The ACIT, 2(1), Bhopal V. M/s H. K. Kalchuri EducationTrust, Bhopal

MA 60/IND/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8137 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-05-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 28-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KESHAV SAXENA
• Assessee Lawyers: H CHIMNANI
• Keywords: Depreciation; Question of law; Benefit of exemption
• Section: 80G; 12A; 12; 28; 11

Judgement Text

1 IN THE INCOME TAX APPELATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER M.A. NOS. 59 TO 62/IND/20111 (ARISING OUT OF ITA NOS. 533,534,535/IND/2007 & 334 /IND/2008) A.YS. 2002-03 TO 2005-06 ACIT 2(1), BHOPAL :: APPLICANT VS H.K. KALCHURI TRUST BHOPAL :: RESPONDENT APPELLANT BY SHRI KESHAV SAXENA RESPONDENT BY SHRI H.CHIMNANI DATE OF HEARING 11.05.2012 DATE OF PRONOUNCEMENT 2 4 .05.2012 2 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THESE ARE THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE TO RECTIFY A MISTAKE ALLEGED TO HAVE ARISEN IN T HE ORDER OF THE TRIBUNAL DATED 24 TH MAY, 2011. 2. THE SUBMISSIONS OF THE LEARNED CIT DR ARE AS UNDER :- KINDLY REFER TO THE ABOVE. THE ASSESSEE HAS NOT ADDED AMOUNT OF RS. 1.38 CRORES RECEIVED IN A.Y. 04-05 TOWARDS DEVELOPMENT FUND IN ITS INCOME SIDE, BUT ASSESSEE ALSO FAILED TO PROVE THAT IT WAS DONATION SPECIFICALLY GIVEN WITH DIRECTION TO DONOR TO FORM PART OF CORPUS (SEE 11(1)(A). HENCE, THIS HAS TO BE ADDED U/S 11(1) INTO INCOME OF ASSESSEE AND IT BECOMES SURPLUS SINCE IT IS NOT UTILIZED TOWARDS ANY OBJECT OF THE TRUST DURING THE YEAR AND IT IS OVER AND ABOVE THE PERMITTED ACCUMULATION OF 15% OF RS. 1.25 CR. WHICH IS ALREADY ALLOWED IN COMPUTATION. SINCE THIS AMOUNT IS NEITHER ACCUMULATED NOR THE A.O. INTIMATED OF SUCH ACCUMULATION, THERE IS VIOLATION OF SECTION. 11(2) & 11(5) OF THE IT ACT. 3 THIS AMOUNT WAS HELD AS REVENUE BY LD.CIT(A) BUT THIS WAS NOT ADJUDICATED UPON BY HON'BLE I.T.A.T. IN THE LIGHT OF THE SUBMISSION MADE ABOVE, IT SHOULD BE HELD AS REVENUE RECEIPT AND AS A COROLLARY TO THAT AS THERE IS VIOLATION OF SECTION 11(2) AND SECTION 11(5) OF THE ILT ACT, THE CLAIM OF DEDUCTION SHOULD BE WITHDRAWN OR AT LEAST RS. 1.38 CRORES OF DEVELOPMENT FUND SHOULD BE HELD TAXABLE IN A.Y.04-05 AND LIKEWISE IN OTHER YEARS ALSO CORRESPONDING AMOUNTS SHOULD BE TAXED. 3. ON THE OTHER HAND, THE LD.COUNSEL FOR THE ASSESSE E FURNISHED A DETAILED CHART GIVING PARAWISE REPLY OF TH E OBJECTIONS RAISED IN THE RECTIFICATION APPLICATION FIL ED BY THE REVENUE DULY INDICATING PARA NUMBER/PAGE NUMBER OF THE ORDER OF THE TRIBUNAL WHEREIN EACH AND EVERY ISSUE HAS BEEN DISCUSSED. 