TMI Blog2012 (5) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... fessional services rendered by Shri Varun Bharati, who possesses requisite professional qualifications and evidence filed to prove the factum of rendering of such services, the impugned payment cannot be disallowed as it goes out of the mischief of the provision of section 13 - Decided in favor of the assessee - I. T. A. No. 1456/Chd/2010, - - - Dated:- 17-10-2011 - Sushma Chowla, Mehar Singh, JJ. Sudhir Sehgal for the Assessee Jaishree Sharma for the Department ORDER Mehar Singh, Accountant Member:- The present appeal filed by the assessee is directed against the order dated November 22, 2010 of the learned Commissioner of Income-tax (Appeals) under section 250(6) of the Income-tax Act, 1961 (in short "the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has rightly disallowed the claim of exemption under section 11 to the appellant-society and has further erred in giving the finding that the appellant-society eannot be considered to have complied with the provisions of sections 11 and 12 of the Act. 6. That the learned Assessing Officer has erred in law and on facts in charging interest under section 234B of the Act ibid and the Commissioner of Income-tax (Appeals), further erred in law and on facts in considering the same being consequential in nature." In the course of the present appellate proceedings, the learned authorised representative stated that grounds Nos. 2 to 5 are relevant and grounds Nos. 3 and 4 are inter-connected. In ground No. 1, the assessee contended that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 13 of the Act "section 11 not to apply in certain cases" clearly indicates that section 13 enumerates such cases and situations in which the exemption under section 11 would have been allowed unless prohibited by section 13 of the Act. Therefore, the provision of section 13 enacts a complete bar to the availability of exemption under section 11 in respect of various incomes under the cases enumerated thereunder. Section 13 starts with non obstante clause and hence by virtue of the said provisions, exception of exemption provided under section 11 is carved and an assessee is denied exemption under section 11 of the Act in a case where the income or property of the trust is used or applied for the benefit of any person referred to in se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudice to the generality of the provisions of clause (c) [(and clause (d)] of sub-section (1), the income or the property of the trust or institution or any part of such income or property shall, for the purposes of that clause, be deemed to have been used or applied for the benefit of a person referred to in sub-section (3). . . (c) if any amount is paid by way of salary, allowance or otherwise during the previous year to any person referred to in sub-section (3) out of the resources of the trust or institution for services rendered by that person to such trust or institution and the amount so paid is in excess of what may be reasonably paid for such services. . . (3)(d) any relative of any such author, founder, person (member, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goes out of the bar placed by the provisions of section 13 of the Act, as the salary paid is reasonable. Having regard to the legal and factual discussions, findings of the learned Commissioner of Income-tax (Appeals) are contrary to the express provisions discussed and reproduced above. Therefore, such findings cannot be sustained. The assessee succeeds in this ground of appeal. Grounds Nos. 3 and 4 collectively speaks against disallowance of Rs. 21,000 representing advertisement expenses paid to Shri Varun Bharati s/o. Shri Darshan Kumar against the work done by him which were upheld by the Commissioner of Income-tax (Appeals). The learned authorised representative filed evidence in the course of present appellate proceedings whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and evidence filed to prove the factum of rendering of such services, the impugned payment cannot be disallowed as it goes out of the mischief of the provision of section 13 of the Act. Thus, this ground of appeal of the assessee is allowed. In ground No. 5, the assessee contended that the Commissioner of Income-tax (Appeals) erred in holding in paragraph 8.2 of the order that Assessing Officer has rightly disallowed the claim of exemption under section 11 of the Act to the appellant-society and has further erred in giving finding that the appellant-society cannot be considered to have complied with the provisions of sections 11 and 12 of the Act. In view of our adjudication in respect of substantive ground of appeal raised by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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