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Income Tax Appellate Tribunal, KOLKATA BENCH “C” KOLKATA
Before: Shri N.V.Vasudevan & Shri Waseem Ahmed
आदेश /O R D E R
PER Waseem Ahmed, Accountant Member:-
This appeal by the assessee is directed against the order of Commissioner of Income Tax (Exemptions), Kolkata u/s 12AA(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 22.12.201.Grounds raised by assessee per its appeal are as under:- “1. For that the order of the Ld. CIT is arbitrary, illegal and bad in law.
2. For that the Ld. C.I.T (Exemption) erred in relying on the statement of Sri Anand Agarwal Trustee of 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, by relying on the judgements which in fact supported that on the facts and circumstances of the case, cross examination was to be allowed and by denying the same the order has become bad in law.
3. For that the Ld C.I.T(Exemption) erred in cancelling the Registration of the Trust U/s. 12AA(3) of the I.T. Act, 1961 holding that the activities of the Radharaman Behari Trust Vs. CIT(Ex) Kol. Page 2 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.I.T(Exemption) erred in cancelling the registration u/s.12AA(3) only on the around that the assessee received cash in exchange donation without any evidence that the assessee had received cash for payment donation.
For that the Ld. C.I.T(Exemption) erred in applying the provisions sec. 12AA(3) ignoring various evidences on assessment records where from it, 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 C.I,.T(Exemption) is bad in law, not maintainable and perverse and as such should be set aside.
For that on the facts and circumstances of the case the order of the CIT (Exemption) 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 around before or at the time of hearing.”
Shri S.M. Surana, Ld. Advocate appeared on behalf of assessee and Shri Goulean Hangshing, Ld. Departmental Representative represented on behalf of Revenue. 2. This is an appeal by the assessee against the order dated 10.01.2017 of Ld. CIT(Ex), Kolkata cancelling the registration granted to the assessee trust u/s 12AA of the Income Tax Act, 1961 (Act).
The assessee is a trust constituted under the deed of trust dated 19.12.1951. The Assessee was granted registration u/s 12AA of the Act by an order dated 23.06.1977 by the Director of Income Tax (Exemption), Kolkata. The assessee has been enjoying the benefit of registration ever since the grant of registration. The assessee is engaged in various charitable activities.
There was a survey operation carried out u/s 133A of the Act on 11.09.2015 in the premises of M/s Govind Ram Goel Charitable Trust (for short GRGCT). Radharaman Behari Trust Vs. CIT(Ex) Kol. Page 3 5. In the course of survey operations the Authorized Officer carrying out the survey recorded the statement of Shri Anand Agarwal, Managing trustee of GRGCT u/s 131 of the Act, wherein it was admitted that it is engaged in money laundering activities by way of giving/ accepting donations which is basically accommodation entries. The relevant extract of the statement is reproduced below:- . Q8. On going through the books of account it is found that there is a quantum jump, as enumerated below for reference, in corpus donation has taken place in the AYs 2013-14 to AY 2015-16, in comparison with the AY 2008-09 to AY 2012-13. Offer your explanation. A.Y Corpus donation 2008-09 Rs.11,000/- 2009-10 Rs.21,91,000/- 2010-11 Rs.2,55,000/- 2011-12 Rs.34,88,000/- 2012-13 Rs.25,73,000/- 2013-14 Rs.3,86,37,002/- 2014-15 Rs.3,34,56,101/- 2015-16 Rs.2,80,34,000/-
A8. The corpus donations received from A.Y 2008-09 to AY 2012-13 were genuine. Donations were received from different donors including persons associated with our group concern. From AY 2013-14 to AY 2015-16 the unaccounted profit earned by different concerns of our group as mentioned in Ans 3 was pumped in, in the form of corpus donation. In the three (3) years from AY 2013-14 to A.Y 2015-16 the entire donation of quantum of Rs.10,01,27,103/- (Rupees ten crore one lakh twenty seven thousand and hundred and three) was pumped in form the unaccounted income of our group concerns. Q9. How was the process of such bogus corpus donation managed by you? A9. Sri Gaurav Agarwal, M:9830283320, approached us for providing accommodation entry so that the unaccounted income of the different concerns of our group could be pumped in the trust in form of corpus donation. We paid in cash and received the money through cheque. For this we have to pay a commission of 1% of the corpus donation to Shri Gaurav Agarwal and don’t know the address of Shri Gaurav Agarwal. Q.10. Do you know or ever met any of the alleged Donors? A10. I neither know any of the donor nor had ever met any of them. Q11. It is seen from the documents that you received donation from Debabrata Sur on 23.12.2014, Bidisha Halder on 10.01.2015, mish A Meghani on 20.01.2015, Ketan Chitlangia on 07.02.2015. All the letters from such alleged donors and many others bear the same ph no. viz. 9830151591. Can you explain the reason?
Radharaman Behari Trust Vs. CIT(Ex) Kol. Page 4 A11. That I cannot explain because everything was done by Shri Gaurav Agarwal. Q.12. In many cases it is seen that the bank statements of the alleged donors are kept along with the covering letters, received from them. Please explain the reason. A12. We understand that the creditworthiness and existence of any donor, if not established, then such donation may not be treated as genuine by the Income Tax Department. Some of the donors submitted such documents through Shri Gaurav Agarwal on their own. Q.13. In view of the all above please state specifically what amount are being disclosed by you voluntarily. A13. The total sum as mentioned in A8 amounting to Rs.10,01,27,103/- (Rupees ten crore one lakh twenty seven thousand one hundred and there over a period of that assessment years viz 2013-14, 2014-15, 2015-16 is voluntarily disclosed by me. This amount may be treated as income in the hands of the trust. Q14. You are being shown the following documents found from your business premises, found during the course of survey operation. It is also brought to you notice the implication of Sec.292C of IT Act, 1961. Therefore, the onus is on you to explain the entries from in those paper, inventorised as GRG 4. a) A slip of paper, which shows different amounts of payments in coded text b) A 8 papers of print out showing expenses of “Sekhra Iron” in respect of some realty project at B.T. Road c) A blank Memorandum of Understanding between Mr. P.B and Mr. A.A and signed by only P.B. Please explain all. A14. All the above documents are a proposal for a realty project at B.T. road brought to us by some broker quite some time back. The entries in the above documents reflected the then status of investments by various stakeholders. We were informed that if we were interested to join the above projects as one of the stakeholder then may be one of the existing stakeholder would be interest to exist in our favour. However, we were negative to the proposal. The handwritten note stating Area and Payments to be made were given to us along with other proposal papers and the handwriting does not belong to us. Q15. D you want to add or alter anything, stated above? A15. No. This statement is given by me voluntarily and without any threat, force or coercion and are true to the best of my knowledge and belief.
The gist of the statement as recorded above is that donation received from AY 2008-09 to 2012-13 was genuine but subsequently from AY 2013 to 2015-16 it received bogus donation of Rs. 10,01,27,103.00 and return the same to the beneficiary in the form of cash through the web of financial transaction after retaining its commission. Such activity of GRGCT is nothing but an activity of money laundry. Radharaman Behari Trust Vs. CIT(Ex) Kol. Page 5 7. The assessee had given a donation of Rs. 6,00,000/- to GRGCT during the financial year 2013-14. Since the assessee had given donations to GRGCT, the CIT(Ex) Kolkata was of the view that the assessee had also indulged in money laundering and therefore the registration granted to the assessee u/s 12AA of the Act deserves to be cancelled by invoking the powers of Ld. CIT(Ex), Kolkata vested u/s 12AA(3) of the Act which reads as follows :- “12AA (3) 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 of ] 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 : “
The Ld. CIT(Ex), Kolkata issued a show cause notice dated 03.12.2015 in which he explained that it was admitted by Managing Trustee of GRGCT during survey operations that it was engaged in providing accommodation entries of bogus donations.
Accordingly, in response to the notice, assessee replied that the statement recorded during the course of survey operation is not binding on the person making the statement. Therefore such a statement cannot be used against the assessee. The assessee in support of his claim relied on the judgement of the Honourable Supreme Court in the case of S Khader Khan & Sons reported in 352 ITR 480 (SC). Besides the above, the assessee requested to the Ld.CIT(Ex) for providing the opportunity of cross examination with the managing trustee of GRGCT Shri Anand Agarwal and as well as Shri Gaurav Agarwal who was acting as conduit in the transactions of bogus donations.
However the C.I.T.(Exemptions), Kolkata proceeded to pass an order u/s 12AA(3) of the Act by observing as under:- Radharaman Behari Trust Vs. CIT(Ex) Kol. Page 6 The A/R of the society also requested for cross examination of Shri Anand Agarwl, managing Trustee of M/s Govind Ram Goel Charitable Trust. Kind reference may be made to the order of the Hon'ble Bombay High Curt in the case of GTC Industries, Vs. Assistant Commissioner of Income Tax (1998) 60 TTJ Mumbai 308 wherein the Hon'ble High Court has made some observations, exerpts of which are as-here-in under:- ‘ In our opinion, 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 view of Hon'ble Calcutta High Court in the case of Manidra Nath Chatterjee Vs. Collector of Central Excise & Another (supra) is whether in a particular case the particular party should have the right to cross-examine or not depends upon the facts and circumstances of a particular case. This is so, because the right to cross-examine is not necessarily a part of reasonable opportunity.”
Similar judgements were also pronounced by the Hon'ble Keala High Court in the case of M.K. Thomas Vs. State of Kerala [40 STC 278] in view of the decision of Hon'ble Supreme Court in the case of K.T. Shaduli vs. State of Kerala [39 STC 478 SC ]
All these judgemeknts/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 alterant partem’. It is pertinent to mention here that the case law mentioned by the assessee trust in the case of S Khader Khan & Sons is not applicable in this case. Indulging thin ingenuine activities which is not at par with the trust deed leads to the ultimate conclusion that the society is in the act of money laundering which is illegal, not genuine and not at par with the objectives of the trust. The provisions of Section 12AA(3) of the IT Act 1961 is as follows:- ‘12AA (3) 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 of ] 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 :
Considering the activities of the assessee not genuine and are not being carried out in accordance with the objectives of the Trust, the registration u/s.12A of the IT Act 1961 vide order No.1119/T/WB.VII of 1997-78 dated 24.06.1997 is hereby cancelled u/s. 12A(3) of the IT Act 1961 w.e.f.
Radharaman Behari Trust Vs. CIT(Ex) Kol. Page 7 01.04.2013 i.e. FY 2013-14 relevant to AY 2014-15, as the violation took place in the FY 2013-14.”
Aggrieved by the order of Ld. CIT(Ex), Kolkata the assessee has preferred the present appeal before the Tribunal.
The ld. Counsel for the assessee before us filed a paper book which is running from pages 1 to 19 and submitted that the registration certificate under section 12AA of the Act has been cancelled merely on the basis of the statement furnished by the managing trustee of the GRGCT obtained during the course of survey under section 131 of the Act wherein it was admitted by the managing trustee of the GRGCT that it is involved in bogus donations. It is important to note that the statement given by the managing trustee of the GRGCT was subsequently retracted as evident from the order of Hon’ble ITAT of Kolkata in the case of Gobind Ram Goel Charitable Trust vs. CIT (Exemptions) in & 729/Kol/2016 vide order dated 18.8.2017. The relevant extract of the order is reproduced below:- “6.1 The ld. DR strongly placed reliance on this statement of the managing trustee and also stated that there is no other better person than the managing trustee of the trust to give a statement on behalf of the trust. In this regard, we find that the trust had immediately retracted within 3 days of the date of statement (statement recorded on 11.9.15 retracted on 14.9.15) stating that the contents of the deposition were not known to the managing trustee and that the same were recorded under huge pressure In any case, we find that the last line of the answer to question no. 13 cannot be read in isolation, wherein he had stated that Rs.1001 crores may be treated as income in the hands of the trust. In our considered opinion, the statement of Shri Anand Agarwal had to be read in total wherein he had categorically stated that his group concerns had derived unaccounted income from its various business concerns to the tune of Rs.10.01 crores which were pumped in, in the form of donations back to the trust. The trust cannot be faulted at all in this regard. In fact it is the undisclosed income of certain business concerns which had found its way into the coffers of the trust in the form of donations. If at all there is any fault, it is only in the hands of the business concerns and the assessee trust cannot be faulted with at all. In fact the assessee trust had received donations for betterment of its charitable objects. It is not the case of the revenue that the cash belonging to the trust had been paid to certain outsiders which had come back to the trust in the form of donations. It is not the case of the revenue that the trustees of the trust had misappropriated the funds belonging to the trust in the instant case, the business concerns of the trustees had given their undisclosed income and had brought donations to the Radharaman Behari Trust Vs. CIT(Ex) Kol. Page 8 trust. Hence there is no case made out for taxing of the subject mentioned amount of Rs.10.01 crores in the hands of the trust, except the statement of managing trustee, which was signed without understanding the contents thereon.”
In view of the above AR submitted that such statement cannot be relied for the purpose of cancellation of registration certificate issued under section 12AA of the Act.
13.1 The ld AR further submitted that the name of the assessee is not appearing in the statement furnished by the managing trustee of GRGCT therefore it cannot be concluded that the assessee has given bogus donation. It was also submitted that the learned CIT (ex) failed to provide the opportunity of cross examination as desired by the assessee. The learned AR in support of his claim has relied on the order of special bench of Hon’ble Bombay Tribunal in the case of GTC Industries Ltd versus ACIT in & 1055 & 1056/Bom/1994 where it was held as under:- “…Thus, the mandate of the Hon'ble High Court is that, this Tribunal should decide the entire appeal on merits. So far as the issue of violation of principles of Natural Justice is concerned, the same has been duly complied with in terms of directions contained in the earlier orders of the Tribunal which has been finally settled in several rounds of litigation before this Special Bench. As per the direction of the Tribunal, finally, the Revenue was required to provide certain material and cross- examination of certain witness.”
The ld. Counsel for the assessee placed strong reliance on the decision of ITAT, Kolkata Bench rendered in the case of Sri Mayapur Dham Pilgrim and Visitors Trust Nadia vs C.I.T.(Exemptions), Kolkata in order dated 03.05.2017. 13.2 The ld. Counsel for the assessee also relied on the judgment of Hon’ble Apex Court in the case of State of Kerala Vs. K.T. Shaduli Yusuff etc. (1977) reported in AIR 1627, 1977 SCR (3) 233 wherein it was held as under:- “… .. Such an issue can only be determined after examination of the accounts of both the parties and after affording the assessee the right ITA No.29/Kol/2017 Radharaman Behari Trust Vs. CIT(Ex) Kol. Page 9 to cross-examine the wholesale dealers concerned, particularly when the assessee makes a specific prayer to this effect.”
According to the ld. AR the statement recorded at the time of survey based on which the impugned order was passed was not incriminating, so far the assessee is concerned. According to him therefore the very basis on which the impugned order has been passed by the Ld.CIT(Ex), Kolkata is unsustainable. His next submission was that there was no other incriminating material on the basis of which it can be concluded that the assessee got back the amount of donation of Rs.6 lakh and it was the assessee who arranged through the brokers for providing such bogus donations. It was also his submission that there is no evidence of the assessee having indulged in money launderings. 13.3 According to the ld. AR, the ld. CIT(Ex), Kolkata has no direct evidence against the assessee warranting cancellation of registration u/s 12AA (3) of the Act. It was submitted by him that registration granted to the assessee can be cancelled u/s 12AA(3) only on conditions being satisfied (a) that the activities of the trust of institution are not genuine (b) that the activities of the trust or institution are not being carried out in accordance with the objects of the trust or institution. There is no evidence brought on record whatsoever to show either of the aforesaid conditions have been satisfied to warrant cancellation of registration u/s 12AA(3) of the Act.
The ld. DR heavily reliance on the order of Ld.CIT(Ex), Kolkata. According to him, the assessee should be afforded an opportunity of cross examination of Shri Anand Agarwal, the managing trustee of GRGCT.
We have given a very careful consideration to the rival submissions and perused the materials available on record. From the statement recorded during survey it is possible to entertain a doubt with regard to genuineness of the donations given to GRGCT. But such statement is not foolproof to support that the bogus donation was given by the assessee. So far as the assessee is Radharaman Behari Trust Vs. CIT(Ex) Kol. Page 10 concerned it gave donation to GRGCT for a sum of Rs.6 lakh which was duly accounted in profit and loss account. There is no evidence of whatsoever brought on record to show that the cash was received by the assessee from GRGCT against the donation. 15.1 We also observe that the name of the assessee is not appearing in the statement furnished by the managing trustee of GRGCT. Therefore in such situation the opportunity of cross examination was very much required in the presence of assessee and managing trustee of GRGCT as well as the middle man namely Shri Gaurav Agarwal. Thus the ld. CIT(Ex) in the instant case erred in not giving the opportunity of cross examination. Thus, the cases laws cited by the ld. AR for the opportunity of cross examination is very much applicable to the instant case.
15.2 In this connection we also rely in the case CIT Vs. S. Khader Khan Son reported in 352 ITR 480 where the Hon’ble Supreme Court has held that : “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”
In the absence of the cross examination of the statement the impugned addition cannot stand as held by the Hon’ble Supreme Court in the case of Anadaman Timber Industries in civil appeal no. 4228 of 2006. The relevant extract of the judgment reads as under:- "According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that Radharaman Behari Trust Vs. CIT(Ex) Kol. Page 11 rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross- examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No. 2216 of 2000, order dated 17.03.2005 was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions. In view the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on the basis of which it could justify its action, as the statement of the aforesaid two witnesses was the only basis of issuing the Show Cause We, thus, set aside the impugned order as passed by the Tribunal and allow this appeal."
There is no evidence brought on record to show any connection between those brokers and the assessee. In the absence of such corroborative evidence, it is not possible to come to any conclusion that the assessee indulged in money laundering and that the donation given by the assessee to GRGCT was a bogus donation. In fact on identical facts this Tribunal in the case of Sri Mayapur Dham Pilgrim and Visitors Trust (supra) came to the conclusion that cancellation of registration u/s 12AA cannot be sustained.
Apart from the above, the grounds for cancellation for registration u/s 12AA(3) of the Act is that the activities of the trust should not be genuine or the activities of the trust are not being carried out in accordance with the objects of the trust. There is neither an allegation in the impugned order nor finding that any of the aforesaid conditions exist in the case of the assessee.