) 152 (CHENNAI TRIB). 5. ITO V. VOKKALIGARA SANGHA (2015) 44 CCH 509 (BAN G) (TRIB) 6. SHRI SHANKAR BHAGWAN ESTATE V. ITO (1997) 61 ITD 196 (CAL. TRIB). THE ASSESSEE CONTENDED THAT THE CORPUS DONATIONS CA NNOT BE BROUGHT TO TAX AND ALSO THE LD. CIT(A) DIRECTED THE A.O. TO BRING THESE INCOME TO TAX AT THE NORMAL RATE AND NOT MAXIMUM MARGINAL RATE AS HELD B Y THE AO AND IN VIEW OF THE RELIEF GRANTED BY THE LEARNED CIT(A) TO THE EXT ENT OF CHARGING CORPUS DONATION AT NORMAL RATES, GROUND NO. III(4) HAS BEC OME INFRUCTUOUS. 8. THE LD. D.R., ON THE OTHER HAND, RELIED ON THE O RDER OF THE LEARNED CIT(A). 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE CASE LAWS RELIED ON. WE HAVE OBSERVED THAT THE ASSESSEE IS A RELIGIOUS CHARITABLE TRUST DULY R EGISTERED UNDER THE BOMBAY PUBLIC TRUST ACT,1950. THE ASSESSEE COULD NOT PRODU CE REGISTRATION U/S 12A/12AA OF THE ACT AND HENCE IT COULD BE PRESUMED THAT THE ASSESSEE IS NOT REGISTERED U/S 12A/12AA OF THE ACT AS THE ONUS WAS ON THE ASSESSEE TO BRING ON RECORD THE EVIDENCES TO PROVE ITS CONTENTIONS WH ICH IT WANT COURT TO BELIEVE AND CONSEQUENTLY TO SEEK IMMUNITIES AND PROTECTIONS GRANTED TO A REGISTERED TRUST. THE ASSESSEE HAS RECEIVED CORPUS DONATIONS T O THE TUNE OF RS. 4,55,446/- DURING PREVIOUS YEAR RELEVANT TO THE ASS ESSMENT YEAR WHICH ARE BEING GIVEN WITH SPECIFIC DIRECTIONS BY THE DONORS TO BE APPLIED TOWARDS SPECIFIC PURPOSE FOR WHICH THE RESPECTIVE FUNDS WER E CREATED . THIS IS AN ADMITTED POSITION BETWEEN THE PARTIES AND THERE IS NO DISPUTE WITH RESPECT TO THIS PROPOSITION. THE DETAILS OF THE CORPUS DONATIO NS ARE AS UNDER : 1. BUILDING FUND - RS . 50,000/- 2. DEV DRAVYA FUND - RS. 2 ,92,066/- 3. GYAN FUND - RS. 41,541/- 4. VEYA VACHA FUND - RS. 1,809/- 5. AKHAND DEEPAK FUND - RS. 12,95 1/- ITA NO. 264/MUM/2016 SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST 8 6. DADAWADI FUND - RS. 25 ,020/- 7. JIV DAYA FUND - RS. 18,063/- 8. AYAMBIL FUND - RS. 1 3,996/- TOTAL - RS. 4,55,446/- = ========= THESE ABOVE STATED SPECIFIC DONATIONS GIVEN BY THE DONORS TO BE UTILIZED FOR SPECIFIC PURPOSES CANNOT BE DIVERTED FOR ANY OTHER PURPOSES BY THE ASSESSEE AND ARE CREDITED TO THE RESPECTIVE FUNDS IN THE BAL ANCE SHEET , AND UTILIZATION THEREOF IS ALSO REFLECTED FROM THESE SPECIFIC FUNDS . WE HAVE GONE THROUGH THE CASE LAWS RELIED UPON BY THE ASSESSE AS SET OUT ABO VE AND HAVE OBSERVED THAT THE COURTS/TRIBUNALS HAVE TAKEN A CONSISTENT VIEW T HAT THESE CORPUS DONATIONS ARE HELD TO BE CAPITAL RECEIPTS BEING CAP ITAL IN NATURE AND ARE NOT TAXABLE DESPITE THE FACT THAT TRUST IS NOT REGISTER ED U/S 12A/12AA OF THE ACT. IN ITO(E) V. BASANTI DEVI & SHRI CHAKHAN LAL GARG E DUCATION TRUST IN ITA NO. 