Abhijit Kadam Memorial Foundation,, Pune v. DCIT,Cent.Cir.-2(2)., Pune

ITA 850/PUN/2011 | 2006-2007
Pronouncement Date: 18-10-2013 | Result: Allowed

Appeal Details

RSA Number 85024514 RSA 2011
Assessee PAN AABTA0707B
Bench Pune
Appeal Number ITA 850/PUN/2011
Duration Of Justice 2 year(s) 4 month(s) 3 day(s)
Appellant Abhijit Kadam Memorial Foundation,, Pune
Respondent DCIT,Cent.Cir.-2(2)., Pune
Appeal Type Income Tax Appeal
Pronouncement Date 18-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 18-10-2013
Date Of Final Hearing 27-08-2012
Next Hearing Date 27-08-2012
Assessment Year 2006-2007
Appeal Filed On 15-06-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER MA NOS. 139 TO 143/PN/2013 (ARISING OUT OF ITA NOS.846 TO 850 /PN/2011) AND ITA NOS.846 TO 850/PN/2011 (ASST.YEARS : 2002-03 TO -2006-07) ABHIJIT KADAM MEMORIAL FOUNDATION SINGHAD OPP : BMCC COLLEGE SHIVAJINAGAR PUNE-411 004. PAN NO.AABTA0707B .. APPLICANT VS. DCIT CENTRAL CIRCLE-2(2) PUNE .. RESPONDENT APPLICANT BY : SHRI NIKHIL PATHAK RESPONDENT BY : SHRI A.K. MODI DATE OF HEARING : 18-10-2013 DATE OF PRONOUNCEMENT : 18-10-2013 ORDER PER R.K.PANDA AM : THE ASSESSEE THROUGH THESE MISCELLANEOUS APPLICATIO NS REQUEST THE TRIBUNAL TO RECTIFY THE MISTAKES THAT HAVE CREPT IN THE ORDER SINCE GROUNDS OF APPEAL NO. 5 TO 5.4 IN ALL THESE APPEALS HAVE NOT B EEN DECIDED BY THE TRIBUNAL. 2. SINCE IDENTICAL REQUEST HAS BEEN MADE BY THE ASS ESSEE IN ALL THESE 5 MISCELLANEOUS APPLICATIONS THEREFORE WE FIRST TAK E UP ITA NO.139/PN/2011. THE CONTENTS OF THE MISCELLANEOUS APPLICATION READ AS UNDER : 1. THIS HAS A REFERENCE TO THE ORDER OF THE HON'BL E B BENCH ITAT PUNE DATED 31.12.2012 IN THE CASE OF ABHIJIT KADAM MEMORI AL FOUNDATION. THE ASSESSEE TRUST HAD FILED AN APPEAL AGAINST THE ORDER PASSE D BY THE LEARNED CIT(A) FOR A.Y. 2001-02 TO 2006-07. THE SAID APPEALS WERE DECIDED BY HON'BLE ITAT BY WAY OF A COMMON ORDER SINCE MOST OF T HE GROUNDS OF APPEAL 2 WERE IDENTICAL FOR ALL THE YEARS. IN THE ORDER PASSED FOR THE ABOVE YEARS HON'BLE ITAT HAS REPRODUCED THE GROUNDS OF APPEAL FOR A.Y. 2001-02. THE VARIOUS GROUNDS OF APPEAL RAISED BY THE ASSESSEE FOR A.Y. 2001-02 HAVE BEEN DECIDED BY HON'BLE ITAT AND IN PARA 8 ON PAGE 8 IT HAS BEEN STATED THAT THE GROUNDS OF APPEAL FOR THE REMAINING YEARS I.E. A.Y. 2002-03 TO 2006-07 ARE IDENTICAL TO THE GROUNDS RAISED IN A.Y. 2001-02 AND THE SAME ARE DECIDED ACCORDINGLY. 2. THE ASSESSEE SUBMITS THAT A MISTAKE HAS CREPT IN THE O RDER OF HON'BLE ITAT FOR A.Y. 2002 03. THE ASSESSEE WOULD LIKE TO SUBMIT THAT THE GROUNDS OF APPEAL RAISED FOR A.Y. 2001-02 AND A.Y.2002-03 WERE IDENTICAL EXCEPT FOR GROUND NOS. 5 TO 5.4 RAISED BY THE ASSESSEE IN THE APPEAL FILED FOR A.Y. 2002 - 03. THESE GROUNDS PERTAIN TO THE DISALLOWANCE OF EXEMP TION U/S 11 MADE ON THE GROUND THAT THE ASSESSEE HAD VIOLATED THE PROVISI ONS OF SECTION 13(1)(D) BY MAKING INVESTMENT IN THE SHARES OF SOME CO-OPERA TIVE SOCIETIES. IT IS SUBMITTED THAT THIS ISSUE PERTAINED ONLY TO THE APPEAL FILED FOR A.Y. 2002-03 ONWARDS AND HENCE THE SAID GROUND NOS. 5 TO 5.4 WE RE NOT RAISED IN THE APPEAL FILED FOR A.Y. 2001-02. ACCORDINGLY THE ASSESSEE SUBMIT S THAT SINCE THE APPEAL FILED FOR A.Y. 2002-03 HAS BEEN DECIDED ON THE BASI S OF THE ORDER PASSED FOR A.Y.2001-02 THE SAID GROUNDS HAVE REMAINED TO BE D ECIDED BY HON'BLE ITAT IN THE APPEAL FILED FOR A.Y. 2002-03 . 3. THUS THE ASSESSEE SUBMITS THAT THE GROUND NOS. 5 TO 5.4 HAVE NOT BEEN DECIDED IN THE ITAT ORDER PASSED FOR A.Y. 2002-03 AND HENCE THERE IS A MISTAKE IN THE ORDER PASSED FOR THAT YEAR. IT IS SUBMITT ED THAT NON CONSIDERATION OF A GROUND RAISED IN APPEAL IS A MIS TAKE APPARENT FROM RECORD. ACCORDINGLY THE ASSESSEE REQUESTS THAT THE SAID GR OUND NOS. 5 TO 5.4 MAY KINDLY BE DECIDED FOR THE APPEAL FILED FOR A.Y. 2002-03. 3. WE HAVE HEARD THE RIVAL CONTENTIONS MADE BY BOTH THE SIDES. ADMITTEDLY THE GROUNDS OF APPEAL NO. 5 TO 5.4 IN A LL THE ABOVE APPEALS WERE NOT DECIDED BY THE TRIBUNAL. WE THEREFORE ARE OF THE OPINION THAT A MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL WHICH REQUIR ES RECTIFICATION. ACCORDINGLY THE ORDER OF THE TRIBUNAL FOR THE ABOV E ASSESSMENT YEARS ARE RECALLED FOR THE LIMITED PURPOSE OF DECIDING GROUND S OF APPEAL NO. 5 TO 5.4. ACCORDINGLY THE MISCELLANEOUS APPLICATIONS FILED B Y THE ASSESSEE ARE ALLOWED. PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON 18-10-2013. 3 ITA NOS. 846 TO 850/PN/2011 (A.YRS. 2002-03 TO 2006 -07 ) : 4. GROUNDS OF APPEAL NO.5 TO 5.4 BY THE ASSESSEE IN ALL THE ABOVE APPEALS ARE IDENTICAL WHICH READ AS UNDER : 5] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE APPELLANT TRUST WAS NOT ENTITLED TO THE EXEMPTION U/S.11 AS IT HAD VIOLATED THE PROVISIONS OF SECTIONS 13(1)(D) R.W.S 11(5). 5.1] THE LEARNED CIT(A) FAILED TO APPRECIATE THA T THE SHARES OF KRISHNA VERALA CO-OP SOOT GIRNI (A CO-OPERATIVE SOCIETY) WER E ACQUIRED IN THE COURSE OF ACHIEVING THE OBJECTS OF THE TRUST AND THEY COULD NOT BE CONSIDERED TO BE INVESTMENTS/DEPOSITS MADE BY THE ASSESSEE. 5.2] THE LEARNED CIT(A) ERRED IN NOT APPRECIATIN G THAT A. THE AMOUNTS INVOLVED IN THESE SHARES WERE VERY SMALL COMPARED TO THE TOTAL ASSETS OF THE ASSESSEE TRUST AND HENC E THEY COULD NOT BE CONSIDERED AS INVESTMENTS/DEPOSIT S. B. THE SHARES OF THE SAID SOCIETY DID NOT YIELD ANY DI VIDEND TO THE APPELLANT TRUST RIGHT FROM THE DAY OF INVESTME NT AND THIS WOULD ALSO INDICATE THAT THEY WERE NOT INVESTMENTS M ADE WITH AN INTENTION TO EARN ANY INCOME THEREFROM. C. OVERALL INVESTMENT OF THE ASSESSEE TRUST AND OT HER TRUSTS OF THE GROUP WAS VERY MEAGER AND THE INVESTMENT WAS NOT MADE IN ORDER TO GAIN THE CONTROL OVER THE ORGANIZATION. D. IN THE ASSTS. COMPLETED U/S 143(3) PRIOR TO THE SEA RCH IN THE CASES OF OTHER TRUSTS OF THE SAME GROUP THE DEPT . DID NOT RAISE ANY OBJECTION ON THIS ISSUE AND HAD GRANTED T HE EXEMPTION U/S 11. 5.3] ACCORDINGLY THE LEARNED CIT(A) WAS NOT JUSTI FIED IN HOLDING THAT THE APPELLANT TRUST HAD MADE ANY INVESTMENTS IN VIOLATI ON OF SECTION 13(1)(D) R.W.S 11(5). 5.4] WITHOUT PREJUDICE TO THE ABOVE GROUNDS THE LEARNED CIT(A) OUGHT TO HAVE TAXED ONLY THE INCOME ARISING FROM INVESTMENTS MADE IN VIOLATION OF SECTION 11(5) AND NOT THE ENTIRE INCOME OF THE ASSESSEE TRU ST. 4.1 BOTH THE SIDES AGREED THAT THE ABOVE GROUNDS AR E COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2007-08. WE FIND IDENTICAL GROUNDS WERE DECIDED BY THE TRIBUNAL IN A SSESSEES OWN CASE FOR A.Y. 2007-08 VIDE ITA NO.1179/PN/2011 ORDER DATED 3 1-12-2012. GROUNDS 4 RAISED BY THE ASSESSEE AS WELL AS THE ORDER OF THE TRIBUNAL FOR A.Y. 2007-08 ARE AS UNDER : 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER : ON FACTS AND IN LAW 1. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT TH E ASSESSEE TRUST WAS DULY REGISTERED U/S 12A AND THEREFORE IT WAS DULY ENTIT LED TO THE EXEMPTION U/S 11. 2] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE APP ELLANT TRUST WAS NOT ENTITLED TO THE EXEMPTION U/S 11 AS IT HAD VIOLATED THE PROVI SIONS OF SECTIONS 13(1)(D) R.W.S 11(5). 2.1] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT T HE SHARES OF SAGARESHWAR SOOT GIRNI & KRISHNA VERALA CO-OP SOOT GIRNI (CO-OP ERATIVE SOCIETIES) WERE ACQUIRED IN THE COURSE OF ACHIEVING THE OBJECTS OF THE TRUST AND THEY COULD NOT BE CONSIDERED TO BE INVESTMENTS / DEPOSITS MADE BY THE ASSESSEE. 2.2] THE LEARNED CIT(A) ERRED IN NOT APPRECIATING T HAT - A. THE AMOUNTS INVOLVED IN THESE SHARES WERE VERY S MALL COMPARED TO THE TOTAL ASSETS OF THE ASSESSEE TRUST AND HENCE THEY COULD NOT BE CONSIDERED AS INVESTMENTS / DEPOSITS. B. THE SHARES OF THE SAID SOCIETY DID NOT YIELD ANY DIVIDEND TO THE APPELLANT TRUST RIGHT FROM THE DAY OF INVESTMENT AN D THIS WOULD ALSO INDICATE THAT THEY WERE NOT INVESTMENTS MADE WITH A N INTENTION TO EARN ANY INCOME THEREFROM. C. OVERALL INVESTMENT OF THE ASSESSEE TRUST AND OTH ER TRUSTS OF THE GROUP WAS VERY MEAGER AND THE INVESTMENT WAS NOT MADE IN ORDER TO GAIN THE CONTROL OVER THE ORGANIZATION. D. IN THE ASSTS. COMPLETED U/S 143(3) PRIOR TO THE SEARCH IN THE CASES OF OTHER TRUSTS OF THE SAME GROUP THE DEPT. DID NOT R AISE ANY OBJECTION ON THIS ISSUE AND HAD GRANTED THE EXEMPTION U/S 11. 2.3 ACCORDINGLY THE LEARNED CIT(A) WAS NOT JUSTIFI ED IN HOLDING THAT THE APPELLANT TRUST HAD MADE ANY INVESTMENTS IN VIOLATI ON OF SECTION 13(1)(D) R.W.S 11(5). 2.4 WITHOUT PREJUDICE TO THE ABOVE GROUNDS THE LEA RNED CIT(A) OUGHT TO HAVE TAXED ONLY THE INCOME ARISING FROM INVESTMENTS MADE IN VIOLATION OF SECTION 11(5) AND NOT THE ENTIRE INCOME OF THE ASSE SSEE TRUST. 3. THE LEARNED CIT(A) ERRED IN NOT ADJUSTING EXCESS APPLICATION OF INCOME FOR THE CURRENT YEAR OF RS. 6 84 920/- WITH SHORT A PPLICATION OF EARLIER YEARS. 4. THE LEARNED CIT(A) ERRED IN NOT GRANTING BENEFIT OF 15% OF THE INCOME WHICH IS ALLOWABLE AS PER LAW TO BE SET APART AND A CCORDINGLY THE INCOME COMPUTED SHOULD HAVE BEEN REDUCED BY 15%. 5. THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 5 3. WE HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH TH E SIDES. SO FAR AS THE GROUND OF APPEAL NOS. 1 & 5 ARE CONCERNED THE LE ARNED COUNSEL FOR THE ASSESSEE DID NOT PRESS THE SAME BEING GENERAL IN NATURE FO R WHICH THE LEARNED DR HAS NO OBJECTION. ACCORDINGLY THE ABOVE TWO GROU NDS ARE DISMISSED. 4. GROUNDS OF APPEAL NO.2 TO 2.2 BY THE ASSESSEE RELATE S TO DENIAL OF EXEMPTION U/S.11 ON ACCOUNT OF PURCHASE OF SHARES OF SA GARESHWAR SOOT GIRNI & KRISHNA VERALA MAGASWARGIYA SOOT GIRNI (COOPERATIVE SOCIETIES). 5. AFTER HEARING BOTH THE SIDES WE FIND THE ABOVE GR OUNDS ARE IDENTICAL TO GROUNDS OF APPEAL NO. 4 TO 4.4 IN THE CASE OF PATANGR AO KADAM PRATISHTHAN VIDE ITA NO.289/PN/2011 FOR A.Y. 2006-07. WE VIDE OUR ORDER OF EVEN DATE HAVE ALREADY DECIDED THE ISSUE AND ALLOWED THE GROUND S BY HOLDING AS UNDER : 14. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER B OOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECI SIONS CITED BEFORE US. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS PURCHA SED THE SHARES OF RS.2 00 000/- EACH IN THE TWO COOPERATIVE SOCIETIES NAMELY KRISHNA VERALA MAGASWARGIYA SOOT GIRNI LTD. & SAGARESHWAR SAHAKARI SOOT GIRNI LTD. WE FIND THE AO WAS OF THE OPINION THAT DUE TO PURCHASE OF T HE SHARES OF THE 2 COOPERATIVE SOCIETIES THERE IS VIOLATION OF PROVISI ONS OF SECTION 13(1)(D) R.W.S.11(5) AND THEREFORE THE ASSESSEE TRUST IS NOT ENTITLED TO EXEMPTION U/S.11. WE FIND THE LEARNED CIT(A) HAS UPHELD THE ACTION OF THE AO. IT IS THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE PU RCHASE OF SHARES OF THESE COOPERATIVE SOCIETIES CANNOT BE SAID TO BE INVESTME NT MADE BY THE ASSESSEE SINCE THE TOTAL SHAREHOLDING IN THE CAPITAL OF THE COOPERATIVE SOCIETIES IS HARDLY 1% AND THE MAJORITY OF THE SHAREHOLDING IS BY THE G OVERNMENT OF MAHARASTRA. FURTHER THE ASSESSEE HAS NOT RECEIVED ANY INTEREST AND CONSIDERING THE CORPUS FUNDS OF THE TRUST AT 4.26 CRORES THE INVESTMENT OF 4 LAKHS IN THE SHARES OF THESE TWO COOPERATIVE SOCIETIES CANNOT BE TREATED AS AN I NVESTMENT. IT IS ALSO THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THERE WAS NO OBJECTION BY THE REVENUE IN THE PAST AND ONLY DURING THE ASSE SSMENT PROCEEDINGS FOR 1999-2000 TO 2006-07 THAT THE REVENUE HAS RAISED OB JECTIONS. IT IS ALSO THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT ON BEING POINTED OUT BY THE AO THAT THERE IS VIOLATION OF PROVISIONS OF SEC TION 11(5) THE ASSESSEE LIQUIDATED THE SHARES AND GOT OVER THE ALLEGED OBJE CTION OF VIOLATION OF PROVISIONS OF SECTION 11(5). 14.1. THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT IT HAS LIQUIDATED THE SHARES OF THE CO-OPERATIVE SOCIETIES AND THIS FACT WAS BROUGHT TO THE NOTICE OF THE CIT(A) IN THE WRITTEN SUBMISSIONS FILED BEFORE HIM WAS NOT CONTROVERTED BY THE REVENUE. 14.2 WE FIND THE HONBLE DELHI HIGH COURT IN THE CA SE OF AGRIM CHARAN FOUNDATION (SUPRA) HAS HELD AS UNDER : THE DISPUTE RELATES TO THE ASSESSMENT YEAR 1995-96 IN RESPECT OF AN ASSESSEE WHICH IS A CHARITABLE TRUST. 2. THE CONTROVERSY LIES IN A VERY NARROW COMPASS. FOR THE ASSESSMENT YEAR IN QUESTION THE ASSESSEE F ILED ITS RETURN OF INCOME ALONG WITH THE AUDIT REPORT BALANCE-SHEET ETC. THE ASSESSING OFFICER NOTED THAT FOR THE PURPOSE OF CLAIMING EXEMP TION UNDER SECTION 11 OF THE ACT CERTAIN DEPOSITS MADE WITH S.M. FINA NCE LIMITED AND UNITECH LIMITED WERE INCLUDED. THESE TWO WERE NOT P UBLIC UNDERTAKINGS AND THEREFORE ACCORDING TO THE ASSESSING OFFICER THE DEPOSITS WERE MADE IN VIOLATION OF THE PROVISIONS CONTAINED IN SE CTION 11(5) OF THE ACT AND THEREFORE THE BENEFIT UNDER SECTIONS 11 AND 12 READ WITH SECTION 6 13(1)(D) OF THE ACT WAS DENIED. THE PETITIONER FILE D AN APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) (IN SHORT 'THE CIT(A)'). THE SAME WAS DISMISSED EX PARTE HOLDING THAT THERE WAS NO COM PLIANCE ON THE DATE FIXED AND THERE WAS NOTHING WRONG WITH THE ORDE R OF THE ASSESSING OFFICER. THE ASSESSEE PREFERRED AN APPEAL BEFORE TH E ITAT DELHI BENCH 'B' DELHI (IN SHORT THE 'TRIBUNAL'). 3. THE FACTUAL POSITION THAT WAS HIGHLIGHTED BEFORE THE TRIBUNAL WAS THAT AFTER INCORPORATION OF THE TRUST AND ITS R EGISTRATION CHARITABLE WORK WAS BEING UNDERTAKEN. THE DONATIONS FOR THE CO RPUS OF THE TRUST WERE OBTAINED BY ACCOUNT PAYEE CHEQUES. SUCH CORPUS FUNDS HAVE BEEN INVESTED AS FIXED DEPOSITS WITH PUBLIC SECTOR UNDERT AKINGS VIZ. UTI SAIL NTPC ETC. DURING THE YEAR UNDER CONSIDERATION THE TWO CONCERNS VIZ. UNITECH LTD. AND S.M. FINANCE LTD. GAVE FORMS TO T HE APPELLANT INVITING DEPOSITS. IN THE FORMS IT WAS SPECIFICALLY MENTIONE D THAT THESE CONCERNS WERE AUTHORISED TO ACCEPT DEPOSITS FROM CHARITABLE TRUSTS. ON THE BASIS OF THIS INFORMATION CERTAIN DEPOSITS WERE MADE WITH THESE TWO CONCERNS. AN ADVICE WAS SOUGHT FOR FROM A CHARTERED ACCOUNTAN T WHO ADVISED THAT THE DEPOSITS COULD BE KEPT WITH THESE TWO CONCERNS AND EXEMPTION UNDER SECTIONS 11 AND 12 WOULD BE AVAILABLE. HOWEVER WHE N AT THE TIME OF ASSESSMENT THE ASSESSING OFFICER POINTED OUT TO TH E CHAIRMAN OF THE TRUST THAT THESE TWO CONCERNS DID NOT HAVE NECESSAR Y APPROVAL FROM THE GOVERNMENT TO ACCEPT DEPOSITS FROM CHARITABLE TRUST S THE ASSESSEE IMMEDIATELY WITHDREW THE DEPOSITS FROM THESE TWO CO NCERNS. HOWEVER EXEMPTION WAS DENIED ON THE GROUND THAT THERE WAS VI OLATION OF THE PROVISIONS. THE TRIBUNAL NOTED THAT THIS WAS A CASE WHERE THE TWO CONCERNS MAY HAVE FLOUTED THE GOVERNMENT RULES AND THE ASSESSEE IN THE ABSENCE OF ANY MALA FIDES AND BEING NOT LINKED WITH THE CONCERNS SHOULD NOT BE BENEFITS. THE TRIBUNAL KEEPING IN VIEW THE OBJECTS FOR WHICH SECTION 11(5) HAS BEEN ENACTED AND THE FACTUAL BACK GROUND MORE PARTICULARLY THE MENTION MADE IN THE FORMS OF THE TWO CONCERNS AND THE ACT OF THE ASSESSEE IN IMMEDIATELY WITHDRAWING THE AMOUNTS ON BEING MADE AWARE THAT THE TWO CONCERNS WERE NOT PERMITTED TO RECEIVE DEPOSITS ALLOWED THE ASSESSEES APPEAL. 4. LEARNED COUNSEL FOR THE REVENUE SUBMITTED THAT T HERE HAS BEEN A BREACH OF THE STATUTORY PROVISIONS AND THEREFORE THE BONA FIDES SHOULD NOT HAVE WEIGHED WITH THE TRIBUNAL. 5. WE HAVE CONSIDERED THE SUBMISSIONS MADE. WE FIND THAT THE TRIBUNAL HAS REFERRED TO VARIOUS FACTUAL ASPECTS AS ELABORATED ABOVE IN COMING TO THE CONCLUSION THAT THE ASSESSEE COULD NO T BE FAULTED FOR THE MISREPRESENTATION OF THOSE TWO CONCERNS. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE TRIBUNAL TO WARRANT INTERFERENCE. THE APPEAL IS ACCORDINGLY DISPOSED OF. SINCE IN THE INSTANT CASE THE ASSESSEE ON BEING PO INTED OUT BY THE AO THAT THERE IS VIOLATION OF PROVISIONS OF SECTION 11(5) HAS LI QUIDATED THE SHARES THEREFORE RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF AGRIM CHARAN FOUNDATION (SUPRA) WE ARE OF CONSIDERE D OPINION THAT THE BENEFIT OF EXEMPTION U/S.11 CANNOT BE DENIED TO THE ASSESSEE . 14.3 SO FAR AS THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF SHARADABEN BHAGUBHAI MAFATLAL PUBLIC CHARITABLE TRU ST (SUPRA) IS CONCERNED THE SAME IN OUR OPINION IS NOT APPLICABLE TO THE FA CTS OF THE PRESENT CASE. IN THAT CASE THE ASSESSEE TRUST WAS HOLDING SHARES IN NON-G OVERNMENT COMPANIES AFTER 30 TH NOVEMBER 1983 AND DID NOT DISPOSE OF OR CONVERT TH E SHARES INTO PERMISSIBLE INVESTMENT BY 31-03-1993. ACCORDINGLY IT WAS HELD THAT THERE WAS 7 CONTRAVENTION OF SECTION 13(1)(D) R.W. PROVISO (IIA ) IN ASST. YEAR 1993-94 AND ACCORDINGLY BENEFITS OF SECTION 11 WAS DENIED. HOW EVER IN THE INSTANT CASE THE FACTS ARE COMPLETELY DIFFERENT. THERE WAS NO OBJEC TION BY THE REVENUE IN THE PAST ON THIS ISSUE AND THE ASSESSEE HAS PROMPTLY LI QUIDATED THE SHARES ON BEING OBJECTED TO BY THE REVENUE. THEREFORE THE DECISIO N RELIED ON BY LEARNED DR IS DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. WE ACCORDINGLY SET-ASIDE THE ORDER OF THE LEARNED CIT( A) ON THIS ISSUE AND THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. SINCE FACTS IN THE INSTANT CASE ARE IDENTICAL TO THE F ACTS OF THE CASE DECIDED ABOVE THEREFORE FOLLOWING THE SAME RATIO THE GROU NDS OF APPEAL NOS. 2 TO 2.2 BY THE ASSESSEE ARE ALLOWED. 6. SO FAR AS THE GROUNDS OF APPEAL NO. 3 & 4 ARE CON CERNED BOTH THE SIDES SUBMITTED THAT THESE GROUNDS WILL BE CONSEQUENTIAL IN N ATURE AND WILL BE ALLOWED IF EXEMPTION U/S.11 IS ALLOWED. 7. SINCE THE AO HAD NOT GRANTED EXEMPTION U/S.11 ON THE GROUND THAT THE ASSESSEE HAS VIOLATED THE PROVISIONS OF SECTION 13(1)(D) R. W.S. 11(5) BY PURCHASING THE SHARES OF SAGARESHWAR SOOT GIRNI & KRISHN A VERALA MAGASWARGIYA SOOT GIRNI (COOPERATIVE SOCIETIES) AND SIN CE WE HAVE HELD THAT THE ASSESSEE HAS NOT VIOLATED THE PROVISIONS OF SECTION 13( 1)(D) R.W.S.11(5) OF THE ACT THEREFORE THE ABOVE GROUNDS BEING CONSEQUEN TIAL IN NATURE ARE ALLOWED. 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALL OWED. 4.2 SINCE EXEMPTION WAS DENIED BY THE ASSESSING OFF ICER ON THE GROUND THAT THE ASSESSEE HAS VIOLATED PROVISIONS OF SECTIO N 13(1)(D) R.W.S.11(5) BY PURCHASING THE SHARES OF THE COOPERATIVE SOCIETIES AND SINCE THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2007-08 HAS HELD THAT THE ASSESSEE HAS NOT VIOLATED THE PROVISIONS OF SECTION 13(1)(D) R.W.S. 11(5) OF THE ACT THEREFORE RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2007-08 THE GROUNDS RAISED BY THE ASSESSEE FRO M 5 TO 5.4 IN ALL THE ABOVE APPEALS ARE ALLOWED. PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON 18 TH DAY OF OCTOBER 2013 SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. P ANDA) JUDICIAL MEMBER ACCOU NTANT MEMBER SATISH PUNE DATED: 18 TH OCTOBER 2013 8 COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A) CENTRAL PUNE 4. CIT CENTRAL PUNE 5. THE D.R B PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT PUNE BENCH PUNE