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Indian National Congress (I)/all India Congress Committee Vs. Commissioner Of Income Tax Delhi-Xi
March, 30th 2016
$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              ITA 145/2001

                                           Reserved on: February 11, 2016
                                          Date of decision: March 23, 2016

COMMISSIONER OF INCOME TAX DELHI-XI         ..... Appellant
            Through: Mr. Rahul Chaudhary, Senior Standing
                     Counsel with Mr. Raghvendra Singh,
                     Advocate.

                                     versus

INDIAN NATIONAL CONGRESS (I)/ALL INDIA CONGRESS
COMMITTEE                                  ..... Respondent
             Through: Mr. C.S. Aggarwal, Senior Advocate
                      with Mr. Prakash Kumar, Mr. Gautam
                      Jain, Ms. Pushpa Sharma and
                      Mr.Madhur Aggarwal, Advocates.

                                    AND

+                              ITA 180/2001

INDIAN NATIONAL CONGRESS (I)/ALL INDIA CONGRESS
COMMITTEE                               ..... Appellant
             Through: Mr. C.S. Aggarwal, Senior Advocate
                      with Mr. Prakash Kumar, Mr. Gautam
                      Jain, Ms. Pushpa Sharma and
                      Mr.Madhur Aggarwal, Advocates.

                                     versus

COMMISSIONER OF INCOME TAX DELHI-XI ... Respondent
            Through: Mr. Rahul Chaudhary, Senior Standing
                     Counsel with Mr. Raghvendra Singh,
                     Advocate.

ITA Nos. 145/2001 & 180/2001                                   Page 1 of 71
       CORAM:
       JUSTICE S. MURALIDHAR
       JUSTICE VIBHU BAKHRU
                     JUDGMENT
%                      23.03.2016
Dr.S.Muralidhar,J:
Introduction
1.1 More than four decades ago, while noting the distortion that large
contributions of money made to political parties and candidates could
bring about to the electoral process, the Supreme Court observed in
Kanwar Lal Gupta v. Amar Nath Chawla, (1975) 3 SCC 646 (at p.
654) as under:
       "The availability of disproportionately larger resources is also
       likely to lend itself to misuse or abuse for securing to the political
       party or individual possessed of such resources, undue advantage
       over other political parties or individuals. Douglas points out in
       his book called Ethics in Government at p. 72, "If one party ever
       attains overwhelming superiority in money, newspaper support,
       and (Government) patronage, it will be almost impossible, barring
       an economic collapse, for it ever to be defeated". This produces
       anti-democratic effects in that a political party or individual
       backed by the affluent and wealthy would be able to secure a
       greater representation than a political party or individual who is
       without any links with affluence or wealth. This would result in
       serious discrimination between one political party or individual
       and another on the basis of money power and that in its turn
       would mean that "some voters are denied an `equal' voice and
       some candidates are denied an `equal chance' ".

1.2 The Supreme Court also noted that: "The small man's chance is the
essence of Indian democracy and that would be stultified if large
contributions from rich and affluent individuals or groups are not
divorced from the electoral process."

ITA Nos. 145/2001 & 180/2001                                     Page 2 of 71
1.3 Till the Supreme Court began actively examining the issue in a
public interest litigation (PIL) instituted in 1995 by 'Common Cause',
most of the registered political parties in this country, both at the
national and state levels, did not file income tax returns, despite it being
made mandatory under Section 139 (4B) of the Income Tax Act, 1961
('Act'), introduced with effect from 1st April 1979. They also failed to
maintain proper accounts of their income and expenditure although this
was too mandatory for them to claim exemption from payment of
income tax under Section 13A of the Act.


1.4 The problem persisted despite the judgment of the Supreme Court in
the PIL by Common Cause. The Election Commission of India noted in
its 'Guidelines on Transparency and Accountability in Party Funds and
Election Expenditure' issued on 29th August 2014 that "concerns have
been expressed in various quarters that money power is disturbing the
level playing field and vitiating the purity of elections."


1.5 This was echoed by the Law Commission of India (`LCI') in its
255th Report on 'Electoral Reforms' when it said:
       "Money, often from illegitimate sources, results in "undisguised
       bullying" when it is used (both authorised and unauthorised) to
       buy muscle power, weapons, or to unduly influence voters
       through liquor, cash, gifts. Currency notes come first in
       containers, then in truckloads, moving to wholesale/small retail
       forms, and finally to suitcases and in people's pockets."




ITA Nos. 145/2001 & 180/2001                                    Page 3 of 71
1.6 Referring to a study conducted by Association for Democratic
Reforms (`ADR'), the LCI noted that: "more than 75% of parties'
sources are unknown, while donations over Rs. 20,000 comprise only
9% of parties' funding." Further ADR's analysis of the funding of
political parties for financial years 2004-05 to 2011-12 revealed that the
total income of political parties from unknown sources was Rs 3,674.50
crores which constituted 75.05% of the total income of the parties.


1.7. The above introductory narrative serves as a backdrop for
proceeding to examine the case on hand which is about a claim by the
Indian National Congress (I) ('INC'), a political party, for exemption
from paying income tax for the Assessment Year (`AY') 1994-95. The
significance of this case, which has had a chequered history, lies in it
being symbolic of the general lack of transparency and accountability of
political parties in this country. By a separate judgment today the Court
is disposing of a similar case involving the Janata Party for AY 1995-96.


The present appeals
2. The present appeals under Section 260A of the Act are directed
against an order dated 9th April 2001 of the Income Tax Appellate
Tribunal (`ITAT') in ITA Nos. 4181/Del/98 and 5100/Del/98 for AY
1994-95. While ITA No. 145 of 2001 is by the Revenue, ITA No. 180 of
2001 is by the Assessee, INC, a political party registered as such under
Section 29A of the Representation of People Act, 1951 (`RP Act').




ITA Nos. 145/2001 & 180/2001                                  Page 4 of 71
3. The central issue in these appeals involves the interpretation of the
words `income by way of voluntary contributions received by a political
party' occurring in Section 13A of the Act. The ITAT by its impugned
order held that the accounts of the Assessee for the AY 1994-95 were
incomplete and therefore, the exemption under Section 13A of the Act
was not available to it. At the same time, the ITAT held that the
Assessing Officer (`AO') could not invoke the provisions of Sections
144 and 145 of the Act to estimate the quantum of income earned by the
Assessee by way of voluntary contributions. Accordingly, the matter
was remanded to the AO with the direction to the AO that he should
undertake afresh the exercise of computing the taxable income of the
Assessee.


4. By this judgment, the Court holds that the INC was not entitled to
claim exemption from paying income tax for AY 1994-95 since it failed
to maintain properly audited accounts for the said AY, thereby not
fulfilling the mandatory condition for claiming such exemption under
the proviso to Section 13A of the Act.


Relevant facts
5. The facts relevant to the present appeals are that the Assessee INC is
a political party registered under the RP Act and satisfies the description
of a 'political party' for the purpose of Section 13A of the Act.


6. The Assessee was initially not filing its annual returns of income in
terms of Section 139 (4B) of the Act which was introduced by the

ITA Nos. 145/2001 & 180/2001                                    Page 5 of 71
Taxation Laws (Amendment) Act, 1978 with effect from 1 st April 1979.
This was simultaneous with the insertion of Section 13A of the Act.


7. In terms of Section 13A of the Act, income under the following heads
were exempt from tax as far as political parties were concerned:
       (a) income from house property
       (b) income from other sources
       (c) capital gains
        (d) any income by way of voluntary contribution received by a
       political party.


8. However, in order to avail of such exemption a political party has to
fulfil the conditions detailed in clauses (a), (b) and (c) of the proviso to
Section 13A. A political party has to:
       (a) keep and maintain such books of accounts and other
       documents as would enable the AO to properly deduce its income
       therefrom,

       (b) in respect of each voluntary contribution in excess of Rs.
       10,000 keep and maintain a record of such contribution and the
       name and address of the person who has made such contribution;

       (c) have its accounts audited by an Accountant as defined in the
       Explanation below Section 288 (2) of the Act.


9. A further proviso to Section 13A was inserted by the Taxation Laws
Amendment Act, 2003 (Act 46 of 2003) which stated that on failure by

ITA Nos. 145/2001 & 180/2001                                    Page 6 of 71
a political party to submit a report under Section 29C (3) of the RP Act
for a financial year to the Election Commission of India , no exemption
under Section 13A would be available to it for such financial year.


The decision of the Gujarat High Court
10.1 At this stage it is important to notice two developments on the
judicial side which have a bearing on the question of political parties
filing returns. In Commissioner of Income Tax v. Gujarat Pradesh
Congress Samiti [1994] 207 ITR 622 (Guj), the Gujarat High Court
considered the question whether the Gujarat Pradesh Congress Samiti
(`GPCS') was an independent taxable entity.





10.2 The facts there were that the Income Tax Officer (`ITO') served a
notice under Section 148 of the Act on the GPCS for AYs 1960-61,
1961-62 and 1962-63 on the basis that it was a taxable entity having an
income of its own. The ITO proceeded to tax GPCS as an association of
persons. The Appellate Assistant Commissioner accepted the contention
of GPCS that it was only a unit of the INC and annulled the assessments
for the said three AYs.


10.3 After the ITAT dismissed the appeal of the Revenue, a reference
was made to the Gujarat High Court, which agreed with the ITAT that a
comparison of the constitution of the INC and the GPCS showed that
the GPCS was one of the constituents and committees of the INC and
did not have a separate existence.



ITA Nos. 145/2001 & 180/2001                                  Page 7 of 71
11. The aforementioned decision of the Gujarat High Court made
explicit the legal requirement of the INC having to file consolidated
income tax returns for both the central office and the State units.
Nevertheless, the INC did not file a return of income, much less the
consolidated accounts of its central office and state units, even
thereafter.


The decision in 'Common Cause'
12. In 1995 the Supreme Court was seized of a PIL filed by Common
Cause, a civil society organisation. In Common Cause v. Union of
India (1996) 222 ITR 260 (SC), the Supreme Court by a judgement
dated 4th April 1996, dealt with the question of political parties not filing
returns of income for several years thereby violating the mandatory
requirement of Section 139(4B) of the Act. The summary of the main
conclusions of the Supreme Court was as under:
       (i) Political parties were not above the law. A political party that
       was not maintaining audited and authentic accounts and not filing
       returns could not be permitted to contend that it had incurred
       authorised expenditure in connection with the election of a party
       candidate.


       (ii) The Income Tax authorities had been remiss in invoking the
       statutory provisions against the defaulting political parties.


       (iii) The Ministry of Finance, Department of Revenue was
       directed to have an investigation/inquiry conducted against each

ITA Nos. 145/2001 & 180/2001                                     Page 8 of 71
       defaulting political party and initiate necessary action in
       accordance with law including penal action under Section 276CC
       of the Act.


