M/S. FREE TRADE UNION MULTIPURPOSE PROJECT TRUST, MUMBAI V. DCIT, CENTRAL CIRCLE-4, MUMBAI

ITA 3080/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5613 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 02-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: POOJA SWAROOP
• Assessee Lawyers: N R AGRAWAL
• Keywords: Reopening of assessment; Search and seizure; Charitable institution; Opportunity of being heard; Competent authority; Benefit of exemption; Capital expenditure
• Section: 69C; 143(3); 142(1); 147; 148; 132; 11; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SRI MAHAVIR SINGH, JM AND G. MANJUNATHA, AM ITA NO. 3080 TO 3084 /MUM/201 6 AND ITA NO. 6952 TO 6954/MUM/2017 (A.Y. 20 05 - 06, 2006 - 07, 2007 - 08, 2008 - 09,2009 - 10,2012 - 13, 2013 - 14 AND 2014 - 15 ) M/S FREE TRADE UNION MULTIPURPOSE PROJECT TRUST, KENNEDY HOUSE, 4 TH FLOOR, GOREGAONKAR ROAD, NANA CHOWK, MUMBAI - 400007. VS. THE INCOME TAX OFFICER (EXEMPTIONS) - 1(3), MUMBAI - 400 0 12 APPELLANT .. RESPONDENT PAN NO. AAAFF0003F ITA NO. 1336 /MUM/201 4, IT A NO. 3793 TO 3795/MUM/2016 AND ITA NO. 3800 TO 3801/MUM/2016 (A.Y. 2003 - 04, 2005 - 06, 2006 - 07, 2007 - 08 , 2008 - 09 AND 2009 - 10 ) THE INCOME TAX OFFICER (EXEMPTIONS) - 1(3), MUMBAI - 400 0 12 VS. M/S FREE TRADE UNION MULTIPURPOSE PROJECT TRUST, KENNEDY HOUSE, 4 TH FLOOR, GOREGAONKAR ROAD,NANA CHOWK, MUMBAI - 400007. APPELLANT .. RESPONDENT ASSESSEE BY : N. R AGRAWAL , AR REVENUE BY : POOJA SWAROOP , SR. DR DATE OF HEARING: 28 - 0 6 - 201 8 DATE OF PRONOUNCEMENT : 04 - 0 7 - 2018 O R D E R PER BENCH : THESE CROSS APPE ALS FILED BY THE ASSESSEE , AS WELL AS THE REVENUE ARE DIRECTED AGAINST SEPARATE, BUT IDENTICAL ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) , MUMBAI - 37 [IN SHORT CIT(A)] , DATED 20/12/2013 2 AND THE COMMISSIONER OF INCOME TAX (APPEAL), MUMBAI - 1 [IN SHOR T CIT(A)], EVEN DATED FOR THE A.Y. 2003 - 04, 2005 - 06, 2006 - 07, 2007 - 08, 2008 - 09, 2009 - 10, 2012 - 13, 2013 - 14 AND 2014 - 15 . SINCE, THE FACTS ARE IDENTICAL AND ISSUES ARE COMMON , THESE APPEALS WERE H EARD TOGETHER AND ARE DISPOSED OFF , BY THIS COMMON ORDER FOR TH E SAKE OF CONVENIENCE. 2. THE ASSESSE E , MORE OR LESS HAS RAISED COMMON GROUNDS OF APPEAL FOR ALL ASSESSMENT YEARS. THE ASSESSEE, FROM THESE GROUNDS OF APPEAL, HAS CHALLENGED, REJECTION OF EXEMPTION CLAIMED U/S 11 OF THE INCOME TAX ACT, 1961, TAXATION OF CORP US DONATIONS, DENIAL OF CREDIT FOR TDS AND FURTHER CHALLENGED ACTION OF THE LD. CIT(A) NON ADJUDICATION OF SPECIFIC GROUND NO. 8 TAKEN FOR ASST. YEAR 2005 - 06. THE ASSESSEE ALSO FILED ADDITIONAL GROUND CHALLENGING ACTION OF LD. AO AND CIT(A) REJECTION OF CA RRY FORWARD AND SET OFF OF LOSS. THE REVENUE, MORE OR LESS HAS TAKEN COMMON GROUNDS OF APPEAL FOR ALL ASST. YEARS. THE REVENUE, FROM THESE GROUNDS OF APPEAL CHALLENGED ORDER OF THE LD. CIT(A) ALLOWING RELIEF IN RESPECT OF ADDITION MADE BY THE AO TOWARDS LO ANS AND ADVANCES , FOR PURCHASE OF MOTOR CAR AND EXPENSES INCURRED FOR OBJECTS OF THE TRUST. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A CHARITABLE TRUST ENGAGED IN VARIOUS CHARITABLE ACTIVITIES AS PER OBJECTS OF TRUST DEED. THE TRUST IS AFFILIAT ED TO TWO TRADE UNIONS, I.E. ENGINEERING MAZDOOR SABHA (EMS) AND MUMBAI MAZDOOR SABHA(MMS). THE ASSESSEE HAS FILED REGULAR RETURNS OF INCOME U/S 139 OF THE INCOME TAX ACT, 1961 FOR ALL ASSESSMENT YEARS DECLARING NIL TOTAL INCOME, AFTER CLAIMING EXEMPTION U /S 11 OF THE INCOME TAX ACT, 1961. A SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT , WAS CARRIED OUT ON 20 - 08 - 2009 IN CHANDBIBI GROUP. DURING THE COURSE OF SEARCH, IT WAS REVEALED THAT THE TRUSTEES HAVE SIPHONED OFF MONEY FOR ULTIMATE BENEFIT OF TWO TRUST EES. THE INVESTIGATION FURTHER REVEALS THAT THE TRUSTEES HAVE SIPHONED OFF MONEY BY BOOKING EXPENDITURE ON REPAIRS TO BUILDING WHICH WAS NOT OWNED BY THE TRUST. CONSEQUENT TO SEARCH, THE CASE HAS BEEN REOPENED U/S 147 OF THE ACT , ON THE GROUND 3 INCOME CHARG EABLE TO TAX HAD BEEN ESCAPED ASSESSMENT AND HENCE, NOTICE U/S 148 WAS ISSUED. IN RESPONSE TO NOTICE, THE ASSESSEE VIDE LETTER DATED 7 - 4 - 2010, STATED THAT RETURN FILED U/S 139 MAY BE TREATED AS RETURN FILED IN RESPONSE TO NOTICE ISSUED U/S 148 OF THE ACT. THE ASSESSEE ALSO SOUGHT REASONS FOR REOPENING OF ASSESSMENT AND SUCH REASONS HAVE BEEN FURNISHED TO THE ASSESSEE. 4. THE CASE HAS BEEN SELECTED FOR SCRUTINY AND ACCORDINGLY, NOTICES U/S 143(2) AND 142(1) OF THE ACT, WERE ISSUED . IN RESPONSE TO NOTICES, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FILED VARIOUS DETAILS, AS CALLED FOR. THE ASSESSMENTS HAS BEEN COMPLETED U/S 143(3), R.W.S.147 OF THE ACT, FOR ASSESSMENT YEARS 2003 - 04 TO 2009 - 10, AND FOR A. Y 2012 - 13 TO 2014 - 15 U/S 143(3) OF THE ACT, AND REJECTED EXEMPTION CLAIMED U/S 11 OF THE INCOME TAX ACT, 1961 BY INVOKING PROVISIONS OF SECTION 13(1)(C ) AND 13(2) OF THE ACT , FOR THE REASONS OF SIPHONING OF FUNDS OF THE TRUST FOR ULTIMATE BENEFIT OF TRUSTEES AND FOR NON GENUINE ACTIVITIES. THE AO HAS DETERMINED TOTAL INCOME BY MAKING ADDITIONS TOWARDS, LOANS AND DANCES GIVEN TO ENGINEERING MAZDOOR SABHA (EMS) AND MUMBAI MAZDOOR SABHA(MMS), CORPUS DONATIONS RECEIVED, ADDITION TOWARDS EXPENDITURE INCURRED FOR OBJECTS AS PER P & L A CCOUNT AND PURCHASE OF MOTOR CAR IN THE NAME OF R J. MEHTA ONE OF THE TRUSTEE. 5. THE ASSESSEE CARRIED MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. BEFORE THE CIT(A), THE ASSESSEE HAS CHALLENGED REJECTION OF EXEMPTION CLAIMED U/S 11 OF THE ACT AND ALSO CHALLENGED VARIOUS ADDITIONS MADE BY THE AO TOWARDS LOANS AND ADVANCES GIVEN TO TWO TRADE UNIONS, CORPUS DONATIONS, DISALLOWANCES OF EXPENDITURE INCURRED TOWARDS OBJECTS AND ADDITION TOWARDS PURCHASE OF MOTOR CAR IN THE NAME OF TRUSTEES. THE LD. CIT(A ), FOR THE DETAILED DISCUSSION IN HIS APPELLATE ORDER, DISMISSED ADDITIONAL GROUND TAKEN BY THE ASSESSEE CHALLENGING DENIAL OF EXEMPTION U/S 11 OF THE ACT, AND UPHELD FINDINGS OF THE AO FOR REJECTION OF EXEMPTION BY HOLDING THAT VARIOUS FACTS BROUGHT OUT B Y THE AO IN THE ASSESSMENT 4 ORDER CLEARLY SHOWS THAT THE ASSESSEE HAS VIOLATED PROVISION OF SECTION 13(1)( C) AND 13(2) WHICH DISENTITLED ASSESSEE TO CLAIM EXEMPTION U/S 11 OF THE ACT. THE CIT(A), FURTHER HELD THAT WHEN EXEMPTION U/S 11 IS REJECTED, INCOME SHALL BE COMPUTED UNDER NORMAL COMMERCIAL PRINCIPLES BY CONSIDERING INCOME AND EXPENSES TO TAX ONLY SURPLUS/DEFICIT, ACCORDINGLY, HE HAS REJECTED INCOME DETERMINED BY THE AO BY MAKING ADDITIONS TO RETURNED INCOME LOANS AND ADVANCES, PURCHASE OF MOTOR CAR, DISALLOWANCE OF EXPENSES AND ADDITION TOWARDS CORPUS DONATION AND RECOMPUTED INCOME BY APPLYING NORMAL COMMERCIAL PRINCIPLES TO TAX SURPLUS/DEFICIT AS PER INCOME AND EXPENDITURE ACCOUNT. IN THE PROCESS, HE HAS ADDED CORPUS DONATIONS TO GROSS RECEIPTS AND D ELETED ADDITION MADE TOWARDS LOANS AND ADVANCES GIVE N TO TWO TRADE UNIONS, EXPENDITURE INCURRED TOWARDS OBJECTS AND PURCHASE OF MOTOR CAR BY HOLDING THAT THESE LOANS AND ADVANCES, PURCHASE OF MOTOR CAR AND EXPENDITURE CANNOT BE TREATED AS INC OME OF THE ASS ESSEE. 6. THE ASSESSEE AS WELL AS THE REVENUE CARRIED MATTER IN FURTHER APPEAL BEFORE THE TRIBUNAL. THE ITAT, MUMBAI F BENCH VIDE ITS ORDER DATED 1612 - 2015 IN ITA NO. 352/MUM/2014 AND ITA NO. 1336/MUM/2014 FOR ASST. YEAR 2003 - 04 DISMISSED APPEAL FILED BY TH E ASSESSEE AND UPHELD DENIAL OF EXEMPTION U/S 11 OF THE ACT AND ALSO ALLOWED APPEAL FILED BY THE REVENUE WITHOUT DECIDING THE ISSUES CHALLENGED BY THE REVENUE ON MERITS TOWARDS DELETION OF ADDITIONS MADE BY THE AO TOWARDS LOANS AND ADVANCES AND FOR PURCHAS E OF MOTOR CAR, REPAIRS AND EXPENSES. THE RELEVANT PORTION O F ORDER IS REPRODUCED HEREUNDER: - 6. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. WE HAVE ALSO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND THE RELEVANT DOCUMENTARY EVIDENCES AND HAVE CONSIDERED THE JUDICIAL DECISIONS RELIED UPON. THERE IS NO DENIAL THAT THE ASSESSEE HAS GIVEN LOAN TO TWO MAZDOOR 5 SABHAS. THERE IS ALSO NO DENIAL THAT THE TRUSTEES OF THE ASSESSEE HAPPEN TO BE THE FINAL BENEFICIARIES AS MENTIONED AT PAR A - 3. LET US SEE THE CONDUCT OF THE ASSESSEE IN THE LIGHT OF THE PROVISIONS OF SECTION 13(1)(C) R.W.S. 13(3)OF THE ACT, WHICH ARE AS UNDER: - SECTION 13(1)(C) (C) IN THE CASE OF A TRUST FOR CHARITABLE OR RELIGIOUS PURPOSES OR A CHARITABLE OR RELIGIOUS INSTIT UTION, ANY INCOME THEREOF - (I) IF SUCH TRUST OR INSTITUTION HAS BEEN CREATED OR ESTABLISHED AFTER THE COMMENCEMENT OF THIS ACT AND UNDER THE TERMS OF THE TRUST OR THE RULES GOVERNING THE INSTITUTION, ANY PART OF SUCH INCOME ENURES, OR (II) IF ANY PART OF S UCH INCOME OR ANY PROPERTY OF THE TRUST OR THE INSTITUTION (WHENEVER CREATED OR ESTABLISHED) IS DURING THE PREVIOUS YEAR USED OR APPLIED, DIRECTLY OR INDIRECTLY FOR THE BENEFIT OF ANY PERSON REFERRED TO IN SUBSECTION (3): PROVIDED THAT IN THE CASE OF A TRU ST OR INSTITUTION CREATED OR ESTABLISHED BEFORE THE COMMENCEMENT OF THIS ACT, THE PROVISIONS OF SUB - CLAUSE (II) SHALL NOT APPLY TO ANY USE OR APPLICATION, WHETHER DIRECTLY OR INDIRECTLY, OF ANY PART OF SUCH INCOME OR ANY PROPERTY OF THE TRUST OR INSTITUTI ON FOR THE BENEFIT OF ANY PERSON REFER - RED TO IN SUB - SECTION (3), IF SUCH USE OR APPLICATION IS BY WAY OF COMPLIANCE WITH A MANDATORY TERM OF THE TRUST OR A MANDATORY RULE GOVERNING THE INSTITUTION: 6 PROVIDED FURTHER THAT IN THE CASE OF A TRUST FOR RELIGI OUS PURPOSES OR A RELIGIOUS INSTITUTION (WHENEVER CREATED OR ESTABLISHED) OR A TRUST FOR CHARITABLE PURPOSES OR A CHARITABLE INSTITUTION CREATED OR ESTABLISHED BEFORE THE COMMENCEMENT OF THIS ACT, THE PROVISIONS OF SUB - CLAUSE (II) SHALL NOT APPLY TO ANY U SE OR APPLICATION, WHETHER DIRECTLY OR INDIRECTLY, OF ANY PART OF SUCH INCOME OR ANY PROPERTY OF THE TRUST OR INSTITUTION FOR THE BENEFIT OF ANY PERSON REFERRED TO IN SUB - SECTION (3) IN SO FAR AS SUCH USE OR APPLICATION RELATES TO ANY PERIOD BEFORE THE 1S T DAY OF JUNE, 1970 ; SECTION 13(3): (3) THE PERSONS REFERRED TO IN CLAUSE (C) OF SUB - SECTION (1) AND SUB - SECTION (2) ARE THE FOLLOWING, NAMELY: - (A) THE AUTHOR OF THE TRUST OR THE FOUNDER OF THE INSTITUTION; (B) ANY PERSON WHO HAS MADE A SUBSTANTIAL C ONTRIBUTION TO THE TRUST OR INSTITUTION, 2 THAT IS TO SAY, ANY PERSON WHOSE TOTAL CONTRIBUTION UP TO THE END OF THE' RELEVANT PREVIOUS YEAR EXCEEDS 3FIFTY] THOUSAND RUPEES]; (C) WHERE SUCH AUTHOR, FOUNDER OR PERSON IS A HINDU UNDIVIDED FAMILY, A MEMBER OF THE FAMILY; (CC) 4 ANY TRUSTEE OF THE TRUST OR MANAGER (BY WHATEVER NAME CALLED) OF THE INSTITUTION;] 7 (D) ANY RELATIVE OF ANY SUCH AUTHOR, FOUNDER, PERSON, 5 MEMBER, TRUSTEE OR MANAGER] AS AFORESAID; (E) ANY CONCERN IN WHICH ANY OF THE PERSONS REFER - RE D TO IN CLAUSES (A), (B), (C) 6 , (CC)] AND (D) HAS A SUBSTANTIAL INTEREST. A PERUSAL OF THIS SECTION, QUA THE CHART EXHIBITED ELSEWHERE CLEARLY SHOW THAT THE TRUSTEES HAVE BEEN BENEFITED DIRECTLY OR INDIRECTLY CLEARLY VIOLATING THE CONDITIONS. 6.1 THE CLA IM OF THE LD. COUNSEL IS THAT IT IS COVERED BY THE PROVISIONS OF SECTION 13(1)(D) OF THE ACT. THE RELEVANT PORTION OF THE SAID SECTION READ AS UNDER: - SECTION - 13(1)(D): - (D) 1 IN THE CASE OF A TRUST FOR CHARITABLE OR RELIGIOUS PURPOSES OR A CHARITABLE OR RELIGIOUS INSTITUTION, ANY INCOME THEREOF, IF FOR ANY PERIOD DURING THE PREVIOUS YEAR - (I) ANY FUNDS OF THE TRUST OR INSTITUTION ARE INVESTED OR DEPOSITED AFTER THE 28TH DAY OF FEBRUARY, 1983 OTHERWISE THAN IN ANY ONE OR MORE OF THE FORMS OR MODES SPECIF IED IN SUB - SECTION (5) OF SECTION 11; OR (II) ANY FUNDS OF THE TRUST OR INSTITUTION INVESTED OR DEPOSITED BEFORE THE 1ST DAY OF MARCH, 1983 OTHERWISE THAN IN ANY ONE OR MORE OF THE FORMS OR MODES SPECIFIED IN SUB - SECTION (5) OF SECTION 11 CONTINUE TO RE MAIN 8 SO INVESTED OR DEPOSITED AFTER THE 30TH DAY OF NOVEMBER, 1983 ; OR THESE CLAUSES REFERRED TO THE AMOUNT INVESTED OR DEPOSITED OTHERWISE, THAN THE MODES SPECIFIED IN SECTION 11(5) OF THE ACT. WE FAIL TO UNDERSTAND HOW A LOAN AMOUNT GIVEN TO TWO MAZDOOR SABHAS FIT INTO THE CATEGORY OF MAKING INVESTMENT OR DEPOSIT AS PER PROVISIONS OF SECTION 11(5) OF THE ACT, WHEREIN INVESTMENT HAVE BEEN REFERRED TO THE INVESTMENT IN SAVING CERTIFICATES OF THE GOVERNMENT AS DEFINED IN CLAUSE (C) OF SECTION - 2 OF THE GOVE RNMENT SAVING CERTIFICATE ACT AND DEPOSITS HAVE BEEN REFERRED TO BEING DEPOSIT IN POST OFFICE SAVING BANK ACCOUNT OR IN SCHEDULE BANK. THUS, IT CAN BE SAFELY CONCLUDED THAT THE ASSESSEE IS NOT COVERED BY THE PROVISIONS OF SECTION 13(1)(D) OF THE ACT. THERE FORE, THE DECISIONS RELIED UPON BY THE ASSESSEE AS MENTIONED ELSEWHERE DO NOT SUPPORT. 