ITO, New Delhi V. Digamber Jain Mandir, New Delhi

ITA 3539/DEL/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2384 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-12-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 12-08-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Charitable institution; Additional evidence
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B : NEW DELHI BEFORE SHRI I.P.BANSAL, JM AND SHRI R.C.SHARMA, AM ITA NO.3539/DEL/2009 ASSESSMENT YEAR : 2005-06 INCOME TAX OFFICER, WARD-34(2), NEW DELHI. VS. DIGAMBER JAIN MANDIR, GALI NO.10, BALBIR NAGAR EXTN., SHAHDARA, DELHI. PAN NO.AAGPJ3919D. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANISH JAIN, DR. RESPONDENT BY : NONE. ORDER PER R.C.SHARMA, AM : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 29.5.2009 FOR THE AY 2005-06, IN THE MATTER OF ORDE R PASSED U/S 144 OF THE IT ACT. 2. THE REVENUE IS AGGRIEVED FOR DELETION OF ADDITIO N OF RS.18,45,000/- MADE BY THE AO ON ACCOUNT OF UNDISCLOSED INCOME U/S 68 O F THE IT ACT. 3. NOBODY APPEARED ON BEHALF OF THE ASSESSEE INSPIT E OF GIVING THE OPPORTUNITY, THE BENCH THEREFORE DECIDED TO DISPOSE OF THE APPEAL AFTER HEARING THE LEARNED DR AND CONSIDERING THE MATERIAL PLACED ON R ECORD. 4. FROM THE RECORD, WE FOUND THAT THE AO IN HIS ORD ER U/S 144 STATED THAT ON THE BASIS OF INDIVIDUAL TRANSACTION STATEMENT RECEI VED IN THIS CASE REGARDING BANK DEPOSIT OF RS.18,45,000/-, THE ASSESSEE WAS ASKED T O FILE THE DETAILS AND ALSO RETURN OF INCOME. THE AO STATED THAT NEITHER ANY RETURN O F INCOME WAS FILED NOR ANYBODY APPEARED ON BEHALF OF THE ASSESSEE ASKING FOR ADJOU RNMENT. SUBSEQUENTLY, VIDE LETTER DATED 29.10.2007, THE ASSESSEE WAS AGAIN ASK ED TO APPEAR ON 13.11.2007, HOWEVER THERE WAS NO REPLY FROM THE SIDE OF THE ASS ESSEE. BY STATING THAT IT WAS A ITA-3539/D/2009 2 TIME BARRING CASE, HAVING NO ALTERNATIVE BUT TO COM PLETE THE SAME ON THE BASIS OF INFORMATION AVAILABLE ON RECORD, THE AO PASSED EX-P ARTE ORDER U/S 144 AND ADDED RS.18,45,000/- IN THE INCOME OF THE ASSESSEE. BEFO RE THE CIT(A), IT WAS SUBMITTED THAT ASSESSEE IS A CHARITABLE INSTITUTION BEING A J AIN MANDIR, WAS IN RECEIPT OF DONATION WHICH IS NOT LIABLE TO TAX. BY THE IMPUGN ED ORDER, CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING OBSERVATION:- 7.2 IT HAS BEEN SUBMITTED THAT DURING THE YEAR UND ER CONSIDERATION, THE MANDIR HAS RECEIVED CHARITY/DONA TIONS UNDER VARIOUS HEADS OF DONATION (I.E., DONATION ATHITHI B HAWAN, RATH YATRA, AUSHDHAYALA GULLAK (SAFE) ETC.). COPIES OF THE CHA RITY/DONATION RECEIPTS UNDER VARIOUS HEADS HAVE BEEN FURNISHED IN SUPPORT WHICH HAVE BEEN PLACED ON RECORD. IT HAS BEEN SUBMITTED THAT WHATEVER CHARITY/DONATIONS WERE RECEIVED DURING THE YEAR, HA VE BEEN FULLY UTILIZED FOR THE WELFARE/CONSTRUCTION/RENOVATION/MA INTENANCE OF THE JAIN MANDIR. A RECEIPT AND PAYMENT ACCOUNT HAS BEE N PREPARED TO INCORPORATE THE DONATIONS RECEIVED AND EXPENDITURE INCURRED DURING THE YEAR UNDER CONSIDERATION. A COPY OF THE SAME H AS BEEN FURNISHED IN SUPPORT WHICH HAS BEEN PLACED ON RECORD. 