9911796707
TMI Blog2018 (4) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... produced either before the A.O. or Ld. CIT(A). 2. That Ld. CIT(A) has erred in law and on fact in coming to the conclusion that a luxury vehicle like Mercedes Benz could used for the purpose of school education without giving a finding about how this was used for the purpose of trust so as to eligible for exemption u/s 11 of the IT Act. 3. That Ld. CIT(A) has erred in law and on fact in not appreciating the fact that the Mercedes Benz Car was registered in the name of Trustee and even today the car is registered in the name of the trustee. 4. That Ld. CIT(A) has erred in law and on fact in not appreciating that no documentary evidence or proof for performance/ part performance of contract has been filed before the A.O. and even not before the Ld. CIT(A). 5. That the order of the Ld. CIT(Appeals) being erroneous in law and on facts which needs to be vacated and the order of the A.O. be restored. That the appellant craves leave to add or amend any one or more of the ground of the appeal as stated above as and when need for doing so may arise. 3. The facts are identical in all the three appeals therefore, the facts of ITA NO. 4014/Del/2015 are taken here. The assessee is a regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is seen that in question No. 12, Mr. Pandit was asked to explain the usage of Mercedes car in the philosophy of trust. In this question, along with Mercedes car the question of usage of other 3-4 cars was also asked. In answer, Mr. Pandit had said that he has not seen these cars(in plural) in the school campus. Later on Mr. Pandit submitted an affidavit which was filed as additional evidence by the Appellant. ......... 1.2.The AO has objected to admittance of this affidavit as additional evidence. However, from the facts it is clear that during the course of search, a specific question regarding the specific Mercedes car bearing registration No. PB-08-BC-1212 was asked from Sh. Pandit. Before the date of search, the registration number of the said car had undergone a change by which its number was registered as UP-15- AP-0001. During assessment proceedings, the AO apparently did not conduct any enquiry with respect to statement of Sh. Pandit and did not ask for any clarification from him. In this situation, it is clear that the appellant was prevented by sufficient cause form producing before the A.O an evidence which is relevant to the ground of appeal No. 2. The additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The only condition in such transaction can be that the transaction should be at Arm's Length value and no undue benefit accrues to either of the transacting parties. The copy of account of the appellant trust as appearing in the books of the company was filed before the AO. Further, there is no finding by the AO that the asset claimed to be purchased by the appellant trust was not recorded in the books of trust as on the date of search. 2.3 Section 13 bars exemptions where the founder, trustees or their relations are personally benefited from the trust because the trust in that case loses its public character. 'However, there is a judicial consensus among courts and tribunal that the burden of proving benefit to interested persons is on revenue. Reliance is placed on the judgment given by the Hon'ble Allahabad High Court in the case of CIT vs Kamla Town Trfet 133 ITR 632. The ITAT Agra in the case of Sh. Amol Chand Varshaney Vs Addl.CIT (2013) 25 ITR (Trib) 2011 following the above judgment has held that "the onus lies on the revenue to bring on record, cogent material/evidence to establish that the trust/charitable institution is hit by the provision of section 13. " 2.4T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the Ld. DR requested that the order of the CIT(A) be set aside. 6. The Ld. AR submitted that all the documents relating to the Transfer of Property was before the CIT(A) as well as the Assessing Officer but the same was not taken by the Assessing Officer. As related to the statement the assessee has explained all the relevant facts relating to the vehicle used by the school/trust. The CIT(A) after verifying all the documents has given a proper finding . There is no need to interfere with the order of the CIT (A). 7. We have heard both the parties and perused the material available on record. As regards to Ground No. 1 to 3, there is no finding to the extent that how the car has been used for the purpose of the school education and the use for the purpose of trust so as to be eligible for exemption u/s 11 of the Income Tax Act, 1961. The same needs to be verified. Therefore, the order of the CIT(A) is set aside and the matter is remanded back to the file of the Assessing Officer for verifying all the relevant materials in respect of this issue only. Needless to say that the assessee be given opportunity of being heard and principles of natural justice to be followed. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
