ITO (E), Delhi V. M/s. Jeewan Charitable Society, Delhi

ITA 3695/DEL/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1266 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 12-11-2009
• Assessment Year: 2002-2003
• Appeal Filed On: 16-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURABHI VERMA GARG
• Keywords: Accommodation entries
• Section: 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `D : NEW DELHI) BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.3695/DEL./2008 (ASSESSMENT YEAR : 2002-03) ITO(E), TRUST WARD IV, VS. M/S JEEVAN CHARITABLE SOCIETY, NEW DELHI. CD-158, PITAMPURA. DELHI-110088 (PAN/GIR NO.AAATJ2631G) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJESH JAIN, CA REVENUE BY : MS. SURABHI VERMA GARG, SR.DR ORDER PER A. K. GARODIA: AM THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE O RDER OF CIT(A)-XXI, NEW DELHI DATED 15.09.2008 FOR ASSESSMENT YEAR 2002-03. THE ONLY GROUNDS RAISED BY THE ASSESSEE READS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES O THE CAS E, THE LD.COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN DELETING THEN ADD ITION OF RS.24,72,000/- MADE U/S 68 AND COMMISSION CHARGED AMOUNTING 68 TO RTS.1,23,600/- REPRESENTING ACCOMMODATION ENTRIES AND COMMISSION, RESPECTIVELY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES O THE CASE , THE LD.COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN ALLOWING THE BENE FITS OF SECTION 11 AND 12 OF THE I.T.ACT WHEN THERE WAS SUFFICIENT EVIDENCE I N SUPPORT OF ACCOMMODATION ENTRIES WHICH LED TO ADDITION OF RS.2 5,95,600/-. 2. BRIEF FACTS ARE THAT IN THE PRESENT YEAR, THE AS SESSEE HAS RECEIVED DONATIONS FROM VARIOUS PERSONS OF RS.24.72 LAKH. THE ASSESSEE HAS FURNISHED A LIST OF DONORS ALONG WITH DETAILS OF CHEQUE NO. ETC. AND THEIR PAN. THE ASSE SSING OFFICER ASKED THE ASSESSEE TO PRODUCE THESE DONORS, BUT THE ASSESSEE COULD NOT PR ODUCE THE DONORS BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER MADE ADDITION U/S 68 OF THE ENTIRE AMOUNT OF DONATION SAID TO BE RECEIVED BY THE ASSESSEE. THE ASSESSING OFFI CER FURTHER MADE ADDITION OF RS.1,23,600/- BEING 5% OF THIS AMOUNT OF RS.24.72 L AKH ON THE BASIS THAT THE ASSESSEE I.T.A. NO.3695/DEL./2008 (A.Y. : 2002-03) 2 MUST HAVE PAID COMMISSION FOR OBTAINING THESE AMOUN TS. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE COMMISSIONER OF INCOME-TAX (APPEALS), WHO HAS DELETED THIS ENTIRE ADDITION BY HOLDING THAT SINCE THE ASSESSEE HAS PROVED THAT THE DONATIONS RECEIVED HAS BEEN UTILIZED FOR THE OBJECT OF THE SOCIETY, THE ASSESSEE IS ELIGIBLE FOR THE BENEFITS OF SECTIONS 11 & 12 OF THE ACT AND HENCE, THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT JUSTIFIED. NOW THE REVENU E IS IN APPEAL BEFORE US. LD.DR OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS THE LD.AR OF THE ASSESSEE SUPPORTED THE ORDER OF THE CIT(A). 3. IT IS ALSO SUBMITTED THAT SIMILAR ADDITION WAS M ADE BY THE ASSESSING OFFICER IN THE CASE OF THE ASSESSEE ITSELF FOR ASSESSMENT YEAR 200 5-06 AND IN THAT YEAR, THE TRIBUNAL HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE BY FOL LOWING THE JUDGMENT OF THE HONBLE DELHI HIGH COURT, RENDERED IN THE CASE OF DIT VS. K ESHAV SOCIAL CHARITABLE FOUNDATION (2005) 146 TAXMAN 569. HE SUBMITTED A COPY OF THE TRIBUNAL DECISION IN I.T.A. NO.87/DEL./2009 DATED 24.8.2009. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BE LOW. WE FIND THAT IN ASSESSMENT YEAR 2005-06 ALSO, IT WAS THE ALLEGATION OF THE DEPARTME NT THAT THE ASSESSEE HAS RECEIVED ACCOMMODATION ENTRIES OF RS.20.16 LAKH IN ITS BANK ACCOUNTS. IT THAT YEAR ALSO, THE ASSESSEE FURNISHED CONFIRMATIONS FROM THE DONORS, B UT WHEN THE ASSESSING OFFICER MADE THE ENQUIRY, IT WAS FOUND THAT THE PERSONS ON THE A DDRESSES GIVEN WERE NOT EXISTING AND HE CONCLUDED THAT THE DONATIONS RECEIVED IN THAT YEAR IS ASSESSEES OWN MONEY. IN THAT YEAR, THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS DELETE D THE ADDITION MADE BY THE ASSESSING OFFICER BY FOLLOWING THE JUDGMENT OF HON BLE DELHI HIGH COURT IN THE CASE OF KESHAV SOCIAL CHARITABLE FOUNDATION (SUPRA). IN TH AT YEAR ALSO, REVENUE WAS IN APPEAL BEFORE THE TRIBUNAL AND TH TRIBUNAL HAS CONFIRMED T HE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) IN THAT YEAR BY MAKING THE FOL LOWING OBSERVATIONS IN PARA.6 WHICH IS REPRODUCED BLOW: BEFORE US, LD.DR FOR THE REVENUE EXCEPT PLACING RE LIANCE ON THE REASONING GIVEN IN THE ORDER OF ASSESSING OFFICER WAS NOT ABLE TO C ONTROVERT THE FACTUAL OBSERVATIONS MADE IN THE ORDER OF C NOR WAS ABLE TO CITE ANY CASE LAW IN WHICH A VIEW CONTRARY TO THE VIEW TAKEN BY THE HONBLE DELH I HIGH COURT IN THE CASE OF KESHAV SOCIAL & CHARITABLE FOUNDATION (SUPRA) HAS B EEN TAKEN. WE FURTHER FIND I.T.A. NO.3695/DEL./2008 (A.Y. : 2002-03) 3 THAT THOUGH IN ITS GROUND OF APPEAL, THE REVENUE HA S MENTIONED THAT AGAINST THIS DECISION (SUPRA) OF HONBLE DELHI HIGH COURT, RELIE D UPON BY THE LD.CIT(A), THE REVENUE HAS FILED SLP WHICH IS PENDING ADJUDICATION BEFORE THE APEX COURT. HOWEVER, IN OUR OPINION, THE MERE FILING OF SLP BY THE REVENUE AGAINST EH DECISION OF HONBLE JURISDICTIONAL HIGH COURT OF DE LHI, WOULD HAVE NO IMPACT ON THE DECISION TO BE TAKEN BY THE TRIBUNAL ON THE ISS UE UNDER CONSIDERATION BEFORE US BECAUSE THE ISSUE IS DIRECTLY COVERED BY THE DECISI ON OF HONBLE JURISDICTIONAL HIGH COURT OF DELHI AND THE OPERATION OF THIS ORDER HAS NOT BEEN STAYED BY THE APEX COURT AND THE DECISION (SUPRA) IS A DECISION O F JURISDICTIONAL HIGH COURT, WHICH IS BINDING ON THE TRIBUNAL AS WELL AS THE CIT (A) WHO ARE WORKING UNDER ITS JURISDICTION. HENCE, THE LD.CIT(A) IN HIS WELL-REA SONED AND WELL-DISCUSSED ORDER BY FOLLOWING THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT HAS RIGHTLY DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST TH E REVENUE WITH WHICH WE TOO AGREE. ACCORDINGLY, THE ORDER OF THE CIT(A) IS UPH ELD AND GROUNDS OF APPEAL TAKEN BY THE REVENUE ARE REJECTED. IN THE PRESENT YEAR ALSO, IT IS NOTED BY THE COMMIS SIONER OF INCOME-TAX (APPEALS) IN PARA.5.1 OF HIS ORDER THAT THE ASSESSEE HAS APPEARE D BEFORE THE A.O. AND SUBMITTED A LIST OF DONORS ALONG WITH CONFIRMATIONS IN RESPECT OF DONAT IONS RECEIVED GIVING COMPLETE ADDRESS, PAN, WARD NO., MODE OF PAYMENT RECEIVED WI TH CHEQUE NO./DD NO., NAME AND ADDRESS OF THE BANK, DETAILS RELIEF MADE TO POOR W ITH EVIDENCE AND HAS ALSO PRODUCED BOOKS OF ACCOUNT AND VOUCHERS BEFORE THE ASSESSING OFFICER. REGARDING UTILIZATION OF THE FUNDS RECEIVED, IT HAS BEEN NOTED BY HIM IN PARA.5. 2 OF HIS ORDER THAT AS PER THE ASSESSEE, THE DONATION IS UTILIZED FOR ACQUISITION OF LAND AN D CONSTRUCTION OF SCHOOL BUILDING AND INVESTMENT OF RS.2469750/- HAS BEEN MADE ON THE CAP ITAL ACCOUNT DURING THIS YEAR. SINCE THE FACTS IN THE PRESENT YEAR ARE IDENTICAL, WE FIN D NO REASON TO TAKE A CONTRARY VIEW IN THE PRESENT YEAR AND HENCE, BY RESPECTFULLY FOLLOWING T HE PRECEDENT, IN THE PRESENT YEAR ALSO, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AND THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) IS UPHELD AND THE GROUNDS OF T HE APPEAL TAKEN BY THE REVENUE ARE REJECTED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. 6. ORDER PRONOUNCED IN OPEN COURT AT THE CONCLUSION OF THE HEARING ON 12.11.2009. SD/- SD/- (C.L. SETHI) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER I.T.A. NO.3695/DEL./2008 (A.Y. : 2002-03) 4 DATED, NOV. 12, 2009. SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-I, DEHRADUN. 5.CIT(ITAT), NEW DELHI. AR/ITAT