Proceedings before the AO
13. Turning to the case on hand, the Income Tax Department
('Department') first issued a notice to the INC on 20 th September 1995
under Section 142(1) of the Act asking it to file its income tax returns
for AY 1995-96. A reminder notice was issued on 30th November 1995.
The INC was also requested to furnish audited accounts in respect of
AYs 1993-94 and 1994-95. Yet another reminder was issued on 17th
January, 1996.


14. It is only thereafter that the INC filed income tax returns for AYs
1993-94, 1994-95 and 1995-96 together for the first time on 14th
February, 1996. The returns for the earlier AYs i.e., 1991-92 and 1992-
93, were filed later on, i.e. on 30th October, 1996. Each of the returns
was filed showing Nil income after claiming exemption under Section
13A of the Act.


15. On 25th September 1996, the AO while issuing notice under Sections
143(2) and 142(1) of the Act to the INC for AY 1994-95, asked for
specific details in terms of the annexure to the said notice. The INC was
asked to furnish:
       (i) its consolidated accounts on an all-India basis by incorporating
       all the accounts of the State Units;

ITA Nos. 145/2001 & 180/2001                                   Page 9 of 71
       (ii) complete books of accounts and other documents that may
       enable the AO to properly deduce the income of the party
       therefrom; and

       (iii) the list of all donors, who had given voluntary contributions
       in excess of Rs.10,000/- with their names and addresses.


16. The order sheets of the proceedings before the AO have been placed
on record. On 28th October 1996, the AO noted that there was no
compliance or any communication received from the INC. The same
position continued on 28th November, 1996 and 16th December, 1996.
The proceedings of 29th January 1994 read as under:
       "There has been a continued non-compliance from the Party and
       no details have been placed on record by the Party. In between
       Shri C.P. Malhotra had appeared in connection with the filing of
       I.T. Return was again reminded. In view of this, a specific show
       cause is being issued for a final opportunity on the 14.02.1997. In
       case of non-compliance, the Party has been informed that as ex-
       parte assessment will be made."

17. The proceedings of 14th February, 1997, again showed that there was
non-compliance and there was no communication received from the
INC. The proceedings of 25th March, 1997 read as under:
       "Shri Rajesh Sharma, Chief Accountant of the Party attended and
       filed a copy of A/c's of 14 State units. It is seen from the above.

               1. In the R & P A/c of the AICC (I), the donations shown
               are Rs.10,50,000/- but no details of them are furnished as
               required u/s 13A. The AR expressed his inability to do so.
               Furthermore, it is noticed that the Party has furnished R &

ITA Nos. 145/2001 & 180/2001                                   Page 10 of 71
               P A/c's in respect of the Distt. Units also. No Balance
               Sheet was filed.

               2. In the A/c's of the following State Units.
                      1. Haryana
                      2. Bihar
                      3. Himachal Pradesh
                      4. Kerala
                      5. Madhya Pradesh
                      6. Manipur
                      7. Uttar Pradesh
                      8. Andaman & Nicobar Islands
                      9. Dadra & Nagar Haveli

               The following points have noticed.

                       (i) The Party has shown donations in respect of
                       donors. No certificate from the Auditor concerned is
                       placed on record regarding the same.

                       (ii) The Party has not given the list of donors who
                       have given contributions in excess of Rs.10,000/-.

                       (iii) The Party has shown other receipts like coupons
                       sales etc. but no details are filed.

                       (iv) No books of A/c's of these units have been
                       produced.

                       (v) No documentary evidence regarding the other
                       receipts like Membership etc. has been placed on
                       record.

               3. In the case of other Units namely-Mizoram, the Party has
               furnished a list of donors in excess of Rs. 10,000/- but the
               complete addresses is not mentioned. Further, as above the
               books of A/c's of the respective units were not produced
               neither any supporting vouchers.


ITA Nos. 145/2001 & 180/2001                                     Page 11 of 71
               4. The A/c's in respect of UPCC (I) bear the same as
               discussed above but also have a specific note that the
               membership fee adjustment has not been made in respect of
               the Distt. Committees.

               5. The AR has furnished the A/c's in respect 14 units only.
               The AR has submitted that the A/c's in respect of the others
               are not available with him. The AR has further stated that
               the books of A/c's in respect of Central Office will be
               produced. The AR, is requested to produce the same for
               verification."

18. The proceedings recorded on 25th March 1997 showed that Mr.
Rajesh Sharma, Chief Accountant and Mr. C.P. Malhotra, Accountant,
attended the proceedings and produced the cash book and ledger of the
Central Office. The AO then noted as under:
       "1. From the "Sale of coupons" A/c's there are deposits exceeding
       Rs.10,000/- The AR have explained that the Treasurer of the
       Party is in custody of the same & it is he who gets collection from
       Sale thereof.

       2. From the donations A/c in page 650 of Ledger, the name of
       donors is mentioned but the addresses is not shown. No
       supporting documents produced.

       3. From Misc. receipts it is noticed that no. entry is in excess of
       Rs.10,000/-.

       With these observation, case is discussed."

The assessment order
19. Thereafter on 31st March 1997, the AO passed the assessment order
for AY 1994-95. In para 3.1 of the assessment order, the AO noted that



ITA Nos. 145/2001 & 180/2001                                    Page 12 of 71
the returns pertained to the accounts of the Central Office alone. It
disclosed the following receipts:
       "(i) Collection from sale of                 Rs.8,20,75,000/-
       Coupons & Purse money, etc.
       (ii) Other income                            Rs.3,12,65,500/-
       (iii) AICC membership fee                    Rs.      3,220/-
       (iv) Delegation fee                          Rs.     13,375/-
       (v) AICC Membership fund                     Rs.       600/-"

20. The details of `other income' were furnished in Schedule 6 of the
accounts and read as under:
       "Other Income
       i. Interest on Fixed deposits                Rs. 89,72,827/-
       ii. Miscellaneous Receipts                   Rs.     13,532/-
       iii. Donation                                Rs.2,22,73,430/-
       iv. Literature Sale                          Rs.       5,710/-
                                                    Rs.3,12,65,500/-"

21. The AO proceeded to note that the INC had given a break-up of the
collection from sale of coupons in the denomination of Rs. 50, Rs. 100,
Rs. 500 and Rs. 1,000 amounting to Rs. 8,20,75,000. There was purse
money of Rs. 46,150 presented to the Congress President in the shape of
garlands and purse money of Rs. 26,280 presented to the Deputy Home
Minister. Rs. 2,22,01,000 was under the head `as per list attached (A)'.
This list (A) contained the break-up of the donors who had given
voluntary contributions in excess of Rs. 10,000. The AO noted that the
list was incomplete since it did not contain the complete address of such
donors as was required by Section 13A of the Act. The AO noted that
"despite repeated opportunities, the party failed to fulfil this statutory
requirement."

ITA Nos. 145/2001 & 180/2001                                  Page 13 of 71
22. Less than a week prior to the deadline for framing of the order, the
INC on 25th March 1997, furnished some of the details. The AO noted
that a ledger account of the donations reflecting those in excess of Rs.
10,000/- did not mention the complete address of the donors. The
Authorised Representative (AR) of the INC sought to explain that these
represented coupon sales but could not produce receipts or other
supporting documents or counterfoils of the said coupons for
verification of the claim.


23. The AO then turned to the three donations received from abroad and
noted that while the INC had placed on record its correspondence with
the bank, it expressed its inability to give further details. These three
donations were discussed by the AO in para 5.1 of the assessment order.
They were shown to be of the same date, i.e., 24 th December, 1993. The
first was a sum of Rs. 40 lakh from `Dominion Trading Company'. The
two others were of Rs.30 lakh each from `Decor Trading Company'.
The addresses of the above parties were not furnished. According to the
INC, the details were being obtained from the banks from which the
drafts had been received. The Treasurer of the INC addressed a letter on
14th November 1996 stating that addresses of the above contributors
were not available with the party and were being ascertained from their
bankers. However, till the time of framing of the assessment by the AO,
these details were not furnished.




ITA Nos. 145/2001 & 180/2001                                  Page 14 of 71
24. The AO then discussed the accounts of 14 State units furnished by
the INC. The AO noted that the details of the donations or the list of
donors in excess of Rs. 10,000 were not furnished. No documentary
evidence in respect of sale of coupons was also furnished. In sum, the
conclusion drawn by the AO was that the INC had failed to furnish the
true and fair picture of the receipts on all India basis; it could not
produce the books of accounts and other documents in order that the
income of the party may be properly deduced therefrom; in respect of
the 14 State units none of the accounts could be treated as genuine.


25. The AO discussed at length the provisions of the Act governing
political parties. The AO noted that the INC had failed to satisfy the
conditions mentioned in Section 13A of the Act in all three respects, i.e.,
(i) furnish consolidated accounts that would reflect its income on all
India basis; (ii) produce books of accounts and other documents to
enable the AO to properly deduce the figures of its income therefrom;
and (3) place on record the list of all donors, who had made voluntary
contributions in excess of Rs. 10,000 with their complete names and
addresses.


26. Consequently, the AO concluded that the INC's claim under Section
13A of the Act could not be allowed and that the receipts would be
subject to tax. The AO noted the note in the Auditor's report that since
all the Pradesh Committees had not supplied necessary details of their
primary and active members, and that no adjustment of membership fee
could be made in the books of accounts.

ITA Nos. 145/2001 & 180/2001                                   Page 15 of 71
27. The AO had to make an estimate of the receipts since despite several
requests the Assessee was unable to furnish the details of the collections
made by the state units. Even the accounts of the 14 state units
submitted on 25th March 1997 had a number of deficiencies. The AO
accordingly observed:


       "[I]n the absence of authentic and verifiable accounts of the
       activities of the state units, I am compelled to estimate receipts
       therefrom on account of membership fee, sale of coupons and
       collection by way of purse money together at Rs. 15 crores that
       could make the total receipts of the party after including this
       estimated sum of Rs. 15 crores shall be Rs. 26,33,57,696/- (Rs.
       11,33,57,696 + Rs. 15,00,00,000)."



28. The AO then noted that the claimed expenditure of Rs.16,45,27,326
under various heads were mostly related to political activities and that
the establishment expenditure had to be treated as the only non-political
expenditure. Only those expenses which could be said to be laid out
wholly and exclusively for earning income under the head `income from
house property' and `income from other sources' were allowable. In
respect of `income by way of voluntary contributions' no expenses were
allowed. Interest on fixed deposits amounting to Rs. 89,72,827.78 was
assessed as `income from other sources'. For AY 1994-95, there was no
income under `income from house property'.


29. As regards the expenditure towards salaries and other benefits to its
employees, postage and telegrams, travelling, rent and taxes, water and

ITA Nos. 145/2001 & 180/2001                                  Page 16 of 71
electricity, printing and stationery etc. in the sum of Rs.1,45,98,768.16,
the AO allowed the entire expenditure of Rs. 37,58,036 on the
employees and only 10% of the expenses under the head `other
expenses' as per schedule 7 of the accounts.


