9911796707
TMI Blog2013 (1) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Sections 11 & 12 of the Income Tax Act [hereinafter referred to as "the Act"] had not been continued. Being aggrieved by the said order of the Assessing Officer, the respondent-assessee had preferred an appeal before the Income Tax Commissioner. The Income Tax Commissioner was pleased to dismiss the appeal by an order dated 29th May, 2005. Being aggrieved by the said order of dismissal, the respondent-assessee had filed an appeal before the Income Tax Appellate Tribunal, Delhi Bench "F" at New Delhi. The said appeal, being ITA No.2657/DEL/2006, was allowed by an order dated 09th March, 2007. Being aggrieved by the said order, the Revenue had filed ITA No.150 of 2008 before the High Court of Delhi at New Delhi which had been dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear, the assessee trust had done undue favour and, therefore, the Assessing Officer observed as under in para 8 of the Assessment Order : "...This has been primarily done with the sole objective of giving advantage to the donor company M/s Apollo Tyre Ltd. in which the main trustees and their relatives were substantially interested as per provisions of section 13 (3) of the I.T. Act, 1961. This is clearly in violation of provisions of section 13(2) (d) (h) and as such exemption u/s 11 and 12 cannot be allowed to the assessee and the assessment will be made in the status of AOP. With these remarks the income is computed as under..." 8) As stated hereinabove, the appeal which was filed against the assessment order had been dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue submitted that the High Court committed an error by dismissing the appeal. According to him there was breach of Section 13(2)(b) and 13(2)(h) and he further submitted that though the cheque was dated 22nd April, 2002 it was given by way of donation in the earlier accounting year for which the assessee trust had issued a receipt and as the trustees of the assessee trust and directors of M/s Apollo Tyres Ltd. were closely related, an effort was made by the assessee trust to do undue favour to M/s Apollo Tyres Ltd. 12) On the other hand, the learned counsel appearing for the assessee submitted that no illegality or irregularity of whatsoever type was committed by the assessee trust and he had relied upon the reasons recorded by the Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Tyres Ltd. did not avail any advantage of the said donation during the accounting year 2001-2002. Upon perusal of the Assessment Order of M/s Apollo Tyres Ltd. for the assessment year 2002-2003, it is clearly revealed that the cheque dated 22nd April, 2002 was not taken into account for giving benefit under Section 80G of the Act as the said amount was paid in April, 2002, when the cheque was honoured. The assessment order showing the above fact is a part of the record, which we have carefully perused. 14) The submission made on behalf of the respondent-assessee is supported by this court in the case of M/s Ogale Glass Works Ltd. (supra). Relying upon other authorities, this court observed as under in the aforesaid case : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ana Corporation v. Inland Reveue Commissioners (L.R. [1938] AC 380 at p.399) are also apposite: "Apart from the express terms of section 33, sub-section 1, a similar conclusion might be founded on the well known common law rules as to the effect of the sending of a cheque in payment of a debt, and in the fact that though the payment is subject to the condition subsequent that the cheque must be met on presentation, the date of payment, if the cheque is duly met, is the date when the cheque was posted." In the case before us none of the cheques has been dishonoured on presentation and payment cannot, therefore, be said to have been defeated by the happening of the condition subsequent, namely dishonour by non-payment and that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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