Appeal details
Counselvise Citation
[2010] 119 COUNSELVISE.COM (IT) 5486 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
6 month(s) 8 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
19-03-2010
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
B
Next Hearing Date
10-03-2010
Assessment Year
2002-2003
Appeal Filed On
10-09-2009
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B NEW DELHI) BEFORE G.E. VEERABHADRAPPA, HON'BLE VICE-PRESIDENT AND SHRI RAJPAL YADAV : HONBLE JUDICIAL MEMBER I.T.A. NO. 3848/DEL/2009 ASSESSMENT YEAR: 2002-03 DAYA NAND PUSHPA DEVI CHARITABLE VS. ADDITIONAL C IT, TRUST, A-36, LOHIA NAGAR, RANGE-I, GHAZIABAD. GHAZIABAD. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AKHULESH KUMAR, ADV. ASSESSEE BY: SHRI MANISH KUMAR, DR ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF THE LEARNED CIT(A) DATED 27.7.2009 PASSED FOR ASSESSMEN T YEAR 2002-03. THE GRIEVANCE OF THE ASSESSEE IS THAT LEARNED CIT(A) HA S ERRED IN CONFIRMING THE ADDITION OF RS.3,50,000. 2. THE LEARNED COUNSEL FOR THE ASSESSEE WHILE IMPUG NING THE ORDERS OF THE REVENUE AUTHORITIES BELOW CONTENDED THAT THE AS SESSEE IS A TRUST WHICH IS REGISTERED UNDER SEC. 12A OF THE INCOME-TAX ACT, 1961. IT IS RUNNING EDUCATIONAL INSTITUTION, NAMELY, HARSHAN DASS DENTA L COLLEGE AT DASANA, GHAZIABAD. ACCORDING TO THE AO, THE DEPARTMENT HAD RECEIVED INFORMATION 2 THAT ASSESSEE HAD RECEIVED ACCOMMODATION ENTRY AMOU NTING TO RS.40,05,000. THEREFORE, THE A.O. HAD ISSUED NOTICE UNDER SEC. 14 8 AND REOPENED THE ASSESSMENT. IN THE ASSESSMENT PROCEEDINGS, AO HAS C ONFRONTED THE ASSESSEE THAT IT HAD RECEIVED DONATION OF RS.95,94,500 DURIN G THE YEAR AND ASSESSEE WAS ASKED TO EXPLAIN THE DETAILS OF DONORS ALONG WI TH THEIR PANS AND THE DETAILS OF CHEQUE NUMBERS ETC. THE ASSESSEE HAD SUB MITTED THE COMPLETE DETAILS AND NOT DISPUTED BY THE A.O. EXCEPT THE DON ATION OF RS.3,50,000 ALLEGED TO HAVE BEEN RECEIVED FROM THE SURENDER PAL SINGH. IT WAS CONTENDED BY THE ASSESSEE THAT A SUM OF RS.3,50,000 WAS RECEI VED FROM SHRI SURENDER PAL SINGH VIDE CHEQUE NO.608924 DATED 16.10.2001. A PART FROM THIS, ASSESSEE WAS UNABLE TO GIVE THE OTHER DETAILS IN RE SPECT OF SURENDER PAL SINGH. HOWEVER, IT WAS CONTENDED BY THE ASSESSEE TH AT DONATION WAS RECEIVED VOLUNTARILY. IT WAS TAKEN INTO CONSIDERATI ON AS THE INCOME OF THE TRUST AND THEREAFTER IT WAS APPLIED FOR CHARITABLE PURPOSES. HENCE, NO ADDITION CAN BE MADE UNDER SEC. 68 OF THE ACT. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER POINTED OUT THAT HE RELIED UPON THE DECISIO N OF HONBLE DELHI HIGH COURT IN THE CASE OF DIT(EXEMPTION) VS. KESHAV SOCI AL & CHARITABLE FOUNDATION REPORTED IN 278 ITR 152 WHEREIN A SIMILA R ISSUE HAS COME UP BEFORE THE HONBLE HIGH COURT AND THE HONBLE HIGH COURT HAS HELD THAT NO 3 ADDITION UNDER SEC. 68 CAN BE MADE. HE FURTHER CONT ENDED THAT ONCE THE ASSESSEE HAS INCLUDED THE DONATIONS RECEIVED BY THE ASSESSEE IN ITS INCOME AND APPLIED THEM FOR CHARITABLE PURPOSES THEN SEPAR ATE ADDITION CANNOT BE MADE OTHERWISE IT WILL AMOUNT TO DOUBLE TAXATION. O N THE OTHER HAND, LEARNED DR RELIED UPON THE ORDERS OF THE REVENUE AUTHORITIE S BELOW. HE CONTENDED THAT THEE IS NO QUESTION OF DOUBLE TAXATION. THE AS SESSEE FAILED TO EXPLAIN THE SOURCE OF DONATION WHETHER IT IS VOLUNTARY OR OTHER WISE. THE BENEFIT OF SECTIONS 11 AND 12 WAS NOT GIVEN TO THE ASSESSEE ON THIS AMOUNT AND IT HAS BEEN, THEREFORE, TAXED. THE POSSIBILITY OF INTRODUC TION OF ASSESSS OWN UNEXPLAINED MONEY CANNOT BE RULED OUT. 3. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. THE ASSESSEE IS A TRUST. IT IS RE GISTERED UNDER SEC. 12A OF THE INCOME-TAX ACT, 1961 AND IT IS RUNNING ON AN EDUCAT ION INSTITUTION. THERE IS NO DISPUTE WITH REGARD TO THESE FACTS. IT HAS RECEI VED A DONATION OF RUPEES MORE THAN 95 LACS. IT HAS PRODUCED THE COMPLETE DET AILS OF THE DONORS, PAN NUMBER AND THE DATE OF DONATIONS ETC. THE A.O. HAS NOT DISPUTED WITH REGARD TO THE DETAILS SUBMITTED BY THE ASSESSEE EXCEPT IN ONE CASE I.E. DONATION RECEIVED FROM SHRI SURENDER PAL SINGH. IT IS ALSO N OT DISPUTED THAT AMOUNT OF DONATION RECEIVED FROM SHRI SURENDER PAL SINGH HAS BEEN TAKEN INTO INCOME 4 SIDE AND IT IS ALSO CONSIDERED TOWARDS APPLICATION OF MORE THAN 85% FOR EDUCATION PURPOSES. THE FACTS AS DISCUSSED ABOVE AR E IDENTICAL TO THE FACTS OF THE DECISION RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE IN THE CASE OF KESHAV SOCIAL & CHARITABLE FOUNDATION. IN THAT CASE , THE ASSESSEE WAS A CHARITABLE TRUST THAT HAD RECEIVED DONATION OF RS.1 8,24,200. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF THE DONATIONS I .E. NAMES AND ADDRESS OF THE DONORS AND THE MODE OF RECEIPT OF THE DONATIONS . THE ASSESSEE WAS UNABLE TO FURNISH THE DETAILS SATISFACTORILY. THE A .O. HAS HELD THAT ASSESSEE HAS TRIED TO INTRODUCE UNACCOUNTED MONEY INTO ITS B OOKS BY WAY OF A DONATION AND, THEREFORE, HE MADE AN ADDITION OF RS. 18,24,200 WITH THE AID OF SEC. 68 OF THE ACT. THIS ADDITION WAS DELETED BY TH E ITAT. THE ITAT WAS OF THE VIEW THAT SINCE MORE THEN 75% OF THE DONATIONS RECEIVED BY THE ASSESSEE WERE SPENT IN CHARITABLE PURPOSES, THE ADDITION WAS NOT CORRECT AT THE END OF THE A.O. HONBLE HIGH COURT WHILE DEALING WITH THE SE FACTS HAS OBSERVED IN PARAGRAPH 10 OF THE JUDGMENT THAT TO OBTAIN THE BEN EFIT OF EXEMPTION UNDER SEC. 11 OF THE ACT, THE ASSESSEE IS REQUIRED TO SHO W THAT DONATIONS WERE VOLUNTARY. ACCORDING TO THE HONBLE HIGH COURT, THE ASSESSEE HAD NOT ONLY DISCLOSED ITS DONATION BUT HAD ALSO SUBMITTED A LIS T OF DONORS. THE FACT THAT THE COMPLETE LIST OF DONORS WAS NOT FILED OR, THAT THE DONORS WERE NOT 5 PRODUCED DOES NOT NECESSARILY LEAD TO THE INFERENCE THAT THE ASSESSEE WAS TRYING TO INTRODUCE UNACCOUNTED MONEY BY WAY OF DON ATION RECEIPTS. THIS IS MORE PARTICULARLY SO IN THE FACTS OF THE CASE WHERE ADMITTEDLY MORE THAN 75% OF DONATIONS WERE APPLIED FOR CHARITABLE PURPOSES. ON DUE CONSIDERATION THE JUDGMENT OF HONBLE HIGH COURT AND THE FACTS OF THE PRESENT CASE, WE ARE OF THE VIEW THAT IT IS SQUARELY APPLICABLE ON THE FACT S OF THE PRESENT CASE. THEREFORE, WE ALLOW THE APPEAL OF ASSESSEE AND DELE TE THE ADDITION OF RS.3,50,000. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. DECISION PRONOUNCED IN THE OPEN COURT ON 19.03.2010 ( G.E. VEERABHADRAPPA ) ( RAJPAL Y ADAV ) VICE-PRESIDENT JUDICIAL MEMBER DATED: 19/03/2010 MOHAN LAL COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR:ITAT ASSISTANT REGISTRAR