30. Thus a total expenditure of Rs. 52,17,912 was allowed in relation to
the Central office establishment. The expenditure of state units was
computed at Rs. 68,71,700. The total expenses worked out to Rs.
1,20,89,616      which         when   adjusted   against   the   receipts   (Rs.
26,33,57,696), gave a taxable income of Rs. 25,12,68,081.


31. Towards the end of the order, the AO observed "Charge interes t.
Penalty proceedings under Section 271(1)(b) and 271(1)(c) have been
separately initiated".


Appeal before the CIT (A)
32. The INC then filed an appeal before the Commissioner of Income
Tax (Appeals) [`CIT (A)']. The appeal was filed on 4th November 1997
along an application under Rule 46A of the Income Tax Rules, 1962
(`Rules'). In this application, it was stated that the dates for compliance
in the proceedings referred to in the order of the AO pertained to AY
1995-96 which assessment was still pending and, therefore, the INC had
not been granted sufficient opportunity to comply with the various
requisitions of the AO.




ITA Nos. 145/2001 & 180/2001                                        Page 17 of 71
33. The INC stated that the task of consolidating the accounts of the
party including all its state units was a herculean task "as th e aforesaid
attempt was being made for the first time". The INC had 26 Pradesh
Congress Committees, 6 territorial Congress Committees, 2 Regional
Committees, as also the account of All India Youth Congress, All India
Mahila Congress Committee, All India Congress Seva Dal, National
Students Union of India & Congress Parliamentary Party. It was claimed
that "the Assessee, under such a tremendous pressure could not
consolidate and also file the complete details pertaining to the voluntary
contributions, as was directed".


34. Accordingly, the INC sought to place on record
       "[F]urther additional evidence, i.e., a complete audited income
       and expenditure account for the year ending 31.3.1994 containing
       the accounts of 26 Pradesh Congress Committees, 6 Territorial
       Congress Committees, 2 Regional Congress Committee, All India
       Youth Congress, All India Mahila Congress Committee, All India
       Congress Sewa Dal, National Students Union of India and
       Congress Parliamentary Party, which has been placed in the Paper
       Book and appears from Pages 37 to 39 of the Paper Book. It is,
       therefore, prayed that having regard to the aforesaid facts, the
       evidence now the assessee is seeking to place on record may
       kindly be admitted".

35. The comments of the AO were then sought by the CIT (A) on the
application and the accompanying documents. Inter alia, the AO
pointed out that the specific instances in Explanation 1 to Section 153(3)
of the Act, as it stood at that time, did not apply to the INC and,
therefore, the INC could not be permitted to furnish the final accounts
after the limitation period had expired. The AO turned down the

ITA Nos. 145/2001 & 180/2001                                   Page 18 of 71
allegation of the INC that it had not been given a sufficient opportunity
as `irresponsible' since the Assessee had inspected the records for AY
1994-95 on 20th October 1997 and the notice dated 31st January 1997
asking it to furnish the accounts and other details was duly received in
the office of the INC on 31st January 1997 itself. It was further pointed
out by the AO that there was no case made out for entertaining any
additional evidence at this stage.


Order of the CIT (A)
36. In the order dated 8th July 1998, the CIT (A) held that it had been
proved beyond doubt that the INC had failed to discharge its statutory
responsibility of filing the accounts in time which alone could have
entitled it to the benefit of Section 13A of the Act. The CIT (A) declined
to admit the fresh evidence adduced by the INC. The estimate of the
income of the INC from the state units made by the AO at Rs.15 crores
was upheld.


37. However, the CIT (A) found that the AO's decision as regards the
expenditure incurred by the INC for the AY in question was erroneous.
The expenses of the INC as a political party had to be viewed from the
perspective of it having to implement its policies, objectives and
manifesto and also to contest elections for which it needed a large
number of vehicles, millions of leaflets, posters, banners, flags,
loudspeakers etc. The employees' expenses were allowed in full. It was
also held that depreciation to the extent of Rs. 1,15,46,998.17 also ought
to have been allowed. The balance claim of expenses then came to Rs.

ITA Nos. 145/2001 & 180/2001                                  Page 19 of 71
14,92,22,294. Consequently, an estimate was made of the expenses
incurred by the INC as regards its political activities and the CIT (A)
held it to be reasonable to restrict the INC's claim of expenses to 60% of
the claim after excluding employees' expenses and depreciation. This
worked out to Rs. 8,95,33,374. The total relief granted to the INC by the
CIT(A) was to the extent of Rs. 9,27,48,793.


Appeals before the ITAT
38. Aggrieved by the above order of the CIT(A), both the INC and the
Revenue filed appeals before the ITAT.


39. The INC was aggrieved that the CIT(A) had granted relief of only
reducing the computable income by Rs. 9,27,48,793 (thereby computing
the total income at Rs. 25,12,68,081 (-) Rs.9,27,48,793). Further
according to the INC the CIT (A) ought to have considered the
additional evidence tendered and no prejudice would have been caused
to the Revenue if it had. It was, inter alia, pointed out that the estimate
of the receipts on account of membership fee, coupon sales and purse
money, etc. at Rs. 15 crores and the estimate of the total receipts at Rs.
26,33,57,966 were "without any basis or material on record and were
merely based on the subjective opinion of the AO". It was further
pointed out that the CIT(A) had also ignored the assessment order
framed by the AO for AY 1995-96 where the assessment had been
completed on 31st March 1998 determining the income of the INC as
`nil'.



ITA Nos. 145/2001 & 180/2001                                   Page 20 of 71
40. It was urged by the INC that the non-consideration of the accounts
produced by the INC s additional evidence under Rule 46A of the Rules
amounted to a violation of the principles of natural justice. It was further
submitted that unlike Section 145 of the Act, Section 13A of the Act did
not empower the AO to estimate income from voluntary contributions
and there was no material with the AO to make any such estimation. It
was submitted that voluntary contributions did not fall under any head
of income under Section 14 of the Act and was taxable only in terms of
Section 13A of the Act.


41. It was submitted by the INC that there was no time limit under
Section 13A of the Act for completing the audited accounts and,
therefore, the audited accounts, which were completed after the
assessment order for the AY 1994-95, should be considered after the
matters were remanded to the AO for a fresh consideration. Reliance
was placed on the CBDT's Circular dated 19th October 2000. It was
submitted that there was no basis for the CIT (A) to restrict the
expenditure to 60% of the claim.


42. It was submitted that for AY 1994-95, the question of granting
exemption under Section 13A of the Act would arise only if there was
income for the said AY. In view of the fact that there was an overall
deficit in the consolidated account filed before the CIT(A) to the extent
of Rs. 4.60 crores there was no justification in the CIT (A) confirming
the estimate of receipts and allowing only part of the expenses.



ITA Nos. 145/2001 & 180/2001                                    Page 21 of 71
Order of the ITAT
43. The ITAT in the impugned order dated 9th April 2001 came to the
following conclusions:


(i) Till the completion of the assessment order on 31 st March 1997, the
Assessee failed to file the audited accounts of all the state units and
produce the books of accounts. The auditing of the accounts of state
units was completed only thereafter.


(ii) Even if there was no time limit for completion of the accounts and
audit, they had to be completed within a reasonable time. Non-
completion of accounts and their audit even within two years from the
end of the relevant financial year (`FY') cannot be condoned and the
Assessee cannot be given the benefit of a reasonable cause to enable the
additional evidence to be tendered under Rule 46A of the Rules. In
terms of Rules 46A(1)(b) and 45A(1)(c), there was no sufficient cause
which prevented the Assessee from producing the requisite evidence
before the AO. The CIT (A), therefore, was justified in declining to
admit the additional evidence.


(iii) There was no violation of the principle of natural justice as
sufficient opportunity was given to the Assessee to produce the books of
accounts and audited accounts. After the decision of the Gujarat High
Court in Commissioner of Income Tax v. Gujarat Pradesh Congress
Samiti (supra) rendered in 1993, the Assessee could not have any doubt



ITA Nos. 145/2001 & 180/2001                                 Page 22 of 71
about having to comply with the statutory requirements under Section
13A read with Section 139(4B) of the Act.


(iv) The Assessee did not fulfil the conditions (a), (b) and (c) under the
proviso to Section 13A of the Act and, therefore, the AO was justified in
not allowing exemption therein.


(v) The reasons given by the AO for making an estimate of receipts
from state and other units at Rs. 15 crores was not convincing or
satisfactory. The AO erred in making a lump sum estimate of all the
receipts of the state and other units. Section 13A of the Act applied only
to voluntary contributions actually received and would not apply to any
`accrued, deemed, notional or estimated voluntary contributions'. Even
if the AO had taken a cue from the accounts of the 14 state units that
were filed, the total receipts of all the state units and other units would
not have worked out to Rs. 15 crores.


(vi) Likewise, the CIT(A) erred in confirming the AO's estimate of
receipts. By this time, the Assessee had filed a complete account of the
states and all other units. When the CIT (A) called for a remand report
from the AO, he should have raised a specific query whether the AO's
estimate on receipts could be considered as fair and reasonable in light
of the audited accounts filed before the CIT(A). Even though the
CIT(A) declined to accept the said additional evidence, it was relevant
and imperative that these materials be appreciated to decide the estimate
of receipts. A direction was issued to the AO "to accept the receipt

ITA Nos. 145/2001 & 180/2001                                   Page 23 of 71
shown in central office account at Rs. 11,33,57,696 and from all the
state and other units at Rs. 3,82,97,972 + Rs. 1,81,17,534." Further in
case the AO had information about any specific receipt not disclosed in
the accounts "he can take appropriate actions under the law".


(vii) There was a close nexus between the voluntary contributions and
expenditure on political activity of a political party. This was because
the expenditure on political activity is incurred from the voluntary
contributions and the position of a political party was akin to the
carrying out of the aims and objectives of a Trust.


(viii) But for Section 13A of the Act, voluntary contributions would not
be taxable income since it did not fall under any of the heads of the
income under Section 14 of the Act. It would not come under the head
`income from other sources'. The expenditure incurred by a political
party on its political activities was allowable as a deduction since such
expenditure was incurred to carry out its aims and objects for which the
voluntary contributions were also received. The aims and objects of
political party fell within the scope of the expression "any other object
of general public utility" appearing in the definition of `charitable
purposes' under Section 2(15) of the Act.


(ix) The contention of the Assessee that exemption under Section 13A
of the Act can be granted even if the prescribed conditions are fulfilled
at the appellate stage was rejected. The Assessee did not deserve the
grant of exempton at the appellate stage. At the same time, the Assessee

ITA Nos. 145/2001 & 180/2001                                    Page 24 of 71
did not deserve its assessment to be set aside so that the AO could grant
exemption under Section 13A of the Act.


(x) In view of the overall excess of expenditure over income and the
decision of the Supreme Court in Ranchi Club Ltd. v. Commissioner of
Income Tax (2001) 247 ITR 209 (SC), the interest charged under
Section 234A and 234B of the Act was required to be deleted.


(xi) The Revenue's appeal was dismissed by observing that the
allowance of depreciation and 60% of the expenditure by the CIT (A)
could not be held to be erroneous.