6.2 AS MENTIONED ELSEWHERE THE ASSESSEE HAS CLEARLY VIOLATED THE PROVISIONS OF SECTION 13(1)(C) R.W.S. 13(3) OF THE ACT. HENCE, THE ASSESSEE IS NOT ELIGIBLE FOR THE BENE FIT OF EXEMPTION UNDER SECTION 11 OF THE ACT. THE DENIAL OF EXEMPTION IS CONFIRMED. 7. IN SO FAR AS THE TAXABILITY OF THE CORPUS FUND IS CONCERNED, WE DIRECT THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH AS PER THE PROVISIONS OF THE LAW. IN SO FAR AS TH E CLAIM OF EXPENDITURE IS CONCERNED THE ASSESSING OFFICER IS DIRECTED TO VERIFY WHETHER THE AMOUNT IS GIVEN AS ADVANCE OR CHARGED TO THE P&L ACCOUNT, AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THIS ISSUE AS PER THE PROV ISIONS OF THE LAW. 9 8. BEFORE CLOSING, WE FIND THAT THE ASSESSEE HAS ALSO RAISED AN ADDITIONAL GROUND BY WHICH IT HAS CHALLENGED THE VALIDITY OF THE REOPENING OF THE ASSESSMENT. HOWEVER, AT THE TIME OF HEARING, LD. COUNSEL DID NOT ARGUE THIS ADDITIONAL GROU ND; THEREFORE, WE DO NOT FIND IT NECESSARY TO DECIDE THIS ISSUE. 9. THE APPEAL FILED BY THE ASSESSEE IS DISMISSED AND SINCE THE DENIAL OF EXEMPTION HAS BEEN UPHELD BY US, THE APPEAL FILED BY THE REVENUE IS TREATED AS ALLOWED. 7. BEING, AGGRIEVED THE REVENUE FILED MISCELLANEOUS APPLICATION U/S 254(2) AND REQUESTED TO RECALL ORDER PASSED BY THE TRIBUNAL FOR THE DETAILED REASONS STATED IN THEIR PETITION. THE ITAT IN MA NO. 324/MUM/2017 DATED 16 - 02 - 2018, RECALLED REVENUE APPEAL IN ITA NO. 1336/MUM/2014 AND RESTOR ED APPEAL FILED BY T HE REVENUE BY OBSERVED AS UNDER: - 2. WE HAVE HEARD THE LD. AR OF THE ASSESSEE AND LD. DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASSESSEE ARGUED ON THE SIMILAR LINE AS CONTENDED IN THE MISCELLAN EOUS APPLICATION. ON THE CONTRARY, THE LD. DR FOR THE REVENUE CONCEDED THAT THERE IS NO DISCUSSION ABOUT THE GROUNDS OF APPEAL RAISED BY REVENUE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PARTIES AND PERUSED THE ORDER PASSED ON 16.12.2015. WE HAVE SEEN THAT THE GROUNDS OF APPEAL RAISED BY ASSESSEE IN ITS APPEAL AND THE GROUNDS OF APPEAL RAISED BY REVENUE ARE DIFFERENT. WE HAVE FURTHER NOTED THAT WHILE DISMISSING THE 10 APPEAL OF THE ASSESSEE IN SUSTAINING THE DENIAL OF EXEMPTION, THE APPEAL OF THE REVE NUE WAS TREATED AS ALLOWED. WE HAVE FURTHER NOTED THAT THE APPEAL OF THE REVENUE WAS ALLOWED WITHOUT DISCUSSING THE GROUNDS OF APPEAL AND THE FACTS RELATED THEREWITH. CONSIDERING THE FACT THAT IS NO DISCUSSION ABOUT THE FACTS RELATED WITH GROUNDS OF APPEAL AND THE SUBMISSION OF RESPECTIVE PARTIES, WE FIND THAT NON - CONSIDERATION OF GROUNDS OF APPEAL AND THE FACT THEREOF ARE MISTAKE APPARENT. HENCE, THE ORDER QUA THE APPEAL OF REVENUE BEING ITA NO. 1336/M/14 FOR AY 2003 - 04 IS RECALLED. THE CASE IF NOW FIXED F OR HEARING ON 05.04.2018. ISSUANCE OF FRESH NOTICE IS DISPENSED WITH AS THE PARTIES WERE INFORMED IN THE COURT DURING THE HEARING OF THE CASE. 8. THE RECALLED REVENUE APPEAL IN ITA NO. 1336/MUM/2014 IS HEARD ALONG WITH OTHER APPEALS FOR SUBSEQUENT ASST. YEAR S FILED BY THE ASSESSEE AS WELL AS THE REVENUE, AS THE ISSUE INVOLVED IN THIS APPEAL IS IDENTICAL TO THE ISSUES IN ALL APPEALS OF THE ASSESSEE AND REVENUE FOR ALL ASSESSMENT YEARS. 9. THE FIRST ISSUE THAT CAME UP FOR OUR CONSIDERATION FROM ASSESSEE APPEAL IS DENIAL OF EXEMPTION U/S 11 OF THE ACT. ALTHOUGH, THE ISSUE HAS BEEN DECIDED AGAINST THE ASSESSEE BY THE ITAT, FOR ASST. YEAR 2003 - 04 IN ITA NO. 352/MUM/2014, THE LD. AUTHORIZED REPRESENTATIVE VEHEMENTLY ARGUED THE MATTER AT LENGTH WITH THE HELP OF CERTAIN JUDICIAL PRECEDENTS TO KEEP THE ISSUE ALIVE. THE LD. A R FOR THE ASSESSEE SUBMITTED THAT THE LD. AO AS WELL AS THE LD. CIT(A) FAILED TO APPRECIATE THE FACT IS RIGHT PERSPECTIVE IN THE LIGHT OF FACTS OF THE CASE BEFORE REJECTION OF EXEMPTION U/S 11 OF THE ACT. THE AO ON THE BASIS OF APPRAISAL OF INCORRECT FACTS CAME TO WRONG CONCLUSION THAT THERE IS VIOLATION OF SECTION 13(1)(C ) OF THE ACT , INSOFAR AS LOANS AND ADVANCES GIVEN TO