7.3 IT HAS BEEN SUBMITTED THAT DURING THE YEAR UNDE R CONSIDERATION, THE MANDIR COMMITTEE HAS PURCHASED A N OLD BUILDING FOR CONSTRUCTION OF ATHITHI BHAWAN (GUEST HOUSE) FO R RS.3,00,000/- AND SPENT RS.7,26,000/- FOR THE CONSTRUCTION AND RE NOVATION OF THE SAID BUILDING. A COPY OF THE PURCHASE DEED OF THE SAID PROPERTY HAS BEEN FURNISHED IN SUPPORT WHICH HAS BEEN PLACED ON RECORD. DURING THE YEAR, THE MANDIR COMMITTEE HAS ALSO SOLD A SMAL L ATHITHI (GUEST) ROOM FOR RS.1,00,000/-. THE SAID AMOUNT OF RS.1,00 ,000/- HAS ALSO BEEN UTILIZED FOR THE PURCHASE AND CONSTRUCTION OF THE NEW BUILDING. A COPY OF THE SALE DEED OF THE SAID GUEST ROOM SOLD HAS ALSO BEEN FURNISHED IN SUPPORT WHICH HAS BEEN PLACED ON RECOR D. 7.4 IT HAS BEEN SUBMITTED THAT THE JAIN MANDIR IS M AINTAINING A BANK ACCOUNT NO.14723 WITH THE VIJAYA BANK, LONI RO AD BRANCH. THE BANK STATEMENT FOR THE YEAR UNDER CONSIDERATION ALONG WITH NARRATIONS OF THE ENTRIES MADE THEREIN HAS BEEN FUR NISHED IN SUPPORT WHICH HAS BEEN PLACED ON RECORD. 7.5 IN VIEW OF THE ABOVE DISCUSSION, IT IS HEREBY H ELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN ASSESSING TH E INCOME AT RS.18,45,000/- IN THE HANDS OF THE APPELLANT ON THE BASIS OF THE ITA-3539/D/2009 3 INDIVIDUAL TRANSACTION STATEMENT AS ABOVE. THE ADD ITION OF RS.18,45,000/- MADE ON THIS COUNT IS, ACCORDINGLY, HEREBY DELETED. 5. AGGRIEVED BY THE ABOVE ORDER OF CIT(A), REVENUE IS IN APPEAL BEFORE US AND THE MAIN CONTENTION OF THE LEARNED DR WAS THAT CIT(A) HAS ACCEPTED ADDITIONAL EVIDENCE DURING THE COURSE OF APPELLATE PROCEEDINGS WITHOUT PROVIDING AN OPPORTUNITY TO THE AO WHICH IS IN VIOLATION OF R ULE 46A(3) OF THE IT RULES, 1962. 6. THE CONTENTION OF LEARNED DR HAS BEEN CONSIDERED AND THE ORDERS OF THE AUTHORITIES BELOW HAVE ALSO BEEN PERUSED. WE FOUND THAT BEFORE THE AO, NOBODY APPEARED INSPITE OF GIVING THE OPPORTUNITY, THEREFO RE AO PASSED EX-PARTE ORDER U/S 144. BEFORE THE CIT(A), THE ASSESSEE HAS PLACED AL L DOCUMENTS AS MENTIONED IN PARA 7.2 OF HIS APPELLATE ORDER, BY CONSIDERING ALL THOSE DOCUMENTS, THE CIT(A) HAS DELETED THE ADDITION. NEITHER ANY COMMENTS OF THE AO WERE CALLED FOR NOR ANY OPPORTUNITY WAS GIVEN TO THE AO BY CALLING A REMAND REPORT, WHICH IS IN CONTRAVENTION OF RULE 46A(3) OF THE IT RULES. AFTE R VERIFYING THE RECEIPT AND PAYMENT ACCOUNT FILED BEFORE THE CIT(A) WHEREIN DON ATION INCOME WAS SHOWN AS A RECEIPT AND EXPENDITURE INCURRED WAS MENTIONED, T HE CIT(A) HAS DELETED THE ADDITION. IN THE INTEREST OF JUSTICE AND FAIRPLAY, WE RESTORE THIS MATTER BACK TO THE FILE OF THE AO FOR DECIDING THE SAME AFRESH AND THE ASSESSEE IS DIRECTED TO PLACE ALL THE DOCUMENTS PLACED BEFORE THE CIT(A), BEFORE THE AO FOR DECIDING THE MATTER AFRESH. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 23 RD DECEMBER, 2009. SD/- SD/- (I.P.BANSAL) (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23.12.2009. VK. ITA-3539/D/2009 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR