M/S BIMLADEVI DHARAMPRAKASH JAN-KALYAN NIDHI,KOLKATA vs. CIT(EXEMPTION) KOLKATA, KOLKATA

The captioned appeal filed by the Assessee, is directed against an order passed by the ld. Commissioner of Income Tax (Exemptions), Kolkata under section 12AA(3) of the Income Tax Act, 1961,( Hereinafter referred to as the ‘Act’), dated 23.12.2016.

The assessee has raised the following grounds of appeal:

For that the Ld. C.l.T(Exemption)erred in cancelling the Registration of the Trust U/s.12AA(3) of the I.T. Act, I961 holding that the activities of the assessee were not genuine and were not being carried out in accordance with the objective of the trust when the object are being, carried on accordance with the objects and there was no such finding except that the assessee paid the alleged bogus donations. 4. For that the Ld. C.l.T(Exemption) erred in cancelling the registration u/s. 12AA(3) only on the ground that the assessee received cash in exchange of donation without any evidence that the assessee had received cash for payment of donation. 5. For that the Ld. C.l.T(Exemption) erred in applying the provisions of sec. 12AA(3) ignoring various evidences on assessment records where from it was evident that the assessee Trust was engaged in charitable activities, the donation even if treated as bogus may not have been treated as application of income but on that registration cannot be cancelled. 6.For that on the facts and circumstances of the case the order of the CIT(Exemption) is bad in law, not maintainable and perverse and as such should be set aside. 7.For that on the facts and circumstances forthe case the order of the CIT(E) be cancelled/modified and the assessee be given the relief prayed for. 8.For that the assessee craves leave to add, alter or amend any ground before or at the time of hearing.” 3.The brief facts qua the issue are that asurvey operation u/s. 133A of the I.T. Act 1961 was conducted on M/s. Govind Ram Goel Charitable Trust, Kolkata by the Income Tax Officer (Exemptions), Ward-1(1), Kolkata on 11.09.2015. During the course of Survey operation it transpired that M/s. Govind Ram Goel Charitable Trust was in the business of money laundering Page | 2 M/s. Bimladevi Dharamprakash Jan- Kalyan Nidhi and providing accommodation entry to different individuals and organizations. The entry was provided by way of accepting donations and returning the same to the donors through web of financial transactions after retaining the commission; and accepting money by cash or through a web of financial transactions and giving donations after retaining the commission. It was noted by CIT ( Exemptions) that M/s. BimladeviDharamprakash Jan- Kalyan Nidhi, in the financial years 2012-13, 2013-14 & 2014-15 to the relevant assessment years, 2013-14, 2014-15 & 2015-16, paid bogus donations amounting to Rs.10 lakhs, Rs. 5 lakhs &Rs. 4 lakhs respectively to M/s. Govind Ram Goel Charitable Trust. The Managing Trustee of M/s. Govind Ram Goel Charitable Trust, Shri Anand Agarwal accepted this fact in his sworn statement recorded u/s. 133A of the I.T. Act 1961 on 11.09.2015. In reply to Q.8 & Q.9, the managing Trustee clearly stated the fact that he had given a pre-arranged accommodation entry in the form of bogus corpus donation. The Managing Trustee also admitted the fact that they paid to the accommodation entry operators in cash which was returned to them, through a web of financial transactions, through cheque. It was exposed that by giving bogus donations, M/s. BimladeviDharamprakash Jan-Kalyan Nidhi is indulged in money laundering which is illegal, not genuine and not at par with the objectives of the trust. Accordingly, a show cause notice was issued to the assessee Trust on 03.12.2015 to explain why registration granted u/s. 12A/12AA will not be cancelled/ withdrawn u/s. 12AA(3) of the I.T. Act 1961.In reply to the said show cause notice, the Trustee of the Trust filed a number of submissions on 23.12.2015, 28.12.2015 & 17.11.2016. The assessee replied that they had paid donations to M/s. Govind Ram Goel Charitable Trust, 7, RabindraSarani, 7th Floor, Kotkata-700001, but they had never received any cash from them. The donations were paid keeping in view the charitable activities carried out by the said trust mainly in the field of providing health care services. Furthermore the donations have been paid by us as per objects of our trust. Assessee also stated that allegation of "giving bogus donation and accepting the money in cash" is baseless & arbitrary and we Page | 3 M/s. Bimladevi Dharamprakash Jan- Kalyan Nidhi deny such allegations. The assessee explained that their trust had never indulged in such activities. The assessee requested the CIT(E), to call Sri Anand Agarwal for our cross examination. It may be stated here that the Hon'ble Madras high Court in the case of S Khader Khan & Sons reported in 300 ITR page 157 that the deposition recorded in the course of Survey is not binding. After going through the submission of the assessee, as stated above, the CIT(E) held that assessee`s submission was not found to be tenable. The underlying principle is that for money laundering, the beneficiary has to route his cheque/RTGS to various layers through a consorted web of financial transactions and after payment of commission, gets back his money in cash. The assessee requested for cross examination of Shri Anand Agarwal Managing Trustee of M/s Govind Ram Goel Charitable Trust, for that ld CIT(E) stated that it was not necessary to do so and relied on the judgment of Hon’ble Bombay High Court in the case of GTC Industries Vs. ACIT [(1998) 60 TTJ Mumbai 308] wherein the Hon’ble High Court has held that right to cross-examine the witness who made adverse report, is not an invariable attribute of the requirement of the dictum, audi alteram partem. The principles of natural justice do not require formal cross- examination. Formal cross-examination is a part of procedural justice. It is governed by the rules of evidence and is the creation of Court. It is part of legal and statutory justice, and not a part of natural justice, therefore, it cannot be laid down as a general proposition of law that the Revenue cannot rely on any evidence which has not been subjected to cross- examination. The CIT(E) also relied on the judgment of Hon'ble Kerala High Court in the case of M.K.Thomas Vs. State of Kerala[40 S.T.C.278) in view of the decision of Hon'ble Supreme Court in the case of K.T.Shaduli Vs. State of Kerala[39 S.T.C. 478 S.C.]. wherein it was held that all these judgements/decisions lead to one conclusion that right to cross-examine the witness, who made adverse reports, is not an invariable attribute of the requirement of the dictum, 'audi alteram partem'. Page | 4 M/s. Bimladevi Dharamprakash Jan- Kalyan Nidhi The CIT(E) pointed out that the Case Law mentioned by the assessee Trust in the case of S Khader Khan & Sons is not applicable in this case. Therefore, CIT(E) held that indulging in ingenuine activities which is not at par with the trust deed leads to the ultimate conclusion that the trust is in the act of money laundering which is illegal, not genuine and not at par with the objectives of the trust. The ld CIT(E) also referred the provisions of section 12AA (3) of the I.T. Act, which reads as under: "Where a trust or an institution has been granted registration under clause (b) of sub-section (1) [or has obtained registration at any time under section 12A [as it stood before its amendment by the Finance (No.2) Act, 1996 (33 of 1996)] and subsequently the [Principal Commissioner or] Commissioner is satisfied that the activities of such trust or institution are not genuine or are not being carried out in accordance with the objects of the trust or institution, as the case may be, he shall pass an order in writing cancelling the registration of such trust or institution" Therefore, ld CIT(E) held that considering the activities of the assesseetrust, which were not genuine, as discussed above, and were not being carried out in accordance with the objectives of the Trust, therefore the registration u/s.12A of the I.T. Act 1961 vide order No. DIT(E)/T-95/8E/78/2000-01 dated 21.08.2000 was cancelled u/s. l2AA(3) of the I.T. Act 1961 w.e.f. 01.04.2012 i.e. F.Y. 2012-13 relevant to A.Y. 2013-14, as the first violation took place in the F.Y. 2012-13.