4. WE HAVE GONE THROUGH THE MISCELLANEOUS APPLICATION AND FIND THAT THE ISSUE, UNDER CONSIDERATION, HAS BEEN DECIDED BY THE TRIBUNAL AFTER HAVING MADE THE FOLLOWIN G OBSERVATIONS :- 4 19. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIE S BELOW AND FOUND THAT THE ASSESSMENT FOR ASSESSMENT YEAR 2002-03 WAS PASSED BY THE AO ON 16.11.2005. AT THAT TIME, THE CERTIFICATE OF REGISTRATION AVAIL ABLE WITH THE AO WAS W.E.F. 1.4.2003 DATED 17.11.2004. ACCORDINGLY, THE AO MADE ADDITIONS BY TREATING THE ASSESSEE AS NOT REGISTERED DURING THE RELEVANT ASSESSMENT YEAR UNDER CONSIDERATION. HOWEVER, PURSUANT TO THE ORDER OF THE TRIBUNAL DATED 12.3.2007, THE REGISTRATION WAS GRANTED TO THE ASSESSEE TRUST W.E.F. 13.1.1999 I.E. THE DATE ON WH ICH IT WAS REGISTERED WITH THE REGISTRAR OF PUBLIC TRUS T. WITH THE GRANT OF REGISTRATION W.E.F. 13.1.1999, TH E INCOME OF THE INSTITUTION WAS EXEMPT FROM TAX. THE CIT(A) HAS THOROUGHLY CONSIDERED THE SUBMISSIONS MADE BEFORE HIM, ALLOWED THE EXPENDITURE AND TREATED THE INCOME AS EXEMPT IN VIEW OF THE ASSESSE E TRUST HAVING BENEFIT OF EXEMPTION AVAILABLE U/S 11. FROM THE RECORD, WE FOUND THAT BEFORE THE CIT(A), T HE ASSESSEE HAS SUBMITTED LIST OF CASES IN WHICH VARIO US ISSUES REGARDING ASSESSMENT OF PUBLIC TRUST WAS DEALT WITH IN ADDITION TO IT A STATEMENT GIVING DET AILS, HOW THE INCOME OF THE TRUST IS TO BE CALCULATED BAS ED ON THE DECISIONS OF VARIOUS HIGH COURTS AND SUPREME COURTS, WHICH HAS BEEN DISCUSSED BY THE CIT(A) IN HIS ORDER. IN THE RESULT, THE LD. CIT(A) DELETED THE ADDITION OF RS.1,92,93,896/- DUE TO NON ALLOWANCE OF EXEMPTION U/S 11 & 12 OF THE INCOME- TAX ACT, 1961. THE LD. CIT(A) HAS ALSO DEALT IN DET AIL THE ISSUE WITH REGARD TO DISALLOWANCE OUT OF LAB AN D PRACTICAL EQUIPMENTS/CONSUMABLES AND THE EXPENSES, WHICH WERE DISALLOWED ON THE PLEA OF PERSONAL EXPENSES OF TRUSTEES, IN THE ASSESSMENT YEAR 2004-05. THE LD. CIT(A) HAS EXAMINED THE FACTS OF THE CASE AND BUY APPLYING THE LEGAL PROPOSITION AS DISCUSSED IN THE ORDER ALLOWED RELIEF TO THE ASSESS EE. THE FINDINGS RECORDED BY THE LD. CIT(A) HAS NOT BEE N CONTROVERTED BY THE DEPARTMENT, WE, THEREFORE, DO 5 NOT FIND ANY INFIRMITY IN HIS ORDER FOR ALLOWING EXEMPTION IN RESPECT OF INCOME FOR THE ASSESSMENT YEAR 2002-03. 20. IN THE ASSESSMENT YEAR 2003-04, THE AO HAS OBSERVED THAT THE ASSESSEE TRUST HAS BEEN GRANTED REGISTRATION U/S 12A W.E.F. 1.4.2003, THE BENEFIT O F SAID CERTIFICATE WAS HELD TO BE NOT ALLOWABLE TO TH E ASSESSEE FOR THE ASSESSMENT YEAR 2003-04. IN THE RESULT, HE HELD THAT CERTIFICATE U/S 12A ISSUED W.E .F. 1.4.2003 WOULD NOT ENTITLE THE ASSESSEE TO CLAIM EXEMPTION U/S 11 FOR THE ASSESSMENT YEAR 2003-04 UNDER CONSIDERATION. HE ASSESSED THE INCOME OF TRUST UNDER REGULAR PROVISIONS OF THE INCOME-TAX AC T, 1961, I.E. SECTION 28 TO 44. AS DISCUSSED HEREINABOVE, THE TRIBUNAL HAS ALLOWED THE REGISTRATION TO THE ASSESSEE TRUST WITH THE DATE OF ITS INCEPTION AND THE CHIEF CIT HAS ISSUED FRESH CERTIFICATE U/S 12A ON 12.3.2007 GRANTING REGISTRATION TO THE TRUST W.E.F. 13.1.1999, THE DAT E WHEN THE TRUST WAS FORMED. TAKING INTO CONSIDERATION THE FRESH REGISTRATION GRANTING W.E.F . 13.1.1999, THE LD. CIT(A) AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, ALLOWED THE EXEMPTION TO THE ASSESSEES INCOME U/S 11 TO 13. THUS, THE ADDITION OF RS. 1,55,01,050/-DUE TO NON ALLOWANCE OF EXEMPTION U/S 11 & 12 WAS DELETED BY THE LD. CIT(A). THE LD. CIT(A) HAS ELABORATELY DISCUSSED THE SUBMISSIONS MADE BEFORE HIM AND ALSO THE OBSERVATION OF THE AO. SIMILARLY, THE DISALLOWANCE OUT OF LAB AND PRACTICAL EQUIPMENTS/CONSUMABLES, AND IN RESPECT OF EXPENSES OF THE TRUSTEES, THE LD. CIT(A) HAS DEALT IN DETAIL IN THE APPELLATE ORDER FOR ASSESSMENT YEAR 2004-05 AND AFTER PROPER EXAMINATION OF THE FACTS O F THE CASE AND LEGAL POSITION, GRANTED DUE RELIEF TO THE ASSESSEE. 6 21. IN THE ASSESSMENT YEAR 2004-05, THE AO HAS NOT GRANTED EXEMPTION U/S 12A ON THE PLEA THAT MERE GRANTING OF REGISTRATION U/S 12A BY THE CIT DOES NOT AUTOMATICALLY ENTITLE THE ASSESSEE FOR EXEMPTION U/S 11 TO 12. THE AO ALSO OBSERVED THAT THERE WERE UN-VOUCHED EXPENSES AS POINTED OUT BY THE SPECIAL AUDITOR U/S 142(2A), THEREFORE, THE INSTITUTION WAS RUN FOR PROFIT. THE AO ALSO STATED THAT THE ASSESSEE TRUST HAS DIVERTED ITS FUND FOR BENEFIT OF TRUSTEES BY MEETING CERTAIN PERSONAL EXPENSES OF THEM AND OTHER INSTITUTIONS UNDER THE SAME MANAGEMENT BY GIVING ADVANCES. THE ASSESSEE HAS FURNISHED FULL REPLY TO MEET ALL THE OBJECTIONS OF THE AO, HOWEVER, THE AO DID NOT AGREE AND DECLINE BENEFIT OF SECTION 12A. HOWEVER, THE LD. CIT(A) HAS DISCUSSED EACH OBJECTION OF THE AO AND REPLY FILED BY THE ASSESSEE WITH THE DOCUMENTARY EVIDENCE AND OBSERVED THAT ,NO DOUBT, THE GRANTING OF REGISTRATI ON DOES NOT AUTOMATICALLY LEAD TO EXEMPTION OF INCOME OF THE TRUST. HOWEVER, THE SINCE THE ASSESSEE TRUST HAS NOT CONTRAVENED ANY OF THE PROVISIONS OF SECTIO N 11 TO 13, THE ASSESSEE TRUST IS ENTITLED TO EXEMPTI ON OF ITS INCOME. IT WAS FURTHER OBSERVED BY THE LD. CIT(A) THAT AUDIT OF ACCOUNTS OF ALL THE THREE EDUCATIONAL INSTITUTIONS WERE COMPLETED EARLIER TO THE FILING OF THE INCOME TAX RETURN OF THE TRUST ON 26.10.2004. HOWEVER, DUE TO IGNORANCE OF THE COUNSEL, THE SAME WERE NOT ENCLOSED WITH THE RETURN OF INCOME. IT WAS CATEGORICALLY OBSERVED THAT ALL THESE REQUIREMENTS WERE COMPLIED BEFORE THE COMPLETION OF ASSESSMENT AND THE SAME HAVE BEEN CONSIDERED BY THE ASSESSING OFFICER IN HIS ASSESSMENT ORDER. THE LD. CIT(A) ALSO OBSERVED THAT DENIAL OF EXEMPTION U/S 10(23C) AND SECTION 80G DOES NOT AFFECT THE GRANTING OF REGISTRATION TO THE INCOME OF THE ASSESSEE TRUST, WHEN THE SAME IS OTHERWISE EXEMPT U/S 11 TO 13. IT WAS OBSERVED THAT ALL THE VOUCHERS WERE PRODUCED BEFORE THE AUDITOR WHO DID THE STATUTORY AUDIT, HOWEVER, BY THE TIME 7 SPECIAL AUDITOR WAS APPOINTED, THE ORIGINAL STAFF W AS CHANGED AND THE NEW STAFF COULD NOT TRACE ALL THE RELEVANT FACTS AND THE FILES AT THE TIME OF SPECIAL AUDIT. AFTER EXAMINATION OF THE FACTS AND OBSERVATI ON OF THE AO, THE CIT(A) FOUND THAT NO PERSONAL ADVANTAGE WAS GIVEN TO THE TRUSTEES OF THE TRUST AN D THAT ADVANCES GIVEN TO THE ASSOCIATE INSTITUTIONS WERE TEMPORARY ADVANCERS GIVEN TO THE EDUCATIONAL INSTITUTION FOR THE PURPOSE OF OBJECTS OF THE TRUST , BEING OBJECTS NO.12 ON PAGE 52 OF THE COMPILATION FILED BEFORE HIM WITH REGARD TO DISALLOWANCE OF RS. 3,02,965/- WITH RESPECT TO EXPENDITURE ON LAB AND PRACTICAL EQUIPMENTS/CONSUMABLES, WE FOUND THAT LNCT COLLEGE HAD SPENT RS. 20.19 LAKHS ON ACCOUNT OF LAB AND PRACTICAL EQUIPMENTS/CONSUMABLES. THE AO HAS DISALLOWED 15 % OF PURCHASES ON THE PLEA THAT AUDIT REPORT U/S 142(2A) MENTIONED REGARDING NON-VERIFIABILITY OF SOME OF THE EXPENSES AND THAT NO BIFURCATION WAS AVAILABLE AS TO THE EXPENSES ON PURCHASES OF EQUIPMENTS VIS--VIS PURCHASE OF CONSUMABLES. THE LD. CIT(A) HAS RECORDED A CATEGORICAL FINDING TO THE EFFECT THAT ALL THESE EXPENSES WERE DULY RECORDED IN THE REGULAR BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE AND THE SAME WAS FULLY VOUCHED AND PRODUCED BEFORE THE AUDITOR AT THE TIME OF REGULAR AUDIT. AS DISCUSSED ABOVE, D UE TO CHANGE IN THE STAFF, DIFFERENT FILES IN WHICH TH ESE VOUCHERS WERE PLACED COULD NOT BE LOCATED. ACCORDINGLY, IT WAS HELD THAT ESTIMATED DISALLOWANC E WAS WRONG AND UNCALLED FOR. SIMILARLY, ADDITION OF RS. 3,01,000/- WAS MADE ON THE PLEA OF PERSONAL EXPENSES OF THE TRUSTEES. IN THIS REGARD, WE FOUND THAT THE RESIDENCE OF THE MANAGING TRUSTEE WAS SITUATED AT SHYAMLA HILLS, WHICH IS IN THE HEART OF THE CITY, WHEREAS THE COLLEGES ARE SITUATED AT RAIS EN ROAD, WHICH IS ABOUT 10-12 KMS. AWAY FROM THE CITY. THE TRUSTEE HAS GIVEN THREE ROOMS AND LODGING OF HI S RESIDENCE, FREE OF RENT TO THE SOCIETY FOR HANDLING ITS BANKING AND OTHER ADMINISTRATIVE WORK. WE ALSO 8 FOUND THAT MANAGING TRUSTEE OWNS HIS OWN CAR AND TELEPHONE AND WAS ALSO EMPLOYING PERSONAL SERVANTS FOR HIS HOUSE HOLD WORK. SIMILARLY, TRUST WAS ALSO USING ELECTRICITY OF THE PREMISES, IT OCCUPIED FOR OFFICIAL WORK. IN VIEW OF THESE FINDINGS BY CIT(A) THE AO WAS NOT CORRECT IN ALLEGING THAT PERSONAL BENEFI T HAS BEEN DERIVED BY THE TRUSTEES WHEN, IN FACT, THE TRUSTEE IS NOT CHARGING ANY RENT FOR THE SIZEABLE PORTION OF THE PROPERTY LET OUT TO THE TRUST. IT WA S ALSO FOUND THAT NO PERSONAL EXPENSES OF THE TRUSTEE WERE DERIVED BY THE TRUST. RELIANCE PLACED ON THE STATEMENT OF THE WIFE OF THE MANAGING TRUSTEE WAS MISPLACED WITHOUT CONSIDERING TOTALITY OF THE FACTS . AFTER RECORDING DETAILED FINDINGS, THE LD. CIT(A) H AS DELETED THE ADDITION ALLEGED TO BE TOWARDS PERSONAL EXPENSES OF THE TRUSTEE, WHICH HAS NOT BEEN CONTROVERTED, WE, THEREFORE, DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF THE CIT(A) FOR SUCH DELET ION. 22. ADDITION OF RS. 2.26 CRORES WAS MADE BY THE ASSESSING OFFICER TOWARDS NET INCOME OF THE ASSESSEE, THE CALCULATION OF THE AO WAS AS UNDER :- INCOME AS PER AUDITED ACCOUNTS SUBJECT TO ADJUSTMENT OF DEPRECIATION, INTEREST AND ITEMS DISALLOWED BY AO TOWARDS UNVOUCHED EXPENSES, PERSONAL EXPENSES ETC. RS. 94,12,964 ADD: FEE RECEIVED IN THE FORM OF DEVELOPMENT FUND RS. 1,38,83,870 RS. 2,32,96,834 LESS: ADDITION TOWARDS LAB EQUIPMENTS ( GR. 1) RS. 3,02,965 LESS: ADDITION TOWARDS PERSONAL RS. 3,01,593 9 EXPENSES (GR. 2) RS.2,26,92,276 23. BY APPLYING THE DECISION OF THE HON'BLE HIGH COURT AND SUPREME COURT, THE CORRECT COMPUTATION OF INCOME WORKS OUT TO BE AS UNDER :- GROSS RECEIPTS OF THE TRUST & 3 COLLEGES 8,54,99,3 71 LESS: 15 % ALLOWED FOR ACCUMULATION 1,28,24,906 7,26,74,465 LESS: EXPENSES ACTUALLY INCURRED 5,44,39,890 1,82,34,575 LESS: DEPRECIATION DEBITED BELOW THE LINE IN BOOKS (ALLOWED BY AO AT RS. 1,45,07,536/-)(PAGE 24 OF COMPILATION) 99,57,272 82,77,303 LESS: INTEREST (NOT CONSIDERED IN TOTAL EXPENSES) (PAGE 24 OF COMPILATION) 85,43,019 EXCESS APPLICATION OF INCOME (-)2,65,716 SUBJECT TO OTHER NOTES/CLAIMS FOR CALCULATING ACCUMULATION OF INCOME AS PER STATEMENT ENCLOSED. 24. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) FOR DELETING T HE ADDITION OF RS. 2.26 CRORES MADE BY THE ASSESSING OFFICER. 25. IN THE ASSESSMENT YEAR 2004-05, THE REVENUE HAS RAISED SIMILAR ISSUE WITH REGARD TO ALLOWING EXEMPTION U/S 11, DELETION OF ADDITION ON ACCOUNT OF LAB AND EQUIPMENT CONSUMABLES, DEPRECIATION ON LAB AND EQUIPMENT AND ALSO DELETING OF EXPENSES ALLEGED TO BE ON PERSONAL ACCOUNT OF THE TRUSTEE. B Y 10 OBSERVING THAT THE ASSESSEE TRUST WAS RUNNING FOR EDUCATIONAL COLLEGES, THE INCOME OF THE ASSESSEE TRUST HAVING DERIVED SOLELY FROM THESE EDUCATIONAL INSTITUTIONS AND ITS ACTIVITIES WERE NOT FOR PROFIT , THE CIT(A) ALLOWED EXEMPTION U/S 11. THE CIT(A) ALSO RECORDED A CATEGORICAL FINDING THAT THE ASSESSEE TRUST HAS BEEN GRANTED REGISTRATION U/S 12A BY VERIFYING ITS OBJECT AND ACTIVITIES OF EDUCATIONAL COLLEGES, RUN BY IT. THESE FINDINGS HAVE NOT BEEN CONTROVERTED AND THE SAME ARE AS PER MATERIALS PLACED ON RECORD, NO INTERFERENCE IS REQUIRED THEREIN. 26. WITH REGARD TO THE TREATMENT OF AMOUNT RECEIVED TOWARDS DEVELOPMENT FUND AS REVENUE INCOME, THE CIT(A) UPHELD THE DECISION OF THE AO. HOWEVER, IN VIEW OF THE FACT THAT THE ENTIRE INCOME OF THE ASSESSEE TRUST WAS EXEMPT U/S 11, HE HELD THAT TREATMENT OF SUCH RECEIPT AND REVENUE WOULD NOT AFFECT THE ASSESSEE TRUST SINCE ITS INCOME IS SUBJECT TO EXEMPTION U/S 11 GRANTED ON THE INCOME OF THE ASSESSEE TRUST. 27. DISALLOWANCE OF RS. 6,86,716/- ON ACCOUNT OF PURCHASES OF LAB EQUIPMENT AND CONSUMABLES, WAS DELETED BY THE LD. CIT(A) AFTER OBSERVING THAT NO DISALLOWANCE ON ESTIMATE BASIS WAS WARRANTED WITHOUT RECORDING SPECIFIC FINDING WITH RESPECT TO PARTICULAR ITEMS OF EXPENSES/VOUCHERS AS NON- GENUINE. AFTER HAVING A DETAILED OBSERVATION AS GIVEN IN THE EARLIER ASSESSMENT YEARS, THE CIT(A) DELETED THE DISALLOWANCES. NOTHING WAS BROUGHT ON RECORD TO CONTROVERT THE FINDING OF CIT(A), WE, THEREFORE, DO NOT FIND ANY REASON TO INTERFERE IN T HE DELETION OF ADDITION OF RS. 6.86 LAKHS ON ACCOUNT O F PURCHASE OF LAB EQUIPMENTS AND CONSUMABLES. 28. WITH REGARD TO THE DISALLOWANCE OF EXPENSES INCURRED ON CONSTRUCTION OF DIFFERENT COLLEGES, THE 11 CIT(A) OBSERVED THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS, ALL THE RELEVANT VOUCHERS WERE MADE AVAILABLE BEFORE THE AO AND THE AO HAS MISPLACED ITS RELIANCE ON THE FINDINGS GIVEN IN THE SPECIAL A UDIT REPORT OF THE EARLIER ASSESSMENT YEARS AND APPLIED THE SAME IN THE CURRENT ASSESSMENT YEARS. IN VIEW OF OUR DISCUSSIONS MADE IN EARLIER YEARS WITH REGAR D TO SUCH DISALLOWANCE, WE CONFIRM THE ACTION OF THE CIT(A) FOR DELETING THE SAME. SIMILARLY, DISALLOWAN CE MADE ON ACCOUNT OF DEPRECIATION ON LAB EQUIPMENTS AND BUILDING, ON THE VERY SAME REASONING AND ANALOGY, WE DELETE THE DISALLOWANCE SO MADE. SIMILARLY, DISALLOWANCE MADE ON ACCOUNT OF SALARY TO EMPLOYEES, VEHICLE EXPENSES, ELECTRICITY EXPENSE S AND TELEPHONE EXPENSES, BY FOLLOWING THE SAME REASONING AS GIVEN IN EARLIER YEARS, WE CONFIRM THE ACTION OF THE CIT(A) FOR DELETING THESE DISALLOWANC ES. 29. DURING THE COURSE OF HEARING, THE LD. CIT DR RELIED ON DECISION OF HON'BLE KERALA HIGH COURT REPORTED AT 226 ITR 211, WHEREIN EXEMPTION U/S 11 WAS DENIED ON THE BASIS OF FINDING OF PERSONAL BENEFIT TO THE TRUSTEE. WE HAD GONE THROUGH THIS DECISION AND FOUND THAT EXEMPTION U/S 11 WAS DECLINED TO THE ASSESSEE TRUST FOR THE BENEFIT GIVE N TO THE TRUSTEE WITHIN THE MEANING OF SECTION 13(3). HOWEVER, IN THE INSTANT CASE BEFORE US, WE FOUND THAT NO PERSONAL BENEFIT WAS GIVEN TO THE TRUSTEE, THUS, THE CONCLUSION DRAWN IN THE CASE CITED BY THE LD. CIT DR IS NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE. 30. THE LD. CIT DR ALSO RELIED ON THE DECISION OF HON'BLE MADRAS HIGH COURT REPORTED AT 246 ITR 164. IN THIS CASE, THE AO INVOKED PROVISIONS OF SECTION 13(1)(C) IN REGARD TO THE PAYMENTS MADE TO ITS OFFICE BEARER AND THE EXEMPTION CLAIMED U/S 11 WAS DECLINED. HOWEVER, IN THE INSTANT CASE BEFORE US, AS OBSERVED ABOVE, NO PERSONAL BENEFIT WAS 12 GIVEN TO THE OFFICE BEARER, THEREFORE, THIS CASE IS OF NO HELP TO THE REVENUE. 31. RELIANCE WAS ALSO PLACED BY THE LD. CIT DR ON THE DECISION OF HON'BLE SUPREME COURT REPORTED AT 82 ITR 540, WHEREIN REFERENCE WAS DECLINED IN VIEW OF THE FINDING OF FACT ARRIVED AT BY THE TRIBUNAL. IT WAS OBSERVED BY HON'BLE SUPREME COURT THAT IT IS WITHIN THE PROVINCE OF THE TRIBUNAL TO ACCEPT RECIT ALS IN THE TRUST DEED UNLESS THE CONCLUSION IS SHOWN TO BE PERVERSE OR BASED ON IRRELEVANT MATERIALS. IT WA S HELD THAT HIGH COURT CANNOT INTERFERE WITH THE FINDING OF THE TRIBUNAL, THUS, NO QUESTION OF LAW AROSE OUT OF THE ORDER OF THE TRIBUNAL. HOWEVER, IN THE INSTANT CASE BEFORE US, THE FINDING OF THE CIT( A) IS AS PER MATERIAL PLACED ON RECORD AND AS PER OUR DISCUSSION MADE HEREINABOVE, SUCH FINDING IS UPHELD. ACCORDINGLY, THIS CASE IS OF NO HELP TO THE REVENUE. 32. RELIANCE WAS ALSO PLACED ON THE JUDGMENT OF HON'BLE RAJASTHAN HIGH COURT REPORTED AT 258 ITR 725, WHEREIN EXEMPTION U/S 11 WAS DECLINED ON THE FINDING THAT PROPERTY OF THE TRUST WAS GIVEN AT A MEAGER RENT TO THE FIRM IN WHICH ONE OF THE TRUSTEE S WAS PARTNER. HOWEVER, THE FACTS OF THE INSTANT CASE ARE QUITE DISTINGUISHABLE WHEREIN PROPERTY OF THE TRUSTEES WERE GIVEN FREE OF RENT FOR THE PURPOSE OF TRUST, THUS, THERE WAS NO CONTRAVENTION OF PROVISIONS OF SECTION 13(2)(B). THUS, THIS DECISION IS NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE. 33. IN VIEW OF THE DISCUSSION MADE HEREINABOVE AND THE FINDINGS RECORDED BY THE LD. CIT(A), WHICH IS AS PER MATERIAL ON RECORD WITH RESPECT TO ASSESSMENT YEARS 2002-03 TO 2005-06, WE DO NOT FIND ANY REASON TO INTERFERE IN THESE FINDINGS. 