ITO, JODHPUR V. Shri Sachyaya Mataji Trust, JODHPUR

ITA 538/JODH/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78136 (ITAT-JODHPUR)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-05-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 29-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: SURESH GANG; AADITYA SIDARTH GANG
• Keywords: Depreciation; Charitable institution; Deemed to accrue or arise in india; Capital receipt
• Section: 12A; 12; 11

Judgement Text

[1] IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N. K. SAINI, ACCOUNTANT MEMBER I.T.A. NO.538/JODH/2013 ASSESSMENT YEAR: 2009-10 THE I.T.O., VS. SHRI SACHYAYA MATAJI TRUST WARD 2(2), JODHPUR. OSIAN, JODHPUR PAN: AACTS 7448 E (APPELLANT) (RESPONDENT) C.O. NO. 44/JODH/2013 (IN I.T.A. NO. 538JODH/2013) ASSESSMENT YEAR:2009-10 SHRI SACHYAYA MATAJI TRUST, VS. THE I.T.O., OSIAN, JODHPUR WARD 2(2), JODHPUR. PAN: AACTS 7448 E (OBJECTOR) (RESPONDENT) REVENUE BY : SHRI N.A. JOSHI, D.R. ASSESSEE BY : SHRI SURESH GANG & SHRI AADITYA SIDARTH GANG. DATE OF HEARING : 06/05/2014 DATE OF PRONOUNCEMENT : 09/05 /2014 ORDER PER N.K. SAINI, A.M. THE APPEAL BY THE DEPARTMENT AND THE CROSS OBJECTI ON BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 17/09 /2013 OF LEARNED CIT(A)-JODHPUR. FIRST WE WILL DEAL WITH THE DEPART MENTAL APPEAL IN I.T.A. NO. 538/JODH/2013, FOLLOWING GROUNDS HAS BEEN RAISE D IN THIS APPEAL. [2] 1. THE LD. CIT(A) HAS ERRED IN DELETING THE DISALL OWANCE OF DEPRECIATION OF RS. 23,33,987/- CLAIMED ON ASSETS, COST OF WHICH HAS ALREADY BEEN ALLOWED AS APPLICATION OF I NCOME. 2. THE LD. CIT(A) HAS ERRED IN HOLDING THAT APPELLA TE TRUST IS ELIGIBLE FOR DEDUCTION OF DEPRECIATION FOR THE PURP OSE OF DETERMINATION OF PERCENTAGE OF FUNDS WHICH HAS TO B E APPLIED FOR OBJECT OF THE TRUST. 3. THE LD. CIT(A) HAS ERRED IN DELETING ADDITION OF RS. 61,75,469/- ON ACCOUNT OF INTEREST FROM BANK ON THE GROUND THAT IT HAS BEEN CREDITED TO EARMARKED FUND ACCOUN T IGNORING THE FACT THAT IT IS A REVENUE RECEIPT AND OUGHT TO HAVE BEEN CREDITED TO INCOME AND EXPENDITURE ACCOUNT AND THER EAFTER CONSIDERED FOR APPLICATION TOWARDS THE OBJECTS OF T HE TRUST AS ACCOUNTING TREATMENT GIVEN BY THE ASSESSEE DOES NOT AFFECT ITS CHARACTER OF BEING INCOME U/S 12(1) R.W.S. 56(1 ) OF THE INCOME TAX ACT, 1961. 4. THE LD. CIT(A) HAS ERRED IN DELETING ADDITION OF RS. 1,34,65,953/- ON ACCOUNT OF CASH DONATIONS WHICH WE RE NOT CREDITED TO INCOME AND EXPENDITURE ACCOUNT ON THE GROUND THAT THESE DONATIONS ARE RECEIVED WITH SPECIFIC DIR ECTIONS TO FORM PART OF THE CORPUS FUND IGNORING THE FACT THAT NO EVIDENCE OF SUCH DIRECTIONS WAS PRODUCED EITHER BEF ORE THE A.O. OR BEFORE THE LD. CIT(A). 5. THE LD. CIT(A) HAS ERRED IN HOLDING THAT DONATIO NS RECEIVED IN KIND ARE NOT INCOME FOR THE PURPOSE OF SECTION 1 2(1) ON THE GROUND THAT THERE IS NO PROVISION FOR TREATING SUCH DONATION AS INCOME U/S 12(1) R.W.S. 2(24)(IIA) IN SPITE OF T HE FACT THAT THERE IS NO SPECIFIC PROVISION THAT EXCLUDES SUCH D ONATIONS IN KIND IN SECTION 12(1) UNLIKE SECTION 10(23C) THIRD PROVISO CLAUSE (B) OR SUB-CLAUSE(IV). 6. THE CASE OF THE ASSESSEE IS COVERED UNDER PARA 1 0 OF THE INSTRUCTION NO. 3/2011 DATED 09/02/2011 OF CBDT, NE W DELHI. 2. FIRST ISSUE VIDE GROUNDS NO. 1 AND 2 RELATES TO DE LETION OF DISALLOWANCE OF DEPRECIATION AMOUNTING TO RS. 23,33 ,987/- MADE BY THE ASSESSING OFFICER. FACTS RELATES TO THIS ISSUE IN B RIEF ARE THAT THE ASSESSING OFFICER MADE THE IMPUGNED DISALLOWANCE BY OBSERVING THAT THE [3] DEPRECIATION CANNOT BE ALLOWED TO THE ASSESSEE BEIN G A TRUST AS THE FULL VALUE OF THE ASSETS HAD ALREADY BEEN ALLOWED AS CA PITAL EXPENSES DURING THE EARLIER YEARS AND CONSIDERED AS APPLICATION OF INCOME OF THE TRUST. 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE SAID ISSUE HAD ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN EARLIER YEARS I.E. ASSESSMENT YEARS 2006-07 TO 2008-09. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, OBSERVED THAT THE ISSUE OF DEPRECIATION HAD BEEN DE CIDED BY HIS PREDECESSOR VIDE ORDER DATED 15/3/2011, 26/3/2012 A ND 18/3/2013 FOR THE ASSESSMENT YEARS 2008-09, 2006-07 AND 2007-08 RESPE CTIVELY AND THERE WAS NO REASON TO DEVIATE FROM THE FINDINGS OF HIS P REDECESSOR. HE, THEREFORE, DELETED THE DISALLOWANCE MADE BY THE ASS ESSING OFFICER. NOW THE DEPARTMENT IS IN APPEAL. 4. THE LD. D.R. SUPPORTED THE ORDER OF THE ASSESSIN G OFFICER AND THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE THEN LD. CIT(A) WHILE DECIDING THE ISSUE FOR THE ASSESSMENT YEAR 2006-07, RELIED THE DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. MARKET COMMITTEE REPORTED IN 330 ITR 16 (P&H) WHEREIN IT W AS HELD THAT: INCOME OF THE ASSESSEE BEING EXEMPT, THE ASSESSEE W AS ONLY CLAIMING THAT DEPRECIATION SHOULD BE REDUCED FROM T HE INCOME FOR DETERMINING THE PERCENTAGE OF THE FUND WHICH HAD TO BE APPLIED FOR THE PURPOSE OF THE TRUST. THERE WAS NO DOUBLE DEDUC TION CLAIMED BY THE ASSESSEE. IT COULD NOT BE HELD THAT DOUBLE B ENEFIT WAS GIVEN IN ALLOWING THE CLAIM FOR DEPRECIATION FOR COMPUTIN G INCOME FOR PURPOSES OF SECTION. 11. [4] IT WAS STATED THAT A SIMILAR VIEW WAS ALSO TAKEN BY THE VARIOUS HIGH COURTS IN THE FOLLOWING CASES:- 1. CIT VS. GUJARATI SAMAJ, REPORTED IN 349 ITR 559 (MP) 2. CIT VS. MARKET COMMITTEE, REPORTED IN 330 ITR 1 6 (P&H) 3. CIT VS. TINY TOTS EDUCATION SOCIETY REPORTED IN 330 ITR 21 (P&H) 4. DCIT VS. MARKET COMMITTEE ADMUR, REPORTED IN 13 DTR 157 (DELHI). ACCORDINGLY, IT WAS SUBMITTED THAT THE LD. CIT(A) W AS JUSTIFIED IN DELETING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON TH E RECORD. IT APPEARS THAT THE LD. CIT(A) DELETED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER IN ACCORDANCE WITH THE JUDGMENT OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. MARKET COMMITTEE (SUPRA) AN D NO CONTRARY DECISION WAS BROUGHT TO OUR NOTICE. WE, THEREFORE, DO NOT SE E ANY MERIT IN THESE GROUNDS OF THE DEPARTMENTAL APPEAL. 6. GROUNDS NO. 3 AND 4 OF THE DEPARTMENTAL APPEAL A RE CORRELATED, SO THESE ARE DECIDED SIMULTANEOUSLY. 7. FACTS RELATED TO THESE ISSUES IN BRIEF ARE THAT THE ASSESSING OFFICER TREATED THE VOLUNTARY CONTRIBUTION FOR SPECIFIC PU RPOSE TOWARDS EARMARKED FUNDS OF RS. 1,34,65,953/- AND INTEREST ON DEPOSIT WITH BANK OF EARMARKED FUNDS OF RS. 61,75,469/-, WHICH WERE CORPUS AS INCO ME FOR THE PURPOSE OF SECTION 10 (23C)(VS.) READ WITH SECTION 12(1), 11(1 )(D) & 2(24)(IIA) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED AS THE ACT). [5] 8. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT SIMILAR ISSUE HAD BEEN DECIDED F OR THE ASSESSMENT YEARS 2006-07 AND 2007-08. THE LD. CIT(A) AFTER CON SIDERING THE SUBMISSIONS OF THE ASSESSEE, OBSERVED THAT AN IDENT ICAL ISSUE HAD BEEN ADJUDICATED BY HIS PREDECESSOR FOR THE ASSESSMENT Y EAR 2006-07 VIDE ORDER DATED 26/3/2013 BY MAKING THE FOLLOWING OBSER VATIONS: I HAVE GONE THROUGH THE SUBMISSION AND ORDER OF TH E ASSESSING OFFICER AND I FIND THAT THE ASSESSING OFF ICER CONSIDERED THE INTEREST OF RS. 19,49,159/- AND CASH DONATION OF RS. 1,07,03,423/- CREDITED TO EARMARKED FUNDS AND R S. 2,56,830/- UNDER FIXED RESERVE FUND BEING CORPUS FU ND AS INCOME OF THE APPELLANT TRUST U/S 12(1). BUT THE AP PELLANT HAS SUBMITTED THAT CASH DONATION OF RS. 1,07,03,423/- W ERE CREDITED TO EARMARK FUND WHICH IS CORPUS FUND SPECIFIC PURPO SE U/S 12(1) R.W.S. 11(1)(D) OF THE I.T. ACT, 1961 AND INVESTED AS DEPOSIT IN BANK U/S 11(5) OF THE I.T. ACT, 1961. THE INTEREST RECEIVED ON THE SAID INVESTMENT AS DEPOSIT WITH BANK HAS BEEN C REDITED TO RELEVANT FUND ACCOUNT, SO THE ASSESSING OFFICER WAS NOT JUSTIFIED TO ADD CASH DONATION AND INTEREST. I FIND THAT THE ABOVE DONATIONS ARE FOR SPECIFIC PURPOSE WHICH ARE CORPUS FUND U/S 12(1) R.W.S. 11(1)(D) AND NOT REQUIRED TO BE INCLUD ED IN THE INCOME OF THE TRUST. THE VARIOUS COURTS HAS ALSO DE CIDED THE ISSUE THAT CORPUS FUND IS NOT PART OF THE INCOME WH ICH ARE SPECIFIC PURPOSE. 9.3.1 THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF SUKHDEO CHARITY ESTATE VS. INCOME TAX OFFICER REPOR TED IN 192 ITR 615 HELD THAT CHARITABLE TRUST-INCOME OF TRUST- DONATION RECEIVED FROM ANOTHER TRUST FOR \SPECIFIED CHARITAB LE PURPOSES-IS VOLUNTARY CONTRIBUTION WITHIN THE MEANING OF S. 12 AND NOT INCOME. 9.3.2. THE HON'BLE DELHI HIGH COURT IN THE CASE OF DIT (EXEMPTION) VS. JAIPUR GOLDEN CHARITABLE CLINICAL L ABORATORY TRUST REPORTED IN 311 ITR 365 HELD THAT CHARITABLE TRUST- EXEMPTION UNDER S. 11-VOLUNTARY CONTRIBUTION TOWARD S CORPUS OF THE TRUST-ASSESSEE CHARITABLE TRUST REGISTERED U NDER S. 12A RUNNING A HOSPITAL RECEIVING DONATIONS FROM THE CON SULTING [6] DOCTORS AS PER THEIR OPTION EXERCISED UNDER AGREEM ENT TO THE EFFECT THAT IN CASE OF THOSE DOCTORS GIVING DONATIO NS, COLLECTION CHARGES OF THEIR CONSULTING FEE WILL BE 15 PER CENT AS AGAINST 20 PERCENT IN CASE OF THOSE WHO WILL NOT GIVE DONATION , AND SUCH DONATIONS BEING TOWARDS CORPUS OF THE TRUST FUND, S UCH VOLUNTARY DONATIONS DID NOT CONSTITUTE INCOME IN TH E HANDS OF ASSESSEE. 9.3.3. THE ALLAHABAD HIGH COURT IN THE CASE OF SRI DWARKADHEESH CHARITABLE TRUST VS. INCOME TAX OFFICE R, REPORTED IN 98 ITR 557 HELD THAT CHARITABLE TRUST-E XEMPTION UNDER S. 12(2)-VOLUNTARY CONTRIBUTION BY CHARITABLE TRUST WITH A SPECIFIC DIRECTION THAT THEY SHALL FORM PART OF COR PUS AND EARMARKED AS CORPUS OF DONEE-TRUST-SUCH CORPUS FUND DOES NOT FORM PART OF VOLUNTARY CONTRIBUTIONS THAT ARE INCOM E UNDER S. 12(1),-THE SUBJECT OF DONATION BECOMES PART OF CORP US OR CAPITAL OF THE DONEE TRUST AND OUTSIDE THE PURVIEW OF S. 12(2). IN VIEW OF THE ABOVE, IT IS CLEAR THAT THE ABOVE FU NDS SHALL NOT BE PART OF THE TOTAL INCOME OF THE APPELLANT TRUST. TH E GROUNDS OF APPEAL ARE ALLOWED. THE LD. CIT(A) BY FOLLOWING THE AFORESAID DECISION OF HIS PREDECESSOR, DELETED THE DISALLOWANCE MADE BY THE ASSESSING OFFI CER. NOW THE DEPARTMENT IS IN APPEAL. 9. THE LD. D.R. STRONGLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND REITERATED THE OBSERVATIONS MADE IN THE ASSESSM ENT ORDER. 10. IN HIS RIVAL SUBMISSIONS, THE LEARNED COUNSEL F OR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORIT IES BELOW AND FURTHER SUBMITTED THAT THE LD. CIT(A) WAS JUSTIFIED IN DEL ETING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. IT WAS FURTHER SUBMI TTED THAT THIS ISSUE IS ALSO COVERED IN FAVOUR OF THE ASSESSEE VIDE JUDGMEN T OF HON'BLEBLE KARNATAKA HIGH COURT IN THE CASE OF DIRECTOR OF INC OME-TAX (EXEMPTIONS) [7] & ANOTHER VS. SRI RAMAKRISHNA SEVA ASHRAMA REPORTE D IN (2013) 357 HON'BLE 731 (KARN). 11. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOTICED THAT THE HON'BLE. HON'BLE(A) DECIDED THIS ISSUE IN FAVOUR OF THE ASSE SSEE BY FOLLOWING THE DECISION OF THE HON'BLEBLE JURISDICTIONAL HIGH COU RT IN THE CASE OF SUKHDEO CHARITY ESTATE VS. INCOME TAX OFFICER REPORTED IN 1 92 HON'BLE 615. THIS ISSUE ALSO STANDS COVERED IN FAVOUR OF THE ASSESSEE VIDE JUDGMENT OF THE HON'BLEBLE KARNATAKA HIGH COURT IN THE CASE OF DIR ECTOR OF INCOME-TAX (EXEMPTIONS) & ANOTHER VS. SRI RAMAKRISHNA SEVA AS HRAMA (SUPRA) WHEREIN IT HAS BEEN HELD AS UNDER:- THE WORD CORPUS USED IN THE CONTEXT OF THE INCOM E-TAX, ACT, 1961, IS TO BE UNDERSTOOD, IN THE CONTEXT OF C APITAL, AS OPPOSED TO AN EXPENDITURE. IF A VOLUNTARY CONTRIBUT ION IS MADE WITH A SPECIFIC DIRECTION, IT SHALL BE TREATED AS THE CAPITAL OF THE TRUST FOR CARRYING ON ITS CHARITABL E OR RELIGIOUS ACTIVITIES. THEN SUCH AN INCOME FALLS UNDER SECTION 11(1)(D) AND IS NOT LIABLE TO TAX. THEREFORE, IT IS NOT NECE SSARY THAT A VOLUNTARY CONTRIBUTION SHOULD BE MADE WITH A SPECIF IC DIRECTION TO TREAT IT AS CORPUS. IF THE INTENTION O F THE DONOR IS TO GIVE THAT MONEY TO A TRUST TO KEEP IN TRUST THE ACC OUNT IN DEPOSIT AND UTILISE THE INCOME THEREFROM FOR CARRYI NG ON A PARTICULAR ACTIVITY, IT SATISFIES THE DEFINITION P ART OF THE CORPUS. THE ASSESSEE WOULD BE ENTITLED TO THE BENEFIT OF EX EMPTIONS FROM PAYMENT OF TAX. IN VIEW OF THE LANGUAGE EMPLOY ED IN CLAUSE (D) OF SUB-SECTION (1) OF SECTION 11, THE RE QUIREMENT IS THAT THE VOLUNTARY CONTRIBUTIONS HAVE TO BE MADE WI TH A SPECIFIC DIRECTION. THE LAW DOES NOT REQUIRE THAT T HE DIRECTION SHOULD BE IN WRITING. WE, THEREFORE, IN VIEW OF THE ABOVE DISCUSSION, DO NOT SEE ANY MERIT IN THE GROUND NOS. 3 & 4 OF THE DEPARTMENTAL APPEAL. [8] 12. THE LAST ISSUE VIDE GROUND NO. 5 OF THE DEPARTM ENTAL APPEAL RELATES TO THE ACTION OF THE LD. CIT(A) IN HOLDING THAT THE DONATIONS RECEIVED IN KIND WERE NOT INCOME FOR THE PURPOSE OF SECTION 12(1) OF THE ACT. 13. THE FACTS RELATED TO THIS ISSUE IN BRIEF ARE TH AT THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NOTICE D THAT THE ASSESSEE HAD RECEIVED VOLUNTARY CONTRIBUTION IN THE FORM OF GOLD AND SILVER JEWELLERY BUT DID NOT TREAT THE SAME AS ITS INCOME. HE, THERE FORE, TREATED THE SAME AS DEEMED INCOME AS PER PROVISIONS OF SECTION 12(1) OF THE ACT. 14. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R TO THE LD. CIT(A). AND SUBMITTED THAT THE DONATION RECEIVED IN KIND DI D NOT COME UNDER THE DEFINITION OF INCOME U/S 2(24) OF THE ACT, THEREFOR E, IT COULD NOT BE THE INCOME OF THE TRUST U/S 12(1) OF THE ACT AND THAT T HE ACCEPTANCE OF DONATION IN KIND DOES NOT COME IN PURVIEW OF INCOME U/S 2(24 )(IIA) FOR THE PURPOSE OF SECTION 11 OF THE ACT. IT WAS FURTHER STATED THAT T HE VOLUNTARY CONTRIBUTION RECEIVED IN KIND BY THE ASSESSEE SHOULD HAVE BEEN T REATED AS CAPITAL RECEIPT AND NOT THE INCOME WITHIN THE MEANING OF SE CTION 2(24) OF THE ACT. 15. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION S OF THE ASSESSEE, OBSERVED THAT THIS ISSUE WAS COVERED IN FAVOUR OF T HE ASSESSEE VIDE ORDER DATED 26/3/2013 PASSED BY HIS PREDECESSOR FOR THE A SSESSMENT YEAR 2006- 07 WHEREIN IT WAS HELD AS UNDER:- I FIND THAT THE VOLUNTARILY CONTRIBUTION IN KIND R ECEIVED BY THE APPELLANT TRUST DURING THE FINANCIAL YEAR ARE NOT I NCOME FOR THE PURPOSE OF SECTION. 