DCIT (Exemptions), Bhubaneswar V. M/s. S.M.Charitable Educational Trust, Bhubaneswar

ITA 432/CTK/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2873 (ITAT-CUTTACK)
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-08-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 03-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MOHAPATRA
• Keywords: Capital asset; Depreciation; Charitable institution; Corroborative evidences; Cancellation of registration
• Section: 153A; 260A; 12AA; 10; 11

Judgement Text

P A G E 1 | 16 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 430, 431 & 432 /CTK/2017 ASSESSMENT YEAR S : 2009 - 10 & 201 1 - 2012 DCIT (EXEMPTION), BHUBANESWAR. VS. S.M.CHARITABLE EDUCATIONAL TRUST, PLOT NO.122, NEAR HOTEL MEGHDOOT, SAHID NAGAR, BHUBANESWAR. PAN/GIR NO. AADTS 7896 R (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SRI BIBEKANANDA MOHANTY, AR REVENUE BY : SHRI A.K.MOHAPATRA, CIT DR DATE OF HEARING : 2 8 /0 8 / 2018 DATE OF PRONOUNCEMENT : 29 /0 8 / 2018 O R D E R PER N.S.SAINI, AM TH ESE ARE APPEALS FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDER S OF THE CIT(A) - 3, BHUBANESWAR DATED 16.6.2017 FOR THE ASSESSMENT YEAR S 2009 - 2010 & 2011 - 12. 2. ITA NO.430/CTK/2017 FOR THE ASSESSMENT YEAR 2009 - 2010 AND ITA NO.432/CTK/2017 FOR THE ASSESSMENT YEAR 2011 - 12 ARE AGAINST THE ORDER OF THE CIT(A) IN THE MATTER OF ASSE SSMENT U/S.143(3) OF THE ACT. ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 2 | 16 3. THE REVENUE HAS RAISED THE COMMON GROUNDS IN BOTH THE APPEALS AS UNDER: 1. THE CIT(A) ERRED IN LAW AND ON FACTS IN ALLOWING ASSESSEE EXEMPTION U/S.11 OF THE I.T,ACT DELETING ADDITION OF RS.1,02,260/ - FOR THE A.Y. 2009 - 201 0 IGNORING THE FACT THAT THE TRUST PROPERTY WAS USED DIRECTLY FOR THE BENEFIT OF THE PERSON REFERRED TO IN SUCH - SECTION (3) OF SECTION 13, THEREBY ATTRACTING THE PROVISIONS OF SECTION 13(1)(C) OF THE I.T.ACT. 2. THE CIT(A) - 3 ERRED IN LAW AND ON FACTS IN D ELETING THE DISALLOWANCE OF DONATION TO THE TUNE OF RS.10 LAKHS FOR THE AY 2009 - 10 AND RS.20 LAKHS IN A.Y. 2011 - 12 TO ANOTHER TRUST NAMELY SANKALP & ALLOWING DISALLOWANCE OF EXCESS PAYMENT MADE TO PERSONS REFERRED IN SECTION 11(3) OF THE ACT WITHOUT APPR ECIATING THE FACT THAT THE ASSESSEE FAILED TO ADDUCE EVIDENCE IN SUPPORT OF ITS CLAIM AND ALSO WHEN THE MATTER OF EXEMPTION U/S.11 IS UNDER SUB - JUDICE BEFORE A HIGHER COURT OF LAW. 4. THE CIT(A) HAS DISCUSSED AND DECIDED THE ISSUE IN THE ASSESSMENT YEAR 2009 - 2010 AS UNDER: 2. IN THE INSTANT CASE, THE APPELLANT IS A TRUST REGISTERED U/S.12AA OF THE I.T.ACT, 1961 RUNNING EDUCATIONAL INSTITUTION IN THE NAME & STYLE OF NATIONAL INSTITUTE OF SCIENCE & TECHNOLOGY. RETURN OF INCOME FOR A.Y. 2009 - 2010 WA S FILED IN ITR - 7 ON 29.9.2009 SHOWING TOTAL INCOME AT NIL. THE CASE WAS SELECTED FOR SCRUTINY AND THE AO COMPLETED THE ASSESSMENT AT RS.6,9622,530/ - VIDE ORDER U/S.143(3) ON 29.09.2009 SHOWING TOTAL INCOME AT 'NIL'. THE CASE WAS SELECTED FOR SCRUTINY AND THEREFORE, THE A.O. ISSUED NOTICE U / S .143(2)/142(1) OF THE ACT IN RESPONSE TO WHICH COUNSEL OF THE APPELLANT APPEARED FROM TIME TO TIME AND MADE NECESSARY COMPLIANCE. 3. THE A.O. DENIED EXEMPTION U/S. 11 FOR THE FOLLOWING REASONS AND ASSESSED THE EXCESS OF INCOME OVER THE EXPENDITURE OF RS.6,85,19, 7 27/ - BESIDES RS.11,02,600/ - AS TAXABLE INCOME ON ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 3 | 16 ACCOUNT OF SALARY PAID TO TRUSTEES AND DONATION MADE TO 'SANKALAP' BEING INADMISSIBLE EXPENDITURES . (I)A. FREE USE TO TRUST ASSETS BY TRUSTEES : - MR. SANGRAM M UDALI IS THE SECRETARY OF S.M. CHARITABLE EDUCATIONAL TRUST (SMCET) AND ALSO DIRECTOR OF NATIONAL INSTITUTE OF SCIENCE & TECHNOLOGY (NIST), AN INSTITUTION UNDER SMCET. MR. SANGRAM MUDALI AND HIS FAMILY ARE RESIDING PERMANENTLY IN THE GUEST HOUSE OF SMCET A T GOPALPUR ON SEA. HIS PARENTS, MR. SURENDRA MUDALAI AND SMT. JANAKI MUDALI ARE ALSO RESIDING IN THE SAID GUEST HOUSE. THIS GUEST HOUSE INCLUDING ALL FURNITURE BELONGS TO THE TRUST, SMCET. MR. SANGRAM MUDALI OR ANY OF HIS FAMILY MEMBERS DID NOT PAY ANY REN T TO THE TRUST FOR USE OF THIS GUEST HOUSE. MOREOVER, MRS. GEETIKA MUDALI, SPOUSE OF SANGRAM MUDALI USED TO