(xii) The impugned order of the CIT (A) on the allowability of the
expenditure was set aside and the matter was restored to the AO with the
direction to decide it de novo. The expenditure could be allowed subject
to the condition that "there exists a nexus between the expenditure and
voluntary contributions, and the expenditure was incurred to attain the
aims and objects of the party".


(xiii) Accordingly, the Assessee's appeal was partly allowed and the
Revenue's appeal was dismissed.


Orders on remand
44. Initially when these appeals were heard on 3rd January 2002, certain
questions of law were framed by the Court both in the Revenue's appeal
as well as in the Assessee's appeal. Meanwhile, in terms of the

ITA Nos. 145/2001 & 180/2001                                  Page 25 of 71
impugned order of the ITAT, the AO on remand, passed a fresh order on
31st March 2003 computing the taxable income of the Assessee for the
AY as Rs. 1,44,42,290. The appeal against the said order by the
Assessee was partly allowed by the Commissioner of Income Tax
(Appeals) [`CIT (A)'] which by an order dated 9th December 2004 led to
the revision in the taxable income as Rs. 38,38,258.The further appeal
by the Assessee against that order was disposed of by the ITAT by an
order dated 18th July 2007 leading to the determination of the loss in the
sum of Rs. 60,23,621.


45. On 12th November 2014 the Court framed a further question of law
in addition to those already framed by its order dated 3rd January 2002.
On 8th December 2015 in light of the submissions made by both learned
counsel for the Revenue as well as learned Senior counsel for the
Assessee, one further question of law was framed for consideration by
the Court in the Revenue's appeal, i.e., ITA No. 145 of 2001.


46. Also, in substitution of the questions framed in the Assessee's
appeal, ITA No. 180 of 2001 on 3rd January 2002, the Court framed
three substantial questions of law by its order dated 8th December 2015.


Questions in the Revenue's appeal
47. Consequently, as far as the Revenue's appeal, ITA No. 145 of 2011
is concerned the following questions of law were framed for
consideration:

       1. Whether in the circumstances of the instant case and on the
ITA Nos. 145/2001 & 180/2001                                    Page 26 of 71
       basis of the material available on record, the total income adopted
       at Rs.25,12,68,08 was valid and in accordance with the provisions
       of Section 13A of the Income Tax Act and further, whether the
       assessee was not entitled to an exemption on or any part of the
       aforesaid amount?
       2. Whether ITAT was justified in law in restricting the estimate of
       income to the figure disclosed by the Assessee in the books of
       accounts produced before the AO and CIT (A) despite its finding
       that Assessee failed to furnish the complete accounts and produce
       the books of accounts of all its units before AO in spite of ample
       opportunities given to it?

       3. Whether ITAT was justified in law and on the facts in holding
       that the objects of a political party fall within the scope and
       expression "any other object of general public utility" appearing
       in Section 2(15) of the Act?

       4. Whether ITAT was justified in deleting the interest charged
       under Sections 234A & 234B of the Act altogether?"

       5. Whether the voluntary contributions received by a political
       party in view of Section 13-A is income per se and whether
       expenditure incurred by a political party for political purposes or
       for aims and objects of the political party can be allowed as a
       deduction for calculating income, when conditions of the first
       proviso are not satisfied?

       6. Whether the ITAT was justified in holding that the voluntary
       contributions received by the political party cannot be considered
       as income from other sources in the absence of availability of
       relief of benefit of Section 13-A of the Act?

Questions in the Assessee's appeal
48. As far as the Assessee's appeal, ITA No. 180 of 2001, is concerned,
the following substantial questions of law were re-framed by the Court
by its order dated 8th December 2015:

ITA Nos. 145/2001 & 180/2001                                  Page 27 of 71
       1. Whether the ITAT was correct in law in holding that the
       audited accounts filed by the Assessee before the CIT (A) could
       not be accepted as evidence as the same were not audited till the
       assessment was framed and therefore, the Assessee was not
       entitled to exemption under Section 13A of the Act?

       2. Whether, in the circumstances of the case and on the basis of
       material on record, the ITAT was justified in denying exemption
       to the Assessee under Section 13A of the Act and even refusing to
       condone the delay that had occurred in audit of some of the State
       units?

       3. Whether, the ITAT was right in holding that the Assessee had
       failed to fulfil the three conditions envisaged under Clauses (a),
       (b) and (c) of Section 13A of the Act?

Background to Section 13A
49. A central issue that arises involves the interpretation of Section 13A
of the Act and in particular the expression `income from voluntary
contributions received' found therein.


50. Before proceeding to interpret Section 13A, certain other terms and
expressions used in the provisions of the Act require to be noticed. The
expression `voluntary contributions' has been defined under Section
2(24)(iia) of the Act as under:
               "voluntary contributions received by a trust created wholly
               or partly for charitable or religious purposes or by an
               institution established wholly or partly for such
               purposes or by an association or institution referred to in
               clause (21) or clause (23), or by a fund or trust or
               institution referred to in sub clause (iv) or sub- clause (v)
               of clause (23C) of section 10.


ITA Nos. 145/2001 & 180/2001                                     Page 28 of 71
               Explanation.- For the purposes of this sub- clause, "trust"
               includes any other legal obligation;"

51. It is significant that the above definition does not include `voluntary
contributions received by a political party'. However, does that mean
that voluntary contributions received by a political party, which finds
mention as an exempted category of income under Section 13A of the
Act, is not otherwise `income'?


52. In order to understand this, the purpose of inserting Section 13A of
the Act has to be examined. Section 13A of the Act was introduced by
the Taxation Laws (Amendment) Act, 1978 with effect from 1st April
1979. Section 13A as it stood during the period relevant to the AY in
question reads thus:

       "13A. Special provision relating to incomes of political
       parties.- Any income of a political party which is chargeable
       under the head "Income from house property" or "Income from
       other sources" or any income by way of voluntary contributions
       received by a political party from any person shall not be included
       in the total income of the previous year of such political party :

       Provided that--

        ( a)      such political party keeps and maintains such books of
       account and other documents as would enable the Assessing
       Officer to properly deduce its income therefrom;

        ( b)     in respect of each such voluntary contribution in excess
       of ten thousand rupees, such political party keeps and maintains a
       record of such contribution and the name and address of the
       person who has made such contribution; and



ITA Nos. 145/2001 & 180/2001                                   Page 29 of 71
        ( c)      the accounts of such political party are audited by an
       accountant as defined in the Explanation below sub-section (2) of
       section 288.

       Explanation.--For the purposes of this section, "political party"
       means an association or body of individual citizens of India
       registered with the Election Commission of India as a political
       party under paragraph 3 of the Election Symbols (Reservation and
       Allotment) Order, 1968, and includes a political party deemed to
       be registered with that Commission under the proviso to sub-
       paragraph (2) of that paragraph."

53. This was simultaneous with the insertion of Section 139(4B) of the
Act which reads as under:
       "139 (4B). The chief executive officer (whether such
       chief executive officer is known as Secretary or by any
       other designation) of every political party shall, if the
       total income in respect of which the political party is
       assessable (the total income for this purpose being
       computed under this Act without giving effect to the
       provisions of Section 13A exceeds the maximum amount
       which is not chargeable to income-tax, furnish a return of
       such income of the previous year in the prescribed form
       and verified in the prescribed manner and setting forth
       such other particulars as may be prescribed and all the
       provisions of this Act, shall, so far as may be, apply as if
       it were a return required to be furnished under sub-
       section (1).

54. The expression `political party', as stated by t he explanation to
Section 13A of the Act, as it stood at the relevant time, meant a political
party registered with the Election Commission of India under paragraph
3 of the Election Symbols (Reservation and Allotment) Order, 1968, and
includes a political party deemed to be registered with the Commission
under the proviso to sub-paragraph (2) of that paragraph.. The scheme of

ITA Nos. 145/2001 & 180/2001                                    Page 30 of 71
the these provisions appears to be that, after 1st April 1979, it was
incumbent on every registered political party to furnish a return of
income, if the total assessable of such political party exceeded the
maximum amount which is not chargeable to income tax. In determining
the total income, the computation has to take place under the Act
"without giving effect to the provisions of Section 13A".


55. Apart from the above amendments, the Taxation Laws
(Amendment) Act, 1978 also amended the Wealth Tax Act, 1957 to
exempt political parties from the levy of wealth tax.


56. The statement of objects and reasons accompanying the Taxation
Laws (Amendment) Bill, 1978 that introduced the above amendments
reads as under:
       "Political parties are essential in any democratic set -up.
       The taxation of their income, however, reduces their
       disposable funds thereby adversely affecting their
       capacity to finance their activities from legitimate
       sources of income. It is, therefore, proposed to provide
       for exemption from income tax in respect of specified
       categories of income derived by political parties, namely
       income from investments both in movable and
       immovable properties and income by way of voluntary
       contributions. The proposed exemption will be available
       only in the case of political parties which are registered
       or deemed to be registered with the Election Commission
       of India under the Election Symbols (Reservation and
       Allotment) Order, 1968. The exemption will not be
       allowed unless the political party maintains proper books
       of account; records the name and address of every person
       who has made a voluntary contribution of more than ten
       thousand rupees at a time; and the accounts of the

ITA Nos. 145/2001 & 180/2001                                   Page 31 of 71
       political party are audited by a chartered accountant or
       other qualified accountant.

       2. Payments made for advertisements in souvenirs,
       brochures and the like published by political parties are
       not made on considerations of commercial expediency,
       but are in the nature of disguised donations made with
       the twin objective of circumventing the ban on company
       donations and for securing their deduction in the
       computation of taxable profits. It is, therefore, proposed
       to provide that expenditure incurred by a taxpayer for
       purposes of advertisement in any souvenir, brochure and
       the like published by a political party will not be allowed
       as a deduction in computing the taxable profits.

       3. One of the principal objects of wealth-tax is to reduce
       disparities in personal incomes and wealth. As this
       consideration does not apply in the case of political
       parties, it is proposed to exempt them from the levy of
       wealth-tax.
       4. This Bill accordingly seeks to amend the Income-tax
       Act, 1961, and the Wealth-tax Act, 1957, mainly with a
       view to achieving the aforementioned objects."

57. The Income Tax Circular No. 245 dated 11th August 1978 also
explained the purport of the above provisions. It was clarified in para 4
of the said circular that the exemption under Section 13A of the Act
would not be available unless a political party fulfils the following
conditions:
       (i) it keeps and maintains such books of accounts and other
       documents that would enable the income tax officer to properly
       deduce its income therefrom.




ITA Nos. 145/2001 & 180/2001                                   Page 32 of 71
       (ii) it keeps and maintains records of each voluntary contribution
       in the excess of Rs.10,000 and all the names and addresses of
       persons who have made such contributions.

       (iii) the accounts of the political party are audited by a Chartered
       Accountant or other qualified accountant as defined below
       Section 288(2) of the Act.


