Asha Deep Foundation, New Delhi V. ITO (E), Ward- 1(1), New Delhi

ITA 3349/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6621 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 18-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Depreciation; Opportunity of being heard; Difference of opinion; Change of opinion; Set aside
• Section: 147; 12; 11

Judgement Text

FIT FOR PUBLICATION SD/- JM IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC: NEW DELHI BEFORE, SMT. DIVA SINGH, JUDICIAL MEMBER I.T.A NO.3349/DEL/201 9 (ASSESSMENT YEAR: 2010-11) ASHA DEEP FOUNDATION 175-C, POCKET-J AND K, MIG FLATS, DILSHAD GARDEN, DELHI-110 095. PAN-AABTA 5766C VS. INCOME TAX OFFICER(E), WARD 1(1), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY SH. TAPAS RAM MISRA, CA RESPONDENT BY SH. R.K. GUPTA, SR. DR DATE OF HEARING 16.08.2021 DATE OF PRONOUNCEMENT 09.09.2021 HEARING CONDUCT ED VIA WEBEX ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSE SSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 22.02.2019 OF CIT(A) -40, DELHI PERTAINING TO 2010-11 ASSESSMENT YEAR IS ASSAILED ON THE FOLLOWIN G GROUNDS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE IMPUGNED ORDER OF THE CIT (A) IS PRIMA FACIE ERRONEOUS, BASED UPON INCORR ECT APPRECIATION OF FACTS, WITHOUT APPRECIATING THAT THE ASSESSMENT UNDER SECTION 147 ITSELF WAS ERRONEOUS BEING BASED UPON CHANGE OF OPINION, BAD IN LAW AND VOID AB INIT IO. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE CIT(A) ERRED ON FACTS AND IN LAW' IN CONFIRMING THE AO'S ACTION IN DENYIN G EXEMPTION UNDER SECTIONS 11 AND 12 OF THE INCOME-TAX ACT, 1961 (THE ACT) TO THE APPELLANT. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE CIT(A) ERRED ON FACTS AND IN LAW' IN CONCLUDING THAT EXEMPTION UNDER SECT ION 11 COULD NOT BE ALLOWED TO THE APPELLANT IN VIEW OF SECTION 13(1 )(B) OF THE ACT. WITHOUT APPRECIATING THAT SECTION 13(L)(B) OF THE ACT DENIES EXEMPTION TO A TRUST OR INSTITUTION CREATED OR ESTABLISHED FOR THE BENEFIT OF ANY PARTICULAR RELIGIOUS COMMUNITY O R CASTE AND THAT THE APPELLANT EVIDENTLY DID NOT FALL UNDER THAT CATEGORY. ITA NO.3349/DEL/2 019 ASHA DEEP FOUNDATION VS. ITO(E) PAGE 2 OF 6 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED ON FACTS AND IN LAW IN AFFIRMING THE AOS ERRONEOUS AS SUMPTION THAT HAVING RECEIVED DONATION FROM CARUNA BAL VIKAS, WHICH IS ALLEGED TO HAVE THE OBJECTIVE OF RELIGIOUS ACTIVITIES, THE APPELLANT GOT COVERED UNDER EJECTIO N 13(1)(B) OF THE ACT. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT THE APPELLANT R ECEIVED DONATIONS FROM VARIOUS OTHER SOURCES AND THAT THE DONATION FROM CARUNA BAL VIKAS CONSTITUTED A MERE 10 PER CENT OF THE DONATIONS RECEIVED AND THE SAID DONORS OBJECTIVE DOES NOT ALTER THE PURPOSES FOR WHICH THE APPELLANT WORKS. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED ON FACTS AND IN LAW 7 IN IN NOT APPRECIATING THAT THE FUNDS WERE UTILIZE D FOR BETTERMENT OF CHILDREN FROM EXTREMELY DEPRIVED SECTION OF SOCIETY BELONGING TO DIFFERENT RELIGIONS AND NOT FOR THE BENEFIT OF CHRISTIAN CHILDREN, AS ALLEG ED. 7. THAT ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE, THE CIT(A) ERRED ON FACTS AND IN LAW IN IGNORING THE EVIDENCE OF UTILIZ ATION OF FUNDS INCLUDING COMPLETE DETAILS OF IDENTITY OF THE BENEFICIARIES, AND WHILE ALLEGING THAT THE APPELLANT FAILED TO BRING ANYTHING ON RECORD TO SHOW' THAT FUND RECEIVE D FROM CARUNA BAL VIKAS WAS NOT SPENT FOR RELIGIOUS PURPOSE. 8. THE CIT(A) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT NO ONE CAN BE ASKED TO PROVE THE NEGATIVE, AND THAT THE AOS ASSE RTION THAT THE APPELLANT HAD UTILIZED FUNDS FOR RELIGIOUS ACTIVITIES, WAS BASED ON TOTALLY FLIMSY GROUNDS. 9. THE CIT(A) ERRED ON FACTS IN LAW IN CONFIRM ING THE DENIAL OF DEPRECIATION TO THE APPELLANT. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, AMEND OR VARY FROM THE AFORESAID GROUNDS OF APPEAL AT OF BEFORE THE TIME OF HEARING. 2. BOTH THE PARTIES WERE HEARD. THE LD. AUTHORIZE D REPRESENTATIVE RELYING UPON PARA 2.2 OF THE IMPUGNED ORDER SUBMITTED THAT THE DETAILED EVIDENCE OF THE ACTIVITIES CARRIED OUT BY THE ASSESSEE FOUNDATI ON ETC. IN PARA 2.4 FROM PAGES 3 TO11 THOUGH HAVE BEEN REPRODUCED, HOWEVER, HAVE N OT BEEN CONSIDERED WHILE ARRIVING AT THE CONCLUSION. THE FINDING ARRIVED AT , IT WAS SUBMITTED, WAS CONTRARY TO THE FACTS ON RECORD. 2.1 REFERRING TO THE SUBMISSIONS ALREADY ON RECORD, IT WAS HIS ARGUMENT THAT THE ASSESSEE IS ENGAGED IN VARIOUS ACTIVITIES WHERE IN CHILDREN FROM MARGINALIZED SECTION OF SOCIETY ETC.; RAG PICKERS C HILDREN ETC. WERE IDENTIFIED FOR ACTIVITIES TO BALANCE THEIR MINDS ETC. IT WAS SUBM ITTED THAT NO RELIGIOUS PROMOTION WAS DONE. ITA NO.3349/DEL/2 019 ASHA DEEP FOUNDATION VS. ITO(E) PAGE 3 OF 6 3. THE LD. SR. DR, ON THE OTHER HAND, DREW SPECIFIC ATTENTION OF THE BENCH TO THE FACTS AS SET OUT IN THE ASSESSMENT ORDER. EM PHASIS WAS LAID ON THE FACT THAT THE FUNDS HAVE BEEN TRANSFERRED BY M/S. COMPAS SION INTERNATIONAL HAVING ITS OFFICE AT COLORADO SPRINGS, COLORADO-USA WHERE SPECIFIC PURPOSES WERE SPECIFIED AND MANDATES WERE CLEAR. 3.1 REFERRING TO PARA 4.2 OF THE ASSESSMENT ORDE R, IT WAS FURTHER SUBMITTED THAT IT HAS BEEN NOTICED THAT THE UNDERSTANDING WHI LE GRANTING FUNDS WERE THAT COMPASSION INTERNATIONAL IS A CHRISTIAN ORGANIZATI ON THAT EXISTS AS AN ADVOCATE FOR CHILDREN TO RELEASE FROM THEIR SPIRITUAL, ECONO MIC, SOCIAL AND PHYSICAL POVERTY AND ENABLE THEM TO BECOME RESPONSIBLE AND FULFILLED CHR ISTIAN ADULTS . THE GOVERNING BODY OF COMPASSION INTERNATIONAL IS N AMED AS MINISTRY AND HAS BROUGHT OUT A BLUE PRINT FOR THE CHILD SPONSORSHIP ACROSS THE GLOBE. ( EMPHASIS SUPPLIED) 3.2 REFERRING TO PARA 4.3, EMPHASIS WAS FURT HER LAID BY HIM ON THE FACT THAT AS PER THE MUTUAL COMMITMENT TO OUTCOMES TO MUTUAL SUPPORT AGREEMENT , ENTERED INTO BY THE ASSESSEE WITH THEM THE ASSESS EE WAS TO BRING A CHILD, SPONSOR AND CHURCH PARTNERS WERE MANDATORILY REQUIRED TO ACHIEVE THE MUTUALLY AGREED UPON GOALS WHICH HAD BEEN REFERRED TO IN PARA 4.4 BY THE AO. THE SAME READS AS UNDER: 4.4 FURTHER, IN THE AGREEMENT IS SPECIFICALLY MENTIONED THAT - PURPOSE OF THIS AGREEMENT WAS TO FOSTER A CLOSE WORKING RELATIONSHI P BETWEEN CARUNA BAL VIKAS AND ASHA DEEP FOUNDATION SUCH THAT OUR COOPERATION EFFORTS AND MINISTERS TO NEEDY CHILDREN AND THEIR FAMILIES MAY BE CARRIED OU T WITH MAXIMUM EFFECTIVENESS AND UNDERSTANDING. BECAUSE OF THE COMMON BELIEF THA T GOD HAS CALLED THE CHRUCH TO MINISTER TO THE NEEDS OF POOR CHILDREN AN D THEIR FAMILIES, ITA NO.3349/DEL/2 019 ASHA DEEP FOUNDATION VS. ITO(E) PAGE 4 OF 6 CARUNA BAL VIKAS AND ASHA DEEP FOUNDATION AGREE TO USE OUR JOINT FINANCIAL AND OTHER RESOURCES IN THE CHRUCHES PROJE CTS WITH THE AIM OF GIVING THE CHILDREN INVOLVED, THE OPPORTUNITY TO BE COME SPIRITUALLY MATURE AND FINANCIALLY INDEPENDENT ADULTS, USING ME THODS AGREED UPON BY BOTH THE PARTIES. ON PERUSAL OF THE DETAILS SUBM ITTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT IS ALSO WORTHY TO MEN TION HERE THAT ASSESSEE HAS INCURRED RS. 1,89,611/- ON SPIRITUAL E VENTS INCLUDING THE QUIZ AND, DRAWING COMPETITION ON BIBLE AND TO PROVIDER GIFTS ON CHRISMAS. THIS ALSO REITERATES THAT THE ASSESSEE WAS INVOLVED IN RELIGI OUS ACTIVITIES FOR A PARTICULAR RELIGION DURING THE YEAR UNDER CONSIDERATION. 3.3 IN THE SAID BACK GROUND IT WAS HIS SUBMISSIO N THAT THE FINDING OF FACT BY CIT(A) MAY BE UPHELD AS CLEARLY RELIGIOUS PROMOTION HAS BEEN DONE EXCLUSIVELY. 4. THE LD. AR RELYING ON HIS SUBMISSIONS SUBMITTED THAT HUMANITARIAN EFFORTS HAVE BEEN DONE THE MATTER MAY BE REMANDED B ACK FOR PROPER CONSIDERATION IN THE LIGHT OF THE DECISION OF THE A PEX COURT IN THE CASE OF CIT VS DAWOOD BOHARA JAMAAT (2014) 364 ITR 31 (S.C.) . 5. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. ON A CONSIDERATION THEREOF I AM OF THE VIEW THAT THE FINDING ARRIVED AT CANNOT BE UPHELD. THE REASON FOR COMING TO THE SAI D CONCLUSION IS BASED ON THE FACT THAT THE LD. CIT(A) HAS APPROACHED THE ENT IRE ISSUE IN A MANNER WHICH CANNOT BE GIVEN JUDICIAL RECOGNITION. A PERUSAL OF PARA 4.1. SHOWS THAT THE LD. CIT(A) REQUIRED THE ASSESSEE TO PROVE THE NEGATIVE. THE SPECIFIC OBSERVATION MENTIONED IN THE ORDER OF THE LD. COMMISSIONER WAS ; THE APPELLANT HAS ON THE OTHER HAND BROUGHT NOTHING ON RECORD TO SHOW THAT THE FUND RECEIVED FROM CARUNA BAL VIKAS WAS NO T SPENT FOR RELIGIOUS PURPOSES . (EMPHASIS SUPPLIED) ITA NO.3349/DEL/2 019 ASHA DEEP FOUNDATION VS. ITO(E) PAGE 5 OF 6 5.1 SUCH A RATIONALE FOR CONFIRMING THE ORDER CANNO T BE UPHELD. IT GOES WITHOUT SAYING THAT NO EVIDENCE CAN BE PLACED ON RE CORD BY A PARTY TO PROVE THE NEGATIVE. THE ISSUE IS WELL SETTLED. TO PROVE THE NEGATIVE IS AGAINST THE BASIC RULES OF EVIDENCE AS IT IS IMPOSSIBLE TO PERFOM. A PARTY CANNOT BE COMPELLED AND HELD ACCOUNTABLE FOR NOT PERFORMING THE IMPOSSI BLE; SOMETHING WHICH WAS IMPOSSIBLE TO DO SO. NEGATIVE CAN BE PROVED BY A P ARTY ONLY BY A DENIAL OR AT BEST A DENIAL ON AN AFFIDAVIT. THE ONUS CAST UPON A PARTY TO PROVE THE NEGATIVE FLOUTS COMMON SENSE LET ALLOW THE RULES OF EVIDENCE AND COMMON LAW . THE IMPUGNED ORDER, ACCORDINGLY, IS SET ASIDE B ACK TO THE FILE OF CIT(A) WITH THE DIRECTIONS TO ADDRESS THE FACTS AND EVIDEN CE AND PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IN ITS OWN INTERESTS IS D IRECTED TO ENSURE FULL AND PROPER PARTICIPATION BEFORE THE APPELLATE AUTHORITY AND PLACE ON RECORD WHATEVER EVIDENCES THERE ARE IN SUPPORT OF THE ACTI VITIES ETC. CARRIED OUT. SAID ORDER WAS PRONOUNCED AT THE TIME OF VIRTUAL HEARING ITSELF IN THE PRESENCE OF THE PARTIES WEBEX. 6. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 09 TH SEPTEMBER, 2021. SD/- (DIVA SINGH) JUDICIAL MEMBER ITA NO.3349/DEL/2 019 ASHA DEEP FOUNDATION VS. ITO(E) PAGE 6 OF 6 PK/PS/POONAM(CHD) KAVITA ARORA, SPS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI