Laxman Public School Society, New Delhi V. DDIT (E), New Delhi

ITA 5797/DEL/2010

• Counselvise Citation: 579720114 RSA 2010
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 08-09-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 20-12-2010
• Court: TRIBUNAL
• Department Lawyers: Y K KAKKAR SENIOR
• Assessee Lawyers: NITIN GUPTA; SSH SB GUPTA
• Keywords: Charitable institution; Maximum Marginal Rate; Benefit of exemption; Cancellation of registration
• Section: 234B; 12A; 12AA; 37; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE G.E. VEERABHADRAPPA, HON'BLE VICE-PRESIDENT AND SHRI RAJPAL YADAV: HONBLE JUDICIAL MEMBER ITA NO. 5797/DEL/2010 ASSESSMENT YEAR: 2007- 08 ITA NO. 5467/DEL/2010 ASSESSMENT YEAR: 2007-08 ITA NO. 2876/DEL/2011 ASSESSMENT YEAR: 2008-09 LAXMAN PUBLIC SCHOOL SOCIETY, VS. DEPUTY DIRECTOR OF IT(EXM), 15/1, ASAF ALI ROAD, INV. CIRCLE-1, NEW DELHI-1100 02 NEW DELHI. (PAN: AAATL0455E ) (APPELLANT) (RESPONDENT) APPELLANT BY: S/SH. SB GUPTA & NIT IN GUPTA, AR RESPONDENT BY: MS. Y.K. KAKKAR, SENIOR DR ORDER PER RAJPAL YADAV: JUDICIAL MEMBER IN THIS BUNCH OF THREE APPEALS AT THE INSTANCE OF ASSESSEE, ITA NO.5797/DEL/2010 IS DIRECTED AGAINST THE ORDER OF L EARNED DIRECTOR OF INCOME-TAX (EXEMPTION) DATED 29.10.2010 WHEREAS ITA NOS. 5467 & 2876 ARE FILED AGAINST THE SEPARATE ORDERS OF LEARNED CI T(APPEALS) DATED 30.09.2010 AND 28.04.2011 PASSED FOR ASSESSMENT YEA RS 2007-08 AND 2008- 09 RESPECTIVELY. 2. FIRST, WE TAKE ITA NO.5797/DEL/2010: LEARNED COU NSEL FOR THE ASSESSEE SUBMITTED THAT LEARNED DIRECTOR OF INCOME- TAX (EXEMPTION) HAS ERRED IN CANCELING THE REGISTRATION GRANTED UNDER S EC. 12A(A) OF THE INCOME- 2 TAX ACT, 1961 BY WAY OF THE IMPUGNED ORDER. HE POIN TED OUT THAT THE LAXMAN PUBLIC SCHOOL SOCIETY WAS FORMED BY DEED DA TED 25.5.1979. THE MAIN OBJECT OF THE SOCIETY AMONGST OTHER OBJECTS WA S TO RUN, MAINTAIN, MANAGE AND ADMINISTER LAXMAN PUBLIC SCHOOL SOCIETY IN HAUZ KHAS AREA, NEW DELHI. APART FROM THIS OBJECT, IT HAS VARIOUS O THER OBJECTS OF CHARITABLE NATURE WHICH HAS BEEN PROVIDED IN THE BY LAWS OF TH E SOCIETY. THE ASSESSEE HAS APPLIED FOR GRANT OF A REGISTRATION UNDER SEC. 12A(A) OF THE INCOME-TAX ACT, 1961WHICH WAS GRANTED TO IT VIDE REGISTRATION NO. 2887-88 DATED 4.11.1982. LEARNED DIRECTOR OF INCOME-TAX (EXEMPTIO N) SOUGHT TO CANCEL THIS REGISTRATION AND ISSUED A NOTICE FOR THIS PURP OSE ON 15.4.2010. AFTER HEARING THE ASSESSEE, LEARNED DIRECTOR OF INCOME-TA X (EXEMPTION) HAS PASSED THE IMPUGNED ORDER AND CANCELLED THE REGISTRATION W .E.F. ASSESSMENT YEAR 2007-08. THE LEARNED COUNSEL FOR THE ASSESSEE ON TH E STRENGTH OF HON'BLE DELHI HIGH COURTS DECISION RENDERED IN THE CASE OF DIRECTOR OF INCOME- TAX(EXEMPTION) VS. MOOL CHAND KHAIRATI LAL TRUST, R EPORTED IN 199 TAXMAN PAGE 1 SUBMITTED THAT REGISTRATION GRANTED UNDER SE C. 12A(A) CANNOT BE WITHDRAWN BY EXERCISING THE POWERS UNDER SEC. 12AA( 3) OF THE ACT WHICH HAS BEEN INFUSED IN THE LEARNED DIRECTOR OF INCOME- TAX (EXEMPTION) W.E.F. 11.10.2004, MEANING THEREBY THAT ONCE REGISTRATION GRANTED UNDER THE OLD PROVISION OF SEC. 12A, IT CANNOT BE WITHDRAWN, BECA USE NO MECHANISM FOR 3 CANCELLATION OF SUCH REGISTRATION WAS PROVIDED IN T HE ACT. HE FURTHER POINTED OUT THAT HON'BLE HIGH COURT HAS CONSIDERED THE SCHE ME OF GRANT OF REGISTRATION UNDER THE OLD PROVISIONS OF SEC. 12A(1 ) WHICH WAS INSERTED IN THE STATUTE BOOK BY FINANCE ACT, 1972 W.E.F. 1.4.19 73 AND THE LATEST SCHEME PROVIDED UNDER SEC. 12AA W.E.F. 1.4.1997. ACCORDING TO THE LEARNED COUNSEL FOR THE ASSESSEE, HON'BLE HIGH COURT HAS OBSERVED T HAT POWER TO CANCEL THE REGISTRATION GRANTED UNDER SEC. 12A WAS NOT AVAILAB LE WITH THE LEARNED DIRECTOR OF INCOME-TAX (EXEMPTION). THE POWERS TO C ANCEL THE REGISTRATION HAS BEEN PROVIDED BY VIRTUE OF SUB-SECTION (3) INCO RPORATED IN THE SECTION 12AA W.E.F. 1.10.2004 AND IT IS APPLICABLE ONLY IN RESPECT OF REGISTRATION GRANTED UNDER CLAUSE (B) OF SUB-SECTION (1) OF SEC. 12A OF THE ACT. THE ACT HAS BEEN FURTHER AMENDED W.E.F. 1.6.2010 BY VIRTUE OF SUCH AMENDMENT, THE POWERS VEST WITH THE LEARNED COMMISSIONER EVEN TO C ANCEL THE REGISTRATION GRANTED UNDER ANY OF THE CLAUSES OF SUB-SECTION(1) OF SEC. 12A OF THE ACT. HE PLACED ON RECORD COPY OF THE HON'BLE HIGH COURTS D ECISION. 3. LEARNED DR ON THE OTHER HAND WAS UNABLE TO CONTR OVERT THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE. HOWEVER, S HE POINTED OUT THAT ACT HAS BEEN AMENDED W.E.F. IST OF JUNE 2010 MEANING TH EREBY THE LEARNED COMMISSIONER HAS POWERS TO CANCEL THE REGISTRATION EVEN GRANTED UNDER SEC. 4 12A(A) OF THE ACT AFTER THIS DATE. THE LEARNED COMM ISSIONER HAS PASSED THE ORDER ON 29.10.2010, THEREFORE, ON SUCH DATE HE WAS HAVING THE JURISDICTION TO CANCEL THE REGISTRATION. ACCORDING TO THE LEARNE D DR, THEREFORE, THE JUDGMENT OF THE HON'BLE HIGH COURT IS NOT APPLICABL E ON THE FACTS OF THE PRESENT CASE. 4. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. THE FACTS OF THE PRESENT CASE ARE SIMILAR TO THE FACTS OF MOOL CHAND KHAIRATI LALS CASE. IN THAT CASE, REGISTRATI ON WAS GRANTED TO THE ASSESSEE ON 4.12.1974 UNDER SEC. 12A(A) OF THE ACT. IN THE CASE IN HANDS, REGISTRATION WAS GRANTED TO THE ASSESSEE ON 4.11.19 82 UNDER THE OLD SCHEME OF SEC. 12A I.E. 12A(A) OF THE ACT. THE ONLY DIFFER ENCE IS THAT IN THE CASE OF MOOL CHAND KHAIRATI LAL, LEARNED DIRECTOR OF INCOME -TAX (EXEMPTION) HAS PASSED THE ORDER ON 30.6.2009 WHEREAS IN THE PRESEN T CASE, SUCH ORDER HAS BEEN PASSED ON 29.10.2010. HONBLE COURT HAS CONSID ERED THE PROVISIONS OF SEC. 12A, 12AA(1)(B) AND 12AA(3) OF THE INCOME-TAX ACT, 1961. THE DISCUSSION MADE BY THE HONBLE COURT IN PARAGRAPH N OS. 5 TO 7 READS AS UNDER: 5. THERE IS ALSO NO DISPUTE THAT THE REGISTRATION, WHICH IS SOUGHT TO BE WITHDRAWN BY THE AUTHORITY, IS BY VIRTUE OF POWER V ESTED IN THE 5 COMMISSIONER UNDER SECTION 12AA(3) OF THE ACT. THE ORDER WHICH WAS PASSED BY THE DIT WAS UNDER SECTION 12AA(1)(B) READ WITH SECTION 12A OF THE ACT. FOR PROPER APPRECIATION OF THE RIVAL SUBMISSIONS BASED ON THE INTERPRETATION OF SECTIONS 12A AND 12AA(1)(B) AND 12AA(3), IT WOULD BE USEFUL TO REPRO DUCE RELEVANT PARTS OF THESE SECTIONS, WHICH ARE AS UNDER: 12A. [CONDITIONS FOR APPLICABILITY OF SECTIONS 11 A ND 12.] - THE PROVISIONS OF SECTION 11 AND SECTION 12 SHALL NOT A PPLY IN RELATION TO THE INCOME OF ANY TRUST OR INSTITUTION UNLESS THE F OLLOWING CONDITIONS ARE FULFILLED, NAMELY: (A) THE PERSON IN RECEIPT OF THE INCOME HAS MADE AN APP LICATION FOR REGISTRATION OF THE TRUST OR INSTITUTION IN THE PRESCRIBED FORM AND IN THE PRESCRIBED MANNER TO THE 8[***] COMMISSI ONER BEFORE THE 1ST DAY OF JULY, 1973, OR BEFORE THE EXP IRY OF A PERIOD OF ONE YEAR FROM THE DATE OF THE CREATION OF THE TR UST OR THE ESTABLISHMENT OF THE INSTITUTION, 9[WHICHEVER IS LA TER AND SUCH TRUST OR INSTITUTION IS REGISTERED UNDER SECTION 12 AA] : 12AA. PROCEDURE FOR REGISTRATION. - (1) THE 2[***] COMMISSIONER, ON RECEIPT OF AN APPLICATION FOR REGISTRATION OF A TRUST OR INSTITUTION MADE UNDER CLAUSE (A) [OR CLAUSE (AA) OF SUB-SECTIO N (1)] OF SECTION 12A, SHALL (A) CALL FOR SUCH DOCUMENTS OR INFORMATION FROM THE TRUST OR INSTITUTION AS HE THINKS NECESSARY IN ORDER TO SATI SFY HIMSELF ABOUT THE GENUINENESS OF ACTIVITIES OF THE TRUST OR INSTITUTION AND 6 MAY ALSO MAKE SUCH INQUIRIES AS HE MAY DEEM NECESSA RY IN THIS BEHALF; AND (B) AFTER SATISFYING HIMSELF ABOUT THE OBJECTS OF T HE TRUST OR INSTITUTION AND THE GENUINENESS OF ITS ACTIVITIES, HE (I) SHALL PASS AN ORDER IN WRITING REGISTERING THE TRUST OR INSTITUTION; (II) SHALL, IF HE IS NOT SO SATISFIED, PASS AN ORDE R IN WRITING REFUSING TO REGISTER THE TRUST OR INSTITUTION, AND A COPY OF SUCH ORDER SHALL BE SENT TO THE APPLI CANT : PROVIDED THAT NO ORDER UNDER SUB-CLAUSE(II) SHALL B E PASSED UNLESS THE APPLICANT HAS BEEN GIVEN A REASONABLE OP PORTUNITY OF BEING HEARD. (3) WHERE A TRUST OR AN INSTITUTION HAS BEEN GRANTE D REGISTRATION UNDER CLAUSE (B) OF SUB-SECTION (1) [OR HAS OBTAINE D REGISTRATION AT ANY TIME UNDER SECTION 12A [AS IT STOOD BEFORE I TS AMENDMENT BY THE FINANCE (NO.2) ACT, 1996 (33 OF 19 96)] AND SUBSEQUENTLY THE COMMISSIONER IS SATISFIED THAT THE ACTIVITIES OF SUCH TRUST OR INSTITUTION ARE NOT GENUINE OR ARE NO T BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECTS OF THE TRUST OR INSTITUTION, AS THE CASE MAY BE, HE SHALL PASS AN ORDER IN WRITING CANCELLING THE REGISTRATION OF SUCH TRUST OR INSTITUTION: 7 6. AT THE OUTSET, IT MAY BE PERTINENT TO NOTE THAT THE TITLE OF SECTION 12A CONDITIONS FOR APPLICABILITY OF SECTIO NS 11 AND 12 WAS SUBSTITUTED WITH EFFECT FROM 1ST JUNE, 2007 IN PLAC E OF PREVIOUS TITLE CONDITIONS AS TO REGISTRATION OF THE TRUSTS ETC. I T MEANS THAT PRIOR TO 1ST JUNE, 2007, THIS SECTION ITSELF PROVIDED CONDIT IONS REGARDING REGISTRATION OF TRUST ETC. IT IS NOTED HERE BECAUSE WITH THE SUBSTITUTION OF THE PRESENT TITLE, THIS SECTION NO LONGER PROVID ES FOR REGISTRATION OF TRUST ETC. A SPECIAL PROVISION HAS BEEN ENACTED IN SECTION 12AA PROVIDING FOR PROCEDURE FOR REGISTRATION OF TRUST E TC. WITH EFFECT FROM 1ST APRIL, 1997. IT IS ALSO NOTED THAT SECTION 12A WAS INSERTED IN THE STATUTE BOOK BY THE FINANCE ACT, 1972 WITH EFFECT F ROM 1ST APRIL, 1973. IT WAS OMITTED AND WAS AGAIN RESTORED WITH EF FECT FROM 1ST APRIL, 1989. SECTION 12A, AS IT STOOD AT THE TIME W HEN IT PROVIDED FOR REGISTRATION OF TRUST, NOWHERE PROVIDED FOR CANCELL ATION OF THE REGISTRATION ONCE GRANTED. IT IS ALSO PERTINENT TO NOTE THAT THE WORDS SUCH TRUST OR INSTITUTION IS REGISTERED UNDER SECT ION 12AA WERE ALSO SUBSTITUTED IN THIS SECTION WITH EFFECT FROM 1ST AP RIL, 1997. IN FACT, THIS SECTION EVEN NOW NOWHERE STIPULATES ABOUT THE CANCELLATION OR WITHDRAWAL OF THE REGISTRATION, ONCE GRANTED UNDER THE SAID SECTION. IT IS ONLY UNDER SECTION 12AA, WHICH CAME IN THE STATU TE BOOK WITH EFFECT FROM 1ST APRIL, 1997 THAT A FRESH PROCEDURE FOR REGISTRATION OF THE TRUST OR INSTITUTION IS PRESCRIBED. EVEN UNDER THIS SECTION 12AA, THERE WAS NO PROVISION FOR CANCELLATION OF REGISTRA TION ONCE GRANTED TILL THE ENACTMENT OF SUB-SECTION (3) WITH EFFECT FROM 1 ST OCTOBER, 2004. THERE IS NO DISPUTE WITH REGARD TO THIS FACT THAT T HE PROVISION REGARDING CANCELLATION OF REGISTRATION CAME TO BE INTRODUCED FOR THE FIRST TIME BY VIRTUE OF SUB-SECTION (3) IN SECTION 12AA WITH EFFE CT FROM 1ST 8 OCTOBER, 2004. THIS SUB-SECTION (3) PROVIDES THAT W HEN A TRUST OR AN INSTITUTION HAS BEEN GRANTED REGISTRATION UNDER CLA USE (B) OF SUB- SECTION 1 AND SUBSEQUENTLY THE COMMISSIONER IS SATI SFIED THAT THE ACTIVITIES OF SUCH TRUST OR INSTITUTION ARE NOT GEN UINE OR ARE NOT BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECTS OF THE T RUST OR INSTITUTION, AS THE CASE MAY BE, HE SHALL PASS AN ORDER IN WRITING CANCELLING THE REGISTRATION OF SUCH TRUST OR INSTITUTION. A PLAIN READING OF THIS PROVISION WOULD SHOW THAT SECTION 12AA EMPOWERED TH E CIT TO GRANT THE REGISTRATION IN THOSE CASES WHERE THE ASSESSEE APPLIED FOR SUCH REGISTRATION UNDER SUB-SECTION (1) THEREOF. SUB-SEC TION (1) PROVIDES THAT THE CIT ON RECEIPT OF AN APPLICATION FOR REGIS TRATION OF A TRUST OR INSTITUTION MADE IN CLAUSE (A) OR CLAUSE (AA) OF SU B-SECTION (1) OF SECTION 12A, SHALL (A) . (B) AFTER SATISFYING HIMSELF ABOUT THE OBJECTS OF THE T RUST OR INSTITUTION AND THE GENUINENESS OF ITS ACTIVITIES, - (I) SHALL PASS AN ORDER IN WRITING REGISTERING THE TRUS T OR INSTITUTION, (II) SHALL, IF HE IS NOT SO SATISFIED, PASS AN ORDER IN WRITING REFUSING TO REGISTER THE TRUST OR INSTITUTION. 7. FROM THE CONJOINT READING OF SUB-SECTION (1) CLA USE (B) AND SUB- SECTION (3) OF SECTION 12AA, IT WOULD BE SEEN THAT THE CANCELLATION OF THE REGISTRATION WAS PROVIDED WHERE THE REGISTRATIO N WAS GRANTED UNDER CLAUSE (B) OF SUB-SECTION (1). FURTHER CANCELLATION UNDER SUB-SECTION (3) WAS ALSO PROVIDED WHERE THE REGISTRATION WAS OB TAINED AT ANY TIME UNDER SECTION 12A (MAY BE UNDER CLAUSE (A) OR CLAUS E (AA) OF SUB- 9 SECTION (1) OF SECTION 12A). BUT THIS POWER OF CANC ELLATION OF REGISTRATION OBTAINED UNDER SECTION 12A CAME TO BE INCORPORATED BY WAY OF AMENDMENT INTRODUCED BY THE FINANCE ACT, 201 0 WITH EFFECT FROM 1ST JUNE, 2010. THAT BEING THE INTERPRETATION OF SUB-SECTION (3), IT IS AMPLY CLEAR THAT THE POWER TO CANCEL THE REGI STRATION ONCE GRANTED WAS ONLY CONFINED TO THE REGISTRATION GRANTED UNDER CLAUSE (B) OF SUB- SECTION 1 OF SECTION 12AA TILL BEFORE 1ST JUNE, 201 0. OF COURSE, NOW WITH EFFECT FROM 1ST JUNE, 2010, THE POWER VESTS WI TH THE COMMISSIONER EVEN TO CANCEL THE REGISTRATION GRANTE D UNDER ANY OF THE CLAUSES OF SUB-SECTION (1) OF SECTION 12A. IN THAT VIEW OF INTERPRETATION, WE ARE OF THE CONSIDERED VIEW THAT THERE WAS NO POWER VESTED WITH THE COMMISSIONER TO CANCEL OR WITHDRAW THE REGISTRATION GRANTED TO THE ASSESSEE UNDER SECTION 12A(A) IN THE YEAR 1974. 5. THUS, IF WE COMPARE THE FACTS OF BOTH THE CASES THEN IT WOULD REVEAL THAT THERE IS NO DISPARITY. THE DISTINGUISHING FEAT URE BETWEEN THE TWO CASES IS THAT THE IMPUGNED ORDER HAS BEEN PASSED BY THE LEAR NED DIRECTOR OF INCOME- TAX (EXEMPTION) ON 29.10.2010 I.E. SUBSEQUENT TO TH E AMENDMENT EFFECTED IN SUB-SECTION (3) OF SEC. 12AA WHEREBY LEARNED COMMIS SIONER HAS BEEN EMPOWERED TO CANCEL THE REGISTRATION GRANTED UNDER SEC. 12A(A) OF THE ACT. THIS AMENDMENT HAS BEEN EFFECTED W.E.F. 1.6.2010. L EARNED COMMISSIONER HAD ISSUED A NOTICE FOR CANCELLATION OF THE REGISTR ATION ON 15.4.2010. AT THAT 10 POINT OF TIME, HE WAS NOT HAVING ANY POWER TO CANCE L SUCH REGISTRATION. THEREFORE, THE VERY FOUNDATION TO INITIATE PROCEEDI NGS AGAINST THE ASSESSEE FOR CANCELLATION OF THE REGISTRATION IS ERRONEOUS. HAD THE LEARNED COMMISSIONER ISSUED THE NOTICE AFTER 1.6.2010, THEN PROBABLY ISSUE COULD BE DESERVES TO BE EXAMINED ON MERIT WHETHER SUCH REGIS TRATION CAN BE CANCELLED OR NOT. BUT ON 15.4.2010, LEARNED DIRECTOR OF INCOM E-TAX (EXEMPTION) WAS NOT HAVING ANY POWER TO ISSUE SUCH SHOW-CAUSE NOTIC E. SINCE THE NOTICE WAS ISSUED PRIOR TO 1.6.2010, THE PARTIES HAVE NOT ADDR ESSED ANY ARGUMENT WHETHER LEARNED DIRECTOR OF INCOME-TAX (EXEMPTION) COULD WITHDRAW THE REGISTRATION W.E.F. ASSESSMENT YEAR 2007-08 OR IT C OULD BE WITHDRAWN ONLY AFTER THE PERIOD STARTING FROM 1.6.2010. WE HAVE NO T GONE INTO THIS ISSUE BECAUSE THE NOTICE WAS ERRONEOUS. NO DISCUSSION IS DISCERNIBLE FROM THE IMPUGNED ORDER AND THE PARTIES HAVE NOT ADVANCED AN Y ARGUMENT. RESPECTFULLY, FOLLOWING THE ORDER OF THE HON'BLE DE LHI HIGH COURT, WE ARE OF THE VIEW THAT WHEN LEARNED COMMISSIONER INITIATED T HE PROCEEDINGS FOR CANCELLATION OF REGISTRATION, HE WAS NOT HAVING ANY POWER. THEREFORE, HE CANNOT CANCEL THE REGISTRATION W.E.F. ASSESSMENT YE AR 2007-08. 6. IN VIEW OF THE ABOVE DISCUSSION, THE IMPUGNED OR DER IS SET ASIDE AND THE APPEAL OF THE ASSESSEE IS ALLOWED. LEARNED DIRE CTOR OF INCOME-TAX 11 (EXEMPTION) IS DIRECTED TO RESTORE THE REGISTRATION GRANTED UNDER SEC. 12A(A) OF THE ACT. ITA NO.5467/DEL/2010 : 7. IN THIS APPEAL, FIRST GRIEVANCE OF THE ASSESSEE IS THAT THE LEARNED CIT(APPEALS) HAS ERRED IN HOLDING THAT PROVISIONS O F SEC. 13(3) IS APPLICABLE TO THE ADVANCE GIVEN TO MRS. SK AGGARWAL, CHAIR PER SON OF THE TRUST FOR THE PURCHASE OF LAND AMOUNTING TO RS.1,18,05,316 AND BE NEFIT OF SECTION 11(1) OF THE ACT WOULD NOT BE ADMISSIBLE. 8. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED ITS RETURN OF INCOME ON 25.3.2009 DECLARING A DEFICIT/LOSS AMOUNT ING TO RS.81,68,507. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND A NOTICE UNDER SECTION 143(2) WAS ISSUED AND SERVED UPON THE ASSESSEE. IN RESPONSE TO THE NOTICE, SHRI NIREN GUPTA, CA AND SHRI ANUPAM SH ARMA, CA APPEARED BEFORE THE ASSESSING OFFICER FROM TIME TO TIME. ON SCRUTINY OF THE ACCOUNTS, IT REVEALED TO THE ASSESSING OFFICER THAT THE ASSES SEE HAS DEBITED A SUM OF RS.1,18,05,316 BEING ADVANCE FOR PURCHASE OF LAND, FROM INCOME AND LOSS ACCOUNT OF THE SCHOOL. ACCORDING TO THE ASSESSEE, I T WAS AN APPLICATION OF INCOME. ASSESSING OFFICER DIRECTED THE ASSESSEE TO FILE COPY OF THE 12 AGREEMENT FOR PURCHASE OF THE LAND, COPY OF SALE DE ED, IF ANY, AND ALSO DIRECTED THE ASSESSEE TO EXPLAIN HOW THE ADVANCE FO R PURCHASE OF LAND IS ELIGIBLE TOWARDS APPLICATION OF INCOME DURING THE Y EAR. ASSESSING OFFICER HAS PROVIDED NUMBER OF OPPORTUNITIES TO THE ASSESSE E BUT ASSESSEE DID NOT FILE THESE DOCUMENTS. IT POINTED OUT THAT THE DOCUM ENTS CONTAINING RECEIPT FOR PAYMENT AND AGREEMENT TO SELL HAVE BEEN MISPLACED. ASSESSING OFFICER HAS OBSERVED THAT AUDITORS HAVE POINTED OUT THAT PURCHA SE OF LAND WAS SUBJECT TO VERIFICATION, MEANING THEREBY THAT AUDITORS WERE NO T SATISFIED ABOUT THE CLAIM OF ASSESSEE. ACCORDING TO THE ASSESSING OFFICER, MR S. SK AGGARWAL, CHAIR PERSON IS AN INDIVIDUAL, FALLING WITHIN THE AMBIT O F SEC. 13(3) OF THE ACT, THEREFORE, ANY BENEFIT PROVIDED TO A SPECIFIED PERS ON AS PER SEC. 13(3) THEN THE BENEFIT OF SEC. 11 AND 12 FOR EXEMPTION OF TAX WOULD NOT BE AVAILABLE. THE ASSESSEE FAILED TO PROVIDE ANY EVIDENCE JUSTIFY ING THE CLAIM THAT LAND WAS PURCHASED FOR THE SOCIETY AND IT WAS PURCHASED FOR FULFILLMENT OF ITS OBJECTS. HENCE, HE DID NOT GRANT BENEFIT OF SECTION S 11 AND 12 ON THIS AMOUNT. 9. APPEAL TO THE LEARNED CIT(APPEALS) DID NOT BRING ANY RELIEF TO THE ASSESSEE. 13 10. BEFORE US ALSO, LEARNED COUNSEL FOR THE ASSESSE E FAILED TO PRODUCE THE COPY OF THE SALE DEED, COPY OF THE AGREEMENT AND AN Y OTHER EVIDENCE EXHIBITING THE FACT THAT THE LAND WAS PURCHASED FOR THE OBJECTS OF THE SOCIETY. HE ONLY RAISED PERIPHERAL ISSUE THAT MRS. AGGARWAL WAS AUTHORIZED TO NEGOTIATE THE PURCHASE AND, THEREFORE, AMOUNT WAS T RANSFERRED TO HER ACCOUNT. ON OUR QUERY, HE ACCEPTED THAT ULTIMATELY LAND WAS PURCHASED IN THE NAME OF MRS. AGGARWAL IN SUBSEQUENT YEARS. 11. LEARNED DR ON THE OTHER HAND RELIED UPON THE OR DER OF THE LEARNED CIT(APPEALS). SHE POINTED OUT THAT THERE IS NO EVID ENCE ON RECORD WHICH CAN JUSTIFY THAT ADVANCES PAID TO MRS. AGGARWAL WAS TOW ARDS THE FULFILLMENT OF OBJECTS OF THE TRUST. IF SOMETHING HAS BEEN GIVEN F OR THE PERSONAL BENEFIT OF THE PERSONS SPECIFIED IN SEC. 13(3) THEN BENEFIT OF EXEMPTION UNDER SEC. 11 WOULD NOT BE ADMISSIBLE TO THE ASSESSEE. 12. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS A ND GONE THROUGH THE RECORD CAREFULLY. FOR BETTER APPRECIATION OF THE IS SUE, IT IS IMPERATIVE UPON US TO TAKE COGNIZANCE OF THE RELEVANT PORTION OF SEC. 13 OF THE ACT, WHICH READ AS UNDER: 14 13. (1) NOTHING CONTAINED IN SECTION 11 37 [OR SECTION 12 ] SHALL OPERATE SO AS TO EXCLUDE FROM THE TOTAL INCOME OF THE PREVI OUS YEAR OF THE PERSON IN RECEIPT THEREOF ( A ) ANY PART OF THE 38 INCOME FROM THE PROPERTY HELD UNDER A TRUST FOR PRIVATE RELIGIOUS PURPOSES WHICH DOES NOT ENURE FOR THE BENEFIT OF THE PUBLIC; ( B ) IN THE CASE OF A TRUST FOR CHARITABLE PURPOSES OR A CHARITABLE INSTITUTION CREATED OR ESTABLISHED AFTER THE COMMEN CEMENT OF THIS ACT, ANY INCOME THEREOF IF THE TRUST OR INSTITUTION IS CREATED OR ESTABLISHED FOR THE BENEFIT OF ANY PARTICULAR RELIG IOUS COMMUNITY OR CASTE; ( BB ) 39 [* * *] ( C ) IN THE CASE OF A TRUST FOR CHARITABLE OR RELIGIOU S PURPOSES OR A CHARITABLE OR RELIGIOUS INSTITUTION, ANY INCOME THE REOF ( I ) IF SUCH TRUST OR INSTITUTION HAS BEEN CREATED OR ESTABLISHED AFTER THE COMMENCEMENT OF THIS ACT AND UNDER THE TERMS OF THE TRUST OR THE RULES GOVERNING THE INSTITUTION, ANY PART OF SU CH INCOME ENURES, OR ( II ) IF ANY PART OF SUCH INCOME OR ANY PROPERTY OF THE TRUST OR THE INSTITUTION (WHENEVER CREATED OR ESTABLISHED) IS DU RING THE PREVIOUS YEAR USED OR APPLIED, DIRECTLY OR INDIREC TLY FOR THE BENEFIT OF ANY PERSON REFERRED TO IN SUB-SECTION (3 ) : 13. A BARE PERUSAL OF CLAUSE (C) OF SUB-SEC. (1I) W OULD MAKE IT CLEAR THAT IF PART OF INCOME OF THE TRUST OR ANY PROPERTY DURING THE PREVIOUS YEAR USED OR 15 APPLIED DIRECTLY OR INDIRECTLY FOR THE BENEFIT OF A NY PERSON REFERRED TO UNDER SUB-SECTION (3) THEN SEC. 11 WOULD NOT OPERATE FOR EXCLUSION OF SUCH INCOME FROM THE TAXABILITY. ADMITTEDLY, MRS. S.K.AGGARWAL IS A SPECIFIED PERSON, NO DISPUTE HAS BEEN RAISED BY THE LEARNED COUNSEL FOR THE ASSESSEE AT THE TIME OF ARGUMENTS. SHE IS THE CHAIR-PERSON OF THE INSTITUTI ON AND AN ADVANCE OF RS.1,18,05,316 WAS GIVEN TO HER. IT WAS NOT USED FO R THE PURPOSE OF THE OBJECTS OF THE SOCIETY, RATHER IT WAS USED FOR THE BENEFIT OF MRS. AGGARWAL, MEANING THEREBY SECTION 11 WILL NOT BE APPLICABLE O N THIS AMOUNT IN ORDER TO EXCLUDE THIS AMOUNT FROM THE TOTAL INCOME OF THE AS SESSEE FOR THE PURPOSE OF THE TAX. IN OTHER WORDS, SECTION 11 EXEMPTS THE IN COME OF THE TRUST FROM TAXATION BUT SEC. 13 PROVIDES TAXABILITY OF CERTAIN INCOMES IF THESE WERE NOT APPLIED OR USED FOR THE FULFILLMENT OF THE OBJECTS OF THE TRUST. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL. IT IS REJECTED. 14. GROUND NOS. 2 & 3 ARE INTER-CONNECTED TO EACH O THER. IN THESE GROUNDS OF APPEAL, THE CONTENTION OF THE ASSESSEE IS THAT L EARNED CIT(APPEALS) HAS ERRED IN HOLDING THAT THE CONTRIBUTION TOWARDS BENE VOLENT FUND AMOUNTING TO RS.57,70,000 IS AN INCOME OF THE ASSESSEE. SIMILARL Y, THE AMOUNT OF RS.18,31,266 RECEIVED TOWARDS DEVELOPMENT FUND, RS. 68,660 TOWARDS 16 MEDICAL WELFARE AND RS.44,135 TOWARDS SPECIAL FUND ARE ALSO TO BE HELD AS INCOME OF THE ASSESSEE. WITH THE ASSISTANCE OF LEAR NED REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. THE ASSESS EE HAS POINTED OUT THAT STUDENTS HAVE PAID DONATIONS AT THE TIME OF ADMISSI ON WHICH WAS TO BE USED TOWARDS DEVELOPMENT OF THE SOCIETY. SIMILARLY, THE SOCIETY HAS RECEIVED RS.15,000 FROM EACH STUDENT AS BENEVOLENT FUND. ACC ORDING TO THE ASSESSEE, OVER THESE AMOUNTS, THERE WAS AN OVERRIDING TITLE O F SPENDING THESE AMOUNTS FOR THE WELFARE OF THE STUDENTS. THUS, THEY DO NOT FORM PART OF TOTAL INCOME OF THE ASSESSEE. 15. LEARNED COMMISSIONER HAS HELD THAT IT IS JUST A CAPITATION FEE FORCIBLY RECEIVED BY THE ASSESSEE AT THE TIME OF ADMISSION A ND IT HAS NO OTHER CHARACTER THEN INCOME OF THE ASSESSEE. LEARNED COMM ISSIONER MADE A REFERENCE TO THE JUDGMENT OF THE HON'BLE SUPREME CO URT IN THE CASE OF MISS MOHINI JAIN VS. STATE OF KARNATAKA REPORTED IN (992 ) VOL.2 (SCC) PAGE 666. ON AN ANALYSIS OF THE FACTS AND CIRCUMSTANCES, WE F IND THAT ASSESSEE HAS NOT CREATED ANY BENEVOLENT FUND ACCOUNT. THE PROSPECTUS ALSO DOES NOT MENTION ABOUT CONTRIBUTION TO BE MADE BY THE PARENTS TOWARD S THE BENEVOLENT FUND. THERE IS NO CONDITION STIPULATED IN THE ALLEGED DON ATION MADE BY THE PARENTS THAT IT WILL BE TOWARDS CORPUS DONATION. THE ASSESS EE IS NOT HAVING ANY DETAIL 17 EXCEPT COPY OF THE RECEIPT EXHIBITING THE RECEIPT O F AMOUNT. ONE SUCH SAMPLE HAS BEEN PLACED AT PAGE 32 OF THE PAPER BOOK. THUS, TAKING INTO CONSIDERATION THE NATURE OF AMOUNT RECEIVED BY THE ASSESSEE, WE ARE OF THE VIEW THAT IT IS AN INCOME OF THE ASSESSEE. THERE IS NO SUCH OVERRIDING TITLE ON SUCH ALLEGED DONATIONS. IT APPEARS THAT AS A CONDIT ION PRECEDENT FOR ADMISSION, ASSESSEE CHARGED THESE AMOUNTS FROM THE STUDENTS. THEREFORE, AFTER TAKING INTO CONSIDERATION THE DISCUSSION MADE BY THE LEARNED REVENUE AUTHORITIES, WE DO NOT FIND ANY MERIT IN THE CONTEN TIONS OF THE ASSESSEE. HOWEVER, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED AT THE TIME OF ARGUMENT THAT IT HAS INCURRED CERTAIN EXPENDITURE TOWARDS ME DICAL WELFARE AND DEVELOPMENT ACTIVITIES. THE GROSS AMOUNT CANNOT BE TAXED. ONLY THE NET AMOUNT WOULD BE THE TAXABLE INCOME OF THE ASSESSEE. WE REMIT THIS ISSUE FOR A LIMITED PURPOSE TO THE ASSESSING OFFICER TO VERIF Y THE EXPENSES, IF ANY, RELATING TO THESE RECEIPTS AND ALSO VERIFY WHETHER SUCH EXPENSES HAVE BEEN CLAIMED IN THE TOTAL EXPENSES WHILE WORKING OUT THE INCOME AND EXPENDITURE ACCOUNT FOR THE PURPOSE OF APPLICATION OF INCOME. H E SHALL ALSO LOOK INTO THAT THE EXPENSES SHOULD NOT HAVE BEEN INCURRED ON THE P ERSONS SPECIFIED IN SEC. 13(3) OF THE ACT. THEY SHOULD BE FOR THE OBJECT OF THE SOCIETY. ANY EXCESS WOULD BE INCLUDED IN THE TOTAL INCOME OF THE ASSESS EE. GROUND NO.3 IS ALLOWED PARTLY FOR STATISTICAL PURPOSES WHEREAS GRO UND NO.2 IS REJECTED. 18 16. IN GROUND NO.4, ASSESSEE HAS PLEADED THAT LEARN ED CIT(APPEALS) HAS ERRED IN TREATING THE SUM OF RS.29,50,000 AS INCOME INSTEAD OF CORPUS DONATION CLAIMED BY THE ASSESSEE. THE LEARNED COUNS EL FOR THE ASSESSEE DID NOT PRESS THIS GROUND OF APPEAL, THEREFORE, IT IS R EJECTED. 17. GROUND NOS. 5, 7 AND 8 ARE INTER-CONNECTED TO E ACH OTHER. IN THESE GROUNDS, ASSESSEE HAS PLEADED THAT LEARNED CIT(APPE ALS) HAS ERRED IN UPHOLDING THE TAXATION OVER THE ASSESSEE IN THE STA TUS OF AOP AND APPLICATION OF TAX RATE AT MAXIMUM MARGINAL RATE. ASSESSEE ALSO PLEADED THAT LEARNED CIT(APPEALS) WAS WRONG TO UPHOLD THE COMPUTATION OF INCOME BY APPLYING THE PROVISIONS OF CHAPTER IV OF THE INCOME-TAX ACT, 1961. LEARNED DR AT THE VERY OUTSET SUBMITTED THAT ASSESSEE ITSELF HAS MENT IONED ITS STATUS AS AOP. SHE DREW OUR ATTENTION TOWARDS CLAUSE NO.V OF PAGE 1 OF THE ASSESSMENT ORDER. ON THE OTHER HAND, LEARNED COUNSEL FOR THE A SSESSEE POINTED OUT THAT NEITHER THE ASSESSING OFFICER NOR THE LEARNED FIRST APPELLATE AUTHORITY HAS MADE ANY DISCUSSION ON THESE ISSUES. HE ALSO SUBMIT TED THAT THE ASSESSEE HAS TAKEN SPECIFIC GROUND BEFORE THE LEARNED FIRST APPE LLATE AUTHORITY. 18. ON DUE CONSIDERATION OF THE LEARNED CIT(APPEALS )S ORDER, WE FIND THAT ON PAGE 7, LEARNED FIRST APPELLATE AUTHORITY H AS JUST MADE THE 19 REFERENCE IN ONE LINE I.E. ASSESSEE IS RUNNING THE EDUCATIONAL INSTITUTION ON COMMERCIAL LINE AND NOT FOR CHARITABLE PURPOSES, TH EREFORE, ASSESSING OFFICER HAS CORRECTLY TAXED THE APPELLANT AS THAT AOP. WE DO NOT FIND ANY REASONING DISCERNIBLE FOR ARRIVING AT THIS CONCLUSION. LEARNE D FIRST APPELLATE AUTHORITY HAS NOT TOUCHED OTHER ISSUES CONNECTED WITH THE DET ERMINATION ON STATUS OF ASSESSEE AS AOP. TO OUR MIND, BASIC REASON FOR NOT MAKING ANY ELABORATE DISCUSSION AT THE END OF LEARNED CIT(APPEALS) MUST BE THE NON-COOPERATION OF THE ASSESSEE AND THE COMPELLING CIRCUMSTANCES UN DER WHICH LEARNED FIRST APPELLATE AUTHORITY HAS TO PROCEED TO DECIDE THE AP PEAL. AT ONE OCCASION, LEARNED CIT(APPEALS) WAS OF THE OPINION THAT APPEAL DESERVES TO BE DISMISSED FOR WANT OF PROSECUTION BUT THEN HE PROCE ED ON DECIDE IT ON MERIT. CONSIDERING THESE ASPECTS AND THE NON-AVAILABILITY OF ANY DISCUSSION EITHER IN THE ASSESSMENT ORDER OR IN THE LEARNED CIT(APPEALS) S IMPUGNED ORDER, WE REMIT THE ISSUES RAISED IN GROUND NOS. 5, 7 AND 8 T O THE FILE OF THE LEARNED CIT(APPEALS) FOR READJUDICATION. 19. IN GROUND NO.6, ASSESSEE HAS CHALLENGED CHARGEA BILITY OF INTEREST UNDER SEC. 234A AND 234B OF THE ACT. CHARGING OF IN TEREST WOULD BE CONSEQUENTIAL IN NATURE. 20 20. IN ITA NO.2876/DEL/2011, ASSESSEE HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL: 1. THAT THE LEARNED CIT(APPEALS) WAS WRONG TO UPHOLD T HE APPLICATION OF THE PROVISION OF SEC. 13(3) AND DENI AL OF THE BENEFIT U/S. 11 OF THE ACT. 2. THAT THE LEARNED CIT(APPEALS) WAS WRONG TO CONFIRM THAT THE ORDER OF THE DIRECTOR OF INCOME-TAX (EXEMPTION) PAS SED UNDER SEC. 12AA(3) ON 29.10.2010 IS APPLICABLE TO THIS AS SESSMENT YEAR. 3. THAT THE LEARNED CIT(APPEALS) WAS WRONG TO CONFIRM THE INCLUSION OF RS.6500000 RECEIVED AS BENEVOLENT FUND , IN THE COMPUTATION OF THE TOTAL INCOME. THE SAME BE EXCLUD ED IN THE FACTS OF THE CASE AND AS PER LAW. 4. THAT THE LEARNED CIT(APPEALS) WAS WRONG TO CONFIRM THE INCLUSION OF RS.2076068 IN RESPECT OF THE DEVELOPME NT FUND AND RS.118806 IN RESPECT OF THE MEDICAL FUND IN THE TOT AL INCOME. 5. THAT THE LEARNED CIT(APPEALS) WAS WRONG TO CONFIRM THE FOLLOWING RECEIPTS AS INCOME: (I) RS.735486 RECEIVED IN ACCOUNT OF PARENT TEACHERS ASSOCIATION. (II) RS.257500 RECEIVED AS CAUTION MONEY FROM THE STUDEN TS. (III) RS.7025000 RECEIVED AS CORPUS DONATION. 6. THAT THE LEARNED CIT(APPEALS) HAS WRONGLY CONFIR MED: (I) THE COMPUTATION OF INCOME UNDER CHAPTER IV OF THE I .T. ACT. 21 (II) TO CALCULATE THE TAX PAYABLE BY APPLYING THE MAXIMU M MARGINAL RATE. (III) TO CHARGE INTEREST U/S. 234A OF THE ACT. (IV) TO DETERMINE THE STATUS OF THE ASSESSEE AS AN A.O.P . 7. THAT THE LEARNED CIT(APPEALS) WAS WRONG TO REJEC T THE CONTENTION THAT THE ASSESSEE IS A MUTUAL SOCIETY AN D THAT ITS INCOME IS NOT LIABLE TO TAX. 8. THAT THE LEARNED CIT(APPEALS) WAS WRONG TO HOLD THAT THE ASSESSEE IS CARRYING ON COMMERCIAL ACTIVITY AND IS NOT A CHARITABLE INSTITUTION FOR CHARITABLE PURPOSES. 9. THAT THE LEARNED CIT(APPEALS) WAS WRONG TO REJEC T THE APPEAL WITHOUT PROPER CONSIDERATION OF THE SUBMISSION. THE APPEAL OF THE ASSESSEE BE ALLOWED. 21. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. WE FIND THAT LEARNED FIRST A PPELLATE AUTHORITY HAS JUST REPRODUCED THE GROUND OF APPEAL, DISCUSSION MADE BY THE ASSESSING OFFICER AND THE OBSERVATIONS OF THE DIRECTOR OF INCOME-TAX (EXEMPTION) IN THE ORDER DATED 29.10.2010 WHEREBY HE CANCELLED THE REGISTRAT ION UNDER SEC. 12A OF THE ACT. LEARNED CIT(APPEALS) THEREAFTER REPRODUCED THE LETTER OF ASSESSEE DATED 30.3.2011. HIS OWN CONTRIBUTION IN THE ORDER RUNNING INTO 13 PAGES IS ONLY FEW LINES WHICH READ AS UNDER: 3.8 I HAVE GONE THROUGH THE FINDINGS OF THE A.O. A ND WRITTEN SUBMISSION OF THE LEARNED AR IN THIS REGARD. I RESP ECTFULLY RELY ON THE 22 FINDING OF MY PREDECESSOR FOR A.Y. 2007-08, WHEREIN , HE HAS DECIDED THE ISSUE AGAINST APPELLANT VIDE ORDER DATED 30.9.2 008 BY OBSERVING THAT ACTIVITY OF APPELLANT IS ON COMMERCIAL LINE A ND NOR FOR CHARITABLE PURPOSES. HENCE, ACTION OF THE A.O. DESERVES TO BE CONFIRMED. GROUND NOS. 1 TO 6 ARE DISMISSED. 4. GROUND NO. 7(I)(II) & (IV) ARE ALREADY COVERED BY THE DECISION TAKEN ON GROUND NOS. 1 TO 6. GROUND NO. 7(III), CHA RGING OF INTEREST U/S. 234A AND 234B ARE MANDATORY, HENCE DISMISSED. 5. GROUND NO.8 IS GENERAL. 22. SINCE WE HAVE ALLOWED THE APPEAL OF ASSESSEE AN D RESTORED THE REGISTRATION CANCELLED UNDER SEC. 12A OF THE ACT, T HE ISSUES ARE TO BE EXAMINED AFRESH IN THE LIGHT OF AVAILABILITY OF REG ISTRATION UNDER SEC. 12A OF THE ACT TO THE ASSESSEE. THE IMPUGNED ORDER OF THE LEARNED CIT(APPEALS) CANNOT BE TERMED TO BE A SPEAKING ORDER. LEARNED FI RST APPELLATE AUTHORITY HAS NOT ASSIGNED ANY REASON AS TO HOW HE CONCURRED WITH THE CONCLUSION OF THE ASSESSING OFFICER. SUB-SECTION (6) OF SEC. 250 MANDATES THE LEARNED CIT(APPEALS) TO STATE THE POINT IN DISPUTE FOR DETE RMINATION AND THEN RECORD REASONS IN RESPECT OF HIS CONCLUSIONS. THE IMPUGNED ORDER IS NOT IN THE SPIRIT OF SUB-SECTION (6) OF SEC. 250, THEREFORE, WE SET A SIDE THE IMPUGNED ORDER RESTORED ALL THESE ISSUES TO THE FILE OF THE LEARNE D CIT(APPEALS) FOR THE 23 ASSESSEE FOR READJUDICATION. LEARNED FIRST APPELLAT E AUTHORITY SHALL KEEP IN MIND THAT REGISTRATION UNDER SEC. 12A OF THE ACT HA S BEEN RESTORED TO THE ASSESSEE AND THE ISSUES ARE TO BE EXAMINED IN THE L IGHT OF THE REGISTRATION AVAILABLE TO THE ASSESSEE. IT IS NEEDLESS TO SAY TH AT THE OBSERVATIONS MADE BY US WILL NOT IMPAIR OR INJURE THE CASE OF A.O. OR WO ULD NOT CAUSE ANY PREJUDICE TO THE DEFENCE/EXPLANATION OF THE ASSESSE E. LEARNED FIRST APPELLATE AUTHORITY SHALL PROVIDE DUE OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE ADJUDICATING THE ISSUES. ACCORDINGLY, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 23. IN THE RESULT, ITA NO.5797/DEL/2010 IS ALLOWED WHEREAS ITA NO.5467/DEL/2010 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND ITA NO.2876/DEL/2011 IS ALLOWED FOR STATISTICAL PURPOSE S. DECISION PRONOUNCED IN THE OPEN COURT ON 14.10.20 11 SD/- SD/- (G.E. VEERABHADRAPPA ) ( RAJPAL YADAV ) VICE-PRESIDENT J UDICIAL MEMBER DATED: 14/10/2011 MOHAN LAL 24 COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR