TMI Blog2009 (6) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... and towards electricity charges of chairman's house. The undisputed fact of appointment of family members to the important posts of the trust and payment of remuneration to them is also clearly extracted. The payment made is out of unexplained income of the assessee. The agreement of sale and the sale deed and payments made are in the name of Sri Sadashivan, chairman-cum-managing trustee of the trust and not in the name of the trust. Therefore, the said findings of the AO are in respect of misappropriation and misutilisation of the funds of the trust As finding of the AO based on material evidence is set aside by the Tribunal without adverting to each one of the items independently by applying its mind to the undisputed facts and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal was correct in recording a finding that the misuse of funds was very insignificant and there was exaggeration by the Assessing Officer in holding that the payments had been made to family members as there were only minor irregularities in accounts and that the remuneration and electricity bill being paid was justified by ignoring the cogent evidence examined by the Assessing Officer which clearly disclose that the chairman, his wife and sons were running the institution as a family concern not for the sole purpose of education but also for profit." 2. The learned counsel appearing for the appellant Mr. Seshachala contends that the Tribunal committed an error in law in holding that the remuneration paid to the wife and children of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent, sought to justify the findings and the reasons recorded by the Tribunal in the impugned judgment contending that the electricity bills is in respect of residence of the chairman in which the house and office of the trust is being housed in the same apartment. Therefore, he submits that the payments made in favour of the son of the chairman and trust and as the hospital is being run by the trust, the Tribunal is right in recording a finding that misutilisation of the funds is an erroneous finding and, therefore, substantial questions of law framed by the Revenue in this appeal do not arise and, therefore, prayed for dismissal of this appeal. Further placing strong reliance upon the deed of declaration of the trust, the affidavit and sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have carefully examined the assessment order passed by the Assessing Officer. He has passed the assessment order on the basis of the survey conducted by him on March 9, 1998. The Assessing Officer at that time has noticed that certain important documents were impounded and statements on oath of Sri P. Sadasivan, chairman-cum-managing trustee was recorded. Thereafter, as per the procedure contemplated under section 143(1) and (2) of the Act notices were issued to the assessees calling for various details from them. The survey was conducted on the basis of the authorisation obtained from the Commissioner of Income-tax. The Assessing Officer has verified the declared income of the trust filed on October 31, 1997, in which the total receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the material evidence on record, the documents were impounded from the office of the assessee. Therefore, the said findings are based on proper appreciation of material evidence on record. The said findings are affirmed (sic) by the Appellate Tribunal. The Tribunal without applying its mind to the facts and the documentary evidence on record, which are considered by the assessing authority, has recorded a finding of fact stating that the receipts in the name of the trust amounts to profit making. It is not the object to avail of the benefit under section 10(22) of the Income-tax Act. Further, the amount of the trust is being misutilised and misappropriated in the name of the managing trustee and chairman and also the family members of hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assessing Officer confirmed by the first appellate authority on the basis of the documentary evidence on record, which were found and seized at the time of search conducted by the Assessing Officer and the material on record which is not disputed by the assessee. Therefore, the said decision and other decisions of the Rajasthan High Court and the Andhra Pradesh High Court in relation to the property in the name of the managing trustee and chairman Sri Sadashivan is the property which is registered under the Societies Registration Act, cannot be accepted and the said decisions have no application to the facts and situation. Various details referred to in the assessment order by the Assessing Officer is supported by voluminous documen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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