TMI Blog2015 (9) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... liance on the judgement of the Delhi High Court in the case of CIT vs Sh. Vishwa Vigyan Telugu Linguistic Minority Education Society (2012 (6) TMI 542 - DELHI HIGH COURT ). Accordingly in view of the detailed reasons given hereinabove, we find that the departmental appeal deserves to be allowed. The impugned order having failed to address the relevant crucial facts considering the judicial precedent is set aside. The issue is restored back to the file to the CIT(A) with the direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. - Decided in favour of revenue for statistical purposes. - I.T.A .No.-2945 & 2946/Del/2012 - - - Dated:- 30-4-2015 - SMT DIVA SINGH AND SH. INTURI RAMA RAO, JJ. For The Appellant : Sh.Gaurav Dudeja, Sr.DR For The Respondent : Sh.Sanjay Wadhwa, Adv. and Sh.Sanjeev Khurana, CA ORDER PER DIVA SINGH, JM These two appeals filed by the Revenue assail the correctness of the separate orders dated 30.03.2012 of the CIT(A)-XII, New Delhi in 2002-03 2004-05 assessment years on identical grounds. For ready-reference, we reproduce the grounds raised in ITA No.-2945/Del/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the AO required the assessee to explain vide order sheet entry dated 24.11.2010 that on facts where the funds stood collected by unallowable means, why benefit of section 11 12 should not be denied resulting in addition of the alleged donation being added back as income from undisclosed sources. 2.2. In response thereto, the assessee vide letter dated 03.12.2012 is found to have offered the following explanation, the same is extracted from the assessment order:- M/s Janak Charitable Education Society has accepted donations of ₹ 24.93 lakh, during AY 2002-03 and claimed exemption of ₹ 24.74 lakh (i. E. excess of income over expenses) on the basis of actual utilization for defined purpose i. E. for purchase of school land from DDA for the purpose of carrying school activities. Actual utilization was duly submitted earlier by way of following enclosures :- 1. Allotment cum demand letter issued by DDA for Rs.24,51,737/-. 2. Copy of challan for depositing the above said demand together with interest amount of ₹ 55,165/-. In this way, assessee has fully complied with all conditions of sec. 11 12 of the Income Tax Act. 2.3. The AO con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was formed in 1994 was registered u/s 12A(a) of the I. T. Act, 1961 vide No. J-353-1994-365 had shown receipts of ₹ 63,73,880/-against which excess of income over expenditure has been shown at ₹ 62,81,564/-. During the course of assessment proceedings, the assessee was asked to furnish the details and information as per order sheet entries on various dates but the assessee failed to comply with the same. The AO held that the assessee even failed to furnish its bank statement as well as produce the books of accounts. In view of the failure to produce books of accounts despite being specifically asked for on various occasions, it was held that the assessee has not maintained regular books of accounts which was held to be a clear cut violation of conditions precedent to allowing exemption u/s 12A of the Act. 3.1. Herein also referring to the statement of Sh. Mukesh Gupta, the entry operator the AO concluded that the assessee had collected funds through illegal means. He took note of the fact that a perusal of the bank accounts of these entry operators revealed that there was a cash deposit of ₹ 5,00,000/-in the bank account of M/s Ethnic Creations Pvt. Ltd. and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a donation but introduction of funds through bogus means by resorting to entry providers who as per Q. No.-7 has accepted that no real business was ever done and only accommodation entries were provided. The funds as per record it was submitted were so arranged admittedly due to the financial need of assessee to make payment to DDA. 5.1. Inviting attention to the judgment dated 06.03.2012 of the Delhi High Court in the case of CIT vs Sh. Vishwa Vigyan Telugu Linguistic Minority Education Society in ITA No.-17/2010 (copy filed), it was submitted that the impugned order deserves to be set aside. 5.2. Reliance was also placed on the decision rendered in the Writ Petition by the Hon ble Allahabad High Court in the case of M/s Fateh Chand Charitable Trust vs CIT dated 27.05.2013 in Writ Tax No.-1629 of 2010 (copy filed). Accordingly it was his prayer that the impugned order in both the appeals be set aside. 6. The Ld. AR appearing on behalf of the assessee submitted that the remand was made by the ITAT directing the AO to specify which condition u/s 11 12 has been violated. In the facts of the present case it was his submission that the issue should be restored to the AO as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ITAT, it is seen remanded the matter back with the following finding:- The findings recorded by the Tribunal in the impugned order, which has been quoted above are therefore, partly factually incorrect and cannot be sustained. As noticed above the order of the tribunal is bereft of reasoning, consideration and is cryptic. In view of the above position we allow the present appeal and answer the aforesaid question in negative i. E. in favour of the appellant-Revenue and against the respondent-assessee. We accordingly pass an order of remit to the Tribunal to pass a fresh decision. We clarify that we have not expressed any view on merits. (emphasis provided) 8.2. The view taken to set aside the impugned order in both the years is further strengthened by the judgement of the Hon ble Allahabad High Court in M/s Fateh Chand Charitable Trust (cited supra) wherein the assessee challenged the validity of the notice issued u/s 148 in Writ proceeding before the Hon ble High Court which was dismissed with strictures against the respective tax authorities. The facts taken into consideration by the Hon ble High Court in the case of a public charitable trust were the factu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax, Muzaffarnagar who passed the order dated 25.1.2008 have abdicated their duties. The Court in the exercise of supervisory jurisdiction under Articles 226 and 227 of the Constitution of India cannot be a mute spectator. Such actions on the part of the department not only bring disrepute to the department but also encourages the dishonest assessees and promotes the nefarious activities which not only causes loss to revenue but also promotes dishonestly. An honest tax payer feels cheated. Let the matter be examined by the Chief Commissioner of Income Tax and appropriate departmental proceedings may be taken out against the erring officials. A copy of this judgment may also be sent to the Chairman of the Central Board of Direct Taxes for an appropriate action. 8.3. Accordingly in view of the detailed reasons given hereinabove, we find that the departmental appeal deserves to be allowed. The impugned order having failed to address the relevant crucial facts considering the judicial precedent is set aside. The issue is restored back to the file to the CIT(A) with the direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