13 34. IN THE RESULT, ALL THE APPEALS OF THE REVENUE ARE DISMISSED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 24 TH MAY, 2011.' 5. IT IS CLEAR FROM THE ABOVE THAT AFTER CONSIDERING EACH AND EVERY ASPECT, THE TRIBUNAL HAS REACHED ITS CONCLUSI ON. EVEN THE JUDICIAL PRONOUNCEMENTS CITED AT BAR HAVE ALSO BEEN CONSIDERED AND AFTER RECORDING A DETAILED FINDING MENTIONED HEREINABOVE, THE TRIBUNAL HAS AGREED WITH TH E FINDINGS RECORDED BY THE COMMISSIONER OF INCOME TAX (APPEALS) WHICH WAS AS PER MATERIAL ON RECORD WITH RESP ECT TO THE ASSESSMENT YEARS 2002-03 TO 2005-06. ACCORDIN GLY, THE TRIBUNAL DID NOT FIND ANY REASON TO INTERFERE WITH THE FINDING RECORDED BY THE COMMISSIONER OF INCOME TAX (APPEALS) WHICH WAS AS PER MATERIAL ON RECORD. WE DO N OT FIND ANY MISTAKE MUCH LESS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL WHICH COULD BE RECTIFIED U/S 2 54(2) OF THE ACT. 14 6. WE FURTHER OBSERVE THAT UNDER THE GUISE OF THESE MISCELLANEOUS APPLICATIONS, THE REVENUE IS TRYING TO G ET THE ORDER REVIEWED WHICH POWER IS NOT VESTED WITH THE T RIBUNAL AND ONLY CLERICAL/ARITHMETICAL MISTAKES WHICH ARE APPARENT FROM RECORD CAN ONLY BE RECTIFIED BY THE TRIBUNAL. THE TRIBUNAL HAS NO INHERENT POWERS OF REVIEW WHICH MUST BE EXPRESSLY CONFERRED BY THE STATUTE. THE RATIO LAID D OWN IN NIRANJAN & COMPANY VS. I.T.A.T.; 122 ITR 519 (CAL) AND CIT VS. I.T.A.T.; 196 ITR 640 (ORISSA) SUPPORTS OUR VIEW. THE EXPRESSION MISTAKE APPARENT FROM RECORD, IT IS WELL SETTLED, MEANS A MISTAKE EITHER CLERICAL OR GRAMMATICAL OR ARITHMETICAL OR OF LIKE NATURE WHICH CAN BE DETECTED WITHOUT THERE BEING ANY NECESSITY TO RE-ARGUE THE MATT ER OR TO RE-APPRAISE THE FACTS AS APPEARING FROM THE RECORDS. THEREFORE, U/S 254(2) OF THE ACT, THE TRIBUNAL HAS JURISDICTION ONLY TO RECTIFY MISTAKES APPARENT FROM RE CORD BUT IT CANNOT GO INTO MERITS OF THE APPEAL AGAIN AND COME 15 TO A FINDING THAT THE ORDER WAS SOUND EVEN ON THE BASI S OF MATERIALS SOUGHT TO BE RELIED ON. THE FOLLOWING JUDIC IAL PRONOUNCEMENTS ARE WORTH MENTIONING :- ( A) CIT VS. RAMESHCHAND MODI; 249 ITR 343 (RAJ) (B) CIT VS. BALLABHPRASAD AGARWALA; 90 TAXMAN 283 ( CAL) CIT VS. SUMAN TEA & PLYWOOD IND.; 226 ITR 34 (CAL ) (D) CIT V. ITAT; 157 TAXMAN 27 (KER.) (E) CIT V. ANAMIKA BUILDERS PRIVATE. LIMITED; 117 T AXMAN 356 (CAL) IN VIEW OF THE ABOVE, WE FIND NO MERIT IN THESE MISCELLANEOUS APPLICATIONS OF THE REVENUE. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 24 TH MAY, 2012 SD SD (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER 24 TH MAY, 2012 COPY TO : APPLICANT, RESPONDENT, CIT, CIT(A), CIT DR DN/- 16