58. It requires to be noticed at this stage that Section 13-A of the Act has
undergone further changes in 2003 and as at present it reads as under:

       "13A. Special provision relating to incomes of political
       parties.- Any income of a political party which is chargeable
       under the head "Income from house property" or "Income from
       other sources" or "Capital gains" or any income by way of
       voluntary contributions received by a political party from any
       person shall not be included in the total income of the previous
       year of such political party :

       Provided that--

       (a) such political party keeps and maintains such books of account
       and other documents as would enable the Assessing Officer to
       properly deduce its income therefrom;

       (b) in respect of each such voluntary contribution in excess of
       twenty thousand rupees, such political party keeps and maintains
       a record of such contribution and the name and address of the
       person who has made such contribution; and

       (c) the accounts of such political party are audited by an
       accountant as defined in the Explanation below sub-section (2) of
       section 288 :


       Provided further that if the treasurer of such political party or any
ITA Nos. 145/2001 & 180/2001                                    Page 33 of 71
       other person authorised by that political party in this behalf fails
       to submit a report under sub-section (3) of section 29C of the
       Representation of the People Act, 1951 (43 of 1951) for a
       financial year, no exemption under this section shall be available
       for that political party for such financial year.


       Explanation.--For the purposes of this section, "political party"
       means a political party registered under section 29A of the
       Representation of the People Act, 1951 (43 of 1951).


59. Thus the basic requirement under Section 13 A of the Act for a
registered political party to be able to claim exemption from income tax
remains the same. To strengthen the provision, the second proviso was
added to make it mandatory for a political party to submit a report to
the Election Commission of India under Section 29C (3) of the RP Act
if it wanted to seek exemption in terms of Section 13A of the Act.


Submissions of Senior counsel for the INC
60. The submission of Mr. C.S.Aggarwal, learned Senior counsel for the
INC was that `voluntary contribution' is in the nature of a gift and can
never be regarded as income under Section 2(24) of the Act. According
to him even for the purposes of Section 11 of the Act in the case of a
Trust, voluntary contributions received by a Trust is deemed to be
income derived from property held under Trust and is not income. He
pointed out that if indeed voluntary contributions received by a political
party would have been income per se under Section 2(24) of the Act,
then clearly there would not have been any need to enact Section



ITA Nos. 145/2001 & 180/2001                                   Page 34 of 71
2(24)(iia) of the Act. He further submitted that voluntary contributions
could never be considered to be a regular source of income.


61. Mr. Aggarwal referred to the decision in Commissioner of
Expenditure Tax v. P.V.G. Raju (1975) 101 ITR 465 (SC) where it was
held:
        "when a person a person gives money to another without any
        material return, he donates that sum. An act by which the owner
        of a thing voluntarily transfers the title and possession of the same
        from himself to another, without any consideration, is a donation.
        A gift or gratuitous payment is, in simple English, a donation".

62. Mr. Aggarwal also referred to the decisions in Commissioner of
Income Tax v. Harprasad & Company Private Limited (1975) 99 ITR
118 (SC) and Parimisetti Seetharamamma v. Commissioner of Income
Tax (1965) 57 ITR 532 (SC) to urge that all receipts were not income
and the burden was on the Revenue to establish that a voluntary
contribution was income within the meaning of the Act. He submitted
that the only test was "material return" which in the present case was
absent. Mr Aggarwal submitted that in a voluntary contribution, the
voluntariness of the donor was the "originating cause" but not the
expectancy or the acts of the political party. ' By way of analogy he
pointed out that it was felt necessary to term a voluntary contribution as
a `deemed income' under Section 11 of the Act since otherwise it was
not.


63. Mr Aggarwal pointed out that under Section 14 of the Act, there
were various heads of income provided but there was no head of income

ITA Nos. 145/2001 & 180/2001                                     Page 35 of 71
by way of `voluntary contribution'. In any event since it did not fall
within the definition of income under Section 2(24) of the Act it could
not be held liable to be assessed as that would be beyond the scope of
Section 5 of the Act.


64. Mr Aggarwal submitted that had income by way of voluntary
contributions been `income from other sources,' there would have been
no occasion to separately provide for it under Section 13A of the Act. It
the expression 'income from other sources' implied that there had to be
in the first place income from some `source'. Since the originating cause
of the voluntary contribution was the will of the contributor, it cannot be
said to be `income from other sources'.


65. Mr Aggarwal referred to the memorandum accompanying the
Finance Bill, 1972 which inserted Section 2(24)(iia) of the Act.
Reference was also made to Instruction No. 1988 dated 19 th October
2000 issued by the CBDT which clarified that income of political parties
from voluntary contributions cannot be said to be `income from other
sources'. A distinction was also drawn between the expression `income
by way of voluntary contributions received' occurring in Section 13A of
the Act and `any voluntary contribution received by an electoral Trust'
occurring in Section 13B of the Act.


Submissions of counsel for the Revenue
66. Countering the above submissions, it was pointed out by Mr.
Raghvendra Singh, learned counsel for the Revenue that collection from

ITA Nos. 145/2001 & 180/2001                                   Page 36 of 71
sale of coupons and purse money and donations and other such receipts
constitute voluntary contributions under Section 13A of the Act.
Referring to Section 29B of the RP Act and Section 293A of the
Companies Act 1956, he submitted that a wider meaning has to be given
to the expression `voluntary contributions'. After 11th September 2003,
the date on which Election and Other Related Laws (Amendment) Act,
2003 came to force, a political party had to maintain records of each
voluntary contribution in excess of Rs. 20,000 in substitution of Rs.
10,000.


67. Mr. Singh referred to the decision in Commissioner of Income Tax
v. MP Anaj Tilhan Vyapari Mahasangh (1988) 171 ITR 677 (MP) and
submitted that voluntary contributions received by a political party was
income under Section 2(24) of the Act and was a revenue receipt.
Reliance was placed on the decisions in Karanpura Development Co.
Ltd. v. Commissioner of Income Tax (1962) 44 ITR 362 (SC) and
Aroon Purie v CIT. (2015) 375 ITR 188 (Del).


68. Mr Singh submitted that whether a receipt is income or not is a
mixed question of fact or law and the matter ought to be remanded to
the ITAT to call for and examine the complete books and decide the
question afresh.


Interpreting Section 13A
69. Section 2(15) of the Act defines what is `charitable purpose'. This is
relevant for Section 11 of the Act. A political party cannot be said to be

ITA Nos. 145/2001 & 180/2001                                  Page 37 of 71
carrying on an activity that is comparable to that carried on by a
`charitable trust.' Treating the income of a political party to be that of a
Trust and using the same principle to test the treatment of its expenses is
inconsistent with the very scheme of the Act.


70. It is clear, therefore, that for understanding and interpreting Section
13A of the Act, it would serve no purpose to compare it with Section 11
of the Act which applies to Trusts.


71. The charging provision as far as the Act is concerned is Section 4 of
the Act. Section 5 of the Act says that the total income of a person
includes all income from whatever sources derived. For an income to
come within the purview of `total income' it must satisfy the
requirements of Section 5 and must be computed in the manner laid
down under the Act. Section 2 (24) of the Act sets out the definition of
`income'.


72. In Karanpura Development Co. Ltd. v. Commissioner of Income
Tax (supra), the question that arose was whether amounts received by
the Assessee as `Salami' for the mining sub-lease constituted a trading
receipt in its hands and the profits therefrom were assessable to tax
under the Indian Income Tax Act, 1922. The Supreme Court made the
following observations:
       "6. The words "income" has not been defined in the Income-tax
       Act. In the definition which is enacted certain receipts are said to
       be included in the concept of income; but it does not say that
       "income" itself means. Certain working definitions have been
       given by Courts, chief among which is by the Judicial Committee
ITA Nos. 145/2001 & 180/2001                                    Page 38 of 71
       in Commissioner of Income-tax v. Shaw Wallace & Co. (1932)
       L.R. 59 I.A. 206, where it was held that by income is meant a
       periodical monetary receipt, not in the nature of a windfall but
       coming in with some sort of regularity or expected regularity. In
       business, it was also pointed out, income was the produce of
       something "loosely spoken of as capital". This income in business
       is profit which is earned by a process of production, or, in other
       words, by the continuous exercise of an activity. These
       observations of the Privy Council were quoted with approval by
       this Court in many cases and recently in Senairam Doongarmall
       v. Commissioner of Income-tax [1961] 42 ITR 392 (SC). In the
       last case, it was also pointed out that the addition of the words
       "profits and gains" in the phrase "income, profits and gains" used
       in the Income-tax Act does not restrict the meaning of the word
       "income" by implication, and that the whole expression is
       "income" writ large.

       7. But whatever "income" may include or mean it is however,
       clear that it does not include fixed capital or the realising of fixed
       Capital by turning it into some other form of capital or money.
       Fixed capital in something which the owner keeps in his
       possession but turns to profit; circulating capital however, is
       turned over in the process of profit making. It may sometimes
       happen that in the process of production, fixed capital may be
       consumed or wasted, but that is a reduction of capital and not an
       expenditure in the business claimable as an allowance in the
       reduction of assessable income in the shape of profits of the
       business."

73. It is, therefore, clear that an income has to necessarily arise from a
receipt of money but all receipts do not qualify as `income'. What is
clear is that income does not include fixed capital or realising of fixed
capital by turning it to some other form of capital or money. It has to be
a periodical monetary receipt not in the nature of windfall. It has to be
earned with some sort of regularity from definite sources.


ITA Nos. 145/2001 & 180/2001                                     Page 39 of 71
74. That takes us to Section 14 of the Act which specifies the heads of
income. Five distinct heads of income that are identified are:
  (i) Salaries (Section 14 clause A)
  (ii) Income from house property (Section 14 clause C)
  (iii) Profits and gains of business or profession (Section 14 clause D)
  (iv) Capital gains (Section 14 clause E), and
  (v) Income from other sources (Section 14 clause F)


75. When the above heads of income are compared with the heads of
exempt income under Section 13A of the Act, as far as a political party
is concerned, three of the above heads are exempt from tax. These are
income from house property, income from other sources and capital
gains (the latter having been inserted by Finance Act, 2003 with
retrospective effect from 1st April 1979). Apart from the above three,
there is also mentioned `any income by way of voluntary contributions
received by a political party' from any person.


76. The question that arises is whether income by way of voluntary
contributions received by a political party is a species different and
distinct from `income from other sources', particularly          since it is
separately mentioned in Section 13A of the Act. According to the INC,
this question has to be answered in the affirmative. It is submitted that
but for Section 13A of the Act, income by way of voluntary
contributions received by a political party would not be income at all.


77. Although the above argument appears attractive at the first blush, on

ITA Nos. 145/2001 & 180/2001                                     Page 40 of 71
a careful perusal of the entire scheme of the Act, it is not possible to
accept it. As rightly pointed out, Section 13A of the Act is not a
computation section. It is only a provision that tells us what types of
receipts of a political party would not be included in determining its
taxable income. While it is true that income by way of voluntary
contributions is not identified as a separate head of income in Section 14
of the Act, the legislative intent was not to exclude it altogether from the
taxable income. It would be excluded only subject to fulfilment of the
conditions stipulated under Section 13A of the Act. It could never have
been the legislative intention that voluntary contributions received by a
political party that does not satisfy the requirement of Section 13A of
the Act - viz., maintaining books of accounts, keeping a record of
voluntary contributions in excess of Rs. 10,000 and getting the accounts
audited - would be exempt from tax. If the above conditions are not
fulfilled, the income of a political party by way of voluntary
contributions would be included in the taxable income.


Nature of voluntary contributions
78. If that was the legislative intent, the question that arises is whether
there is an anomaly in not specifying income by way of voluntary
contributions as a head of income under Section 14 or not even deeming
it to be income for the purposes of Section 2(24)(iia) of the Act? This
requires the discussion to turn to what is meant by `income from other
sources'. An elaboration of this expression occurs in Section 56 of the
Act.



ITA Nos. 145/2001 & 180/2001                                    Page 41 of 71
79. Section 56(1) reads as under:
       "56. (1) Income of every kind which is not to be
       excluded from the total income under this Act shall be
       chargeable to income-tax under the head "Income from
       other sources", if it is not chargeable to income -tax under
       any of the heads specified in Section 14, items A to E".

80. The above provision makes it clear that clause F of Section 14 is a
residuary provision. If an income which is not to be excluded from the
total income and is not chargeable to income tax under heads A to E,
then it has to be treated as `income from other sources'. Section 14 of
the Act no doubt opens with the words "save as otherwise provided by
this Act" and that would include both Section 13A as well as Section 56
of the Act. However Section 13A of the Act does not open with a non-
obstante clause. In other words, Section 13A of the Act is not exclusive
of Section 14 F or Section 56(1) of the Act. This clinches the issue. In
other words, if the total income by way of voluntary contributions of a
political party cannot be excluded from its total income because such
political party has not complied with any of the conditions in the proviso
to Section 13A of the Act, then by virtue of Section 56(1) of the Act,
such income by way of voluntary contribution would be `income from
other sources' under Section 56(1) of the Act.


81. It is true that income by way of voluntary contribution of a political
party is not deemed to be income under Section 2(24)(iia) of the Act.
However that does not place it outside the purview of 'income from
other sources' for the purposes of Section 13 A read with Section 56 (1)
of the Act. The Privy Council in Commissioner of Income Tax v. Shaw

ITA Nos. 145/2001 & 180/2001                                    Page 42 of 71
Wallace & Co. AIR 1932 PC 138, in the context of the Income Tax Act,
1922, held that Section 4(3)(v) of that Act was only clarificatory and
"must be due to the over anxiety of the draftsman to make this clear
beyond possibility of doubt". Applying that analogy it has to be held
that the mere fact that income by way of voluntary contributions in the
hands of Trusts and other entities (other than the political party) is
deemed to be income under Section 2 (24) (iia) of the Act, will not mean
that it is not income as far as the political party is concerned.


82. The submission that there has to be in the first place a source of
income and in relation to it there has to be income from `other sources'
does not hold good in the present context since admittedly the INC has
also income from house property, which is reflected in its returns. That
apart, Section 56 (1) of the Act makes it clear that even if there was no
income under clauses A to E of Section 14 of the Act, there could be
income from other sources under clause F of Section 14 of the Act.


83. Mr Singh is right in the submission that collection by sale of
coupons, purse money and donations do constitute `voluntary
contributions' and they are part of the essential sources of a political
party's income. This is clear from the reading of statements of objects
and reasons for the introduction of Section 13A of the Act. It is
definitely one of the sources of income of a political party.


84. A political party cannot be equated with other types of Assessees,
for e.g., a company, whose income is subject to tax. The theory of there

ITA Nos. 145/2001 & 180/2001                                        Page 43 of 71
having to be some `material return' for the donor may not be apposite in
the context of donations made to a political party. Such donation could
be a result of the donor endorsing the ideology or the manifesto of a
political party. It may be simply be an act of participation in a
democracy. An elector may believe that a plurality of political parties is
good for democracy. She may want to make donations to one or more
political parties while reserving to herself the right of deciding which
political party to support at the time of election. There could be multiple
reasons for donations.


85. The known tests for determining what could be said to be 'income'
for the purposes of the Act are, therefore, inadequate for determining
whether the voluntary contribution to a political party is `income' in its
hands. It definitely forms the corpus from which expenses are incurred
by the political party. It is a regular source of income. It may or may not
be a windfall depending on the size of the donation.


Voluntary contributions are not capital receipt
86. In this context, the Court is unable to accept the contention that these
kinds of voluntary contributions are `capital receipts' as contended by
Mr. Aggarwal. Although it is true that all receipts are not income, clause
F of Section 14 read with Section 56(1) of the Act, provides an
affirmative answer to the question whether income by way of voluntary
contributions is `income from other sources' in a situation where the
proviso to Section 13A(1) of the Act is not fulfilled by a political party.



ITA Nos. 145/2001 & 180/2001                                    Page 44 of 71
87. The decision in Commissioner of Expenditure Tax v. P.V.G. Raju
(supra) is distinguishable on facts. In that case, the context was that the
Expenditure Tax Act, 1958 (`ET Act') which taxed certain forms of
expenditure. Section 5(j) of the ET Act specifically excluded
expenditure incurred by an Assessee by way of a gift, donation or
settlement on Trust or otherwise for the benefit of any other person. It is
in this context that it was held that the donation made to a political party
qualifies for exemption under Section 5(j) of the ET Act.


88. The situation here is hardly comparable. What is sought to be
exempted for the purposes of Section 13A of the Act is not expenditure
by way of a donation but income by way a voluntary contribution.


89. Consequently, on this aspect, it is held that the voluntary
contributions received by the INC during the AY in question has to be
treated as `income from other sources'.


Non-furnishing of audited accounts within time
90. This next takes us to the question of whether the CIT(A) and the
ITAT ought to have permitted the Assessee to place on record its
audited accounts although they were not completed and audited prior to
the passing of assessment order by the AO for the AY in question.


91. Mr. Aggarwal makes an earnest plea that for the purposes of Section
13A of the Act, there is, in fact, no time limit specified for furnishing
the audited accounts. It is submitted that unlike certain other provisions

ITA Nos. 145/2001 & 180/2001                                    Page 45 of 71
like Sections 10 (23C)(via), 32AB, 80 HHC, and numerous other such
provisions which require that the audited report should be furnished
along with the returns or before the due date of the filing of return, there
is no such requirement in Section 13A of the Act. Accordingly, it is
submitted that the filing of the audit report is only directory and it can
be filed during the course of assessment and even if the auditor's report
is filed during the course of the appellate proceedings, the requirement
of law should be taken to have been complied with. Reliance is placed
on the decision in Commissioner of Income Tax v. American Data
Solutions India (P.) Ltd. [2014] 45 taxmann.com 379 (Kar) ,
Commissioner of Income Tax v. Jayant Patel 248 ITR 199 (Mad),
Commissioner of Income Tax v. Trehan Enterprises (2001) 248 ITR
333 (J&K), Commissioner of Income Tax v. Magnum Export (P.) Ltd.
(2003) 262 ITR 10 (Cal) and Commissioner of Income Tax v.
Medicaps Ltd. (2010) 323 ITR 554 (MP). Reference was also made to
the decision in Commissioner of Income Tax v. Bijli Cotton Mills Pvt.
Ltd. (1979) 116 ITR 60 (SC) to contend that the income tax authorities
ought to have accepted the audit reports produced before the CIT(A).


92. At the outset it should be noted that there is a distinction between
accounts needing to be maintained and audited, and, the requirement
that an auditor's report should be filed. In other words, the filing of an
auditor's report is distinct from the filing of audited accounts. There is
no option for a political party not to file audited accounts as far as
Section 13A of the Act is concerned. It is only when the accounts, duly
certified by a chartered accountant who satisfies the description in terms

ITA Nos. 145/2001 & 180/2001                                    Page 46 of 71
of the Explanation to sub-section (2) of Section 288 of the Act, are filed
that the AO may reasonably deduce the taxable income of the political
party therefrom. In other words, the requirement of maintaining the
audited accounts and furnishing those accounts in terms of the proviso
to Section 13A of the Act is not merely directory.


93. The decisions cited by Mr. Aggarwal are distinguishable as each of
them talks of the non-filing of an auditor's report and not the non-filing
of audited accounts themselves. Given the context in which Section 13A
of the Act was introduced, it was critical from the point of view of the
legislature that political parties are made to disclose what their state of
financial affairs is in any given financial year. It was felt necessary to
make them account for the receipts and expenses in any financial year.
After all, political parties do deal with monies contributed by the public.
Political parties are purportedly incurring expenses for their political
activities. It is with a view to placing a check on the financial
transactions of political parties that the proviso to Section 13A was
enacted. In this context, the object of Section 13 A of the Act will be
defeated if the compliance with the requirements of the proviso thereto
are held not to be mandatory.


94. Section 13A has to be read as a whole. It is a provision beneficial to
a political party. It exempts various items of income of a political party
from tax. If it has to be strictly construed, so too should the
conditionality attached to Section 13A. If a political party seeks
exemption from paying income tax in a particular AY, it is incumbent

ITA Nos. 145/2001 & 180/2001                                   Page 47 of 71
on such political party to strictly comply with each of the requirements
in the proviso to Section 13A and to do so by the time the assessment is
completed. At the highest, there can be a leeway between the time of
filing of the return and the completion of the assessment but certainly
not thereafter. This is a reasonable interpretation to be placed on the said
provision as far as the time period for compliance with the requirement
of the proviso to Section 13A of the Act is concerned.


95. It is not in dispute that as far as AY 1994-95 is concerned, the INC
did not submit the complete audited accounts by the time the assessment
was completed. What was submitted was only the accounts of the
central office and not the state units. It was only before the CIT (A) that
an application was filed under Rule 46A seeking to place on record the
consolidated accounts of the central office, 26 Pradesh Congress
Committees, 6 Territorial Congress Committees, 2 Regional Congress
Committee, All India youth Congress, All India Mahila Congress
Committee, All India Congress Sewa Dal, National Students Union of
India and the Congress Parliamentary Party. That attempt was rebuffed
by the CIT(A) and the decision in this regard was upheld by the ITAT.


96. Given the above legal position regarding the mandatory requirement
of Section 13A of the Act, the CIT (A) was justified, and so was the
ITAT, in declining the application of the INC under Rule 46A seeking
permission to place on record the consolidated accounts at the appellate
stage.



