TMI Blog2010 (7) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... Manmohan J.- With the consent of the parties, the matter was taken up for hearing and final disposal. After extensively hearing both the parties, the judgment was reserved in the matter on July 19, 2010. 2. The present appeal has been filed under section 260A of the Income-tax Act, 1961 (for brevity "Act, 1961") challenging the order dated April 23, 2009 passed by the Income-tax Appellate Tribunal (in short "ITAT") in I. T. A. No. 625/Del/2009, for the assessment year 2005-06. 3. Briefly stated the relevant facts of the present case are that on October 27, 2005, the assessee-society filed a return declaring nil income and claiming benefit under section 11 of the Act, 1961. During the assessment proceedings, the Assessing Officer noticed that the assessee-society had in the assessment year 2005-06 given a loan of Rs. 90,50,000 to another educational society, namely, Nav Bharti Educational Society. It is pertinent to mention that the president of Nav Bharti Educational Society was the brother of the president of the assessee-society. The Assessing Officer held that there was violation of section 13(1)(d) read with section 11(5) of the Act, 1961 and accordingly, he denied benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order wherein the Commissioner of Income-tax (Appeals) had concluded that the said society had entered into genuine transactions. Since, Mr. Kaushik laid considerable emphasis upon the order passed by the Commissioner of Income-tax (Appeals) in the case of Nav Bharti Educational Society for the assessment year 2003-04, the relevant portion of the said order is reproduced hereinbelow : "I have gone through the assessment order and the arguments of the learned authorised representative. It is a fact that the Assessing Officer did not consider the documents filed by the appellant. He has also not mentioned any reason in the assessment order for making the addition. Nothing is available from the assessment order as to how the donation remains unexplained in spite of all the documentary evidences filed by the appellant. The evidences filed by the appellant clearly indicate the name and address of the donors, amount of donations, cheque Nos. along with date, name and address of the banks, confirmation from the donors, PAN of the donors, their income-tax jurisdiction, copy of their bank account indicating the availability of fund and acknowledgment of IT returns indicating quantum of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bank of India Act, 1934 (2 of 1934) ; (iv) investment in units of the Unit Trust of India established under the Unit Trust of India Act, 1963 (52 of 1963) ; (v) investment in any security for money created and issued by the Central Government or a State Government ; (vi) investment in debentures issued by, or on behalf of, any company or corporation both the principle whereof and the interest whereon are fully and unconditionally guaranteed by the Central Government or by a State Government ; (vii) investment or deposit in any public sector company : Provided that where an investment or deposit in any public sector company has been made and such public sector company ceases to be a public sector company,- (A) such investment made in the shares of such company shall be deemed to be an investment made under this clause for a period of three years from the date on which such public sector company ceases to be a public sector company ; (B) such other investment or deposit shall be deemed to be an investment made under this clause for the period up to the date on which such investment or deposit becomes repayable by such company ; (viii) deposits with or investment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced anywhere, as in any one's hands for safe-keeping, something entrusted to the care of another. These two expressions have been used in a cognate sense and have to be understood as such. In order to constitute an investment the amount laid down should be capable of any result of any income, return or profit to the investor and in every case of investment, the intention and positive act on the part of the investor should be to earn such income, returns, profit in order to constitute an investment, the monies shall be laid out in such a manner as to acquire some species of property which would bring in an income to the investor. A loan, on the other hand, is granting temporary use of money, or temporary accommodation. The words 'investment', 'deposit' and 'loan' are certainly different. Section 11(5) refers to pattern of investment by the assessee. Section 11(5) was introduced by the Finance Act, 1983, with effect from April 1, 1983, i.e., for and from the assessment year 1983-84. It prescribes the forms and modes of investing and depositing money referred to in section 11(2)(b). Subsequently, new forms and modes have been added. Section 13(1)(d) as amended by the Finance Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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