TWO TRADE UNIONS WITHOUT 11 UNDERSTANDING BASIC FACTS THAT THE MAIN OBJECT OF THE TRUST IS TO HELP MEMBERS OF TRADE UNION FOR WHICH IT HAS LENT LOAN AND THE SAME HAS BEEN USED FOR THE BENEFIT OF MEMBERS OF UNION. THE AO MADE BASELESS ALLEGATION OF SIPHONING OF LARGE SCALE MONEY BY TRUSTEES WITHOUT APPRECIATION FACT THAT OUT OF TOTAL LO ANS GIVEN TO TWO TRADE UNIONS, ONLY A SUM OF RS. 8,00,000/ - WAS GIVEN TO CHANDBIBI AND REMAINING AMOUNT HAS BEEN SPENT FOR THE OBJECTS FOR WHICH NECESSARY EVIDENCES HAS BEEN FILED. IN SO FAR AS PURCHASE OF MOTOR CAR IN THE NAME OF R. J MEHTA, ANOTHER TRUST EE, ALTHOUGH CAR IS PURCHASED IN THE NAME OF TRUSTEE, THE CAR IS USED EXCLUSIVELY FOR TRUST PURPOSE AND NECESSARY APPROVAL HAS BEEN TAKEN FROM COMPETENT AUTHORITY. SIMILARLY, THE AO HAS MISCONSTRUED THE FACTS WITH REGARD TO EXPENDITURE INCURRED FOR REPAIRS OF BUILDING WITHOUT APPRECIATING FACT THAT AMOUNT GIVEN TO SHANKAR GADAM OF M/S MAHALAXMI ENTERPRISES IS TREATED AS ADVANCE AND NOT DEBITED TO THE PROFIT AND LOSS ACCOUNT. THE ASSESSEE HAS FILED ALL DETAILS TO PROVE AN OBSERVATION OF THE AO IS INCORRECT AND THERE IS NO VIOLATION OF ANY OF THE PROVISIONS, BUT THE AO HAS CONVENIENTLY IGNORED ALL EVIDENCES TO REJECT EXEMPTION U/S 11 OF THE ACT. IN THIS REGARD, HE RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF ACIT VS. SURAT CITY GYMKHANA 30 0 ITR 214(SC) AND HONBLE KARNATAKA HC IN THE CASE OF CIT VS. FR. MULLERS CHARITABLE INSTITUTION 363 ITR 230. 10. THE LD. DR ON THE OTHER HAND SUBMITTED THAT THE ISSUE HAS BEEN ALREADY DECIDED AGAINST THE ASSESSEE BY ITAT MUMBAI F BENCH IN ITA NO. 1336/MUM/2 014, AND WITHOUT ANY CHANGE IN FACTS NO CONTRARY DECISION CAN BE TAKEN IN SUBSEQUENT YEARS. THE LD. DR FURTHER SUBMITTED THAT THE ASSESSEE FAILED TO EXPLAIN VIOLATIONS OF SECTION 13(1)(C ) POINTED OUT BY THE AO AND SUCH VIOLATION IS CONTINUED IN SUBSEQUENT YEARS, THEREFORE THE AO HAS RIGHTLY REJECTED EXEMPTION AND HIS ORDER SHOULD BE UPHELD. 11. WE HAVE HEARD BOTH THE PARTIES, PERUSED MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE ALSO CAREFULLY 12 CONSIDERED CASE LAW RELIED UPON BY THE ASSESSEE. THE COORDINATE BENCH OF ITAT, F BENCH HAS ALREADY DECIDED THE ISSUE AGAINST THE ASSESSEE IN ITA NO. 1336/MUM/2014 . THE TRIBUNAL AFTER CONSIDERING RELEVANT FACTS IN LIGHT OF PROVISIONS OF SECTION 13(1)( C), 13(2) AND 13(1)(D) OBSERVED THAT T HE ASSESSEE HAS VIOLATED PROVISIONS OF SECTION 13(1)(C ) R.W.S 13(3) OF THE ACT, AND HENCE NOT ELIGIBLE FOR EXEMPTION U/S 11 OF THE ACT. THE RELEVANT PORTION OF ITAT ORDER FROM PARA 6 TO 6.2 IS REPRODUCED AT PARA 6 OF THIS ORDER. 12. FACTS REMAIN UNCHANGED. WH EN THE BENCH POSE A SPECIFIC QUESTION A BOUT CONTINUATION OF VIOLATION REFERRED TO U/S 13(1)(C) FOR SUBSEQUENT YEARS, THE LD. AR FOR THE ASSESSEE FAIRLY ACCEPTED THAT SUCH VIOLATION IS PERPETUATED IN SUBSEQUENT YEARS, HOWEVER TR IED TO ARGUED THAT VIOLATIONS BROUGHT OUT BY THE AO SHALL NOT BE REASON FOR DENIAL OF EXEMPTION, WHEN THE ASSESSEE CONTINUED TO CARRY OUT ITS ACTIVITIES IN ACCORDANCE WITH ITS OBJECTS. WE FIND THAT, THE ASSESSEE FAILED TO NEGATE OBSERVATION OF THE LOWER AUTHORITIES IN THE LIGHT OF PRO VISIONS OF SECTION 13(1)(C ) OF THE ACT. THEREFORE, CONSISTENT WITH THE VIEW TAKEN BY THE COORDINATE BENCH, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U/S 11 OF THE ACT, AND HENCE WE ARE INCLINED TO UPHELD FINDING OF THE LD. CIT(A) AND REJECT GROUND OF THE ASSESSEE FOR ALL ASST. YEARS. 13. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATION FROM ASSESSEE APPEALS IS TAXATION OF CORPUS DONATIONS. THE LD. CIT(A) DEALT CORPUS DONATION ISSUE IN PARA 5.10 OF HIS ORDER. ACCORDING TO TH E LOWER AUTHORITIES, CORPUS DONATION IS FORMING PART OF INCOME DERIVED FROM PROPERTY HELD UNDER TRUST, ONCE EXEMPTION U/S 11 IS DENIED. THE LD. CIT(A) FURTHER OBSERVED THAT, ALTHOUGH ASSESSEE FURNISHED LETTERS INDICATING DONORS INTENTION TO DONATE FOR CORP US OF THE TRUST, THESE LETTERS ARE IDENTICALLY WORDED WITHOUT ANY FURTHER EVIDENCES. THE LD. CIT(A) FURTHER HELD THAT AS PER SECTION 12(1) VOLUNTARY CONTRIBUTIONS WILL ALSO DEEMED TO BE INCOME DERIVED FROM PROPERTY