RECEIVE HOUSE RENT ALLOWANCE FROM HER EMPLOYEE NIST/SMCET. THE TRUST ALSO PROVIDE THE SERVICES OF GARDENER, CARE TAKER, SERVANTS AND OTHER E MPLOYEES OF THE TRUST WORKING AT THE GUEST HOUSE WITHOUT ANY COST. THE TRUST DID NOT CHARGE ANY PERQUISITES ON ACCOUNT OF PROVIDING SUCH FURNISHED ACCOMMODATION TO SANGRAM MUDALI AND HIS SPOUSE. IN ACTUAL, THE GUEST HOUSE IS THE FULL TIME RESIDENCE OF SRI SANGRAM MUDALI AND HIS FAMILY MEMBERS, MR. SANGRAM MUDALI, GEETIKA MUDALI, SURENDRA MUDALI AND JANAKI MUDALI ARE ALL TRUSTEE MEMBERS OF THE TRUST, SMCET DID NOT MAINTAIN ANY REGISTER IN RESPECT OF THIS GUEST HOUSE. THEREFORE, THE TRUST PROPERTY IS USED DIRECTLY FOR THE BENEFIT OF THE PERSON REFERRED TO IN SUB - SECTION (3) OF SECTION 13. IN OTHER WORDS, UTILIZATION OF THE GUEST HOUSE BY MUDALI FAMILY CLEARLY ATTRACTS THE PROVISIONS OF SECTION 13(1)( C) OF THE I.T. ACT. B. SAIA R Y GIVEN TO TRUSTEES : - SHRI SANGRAM MUDALI AND SMT GEE TIKA M UDALI, BEING THE TRUSTEE MEMBERS RECEIVE SUBSTANTIA L SALARY FROM THE TRUST. THIS SA L ARY IS GIVEN TO THEM OUT OF RESOURCES OF THE TRUST, SMCET. AS PER CLAUSE (C) OF PARA - 6 OF TRUST DEED DATED 25.08.1995, THE TRUSTEES SHALL NOT BE ENTITLED TO ANY REMUNERATION FOR THEIR SERVICES. BUT , MR. SANGRAM MUDALI AND HIS SPOUSE ARE DRAWING SALARY FROM THE TRUST, WHICH IS CLEAR VIOLATION OF THE TRUST DEED ALSO. IN OTHER WORDS, A PART OF INCOM E FOR THE TRUST IS USED DIRECTLY FOR THE BENEFIT OF PERSONS REFERRED TO IN SUB SECTION (3) OF SECTION 13 OF THE ACT. (II) PAYMENT MADE TO THE PERSONS REFERRED IN SECTION. 13(3): - HONORARIUM HAS BEEN PAID TO MR. H.N. MUDALI TO THE TUNE OF RS.1,02,600/ - , MR. H.N.MUDALI IS A RELATIVE OF TRUSTEES OF THE TRUST. THE TRUST PAID HONORARIUM TO H.N. MUDALI WITHOUT GIVING ANY APPOINTME NT LETTER. NO RESOLUTION IN THIS EFFECT HAS BEEN PASSED ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 4 | 16 BY THE TRUST IN RESOLUTION BOOK. THE RELATIVE OF TRUSTEES COMES WITHIN THE AMBIT OF THE DEFINITION OF PERSONS AS REFERRED IN SUB - SECTION (3) OF SECTION 13. HENCE, PAYMENT OF HONORARIUM TO H.N. MU DALI ATTRACTS THE PROVISIONS OF SECTION 13( 1 )(C). THEREFORE, RS.1,02,600/ IS ADDED BACK TO TOTAL INCOME, BEING MISAPPLICATION OF THE TRUST FUND. (III) DONATION: - DURING THE YEAR UNDER CONSIDERATION THE TRUST INCURRED EXPENSE OF RS.11,20,000/ - TOWARDS DON ATION & SUBSCRIPTION. ON PERUSAL OF LEDGER COPY OF DONATION & SUBSCRIPTION, IT IS SEEN THAT AN AMOUNT OF RS. 10,00,000/ - HAS BEEN PAID TO SANKALP. THE A.R. OF THE APPELLANT STATED THAT 'SANKALP' IS A CHARITABLE ORGANIZATION AND OBJECTIVE OF THAT ORGANIZAT ION IS EDUCATION FOR ORPHANS, BUT FAILED TO FURNISH SUPPORTING EVIDENCE. IT IS APPARENT FROM THE ABOVE THAT THERE IS MISAPPROPRIATION OF FUND BY THE APPELLANT FOR NON CHARITABLE PURPOSE, VIOLATING THE SECTION 13 OF THE I.T. ACT. THEREFORE, DONATION OF RS.10,00,000/ - IS ADDED BACK TO TOTAL INCOME, BEING MISAPPLICATION OF THE TRUST FUND. FURTHER, THE AO NOTICED CERTAIN INFIRMITIES REGARDING NON CHARITABLE NATURE OF ACTIVITIES IN PARAS REPRODUCED HEREUNDER FROM THE ORDER OF A SSESSMENT. THERE ARE CERTAIN ACTIVITIES UNDERTAKEN BY UN ITS OF NIST WHICH NEITHER CAN BE CLASSIFIED AS CHARITABLE NOR CAN IT BE TERMED AS ACTIVITIES RELATED TO EDUCATION AS MENTIONED IN SECTION 2(15) OF THE I.T.ACT INDICATING PROFIT MOTIVE OF THE TRUST. ACTIVITIES OF NCE (NIST CENTRE OF EXCELLENCE) IT IS UNIT OF NIST WHICH RUNS SUMMER COURSES,' IMPARTING SOFTWARE COURSES LIKE VLSI (DIPLOMA) AND GATE COACHING CLASSES FOR ENTRANCE EXAMINATION FOR M.TECH. ADMISSION. THESE ACTIVITIES DO NOT COME UNDER THE DEFINITION OF EDUCATION AS MENTIONED IN SECTION 2(15) AND CANNOT BE CLASSIFIED AS CHARITABLE ACTIVITIES. IN THIS REGARD, T HE AO REFERRED TO DECISION OF THE HON'BLE PATNA HIGH COURT IN THE CASE OF BIHAR INSTITUTE OF MINING AND MINE SURVEYING VRS. COMMISSIONER OF IN COME TAX 208 ITR 608 WHERE IT HAS BEEN CATEGORICALLY STATED THAT COACHING IS NOT A CHARITABLE ACTIVITY AS MENTIONED BELOW. K EE P ING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE, THEREFORE, IN OUR CONSIDERED OPINION, THE RUNNING OF PRIV ATE COACHING INSTITUTE FOR THE PURPOSE OF TRAINING THE STUDENTS TO APPEAR AT SOME SPECIFIED EXAMINATIONS UPON TAKING SPECIFIED SUM ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 5 | 16 FROM THE TRAINEES WOULD NOT BRING THE PETITION WITHIN THE PROVISIONS OF SECTION 2(15) OF THE ACT.' IN APPELLANT'S CASE, NCE IS PROVIDING COACHING FACILITIES FOR ENTRANCE EXAMINATION LIKE GATE, WHICH IS AN ENTRANCE EXAM FOR TAKING ADMISSION IN M.TECH PROGRAMMES IN IIT'S . ALSO THEY ARE TAKING FEES FOR IMPARTING SUCH COACHING TO THE STUDENTS. HENCE, THE R ATIO OFF THE ABOVE MENTIONED JUDGMENT APPLIES SQUARELY TO THIS CASE. ALSO, NIST CENTRE OF EXCELLENCE DOES NOT MAINTAIN SEPARATE BOOKS OF ACCOUNT. ALL THE EXPENSES AND INCOME OF THIS UNIT ARE INCORPORATED IN THE BOOKS OF ACCOUNT OF SMCET. CONSEQUENTLY INCOM E AND EXPENDITURE ACCOUNT OF SMCET INCLUDES THE INCOME AND EXPENDITURE OF NON - CHARITABLE ACTIVITIES OF NIST CENTRE OF EXCELLENCE. FAILURE TO MAINTAIN SEPARATE BOOKS OF ACCOUNT IN RESPECT OF CHARITABLE AND NON - CHARITABLE ACTIVITIES IS YET ANOTHER PERSUASIV E REASON FOR CANCELLATION OF REGISTRATION AND DENIAL OF EXEMPTION. ACTIVITIES OF NTCS (NATIONAL TECHNOLOGY CONSULTING SERVICES, BERHAMPUR . IT IS ANOTHER UNIT OF NIST. IT DEVELOPS SOFTWARE FOR THE COLLEGE AND ALSO FOR OUTSIDE AGENCIES. THIS ACTIVITY CANNOT BE CONSIDERED AS A CHARITABLE ONE AND DOES NOT COME UNDER THE DEFINITION OF DEDUCTION AS MENTIONED IN SECTION 2(15). IT IS NOT CLEAR WHETHER THE SOFTWARE DEVELOPED WERE GIVEN TO THE AGENCIES FOR A COMMERCIAL CONSIDER ATION. THE PROVISIONS OF SECTION 11 TO 13 ARE MEANT TO EXEMPT THE INCOME OF GENUINELY CHARITABLE ORGANIZATIONS. THE PROVISIONS OF SECTION 13 BARRING EXEMPTION IN THE CASE OF CHARITABLE TRUST WHERE ANY PROPERTY OR INCOME OF THE TRUST ENURES OR IS USED O R APPLIED FOR THE BENEFIT OF TRUSTEE OR OTHER PROMOTERS OF THE TRUST HAVE BEEN I NTERPRETED STRICTLY BY COURTS. REFERENCE MAY ALSO BE HAD TO THE DECISION OF THE SUPREME COURT IN DIT VRS. DIAMOND BOURSE 259 ITR 280. IN THE CASE OF MUDALI FAMILY , MISUSE OF TRUST PROPERTIES AND MISAPPLICATION OF TRUST MONEY FOR THE PERSONAL BENEFIT IS EVERYWHERE IN EVIDENCE. THE TRUST IS CLEARLY HIT BY THE EXPRESS PROVISIONS OF SECTION 13 AND INELIGIBLE FOR EXEMPTION.' 4. BEING ARRIVED, THE APPELLANT FILED APPEAL AGAINST THE IMPUGNED ORDER OF ASSESSMENT. IN THE COURSE OF APPELLATE PROCEEDINGS, THE LD. AR PRODUCED THE WRITTEN SUBMISSION SUBSTANTIATING THE GROUNDS OF APPEAL. THE LD. AR HEAVILY RELIED ON THE ORDER OF LD.CIT(A) - 2, BHUBAN ESWAR, IN ITR NO.0160/2008 - 09 DATED 30.06.2011 FOR AY 2007 - 08 AND SUBMITTED THAT ON VERY SAME ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 6 | 16 GROUNDS ADDITIONS MADE IN THE EARLIER YEARS HAVE BEEN REJECTED AND THE APPEALS OF THE APPELLANT WERE ALLOWED AND THEREFORE, SINCE THE GROUNDS OF THE AD DITIONS EFFECTED IN THE YEAR UNDER CONSIDERATION AND ADDITIONS OF EARLIER ASSESSMENT YEARS (AY 2001 - 02 TO AY/; 2007 - 08) ARE SIMILAR, IT IS REQUESTED TO DELETE THE ADDITIONS ON THE BASIS OF THE APPELLATE ORDERS OF THE EARLIER YEARS . IN SUBSEQUENT SUB MISSION, THE LD. A.R FILED COPY OF THE ORDER OF THE HON'BLE TRIBUNAL, CUTTACK BENCH, CUTTACK IN ITA NO. IT(SS )A NO. 66,67,68,69,70,71 & ITA N26/WK/2011 DATED 22.03.201 WHEREIN THE HON'BLE TRIBUNAL CONFIRMED THE ORDERS OF LD CIT(A)2, BHUBANESWAR FOR AY 2001 - 02 TO AY 2007 - 08 ALLOWING APPEALS OF THE APPELLANT. THEREAFTER, THE PREDECESSOR - IN - OFFICE WROTE A LETTER TO THE AO ON 20.05.2013 TO VERIFY ANY COMPONENT OF CAPITATION FEES AS PER SECTION 2(3) OF THE IT ACT COLLECTED BY THE APPELLANT IN THE YEAR UN DER CONSIDERATION AND ALSO TO INFORM AS TO WHETHER RETURNS FILED FOR THE AY 2008 - 09, AY 2010 - 11 & AY 2011 - 12 HAVE BEEN SCRUTINIZED IN THE LIGHT OF EXTRA FEES COLLECTED SO THAT THE INFORMATION WOULD FACILITATE THE DISPOSAL OF THE APPEAL FOR A.Y. 2009 - 10. TH E AO SUBMITTED THE REPORT ONLY ON 25.04.2016, THAT'S TOO, IN RESPONSE TO ONE OF THE REMINDERS ISSUED ON 10,08.2015. THE RELEVANT PORTION OF THE REPORT IS REPRODUCED HEREUNDER: ''FROM THE SUBMISSIONS, IT IS FOUND THAT THE ASSESSEE HAS RECEIVED RS 28 ,1 9,240/ - DURING THE IMPUGNED YEAR TOWARDS PROVIDING SUMMER COURSE TO THE INTEREST STUDENTS . FOR THE SAME, THE A/R OF THE ASSESSEE STATES THAT 'SUCH FEES ARE DETERMINED ON THE BASIS OF EXPENSES MADE TOWARDS SALARY TO PROFESSOR, ASSISTANT PROFESSOR , FACULTY, SUPPORTING STAFF AND EXPENSES TOWARDS INFRASTRUCTURE FACILITIES LIKE ELECTRICITY , WATER CHARGES ETC'. FURTHER, THE A/R ALSO STATES THAT THE FEE STRUCTURE COMM ITTEE HAS FIXED THE STIPULATED FEE FOR RESPECTIVE COLLEGES FOR PROVIDING EDUCATION AS P ER SYLLABUS COURSE OF EACH CLASS. HERE, THE INSTITUTION PROVIDES SUMMER COURSE TO THE INTERESTED STUDENTS WHICH IS HIGHER EDUCATION THAN THE SYLL ABUS COURSE OF ACTIVE CLASSES FOR WHICH ADDITIONAL CHARGES ARE COLLECTED AND THE SAME AMOUNT ALSO EXPENDED TOWARDS THE SERVICE PROVIDER IN SHAPE OF EXTRA SALARIES AND OTHER RELATED EXPENSES . THE PAYMENT OF THESE SALARIES TO THE EMPLOYEES IN SHA PE OF ADDITIONAL REMUNERATION WAS FOR RENDERING EXTRA SERVICE AT THE LEISURE TIME TO THE INTEREST STUDENTS FOR THEIR CARRIER MAKING. FROM THE ABOVE FINDINGS, IT APPEARS THAT THE ASSESSEE HAS CHARGED EXTRA CHARGE TO INTERESTED STUDENTS FOR PROVIDING HIGHER EDUCATION WHICH IS NOT AS PER THE SYLLABUS COURSE FOR THEIR CLASSES FOR WHICH NORMAL FEE WAS COLLECTED AS PER NOTIFICATION MADE BY ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 7 | 16 GO VT, OF ODISHA AND ALSO THESE HIGHER EDUCATION WILL BE ENABLE FOR THE CARRIER MAKING OF THE STUDENT. THE ASSESSEE ALSO INCURRED EXPENSES TO THAT EXTENT IN SHAPE OF EXTRA REMUNERATION TO THE EMPLOYEES WHO PROVIDE EXTRA SERVICES AT THEIR LEISURE PERIO D AND ALSO RELATED EXPENSES. THE DETAILS IN THIS REGARDS PRODUCED IN SUPPORT OF ITS EXPLANATION WERE VERIFIED. ONE COPY OF THE REMAND REPORT WAS MADE AVAILABLE TO THE LD. A.R FOR COMMENTS. THE RELEVANT PORTIONS OF THE REJOINDER FILED BY THE LD. A.R ARE REPRODUCED HEREUNDER; SIR, DURING REMAND PROCEEDINGS, THE APPELLANT WAS ASKED TO PRODUCE THE DETAILS OF STUDENTS, QUANTUM OF FEES COLLECTED, FEES AS PER FEE STRUCTURE COMMITTEE, CASH BOOK / LEDGER / BANK STATEMENT AND ALSO TO PRODUCE THE DETAILS REGARDI NG EXTRA FEE (EXCLUDING THE NORMAL FEE) COLLECTED FROM THE STUDENTS FOR PROVIDING EXTRA CLASSES, IF ANY AND THE BASIS OF DETERRING THE QUANTUM OF FEES COLLECTED FOR EXTRA CLASSES. IN RESPONSE TO THE SAME, IT WAS SUBMITTED THAT SUCH FEES ARE DETERMINED ON THE BASIS OF EXPENSE MADE TOWARDS SALARY TO PROFESSOR, ASSISTANT PROFESSOR, FACULTY, SUPPORTING STAFF AND EXPENSES TOWARDS INFRASTRUCTURE FACILITIES LIKE ELECTRICITY, WATER CHARGES ETC. THE FEE STRUCTURE COMMITTEE HAS FIXED THE STIPULATED FEE FOR RESPECTIVE COLLEGES FOR PROVIDING EDUCATION AS PER SYLLABUS COURSE OF EACH CLASS. HERE, THE INSTITUTION PROVIDES SUMMER COURSE TO THE INTERESTED STUDENTS WHICH IS HIGHER EDUCATION THAN THE S YLLABUS COURSE OF RESPECTIVE CLASSES FOR WHICH ADDITIONAL CHARGES ARE COLLECTED AND THE SAME AMOUNT ALSO EXPENDED TOWARDS THE SERVICE PROVIDER IN SHAPE OF EXTRA SALARIES AND OTHER RELATED EXPENSES THE P AYMENT OF THESE SALARIES TO THE EMPLOYEES IN SHAPE OF ADDITIONAL REMUNERATION WAS FOR RENDERING EXTRA SERVICE AT THE LEISURE TIME TO THE INTERESTED STUDENTS FOR THEIR CARRIER MAKING.' ON THESE SUBMISSIONS, THE L EARNED A.O VERIFIED THE DETAILS PRODUCED ALONG WITH THE SUBMISSIONS AND OPINED AS FOLLOWS ........ HAVING VERIFIED ALL THE SUBMISSIONS, IT IS QUITE CLEAR THAT, THERE IS NO IOTA OF DOUBT IN THE MIND OF THE LEARNED ASSESSING OFFICER TO FURTHER SAY THAT, THE APPELLANT HAS CARRIED OUT ANY ACTIVITY WHICH IS DENIED OR WHICH WI LL DISENTITLE IT FROM AVAILING THE EXEMPTIONS. THE FEE COLLECTED FOR EXTRA COURSES WERE OF VOLUNTARY IN NATURE AND NO* STUDENT WAS COMPELLED TO JOI N IT. IT IS DONE SOLELY FOR THE BENEFIT OF STUDENTS AT LARGE AND THE EXTRA AMOUNT INCURRED TO PROVIDE THE FAC ILITIES ARE ONLY REIMBURSED / RECOVERED FROM THE STUDENTS. ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 8 | 16 DECISION: - SUBMISSION OF THE LD. A.R, ORDER OF HON'BLE ITAT, CUTTACK BENCH, CUTTACK IN IT(SS)A NO.79,80,81,82 AND 83/CTK/2011 DATED 22ND MARCH,2012. REMAND REPORT OF THE A.O, REJOINDER TO REMAND REPORT AND MATERIALS AVAILABLE ON RECORD WERE PERUSED CAREFULLY. A SEA RCH & SEIZURE OPERATION WAS CONDUCTED IN THE MUDALI GROUP OF CASES ON 23.08.2006. FIXED DEPOSITS, DOCUMENTS AND CASH BELONGING TO THE APPELLANT TRUST WERE SEIZED AND ACCORDINGLY, THE A.O. ISSUED NOTICE U/S.L53C R.W.S. 153A DT.01.04.2008. IN RESPONSE, THE T RUST FILED RETURN OF INCOME FOR A.Y.2001 - 02 TO A.Y.2007 - 08 SHOWING INCOME AT 'NIL' BY CLAIMING EXEMPTION U/S. 11 IN ALL THE ASSESSMENT YEARS. THE A.O. DISALLOWED THE EXEMPTION CLAIMED U/S. 11 FOR ALL THE ASSESSMENT YEARS ON THE FINDING THAT THE TRUST VIOLATE D PROVISIONS OF SEC. 11 AS WELL AS SECTION 13 OF THE ACT ON THE GROUND OF FREE USE OF TRUST ASSETS BY THE TRUSTEES, SALARIES GIVEN TO THE TRUSTEES, LOANS GIVEN TO THE PERSONS REFERRED TO IN CLAUSE (3) OF SECTION 13(3), UTILIZATION OF TRUST FUND BY TRUSTEES , PAYMENTS MADE TO PERSONS REFERRED IN SECTION IN 13(3), INVESTMENT OF TRUST FUND IN ANOTHER TRUST, NON - CHARITABLE ACTIVITIES OF THE TRUST AND BROUGHT TO TAX THE EXCESS OF INCOME OVER EXPENDITURE AS RETURNED BY THE APPELLANT TRUST. HE ALSO MADE SEPARATE PO RTION OF DEVELOPMENT FEES AND UNACCOUNTED ACADEMIC FEES AS PER THE SEARCH MATERIALS. THE CIT(APPEALS), BHUBANESWAR ALLOWED THE APPEAL OF THE APPELLANT TRUST BY HOLDING THAT SECTION 11,12 & 13 OF THE ACT ARE SELF - CONTAINED SECTIONS AND ONCE REGISTRATION I S GRANTED U/S.L2AA OF THE ACT, THE EXEMPTION U/S. 11 CAN BE DENIED FOR PROVEN VIOLATION OF SECTIONS 11, 12 AND 13 OF THE ACT. ON FINDING THAT NO SUCH VIOLATION HAS BEEN MADE OUT BY THE A.O., THE LD. CIT(APPEALS) DIRECTED HIM TO ALLOW EXEMPTION U/S. 11 OF THE A CT. THE HON'BLE ITAT, CUTTACK BENCH, CUTTACK DISMISSED THE APPEALS OF THE REVENUE VIDE ORDER IN IT(SS)A IMO.S79,80,81,82 AND 83/CTK/2011 DT.22.03.2012 FILED AGAINST THE ORDERS OF THE LD. CIT(APPEALS). IN THE AB OVE, THE HONBLE TRIBUNAL DISCUSSED IN DETAILS ABOUT THE FINDINGS OF LD. CIT(A), BHUBANESWAR. THE FINDINGS OF THE LD. CIT(APPEALS) AS QUOTED IN THE ORDER OF THE HON'BLE TRIBUNAL ARE REPRODUCED HERE - UNDER: - REGARDING FINDING OF THE A.O. ' FREE USE OF TRUST ASSETS BY TRUSTEES, MR. SANGRAM MUDALI AND HIS FAMILY' , THE LD. CIT(A) HAS CONCLUDED IN PARA 12.29 OF HIS ORDER THUS: NOW COMING TO THE DECISION OF GORGE EDUCATIONAL, MEDICAL AND CHARITABLE SOCIETY (SUPRA) THE F ACTS OF THE CASE ARE CLEARLY APPLICABLE TO THE APPELLANT. HERE AT BEST OCCASIONAL USE OF GUEST ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 9 | 16 HOUSE FOR THE PURPOSES OF THE TRUST BY THE TRUSTEES CAN BE SUSPECTED. LIKE LIST OF GU ESTS IN THE GORGE EDUCATIONAL CASE, THE APPELLANT HAS GIVEN 160 REQUISITION FORMS TO THE AO TO ESTABLISH THAT THE BUILDING WAS RUN AS A GUEST HO USE AND NOT AS THE PERSONAL R ESIDENCE OF THE DIRECTOR. DISREGARDING THE EVIDENCE ADDUCED BY THE APPELLANT, THE A.O. PROCEEDED TO DENY THE EXEMPTION WHICH IS NOT IN ACCORDANCE WITH THE ACT. THE CASE OF GORGE EDUCATIONAL, MEDICAL AND CHARITABLE SOCIETY (SUPRA) IS CLEARLY APPLICABLE TO THE APPELLANT'S CASE AND PROVISIONS OF SECTION 13(1)( C) ARE NOT ATTRACTED WHEN THE APPELLANT TRUST IS USING THE BUILDING AS A GUEST HOUSE FOR ACCOMMODATING THE DIRECTOR AND OTHER TRUST MEMBERS ALONG WITH OTHER GUESS DURI NG THEIR VISIT, EVEN THOUGH NO RENT WERE CHARGED. IN VIEW OF THIS, RELYING ON THE DECISION OF IT AT, COCHIN BENCH IN GORGE EDUCATIONAL MEDICAL AND CHARITABLE SOCIETY VRS. ADIT (EXEMPTION 80 ITD 619 (COCH), I AM OF THE VIEW THAT THE OCCASIONAL STAY OF THE D IRECTOR AND OTHER TRUSTEES IN THE GUEST HOUSE DO NOT VIOLATE THE PROVISIONS OF SECTION 13(1)( C) FOR THE REASONS DISCUSSED ABOVE.' REGAR DING SALARY GIVEN TO TR USTEES, SHRI S ANGAR M MUDALI AND SMT. GEETIKA MUDALI. LD. CIT(A) IN PARA 13.18 OF HIS ORDER HAS HELD THUS: - 'THE PAYMENT, THUS, DOES NOT VIOLATE ANY PROVISION OF SECTION 13 AS THE SAME IS NOT UNREASONABLE OR EXCESSIVE, EVEN THOUGH PAID TO TWO OF THE TRUSTEES. THE PAYMENT IS WELL COVERED BY SECTION 13(2)( C) OF THE ACT AS DECIDED BY THE ABOVE MENTIONED COURT RULINGS. THE AMOUNT PAID TO THE TRUSTEES CANNOT BE SAID TO BE IN EXCESS OF WHAT MAY BE REASONABLY PAID FOR SUCH SERVICES RENDERED AS THE QUESTION OF PAYMENT IS GOVERNED IN ACCORDANCE WITH AICTE NORMS AND T HE A.O. HAS NOT FOUND ANYTHING IMPROPER OR UNREASONABLE IN THE PAYMENT. AO'S ACTION IN QUESTIONING THE PAYMENT ITSELF IS NOT IN ORDER. THE PAYMENT IS HELD TO BE REASONABLE IN ACCORDANCE WITH THE SECTION 13(2)( C) OF THE ACT, COURT RULINGS AND NO MERIT IS, THEREFORE, FOUND IN