The Dy.Director of Income tax(Exemp.), Ahmedabad V. Pujya Panyas Bhadrashil Vijayji Ganivar Smarak Trust, Ahmedabad

ITSSA 474/AHD/2010

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8670 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-01-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 21-01-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 05-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANURAG SHARMA
• Assessee Lawyers: S N DIVATIA
• Keywords: Unexplained cash credit; Search and seizure; Loose papers; Document seized; Charitable institution; Principle of natural justice; Additional evidence; Documents seized
• Section: 143(3); 12A; 12; 11; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'C' BEFORE SHRI BHAVNESH SAINI,JM & SHRI A N PAHUJA,AM IT(SS)A NOS.474 TO 478/AHD/2010 (ASSESSMENT YEARS:-2001-02, 02-03, 04-05, 05-06 & 0 6-07) DEPUTY DIRECTOR OF INCOME- TAX (EXEMPTION), AHMEDABAD V/S PUJYA PANYAS BHADRASHIL VIJAYJI GAIVAR SMARAK TRUST, 11-A, KRUPA SAGAR SOCIETY, OPP. SHANTIVAN BUS STAND, PALDI, AHMEDABAD PAN: AAATP 5548 C [APPELLANT] [RESPONDENT] REVENUE BY :- SHRI ANURAG SHARMA, DR ASSESSEE BY:- SHRI S N DIVATIA, AR O R D E R A N PAHUJA: THESE FIVE APPEALS BY THE REVENUE AGAINST TWO SEPARATE ORDERS DATED 27-01-2010 FOR THE ASSESSMEN T YEARS 2001- 02 AND 2002-03 AND THREE SEPARATE ORDERS DATED 16-0 3-2010 FOR ASSESSMENT YEARS 2004-05, 2005-06 AND 2006-07 OF TH E LD. CIT(APPEALS)-XXI, AHMEDABAD, RAISE THE FOLLOWING GR OUNDS:- IT(SS)A NO.474/AHD/2010[AY2001-02] 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO ALLOW DEDUCTION U/S 11 OF THE IT ACT RELYING ON THE DECISION OF GUJARAT HIGH COURT IN THE CASE OF CHANDRA CHARIT ABLE TRUST (294 ITR 86) WHICH HAS NOT BECOME FINAL AND S LP HAS BEEN FILED AGAINST THE SAME. FURTHER, THE FACTS OF THE CASE AND THAT OF CHANDRA CHARITABLE TRUST ARE NOT IDENTI CAL. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO ALLOW DEDUCTION OF CORPUS DONATION OF RS.6,49,000/- . 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO ALLOW DEDUCTION U/S 11 ON EXPENDITURE TOWARDS OBJEC T OF THE TRUST OF RS.11,87,900/-. 4. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO ALLOW DEDUCTION U/S 11 OF THE IT ACT ON ADMINISTRAT IVE EXPENSES OF RS.1,400/-. IT(SS)A N OS.474 TO 478/AHD/2010 2 5. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO ALLOW DEDUCTION U/S 11 OF THE IT ACT ON LEGAL EXPEN SES OF RS.5,000/-. IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) BE CA NCELLED AND THAT OF THE AO BE RESTORED. IT(SS)A NO.475/AHD/2010[AY2002-03] 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO ALLOW DEDUCTION U/S 11 OF THE IT ACT RELYING ON THE DECISION OF GUJARAT HIGH COURT IN THE CASE OF CHANDRA CHARIT ABLE TRUST (294 ITR 86) WHICH HAS NOT BECOME FINAL AND S LP HAS BEEN FILED AGAINST THE SAME. FURTHER, THE FACTS OF THE CASE AND THAT OF CHANDRA CHARITABLE TRUST ARE NOT IDENTI CAL. 2 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN D IRECTING TO ALLOW DEDUCTION OF CORPUS DONATION OF RS.2,33,023/- . IT(SS)A NO.476/AHD/2010[AY2004-05] 1 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO ALLOW DEDUCTION U/S 11 OF THE IT ACT RELYING ON THE DECISION OF GUJARAT HIGH COURT IN THE CASE OF CHANDRA CHARIT ABLE TRUST (294 ITR 86) WHICH HAS NOT BECOME FINAL AND S LP HAS BEEN FILED AGAINST THE SAME. FURTHER, THE FACTS OF THE CASE AND THAT OF CHANDRA CHARITABLE TRUST ARE NOT IDENTI CAL. 2 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN D IRECTING TO ALLOW DEDUCTION U/S 11(1)(A) OF THE IT ACT ON RS.8, 97,898/-. 3 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN D IRECTING TO ALLOW STATUTORY DEDUCTION U/S 11 OF THE IT ACT. 4 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN D ELETING THE ADDITION MADE OF RS.3,51,000/- ON ACCOUNT OF SEIZED DOCUMENTS. IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) BE CA NCELLED AND THAT OF THE AO BE RESTORED. IT(SS)A NO.477/AHD/2010[AY2005-06] 1 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIR ECTING TO ALLOW DEDUCTION U/S 11 OF THE IT ACT RELYING ON THE DECISION OF GUJARAT HIGH COURT IN THE CASE OF CHANDRA CHARITABL E TRUST (294 ITR 86) WHICH HAS NOT BECOME FINAL AND SLP HAS BEEN IT(SS)A N OS.474 TO 478/AHD/2010 3 FILED AGAINST THE SAME. FURTHER, THE FACTS OF THE C ASE AND THAT OF CHANDRA CHARITABLE TRUST ARE NOT IDENTICAL. 2 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN D IRECTING TO ALLOW DEDUCTION U/S 11 OF THE IT ACT ON RS.59,48,57 7/-. 3 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN D IRECTING TO ALLOW STATUTORY DEDUCTION U/S 11(1)(A) OF RS.7,16,0 92/- WHICH IS INCLUDED IN THE CLAIM OF DEDUCTION U/S 11 OF RS.59, 48,577/-. 4 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN D ELETING THE ADDITION OF RS.7,00,000/- ON ACCOUNT OF SEIZED DOCU MENTS. IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) BE CA NCELLED AND THAT OF THE AO BE RESTORED. IT(SS)A NO.478/AHD/2010[AY2006-07] 1 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIR ECTING TO ALLOW DEDUCTION U/S 11 OF THE IT ACT RELYING ON THE DECISION OF GUJARAT HIGH COURT IN THE CASE OF CHANDRA CHARITABL E TRUST (294 ITR 86) WHICH HAS NOT BECOME FINAL AND SLP HAS BEEN FILED AGAINST THE SAME. FURTHER, THE FACTS OF THE C ASE AND THAT OF CHANDRA CHARITABLE TRUST ARE NOT IDENTICAL. 2 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN D IRECTING TO ALLOW DEDUCTION U/S 11 OF THE IT ACT ON RS.12,17,62 5/-. 3 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN D ELETING THE ADDITION MADE OF RS.6,00,000/- ON ACCOUNT OF SEIZED DOCUMENTS. 4 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN D ELETING THE ADDITION MADE OF RS.70,63,263/- ON ACCOUNT OF UNACC OUNTED INCOME. IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) BE CA NCELLED AND THAT OF THE AO BE RESTORED. 2 AT THE OUTSET, THE LEARNED DR WHILE INVITING OUR ATTENTION TO THEIR LETTER DATED 19-08-2010 POINTED OUT THAT THE REVENUE HAVE RAISED AN ADDITIONAL GROUND OF APPEAL IN THESE FIVE ASSESSMENT YEARS IN THE FOLLOWING TERMS:- IT(SS)A N OS.474 TO 478/AHD/2010 4 THE CIT(A) HAD ERRED IN QUASHING THE ASSESSMENT OR DER PASSED U/S 143(3) READ WITH SECTION 153C OF THE IT ACT. 2.1 THE LEARNED DR POINTED OUT THAT THE AFORESA ID GROUND OF APPEAL BEING PURELY LEGAL AND ALL FACTS BEING AVAIL ABLE ON RECORD, SHOULD BE ADMITTED AND ADJUDICATED UPON. HOWEVER, T HE LD. DR DID NOT ASSIGN ANY REASONS AS TO WHY THIS GROUND WAS OM ITTED FROM THE MEMO OF THE GROUNDS APPEAL ANNEXED TO THEIR APPEA LS AND COULD NOT BE RAISED EARLIER NOR ANY SUCH REASONS HAVE BE EN ADDUCED IN LETTER DATED 19.8.2010. 2.2 ON THE OTHER HAND, THE LEARNED AR ON BEHALF OF THE ASSESSEE WHILE OBJECTING TO ADMISSION OF ADDITIONAL GROUND, CONTENDED THAT THE ASSESSMENTS HAVING BEEN COMPLETED WITHIN A SHORT PE RIOD OF 8 DAYS, WERE RIGHTLY QUASHED BY THE LEARNED CIT(A) FOR THE ASSESSMENT YEARS 2001-02 AND 2002-03. HE POINTED OUT THAT THE ASSESSMENTS FOR THE ASSESSMENT YEARS 2004-05, 2005-06 AND 2006- 07 HAVE NOT BEEN QUASHED BY THE LEARNED CIT(A) AND THUS, THE AD DITIONAL GROUND SOUGHT TO BE RAISED IN THESE THREE ASSESSMENT YEARS IS REDUNDANT. HE ADDED THAT NO REASONS FOR FAILURE TO RAISE THI S GROUND OF APPEAL IN THE MEMO OF APPEAL HAVE BEEN STATED. 3. WE HAVE HEARD BOTH THE PARTIES ON ADMISSION OF THE AFORESAID ADDITIONAL GROUND AND GONE THROUGH THE FACTS OF THE CASE. IN T HE INSTANT CASE, INDISPUTABLY, TRUST CONSTITUTED UNDER DEED EXECUTED ON 22.2.199 9 IS A RELIGIOUS TRUST REGISTERED UNDER BOMBAY PUBLIC CHARITABLE TRUST AS ALSO U/S 12A OF THE INCOME- TAX ACT,1961[HEREINAFTER REFERRED TO AS THE ACT]. THE MAIN OBJECTS OF THE TRUST ARE STATED TO BE REVOLVING AROUND THE ACTIVITIES OF JA IN TEMPLE, JAIN UPASHRAY & JAIN PATHSHALA. ON THE BASIS OF CERTAIN DOCUMENTS RELATI NG TO THE ASSESSEE SEIZED DURING THE SEARCH CONDUCTED IN THE PREMISES OF M/S MAHIPAT RAICHAND SHARE- BROKING P LTD. ON 22.9.2007, A NOTICE U/S 153C READ WITH SEC. 153A(A) WAS ISSUED FOR THE YEARS UNDER CONSIDERATION ON 21.12.1999. IN RESPONSE , THE ASSESSEE SUBMITTED THAT THE RETURNS FILED ORIGINALLY U/S 139 (1) OF THE ACT MAY BE TREATED AS RETURNS IN RESPONSE TO THE SAID NOTICE. THE ASSESS MENT FOR THE YEARS BEFORE US IT(SS)A N OS.474 TO 478/AHD/2010 5 WERE COMPLETED ON 30.12.1999, DENYING EXEMPTION U/S 11 OF THE ACT ON THE GROUND THAT TRUST IS FOR PRIVATE RELIGIOUS PURPOSES , NOT ENURING FOR THE BENEFIT OF THE PUBLIC AND WAS CREATED FOR A PARTICULAR RELIGIOUS COMMUNITY. SINCE THE ASSESSMENTS WERE COMPLETED IN A SHORT SPAM OF 8 DA YS, THE ASSESSEE RAISED BASICALLY TWO ISSUES IN APPEALS BEFORE THE LD. CIT (A) NAMELY VIOLATION OF PRINCIPLES OF NATURAL JUSTICE DUE TO LACK OF SUFFIC IENT OPPORTUNITY AND CONSEQUENT DENIAL OF EXEMPTION U/S 11 OF THE ACT, THE GROUNDS RELATING TO VALIDITY OF INITIATION OF PROCEEDINGS U/S 153 C OF THE ACT HAVING NOT BEE N PRESSED THE LD. CIT(A) WHILE ALLOWING THE APPEALS OF THE ASSESSEE PARTLY, OBSERVED ,INTER ALIA, IN HIS ORDER DATED 19.2.2010 FOR THE AYS 2001-02 & 2002-03 THA T ASSESSMENTS FOR THESE YEARS ARE LIABLE TO BE QUASHED ON ACCOUNT OF A NON- SPEAKING AND REASONED ORDER. THIS ORDER DATED 19.2.2010 HAS BEEN FOLLOWED IN OR DER DATED 16.3.2010 FOR THE AY 2006-07 WHILE THE ISSUES RELATING TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE DUE TO INSUFFICIENT OPPORTUNITY DO NOT FIND EVEN A WHISPER IN THE FINDINGS OF THE LD. CIT(A) IN HIS ORDERS DATED 16.3.2010 IN THE APPE ALS FOR THE AYS 2004-05 & 2005-06,EVEN THOUGH APPEALS FOR THESE TWO YEARS HAV E BEEN ALLOWED IN FULL. THE REVENUE HAVE NOW SOUGHT TO RAISE THE AFORESAID ADD ITIONAL GROUND IN THESE FIVE ASSESSMENT YEARS AGAINST THE AFORESAID OBSERVATIONS OF