TMI Blog2012 (11) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... rection 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. 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to that as there is violation of section 11(2) and section 11(5) of the ILT Act, the claim of deduction should be withdrawn or at least Rs. 1.38 crores of development fund should be held taxable in A.Y.04-05 and likewise in other years also corresponding amounts should be taxed. 3.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 assessee furnished a detailed chart giving parawise reply of the objections raised in the rectification application filed by the Revenue duly indicating para number/page number of the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee trust has been granted registration u/s 12A w.e.f. 1.4.2003, the benefit of said certificate was held to be not allowable to the 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 Act, 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 date 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 assessee s 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial audit. After examination of the facts and observation of the AO, the CIT(A) found that no personal advantage was given to the Trustees of the Trust and 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, due to change in the staff, different files in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,371 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 the 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. By observing that the assessee trust was running for educational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning as given in earlier years, we confirm the action of the CIT(A) for deleting these disallowances. 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 given 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e further observe that under the guise of these miscellaneous applications, the Revenue is trying to get the order reviewed which power is not vested with the Tribunal 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 down 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 matter 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 record but it cannot go into merits of the appeal again and come to a finding that the order was sound even on the basis of materials sought to be relied on. The following judicial pronouncements are worth mentioning :- (a) CIT vs. Rameshchand Modi; 249 ITR 343 (Raj) (b) CIT vs. Ballabhprasad Aga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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