THE ACTION OF THE AO IN INVOKING SECTION 13 IN THE MATTER OF PAYMENT OF SALARY TO TRUSTEES.' REGARDING PAYMENT OF HONORARIUM TO THE PERSONS REFERRED IN SECTION 13(3) , CIT(A) IN PARA 16.2 OF HIS ORDER HAS HELD THUS: - PAYM E NT PER SE TO SPECIFIED PERSONS WILL NOT ATTRACT THE PROVISIONS OF SECTION 13 OF THE ACT. EXCESSIVE OR UN REASONABLE PAYMENT COMPARED TO THE SERVICES RENDERED WOULD ATTRACT PROVISIONS OF SECTION 13 OF THE ACT. IT WAS FOR THE A.O. TO ESTABLISH THAT PAYMENT MADE WAS TA BLE OR EXCESSIVE. THE A.O. STRAIGHT - AWAY DENIED EXEMPTION U/S. 11 OF THE ACT JUST BEC AUSE PAYMENTS ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 10 | 16 WERE MADE. HE NEVER BOTHERED TO EXAMINE THE ADEQUACY OR REASONAB LENESS OF THE PAYMENTS EITHER DURING THE ASSESSMENT PROCEEDINGS OR DURING THE REMAND PROCEEDINGS. PAYMENT OF RS.6,000/ - AND RS.8,000/ - FOR VALUABLE SERVICES RENDERED CANNOT BE TREATED AS EXCESSIVE FOR WHICH BENEFIT OF SECTION 11 CANNOT BE DENIED TO AN ESTEEMED INSTITUTION. SUCH ACT OF THE A.O. IS NOT SUSTAINABLE IN THE EYES OF LAW. CONSIDERING THE SUBMISSION OF THE APPELLANT AND IN VIEW OF THE FACT, NO EXCESSIVE OR UNREASONABLE PAYMENT WAS ESTABLISHED, I AM OF THE VIEW THAT THE PAYMENT OF HONORARIUM FOR VALUABLE SERVICES RENDERED DO NOT VIOLATE THE PROVISIONS OF SECTI ON 13 OF THE ACT AND CONSEQUENTLY THE ACTION OF THE AO IN DENYING EXEMPTION U/S 11 L BASED ON THIS, IS NOT SUSTAINED.' REGARDING NON - CHARITABLE ACT IVITIES OF THE TRUST, THE LD. CIT(A) IN PARA 17.5 OF HIS ORDER HAS HELD THAT IN THE LINE WITH THE REASONING DISCUSSED IN PARA - 17.1 TO 17.4 OF THE ORDER AND THE COURT CASES CITED, THE ACTIVITY OF NTCS AND NCE ARE TO BE TREATED AS INCIDENTAL ACTIVITY FOR EDUCATIONAL PURPOSES AND CONSEQU ENTLY IT CANNOT BE A GROUND FOR DENYING BENEFIT OF SECTION 11 OF THE ACT TO THE APPELLANT. THE HONBLE TRIBUNAL AFFIRMED THE ORDER OF THE CIT(APPEALS) DIRECTING A.O. TO ALLOW EXEMPTION U/S.11 AND DISMISSED THE APPEAL OF THE REVENUE VIDE THE ABOVE ODER . FOR THE PREVIOUS YEAR RELEVANT TO THE A.Y. 2009 - 10, UNDER CONSIDERATION, THE A.O. DENIED THE EXEMPTION CLAIMED U/S.LL IN THE YEAR UNDER CONSIDERATION EXACTLY ON SAME GROUNDS AND ON SAME FACTS & CIRCUMSTANCES OF THE CASE PREVAILING IN THE A.YRS.2001 - 02 TO 2007 - 08.SIMILARLY, OTHER DISALLOWANCE OF RS. 1 02,600/ - MADE IN THE YEAR UNDER CONSIDERATION IS A COVERED ISSUE AND SIM ILAR DISALLOWANCES MADE IN AFORESAID EARLIER YEARS HAVE BEEN DELETED BY THE APPELLATE AUTHORITIES. THE REMAND REPORT REGARDING THE EXTRA FEES COLLECTED BY THE APPELLANT FROM THE INTERESTED STUDENTS FOR PROVIDING 'SUMMER COURSE' BEYOND APPROVED SYLLABUS AND BEYOND FEES STRUCTURE NOTIFIED BY THE GOVT, OF ORISSA, NO ADVERSE INFERENCE CAN BE DRAWN SO AS TO AFFECT OR DISENTITLE THE APPELLANT FROM CLAIMING EXEMPTION WHEN THE GROSS RECEIPTS COLLECTED FROM THE SUMMER COURSE IS NEGLIGIBLE AND NET PROFIT AFTER PAYM ENT OF EXPENSES TOWARDS SALARY TO PROFESSORS, ASSISTANT PROFESSORS, FACULTY, SUPPORTING STAFF AND EXPENSES TOWARDS INFRASTRUCTURE FACILITIES V ; LIKE ELECTRICITY, WATER CHARGES ETC IS STILL NEGLIGIBLE. IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, THE R EMAND REPORT OF THE A.O ON EXTRA FEES COLLECTED FROM THE SUMMER COURSE IS NOT ENOUGH TO PROVE DOMINANT PROFIT MOTIVE SO THAT PROVISIONS OF SEC. ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 11 | 16 2(15) PARTICULARLY IN THE LIGHT OF DECISION OF THE HON'BLE APEX COURT IN THE CASE OF T.M.A PAI FOUNDATION V. STA TE OF KARNATAKA (2002) 8 SCC 481 AND IN THE CASE OF P.A INAMDAR V. STATE OF MAHARASHTRA AIR 2005 S C 3226(2005) SCC 537 CAN BE INVOKED. THE SUMMER COURSE CONDUCTED BY THE APPELLANT FOR SPECIFY STUDENTS WHO PAID EXTRA FEES WILLINGLY WAS INCIDENTAL TO PRIMARY ACTIVITY AND EVEN THE PROFIT MOTIVE WAS NOT REQUIRED TO BE SEEN IN THE ADVANCEMENT OF ANCILLARY OBJECTS AS HAS BEEN HE LD THE HON'BLE APEX COURT IN THE CASE OF CIT V. ANDHRA CHAMBER OF COMMERCE (1965) 55 ITR 722 THAT ONLY THE PREDOMINANT OBJECT FOR WHICH THE ORGANIZATION WAS CREATED IS ALONE TO BE CONSIDERED FOR THE PURPOSE FOR DETERMINING WHETHER THE NATURE OF ACTIVITIES FALL WITHIN THE SCOPE AND AMBIT OF CHARITY. MOREOVER, THE C.B.D.T HAS ISSUED CIRCULAR NO. 21/2016 