THE LD. CIT(A) IN THE ORDER DATED 19.2.2010 FOR THE AYS 2001-02 & 2002-03 ,FOLLOWED IN SUBSEQUENT YEARS. IN TERMS OF DECISION OF THE HONBLE APEX COU RT IN SUPERINTENDENT (TECH.) CENTRAL EXCISE VS. PRATAP RAI (1977) 114 ITR 231, A N ORDER PASSED IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE DOES NOT BECOME BAD A B INITIO, IT SUFFERS FROM INTERVENING IRREGULARLY OR ILLEGALITY WHICH CAN BE CURED. IT DOES NOT AFFECT THE JURISDICTION BUT ONLY MAKES FURTHER PROCEEDINGS BAD . SIMILAR VIEW WAS TAKEN IN TIN BOX COMPANY VS. CIT (2001) 249 ITR 216 (SC). HO WEVER, IN THE INSTANT APPEALS, SINCE WE ARE INCLINED TO UPHOLD THE FINDIN GS OF THE LD. CIT(A) ON MERITS,ALLOWING,INTE ALIA, EXEMPTION U/S 11 OF THE ACT, THE ISSUE SOUGHT TO BE RAISED NOW BEFORE US AGAINST THE AFORESAID OBSERVA TIONS OF THE LD. CIT(A) BECOMES PURELY ACADEMIC AND THEREFORE, WE ARE NOT I NCLINED TO ADMIT THE AFORESAID ADDITIONAL GROUND. EVEN OTHERWISE, THE TRIBUNAL IS NOT DUTY BOUND TO ADMIT THE ADDITIONAL GROUND WHEN THE REVENUE HAVE NOT EXPLAINED THE CIRCUMSTANCES AS TO WHY SUCH GROUND COULD NOT BE RA ISED EARLIER AT THE TIME OF FILING OF THESE APPEALS. THE DISCRETION VESTED IN T HE JUDICIAL AUTHORITY CANNOT BE IT(SS)A N OS.474 TO 478/AHD/2010 6 EXERCISED ARBITRARILY. THERE IS A DUTY UPON THE TRI BUNAL TO EXERCISE THE DISCRETION IN A MOST JUDICIAL MANNER. WHEN THE REQUIREMENT OF LAW IS TO SATISFY THE TRIBUNAL ABOUT THE EXISTENCE OF GOOD REASONS FOR THE OMISSIO N OF THE GROUND IN THE ORIGINAL APPEAL THEN ON THE FAILURE OF THE APPELLANT OR HIS REPRESENTATIVE TO GIVE ANY REASON MUCH LESS A GOOD REASON FOR THE OMISSION, TH E CONSEQUENCES ARE OBVIOUS. IN THE GIVEN CIRCUMSTANCES, CONSIDERING TH E TOTALITY OF FACTS AND IN THE ABSENCE OF ANY REASONS, WE THEREFORE, DECLINE TO AD MIT THE ADDITIONAL GROUND SOUGHT TO BE TAKEN BEFORE US BY THE REVENUE . 4. NOW ADVERTING TO GROUND NO.1 IN THESE FIVE APP EALS. THE REVENUE HAVE STATED IN THE SAID GROUND THAT THE LD . CIT(A) ERRED IN LAW AND ON FACTS IN DIRECTING TO ALLOW DEDUCTION U/ S 11 OF THE IT ACT, RELYING ON THE DECISION OF GUJARAT HIGH COURT IN TH E CASE OF CHANDRA CHARITABLE TRUST (294 ITR 86) WHICH HAS NOT BECOME FINAL AND SLP HAS BEEN FILED AGAINST THE SAME. FACTS, IN BRIEF, A S PER RELEVANT ORDERS ARE THAT THE AO DENIED EXEMPTION U/S 11 OF THE ACT ON THE GROUND THAT TRUST WAS FOR PRIVATE RELIGIOUS PURPOSE S ,NOT ENURING FOR THE BENEFIT OF THE PUBLIC AND WAS CREATED FOR A PAR TICULAR RELIGIOUS COMMUNITY. ON APPEAL, THE LD. CIT(A) CONCLUDED IN H IS ORDER DATED 19.2.2010 FOR THE AYS. 2001-02 & 2002-03 THAT THE A SSESSEE IS ENTITLED TO EXEMPTION U/S 11 OF THE ACT . THE RELEV ANT FINDINGS OF THE LD. CIT(A) READ AS UNDER: 3.4 I HAVE CONSIDERED THE CONTENTIONS RAISED BY THE APPELLANT. I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER. THE ASSESSI NG OFFICER HAS REJECTED THE CLAIM OF THE APPELLANT MADE U/S 11 MAI NLY ON THE GROUND THAT SINCE THE APPELLANT TRUST WAS CARRYING OUT RELIGIOU S ACTIVITIES FOR A PARTICULAR RELIGIOUS COMMUNITY, IT WAS NOT A PUBLIC CHARITABLE TRUST. I AM AFRAID THE CONTENTION RAISED BY THE ASSESSING OFFICER CANNOT BE ACCEPTED IN VIEW OF THE SETTLED LEGAL POSITION. THE PERUSAL OF VARIOUS CLAUSES OF THE TRUST DEED AS WELL AS THE INCOME AND EXPENDITURE ACCOUNT FOR THE RELEVANT YEARS FILED BY THE APPELLANT CLEAR LY SHOWS THAT THE ACTIVITIES OF THE APPELLANT TRUST ARE RELIGIOUS ACTIVITIES FOR JAINISM BUT THE SAME ARE NOT CARRIED OUT FOR THE BENEFIT OF ANY PARTICULAR P ERSON OR FAMILY. IT IS DULY REGISTERED AS A PUBLIC TRUST UNDER BOMBAY PUBLIC TR UST ACT. MOREOVER, HON. GUJARAT HIGH COURT IN CASE OF CIT VS. GIRDHARR AM HARIRAM BHAGAT IT(SS)A N OS.474 TO 478/AHD/2010 7 [154 ITR 10] HAS DISCUSSED THE DISTINCTION BETWEEN PUBLIC AND PRIVATE ENDOWMENT AS UNDER:- 'A RELIGIOUS ENDOWMENT MAY BE EITHER PUBLIC OR PRIV ATE. A PUBLIC RELIGIOUS ENDOWMENT NECESSARILY IMPLIES THAT IT IS A DEDICATION OF PROPERTY FOR THE USE OR BENEFIT OF THE PUBLIC WHILE ON THE OTHER HAND A PRIVATE RELIGIOUS ENDOWMENT IS A DEDICATION OF PR OPERTY FOR WORSHIP OF THE FAMILY GOD IN WHICH THE PUBLIC IS NO T INTERESTED. (B) THAT THE BENEFICIAL INTEREST IN A PUBLIC ENDOWM ENT VIZ. IN AN UNCERTAIN AND FLUCTUATING BODY OF PERSONS EITHER TH E PUBLIC AT LARGE OR SOME CONSIDERABLE PORTION OF IT ANSWERING A PARTICULAR DESCRIPTION. ON THE OTHER HAND, IN A PRI VATE ENDOWMENT, THE BENEFICIARIES ARE DEFINITE AND ASCER TAINED INDIVIDUALS OR WHO WITHIN A DEFINITE TIME CAN BE DE FINITELY ASCERTAINED.' APPLYING THE AFORESAID TESTS TO THE FACTS OF THE AP PELLANT'S CASE, THERE CANNOT BE ANY DOUBT THAT THE APPELLANT TRUST IS FOR THE BENEFIT OF PUBLIC AT LARGE AND NOT FOR THE WORSHIP OF THE FAMILY GOD IN WHICH THE PUBLIC IS NOT INTERESTED. THE OBJECTS OF THE APPELLANT TRUST EXT END TO CARRYING ON ACTIVITIES OF JAIN TEMPLE, JAIN UPASHRAY OR JAIN PA THSHALA WHICH ARE FOR THE BENEFIT OF THE PUBLIC AND IN FACT, THE APPELLANT TR UST IS ENGAGED IN THE ACTIVITY OF CONSTRUCTING A JAIN DERASAR NOT FOR THE WORSHIP OF ANY PARTICULAR FAMILY. THE PERUSAL OF THE OBJECTS AS STATED IN CLA USE-3 OF THE TRUST DEED DATED 22-2-1999 CLEARLY SHOW THAT IT WAS ESTABLISHE D FOR SETTING UP JAIN INSTITUTIONS LIKE GYANSHALA, PATHSHALA, UPASHRAY, M AKE ARRANGEMENT FOR JAIN SADHU/SADHWIS, RELIGIOUS ACTIVITIES RELATING T O JAIN SHWETAMBER MURTI POOJA, RESEARCH RELATING TO THE LITERATURE ON JAINI SM AND LECTURES, DISCUSSION OF JAIN GURUS ETC. ETC. NONE OF THE SAID OBJECTS IS FOUND TO BE FOR THE BENEFIT OF ANY PRIVATE INDIVIDUALS OR DEFIN ITE AND ASCERTAINED INDIVIDUALS. THE PROVISION OF SECTION 13(1)(A) IS A PPLICABLE ONLY IN CASE OF A RELIGIOUS TRUST WHICH DOES NOT ENSURE FOR THE BENEF IT OF THE PUBLIC BUT IN THE PRESENT CASE THE APPELLANT TRUST CANNOT BE SAID TO BE A PRIVATE RELIGIOUS TRUST OR PRIVATE RELIGIOUS PURPOSES. 3.5 I ALSO FIND THAT THE CONTENTION RAISED BY ASSES SING OFFICER THAT THE EXEMPTION U/S 11 IS NOT ADMISSIBLE IN VIEW OF SECTI ON 13(L)(B) IS ALSO LIABLE TO BE REJECTED. THE ASSESSING OFFICER HAS NOT GIVEN ANY SPECIFIC REASON FOR HOLDING THAT SECTION 13(1)(B) WAS APPLICABLE. THIS PROVISION HAD COME UP FOR CONSIDERATION OF HON. GUJARAT HIGH COURT IN THE CASE OF CIT VS. BARKATE SAIFIYAH SOCIETY [213 ITR 492] WHEREIN IT WAS HELD THAT CLAUSE (B) DEALS WITH A TRUST FOR RELIGIOUS PURPOSES OR A CHARITABLE PURPOSES. THEREFORE, A TRUST FOR PUBLIC RELIGIOUS PURPOSES OR A TRUST FOR A COMPOSITE ONE I.E. FOR RELIGIOUS AND CHARITABLE PURPOSE WOULD NOT BE COVER ED UNDER CLAUSE (B). I ALSO FIND THAT IN VIEW OF THE DECISION OF CHANDRA C HARITABLE TRUST [SUPRA] AS RELIED UPON BY THE APPELLANT, THE APPELLANT TRUST I S NOT COVERED U/S 13(L)(B). THE FACTS OF THE SAID CASE WERE IDENTICAL WITH THE FACTS OF THE APPELLANT TRUST. IT(SS)A N OS.474 TO 478/AHD/2010 8 3.6 IN VIEW OF THE AFORESAID POSITION IN FACTS AS W ELL AS IN LAW, THE ASSESSING OFFICER IS DIRECTED TO ALLOW EXEMPTION U/ S 11 OF THE ACT TO THE APPELLANT TOWARDS THE AMOUNT SPENT FOR THE OBJECTS OF THE TRUST OF RS.11,87,900/-, ADMINISTRATIVE EXPENSES RS.1,400/-, LEGAL FEES RS.5,000/- FOR A.Y.2001-02 WHEREAS THE SIMILAR EXEMPTION U/S 1 1 FOR A.Y.2002-03 WILL BE THE AMOUNT SPENT FOR THE OBJECTS OF THE TRUST OF RS.92,162/- AND PERMISSIBLE ACCUMULATION AT 25% BEING RS.12,373/-, THUS AGGREGATING TO RS.1,04,535/-. 4.1 FOLLOWING HIS AFORESAID DECISION, THE LD . CIT(A) ALLOWED THE CLAIM FOR EXEMPTION U/S 11 OF THE ACT IN THE AYS. 2004-05 TO 2006-07 ALSO. 5. THE REVENUE IS NOW IN APPEAL BEFORE US A GAINST THE AFORESAID FINDINGS OF THE LD. CIT(A). THE LD. DR MERELY SUPPORTED THE FI NDINGS OF THE AO WHILE THE LD. AR ON BEHALF OF THE TRUST SUPPORTED THE IMPUGNED O RDERS . 6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUG H THE FACTS OF THE CASE. INDISPUTABLY, THE TRUST IS REGISTERED U/S 12A OF TH E ACT. THUS, THE PROVISIONS OF SEC. 11 & 12 OF THE ACT ARE APPLICABLE. THE AO DENI ED THE CLAIM OF THE EXEMPTION U/S 11 OF THE ACT ONLY ON THE GROUND THAT THE TRUST WAS FOR PRIVATE RELIGIOUS PURPOSES ,NOT ENURING FOR THE BENEFIT OF THE PUBLIC AND WAS CREATED FOR A PARTICULAR RELIGIOUS COMMUNITY. ON THE OTHER HAND , THE LD. CIT(A) FOUND ON PERUSAL OF VARIOUS CLAUSES OF THE TRUST DEED AS WEL L AS THE INCOME AND EXPENDITURE ACCOUNT FOR THE RELEVANT YEA RS THAT THE ACTIVITIES OF THE ASSESSEE TRUST WERE RELIGIOUS ACTIVITIES FOR JAINIS M AND WERE NOT CARRIED OUT FOR THE BENEFIT OF ANY PARTICULAR PERSON OR FAMILY. WHILE REFERRING TO THE TESTS PROPOUNDED IN GIRDHARRAM HARIRAM BHAGAT (SUPRA) BY THE HONBLE JURISDICTIONAL HIGH COURT, THE LD. CIT(A) CONCLUDED THAT THE ASSES SEE TRUST WAS FOR THE BENEFIT OF PUBLIC AT LARGE AND THAT IT WAS ESTABLISHED FOR SET TING UP JAIN INSTITUTIONS LIKE GYANSHALA, PATHSHALA, UPASHRAY AS ALSO FOR MAKING ARRANGEMENTS FOR JAIN SADHU/SADHWIS, RELIGIOUS ACTIVITIES RELATING TO JAI N SHWETAMBER MURTI POOJA, RESEARCH RELATING TO THE LITERATURE ON JAINISM AND LECTURES, DISCUSSION OF JAIN GURUS ETC. ETC. WHILE NONE OF THE SAID OBJECTS WERE FOUND TO BE FOR THE BENEFIT OF ANY PRIVATE INDIVIDUALS OR DEFINITE AND ASCERTAINED INDIVIDUALS. THE REVENUE HAVE NOT PLACED BEFORE US ANY MATERIAL, CONTROVERTING TH ESE FINDINGS OF FACTS RECORDED IT(SS)A N OS.474 TO 478/AHD/2010 9 BY THE LD. CIT(A) SO AS TO ENABLE US TO TAKE A DIFF ERENT VIEW IN THE MATTER. EVEN THOUGH THE LD. CIT(A) RELIED UPON A NUMBER OF DECI SIONS IN THE IMPUGNED ORDER IN CONCLUDING THAT THE NONE OF THE OBJECTS OF THE TRUST IS FOUND TO BE FOR THE BENEFIT OF ANY PRIVATE INDIVIDUALS OR DEFINITE AND ASCERTAINED INDIVIDUALS AND THAT PROVISIONS OF SEC. 13(1)(A OR (B) ARE NOT APPLICABL E , THE REVENUE IN GROUND NO.1 IN THESE FIVE APPEALS HAVE QUESTIONED THE FINDINGS OF THE LD. CIT(A) IN