TMI Blog2017 (8) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are necessary for running the hospital. In view of the aforesaid submissions of the ld. counsel for the assessee, we find no infirmity in the order of the ld. CIT(A). We hold that the disallowance made by the AO is not called for either on facts or in law. Accordingly, we direct the deletion of addition made by the Assessing Officer which is on estimate basis and on surmises and conjectures - Decided in favour of assessee. - ITA No. 3073/DEL/2012, ITA No. 3495/DEL/2012 And CO No. 125/DEL/2017 - - - Dated:- 21-8-2017 - SHRI B.P. JAIN, ACCOUNTANT MEMBER AND SHRI K.N. CHARY, JUDICIAL MEMBER For The Assessee : Shri R.M. Mehta, Adv For The Revenue : Ms. Renu Amitabh, CIT-DR ORDER PER B.P. JAIN, ACCOUNTANT MEMBER: The above appeals filed by the Revenue and appeal filed by the assessee and cross objection filed by the assessee pertain to A.Ys. 2008-09 and A.Y. 2009-10. Since the appeals pertain to same assessee and were heard together involving identical issues, these are being disposed of by this consolidated order for the sake of convenience and brevity. ITA Nos. 3073 3495 /DEL/2012 2. These two appeals filed by the Revenue arise from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing additional ground of appeal in assessment year 2008-09: That the deficit arising as a result of the application of the funds towards charitable purposes being in excess of the income earned is required to be carried forward to the subsequent years to be adjusted in case of shortfall in the application. 7. The assessee has filed an application for condonation of delay. 8. We have considered the rival submissions. In the present case, we find that the Hon'ble Apex Court in the case of Vedabai alias Vaijayanatabai vs Shantaram Baburao Patil And Ors reported at 253 ITR 798 held as under: A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. 9. We, therefore, considering the genuine and valid reasons stated by the ld. counsel for the assessee and the ratio laid down by the Hon'ble Supreme Court and by taking a liberal approach of few da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also raised additional ground of appeal for assessment year 2008-09 which reads as under: On the facts and in the circumstances of the case as well as in law the ld. CIT(A) has erred in deleting the addition of ₹ 23,50,00,000/- made by the Assessing Officer on account of unsecured loans. 16. We have considered the rival arguments and perused the written submissions filed by the Revenue. We find that the Hon'ble Apex Court in the case of National Thermal Power Co. Ltd. vs CIT (1998) 229 ITR 383 (SC) considering its earlier judgement in the case of Jute Corporation of India Ltd. vs CIT 187 ITR 688 observed as follows: This Court further observed that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered on its own facts. The Appellate Assistant Commissioner must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons. The Appellate Assistant Commissioner should exercise his discretion in permitting or not permitting the assessee to raise an additional ground in accordance with law and reason. The same observations would apply t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on rectification was passed by the JCIT(A) on 18.07.2012 or 2. There was a conscious decision at the initial stage of the filing of the appeal to accept the order of the ld. CIT(A) in respect of the relief given on the unsecured loan addition and the filing of the additional ground subsequently was a change of mind to agitate an issue which was already given up. 20. Under both the aforesaid situations the case of the revenue for the admission of the additional ground is farfetched, an afterthought, without merit and clearly, outside the parameters laid down by the courts. In fact if a party is negligent (as is the case here) in not raising a ground of appeal initially then the same cannot be urged as an additional ground subsequently at its whims and fancies to cover up the said negligence. Appeals cannot be filed piece meal and a party cannot get the benefit of its own negligence. 21. Coming to the second situation a conscious decision to accept the relief given by the ld. CIT(A) (sum of ₹ 23.50 cr in the present case) cannot be reagitated by raising an additional ground. Also the addition of ₹ 23.50 crores on account of an unsecured loan and its subsequent de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: Charitable purpose includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility. Further a proviso to section 2(15) was inserted in the statute w.e.f. 1/4/09, i.e., applicable from the AY 2009- 10 onwards, as under: Provided that the advancement of any other object of general public utility shall not be a charitable purpose, if it involves the carrying of any activity in the nature of trade, commerce or business, or any activity of rendering any service in relation to any trade, commerce of business, for a cess or fee or any other consideration, irrespective of the nature of use or application, or retention, of the income from such activity. There is no violation of section 2(15). Further the Assessing Officer in his order nowhere challenge the application/utilization of fund raised by the appellant. Hence the AO suo-moto cannot deny the assessee, the benefit of Section 11 12. Moreover the exemption of Section 11 has not been withdrawn in the case of the assessee and I am in agreement with the assessee s submission. Hence the assessee is to enjoy the benefit of Section 11 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajan Dhall (for short) the present assessee and Fortis with an identical effect namely: 1. Provision of medical facilities to the public. 2. The overall control and management of the trust continued to remain with the trustees. 3. There was no misuse or siphoning of funds for non charitable purposes which is not even alleged in the case of Rajan Dhall. 4. All funds were expended for the objects of the trust which were well within the meaning of charitable purpose as defined in Section 2(15) of the Act. 5. No material had been brought on record by the AO to suggest that provisions of Section 11 to 13 of the Act had been violated. (Copy of the agreement between Rajan Dhall and Fortis is placed at pages 118 to 128 of PB II). It was argued that the revenue took the matter to the Hon ble High Court u/s 260 A of the Act for the assessment years 2005-06 and 2006-07 where the same was rejected not only on the ground of delay in refiling but also on merits, (copy of the order in ITA 1021 and 1022/2015 dated 04.01.2016 is placed on record. Thus, Ground No. 1 of the Revenue is dismissed. 28. As regards Ground No. 2 of the Revenue, the assessee is also in appeal vide Grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had already allowed the exemption u/s 11 of the Income-tax Act, 1961 [hereinafter referred to as 'the Act' for short] and, therefore, in view of the findings on the alternative ground so given by the ld. CIT(A), the addition is directed to be deleted. 32. In the result, the appeal of the Revenue in ITA No. 3073/DEL/2012 is dismissed and that of the assessee in ITA No. 3495/DEL/2012 is allowed. ITA No. 5873/DEL/2013 [A.Y. 2009-10] CO No. 125/DEL/2017 [2009-10] 33. The facts of Ground Nos. 1 and 2 of the Revenue involved in the appeals of the Revenue for the assessment year 2008-09 in ITA No. 3073/DEL/2012 are identical to the facts involved in ITA No. 5873/DEL/2013 for the assessment year 2009-10. Therefore, our findings given in the former part of this order shall also apply mutatis mutandis for the assessment year 2009-10. Accordingly, Ground Nos. 1 and 2 of the Revenue are dismissed. 34. Apropos Ground no. 3 of the Revenue, we find that the ld. CIT(A) has not decided this issue separately and, therefore, the ground raised by the Revenue is out rightly rejected and, accordingly, Ground No. 3 of the Revenue is dismissed. 35. As regards the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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