DCIT, Agra V. M/s Ashok Auto Sales LTd., Agra

ITA 468/AGR/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7094 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 10-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: S C JAIN
• Keywords: Charitable institution
• Section: 142(1); 80G; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 468/AGR/2009 ASST. YEAR: 2004-05 DY. COMMISSIONER OF INCOME TAX, VS. M/S ASHOK AUTO SALES LIMITED, CIRCLE 4(1), AGRA. AGRA KANPUR ROAD, NUNHAI, INDUSTRIAL ESTATE, AGRA. (PAN : AABCA 3711 C). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SHARMA, JR. D.R. RESPONDENT BY : SHRI S.C. JAIN, C.A. ORDER PER H.S. SIDHU, J.M. : THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST TH E ORDER DATED 15.09.2009 PASSED BY THE LD. CIT(A)-II, AGRA ON THE FOLLOWING GROUNDS :- 1. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS)-II, AGRA HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDIT ION OF ` 12,00,575/- MADE BY DISALLOWING THE DEDUCTION CLAIMED U/S 80G O F IT ACT IGNORING THE LOGICAL REASONS FOR DISALLOWANCE GIVEN BY THE A .O. IN THE ASSESSMENT ORDER AND ALSO THE FACT THAT ON THE DATE OF ISSUING CHEQUES FOR DONATION AMOUNTING TO ` 30 LACS THE ASSESSEE WAS NOT HAVING SUFFICIENT BANK BALANCE. 2 2. THAT THE SECTION 80G THE WORD PAID HAS BEEN US ED MEANING THEREBY THAT TO QUALIFY FOR DEDUCTION U/S 80G, SUM OF DONATION MUST BE PAID WITHIN THE RELEVANT FINANCIAL YEAR BUT IN THIS CASE, THE PAYMENT WAS ACTUALLY MADE ON 29.09.2004 I.E. ALMOST AFTER SIX M ONTHS OF GIVING THE ALLEGED DONATION. 3. THAT THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) DESERVES TO BE CANCELLED AND THAT OF THE A.O.S BE RESTORED. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY OR MORE GROUND OR GROUNDS OF APPEAL AS MAY BE DEEMED FIT AT THE TIME OF HEARING OF APPEAL 2. THE FACTS RELATING TO THE ISSUE IN DISPUTE ARE T HAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 01.11.2004 DECLARING TOTAL INCOME OF ` 2,28,10,930/-. THE ASSESSING OFFICER SELECTED THE CASE OF THE ASSESSEE FOR SCRUT INY AND ISSUED NOTICE UNDER SECTION 143(2) & 142(1) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER). IN RESPONSE TO THE SAME, THE LD. AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE APPEARED AND FILED WRITTEN REPLY AND DETAILS AS REQUIRED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS CLAIMED DEDUCTI ON UNDER SECTION 80G OF THE ACT AMOUNTING TO ` 12,00,575/- ON ACCOUNT OF DONATION AND ` 30,00,000/- GIVEN TO ASHOK SHRUTI MEMORIAL HOSPITAL VIDE CHEQUE NO.736129 DATE D 31.03.2004. THE ASSESSING OFFICER WAS OF THE OPINION THAT THE ASSESSEE WAS RE QUIRED TO FURNISH THE EVIDENCE TO PROVE THAT ASHOK SHRUTI MEMORIAL HOSPITAL QUALIFIES FOR DEDUCTION UNDER SECTION 80G OF THE ACT AND TO FURNISH EVIDENCE OF PAYMENT A ND ALSO TO SHOW CAUSE WHY THE 3 CLAIM OF DEDUCTION UNDER SECTION 80G ON DONATION PA ID TO ASHOK SHRUTI MEMORIAL HOSPITAL OF ` 30,00,000/- BE NOT DISALLOWED AS THE ASSESSEE HAS N OT FURNISHED EVIDENCE TO PROVE THAT ASHOK SHRUTI MEMORIAL HOSPIT AL IS A UNIT OF ASHOK MEDICARE & RESEARCH FOUNDATION AND SECONDLY THE DONATION WAS NOT ACTUALLY PAID TILL 31.03.2006 AND ALSO FURNISH COUNTERFOIL BOOK OF CHE QUE SERIES NO.736100 TO 736150. IN RESPONSE TO THE SAID SHOW CAUSE NOTICE, THE ASSE SSEE FILED REPLY STATING THEREIN THAT ASHOK SHRUTI MEMORIAL HOSPITAL IS A UNIT OF ASHOK M EDICARE & RESEARCH FOUNDATION. ALL INCOME OF THE HOSPITAL IS INCLUDED IN THE ACCOUNTS OF ASHOK MEDICARE & RESEARCH FOUNDATION AND ARE SUBMITTED IN THE INCOME TAX DEPARTMENT. AS REGARDS TO THE CLEARANCE OF CHEQUE, THE ASSESSE E STATED THAT LIMITATION FOR CLEARING THE CHEQUE IS SIX MONTHS AND THE CHEQUES WERE CLEAR ED WITHIN THE PERMISSIBLE TIME AND MUCH BEFORE FILING THE RETURN OF INCOME. THE A SSESSEE HAS ALSO PRODUCED THE FOIL OF CHEQUE BOOK SL. NOS.736100 TO 736150 FOR THE PER USAL OF THE ASSESSING OFFICER. AFTER CONSIDERING THE REPLY FILED BY THE ASSESSEE, THE ASSESSING OFFICER FEELING NOT SATISFIED WITH THE SAME, HELD THAT THE DONATION WAS NOT A BONAFIDE DONATION AND GENUINENESS OF ITS PAYMENT IN THE RELEVANT YEAR WAS HIGHLY DOUBTFUL. RATHER THE ENTIRE AFFAIRS WERE CLEARLY ARRANGED AND MANAGED BY THE ASSESSEE AND LASTLY THE ASSESSING OFFICER DISALLOWED THE DONATION OF ` 12,00,575/- CLAIMED BY THE ASSESSEE UNDER SECTION 80G OF THE ACT BY COMPLETING THE ASSE SSMENT IN DISPUTE ON 22.12.2006. AGGRIEVED BY THE SAME, THE ASSESSEE FI LED APPEAL BEFORE THE LD. FIRST 4 APPELLATE AUTHORITY WHO VIDE ORDER DATED 15.09.2009 DELETED THE ADDITION IN DISPUTE. NOW THE ASSESSEE FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER. 3. AT THE TIME OF HEARING, THE LD. D.R. RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER AS WELL AS ON THE GROUNDS OF APPE AL. ON THE CONTRARY, THE LD. COUNSEL OR THE ASSESSEE RELIED UPON THE IMPUGNED OR DER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS AVAILABLE WITH US AND WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUTHORITY HAS THOROUGHLY APPRECIATED THE EVIDENCE PRODUCED BY THE ASSESSEE. THE ASSESSING OFFICER HAS DISALLOWED THE CLAIM OF THE ASSESSEE ON LY ON THE GROUND THAT THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE TO PROVE THAT ASHOK SHRUTI MEMORIAL HOSPITAL IS AN APPROVED INSTITUTION FOR THE PURPOSE OF SECTION 80G AND QUALIFIES FOR DEDUCTION UNDER SECTION 80G OF THE ACT. THE LD. FIRST APPELLATE A UTHORITY HAS PERUSED THE CERTIFICATE ISSUED TO THE ASSESSEE BY THE CIT-I, AGRA DATED 06. 04.2004 IN WHICH ASHOK MEDICARE & RESEARCH FOUNDATION WAS GRANTED EXEMPTIO N UNDER SECTION 80G OF THE ACT FOR THE PERIOD 15.03.2001 TO 31.03.2005. IT IS ALSO A MATTER OF RECORD WHICH HAS 5 BEEN APPRECIATED BY THE LD. FIRST APPELLATE AUTHORI TY IN THE IMPUGNED ORDER BY STATING THAT ASHOK MEDICARE & RESEARCH FOUNDATION ( CHARITABLE TRUST) IS RUNNING A HOSPITAL PROJECT NAMED AS ASHOK SHRUTI MEMORIAL HOS PITAL AT AGRA, KANPUR ROAD NUNNAI, AGRA SINCE MARCH 2001. THE ASSESSEE HAS AL SO ESTABLISHED BEFORE THE REVENUE AUTHORITIES THAT ASHOK SHRUTI MEMORIAL HOSP ITAL IS A UNIT OF ASHOK MEDICARE & RESEARCH FOUNDATION. THE ASSESSEE HAS A LSO FILED ALL NECESSARY EVIDENCES AS REQUIRED BY THE ASSESSING OFFICER. IN SPITE OF THE SAME, THE ASSESSING OFFICER HAS DISALLOWED THE CLAIM OF THE ASSESSEE WH ICH IS CONTRARY TO THE RECORD AVAILABLE WITH HIM. BUT THE LD. FIRST APPELLATE AU THORITY RIGHTLY APPRECIATED THE SAME BY ALLOWING THE CLAIM IN DISPUTE FOR WHICH THE ASSESSEE IS ENTITLED UNDER LAW. THE LD. FIRST APPELLATE AUTHORITY HAS DELETED THE A DDITION IN DISPUTE BY RELYING UPON THE ORDER OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF CIT VS. OAGLE WORKS LIMITED, 25 ITR 529 (SC) WHEREIN HONBLE SUPREME CO URT OF INDIA HAS HELD THAT WHERE CHEQUE IS NOT DISHONOURED BUT IS ENCASHED, TH E PAYMENT RELATES BACK TO THE DATE OF THE RECEIPT OF THE CHEQUE AND IN LAW THE DA TE OF PAYMENT IS THE DATE OF THE DELIVERY OF CHEQUE. THE FACTS OF THE PRESENT CASE ARE SQUARELY COVERED BY THE DECISION OF HONBLE SUPREME COURT OF INDIA (SUPRA). THEREFORE, THE OBJECTIONS RAISED BY THE ASSESSING OFFICER HAVE FULLY BEEN MET BY THE ASSESSEE BY FILING ITS REPLY BEFORE HIM AND THE LD. FIRST APPELLATE AUTH ORITY HAS RIGHTLY APPRECIATED THE 6 ITA NO. 468/AGR/2009 ASST. YEAR: 2004-05 SAME BY DELETING THE ADDITION IN DISPUTE. WE FULLY AGREE WITH THE IMPUGNED ORDER AND UPHOLD THE SAME BY DISMISSING THE APPEAL FIELD BY THE REVENUE. 5. IN THE RESULT, APPEAL FIELD BY THE REVENUE IS DI SMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 07.04.2011). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 7 TH APRIL, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRI BUNAL, AGRA TRUE COPY