Shree Kalika Mataji Temple Public Trust, Panchmahal V. The Deputy Commissioner of Income Tax, (Exemptions), Circle-2, Ahmedabad

ITA 939/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4113 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 17-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L MEENA
• Assessee Lawyers: SUNIL H TALATI
• Keywords: Charitable institution; Assessment record; Reason to believe
• Section: 147; 143(3); 12AA

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO. 939/AHD/2017 ( ASSESSMENT YEAR : 2012-13) SHRI KALIKA MATAJI TEMPLE PUBLIC TRUST PAVAGADH, HALOL 389350 DIST. PANCHMAHAL / VS. DY. COMMISSIONER OF INCOME TAX (EXEMPTIONS) CIRCLE 2, AHMEDABAD ./ ./ PAN/GIR NO. : AAATK1776H ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI SUNIL H. TALATI, A.R. / RESPONDENT BY : SHRI B. L. MEENA, SR.D.R. DATE OF HEARING 08/02/2019 !'# / DATE OF PRONOUNCEMENT 15/02/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-9, AHMEDAB AD (CIT(A) IN SHORT), DATED 10.01.2017 ARISING IN THE ASSESSMENT ORDER DATED 23.03.2015 PASSED BY THE ASSESSING OFFICER (AO) UND ER S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CONCERNING AY 2 012-13. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA D AS UNDER: ITA NO. 939/AHD/17 [SHRI KALIKA MATAJI TEMPLE PUBLIC TRUST VS. DCIT] A.Y. 2012-13 - 2 - 1. THE LD. CIT (APPEALS) HAS ERRED & CONFIRMING TH E PROVISIONS OF SECTION 11(3)(C) AND HAS INCORRECTLY AND ILLEGAL LY ERRED IN CONFIRMING THE ADDITION OF RS. 1,91,45,052/-. IT IS SUBMITTED THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E ADDITION IS NOT JUSTIFIED AND ADDITION BE DELETED. 2. WITHOUT PREJUDICE TO THE ABOVE THE LD CIT (APPEA LS), BARODA HAS ERRED IN NOT APPRECIATING THE FACT THAT IT WAS IMPOSSIBILITY OF THE SITUATION THAT THE TRUST COULD NOT HAVE SPEN T THE MONEY ACCUMULATED IN A.Y. 2006-07 AND COMPLIED WITH THE P ROVISIONS OF INCOME TAX ACT. IT IS SUBMITTED THAT THE ACTS AN D DEEDS OF THE TRUST, RESOLUTIONS PASSED AND THE ORDERS PASSED BY THE STATE GOVERNMENT / DISTRICT COLLECTOR CLEARLY SHOW THAT I T WAS JUST NOT POSSIBLE FOR THE TRUST TO SPEND THE AMOUNT OF R S. 1,91,45,052/- ACCUMULATED. IT IS SUBMITTED THAT IN VIEW OF THIS, THE TRUST SHOULD BE ALLOWED TO SPEND THE MONEY, AS PER THE RESOLUTION, AS AND WHEN THE ORDERS, WHICH ARE CHALL ENGED IN THE COURTS ARE CANCELLED AND THE TRUST IN A POSITIO N TO BUY THE LAND AND SPEND THE AMOUNT AS PER THE RESOLUTIONS. I T IS SUBMITTED THAT IT BE HELD SO NOW. 3. WITHOUT PREJUDICE TO THE ABOVE IT IS SUBMITTED THAT THE TRUST BE ALLOWED TO SPEND THE AMOUNT ACCUMULATED AS SOON AS IT IS LEGALLY POSSIBLE FOR IT TO SPEND THE SAME. IT IS SU BMITTED THAT DIRECTION BE GIVEN ACCORDINGLY. ALTERNATIVELY, THE TRUST BE ALLOWED TO SPEND THE MONEY FOR OTHER OBJECTS OF THE TRUST NOT WITHSTANDING THE RESOLUTION PASSED AND THE TRUST BE ALLOWED TO DO VARIATIONS ACCORDINGLY AND THE ADDITION OF RS.1, 91,450,52/- MADE BE DELETED. 2. THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A). 4. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED AR FOR THE ASSESSEE POINTED OUT AT THE OUTSET THAT THE ASSESSE E IS A CHARITABLE TRUST AND IT HAS ACCUMULATED AN AMOUNT OF RS.1,91,45,052/ - IN FY 2005-06 BY PASSING APPROPRIATE RESOLUTION. IT WAS SUBMITTE D THAT THE AMOUNTS SO ACCUMULATED COULD NOT BE UTILIZED FOR THE PURPOS ES FOR WHICH IT WAS SO ACCUMULATED OR SET APART FOR APPLICATION THERETO OWING TO CIRCUMSTANCES BEYOND THE CONTROL OF THE TRUST AS CL ARIFIED TO THE COMMISSIONER OF INCOME TAX (APPEALS)-9, AHMEDABAD. THE TRUST COULD NOT SPENT THE ACCUMULATION OF SURPLUS IN TIME DUE TO THE FACT THAT THE PERMISSIONS WERE NOT GRANTED BY THE COMPETENT ITA NO. 939/AHD/17 [SHRI KALIKA MATAJI TEMPLE PUBLIC TRUST VS. DCIT] A.Y. 2012-13 - 3 - AUTHORITIES/RECEIVER. THE TRUSTEES OF THE ASSESSEE TRUST WERE RESTRAINED FROM MANAGING THE PROPERTIES AND AFFAIRS OF THE PUB LIC TRUST. THE RECEIVERS WERE IN CHARGE OF THE TRUST FROM 01.10.19 94 TILL 30 TH AUGUST, 2007. IT WAS THUS CONTENDED THAT THE REVENUE AUTHO RITIES OUGHT TO HAVE EXCLUDED THE PERIOD DURING WHICH THE RESTRAINE D ORDER REMAINED IN FORCE I.E. 30.08.2007 IN THE LIGHT OF FIRST PROV ISO TO SECTION 11(2) OF THE ACT. THE LEARNED AR REFERRED TO THE DECISION O F THE CO-ORDINATE BENCH IN ASSESSEES OWN CASE FOR THE AY 2011-12 TO SUBMIT THAT THE APPEAL OF THE ASSESSEE IN THE SIMILAR CIRCUMSTANCES HAVE BEEN UPHELD IN THE PRECEDING ASSESSMENT YEAR. 5. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDER OF THE CIT(A). 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE ASSESSEE IN THE INSTANT CASE HAS DISPUTED THE ACTIO N OF THE AO IN MAKING ADDITIONS OF RS.1,91,45,052/- UNDER S.11(3) OF THE ACT ON THE GROUND THAT THE ASSESSEE TRUST HAS FAILED TO SPEND THE AMOUNT ACCUMULATED UNDER S.11(2) OF THE ACT WITHIN THE STI PULATED PERIOD. WE FIND THAT THE IDENTICAL ISSUE AROSE IN THE AY 2011- 12 IN ASSESSEES OWN CASE FOR CONSIDERATION OF THE TRIBUNAL IN ITA NO. 2 01/AHD/2015 ORDER DATED 21.03.2016. THE RELEVANT TEXT OF THE ORDER I S REPRODUCED HEREUNDER FOR READY REFERENCE: 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THAT SIMILAR ISSUE AROSE IN ASSE SSEE'S OWN CASE FOR ASSESSMENT YEAR 2009-10 VIDE ITA NO.200/AHD/2015, W HEREIN THE ITAT HAS SET ASIDE THE ORDERS OF THE AUTHORITIES BE LOW AND RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECISION AFRESH, BY OBSERVING AS UNDER:- '4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE REASONS FOR ISSUING NOTICE U /S.148 OF THE ACT ARE RECORDED IN THE ASSESSMENT ORDER AT PARA-2, WHICH ARE IN THE FOLLOWING TERMS:- ITA NO. 939/AHD/17 [SHRI KALIKA MATAJI TEMPLE PUBLIC TRUST VS. DCIT] A.Y. 2012-13 - 4 - '2. THE FOLLOWING REASONS WERE RECORDED FOR ISSUE N OTICE U/S.148 OF THE ACT AND THE SAME ARE REPRODUCED HEREINBELOW FOR THE SAKE OF REFERENCE. 'IN THIS CASE RETURN OF INCOME IS FILED ON 25.09.20 09 DECLARING TOTAL INCOME OF RS.NIL/-. RETURN OF INCOM E WAS PROCESSED ON 06.07.2010 ACCEPTING THE RETURN INCOME . DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR A.Y . 2010-11, WHILE ANALYZING VARIOUS FORM NO.10 SUBMITT ED BY THE TRUST FOR RELEVANT ASSESSMENT YEARS, IT IS O BSERVED THAT THE TRUST HAS NOT APPLIED 75% OF ITS INCOME AS REQUIRED U/S.11(2) OF THE I.T. ACT TILL FINANCIAL 2 008-09 OF F.Y. 2002-03. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AR OF THE ASSESSEE AND THE UNDERSIG NED HAVE DEPTH DISCUSSION REGARDING ACCUMULATIONS. BASE D ON THE ASSESSMENT RECORD AVAILABLE IN THIS OFFICE, AND THE ASSESSEE'S SUBMISSION DATED 26.12.2012 REGARDING ACCUMULATION THE UNDERSIGNED COME TO KNOW THAT THE TRUST DID NOT SPEND ACCUMULATED FUND IN THE CONCERN FINANCIAL YEAR AS REQUIRED U/S.11(2) OF THE I.T.ACT . IN THE LIGHT OF THE ABOVE DISCUSSION AND, IT IS NOT ICED THAT THE TRUST HAS VIOLATED THE CONDITION PRESCRIBE D U/S.11(3) (C) OF THE I.T.ACT. AS PER SECTION 11(3) (C) OF THE I.T. ACT, 1961. 'ANY INCOME REFERRED TO IN SUBSECTION 11(2) WHICH- (C) IS NOT UTILIZED FOR THE PURPOSE FOR WHICH IT IS SO ACCUMULATION OR SET APART, DURING THE PERIOD REFERR ED TO IN A CLAUSE (A) OF THAT SUB-SECTION OR IN THE YEAR IMMEDIATELY FOLLOWING THE EXPIRY THEREOF- SHALL BE DEEMED TO BE THE INCOME OF SUCH PERSON OF THE PREVI OUS YEAR IN WHICH IT IS SO APPLIED OR CEASES TO BE SO ACCUMULATED OR SET APART.' THE FACTS AS BROUGHT OUT IN A.Y. 2010-11 AND AS MENTIONED ABOVE ARE APPLICABLE TO THE CASE OF THE ASSESSEE FOR A.Y. 2009-10 AND THE POINT PERTINENT T O NOTE THAT THE AR AGREED VIDE ORDER SHEET ENTRY DATED 26.12.2012 THAT HE DOES NOT HAVE ANY OBJECTION ABOU T THE ADDITION MADE ON THE SAME GROUND DURING ASSESSMENT PROCEEDING FOR A.Y. 2010-11. ACCORDINGLY I HAVE REA SON TO BELIEVE THAT THE ASSESSEE HAS FAILED TO DISCLOSE TRULY AND FAIRLY ALL THE FACTS RELEVANT TO ITS ASSESSMENT FOR A.Y. 2009-10. THUS, I HAVE, THEREFORE REASON TO BELIEVE THAT INCO ME EXCEEDING RS.ONE LACS CHARGEABLE TO TAX HAS BEEN ESCAPED THE ASSESSMENT FOR 2009-10 WITHIN THE MEANI NG ITA NO. 939/AHD/17 [SHRI KALIKA MATAJI TEMPLE PUBLIC TRUST VS. DCIT] A.Y. 2012-13 - 5 - OF SECTION 147 OF THE INCOME TAX ACT. THEREFORE, IT IS A FIT CASE TO ISSUE NOTICE U/S.148 FOR A.Y. 2009-10.' 4.1. THE AO IN THE ASSESSMENT ORDER FOLLOWED THE OR DER OF THE LD.CIT(A) PASSED IN AYS 2010-11 & 2011-12, WHEREIN SIMILAR ADDITIONS WERE CONFIRMED BY THE LD.CIT(A). 4.2. THE ONLY QUESTION WHICH ARISES FOR OUR CONSIDE RATION IS WHETHER THE PERIOD IN WHICH THE ORDER OF THE JT.DIS T.JUDGE WAS IN OPERATION TO BE EXCLUDED FOR RECKONING THE PERIO D OF 10 YEARS AS MENTIONED IN SECTION 11(2)(A) OF THE ACT U NDER THE FACTS OF THE PRESENT CASE. FOR THE SAKE OF CLARITY, SECTION 11(2) AND 11 (3) ARE REPRODUCED HEREINBELOW:- SECTION 11 [(2) [WHERE [EIGHTY-FIVE PER CENT] OF TH E INCOME REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OF SUB-SECT ION (1) READ WITH THE EXPLANATION TO THAT SUB-SECTION IS NOT APP LIED, OR IS NOT DEEMED TO HAVE BEEN APPLIED, TO CHARITABLE OR R ELIGIOUS PURPOSES IN INDIA DURING THE PREVIOUS YEAR BUT IS A CCUMULATED OR SET APART, EITHER IN WHOLE OR IN PART, FOR APPLI CATION TO SUCH PURPOSES IN INDIA, SUCH INCOME SO ACCUMULATED OR SE T APART SHALL NOT BE INCLUDED IN THE TOTAL INCOME OF THE PR EVIOUS YEAR OF THE PERSON IN RECEIPT OF THE INCOME, PROVIDED TH E FOLLOWING CONDITIONS ARE COMPLIED WITH, NAMELY :--] (A) SUCH PERSON SPECIFIES, BY NOTICE IN WRITING GIV EN TO THE [ASSESSING OFFICER] IN THE PRESCRIBED MANNER, THE P URPOSE FOR WHICH THE INCOME IS BEING ACCUMULATED OR SET APART AND THE PERIOD FOR WHICH THE INCOME IS TO BE ACCUMULATED OR SET APART, WHICH SHALL IN NO CASE EXCEED TEN YEARS ; [(B) THE MONEY SO ACCUMULATED OR SET APART IS INVES TED OR DEPOSITED IN THE FORMS OR MODES SPECIFIED IN SUB-SE CTION (5) :] [PROVIDED THAT IN COMPUTING THE PERIOD OF TEN YEARS REFERRED TO IN CLAUSE (A), THE PERIOD DURING WHICH THE INCOME C OULD NOT BE APPLIED FOR THE PURPOSE FOR WHICH IT IS SO ACCUMULA TED OR SET APART, DUE TO AN ORDER OR INJUNCTION OF ANY COURT, SHALL BE EXCLUDED:] [PROVIDED FURTHER THAT IN RESPECT OF ANY INCOME ACC UMULATED OR SET APART ON OR AFTER THE 1ST DAY OF APRIL, 2001, T HE PROVISIONS OF THIS SUB- SECTION SHALL HAVE EFFECT AS IF FOR TH E WORDS 'TEN YEARS' AT BOTH THE PLACES WHERE THEY OCCUR, THE WOR DS 'FIVE YEARS' HAD BEEN SUBSTITUTED.] [EXPLANATION. : ANY AMOUNT CREDITED OR PAID, OUT OF INCOME REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OF SUB-SECT ION (1), READ WITH THE EXPLANATION TO THAT SUB-SECTION, WHICH IS NOT APPLIED, BUT IS ACCUMULATED OR SET APART, TO ANY TRUST OR IN STITUTION REGISTERED UNDER SECTION 12AA OR TO ANY FUND OR INS TITUTION OR ITA NO. 939/AHD/17 [SHRI KALIKA MATAJI TEMPLE PUBLIC TRUST VS. DCIT] A.Y. 2012-13 - 6 - TRUST OR ANY UNIVERSITY OR OTHER EDUCATIONAL INSTIT UTION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION REFERRED TO I N SUB-CLAUSE (IV) OR SUB-CLAUSE (V) OR SUB-CLAUSE (VI) OR SUB-CL AUSE (VIA) OF CLAUSE (23C) OF SECTION 10, SHALL NOT BE TREATED AS APPLICATION OF INCOME FOR CHARITABLE OR RELIGIOUS PURPOSES, EIT HER DURING THE PERIOD OF ACCUMULATION OR THEREAFTER.] SECTION 11 [(3) ANY INCOME REFERRED TO IN SUB-SECTI ON (2) WHICH-- (A) IS APPLIED TO PURPOSES OTHER THAN CHARITABLE OR RELIGIOUS PURPOSES AS AFORESAID OR CEASES TO BE ACCUMULATED O R SET APART FOR APPLICATION THERETO, OR [(B) CEASES TO REMAIN INVESTED OR DEPOSITED IN ANY OF THE FORMS OR MODES SPECIFIED IN SUB-SECTION (5), OR] (C) IS NOT UTILISED FOR THE PURPOSE FOR WHICH IT IS SO ACCUMULATED OR SET APART DURING THE PERIOD REFERRED TO IN CLAUSE (A) OF THAT SUB-SECTION OR IN THE YEAR IMMED IATELY FOLLOWING THE EXPIRY THEREOF, [(D) IS CREDITED OR PAID TO ANY TRUST OR INSTITUTIO N REGISTERED UNDER SECTION 12AA OR TO ANY FUND OR INSTITUTION OR TRUST OR ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION REFERRED TO IN SUB-CLAUSE (IV) OR SUB- CLAUSE (V) OR SUB-CLAUSE (VI) OR SUB-CLAUSE (VIA) O F CLAUSE (23C) OF SECTION 10,] SHALL BE DEEMED TO BE THE INCOME OF SUCH PERSON OF THE PREVIOUS YEAR IN WHICH IT IS SO APPLIED OR CEASES T O BE SO ACCUMULATED OR [SET APART OR CEASES TO REMAIN SO IN VESTED OR DEPOSITED OR CREDITED OR PAID OR], AS THE CASE MAY BE, OF THE PREVIOUS YEAR IMMEDIATELY FOLLOWING THE EXPIRY OF T HE PERIOD AFORESAID.] [(3A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SEC TION (3), WHERE DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF TH E PERSON IN RECEIPT OF THE INCOME, ANY INCOME INVESTED OR DEPOS ITED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE (B) OF SUB -SECTION (2) CANNOT BE APPLIED FOR THE PURPOSE FOR WHICH IT WAS ACCUMULATED OR SET APART, THE [ASSESSING OFFICER] M AY, ON AN APPLICATION MADE TO HIM IN THIS BEHALF, ALLOW SUCH PERSON TO APPLY SUCH INCOME FOR SUCH OTHER CHARITABLE OR RELI GIOUS PURPOSE IN INDIA AS IS SPECIFIED IN THE APPLICATION BY SUCH PERSON AND AS IS IN CONFORMITY WITH THE OBJECTS OF THE TRUST; AND THEREUPON THE PROVISIONS OF SUB-SECTION (3) SHA LL APPLY AS IF THE PURPOSE SPECIFIED BY SUCH PERSON IN THE APPL ICATION UNDER THIS SUB-SECTION WERE A PURPOSE SPECIFIED IN THE NOTICE GIVEN TO THE [ASSESSING OFFICER] UNDER CLAUSE (A) O F SUB- SECTION (2) :] ITA NO. 939/AHD/17 [SHRI KALIKA MATAJI TEMPLE PUBLIC TRUST VS. DCIT] A.Y. 2012-13 - 7 - [PROVIDED THAT THE ASSESSING OFFICER SHALL NOT ALLO W APPLICATION OF SUCH INCOME BY WAY OF PAYMENT OR CRE DIT MADE FOR THE PURPOSES REFERRED TO IN CLAUSE (D) OF SUB-S ECTION (3) OF SECTION 11 :] [PROVIDED FURTHER THAT IN CASE THE TRUST OR INSTITU TION, WHICH HAS INVESTED OR DEPOSITED ITS INCOME IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE (B) OF SUB-SECTION (2), IS DIS SOLVED, THE ASSESSING OFFICER MAY ALLOW APPLICATION OF SUCH INC OME FOR THE PURPOSES REFERRED TO IN CLAUSE (D) OF SUB-SECTION ( 3) IN THE YEAR IN WHICH SUCH TRUST OR INSTITUTION WAS DISSOLVED.] 4.3. FROM THE MATERIAL AVAILABLE ON RECORD, THE UND ISPUTED FACTS ARE: (I) THAT, THE ORDER DATED 01/10/1994 WAS PASSED BY THE LD.JT.DISTRICT JUDGE, PANCHMAHAL, GODRA IN THE FOLL OWING TERMS:- 'ORDER 1. THE APPLICATIONS ARE ALLOWED. 2. AD-INTERIM INJUNCTION AS PRAYED FOR IN PARA-6-A BE ISSUED AGAINST THE DEFENDANT. 3. SHRI N.B.PATEL, SR.ADVOCATE & NOTARY, GODHRA BAR , IS HEREBY APPOINTED AS RECEIVER TO MANAGE THE PROPERTI ES OF THE PUBLIC TRUST KNOWN AS KALIKA MOTALI TEMPLE, AT PAVA GADH DURING THE PENDENCY OF THIS SUIT. 4. THE RECEIVER SHALL MANAGE THE PROPERTY IN THE BE ST OF THE INTEREST OF THE TRUST AND SHALL PRODUCE ACCOUNTS OF THE TRUST EVERY THREE MONTHS BEFORE THE ASSISTANT CHARITY COM MISSIONER, NADIAD AND SHALL ALSO PRODUCE A COPY THEREOF TO THI S COURT. HE SHALL TAKE ALL STEPS TO REALIZE THE DUES OF THE TRU ST. HE WILL BE ENTITLED TO A MONTHLY REMUNERATION OF RS.1,500/- (R UPEES ONE THOUSAND FIVE HUNDRED ONLY) TENTATIVELY FROM THE DA TE OF ISSUE OF RECEIVER PATRA IN ADDITION TO REASONABLE EXPENSE S INCURRED BY HIM FOR THE MANAGEMENT OF THE TRUST. HE SHALL CO MMENCE THE WORK OF RECEIVER FORTHWITH. 5. SHRI M.M.PARMAR, C.O.C., DISTRICT COURT PANCHMAH ALS, AT GODHRA IS ALSO APPOINTED AS CO-RECEIVER TO ASSIST S HRI N.B.PATEL, THE RECEIVER, APPOINTED ABOVE. HE SHALL ALSO BE ENTITLED TO A MONTHLY REMUNERATION OF RS.750/- TENT ATIVELY IN ADDITION TO ] REASONABLE EXPENSES INCURRED BY HIM F OR MANAGEMENT OF THE TRUST PROPERTIES. 6. THE REMUNERATION OF THE RECEIVER AND HIS ASSISTA NT ARE TO BE DRAWN FROM THE TRUST PROPERTY INCOME. 7. ALL THE DEFTS ARE DIRECTED TO HAND OVER THE POSS ESSION OF THE TRUST, IF ANY, WITH THEM INCLUDING MOVEABLE AND IMM OVEABLE PROPERTIES OF THE TRUST. 8. THE DEFENDANTS, THEIR AGENTS, OFFICE BEARERS AND SERVANTS ARE HEREBY RESTRAINED FROM MANAGING THE PROPERTIES AND AFFAIRS OF THE PUBLIC TRUST KNOWN AS KALIKA MATAJI TEMPLE, AT PAVAGADH, ITA NO. 939/AHD/17 [SHRI KALIKA MATAJI TEMPLE PUBLIC TRUST VS. DCIT] A.Y. 2012-13 - 8 - REGISTERED UNDER BOMBAY PUBLIC TRUST ACT NO.421/PANCHMAHALS, DURING THE PENDENCY OF THIS APP EAL. 9. THE RECEIVER IS ALSO DIRECTED TO MAKE AN INVENTO RY OF THE TRUST PROPERTIES AND AFFAIRS BELONGING TO THE PUBLI C TRUST, KNOWN AS KALIKA MATAJI TEMPLE. THE PLTFF IS DIRECTE D TO PAY ADDITIONAL REMUNERATION FOR THE SAID WORK OF INVENT ORY OF THE TRUST PROPERTIES AT RS.1,000/- (RUPEES ONE THOUSAND ONLY AT FIRST INSTANCE. PRONOUNCED IN THE OPEN COURT TODAY THIS 01ST DAY OF OCTOBER, 1994.' (II) FURTHER, THE LD.JT.DISTRICT JUDGE CONFIRMED TH E AD-INTERIM INJUNCTION GRANTED VIDE ORDER DATED 01/10/1994 BY O RDER DATED 29/10/1994 IN THE FOLLOWING TERMS:- 'ORDER 1. THE AD-INTERIM INJUNCTION AND THE ORDER FOR THE APPOINTMENT OF RECEIVER PASSED BY THIS COURT BELOW EXH.3 DATED 1/10/1994 IS HEREBY CONFIRMED AND MADE ABSOLUTE TILL THE FINAL D ECISION OF THE CIVIL SUIT NO.2 OF 1994. 2. THE OBJECTIONS FILED BY THE DEFENDANTS VIDE EXH. 23 ARE HEREBY REJECTED. 3. IT IS HEREBY ORDERED AND DECLARED THAT THE DEFEN DANTS ARE NOT ENTITLED TO GET THE RELIEF AS CLAIMED FOR IN TH E WS EXH.23. 4. THE DEFENDANTS SHALL PAY THE COSTS OF THIS APPLI CATION TO THE PLAINTIFF AND BEAR THEIR OWN. PRONOUNCED IN THE OPEN COURT TODAY THIS 29TH DAY OF OCTOBER, 1994' 4.4. AS PER AD-INTERIM ORDER DATED 01/10/1994 SHRI N.B.PATEL, SR.ADVOCATE & NOTARY GODHRA BAR WAS APPOINTED AS RE CEIVER TO MANAGE PROPERTIES OF THE ASSESSEE-TRUST. THE REC EIVER WAS FURTHER AUTHORIZED TO MANAGE THE PROPERTY IN THE BE ST OF THE INTEREST OF THE TRUST AND PRODUCE ACCOUNTS OF THE T RUST EVERY THREE MONTHS BEFORE THE ASSISTANT CHARITY COMMISSIO NER, NADIAD. THE COURT ALSO APPOINTED SHRI M.M.PARMAR, C .O.C., DISTRICT COURT, PANCHMAHALS, GODHRA AS CO-RECEIVER TO ASSIST SHRI N.B.PATEL, THE RECEIVER. THE DEFENDANTS WERE F URTHER RESTRAINED FROM MANAGING THE PROPERTIES AND AFFAIRS OF THE TRUST DURING THE PENDENCY OF THE APPEAL THE RECEIVE R WAS DIRECTED TO MAKE AN INVENTORY OF THE TRUST PROPERTI ES AND AFFAIRS BELONGING TO THE PUBLIC TRUST KNOWN AS KALI KA MATAJI TEMPLE. 4.5. FROM THE ABOVE ORDER, IT IS CLEAR THAT THE AFF AIRS OF THE ASSESSEE-TRUST WERE TAKEN OVER BY THE COURT APPOINT ED RECEIVER AND, THEREFORE, IT CAN BE INFERRED FROM THE MATERIA L AVAILABLE ON RECORD THAT THE TRUSTEES OF THE ASSESSEE-TRUST W ERE RESTRAINED FROM MANAGING THE AFFAIRS. IT IS THE CON TENTION OF ITA NO. 939/AHD/17 [SHRI KALIKA MATAJI TEMPLE PUBLIC TRUST VS. DCIT] A.Y. 2012-13 - 9 - THE ASSESSEE-TRUST THAT THE ABOVE ORDER REMAINED IN FORCE TILL 30/08/2007. THE LD.CIT(A) DID NOT ACCEPT THE EXPLAN ATION OF THE ASSESSEE ON THE GROUND THAT THERE WAS NO PROHIB ITION OR RESTRAINING ORDER BY THE COURT THAT THE RECEIVER WO ULD NOT COMPLY WITH THE PROVISIONS OF THE ACT. SO FAR AS TH E ASSESSEE- TRUST IS CONCERNED, ITS AFFAIRS WERE TAKEN OVER BY THE COURT APPOINTED RECEIVER, THEREFORE IT CANNOT BE INFERRED THAT THE ASSESSEE-TRUST WAS IN ANYWAY RESPONSIBLE FOR NOT MA KING AN APPLICATION FOR ACCUMULATION OF INCOME U/S.11(1) OF THE ACT. THE CONTENTION OF THE ASSESSEE IS THAT THE DELAY IN MAKING APPLICATION BY THE ASSESSEE-TRUST WAS DUE TO SUFFIC IENT CAUSE AND THE AUTHORITIES BELOW OUGHT TO HAVE CONDONED TH E DELAY AND EXCLUDED THE PERIOD DURING WHICH THE AFFAIRS OF THE TRUST WAS TAKEN OVER BY THE COURT RECEIVER TRUST. HOWEVER , NO SUCH SITUATION IS CONTEMPLATED UNDER THE ACT WHERE THE A FFAIRS OF THE TRUST ARE TAKEN OVER BY THE COURT APPOINTED RECEIVE R AND COMPLIANCE OF THE PROVISION BY THE RECEIVER. SUB-SE CTION(3A) OF SECTION 11 CONTEMPLATES A SITUATION WHERE DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF THE PERSON IN R ECEIPT OF THE INCOME, ANY INCOME INVESTED OR DEPOSITED IN ACC ORDANCE WITH THE PROVISIONS OF CLAUSE(B) OF SUB-SECTION (2) COULD NOT BE APPLIED FOR THE PURPOSE FOR WHICH IT WAS ACCUMULATE D OR SET APART. IN THAT SITUATION, THE ASSESSING OFFICER MAY , ON AN APPLICATION MADE TO HIM IN THIS BEHALF, ALLOW SUCH PERSON TO APPLY SUCH INCOME FOR SUCH OTHER CHARITABLE OR RELI GIOUS PURPOSE IN INDIA AS IS SPECIFIED IN THE APPLICATION BY SUCH PERSON AND AS IS IN CONFORMITY WITH THE OBJECTS OF THE TRUST; AND THEREUPON THE PROVISIONS OF SUB-SECTION(3) SHAL L APPLY AS IF THE PURPOSE SPECIFIED BY SUCH PERSON IN THE APPL ICATION UNDER THIS SUB-SECTION FOR A PURPOSE SPECIFIED IN T HE NOTICE GIVEN TO THE ASSESSING OFFICER UNDER CLAUSE (A) OF SUB-SECTION (2). 4.6. IN THE PRESENT CASE, NO SUCH APPLICATION WAS M ADE BY THE ASSESSEE- TRUST OR THE COURT APPOINTED RECEIVER. HO WEVER, THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT TH E TRUSTEES WERE RETRAINED FROM MANAGING THE AFFAIRS. FOR THE O MISSION ON THE PART OF THE COURT APPOINTED RECEIVER WOULD NOT, IN OUR CONSIDERED, VIEW DISENTITLE THE ASSESSEE-TRUST FOR SEEKING CONDONATION OF DELAY, IF ANY, IN NOTIFYING THE AO I N THE TERMS OF PROVISION OF SECTION 11(2) OF THE ACT. THEREFORE , WE HEREBY SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND R ESTORE THE ISSUE TO THE FILE OF AO FOR DECISION AFRESH. THE AO WOULD VERIFY THE PERIOD DURING WHICH THE AFFAIRS OF THE ASSESSEE -TRUST WERE MANAGED BY THE COURT APPOINTED RECEIVER. HE WOULD E XCLUDE SUCH PERIOD IN THE LIGHT OF FIRST PROVISO TO SECTIO N 11(2) OF THE ACT AND WOULD VERIFY WHETHER THE MONEY SO ACCUMULAT ED OR SET APART WAS INVESTED OR DEPOSITED IN THE FORMS OR MOD ES SPECIFIED IN SECTION 11(5) OF THE ACT.' ITA NO. 939/AHD/17 [SHRI KALIKA MATAJI TEMPLE PUBLIC TRUST VS. DCIT] A.Y. 2012-13 - 10 - 4. ADMITTEDLY, THE FACTS OF THE YEARS UNDER CONSIDE RATION ARE IDENTICAL. WE, THEREFORE, RESPECTFULLY FOLLOWING TH E ABOVE DECISION OF ITAT IN ASSESSEE'S OWN CASE FOR ASSESSMENT YEAR 200 9-10, WE HEREBY SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND R ESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECISION AFRE SH IN THIS YEAR AS WELL. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. 6. IN PARITY, THE ORDERS OF THE AUTHORITIES BELOW A RE SET ASIDE AND THE ISSUE IS RESTORED TO THE FILE OF THE AO FOR DEC ISION AFRESH IN THE LIGHT OF THE DECISION OF THE CO-ORDINATE BENCH IN A Y 2011-12 AND IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 15/02/2019 S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 15/02/20 19