TMI Blog2014 (10) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... he hands of the assessee in the nature of income - Decided against revenue. - ITA Nos. 216 to 219/Chd/2012 And C.O.No.32/Chd/2012 (Arising out of ITA No.216/Chd/2012) And C.O.No.46/Chd/2012 (Arising out of ITA No.217/Chd/2012) And C.O.No.47/Chd/2012 (Arising out of ITA No.218/Chd/2012) and others - - - Dated:- 28-10-2014 - Shri Bhavnesh Saini , Judicial Member And Shri T.R.Sood, Accountant Member And C.O.No.48/Chd/2012 ( Arising out of ITA No.219/Chd/2012 ) For the Assessee: Shr i Dinesh Kumar Sood. For the Department : Shr i J.S.Nagar , DR. ORDER Per bench : The departmental appeals as well as the Cross Objections filed by the assessee are directed against the order of learned CIT (Appeals), Shimla, dated 28.11.2011 for assessment years 2005-06 to 2008-09. 2. The departmental appeals are time bar red by 8 days. The Assessing Officer (ITO, Dharamshala, H.P. ) has explained in the application for condonation of delay that since the order of the learned CIT (Appeals), Shimla was received only on 13.2.2012 and the appeals were to be filed by 15.2.2012, therefore, there was some delay in filing the appeals. The learned counsel for the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same, the receipt books were got specifically printed for the said purpose. The amount collected as donation for const ruction was strictly used towards the specific purpose of const ruction only. The Assessing Officer acknowledged the same fact vide para No.2.1 of the assessment order. The assessee was not having any other income and accordingly it had prepared the Balance Sheet and the Receipts and Payments Account. All the receipts of the assessee institution were of capital nature and all the expenses incur red also qualify as a capital expenditure. It was submitted that once the registration under section 12A of the Income Tax Act is not granted, the provisions of sections 11 and 12 of the Income Tax Act cannot be applied against the assessee as have been applied by the Assessing Officer for making the additions. I t was submitted that the assessee was in the process of constructing a Monastery during all the years under consideration and, therefore, no income had started to accrue to the assessee. There being no income in the hands of the assessee, the taxable income was rightly declared as nil for all the assessment years. The CIT (Appeals) considering the submissions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the given case. 4.1 It is seen that the appellant is a registered society for charitable and religious purposes and was totally devoted to the construction of a monastery. The said monastery was being built up with the voluntary donations and there were no other profession or occupation in which the appellant society was engaged. Books of account, registers and receipt books were meticulously maintained by the appellant society incorporating the details of the smallest sums of donations received and spent towards the construction of the monastery/Buddhist temple. The said books of accounts and documents have a/so been produced during the course of the proceedings. The said donations have duly been acknowledged by the Id. A.O. Once the appellant is assessed in the status of an AOP, the provisions relating to the assessment of a Trust can not possibly be applied to its case. To that extent the Id. A. 0. has misled himself in invoking the provisions of section 12 of the I. T. Act. The said provisions would not be applicable to the appellant assessee, since the appellant is not assessed as a Trust. 4.2 It is also evident from the facts of the case that the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical facts, the Tribunal dismissed the departmental appeal. The copy of the order is placed on record. 8. In view of the submissions of the parties and facts of the case in the light of the order of the learned CIT (Appeals), we do not find any justification to inter fere with the order of the learned CIT (Appeals) in deleting the additions. The Assessing Officer referring to provisions of section 12(1) of the Income Tax Act considered the gross receipts of the assessee as income. The learned CIT (Appeals), therefore, correctly held that since the assessee is assessed as an AOP and no registration under section 12AA of the Income Tax Act has been granted to the assessee, therefore, the provisions of section 12 of the Income Tax Act would not apply in the case of the assessee. The provisions of sections 11 and 12 of the Income Tax Act will only apply if the assessee is registered under section 12AA of the Income Tax Act. Therefore, on this reason itself, the departmental appeal is liable to be dismissed. Further the Assessing Off icer took the status of the assessee to be AOP but it is a fact established on record that the assessee collected the donation for construction of templ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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