TMI Blog2020 (1) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... ne shri Dugar was provided to the assessee by the AO. The AO ought to have given a copy of the statement recorded by him and provided adequate opportunity to the assessee to cross-examine the maker of the statement if it is adverse against him. However, it is noted that Shri S. L. Dugar became a director only on 01.02.2016 of the 2 companies from which assessee purchased blankets and distributed the same, and the assessment under consideration is AY 2013-14. So, the AO when verifing the facts of this AY 2013-14, ought to have summoned the director/manager of this AY 2013-14, who would be in a better position to throw light on the facts which he was enquiring. So, I set aside the impugned order of Ld. CIT(A) and remand this issue back to the file of AO to de novo adjudicate/assess the issue and give proper opportunity to cross-examine the concerned director/manager of three companies, if the AO is relying on their statement. Genuineness of the donation for a charitable activity - HELD THAT:- The competent authority in the year 1974 has been pleased to grant the 12A registration. Among the objectives narrated above, it is noted that assessee is engaged for promoting education an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which such income is applied to such purpose in India it clearly means that income of the trust would be taxable unless it is applied for charitable purpose. But there is one relaxation and mentioned in the same section 11(1)(a) of the Act. A part of income can be accumulated or set apart without being applied to the extent of is not in excess of 15% of the income from such property . This accumulation will take place only when application is less than income and is allowed to the extent of 15% of income. 4.2 Examination of the computation reveals that assessee has claimed different administrative and establishment expenses that are included in the claimed application for achieving the stated objectives of the organization. Further accumulation was claimed u/s. 11(1)(a). This accumulation is calculated@ 15% of gross receipt of ₹ 52,70,353 /- by the assessee. The prime issue in this regard is whether the accumulation of 15% is to be allowed on gross receipt or on income available for charitable and religious purposes should be considered as the base figure for calculation of 15%. In its computation the assessee showed gross receipt as income for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred an appeal before the Ld. CIT(A), who was pleased to affirm the order of AO, so the assessee filed this appeal before this Tribunal. 5. I have heard rival submissions and have considered the material available on record. It is noted that assessee is enjoying registration u/s. 12A of the Income-tax Act, 1961 (hereinafter referred to as the Act ). It is noted that the issue that arises for consideration is as to whether 15% accumulation for application in future has to be calculated on gross receipt or net receipt after deduction of revenue expenditure. The assessee claimed accumulation of income for application for charitable purpose at 15% of the gross receipts. The AO was of the view that accumulation will be allowed only to the extent of 15% of the income after revenue expenditure. In other words, income to be set apart u/s. 11(1) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) has to be computed at 15% of the net income i.e. gross receipts minus revenue expenditure and not on the gross receipts as claimed by the assessee. The Ld. CIT(A) upheld the view of the AO. I find that the issue is no longer res integra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions. While calculating the aforesaid 25 per cent, the important question which arose was as to whether for this purpose, the gross income earned by the assessee is relevant or the income as computed in accordance with the provisions of IT Act. In other words, whether outgoings from out of gross income which are in the nature of application of income, should be first deducted from the gross income and 25 per cent of only the remaining amount should be allowed to be accumulated or set apart. The Special Bench of the ITAT on the issue held as follows: 9. Coming to the merits of the issue, we are of the view that the same is clearly covered by the decision of the Hon ble Supreme Court in the case of CIT vs. Programme for Community Organization (supra). In the decision, their Lordships, after taking note of provisions of s. 11(1)(a), have held as under : Having regard to the plain language of the above provision, it is clear that a charitable or religious trust is entitled to accumulate twenty-five per cent of its income derived from property held under trust. For the present purposes, the donations the assessee received, in the sum of ₹ 2,57 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statutory language of the above section the income which is to be taken for purpose of accumulation is the income derived by the trust from property. If both the decisions are carefully read, it becomes evident that any expenditure which is in the shape of application of income is not to be taken into account. Having found that trust is entitled to exemption under s. 11(1), we are to go to the stage of income before application thereof and take into account 25 per cent of such income. Their Lordships have pointed that the same has to be taken on commercial basis and not total income as computed under the IT Act. Their Lordships in the decided case rejected the contention of the Revenue that the sum of ₹ 1,70,369 which was spent and applied by the assessee for charitable purposes was required to be excluded for purpose of taking amount to be accumulated. Having regard to the clear pronouncement of their Lordships of the Supreme Court, it is difficult to accept that outgoings which are in the nature of application of income are to be excluded. The income available to the assessee before it was applied is directed to be ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) even otherwise erred in holding that the assessee s activities were not covered under sec. 2(15) of the I. T. Act without allowing the assessee any proper or reasonable opportunity of being heard. 8. The main grievance in the aforesaid ground nos. 2 to 6 are that the AO had disallowed an amount of ₹ 4,76,250/- shown by assessee as application of income for purchase of blankets as bogus without following the principle of Natural Justice viz. denying cross-examination of person whose statements were recorded by AO behind the back of assessee and against the Ld. CIT(A) s observation that assessee trust s activities are not covered u/s. 2(15) of the Act without giving any opportunity to assessee, which action is also against principle of Natural Justice. 9. First of all, it is noted that the assessee is enjoying sec. 12A registration which is granted by the competent authority after satisfying himself that the assessee was engaged in charitable activities as contemplated u/s. 2(15) of the Act and the registration granted has not been withdrawn or revoked as on date. And so, as long as it enjoys sec. 12A registration, the assessee s income is exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who would be in a better position to throw light on the facts which he was enquiring. So, I set aside the impugned order of Ld. CIT(A) and remand this issue back to the file of AO to de novo adjudicate/assess the issue and give proper opportunity to cross-examine the concerned director/manager of three companies, if the AO is relying on their statement. 11. Coming to the appeal for AY 2014-15 it is noted that certain grounds of appeal which are similar to the issues raised in the appeal for AY 2013-14 and since have been answered, the result will be followed Mutatis Mutandis for AY 2014-15. 12. Coming to the only issue which has not been adjudicated it is noted that assessee s claim for application of ₹ 7 lakh paid to Lohia Matri Seva Sadan has not been allowed by AO and Ld. CIT(A). The submission of assessee before Ld. CIT(A) is as under: Kanehialall Lohia Trust is a Charitable Religious Trust registered U/s 12A of the Income Tax Act vide Certificate no 638-T/WB. VI of 1974-75 dated 10.04.1974 photocopy of which was filed before you on 30th January, 2019. That the objects of the Trust as per Trust Deed was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anisations viz, Kanehialall Lohia Trust and Lohia Matri Seva Sadan situated at 296B Rabindra Sarani, Kolkata - 700 O06 was founded by deceased Kanehialall Lohia some times in the year 1940. The source of the income of Kanehialall Lohia Trust is from rental income and interest out of which these activities were made to fulfill the objects of the Trust as per Trust Deed and accounts which clarifies all the activities. 13. The aforesaid submissions of the assessee did not find any favour of the Ld. CIT(A) so, he was pleased to dismiss the same. Aggrieved, the assessee is in appeal before this Tribunal. 14. I note that assessee is a charitable religious trust registered u/s. 12A of the Act which was granted certificate of registration dated 10.04.1974. The assessee in this year has donated ₹ 7 lacs to Lohia Matri Seva Sadan Maternity Charitable Organisation, which is established for taking care of the pregnant women/ladies, which claim was not allowed by the AO/Ld. CIT(A). The object of the trust I note as under: i) For Seva and worship of the settlor's household deity SRI SRI RADHA KRISHNA JIU. ii ..... X X X X Extracts X X X X X X X X Extracts X X X X
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