Aggrieved by the order of CIT(E), the assessee is in appeal before us. The ld Counsel for the assessee has submitted before us that statement taken during the survey of Sri AnandAgarwal, Trustee, of M/s Gobind Ram Goel Charitable Trust when such statement itself was not admissible as evidence and further the said Sri Anand Agarwal and other alleged intermediaries were not produced for cross examination in spite of specific request. Moreover, the assessee trust is not part of the group of M/s Gobind Ram Goel Charitable Trust. The activities of the trust are being, carried on in accordance with the objects and there was no such finding except that Page | 5 M/s. Bimladevi Dharamprakash Jan- Kalyan Nidhi the assessee paid the alleged bogus donations. The Ld. C.l.T(Exemption) erred in cancelling the registration u/s. 12AA(3) only on the ground that the assessee received cash in exchange of donation without any evidence that the assessee had received cash for payment of donation. The Counsel submitted that the objects for which this Trust was created, are to establish, support, maintain and grant aid to Schools, Colleges, Libraries, Reading rooms, Community halls, Prayer halls, Philosophical discourages centres, Children Parks, Town Halls, and Institutions for the promotion of science, Commerce, Art, Literature, meditation, Yoga, Culture or Fine Arts or diffusion of useful knowledge for all round upliftment of body, mind and soul. The Counsel stated that, before the CIT(E), the assessee had already submitted that Bimla Devi Dharam Prakash Jan Kalyan Nidhi was formed under a duly executed deed of Trust and was duly granted registration on after considering the activities of the Trust which were all charitable activities. The Trust is giving donation for charitable activities. The donation was also given by assessee Trust to Gobind Ram Goel Charitable Trust Kolkata and the said donation paid by trust was not bogus donation. It was on record that trust had utilized the donation for the activities of the trust which were all genuine. Therefore, by no stretch of imagination such donation can be treated as bogus donation. The assessee trust is neither indulged in money laundering nor have taken any bogus donation from anybody. A person may also make statement for his own pecuniary interest or for any other reason. Therefore, the assessee trust requested the CIT(E) to call Sri Anand Agarwal for cross examination. The deposition recorded in the course of Survey is not binding. Therefore assessee requested to CIT(E) to allow the cross examine of Sri Anand Agarwal but he did not do so. In addition to this, the ld Counsel for the assessee has relied on the judgment of Hon`ble High Court of Madras in the case of S. KHADER KHAN SON (2008) 300 ITR 0157 wherein it was held the Section 133A does not empower any IT authority to examine any person on oath, hence, any such statement has no evidentiary value and any admission made during such statement cannot, by itself, be made the basis for addition. Page | 6