DATED 27.05.2016 WHEREIN THE BOARD HAS ADVISED NOT TO CANCEL REGISTRATION OF A CHARITABLE INSTITUTION GRANTED U/S 12AA JUST BECAUSE THE PROVISO TO SEC. 2(15) COMES INTO PLAY, THAT THE PROCESS FOR CANCELLATION OF REGISTRATION IS TO BE INITIATED STRICTLY IN ACCORDANCE WITH SEC. 12AA(3) AND 12AA(4) AFTER CAREFULL Y EXAMINING THE APPLICABILITY OF THESE PROVISIONS. IN VIEW OF THE ABOVE AND PLACING RELIANCE IN ORDE RS OF LD. CIT(A) - II, BHUBANESWAR AND ORDERS OF HON'BLE TRIBUNAL FOR A.Y. 2001 - 02 TO A.Y. 2007 - 08 AND ORDER OF THE AO FOR A.Y. 2012 - 13 WHEREIN BENEFITS CLAIMED U/S 11 HAS BEEN ACCEPTED. IT IS HELD THAT THE APPELLANT IS ENTITLED FOR EXEMPTION U/S 11 FOR A.Y. 2009 - 2010 AND THEREFORE, ASSESSMENT OF RS. 6,85,19,727/ - I.E SURPLUS OF INCOME OVER THE EXPENDITURE AND FURTHER ADDITION OF RS. 1,02,600/ - U/S 13(2) IS NOT JUSTIFIED AND HENCE, ALLEGED ADDITIONS ARE LIABLE TO BE DELETED. THE OTHER ADDITION OF RS. 10, 00,000/ - RELATES TO DONATION GIVEN TO THE CHARITABLE TRUST SANKALP. THE A.O MADE THE ADDITION FOR THE REASONS THAT THE APPELLANT HAS NOT FURNISHED DETAILS OF THE CHARITABLE ORGANIZATION, ITS AIM & OBJECTIVES AND ITS STATUS REGARDING REGISTRATION U /S 12AA OF IT.ACT, 1961.BUT, ON PERUSAL OF MATERIALS AVAILABLE ON RECORD, IT TRANSPIRES THAT THE APPELLANT FILED MEMORANDUM OF ASSOCIATION, COPY OF CERTIFICATE OF REGISTRATION OF SOCIETIES. THE SOCIETY WAS REGISTERED UNDER SOCIETY REGISTRATION ACT, 1860 WI TH REGISTRATION NO. 22509/99 OF 2007 - 08. HOWEVER, AT THE TIME THE A.O PASSED THE ORDER, THE SOCIETY WAS NOT REGISTERED U/S 12AA OF THE I.T.ACT, 1961. THE REGISTRATION WAS ACCORDED BY COMMISSIONER OF INCOME TAX, BHUBANESWAR ON 06.02.2014 VIDE REGISTRATION N O. 29/2012 - 13 AND THE REGISTRATION WAS GRANTED W.E.F 01.04.2009. A TRUST MAY SUB SERVE ITS CHARITABLE ACTIVITIES IN TWO WAYS; ONE, BY DIRECTLY IMPLEMENTING ITS PROGRAMMES OF CHARITY BY MAKING ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 12 | 16 DIRECT EXPENDITURE AND THE OTHER, BY DONATING MONEY TO ANOTHER CHARITABLE TRUST WHO TAKES UP SIMILAR CHARITABLE ACTIVITIES. THE BOARD HAS CLARIFIED IN ITS INSTRUCTION NO.1132 DT.05.01.1978 THAT THE PAYMENT OF A SUM BY ONE CHARITABLE TRUST TO ANOTHER FOR UT ILIZATION BY THE DONEE TRUST TOWARDS ITS CHARITABLE OBJECTS IS PROPER APPLICATION OF INCOME IN THE HANDS OF DONOR TRUST. IT IMPLIES THAT DONOR TRUST WILL NOT LOSE EXEMPTION EVEN IF THE DONEE TRUST DOES NOT SPENT THE DONATION DURING THE SAME YEAR. IT WAS HE LD IN CIT VRS. J.K. CHARITY TRUST 196 ITR 31 (ALL) THAT DONEE TRUST MUST ALSO BE CHARITABLE ORGANIZATION IN ORDER TO MAKE SUCH CONTRIBUTION AS APPLICATION OF INCOME. ON RECEIPT, THE DONEE WILL HAVE TO SHOW IT IN THE INCOME AND WILL BE SUBJECT TO PROVISIONS OF INCOME - TAX LAWS FOR EXEMPTION IN ITS HANDS. THE DONEE TRUST MAY SPEND IT OR ACCUMULATE IT WITHIN THE PARAMETERS OF EXEMPTION U/S. 11 TO 13. IN VIEW OF THE ABOVE, IT IS HELD THAT DONATION GIVEN TO THE CHARITABLE TRUST 'SANKALP' WHICH IS REGISTERED U/S 1 2AA OF THE ACT IS PERMISSIBLE APPLICATION OF INCOME AND HENCE, ADDITION MADE ON THIS SCORE IS NOT SUSTAINABLE. ACCORDINGLY, THE GROUNDS OF APPEAL OF THE APPELLANT ARE ALLOWED. 5. FOLLOWING THE REASONS GIVEN IN ASSESSMENT YEAR 2009 - 2010, THE CIT(A) DELET ED THE SIMILAR ADDITION FOR THE ASSESSMENT YEAR 2011 - 12. 6. BEFORE US, LD D.R. SUBMITTED THAT THE APPEALS HAVE BEEN FILED U/S. 260A OF THE ACT AGAINST THE ORDER OF THE TRIBUNAL BEFORE THE HONBLE HIGH COURT OF ORISSA FOR THE ASSESSMENT YEARS 2001 - 02 TO 20 07 - 08, WHICH ARE PENDING FOR DISPOSAL. HE SUBMITTED THAT THE CIT(A) HAS FOLLOWED THE SAID DECISION OF THE TRIBUNAL IN DECIDING THE APPEALS FOR THE ASSESSMENT YEARS 2009 - 2010 & 2011 - 12. THEREFORE, IT WAS HIS SUBMISSION THAT THE APPEALS MAY BE KEPT PENDING FOR DISPOSAL TILL FINAL OUTCOME FROM THE HONBLE HIGH COURT OF ORISSA. ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 13 | 16 7. LD A.R. SUPPORTED THE ORDER OF THE CIT(A). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE CIT(A) HAS FOLLOWED THE DECISION OF THIS BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2001 - 02 TO 2007 - 08 IN DELETING ADDITION MADE BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEARS UNDER CONSIDERATION . THE ONLY SUBMISSION OF LD D.R. THAT THE APPEALS BEFORE THE HONBLE HIGH COURT ARE PENDING FOR DISPOSAL. BEFORE US, NO MATERIAL COULD BE SHOWN BY LD D.R. THAT THE OPERATION OF THE ORDER OF THE TRIBUNAL HAS BEEN STAYED BY THE HONBLE HIGH COURT OF ORISSA. HENCE, WE FIND NO ERROR IN THE ORDERS OF THE CIT(A), WHICH ARE CONFIRMED AND GROUNDS OF APPEAL OF THE REVENUE ARE DISMISSED. 9. ITA NO.431/CTK/2017 IS DI RECTED AGAINST THE ORDER OF THE CIT(A) IN THE MATTER OF ASSESSMENT U/S.143(3)/147 OF THE ACT FOR THE ASSESSMENT YEAR 2009 - 2010. 10. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THE CIT(A) ERRED IN LAW AND ON FACTS IN ALLOWING EXTRA DEPRECIATION CLAI MED ON BUILDING TO THE TUNE OF RS.8,76,888/ - WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE DID NOT COMPLY TO THE NOTICE ISSUED U/S.148 ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 14 | 16 OF THE I.T.ACT IMPLYING THAT IT HAS NO EXPLANATION TO OFFER AND HAS NO OBJECTION TO THE ISSUES INHERENT. 2. THE CIT(A) ERRED IN LAW AND ON FACTS IN ALLOWING EXTRA DEPRECIATION CLAIMED ON VEHICLE OF RS.34,25,017/ - WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE DID NOT COMPLY TO THE NOTICE ISSUED U/S.148 OF THE I.T.ACT IMPLYING THAT IT HAS NO EXPLANATION TO OFFER AND HAS N O OBJECTION TO THE ISSUES INHERENT. 11. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S.143(3) DETERMINING THE TOTAL INCOME AT RS.6,96,22,530/ - ON 30.12.2011. SUBSEQUENTLY, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS CLAIMED DEPRECIATION OF R S.1,30,58,208/ - AS AGAINST ADMISSIBLE DEPRECIATION OF RS.1,21,81,319/ - AND, THEREFORE, NOTICE U/S.148 OF THE ACT WAS ISSUED TO THE ASSESSEE IN ORDER TO WITHDRAW THE EXCESS CLAIM. SINCE THERE WAS NO RESPONSE TO THE NOTICE U/S.148 OF THE ACT, THE ASSESSING OFFICER INFERRED THAT THE ASSESSEE HAS NO EXPLANATION AND, THEREFORE, REASSESSED THE INCOME AT RS.7,08,24,435/ - BY ADDING EXCESS CLAIM OF DEPRECIATION OF RS.8,76,888/ - ON BUILDING AND RS.3,25,317/ - ON VEHICLES. 12. ON APPEAL BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT DEPRECIATION CLAIMED ON BUILDING AND VEHICLE DOES NOT HAVE ANY IMPACT ON UTILIZATION OF INCOME SINCE THE ASSESSEE HAS COMPUTED ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 15 | 16 UTILIZATION OF INCOME BY ADDING DEPRECIATION WITH EXCESS INCOME OVER THE EXPENDITURE AS PER INCOME & EXPENDITURE ACCOUNT. 13. THE CIT(A) ON PERUSAL OF INCOME & EXPENDITURE ACCOUNT, OBSERVED THAT THE ASSESSEE HAS ADDED BACK THE CLAIM OF DEPRECIATION ON ALLEGED CAPITAL ASSETS AND, THEREFORE, SINCE THERE IS NO CLAIM OF DEPRECIATION , SUBJECT TO THE VERIFICATION OF THE SAME FROM THE RECORDS BY THE ASSESSING OFFICER AT THE TIME OF GIVING EFFECT TO THE ORDER , IT IS HELD THAT ADDITION OF RS.12,01,905/ - IS LIABLE TO BE DELETED. IN VIEW OF ABOVE, THE CIT(A) DELETED THE ADDITION MADE ON ACCOUNT OF DEPRECIATION. 14. BEFORE US, LD D.R. RELIED ON THE REASSESSMENT ORDER OF THE ASSESSING OFFICER WHEREAS LD A.R. RELIED ON THE ORDER OF THE CIT(A). 15. LD D.R. COULD NOT POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE CIT(A). LD D.,R. ALSO COULD NOT CONTROVERT THE FINDINGS OF THE CI T(A) THAT THE ASSESSEE HAS ADDED BACK THE CLAIM OF DEPRECIATION ON ALLEGED CAPITAL ASSETS AND, THEREFORE, SINCE THERE IS NO CLAIM OF DEPRECIATION SUBJECT TO THE VERIFICATION AT THE TIME OF GIVING EFFECT TO THE ORDER, IT IS HELD THAT ADDITION OF RS.12,01 ,905/ - IS LIABLE TO BE DELETED. IN VIEW OF ABOVE, WE SEE NO REASON TO INTERFERE WITH THE ORDER OF THE CIT(A), WHICH IS ITA NO.430, 431 & 432/CTK/2017 ASSESSMENT YEARS : 2009 - 10 & 2011 - 2012 P A G E 16 | 16 HEREBY CONFIRMED AND GROUNDS OF APPEAL OF THE REVENUE ARE DISMISSED. 16. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRO NOUNCED ON 29 /0 8 /2018. S D/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 29 /0 8 /2018 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR. PVT. SECRETARY, ITAT, CUTTACK 1. THE APPELLANT : DCIT (EXEMPTION), BHUBANESWAR 2. THE RESPONDENT. S.M.CHARITABLE EDUCATIONAL TRUST, PLOT NO.122, NEAR HOTEL MEGHDOOT, SAHID NAGAR, BHUBANESWAR. 3. THE CIT(A) - 3, BHUBANESWAR 4. PR.CIT - 3, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//