ALLOWING EXEMPTION U/S 11 OF THE ACT ONLY ON THE GROUND T HAT THE LD. CIT(A) RELIED UPON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT I N CHANDRA CHARITABLE TRUST(SUPRA). WE FIND THAT THE HONBLE JURISDICTION AL COURT IN THE SAID DECISION MERELY REITERATED THEIR VIEWS IN CIT V. BARKATE SA IFIYAH SOCIETY [1995] 213 ITR 492,WHEN THEY OBSERVED THAT THE QUESTION AS TO WHA T SHOULD BE THE PRINCIPLE ADOPTED AND WHETHER JAINISM IS A LIFE-STYLE OR A RE LIGION, WOULD LOSE MUCH OF ITS IMPORTANCE IN VIEW OF THE JUDGMENT OF THE COURT IN BARKATE SAIFIYAH SOCIETY(SUPRA). THE REVENUE HAVE NOT DEMONSTRATED BEFORE US AS TO HOW THE FACTS AND CIRCUMSTANCES IN THE SAID DECISION ARE AT VARIANCE WITH THE FACTS AND CIRCUMSTANCES IN THE CASE BEFORE US. IN SIEMENS IN DIA LTD. VS. ITO (1983) 143 ITR 120 (BOM), THE HONBLE BOMBAY HC HELD THAT MERE LY BECAUSE AN APPEAL HAS BEEN FILED OR A SPECIAL LEAVE APPLICATION IS PENDIN G AGAINST THE HC DECISION, IT DOES NOT DENUDE THE DECISION OF ITS BINDING EFFECT AND UNTIL SET ASIDE THAT DECISION IS BINDING ON ALL UPON WHOM IT OPERATES AS A BINDIN G PRECEDENT UNLESS THE OPERATION OF THAT JUDGMENT IS STAYED BY THE HONBLE SUPREME COURT. IN THIS CONTEXT, THE HONBLE APEX COURT IN UNION OF INDIA V S. KAMLAKSHI FINANCE CORPORATION LTD., AIR 1992 SC AT 712 ,A CASE UNDER THE EXCISE LAW, OBSERVED : IT CANNOT BE TOO VEHEMENTLY EMPHASIZED TH AT IT IS OF UTMOST IMPORTANCE THAT, IN DISPOSING OF THE QUASI-JUDICIAL ISSUES BEFORE THEM, REVENUE OFFICERS ARE BOUND BY THE DECISIONS OF THE APPELLATE AUTHORITIES. THE ORDER OF THE APPELLATE COLLECTOR IS BINDING ON THE ASSISTANT COLLECTORS WORKING WITHIN HIS JURISDICTION AND THE ORDER OF TH E TRIBUNAL IS BINDING UPON THE ASSISTANT COLLECTORS AND THE APPELLATE COLLECTO RS WHO FUNCTION UNDER THE JURISDICTION OF THE TRIBUNAL. THE PRINCIPLES OF JUDICIAL DISCIPLINE REQUIRE THAT THE ORDERS OF THE HIGHER APPELLATE AUTHORITIES SHOULD BE FOLLOWED UNRESERVEDLY BY THE SUBORDINATE AUTHORITIES. THE ME RE FACT THAT THE ORDER OF THE APPELLATE AUTHORITY IS NOT ACCEPTABLE TO T HE DEPARTMENT IN ITSELF AN OBJECTIONABLE PHRASE AND IS THE SUBJECT MATTER O F AN APPEAL CAN FURNISH NO GROUND FOR NOT FOLLOWING IT UNLESS ITS OPERATION HAS BEEN SUSPENDED BY A COMPETENT COURT. IF THIS HEALTHY RULE IS NOT FOLL OWED, THE RESULT WILL ONLY BE UNDUE HARASSMENT TO ASSESSEES AND CHAOS IN ADMINIST RATION OF TAX LAWS. IT(SS)A N OS.474 TO 478/AHD/2010 10 THE HON`BLE SUPREME COURT FURTHER STATED THAT UTMOS T REGARD SHOULD BE PAID BY THE ADJUDICATING AUTHORITIES AND THE APPELLATE AUTH ORITIES TO THE REQUIREMENTS OF JUDICIAL DISCIPLINE AND THE NEED FOR GIVING EFFECT TO THE ORDER OF THE HIGHER APPELLATE AUTHORITIES, WHICH ARE BINDING ON THEM. 6.1 IN THE LIGHT OF VIEW TAKEN IN THE AFORESAID DECISIONS ,ESPECIALLY WHEN THERE IS NO MATERIAL BEFORE US TO TAKE A DIFFERENT VIEW IN THE MATTER, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A), A LLOWING EXEMPTION U/S 11 OF THE ACT FOR THE AMOUNT APPLIED TOWARDS THE OBJECTS AND ACTIVITIES OF THE TRUST . THEREFORE GROUND NO.1 IN ALL THESE APPEALS AND CONS EQUENTLY, GROUND NOS. 3 TO 5 IN THE APPEAL FOR THE AY 2001-02, GROUND NOS. 2 & 3 IN THE APPEALS FOR THE AYS 2004-05 & 2005-06 AS ALSO GROUND NO. 2 IN THE AP PEAL FOR THE AY 2006-07 ARE DISMISSED. 7 THE NEXT GROUND NO. 2 IN THE APPEALS FOR THE AY 2001-02 & 2002-03 RELATES TO CORPUS DONATIONS OF RS. 6,49,000/- & RS. 2,33,023/- RESPECTIVELY. THERE IS NO DISCUSSION IN THE ASSESSMENT ORDERS FOR THESE ASSESSMENT YEARS. ON APPEAL, THE ASSESSEE CLAIMED THAT CORPUS DONATION S OF RS.6,49,000/- RECEIVED IN THE A.Y.2001-02 AND RS.2,33,023/- IN THE A.Y. 2002- 03 WERE EXEMPT, THESE HAVING BEEN RECEIVED WITH A SPECIFIC CONDITION TOW ARDS THE CONSTRUCTION OF DERASER AND THE AMOUNTS WERE SEPARATELY CREDITED TO BUILDING FUND A/C. AS SHOWN IN THE BALANCE SHEET. ACCORDINGLY, FOLLOWING THE DECISION OF HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT V. SHRI BILLES WARA CHARITABLE TRUST ,145 ITR 29(MAD.), THE LD. CIT(A) CONCLUDED THAT VOLUNTARY CONTRIBUTIONS DIRECTED TO BE HELD AS PART OF THE CORPUS OF THE TRUST COULD NOT BE TREATED AS INCOME FOR THE PURPOSE OF SEC. 11 OR 12 OF THE ACT, IN VIEW OF P ROVISIONS OF SEC.12(1) OF THE ACT. THE LD. DR APPEARING BEFORE US DID NOT DISPUTE THI S POSITION IN LAW NOR CONTROVERTED THE FINDINGS OF THE LD. CIT(A). IN THE SE CIRCUMSTANCES , THERE IS NO MERIT IN GROUND NO.2 IN THE APPEALS FOR THE AYS 200 1-02 & 2002-03. THEREFORE. THESE GROUNDS ARE DISMISSED. IT(SS)A N OS.474 TO 478/AHD/2010 11 8. GROUND NO.4 IN THE APPEALS FOR THE AY 2004-05 , 2005-06 AND 2006-07 RELATES TO ADDITIONS OF RS.3,51,000/-,RS. 7 ,00,000/- & RS.70,63,263/- RESPECTIVELY ON THE BASIS OF SEIZED DOCUMENTS. IN THE AY 2004-05, THE AO NOTICED FOLLOWING ENTRIES I N THE SEIZED DOCUMENTS: 1/51 JAN 2004 1/11 JAN. FEB. 2004 A-8 PAGE 8 0/31 DEC. 2003 A-8 PAGE 10 0/51 JUNE 2003 A-8 PAGE 12 0/07 CHG. (JUNE 2003) A-8 PAGE 14 ------ 3.51 TO A QUERY BY THE AO, THE ASSESSEE EXPLAINED THAT T HE AFORESAID FIGURES IN THE DOCUMENT SEIZED WERE JUST PROMISES AND ACTUAL INCOM E WAS BOOKED AT THE TIME OF RECEIPT FROM THE DONOR. HOWEVER, THE AO REJECTED THE EXPLANATION ON THE GROUND THAT THE ASSESSEE WAS NOT ABLE TO SATISFACTO RILY EXPLAIN THE SAID FIGURES. 9. ON APPEAL, THE ASSESSEE FURNISHED A CHART SHOWING THE CORRESPONDING RECEIPTS WITH PARTICULARS AND CONTENDED THAT THE IN COME WAS DULY ACCOUNTED FOR IN ITS BOOKS AS AND WHEN ACTUALLY RECEIVED. ACCORDINGL Y, AFTER HAVING A REMAND REPORT FROM THE AO, THE LD. CIT(A) DELETED THE ADD ITION IN THE FOLLOWING TERMS: 5.3 I HAVE CONSIDERED THE SUBMISSIONS MADE AND REJ OINDER GIVEN BY THE APPELLANT. I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER AS WELL AS REMAND REPORT OF AO. THE CONTENTION RAISED BY AO TH AT THE RECONCILIATION SUBMITTED BY THE APPELLANT WAS AN AFTERTHOUGHT INAS MUCH AS IT WAS NOT SUBMITTED DURING THE ASSESSMENT PROCEEDINGS IS LIAB LE TO BE REJECTED FOR THE SIMPLE REASON THAT THE CORRESPONDING DONATIONS ACTUALLY RECEIVED AGAINST THE NOTINGS WERE DULY RECORDED IN THE REGUL AR BOOKS OF ACCOUNTS OF THE APPELLANT AND EVEN AUDITED BY THE AUDITOR. NOT ONLY THAT THE APPELLANT HAD FILED ITS RETURN OF INCOME ON 16-6-2004 WITH AU DITED ANNUAL ACCOUNTS WHEREAS THE SEARCH WAS CARRIED OUT ON 22-9-2006 DUR ING WHICH THE AFORESAID DOCUMENTS WERE FOUND AND SEIZED. THE CHAR T SUBMITTED BY THE APPELLANT ALONGWITH RELEVANT EXTRACT FROM THE DAY-B OOK SHOWING THE RECEIPT NUMBER, DATE ETC., CLEARLY PROVES THAT THE AMOUNT A S PER THE SEIZED NOTINGS WAS NOT UNACCOUNTED DONATIONS. IT IS ALSO WORTH-NOT ING THAT ALL THESE DONATIONS HAVE BEEN RECEIVED BY CHEQUE EXCEPT FOR R S.31,001 WHICH WAS RECEIVED IN CASH. THUS, THERE IS OVERWHELMING EVIDE NCE TO PROVE THAT THE DONATIONS WERE FULLY RECORDED IN THE REGULAR BOOKS OF ACCOUNT. THEREFORE, THE ADDITION OF RS.3,51,000 MADE BY AO IS DELETED. IT(SS)A N OS.474 TO 478/AHD/2010 12 10. SIMILARLY IN THE AY 2005-06, THE LEARNED CIT (A) DELETED THE ADDITION OF RS. 7 LACS IN THE FOLLOWING TERMS:- 5.1 DURING THE COURSE OF ASSESSMENT PROCEEDINGS, T HE AO CALLED FOR THE EXPLANATION OF THE APPELLANT WITH REGARD TO THE NOT INGS ON THE FOLLOWING PAPERS 1/51 A-8PAGE2 1/51 14.06.2004 A-8PAGE8 2/100 1-15 JUNE'04 A-8 PAGE 8 56,52,496 GROSS RECEIPTS AS PER ACCOUNT IN A3 PAGE 1-25 THE APPELLANT VIDE SUBMISSION DTD.26.12.09 STATED T HAT RS.5 LACS RECEIVED TOWARDS LOAN WAS WRONGLY TAKEN AS DONATION BY THE A CCOUNTANT IN THE REGULAR BOOKS AND RS.2 LACS RECEIVED FROM RANGSAGAR SANGH WAS ALSO SHOWN AS DONATION BUT ACTUALLY IT WAS RECEIVED TOWA RDS ADVANCE FOR EXPENSES. HOWEVER, AO REJECTED THIS EXPLANATION OF THE APPELLANT BY OBSERVING THAT AS PER REGULAR RETURN OF INCOME, THE GROSS RECEIPTS WERE RS.47,73,948 WHEREAS IT WAS RS.56,52,498 AS PER ANN EXURE A-3 WHICH CLEARLY ESTABLISHED THAT THE APPELLANT MAINTAINED T WO SETS OF BOOKS OF ACCOUNTS. THEREFORE THE AO HAD LAKEN THE RECEIPT AT RS.56,52,496 AND THE REMAINING NOTINGS WERE NOT SEPARATELY ADDED. 5.2 BEFORE ME, THE APPELLANT FURNISHED A CHART SHOW ING THE RECONCILIATION BETWEEN THE GROSS RECEIPTS AS PER PAGE 1-25 OF A-3 AND THE GROSS RECEIPTS AS PER AUDITED ANNUAL ACCOUNTS FOR THIS YEAR WHICH IS ANNEXED HEREWITH AS ANNEXURE-A. IT WAS POINTED OUT THAT LOANS AGGREGATI NG TO RS.7 LACS RECEIVED FROM THREE PARTIES VIZ. RANGSAGAR SANGH, B HANUMATIBEN AND UMESHBHAI WAS WRONGLY TAKEN AS DONATIONS IN THE SAI D SEIZED DOCUMENT, THOUGH THEY WERE RECEIVED AS LOAN. SINCE THE EXPLAN ATION OFFERED AND EVIDENCE BY WAY OF LEDGER A/C OF THE THREE PARTIES PRODUCED BEFORE ME WERE FRESH EVIDENCE, THE SAME WERE FORWARDED TO AO FOR HIS COMMENTS BECAUSE AS OBSERVED BY ME IN MY ORDER NO.CIT(A)-XXI /333- 334/DDIT(EXEM)/2009-10 DATED 19-02-2010 FOR A.Y. 20 01-02 & 2002-03, THE APPELLANT WAS NOT ALLOWED SUFFICIENT OPPORTUNIT Y TO EXPLAIN THE AFORESAID ADDITIONS. THE AO HAS SUBMITTED REMAND RE PORT NO.DDIT(E)/PUJYA-PANYAS/2009-10 DATED 3.3.2010, A C OPY OF WHICH WAS FURNISHED TO THE APPELLANT FOR HIS COMMENTS. THE AP PELLANT HAS SUBMITTED REJOINDER DATED 8.3.2010. IT IS PLEADED BY AO THAT DURING COURSE OF SCRUTINY, THE APPELLANT HAD NOT MADE ANY SUCH RECON CILIATION AND THE ALTERNATIVE PLEA RAISED BY THE APPELLANT SHOWS THAT THE INCOME OF RS.7,00,000 WAS UNACCOUNTED AND HENCE, THE CONTENTI ONS OF THE APPELLANT SHOULD BE REJECTED. IT(SS)A N OS.474 TO 478/AHD/2010 13 6. I HAVE CONSIDERED THE SUBMISSIONS MADE AND REJOI NDER GIVEN BY THE APPELLANT. I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER AS WELL AS REMAND REPORT OF AO. THE CONTENTION RAISED BY AO THAT THE RECONCILIATION SUBMITTED BY THE APPELLANT WAS AN AFTERTHOUGHT IN AS MUCH AS IT WAS NOT SUBMITTED DURING THE ASSESSMENT PROCEEDINGS IS LIABLE TO BE REJECTED FOR THE SIMPLE REASON THAT THE APPELLANT HAS FILED LEDGER A/C OF THE SAID PARTIES AND THE PERUSAL OF SCHEDULE-II OF THE AUDITED ANNUAL A/CS (PAGE 9 OF T HE PAPER BOOK) ALSO SHOW THE SAID AMOUNTS AS LOANS FROM THEM. IT IS ALS O EXPLAINED BY THE APPELLANT THAT THE SEIZED DOCUMENTS WAS UNAUDITED A NNUAL A/C WHICH WAS SENT TO THE TRUSTEE SHRI SHITAL SHETH AND THEREAFTE R THE AUDIT WAS FINALIZED. THE RETURN OF INCOME WAS FOR THIS YEAR WAS FILED ON 05.10.2005 WITH AUDITED ANNUAL A/CS WITH A COPY TO THE OFFICE OF TH E CHARITY COMMISSIONER, A'BAD. NOT ONLY THAT THE APPELLANT HAD FILED ITS RE TURN OF INCOME ON 05.10.2005 WITH AUDITED ANNUAL ACCOUNTS WHEREAS THE SEARCH WAS CARRIED OUT ON 22.9.2006 DURING WHICH THE AFORESAID DOCUMEN TS WERE FOUND AND SEIZED. UNDER THE CIRCUMSTANCE, THE EXPLANATION OFF ERED BY THE APPELLANT AS TO THE DIFFERENCE IS ACCEPTED AND THE ADDITION O F RS.7 LACS MADE BY AO IS DELETED. 11. LIKEWISE IN THE AY 2006-07, THE LEARNED CIT( A) DELETED THE ADDITION OF RS. 70,63,263/- AS UNDER: 6 THE NEXT GROUND OF APPEAL RELATES TO THE ADDITI ON OF RS.70,63,263 IN RESPECT OF SEIZED LOOSE PAPERS. 6.1 DURING THE COURSE OF ASSESSMENT PROCEEDINGS, T HE AO CALLED UPON THE APPELLANT TO EXPLAIN THE NOTINGS ON VARIOUS PAG ES OF ANNEXURE-8 AND ANNEXURE-9. THE APPELLANT REPLIED THAT THE FIGURES MENTIONED IN THE DOCUMENTS WERE JUST THE PROMISES WHEREAS ACTUAL INC OME WAS BOOKED AS AND WHEN ACTUALLY RECEIVED. HOWEVER, THE AO CONCLUD ED THAT THE APPELLANT WAS NOT ABLE TO EXPLAIN THE DONATIONS RECEIVED VIS A VIS THE INCOME REFLECTED IN ITS RETURN OF INCOME. THE AO FURTHER O BSERVED THAT THE ENTRIES IN ANNEXURE-A-8 MENTIONED THE AMOUNTS RECEIVED FROM VARIOUS PERSONS AND IN ABSENCE OF DATE OF RECEIPTS OF DONATIONS MEN TIONED THEREIN, IT WAS TAKEN AS RECEIVED IN THE YEAR IN WHICH SEARCH TOOK PLACE. THUS, AN ADDITION OF RS.70,62, 263 IN RESPECT OF PAGE 3, 5, 7, 9, 11, 13, 15, 16 & 17 OF ANNEXURE-A-8 WAS MADE. 6.2 BEFORE ME, THE APPELLANT CONTENDED THAT THE MOD US OPERANDI IN RESPECT OF THE NOTINGS ON THE LOOSE PAPERS WAS THE SAME AS IN EARLIER YEARS. IT WAS FURTHER CONTENDED THAT WHATEVER DONAT IONS WERE ACTUALLY RECEIVED, THEY WERE DULY RECORDED IN THE BOOKS OF A /CS AND IN ORDER TO SUBSTANTIATE THIS CLAIM, THE APPELLANT FILED EXTRAC T FROM THE CASH BOOK AND OTHER LEDGER A/CS ALONG WITH THE CHART. SINCE THE A FORESAID MATERIAL WAS AN ADDITIONAL EVIDENCE AND THE SAME WAS ADMITTED IN VI EW OF THE REASONS IT(SS)A N OS.474 TO 478/AHD/2010 14 STATED IN THE ORDER NO. CIT(A)-XXI/333-334/DDIT(EXE M)/2009-10 DATE 19- 02-2010 FOR A.Y.2001-02 & 2002-03. THE SAME WAS FOR WARDED TO AO FOR HIS COMMENTS. THE AO HAS SUBMITTED REMAND REPORT NO . DDIT(E)/PUJYA- PANYAS/2009-10 DATED 3-3-2010, A COPY OF WHICH WAS FURNISHED TO THE APPELLANT FOR ITS COMMENTS. THE APPELLANT HAS SUBMI TTED REJOINDER DATED 8- 3-2010. IT IS PLEADED BY AO THAT DURING THE COURSE OF SCRUTINY, THE ASSESSEE COULD NOT EXPLAIN THE ENTRIES, THOUGH SPEC IFICALLY ASKED. ON THE OTHER HAND, THE APPELLANT CONTENDED THAT ON A/C OF INSUFFICIENT TIME ALLOWED BY AO, THE SAME COULD NOT BE EXPLAINED IN DETAIL, T HOUGH IT WAS CLEARLY STATED THAT THE NOTINGS IN THE SEIZED DOCUMENTS WER E MERE PROMISES WHEREAS ACTUAL DONATIONS WERE DULY RECORDED IN THE BOOKS. 6.3 I HAVE CONSIDERED THE SUBMISSIONS MADE AND REJO INDER GIVEN BY THE APPELLANT. I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER AS WELL AS REMAND REPORT OF AO. THE CONTENTION RAISED BY AO TH AT THE RECONCILIATION SUBMITTED BY THE APPELLANT WAS AN AFTERTHOUGHT INAS MUCH AS IT WAS NOT SUBMITTED DURING THE ASSESSMENT PROCEEDINGS IS LIAB LE TO BE REJECTED FOR THE SIMPLE REASON THAT THE CORRESPONDING DONATIONS ACTUALLY RECEIVED AGAINST THE NOTINGS WERE DULY RECORDED IN THE REGUL AR BOOKS OF ACCOUNTS OF THE APPELLANT AND EVEN AUDITED BY THE AUDITOR. NOT ONLY THAT THE APPELLANT HAD FILED ITS RETURN OF INCOME ON 15.6.2006 WITH AU DITED ANNUAL ACCOUNTS WHEREAS THE SEARCH WAS CARRIED OUT ON 22.9.2006 WH ICH THE AFORESAID DOCUMENTS WERE FOUND AND SEIZED. THE CHART SUBMITTED BY THE APPELLANT ALONG WITH REL EVANT EXTRACT FROM THE DAY-BOOK SHOWING THE RECEIPT NUMBER, DATE ETC., CLE ARLY PROVES THAT THE AMOUNT AS PER THE SEIZED NOTINGS WAS NOT UNACCOUNTE D DONATIONS. THE PERUSAL OF CHART SHOWING RECONCILIATION FILED BY TH E APPELLANT INDICATES THAT MANY NOTINGS PERTAIN TO EARLIER YEARS AND THE SAME HAD ALREADY BEEN SHOWN AS DONATIONS IN THE RESPECTIVE YEAR. FOR EXAM PLE, THE NOTINGS ON PAGE 5 COMPLETELY PERTAIN TO AY 2005-06. THUS, THER E IS OVERWHELMING EVIDENCE TO PROVE THAT THE DONATIONS ACTUALLY RECEI VED WERE FULLY RECORDED IN THE REGULAR BOOKS OF ACCOUNT. EVEN OTHERWISE, AL L THOSE DONATIONS WHICH HAVE BEEN DULY REFLECTED IN BOOKS FOR EARLIER YEARS WOULD RESULT INTO DOUBLE ADDITION IN CASE THE SAME ARE ALSO TREATED AS DONAT IONS RECEIVED IN THIS YEAR. THE AO HAS PRESUMED THE DONATIONS AS PER NOTI NGS AS PERTAINING TO THIS YEAR BUT THE APPELLANT HAS PROVED BY THE EXTRA CT OF CASH BOOK, RECEIPT NO. ETC. THAT THE DONATIONS RELATING TO EARLIER YEA R HAVE BEEN ALREADY ACCOUNTED FOR IN THE RESPECTIVE YEAR. AND HENCE THE RE WAS NO CASE FOR MAKING ADDITION IN THIS YEAR FOR SUCH DONATIONS. EV EN IN THE REMAND REPORT DTD.03.03.2010, THE AO HAS NOT DISPUTED THIS CONTEN TION OF THE APPELLANT. THEREFORE, THE ADDITION OF RS.70,63,263 MADE BY AO IS DELETED. 12. THE REVENUE IS NOW IN APPEAL BEFORE US AGAIN ST THE AFORESAID FINDINGS OF THE LD. CIT(A). THE LD. DR RELIED UPON THE ORDER O F THE AO WHILE THE LD. AR ON BEHALF OF THE ASSESSEE SUPPORTED THE FINDINGS OF TH E LD. CIT(A) IT(SS)A N OS.474 TO 478/AHD/2010 15 13. WE HAVE HEARD BOTH THE PARTIES AND GONE T HROUGH THE FACTS OF THE CASE. AS IS APPARENT FROM THE AFORESAID FINDINGS OF THE L D. CIT(A), SINCE THE AMOUNTS MENTIONED IN THE SEIZED DOCUMENTS WERE FOUND TO BE RECORDED IN THE REGULAR BOOKS OF ACCOUNTS WHILE RETURNS FOR THE AFORESAID T HREE ASSESSMENT YEARS BASED ON THE SAID BOOKS WERE FILED MUCH BEFORE THE SEAR CH AND THE LD. CIT(A) DULY CONFRONTED THE ADDITIONAL EVIDENCE SUBMITTED BEFO RE HIM TO THE AO, WE ARE NOT INCLINED TO INTERFERE. THE LD. DR DID NOT PLACE A NY MATERIAL BEFORE US, CONTROVERTING THE AFORESAID FINDINGS OF THE LD. CIT (A). IN THE ABSENCE OF ANY MATERIAL, THERE IS NO BASIS FOR TAKING A DIFFERENT VIEW IN THE MATTER. THEREFORE, GROUND NO.4 IN THE APPEALS FOR THE AYS. 2004-05 TO 2006-07 IS DISMISSED. 14. GROUND NO.3 IN THE APPEAL FOR THE AY 2006-07 RELATES TO AN ADDITION OF RS.6.LACS ON ACCOUNT OF UNEXPLAINED CASH CREDIT. TH E AO NOTICED ON PERUSAL OF PAGE 2 OF ANNEXURE - A-8 OF THE SEIZED DOCUMENT THA T THE ASSESSEE HAD SHOWN LOAN OF 2/5, 2/5 & 1/00. THESE FIGURES WERE IN LACS . SINCE THE ASSESSEE DID NOT FURNISH ANY DOCUMENTARY EVIDENCE IN SUPPORT OF THE SAID LOAN, THE AO TREATED THE AMOUNT OF RS.6 LACS AS UNEXPLAINED CASH CREDIT. 15. ON APPEAL, THE ASSESSEE CONTENDED THAT THE S AID NOTING PERTAINED TO THE CHEQUES RECEIVED FROM 3 PARTIES AND WERE REFLECTED IN THE BOOKS OF ACCOUNTS AND AUDITED ANNUAL A/CS FOR THE RELEVANT YEARS . ACCORD INGLY, THE LD. CIT(A) DELETED THE ADDITION IN THE FOLLOWING TERMS: 7.3 I HAVE CONSIDERED THE SUBMISSIONS MADE AND EVID ENCE PRODUCED BY THE APPELLANT. I HAVE ALSO GONE THROUGH THE ASSESSM ENT ORDER AND THE NOTINGS MADE BY AO WHICH SHOWS AS UNDER:- ANNEXURE-8 (I) PAGE-2 ENTRY (2/50 CHEQUE LOAN ACCOUNT, 2/50 CH EQUE LOAN A/C) FOR PURCHASE OF PROPERTY 0/75 PROPERTY PURCHASE 1 / 00 LOAN (JETH SUDH-15) SYNDICATE 6,75,000/- - 75,000/-. = TOTAL- 6,00,000/- IT(SS)A N OS.474 TO 478/AHD/2010 16 THE APPELLANT SUBMITTED EXPLANATION THAT THE SAID A MOUNT OF RS.6 LACS WAS RECEIVED AS LOAN AS PER THE DETAILS G IVEN ON PAGE 56 WHICH IS ANNEXED HEREWITH AS PER ANNEXURE A . THE APPELLANT HAS ALSO FILED L EDGER A/C FROM ITS BOOKS AS WELL AS CONTRA A/C FROM THE PARTIES WHICH CLEARLY PROVES TH AT THE AFORESAID AMOUNTS WERE NOT RECEIVED IN THIS YEAR AND THEY WERE ALREADY REF LECTED IN THE BOOKS FOR THE RESPECTIVE YEAR. THEREFORE, THE ADDITION OF RS.6 LA CS MADE BY AO IS DELETED. 16. THE REVENUE IS NOW IN APPEAL BEFORE US AGAI NST THE AFORESAID FINDINGS OF THE LD. CIT(A). THE LD. DR RELIED UPON THE ORDER OF THE AO WHILE THE LD. AR ON BEHALF OF THE ASSESSEE SUPPORTED THE FINDINGS OF TH E LD. CIT(A) 17. WE HAVE HEARD BOTH THE PARTIES AND GONE T HROUGH THE FACTS OF THE CASE. AS IS APPARENT FROM THE AFORESAID FINDINGS OF THE L D. CIT(A), SINCE THE AMOUNTS MENTIONED IN THE SEIZED DOCUMENTS WERE FOUND TO BE RECORDED IN THE REGULAR BOOKS OF ACCOUNTS AND REFLECTED IN THE AUDITED ACC OUNTS FOR THE RELEVANT YEARS WHILE RETURN BASED ON THE SAID BOOKS WAS FILED MUC H BEFORE THE SEARCH, WE ARE NOT INCLINED TO INTERFERE. THE LD. DR ALSO DID NOT PLACE ANY MATERIAL BEFORE US, CONTROVERTING THE AFORESAID FINDINGS OF THE LD. CIT (A). IN THE ABSENCE OF ANY MATERIAL, THERE IS NO BASIS FOR TAKING A DIFFERENT VIEW IN THE MATTER. THEREFORE, GROUND NO.3 IN THE APPEAL FOR THE AY 2006-07 IS ALS O DISMISSED. 18. NO OTHER SUBMISSION , PLEA OR ARGUMENT WAS MADE BEFORE US. 19 IN THE RESULT, THESE FIVE APPEALS BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT TODAY ON 28 -01-201 1 SD/- SD/- (BHAVNESH SAINI) JUDICIAL MEMBER (A N PAHUJA) ACCOUNTANT MEMBER DATED : 28-01-2011 COPY OF THE ORDER FORWARDED TO: 1. PUJYA PANYAS BHADRASHIL VIJAYJI GAIVAR SMARAK TR UST, 11-A, IT(SS)A N OS.474 TO 478/AHD/2010 17 KRUPA SAGAR SOCIETY, OPP. SHANTIVAN BUS STAND, PALD I, AHMEDABAD 2. THE DEPUTY DIRECTOR OF INCOME-TAX (EXEMPTION), A HMEDABAD 3. CIT CONCERNED 4. CIT(A)-XXI, AHMEDABAD 5. DR, ITAT, AHMEDABAD BENCH-C, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD