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TMI Blog2019 (2) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... ineness of the loans stands proved. In the present case there is no share capital involved nor is there any statement of accommodation entry having been given by any person. Therefore, addition made in the assessment order is hereby deleted in view of above mentioned factual evidences establishing the identity, capacity of the lenders and genuineness of the loans. Benefit of exemption u/s 10(23C)(iiiad) - Held that:- The income of the assessee trust is exempt u/s 10(23C)(iiiad) and it is held accordingly. Income of the assessee trust is exempt u/s 10(23)(iiiad) and benefit of section 11 and 12 having been allowed. - ITA No. 7877/Del/2018 - - - Dated:- 5-2-2019 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER For The Assessee : DR. RAKESH GUPTA, ADV. AND SH. SHUBHAM SOBIT, ADV. For The Department : SH. SUNRENDER PAL, SR. DR. ORDER PER H.S. SIDHU, JM This appeal has been filed by the Assessee against the order dated 24.10.2018 of the Ld. CIT(A), Ghaziabad relating to assessment year 2010-11. The assessee has raised the following grounds. 1. That having regard to the facts and circumstances of the case, Ld. CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the said assessment order, which was dismissed by the Ld. CIT(A) vide his order dated 19.02.2015 against which assessee preferred appeal before the Tribunal which was disposed by Tribunal vide its order dated 29.06.2016 in Appeal No. ITA 3229/DEL/2015. Copy of the order of the Tribunal dated 29.06.2016 is enclosed at page 283 to 303 of the paper book filed by the assessee, according to which all the issues involved in that appeal were restored to the A.O. for fresh adjudication and it was directed by the Tribunal in that order to A.O. to consider the decision of the Hon ble Apex Court in the case Queens Educational Society 372 ITR 699(SC) and also the decisions of Kolkata Bench in the case Sree Sree Ram Krishna Samity 156 ITD 646. Accordingly, the present assessment order dated 29.11.2017 was passed by the A.O. u/s 143(3) / 254. The appeal order dated 24.10.2018 was passed by Ld. CIT(A), Ghaziabad against which the present appeal before us has been filed raising the above mentioned grounds of appeal. At the time of hearing Counsel for the Assessee, Dr. Rakesh Gupta filed written synopsis and also orally argued the case and relied upon various pages of paper book also. Ld. Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hnical ground that since assessee s Trust is registered in Delhi, he being CIT, Ghaziabad does not have jurisdiction. Copy of this order dated 28.10.2011 is enclosed at page 325-326 of the paper book. Thus, it is clear that registration initially was refused on the technical ground that CIT did not have jurisdiction on the assesse trust. There were no adverse comments / findings or observations of CIT either in the matter of objects of the trust or in respect of the activities of the trust. When this order dated 28.10.2011 was appealed by the assessee before the Tribunal, the Tribunal vide its order date 12.11.2012 restored the matter back to the CIT to consider the issue on merit and further that if CIT, Ghaziabad does not have jurisdiction, then CIT, Ghaziabad should transfer the application to the CIT, who holds jurisdiction over the assessee trust. This order of the Tribunal dated 12.11.2012 is available at page 327-330 of the paper book. The registration order dated 16.07.2013 was passed by CIT after receiving the direction from the Tribunal vide its order dated 12.11.2012 and such registration order is available at page 62-63 of the paper book in which CIT held that he was ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation stood already granted when the present assessment order was passed on 29.11.2017. Thus the benefit of section 11 and 12 should be made available to the assessee for the present assessment year i.e. A.Y. 2010- 11 also in terms of the proviso to section 12A(2). Ld. CIT while granting registration vide his order dated 16.07.2013 or the A.O. while passing the impugned assessment order have not made any adverse observation about the objects and activities of the assessee s trust or that the objects and activities of assessee trust were not same in the year when the registration was granted. In other words the objects and activities of the trust remained same in A.Y. 2010-11 and in A.Y. 2012-13 and therefore, the conditions as required in terms of proviso to section 12A(2) stand met in the preset case. We are fortified in support our view and also as to the retrospectivity of the amendment, with the decision of Kolkata bench in Sree Sree Ram Krishna Samity vs. DCIT, (2016) 156 ITD 0646 (Kol.) 86 SNDP Yogam vs. Asstt. D1T (Exemption), (2016) 161 ITD OOO1(Cochin) 86 ITO vs. Shri Vishwakalyan Jivraksha, ITA No. 2013/Pune/ 2014, dated 22.07.2016. It is appropriate to reproduce the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Dhanesh Chand Gupta ₹ 15,00,000/- 1 4. Mayank Goel ₹ 20,00,000/- 5. Naresh Agarwal ₹ 20,00,000/- 6. Rakesh Mohan Goel ₹ 15,00,000/- 7. Shivalya Steel ₹ 20,00,000/- 8. Sushma Bhatia ₹ 20,00,000/- 9. Tejindra Singh Rs. 15,00,000/- 5.2 During the year covered by the present appeal, the above said loans were converted into corpus donations at the instance of the lenders. According to the A.O. since benefit of section 11 and 12 is not available to the assessee trust, such corpus donations become taxable in view of the decision of Hon ble Supreme Court in the case of U.P. Forest Corporation vs. DCIT 297 ITR 1(SC) as the per decision of Rasipuram Rotary Club Trust vs. ITO ITA No. 45/MDS/2015 (supra). Accordingly ne said amount of ₹ 1,63,00,000/- was brought to the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnai Bench in the case of Rasipuram Rotary Club Trust vs. ITO ITA No. 45/MDS/2015 (supra) be followed in which it has been held that corpus donation received by an unregistered trust is taxable. Ld. Sr. DR relied upon the decision of Hon ble Supreme Court also in the case of U.P. Forest Corporation vs. DCIT 297 ITR 1(SC). 5.6 Having heard the rival submissions and perused the entire material before us and in view of our decision of Ground No. 1 it is held that the donations being corpus donation are eligible for exemption u/s 11(1)(d). Assessee trust having been granted registration w.e.f. 01.04.2011 vide CIT s order dated 16.7.2013, benefit of section 11 and 12 is to be given for the year before us as per our detailed decision given in Ground No. 1. Accordingly, as per section 11(1)(d), such corpus donations are exempt and cannot be brought to tax. Therefore, the action of A.O. in bringing to tax the corpus donation of ₹ 1,63,00,000/- to tax is not justified hence is reversed. In any case, the corpus donations received as loans in 2009-10 were accepted as genuine and the assessment order for A.Y. 2009-10 was passed u/s 143(3) placed at page 73-74 of the paper book. We h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ME OF PARTY ADDITION 1. Nav Bharat Enterprises 9,00,000/- 2. Pranjal Steel Trading Co. 15,50,000/- 3. Salasar Steel Syndicate 30,50,000/- 4. Singhal Enterprises 48,00,000/- 5. Sri Vasudcv Iron P. Ltd. 58,70,000/- Total:- 1,61,20,000/- 6.1 According to A.O. the assessee has not established ingredients of section 68. Accordingly the addition was made which was confirmed by CIT(A). 6.2 Ld. Counsel for the assessee drew our attention to various pages of the paper book given at page 8-9-10 of the synopsis and submitted that these loans were confirmed by the respective lenders, that these loans were given through banking channel that the lenders were assessed to tax and so much so these amounts have been returned through banking channel to the respective lenders. Ld. Counsel submitted that the notice issued u/s 133(6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rprises aggregating to ₹ 48,00,000/-. PB 180, 181 is the copy of evidence of repayment of loans of ₹ 16,0,000/- to M/s Nav Bharat Enterprises. PB 182-186 is the copy of bank statements of the assessee showing the repayments of various loans. PB 83-127are the evidences of loans as under:- PB 83 is the copy of ledger account of M/s Nav Bharat Enterprises in the book of appellant. PB 84 is the copy of confirmed ledger account of M/s Nav Bharat Enterprises. PB 85 is the copy of PAN of M/s Nav Bharat Enterprises. PB 86 is the copy central Excise registration certificate in the Form RC PB 87-89 is the copy of bank statement of M/s Nav Bharat Enterprises to show that loan were received and refunded back through banking channel. PB 90-92, 93-97 is the copy of computation of income, acknowledgment of return for A.Y. 2010-11 and A.Y. 2016-17 of M/s Nav Bharat Enterprises. PB 98-99 is the copy of bank statement of the appellant to show that repayment of loan through banking channel. PB 100 is the copy of ledger account of M/s Pranjal Steel Trading Co. in the book of appellant. PB 101, 102 is the copy of confir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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