12(1). THERE IS NO PROVISION IN LAW AND THE ACT DOES NOT PROVIDE VOLUNTARILY CONTRIBUTION IN KI ND COME UNDER THE PURVIEW OF THE INCOME. VOLUNTARILY CONTRI BUTION IN [9] KIND CANNOT BE APPLIED, ACCUMULATED OR INVESTED; TH EREFORE, IT CANNOT BE TREATED AS INCOME. FURTHER THE ASSESSING OFFICER HAS RELIED THE PROVISION OF CLAUSE (B)(IV) OF THIRD PROVISO TO SECTION. 10(23C) AND DISALLOWED THE DONATION RECEIV ED IN KIND. HOWEVER, FROM SAID PROVISO, IT IS CLEARLY PROVIDED IN THE PROVISION THAT THE VOLUNTARY CONTRIBUTION RECEIVED AND MAINTAINED IN THE FORM OF JEWELLERY, FURNITURE OR A NY OTHER ARTICLES NEED NOT BE INVESTED IN ANYONE MORE OF THE FORMS OR MODE SPECIFIED IN SUB-.SEC. (5) OF SECTION. 11. ALT HOUGH THE ASSESSING OFFICER HAS RELIED THE ABOVE PROVISION BU T IN VIEW OF THE PROVISION ALSO THE APPELLANT IS ALSO NOT REQUIR ED TO BE INVESTED AS PER SECTION 11(5). SO IT IS CLEAR THAT VOLUNTARY CONTRIBUTION RECEIVED IN KIND AS GOLD AND JEWELLERY DO NOT FORM THE PART OF THE INCOME OF THE TRUST. THE GROUND IS DECIDED IN FAVOUR OF THE APPELLANT. THE LD. CIT(A), ACCORDINGLY HELD THAT THE VOLUNTARY CONTRIBUTION RECEIVED IN KIND I.E. GOLD AND JEWELLERY DID NOT FORM THE PART OF THE INCOME OF THE ASSESSEE. NOW THE DEPARTMENT IS IN APPEAL. 16. THE LD. D.R. SUPPORTED THE ORDER OF THE ASSESSI NG OFFICER AND THE LEARNED COUNSEL FOR THE ASSESSEE IN HIS RIVAL SUBMI SSIONS, REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND FURTHER SUBMITTED THAT THE VOLUNTARY CONTRIBUTION RECEIVED BY THE ASSESSEE WAS NOT A REVOKABLE TRANSFER HENCE, IT WAS IN THE NATURE OF CAPITAL REC EIPT, THEREFORE, THE LD. CIT(A) WAS FULLY JUSTIFIED IN REVERSING THE OBSERVA TION OF THE ASSESSING OFFICER. 17. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON TH E RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ASSESSEE RECE IVED THE DONATIONS IN KIND AND THE SAME COULD NOT BE APPLIED, ACCUMULATED OR I NVESTED, THEREFORE, IT [10] CANNOT BE TREATED AS INCOME. THEREFORE, THE LD. CIT (A) WAS FULLY JUSTIFIED IN REVERSING THE OBSERVATIONS OF THE ASSESSING OFFICER . WE DO NOT SEE ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) ON THIS IS SUE. 18. AS REGARDS TO THE CROSS OBJECTION OF THE ASSESS EE, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT HE HAS THE INSTRUCTION NOT TO PRESS THE SAME AND GAVE IN WRITING ON THE ORDERSHEET AS U NDER:- NOT PRESSED. SD/- 06/05/2014 IN VIEW OF THE ABOVE, THE CROSS OBJECTION OF THE AS SESSEE IS DISMISSED AS NOT PRESSED. 19. IN THE RESULT, APPEAL OF THE DEPARTMENT AND THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH MAY, 2014). SD/- SD/- ( HARI OM MARATHA ) ( N. K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED:09 TH MAY, 2014 *RANJAN COPY FORWARDED TO: 1. APPELLANT- 2. RESPONDENT- 3. CIT(A) 4. CIT 5. D.R. BY ORDER ASSISTANT REGISTRAR JODHPUR