HELD UNDER TRUST, AND PROVISIONS OF SECTI ON 11 AND 13 13 SHALL APPLY AND ACCORDINGLY, ONCE EXEMPTION IS DENIED, THEN WHOLE RECEIPTS INCLUDING CORPUS DONATION SHALL BE TREATED AS RECEIPT OF TRUST AND NORMAL COMMERCIAL PRINCIPLES SHALL BE APPLIED TO DETERMINE INCOME. IT IS THE CONTENTION OF THE ASSESS EE THAT EVEN IF EXEMPTION IS DENIED, STILL CORPUS DONATION SHALL NOT BE TAXED AS INCOME DERIVED FROM PROPERTY HELD UNDER TRUST. THE LD. AR FOR THE ASSESSEE VEHEMENTLY ARGUED THE MATTER IN THE LIGHT OF PROVISIONS OF SECTION 11(1)(D) AND 12(1) AND CERTAIN JU DICIAL DECISIONS, AND SUBMITTED THAT VOLUNTARY CONTRIBUTIONS MADE WITH A SPECIFIC DIRECTION SHALL NOT FORM PART OF INCOME DERIVED FROM PROPERTY HELD UNDER TRUST, THEREFORE CANNOT BE TAXED EVEN IF EXEMPTION IS DENIED. IN THIS REGARD, HE RELIED UPON PLETHORA OF JUDGMENTS INCLUDING THE FOLLOWING JUDGMENTS. A) J.B EDUCATION SOCIETY V/S ACIT 159 TTJ 0236 (HYD) VIOLATION OF SECTION 13(1)(C) STILL CORPUS DONATION WERE NOT TAXABLE. B) R.B. SHREERAM RELIGIOUS & CHARITABLE TRUST VS. CIT (SC) 233 ITR 0053 C) CIT VS. INDORE TABLE TENNIS TRUST 227 ITR 0836 (MP) D) CIT VS. BENGAL MILLS & STEMERS PRE. ASSOCIATION 140 ITR 0586 (CALL) E) CIT VS. VANCHI TRUST & ANR. 127 ITR 0227 (KERALA) F) CIT VS. BAL UTKARSH SOCIETY 119 ITR 0137 (GUJARAT) G) CIT VS PUNYARPAN CHARITABLE TR UST 166 ITR 0214 (CAL) 14 H) CIT VS SHRI BILLESWARA CHARITABLE 145 ITR 29 (MAD) I) M.N. DESAI CHARITABLE TRUST VS. CIT 246 ITR 452 (GUJ) J) TRUSTEES OF KILACHAND FOUNDATION 172 ITR 0382 (BOM) K) CIT VS ETERNAL SCIENCE OF MANS SOCIETY 128 ITR 456 (DEL) 14. WE H AVE HEARD BOTH THE PARTIES, PERUSED MATERIALS ON RECORD AND GONE THROUGH ORDERS OF AUTHORITIES BELOW. IT IS AN ADMITTED FACT THAT EXEMPTION U/S 11 HAS BEEN DENIED TO THE ASSESSEE. IT IS ALSO AN ADMITTED FACT THAT THE ASSESSEE HAS FAILED TO FILE NECESSARY E VIDENCES TO PROVE CORPUS DONATIONS ARE MADE WITH SPECIFIC DIRECTION THAT THEY SHALL FORM PART OF CORPUS OF THE TRUST. NO DOUBT, CORPUS DONATION RECEIVED WITH A DIRECTION THAT THEY SHALL FORM PART OF CORPUS OF THE TRUST SHALL NOT BE TREATED AS INCOME DERIVE D FROM PROPERTY HELD UNDER TRUST . BUT, THE ONUS IS ON THE ASSESSEE TO PROVE THAT SUCH DONATIONS ARE IN FACT CORPUS DONATIONS WHICH SHALL NOT FORM PART OF INCOME OF THE TRUST U/S 11(1) OF THE ACT. IN THIS CASE, ON PERUSAL OF FACTS, WE FIND THAT THE AO AS WE LL AS THE LD. CIT(A) GAVE CATEGORICAL FINDINGS THAT THE ASSESSEE FAILED TO FILE ANY EVIDENCES TO PROVE THAT THESE DONATION ARE CORPUS DONATIONS. ONCE, THESE DONATIONS ARE NOT CORPUS DONATIONS, THEN, AUTOMATICALLY ALL RECEIPTS INCLUDING CORPUS DONATIONS SHA LL BE TREATED AS RECEIPTS OF THE TRUST AND INCOME WHEREFROM SHALL BE COMPUTED IN NORMAL COMMERCIAL PRACTICES BY DEDUCTING ALL EXPENSES . THE CIT(A) AFTER CONSIDERING RELEVANT FACTS HAS RIGHTLY TREATED CORPUS DONATION AS PART OF GROSS RECEIPTS TO DETERMINE I NCOME. WE DO NOT FIND ANY ERROR IN THE ORDER OF THE LD. CIT(A). HENCE, WE ARE INCLINED TO UPHOLD THE CIT(A) ORDER AND REJECT GROUND TAKEN BY THE ASSESSEE FOR ALL YEARS. 15 15. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATION FOR A.Y.2005 - 06 IS NON ADJUDICATION O F GROUND NO.8. THE ASSESSEE HAS TAKEN GROUND ON THE ISSUE OF EXPENDITURE OF RS. 15,80,077 MADE OUT OF CORPUS DONATIONS. ALTHOUGH, THE AO HAS NOT MADE ANY SPECIFIC ADDITIONS FOR THIS AMOUNT IN THE ASSESSMENT ORDER, YET THE ASSESSEE HAS TAKEN A GROUND WITH A BUNDANT PRECAUTION FOR THE REASON THAT IN PARA 2 OF HIS ORDER, THE AO HAS SAID THAT EXEMPTION CLAIMED TOWARDS CORPUS DONATION OF RS. 16,17,230 AND EXPENDITURE OF RS. 15,80,077 IS TAXABLE. 16. HAVING HEARD BOTH SIDES, WE FIND THAT THE AO DID NOT MADE ANY ADDIT ION TOWARDS EXPENDITURE OF RS. 15,80,077/ - IN THE ASSESSMENT, THEREFORE, THERE IS NO CAUSE OF GRIEVANCE FOR THE ASSESSEE INSOFAR THIS ISSUE IS CONCERNED. BUT, FACT REMAINS THAT, THE AO HAS SAID IN PARA 2 OF HIS ORDER THAT THE AMOUNT OF EXPENDITURE IS TAXAB LE. ONCE, EXEMPTION IS DENIED, INCOME SHALL BE COMPUTED UNDER NORMAL ACCOUNTING PRINCIPLES BY CONSIDERING ALL INCOME AND EXPENSES TO DETERMINE PROFIT/LOSS, BUT AT NO STRETCH OF IMAGINATION EXPENDITURE SHALL BE TREATED AS INCOME, UNLESS SUCH EXPENSES IS UNE XPLAINED OR SUCH EXPENSES HAS NOT BE SUBSTANTIATED WITH EVIDENCES. IN THIS CASE, THERE ARE NO FINDINGS FROM THE AO ON THESE ASPECTS. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT NO ADDITION CAN BE MADE TOWARDS EXPENDITURE INCURRED FOR OBJECTS OF THE TRUST . 17. THE NEXT ISSUE THAT CAME UP FOR CONSIDERATION FOR A.Y. 2013 - 14 IS DENIAL OF CREDIT FOR TDS. THE ASSESSEE CLAIMS THAT THE AO DID NOT ALLOWED CREDIT FOR TDS AMOUNT ING TO RS. 1,25,032/ - . BUT, ON PERUSAL OF ORDERS OF THE LD. AO AS WELL AS THE LD. CIT(A), WE FIND THAT FACTS WITH REGARD TO CLAIM OF TDS IS NOT EMANATING FROM ORDERS OF LOWER AUTHORITIES. HOWEVER, IF THE ASSESSEE ABLE TO PROVE THE CLAIM WITH NECESSARY TDS CERTIFICATES AND CORRESPONDING INCOME IS ALREADY CONSIDERED IN BOOKS, THEN THE AO IS DIRECTED TO ALLOW CREDIT FOR TDS. HENCE, THE MATTER IS SET ASIDE TO THE FILE OF THE AO TO CAUSE NECESSARY ENQUIRIES AND ALLOW CREDIT FOR TDS. 16 18. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATION FROM ASSESSEE ADDITIONAL GROUND OF APPEAL IS CARRY FORWARD AND SET OFF O F LOSS OF EARLIER YEARS. THE ASSESSEE HAS TAKEN ADDITIONAL GROUND IN AS MUCH AS, IF BENEFIT OF EXEMPTION IS DENIED AND INCOME IS COMPUTED UNDER COMMERCIAL PRINCIPLES, THEN LOSES HALL BE ALLOWED TO CARRY FORWARD AND SET OFF AGAINST INCOME OF SUBSEQUENT YEAR S. WE FIND THAT THE ASSESSEE HAS CLAIMED EXEMPTION U/S 11 AND HENCE, NOT EXERCISED OPTION TO CARRY FORWARD AND SET OFF LOSSES. THE AO DENIED BENEFIT OF EXEMPTION U/S 11 AND COMPUTED INCOME UNDER NORMAL COMMERCIAL PRINCIPLES. ONCE, BENEFIT OF EXEMPTION IS D ENIED AND INCOME IS CONSIDERED UNDER NORMAL COMMERCIAL PRINCIPLES, THEN THE BENEFIT OF CARRY FORWARD AND SET OFF OF LOSSES SHALL BE ALLOWED, PROVIDED ALL OTHER CONDITIONS OF CARRY FORWARD AND SET OFF OF LOSSES AS PROVIDED UNDER SECTION 72 ARE SATISFIED. TH EREFORE, WE SET ASIDE THE ISSUE TO THE FILE OF THE AO TO CAUSE NECESSARY ENQUIRIES AND ALLOW THE BENEFIT ACCORDINGLY. 19. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATION FROM REVENUE APPEALS IS ADDITIONS TOWARDS LOANS AND ADVANCES GIVEN TO TWO TRADE UNIONS, I.E. ENGINEERING MAZDOOR SABHA(EMS) AND MUMBAI MAZDOOR SABHA(MMS). THE AO MADE ADDITIONS TO TOTAL INCOME TOWARDS LOANS GIVEN TO ABOVE TWO TRADE UNIONS ON THE GROUND THAT TRUSTEES SIPHONED OFF MONEY THROUGH ABOVE TWO TRADE UNIONS AS THE SAID LOAN HAS BEEN U LTIMATELY TRANSFERRED TO CHANDBIBI ACCOUNT FOR PURCHASE OF PROPERTY. THE AO HAS MADE ADDITION TO LOANS FOR THE REASON THAT MONEY HAS BEEN SIPHONED OFF IN CONTRAVENTION OF PROVISIONS OF SECTION 13(1)(C ) R.W.S. 13(3) AND THIS WOULD BE ONE OF THE REASON FOR DENIAL OF EXEMPTION U/S 11 OF THE ACT. THE LD. CIT(A) DELETED ADDITION MADE BY THE AO ON THE GROUND THAT LOANS GIVEN TO TWO TRADE UNIONS AND TRANSFERRED TO TRUSTEES ACCOUNT COULD BE A REASON FOR DENIAL OF EXEMPTION U/S11, BUT LOANS COULD NOT BE ADDED AS IN COME OF THE ASSESSEE AS THE SAME WAS NOT DEBITED TO PROFIT AND LOSS ACCOUNT AS EXPENDITURE, BUT HAS BEEN TREATED AS CURRENT ASSETS IN BALANCE SHEET. 17 20. THE LD. DR SUBMITTED THAT THE LD. CIT(A) FAILED TO APPRECIATE FACT THAT END USE OF THE FUNDS FROM THOSE TRA DE UNIONS PROVIDED TO THE TRUSTEES THROUGH THE SERIES OF TRANSACTIONS IS MERELY CAMOUFLAGE THE INTENTION AND DIVERSION OF FUNDS FROM TRUST TO THE TRUSTEES . THE DR FURTHER SUBMITTED THAT THE ASSESSEE HAS VIOLATED PROVISIONS OF SECTION 13(1)(C) AND 11(5) OF THE ACT, WHICH NEEDS TO BE TAXED IN THE HANDS OF THE ASSESSEE, BUT THE LD. CIT(A) DELETED ADDITIONS ON THE GROUND THAT LOANS AND ADVANCES CANNOT BE TREATED AS INCOME OF THE ASSESSEE WITHOUT APPRECIATING FACT THAT TRUST FUNDS HAS BEEN SIPHONED OFF BY THE TR USTEES. 21. THE LD. AR FOR THE ASSESSEE, ON THE OTHER HAND STRONGLY SUPPORTED ORDER OF THE CIT(A). THE AR FURTHER SUBMITTED THAT AT NO STRETCH OF IMAGINATION LOANS AND ADVANCES BEING ASSETS CANNOT BE TREATED AS INCOME OF THE ASSESSEE ONLY FOR THE REASON THAT T HESE LOANS ARE HIT BY THE PROVISIONS OF SECTION 13(1)(C). THE VIOLATION OF SECTION 13(1)(C) MAY BE A GROUND FOR DENIAL OF EXEMPTION, BUT SUCH LOANS CANNOT BE TREATED AS INCOME OF THE ASSESSEE. 22. WE HAVE HEARD BOTH THE PARTIES AND PERUSED MATERIALS ON RECORD. THE AO MADE ADDITIONS TO LOANS AND ADVANCES GIVEN TO TWO TRADE UNIONS ONLY ON THE GROUND THAT THE SAID LOAN IS HIT BY THE PROVISIONS OF SECTION 13(1)(C ) OF THE ACT , BY MISCONCEPTION OF LAW AND FACTS. THERE IS NO FINDINGS FROM THE AO THAT ASSESSEE HAS CLA IMED DEDUCTION FOR SUCH LOANS AGAINST INCOME. ON THE OTHER HAND, THE LD. CIT(A) RECORDED CATEGORICAL FACT THAT THESE LOANS ARE NOT CLAIMED AS EXPENDITURE, BUT ARE TREATED AS CURRENT ASSETS IN BOOKS OF ACCOUNTS. THE FACTS GATHERED DURING ASSESSMENT AND VIOL ATIONS OF SECTION 13(1)(C) BROUGHT OUT BY THE AO MAY BE A GOOD REASON FOR REJECTION OF EXEMPTION, BUT LOANS AND ADVANCES BEING CURRENT ASSETS CANNOT BE TREATED AS INCOME OF THE ASSESSEE. THE LD. CIT(A) AFTER CONSIDERING RELEVANT FACTS HAS RIGHTLY DELETED A DDITIONS TOWARDS LOAN AND ADVANCES. WE DO NOT FIND ANY ERROR IN THE ORDER OF THE LD. 18 CIT(A) AND HENCE, WE ARE INCLINED TO UPHELD FINDINGS OF THE CIT(A) AND REJECT GROUNDS OF REVENUE FOR ALL ASSESSMENT YEARS. 23. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATIO N FROM REVENUE APPEALS IS ADDITIONS TOWARDS PURCHASE CAR IN THE NAME OF TRUSTEE AND REPAIRS AND ALSO OTHER EXPENSES. THE AO, WHILE COMPLETING ASSESSMENT MADE ADDITIONS TOWARDS EXPENDITURE INCURRED FOR OBJECTS OF THE TRUST, PURCHASE CAR IN THE NAME OF TRUST EE AND NON GENUINE REPAIR EXPENSES ON THE GROUND THAT THE TRUSTEES HAVE SIPHONED OFF MONEY BY PURCHASING CAR IN PERSONAL NAME AND BOOKING NON GENUINE EXPENDITURE. IT IS THE CONTENTION OF THE ASSESSEE THAT THE FACTS GATHERED BY THE AO TO HOLD THERE IS VIOLA TION OF SECTION 13(1)(C ) MAY BE A GOOD REASON FOR REJECTION OF EXEMPTION, BUT PURCHASE OF CAR BEING CAPITAL EXPENDITURE AND EXPENSES INCURRED FOR OBJECTS OF THE TRUST CANNOT BE TREATED AS INCOME. 24. HAVING HEARD BOTH PARTIES, WE FIND THAT THE LD. CIT(A) HAS RECORDED CATEGORICAL FACTS THAT PURCHASE OF CAR HAS BEEN TREATED AS FIXED ASSETS IN BOOKS. SIMILARLY, AMOUNT PAID TO SHANKAR GADAM OF M/S MAHALAXMI ENTERPRISES HAS BEEN TREATED AS AD V A NCE IN BOOKS OF ACCOUNT. THE CIT(A) FURTHER OBSERVED THAT EXPENDITURE IN CURRED FOR OBJECTS OF THE TRUST COULD NOT BE TREATED AS INCOME, UNLESS THERE IS FINDINGS FROM THE AO THAT THESE ARE NON GENUINE EXPENDITURES. THE REVENUE FAILS TO BRING ON RECORD ANY CONTRARY EVIDENCES TO CONTROVERT FINDINGS OF THE LD. CIT(A). WE, THEREFOR E, OF THE OPINION THAT O NCE, EXEMPTION IS DENIED, INCOME SHALL BE COMPUTED UNDER NORMAL ACCOUNTING PRINCIPLES BY CONSIDERING ALL INCOME AND EXPENSES TO DETERMINE POFIT/LOSS, BUT AT NO STRETCH OF IMAGINATION EXPENDITURE SHALL BE TREATED AS INCOME, UNLESS SU CH EXPENSES IS UNEXPLAINED WITHIN THE PROVISIONS OF SECTION 69C OR SUCH EXPENSES HAS NOT BE SUBSTANTIATED WITH EVIDENCES. IN THIS CASE, THERE IS NO FINDING FROM THE AO ON THESE ASPECTS. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT NO ADDITION CAN BE MADE TOWARDS EXPENDITURE INCURRED FOR OBJECTS OF THE TRUST, PURCHASE OF CAR BEING CAPITAL IN NATURE AND TREATED AS SUCH IN BOOKS 19 AND AMOUNT PAID TO SHANKAR GADAM OF M/S MAHALAXMI ENTERPRISES. THE LD. CIT(A) AFTER CONSIDERING RELEVANT FACTS HAS RIGHTLY DELETED A DDITIONS MADE BY THE AO. WE DO NOT FIND ANY ERROR IN ORDER OF THE LD. CIT(A) AND HENCE, WE ARE INCLINED TO UPHELD FINDINGS OF THE CIT(A) AND REJECT GROUNDS OF REVENUE FOR ALL ASSESSMENT YEARS. 25. IN THE RESULT, THE APPEAL S FILED BY THE ASSESSEE IN ITA NO. 308 0 T O 3084/MUM/2016 AND ITA NO. 6952 TO 6954/MUM/2017 ARE PARTLY ALLOWED FOR STATI STI CALLY PURPOSE S AND THE APPEAL S FILED BY THE REVENUE IN ITA NO. 1336/MUM/2014, ITA NO. 3793 T O 3795/MUM/2016 AND ITA NO. 3800 T O 3801/MUM/2016 ARE DISMISSED . ORDER PRONOUNC ED IN THE OPEN COURT ON 04 - 0 7 - 2018 . SD/ - / - SD/ - / - D/ - (MAHAVIR SINGH) ( G. MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 04 - 07 - 2018 COPY OF THE ORDER FORWARDED TO : BY ORDER , ASSISTANT REGISTRAR ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. TH E CIT (A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//