5082(DEL.) 2010 FOR ASSESSMENT YEAR 2002-03 VID E ORDERS DATED 19-01- 2011, ITAT, DELHI RELYING ON ITAT, DELHI DECISION I N THE TAXPAYERS OWN CASE FOR ASSESSMENT YEAR 2003-04 WHEREBY THE TRIBUNAL HE LD THAT THE AMOUNT RECEIVED BY THE TAX-PAYER TRUST FROM ITS SETTLER, T OWARDS INFRASTRUCTURE FUND, WAS NOT TAXABLE IN THE HANDS OF THE TAX-PAYER TRUST , DESPITE THE FACT THAT THE TAX-PAYER TRUST IS NOT REGISTERED U/S 12 A OF THE ACT , AND CONSEQUENTLY THE TRIBUNAL DISMISSED THE REVENUE APPEAL. THE REVENUE WENT IN APPEAL AND THE HON'BLE DELHI HIGH COURT DISMISSED THE APPEAL OF TH E REVENUE AGAINST THE TRIBUNALS ORDER FOR ASSESSMENT YEAR 2003-04 IN ITA NO. 927/2009 VIDE ORDERS DATED 23-09-2009 IN BASANTI DEVI & SHRI CHAKHAN LAL GARG EDUCATION TRUST. SIMILAR VIEW WAS TAKEN BY ITAT, AGRA IN THE CASE OF ITO V. GAUDIYA GRANTH ANUVED TRUST REPORTED IN (2014) 48 TAXMANN.C OM 348(AGRA-TRIB) WHEREBY TRIBUNAL HELD AS UNDER: 'THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED FEBRUARY 24, 2012 PASSED BY THE LEARNED COMMISSIONER OF INCOME-T AX (APPEALS)-I, AGRA FOR THE ASSESSMENT YEAR 2007-08. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : '1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) HAS ERRED IN LAW AND ON FACTS IN FAILING TO APPRECIATE THAT VOLUNTARY CO NTRIBUTIONS (WHETHER CORPUS DONATIONS OR GENERAL DONATIONS) RECEIVED BY A CHARI TABLE TRUST ARE INCOME AS DEFINED VIDE SECTION 2(24)(IIA) OF THE ACT AND CORP US DONATIONS ARE EXEMPT FROM TAX UNDER SECTION 11(1)(D) ONLY IF ASSESSEE IS REGISTERED UNDER SECTION 12A/12AA OF THE ACT. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN PLACING RELIANCE UPON THE APPELLATE DECISION OF THE HON'BLE DELHI HIGH COURT IN I.T.A. NO. 5082/DEL/2010 IN THE CASE OF ITO (EXEMPTION) V SMT. BASANTI DEVI AND SHRI CHAKHAN LAL GARG EDUCATION TRUST FOR THE ASSES SMENT YEAR 2003-04, WHICH IN TURN IS NOW UNDER CHALLENGE IN THE HON'BLE SUPREME COURT. ITA NO. 264/MUM/2016 SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST 9 3. THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APP EALS)-1, AGRA BEING ERRONEOUS IN LAW AND ON FACTS BE SET ASIDE AND THE ORDER OF THE ASSESSING OFFICER BE RESTORED. 4. THE APPELLANT CRAVES TO AMEND THE GROUNDS OF THE APPEAL STATED ABOVE AND WHEN NEED FOR DOING SO MAY ARISE.' 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E-TRUST HAS SHOWN DONATION OF RS. 68,50,000 FROM BBT, MUMBAI. THE ASSESSING OFFIC ER COMPUTED THE ASSESSMENT ON TOTAL INCOME OF RS. 68,70,000 REJECTI NG THE ASSESSEE'S CONTENTION THAT DONATION RECEIVED TOWARDS THE CORPU S OF THE TRUST. THE COMMISSIONER OF INCOME-TAX (APPEALS) DELETED THE AD DITION OF RS. 68,50,000 OUT OF THE ADDITION OF RS. 68,70,000 MADE BY THE AS SESSING OFFICER AS UNDER: 'I HAVE ALSO EXAMINED THE TERM CORPUS FUND AND CORP US DONATION AS IT IS BEING GENERALLY USED WITH RESPECT TO A TRUST. A COR PUS FUND DENOTES A PERMANENT FUND KEPT FOR THE BASIC EXPENDITURES NEED ED FOR THE ADMINISTRATION AND SURVIVAL OF THE ORGANISATION. THE CORPUS FUND I S GENERALLY NOT ALLOWED TO BE UTILISED FOR THE ATTAINMENT OF THE PURPOSES, BUT THE INTEREST/DIVIDEND ACCUSED ON SUCH FUND CAN BE UTILISED AS WELL AS ACC UMULATED. SUCH FUND CAN ALSO BE USED FOR CREATION OF CAPITAL ASSET OR PROPE RTY OF THE TRUST FROM WHICH INCOME CAN BE GENERATED. CORPUS FUND ARE GENERALLY CREATED OUT OF CORPUS DONATION. A DONATION WILL BE TREATED AS CORPUS DONA TION ONLY IF IT IS ACCOMPANIED BY A SPECIFIC WRITTEN DIRECTION OF THE DONOR. IN THE ABSENCE OF ANY WRITTEN DIRECTION OF THE DONOR, A CONTRIBUTION OF GRANT CANNOT BE TRANSFERRED TO CORPUS FUND. IN THE PRESENT CASE, TH E DONOR, THE BHAKTIVEDANTA BOOK TRUST HAS VERY CATEGORICALLY IN HIS LETTER, WH ILE PROVIDING MONEY TO THE APPELLANT TRUST, HAS MENTIONED THE AMOUNT OF RS. 68 ,50,000 AS CORPUS DONATION AND SUCH AMOUNT HAS BEEN USED BY THE TRUST FOR PURCHASING THE LAND AND GIVING MONEY ON INTEREST AS LOAN. THEREFORE, TH E AMOUNT OF RS. 68,50,000 SHOWN BY THE APPELLANT TRUST HAS BEEN FOUND TO BE I N THE NATURE OF CORPUS DONATION. NOW, THE QUESTION ARISES WHETHER SUCH CORPUS DONATI ON IS TAXABLE AS INCOME OR NOT EVEN IN THE CASES IN WHICH THE TRUST IS NOT REGISTERED UNDER SECTION 12AA BECAUSE FOR THOSE TRUSTS WHICH ARE REGISTERED UNDE R SECTION 12AA , EXEMPTION TO CORPUS DONATION HAS BEEN PROVIDED AS P ER PROVISION OF SECTION 11(1)(D) . FOR SUCH TRUST TO WHICH REGISTRATION UNDER SECTION 12AA HAS NOT BEEN PROVIDED, ITS TAXABILITY IS REQUIRED TO BE DEC IDED WITH REFERENCE TO THE SCHEME OF THE ACT AS HELD IN THE DECISION OF PENTAF OUR SOFTWARE EMPLOYEES WELFARE FOUNDATION V. ASST. CIT (SUPRA). IN BOTH TH E DECISIONS REFERRED BY THE LEARNED AUTHORISED REPRESENTATIVE, IN CASE OF PENTA FOUR SOFTWARE EMPLOYEES WELFARE FOUNDATION V. ASST. CIT, IT HAS BEEN HELD T HAT CORPUS DONATION BEING IN THE NATURE OF CAPITAL RECEIPT ARE NOT CHARGEABLE TO INCOME-TAX. THE DECISION OF THE INCOME-TAX APPELLATE TRIBUNAL, DELH I IN THE CASE OF BASANTI DEVI AND SRI CHAKHAN LAL GARG EDUCATION TRUST FOR B OTH ASSESSMENT YEARS 2002-03 AND 2003A-04 ARE ANNEXED WITH THIS ORDER AS ANNEXURE A-1 IN WHICH REFERENCE TO THE DECISION IN THE CASE OF PENTAFOUR SOFTWARE EMPLOYEES WELFARE FOUNDATION IS ALSO GIVEN. ITA NO. 264/MUM/2016 SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST 10 I HAVE ALSO COME ACROSS ANOTHER DECISION OF THE HON 'BLE INCOME-TAX APPELLATE TRIBUNAL, KOLKATA IN THE CASE OF SHRI SHANKAR BHAGWAN ESTATE V. ITO [1997] 61 ITD 196 (CAL) IN WHICH, THE TAXABILITY OF CORPUS DONATION HAS BEEN EXAMINED IN THE LIGHT OF SECTION 12 READ SECTION 2(24)(IIA) OF THE INCOME-TAX ACT AND IN THIS DECISION, IT HAS BEEN HELD AS UNDER : 'SO FAR AS SECTION 2(24)(IIA) IS CONCERNED, THIS SECTION HAS TO BE READ IN THE CONTEXT OF THE INTRODUCTION OF THE PRESENT SECTION 12 IT IS SIGNIFICANT THAT SECTION 2(24)(IIA) WAS INSERTED WITH EFFECT FROM APRIL 1, 1973 SIMULTANEOUSLY WITH THE PRESENT SECTION 12 , BOTH OF WHICH WERE INTRODUCED FROM THE SAID DATE BY THE FINANCE ACT , 1972. SECTION 12 MAKES IT CLEAR BY THE WORDS APPEARING IN PARENTHESIS THAT CONTRIBUTIONS M ADE WITH A SPECIFIC DIRECTION THAT THEY SHALL FORM PART OF THE CORPUS O F THE TRUST OR INSTITUTION SHALL NOT BE CONSIDERED AS INCOME OF THE TRUST. THE BOARD'S CIRCULAR NO. 108 DATED MARCH 20, 1973 IS EXTRACTED AT PAGE 1277 OF V OLUME I OF SAMPATH IYENGAR'S LAW OF INCOME-TAX, 9TH EDN. IN WHICH THE INTER-RELATION BETWEEN SECTION 12 AND SECTION 2(24) HAS BEEN BROUGHT OUT. GIFTS MADE WITH CLEAR DIRECTIONS THAT THEY SHALL FORM PART OF THE C ORPUS OF THE RELIGIOUS ENDOWMENT CAN NEVER BE CONSIDERED AS INCOME. IN THE CASE OF R. B. SHREERAM RELIGIOUS & CHARITABLE TRUST V. CIT [1988] 172 ITR 373 (SC) IT WAS HELD BY THE BOMBAY HIGH COURT THAT EVEN IGNORING THE AMENDM ENT TO SECTION 12 , WHICH MEANS THAT EVEN BEFORE THE WORDS APPEARING TO PARENTHESIS IN THE PRESENT SECTION 12 , IT CANNOT BE HELD THAT VOLUNTARY CONTRIBUTORS SPE CIFICALLY RECEIVED TOWARDS THE CORPUS OF THE TRUST MAY BE BRO UGHT TO TAX. THE AFORESAID DECISION WAS FOLLOWED BY THE BOMBAY HIGH COURT IN T HE CASE OF CIT V. TRUSTEES OF KASTURBAI SCINDIA COMMISSION TRUST [1991] 189 ITR 5 (BOM). THE POSITION AFTER THE AMENDMENT IS A FORTIORI. IN THE PRESENT CASES THE ASSESSING OFFICER ON EVIDENCE HAS ACCEPTED THE FACTS THAT ALL THE DONATIONS HAVE BEEN RECEIVED TOWARDS THE CORPUS OF THE ENDOWMENTS. IN V IEW OF THIS CLEAR FINDING, IT IS NOT POSSIBLE TO HOLD THAT THEY ARE TO BE ASSE SSED AS INCOME OF THE ASSESSEES. WE, THEREFORE, HOLD THAT THE ASSESSMENT OF THE CORPUS DONATIONS CANNOT BE SUPPORTED. 12. FOR THE ABOVE REASONS, WE HOLD AS UNDER : 1. THE RELIGIOUS ENDOWMENTS ARE NOT INVALID ON THE GROUND THAT NEITHER THE TEMPLE NOR THE IMAGE HAD BEEN CONSECRATED AT THE TI ME OF CREATING THE ENDOWMENTS. 2. THE ASSESSEES HAVE TO BE ASSESSED IN THE STATUS OF 'INDIVIDUAL' SINCE THEY ARE ARTIFICIAL JURIDICAL ENTITIES AND 3. THE VOLUNTARY CONTRIBUTIONS RECEIVED BY THE ASSE SSEE TOWARDS THE CORPUS CANNOT BE BROUGHT TO TAX.' 6.5 EVEN AFTER CONSIDERI NG THE DEFINITION OF SECTION 2(24)(IIA) READ WITH SECTION 12 , THE HON'BLE INCOME-TAX APPELLATE TRIBUNAL, KOLKATA ARRIVED TO THE CONCLUSION THAT THE VOLUNTAR Y CONTRIBUTION IN THE NATURE OF CORPUS DONATION RAISED BY THE APPELLANT C ANNOT BE BROUGHT TO TAX. IN THIS CASE ALSO, THE TRUST UNDER APPEAL WAS A PRI VATE RELIGIOUS TRUST NOT ITA NO. 264/MUM/2016 SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST 11 REGISTERED UNDER SECTION 12AA AND HENCE, CORPUS DONATION RECEIVED BY IT SHOULD NOT BE TAXABLE AS ITS INCOME. 6.6 AFTER CONSIDERING THE POSITION OF LAW AS IT IS PREVAILING AT PRESENT ON THE BASIS OF THE DECISION OF THREE TRIBUNALS, I.E., INC OME-TAX APPELLATE TRIBUNAL, CHENNAI, INCOME-TAX APPELLATE TRIBUNAL, DELHI AND I NCOME-TAX APPELLATE TRIBUNAL, KOLKATA AND FURTHER CONFIRMED BY THE DELH I HIGH COURT, THE CORPUS DONATION IS IN THE NATURE OF A CAPITAL RECEIPT AND ARE NOT TAXABLE, IRRESPECTIVE OF THE FACT WHETHER THE TRUST IS REGISTERED UNDER SECTION 12AA OR NOT. THEREFORE, I AGREE WITH THE LEARNED AUTHORISED REPR ESENTATIVE THAT THE AMOUNT OF RS. 68,50,000 BEING IN THE NATURE OF CORPUS DONA TION IS NOT TAXABLE UNDER THE INCOME-TAX ACT BEING IN THE NATURE OF CAPITAL RECEIPT AND THEREFO RE, THE ADDITION OF RS. 68,50,000 MADE BY THE ASSESSING OFF ICER TOWARDS THE TAXABLE INCOME OF THE ASSESSEE IS HEREBY DELETED AND ACCORD INGLY, GROUND NO. 2 IS ALLOWED.' 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED U PON THE ORDER OF THE ASSESSING OFFICER, WHEREAS THE LEARNED AUTHORISED R EPRESENTATIVE RELIED UPON THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEAL S) AND SUBMITTED THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS FOLLOW ED THE ORDERS OF THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH, WHICH H AS BEEN CONFIRMED BY THE HON'BLE DELHI HIGH COURT, THUS, THE ISSUE IS CO VERED IN FAVOUR OF THE ASSESSEE. 5. THE LEARNED AUTHORISED REPRESENTATIVE HAS SUBMIT TED THAT THE ISSUE IS COVERED BY VARIOUS ORDERS OF THE INCOME-TAX APPELLA TE TRIBUNAL IN THE CASES OF SHRI SHANKAR BHAGWAN ESTATE V. ITO [1997] 61 ITD 196 (CAL), SOCIETY FOR INTEGRATED DEVELOPMENT IN URBAN & RURAL AREAS V. DY. CIT [2004] 90 ITD 493 ( HYD), SRI DWARKADHEESH CHARITABLE TRUST V. ITO [1975] 98 ITR 557 ( ALL) AND DY. CIT V. NASIK GYMKHANA [2001] 77 ITD 500 (PUNE). 6. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND RECORDS PERUSED. THE GRIEVANCE OF THE REVENUE IS THAT THE C OMMISSIONER OF INCOME- TAX (APPEALS) HAS WRONGLY FOLLOWED THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN I. T. A. NO. 5082/DEL./2010, WHEREAS THAT ORDER HAS BEEN CHALLENGED BEFORE THE HON'BLE SUPREME COURT. THE REVENUE DID N OT DISPUTE THE FACTS. WE NOTICED THAT THE COMMISSIONER OF INCOME-TAX (APPEAL S) AFTER CONSIDERING THE DECISION OF THREE TRIBUNALS, I.E., INCOME-TAX APPEL LATE TRIBUNAL, DELHI IN THE CASE OF ITO (EXEMPTION) V. SMT. BASANTI DEVI & SHRI CHAKHAN LAL GARG EDUCATION TRUST [IT APPEAL NO. 5082 (DELHI) OF 2010 , DATED 30-1-2009] THE REVENUE FILED APPEAL BEFORE THE HON'BLE DELHI HIGH COURT. THE HON'BLE DELHI HIGH COURT CONFIRMED THE ORDER OF THE INCOME-TAX AP PELLATE TRIBUNAL, THE REVENUE FILED APPEAL BEFORE THE HON'BLE SUPREME COU RT, WHICH HAS BEEN DISMISSED FOR NON-PROSECUTION VIDE JUDGMENT CIVIL A PPEAL NOS. 7036 OF 2011, JUDGMENT DATED JANUARY 28, 2013, INCOME-TAX APPELLA TE TRIBUNAL CHENNAI BENCH IN THE CASE OF PENTAFOUR SOFTWARE EMPLOYEES W ELFARE FOUNDATION V. ASSTT. CIT [I.T. APPEAL NOS. 751 & 752 (MDS.) OF 20 07] AND OTHERS AND INCOME-TAX APPELLATE TRIBUNAL, KOLKATA BENCH IN THE CASE OF SHRI SHANKAR ITA NO. 264/MUM/2016 SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST 12 BHAGWAN ESTATE (SUPRA) DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. WE FIND THAT THE FACTS OF THE CASE UNDER CONSIDERATION ARE IDENTICAL TO THE FACTS OF THE CASE DECIDED BY THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH IN THE CASE OF SMT. BASANTI DEVI AND SHRI CHAKHAN LAL GARG EDUC ATION TRUST AND OTHER ORDERS OF THE INCOME-TAX APPELLATE TRIBUNAL. SINCE FACTS ARE IDENTICAL, THEREFORE, TO MAINTAIN CONSISTENCY, WE FOLLOW THE A BOVE ORDERS OF THE INCOME- TAX APPELLATE TRIBUNAL AND THE LIGHT OF FACTS WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEAL S). THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) IS CONFIRMED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED.' THE ITAT, CHENNAI IN INDIAN SOCIETY OF ANAESTHESIOL OGISTS V. ITO IN DECISION REPORTED IN (2014) 47 TAXMANN.COM 183(CHENNAI-TRIB. ) HELD THAT SPECIFIC FUNDS CREATED FOR FULFILLING SPECIFIC OBJECTIVES FO R WHICH THESE SEPARATE FUNDS ARE CONSTITUTED REMAIN AS CAPITAL FUNDS AS THE FUND S CAN BE USED FOR FULFILLING SPECIFIC OBJECTIVES FOR WHICH THESE FUNDS ARE CONST ITUTED AND HENCE TO BE TREATED AS CORPUS FUNDS AND TO BE EXCLUDED FROM COM PUTATION OF INCOME. THE ITAT , BANGALORE IN ITO V. VOKKALIGARA SNGHA IN A DECISION REPORTED IN (2015) 44CCH 0509(BANG. TRIB.) WHEREBY THE TRIBUNAL HELD THAT VOLUNTARY CONTRIBUTIONS RECEIVED FOR A SPECIFIC PURPOSES CANN OT BE REGARDED AS INCOME U/S 2(24)(IIA) OF THE ACT SINCE THEY WERE CAPITAL R ECEIPTS BEING CORPUS FUND AND TIED UP GRANTS FOR SPECIFIC PURPOSES. IN OUR CONSIDERED VIEW KEEPING IN VIEW OUR DETAILED DISCUSSIONS ABOVE AND THE CASE LAWS CITED BEFORE US, THESE CORPUS DONATIO NS OF RS.4,55,446/- RECEIVED BY THE ASSESSEE TRUST CANNOT BE BROUGHT TO TAX DESPITE THE FACT THAT THE ASSESSEE-TRUST WAS NOT REGISTERED U/S 12A/12AA OF THE ACT. WE ORDER ACCORDINGLY. 10. IN THE RESULT, ASSESSEE'S APPEAL IN ITA NO 230/ MUM/2016 FOR ASSESSMENT YEAR 2011-12 IS ALLOWED . 4.1. IF THE OBSERVATION MADE IN THE ASSESSMENT ORDE R, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, AS WELL AS IN THE AFOR ESAID ORDER OF THE TRIBUNAL, MATERIAL AVAILABLE ON RECORD , ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, WE FIND THAT THE TRIBUN AL HAS MADE AN ELABORATE DISCUSSION WITH RESPECT TO TAXABI LITY OF ITA NO. 264/MUM/2016 SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST 13 CAPITAL RECEIPT. IN THE AFORESAID CASE ALSO, THE AS SESSEE TRUST WAS NOT HAVING REGISTRATION U/S.12A / 12AA OF THE ACT. IN THAT CASE ALSO THE ASSESSING OFFICER HELD T HAT THE PROVISIONS OF SECTION 11 & 12 OF THE ACT ARE NOT AP PLICABLE TO THE ASSESSEE AND THUS THE PROVISIONS OF SECTION 11 (1)(D) OF THE ACT WITH RESPECT TO VOLUNTARY CONTRIBUTION M ADE WITH SPECIFIC DIRECTION THAT THEY SHOULD FORM CORPUS OF THE TRUST SHALL NOT BE INCLUDED IN THE TOTAL INCOME AND THE A SSESSING OFFICER ADDED THE SAME AS INCOME OF THE ASSESSEE. T HE TRIBUNAL ALSO CONSIDERED VARIOUS JUDICIAL PRONOUNCE MENTS AS CONTAINED AT PAGE 5 (PAGE 54 OF THE PAPER BOOK) OF THE ORDER. IT IS ALSO NOTED THAT VARIOUS CASE LAWS, REL IED UPON BY THE ASSESSEE, WHICH ARE DISCUSSED AT PAGE 7 (PAG E 56 OF THE PAPER BOOK) WERE ANALYSED AND THEREAFTER, REACH ED TO A PARTICULAR CONCLUSION. THE TRIBUNAL HELD THAT THE C ORPUS DONATION, RECEIVED BY THE TRUST, FOR SPECIFIC PURPO SES CANNOT BE BROUGHT TO TAX DESPITE THE FACT THAT THE ASSESSEE IS NOT REGISTERED U/S. 12A / 12AA OF THE ACT. IDENT ICAL FACTS ARE AVAILABLE IN THE PRESENT APPEAL BEFORE US, THUS , FOLLOWING THE AFORESAID ORDER OF THE CO-ORDINATE BE NCH, THIS GROUND OF THE ASSESSEE IS ALLOWED AND THE LEARNED ASSESSING OFFICER IS DIRECTED THAT THE VOLUNTARY CONTRIBUTION RECEIVED BY THE ASSESSEE FOR SPECIFIC PURPOSES (IN THE PRESENT APPEAL BUILDING FUND) CANNOT BE REG ARDED AS INCOME U/S.2 (24)(IIA) OF THE ACT BEING CAPITAL REC EIPT, BEING CORPUS FUND AND TIED UP GRANTS FOR SPECIFIC PURPOSE S. THIS GROUND OF THE ASSESSEE IS THEREFORE, ALLOWED. ITA NO. 264/MUM/2016 SHREE JAIN SWETAMBER DEHARSHAR UPSHRAYA TRUST 14 FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 15/03/2017. SD/- SD/- ( N K PRADHAN ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER & ' MUMBAI; + DATED : 15 /03/2017 TT? FA P.S/. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE APPELLANT (RESPECTIVE ASSESSEE) 2. 0./ / THE RESPONDENT. 3. 1 1 & 2 ( ,- ) / THE CIT, MUMBAI. 4. 1 1 & 2 / CIT(A)- , MUMBAI, 5. 4%5 , 1 ,-) , 6 , & ' / DR, ITAT, MUMBAI 6. ' 7' / GUARD FILE. ! / BY ORDER, 04- //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , & ' / ITAT, MUMBAI