ITA Nos. 145/2001 & 180/2001                                    Page 48 of 71
97. The mere fact that the INC may have units in each of the states in
the country, which makes the task of consolidating the accounts a
tedious one, does not absolve it from the mandatory statutory
requirement of filing consolidated accounts of the central office and the
state units. A company can have branches all over the country and may
be required to file consolidated accounts of all those branches. There
can be no excuse for such company not doing so for any given AY.
Without there being audited accounts, none of the figures mentioned by
an Assessee in the returns can be verified. Where the accounts of an
Assessee fail to inspire confidence and merit rejection, or where there is
no full and true disclosure by the Assessee, a combination of Sections
143 and 144 of the Act would come into play and the AO would have to
deploy the best judgment assessment. Therefore, in the present case,
merely because the INC had several state units and other associated
bodies, whose individual accounts had to be tallied and finalised, was
not a sufficient cause for it not to comply with the requirements of the
proviso to Section 13A of the Act by the time of completion of the
assessment.


98. The Court, therefore, holds that the INC failed to demonstrate
sufficient cause in terms of Rule 46A(1)(b) and 46A(1)(c) of the Rules.
The decision of the CIT(A) as affirmed by the ITAT, is upheld.


The accounts do not give a true and fair picture
99. Admittedly, in the present case, the accounts for AY 1994-95 were
audited only on 1st July 1997. This was more than two years after the

ITA Nos. 145/2001 & 180/2001                                  Page 49 of 71
end of the relevant FY. The consolidated accounts were tendered before
the CIT (A) only on 4th November 1997. This was certainly an
unacceptable and inordinate delay. Given the context of Section 13A of
the Act, such delay could not possibly have been condoned.


100. In any event, The audited 'consolidated' accounts filed before the
CIT (A) also do not satisfy the mandatory legal requirement. The Court
pointed out to Mr Aggarwal during the course of hearing various
discrepancies and shortcomings therein. The auditor's report is not in
the format that one expects a duly qualified CA to adopt. When it was
plain to the CA that the receipts of the state units and the items of
expenditure incurred by them units were not supported by documents, a
qualified report ought to have been furnished. On the other hand, the
Court finds that a standard format report has been adopted. The
auditor's report dated 1st July 1997 for the AY 1994-95 reads as under:
       "The President
       Indian National Congress
       New Delhi.

       We have audited the first attached consolidated Balance
       Sheet of Indian National Congress, as on 31 st March
       1994 and the Income & Expenditure account of the Party
       for the year ended on that date in which are incorporated
       the Audited accounts of All India Congress Committee,
       26 Pradesh Congress Committees, 6 Territorial Congress
       Committees, 2 Regional Congress Committees, All India
       Youth Congress, All India Mahila Congress Committee,
       All India Congress Sewa Dal, National Students Union of
       India and Congress Parliamentary Party and report that:

       Subject to the notes on accounts as per schedule `A' of
       the Balance Sheet.
ITA Nos. 145/2001 & 180/2001                                 Page 50 of 71
       The Balance Sheet as on 31.3.94 and Income and
       Expenditure account for the year ended on that date are
       in agreement with the books of accounts, vouchers,
       receipts books etc. produced before us."

101. The Schedule `A' to the balance sheet reads as under:
       "Notes on Accounts Forming part of the Balance Sheet as
       on 31.03.94

       1. Generally cash system of accounting has been
       followed by the party except the interest on F.D.Rs which
       has been accounted for on accrual basis.

       2. Certain additions to the existing building at 24, Akbar
       Road have been made during the year. Since the building
       is on rent from Government of India and the ownership
       does not vest in AICC, the amount spent on additions has
       been charged as depreciation during the year.

       3. Certain Committees have prepared their final accounts
       in the form of receipt and payment account. Hence while
       drawing the Balance Sheet as on 31.3.94 of those offices,
       fixed Assets and moveable assets have been estimated by
       the said committees/office bearers and taken into account
       with corresponding credit to the Reserve Fund account.
       Assets and liabilities have been incorporated in the
       financial statement on the basis of details provided to us
       by the Pradesh Committees.

       4. As no financial accounts were drawn for the year in
       the case of Tamil Nadu and Arunachal Pradesh
       Committees due to split of the party, the same could not
       be incorporated in the Balance Sheet of Indian National
       Congress as on 31.3.94.

       5. During the year, the party had received certain
       donations from outside India amounting to Rs.1.00 crore

ITA Nos. 145/2001 & 180/2001                                  Page 51 of 71
       by demand drafts. A public interest petition has been
       moved in Delhi High Court challenging the acceptability
       of these donations under the provisions of the Foreign
       Contribution (Regulation) Act, 1976. The party is of the
       opinion that the acceptance of these donations are not in
       contravention of the Foreign Contribution (Regulation)
       Act, 1976.

       6. Income Tax Department has raised a demand
       amounting to Rs.22.96 crore for the assessment year
       1994-95. The Party has gone in appeal against this
       demand and the recovery of the same has been stayed by
       the department till the disposal of the first appeal."

102. It is not understood how despite the above note, the auditor can
simply certify that the balance sheet and the statement of income and
expenditure as on 31st March 1994 are in agreement with the books of
accounts, vouchers, receipts, books etc. "produced before us". In the
facts of the present case, when admittedly the complete figure of the
receipts and expenditure of all the state units was not available, it should
not have been possible for an auditor to make that kind of a statement.
The purpose of whole exercise of audit undertaken by a CA, is to
examine if the accounts maintained by an Assessee give a true and fair
view of its financial affairs. Significantly, the above report does not use
the expression `true and fair view' at all. There is also a difference
between an Auditor saying that the accounts are in accordance with the
Assessee's books of accounts and the Auditor saying that they are in
accordance with the books of accounts "produced before us". If an
Assessee has failed to maintain or produce all the books of accounts,
receipts, vouchers etc., in accordance with the mandatory legal


ITA Nos. 145/2001 & 180/2001                                    Page 52 of 71
requirement, it was incumbent on an auditor to qualify his report to that
extent.


103. It is also disconcerting to note that the same auditor has issued
identical certificates for other AYs for which simultaneously accounts
have been finalised. This kind of an auditor's report, to say the least,
leaves much to be desired. It does not comport with the degree of
seriousness with which a duly qualified auditor is expected to discharge
his statutory obligations. An auditor is discharging both the professional
and a statutory duty. He is licensed under the expectation that he will
faithfully discharge the above obligations. In the present case, the Court
is constrained to note that the auditor's report submitted before the CIT
(A) on 4th November 1997 is woefully short of the requirement of the
law.


104. Mr. Aggarwal tried to suggest that a format was prescribed by the
Institute of Chartered Accountants of India (`ICAI') for accounts to be
tendered by political parties only recently, i.e. in February 2012. He also
referred to the instructions recently issued regarding the filing of income
tax returns by political parties.


105. The ICAI issued a 'Guidance Note on Accounting and Auditing of
Political Parties' in February 2012. The covering note of the President,
ICAI states inter alia:
       "Political Parties are one of the core organisations for
       functioning of a democracy. In this dynamic scenario,
       where the sources of funding of the Political Parties are

ITA Nos. 145/2001 & 180/2001                                   Page 53 of 71
       diversified, the objectives of accountability and
       transparency seem to be of great importance. Transparent
       accounting and financial reporting are also central to the
       fulfilment of new age governance, The introduction of
       acceptable accounting practices and disclosure norms are
       not just technical practices but the foundations for the
       integrity and maturity of the Political Parties. Political
       Parties would, therefore, need to reflect their 'financial
       position' and 'financial performance' which should
       indicate their ability to achieve their developmental
       goals, meet their programme targets, their efficiency in
       the use of resources.

106. The covering note of the President ICAI acknowledges that "the
present system of accounting and financial reporting followed by
political parties in India does not adequately meet the accountability
concerns of the stakeholders." The 'Illustrative format of Auditor's
report' appended to the note requires the auditors to state inter alia that:
       ''In our opinion and to the best of our information and
       according to the explanations given to us, the said
       accounts give a true and fair view in conformity with the
       accounting principles generally accepted in India''

107. The above guidance note of the ICAI can be said to clarify the legal
requirement regarding the standard of reporting that is expected of an
auditor discharging both a professional and a statutory responsibility. It
does not mean, as was suggested by Mr Aggarwal, that prior thereto
there was no such requirement of a auditor's report to satisfy the
statutory mandate of Section 13A of the Act.


108. Since no attempt has been made by the INC to place before the
AO, or even before the CIT (A), acceptable audited accounts, from
ITA Nos. 145/2001 & 180/2001                                     Page 54 of 71
which the AO could deduce the taxable income of the assessee, the
Court has no hesitation to hold that the mandatory requirement of the
proviso to Section 13A of the Act was not fulfilled by the Assessee.
Such a failure could not have been condoned either by the CIT (A) or
the AO.


Effect of remand proceedings
109. It was contended by Mr. Aggarwal that in the remand proceedings,
pursuant to the impugned order of the ITAT, the AO had relied on the
very figures in the consolidated audited accounts submitted by the INC
before the CIT (A). He pointed out that in fact the AO had accepted the
expenditure of the Assessee as shown therein. The remand proceedings
ultimately resulted in the assessment being finalised at a deficit, i.e., at a
net loss. On this basis, it is contended that once there is no assessable
income as such, the question of exemption under Section 13A of the Act
could not arise at all.


110. The above submission proceeds on a basic misconception. With the
Revenue having preferred an appeal before this Court against the
impugned order of the ITAT, all further proceedings consequent upon
the remand to the AO would obviously be subject to the outcome of the
present appeal. It is, therefore, to no avail as far as the INC is concerned,
that in the remand proceedings the AO may have relied on the audited
accounts submitted by the INC at the appellate stage. There is no
estoppel in such situations particularly since the Assessee has been put



ITA Nos. 145/2001 & 180/2001                                      Page 55 of 71
on notice that all orders passed on remand are subject to the outcome of
the appeal filed by the Revenue in this Court.





111. It is, therefore, to no avail that the AO on remand assessment relied
on these audited accounts to determine whether there was a taxable
income or a deficit for the AY in question. The INC cannot possibly
take advantage of what happened in the remand proceedings.


The rule of consistency
112. Another contention that was urged was based on the rule of
consistency. It was contended that when the accounts of the INC for all
the AYs, earlier to and later than AY 1994-95, have been accepted by
the Department without demur, then why must only AY 1994-95 be
picked up for a different treatment? Reliance was placed on the decision
in Excel International Ltd. v. CIT (2013) 358 ITR 295 (SC) which
reiterated the decision in Radha Saomi Satsang v. CIT (1992)193 ITR
321(SC)


113. As already noticed, the so-called audited accounts that were
presented to the AO by the INC for AY 1994-95, and later in a
'consolidated' form on 4th November 1997 before the CIT(A), does not
inspire confidence. The same type of incomplete accounts have been
prepared and submitted by the same auditor, for several AYs earlier to
and subsequent to the AY in question. There appears to be a laxity on
the part of the income tax authorities in not insisting on strict
compliance with the mandatory requirement of Section 139(4B) read

ITA Nos. 145/2001 & 180/2001                                  Page 56 of 71
with Section 13A of the Act, thereby defeating the very purpose of the
said provisions as was foreseen by the Supreme Court in Common
Cause v. Union of India (supra). In the circumstances, the rule of
consistency cannot be applied to condone the violation of the law by the
INC.


Estimation of voluntary contributions to state units
114. The next question that arises is whether there can be an estimation
of either the income by way of voluntary contributions received by state
units or the expenditure incurred by such state units in the absence of
any vouchers. To recapitulate, what the AO has done is to estimate the
income by way of voluntary contributions received by the state units of
the INC as Rs. 15 crores in the absence of any reliable document or
voucher.


115. In this context it was submitted by learned counsel for the Revenue
that although the AO did not mention Section 144 of the Act, it was
permissible for him to have made such an estimation of income. It is
further stated that estimation is possible even under Section 143(3) of
the Act. Reliance was placed on the decisions in Seth Gunmukh Singh
v CIT [1944] 12 ITR 393 (Lahore) and Dhakeshwari Cotton Mills v
CIT [1954] 26 ITR 775 (SC). It was submitted that this kind of a defect
is curable under Section 292B of the Act. It was submitted that in the
facts of the case since the INC failed to comply with the terms of notice
under Section 142(1) of the Act, it was open to the AO to make a best



ITA Nos. 145/2001 & 180/2001                                  Page 57 of 71
judgment assessment. Reliance was placed on the decision in CIT v R.
Narayanrao (2011 338 ITR 625 (AP).


116. As has already been noted, the INC failed to comply with the
requirements of the proviso to Section 13A of the Act and was therefore
not eligible to claim exemption from payment of income tax. The INC
failed to produce the authentic and audited consolidated accounts of its
central office and state units which could be said to represent the true
and fair view of its financial affairs. It is also true that by the time the
assessment was completed, the INC could produce only the accounts of
its central office and 14 state units. The question that arises is whether,
in such circumstances, an AO could have resorted to best judgment
assessment?


117. As rightly pointed out by Mr Aggarwal, estimation of income of a
political party is different from estimation of income of other taxable
entities. It is not possible to even reasonably guess what could be the
contribution to a political party in a given year because a variety of
factors are involved. In an election year, closer to the actual dates of
election, and because of the extraordinary efforts made by members of a
political party, the extent of voluntary contributions might show a
marked increase. In a year which is not an election year, the
contributions might show a decline. Again, this will depend on whether
the party is in power in a certain state. Even in such case, the anti-
incumbency factor, and when that might surface are all matters of
speculation.

ITA Nos. 145/2001 & 180/2001                                    Page 58 of 71
118. The types of elections held would also have a bearing on the
income of the party. For e.g., elections to the Parliament would require a
different level of activity when compared to elections to a state
Legislative Assembly or to a local body. Also the profile of the
contributors may determine the size and frequency of the contribution.
For instance, just a few corporate entities could make a very sizeable
donation to a political party compared to a political party which has a
large number of individual donors. Therefore, there are too many
imponderables that make the task of estimating, with a degree of
certainty, the income of a political party extremely difficult. This kind of
an exercise would require collating a vast amount of data which as of
now does not exist in the public domain particularly with political
parties resisting attempts at bringing them within the ambit of the Right
to Information Act, 2005. Although accounts have to be furnished by
candidates to the Election Commission of India, that per se cannot form
a reliable source of estimation of the voluntary contributions that may be
made to a political party.


119. As far as the Act is concerned, there is at present a lacuna
inasmuch as upon failure of a political party to comply with Section 139
(4B) of the Act in letter and spirit, and with auditors not discharging
their statutory obligation, the income tax authority is hamstrung by the
lack of reliable data on which to base a reasonably accurate estimation
of income of a political party.



ITA Nos. 145/2001 & 180/2001                                    Page 59 of 71
120. Turning to the facts of present case, there is no basis indicated by
the AO for estimating the figure of voluntary contributions received by
the state units during AY 1994-95 at Rs 15 crores. It appears to have
been 'pulled out of the hat'. The Court is, therefore, unable to sustain that
estimation. To that extent, the ITAT is right.


121. The question that then arises is whether the ITAT ought to have
remanded the matter to the AO for re-computing the INC's taxable
income for the Ay 1994-95? Here the Court would like to recapitulate
that we are dealing with AY 1994-95 and the current year is 2016. What
was unable to produced in these 22 years cannot suddenly be produced
by the INC even if the matter is sent back to the AO at this stage. It
would be a futile exercise particularly since even the so-called audited
accounts of the INC, submitted on 4th November 1997 at the stage of
the appeal before the CIT (A), are not reliable. The AO would be
unable, in the circumstances, to determine the possible extent of
voluntary contributions received by the state units.


122. However, as far as the present case is concerned since it is
impossible to meaningfully of estimate the income by way of voluntary
contributions made to state units, the Court sees no purpose in
remanding the matter to the AO for that purpose. The impugned order of
the ITAT to the extent it remands the matter to the AO is hereby set
aside. Consequently all proceedings consequent upon such remand are
rendered non-est.



ITA Nos. 145/2001 & 180/2001                                     Page 60 of 71
Expenditure of a political party
123. Here it is important to address another submission made on behalf
of the Revenue which finds favour with the Court. Under the head
`income from other sources', no expenditure can be allowed as a
deduction on the ground that the expenditure has been incurred by a
political party for attaining the aims and objects of political party. As
rightly pointed out, the only deduction is under Section 57(iii) of the Act
and this cannot be granted since the INC did not place on record the
factual basis for such a claim.


124. The legal position is that no deduction can be allowed with respect
to the expenditure incurred by the political party for any purpose
whatsoever if it fails to comply with the basic requirements of Section
13A of the Act.


125. Therefore, the only way to proceed in the present matter is to
wholly disallow the expenditure claimed by the INC as relatable to
`income from other sources'. On the receipts side, the Revenue will
simply have to go by whatever is disclosed by the INC as income by
way of voluntary contributions in the return as originally filed and treat
that as income from other sources.


126. Consequently, the Court disagrees with the decision of the CIT (A)
restricting the expenditure of the Assessee to 60% of the amount
claimed and order of the CIT (A) and the ITAT to that extent are set
aside.

ITA Nos. 145/2001 & 180/2001                                   Page 61 of 71
Comparison with a Trust misplaced
127. The ITAT was in error in proceeding to draw a comparison
between the Assessee and a charitable trust under Section 11 of the Act
The question of a political party carrying out any charitable activity
within the meaning of Section 2(15) of the Act does not arise. Further,
there was no factual basis to support such a plea at any stage of the
proceedings. Further the ITAT was required to examine the
memorandum and rules and regulations of the Assessee to determine
whether any of its objects fall within the scope of "any other object of
general public utility". Since the dominant purpose of a political party is
political activity, it cannot be brought under the expression `any other
object of general public utility.'


Interest
128. While deleting the interest under Section 234A and 234B of the
Act, the ITAT relied on the judgment of the Patna High Court in Ranchi
Club v. CIT (1996) 217 ITR 72 (Pat) against which an SLP was
dismissed by a one line order in CIT v Ranchi Club, [2001] 247 ITR
209. However, recently in Commissioner of Income Tax v. Bhagat
Construction Co. Pvt. Ltd. [2015] 279 CTR 185 (SC), the decision in
Ranchi Club Ltd. v. Commissioner of Income Tax (supra) has been
overruled. The consequent legal position is that notwithstanding that the
AO may not have separately dealt with the issue of interest in the
assessment order, interest can nevertheless be charged on the tax amount
due under Section 234A and 234B of the Act. Consequently, the
decision of the ITAT on this aspect is set aside.
ITA Nos. 145/2001 & 180/2001                                   Page 62 of 71
Summary of conclusions
129. It is necessary at this stage for the Court to summarise its
conclusions:


(i) For understanding and interpreting Section 13A of the Act, it would
serve no purpose to compare it with Section 11 of the Act which applies
to Trusts.


(ii) Section 13A of the Act is not a computation section. Income by way
of voluntary contributions would be excluded only subject to fulfilment
of the conditions stipulated under Section 13A of the Act.


(iii) It could never have been the legislative intention that voluntary
contributions received by a political party that does not satisfy the
requirement of Section 13A of the Act - viz., maintaining books of
accounts, keeping a record of voluntary contributions in excess of
Rs.10,000 (now enhanced to Rs. 20,000) and getting the accounts
audited - would be exempt from tax. In such event, the income of a
political party by way of voluntary contributions would be included in
the taxable income. Voluntary contributions are not capital receipts.


(iv) Clause F of Section 14 of the Act is a residuary provision. An
income which is not to be excluded from the total income and is not
chargeable to income tax under heads A to E, has to be treated as
`income from other sources'. If the total income by way of voluntary

ITA Nos. 145/2001 & 180/2001                                  Page 63 of 71
contributions of a political party cannot be excluded from its total
income because such political party has not complied with any of the
conditions in the proviso to Section 13A of the Act, then by virtue of
Section 56(1) of the Act, such income by way of voluntary contribution
would be `income from other sources' under Section 56(1) of the Act.


(v) The mere fact that income by way of voluntary contribution of a
political party is not deemed to be income under Section 2(24)(iia) of
the Act, does not place it outside the purview of 'income from other
sources.'


(vi) Donations to a political party may be made for a variety of reasons
and is an act of participation in a democracy. The known tests for
determining `income' are, therefore, inadequate for determining whether
the voluntary contribution in the hands of a political party is in fact
`income'.


(vii) The requirement of maintaining audited accounts and furnishing
those accounts in terms of the proviso to Section 13A of the Act is not
merely directory.


(viii) It is with a view to placing a check on the financial transactions of
political parties that the proviso to Section 13A was enacted. In this
context, the object of Section 13A of the Act will be defeated if the
requirements of the proviso thereto are held not to be mandatory.



ITA Nos. 145/2001 & 180/2001                                    Page 64 of 71
(ix) The conditionality attached to Section 13A must be strictly
construed. If a political party seeks exemption from payment of income
tax in a given AY, it is incumbent on the political party to strictly
comply with each of the requirements in the proviso to Section 13A. At
the highest, the compliance has to be by the time the assessment is
completed but certainly not thereafter.


(x) The INC failed to demonstrate sufficient cause in terms of Rule
46A(1)(b) and 46A(1)(c) of the Rules. The CIT(A) was correct in
holding, and the ITAT in affirming, that the INC failed to make out a
case for tendering additional evidence in the form of the consolidated
audited accounts at the appellate stage.


(xi) The final audited accounts tendered at the appellate stage contained
various discrepancies and shortcomings. The auditor's report submitted
before the CIT (A) on 4th November 1997 is woefully short of the
requirement of the law.


(xii) Since the INC failed to place before the AO, or even before the CIT
(A), acceptable audited accounts, from which the AO could deduce the
taxable income of the assessee, the mandatory requirement of the
proviso to Section 13A of the Act was not fulfilled by the INC.


(xiii) With the Revenue having preferred an appeal before this Court
against the impugned order of the ITAT, all further proceedings
consequent upon the remand to the AO were subject to the outcome of

ITA Nos. 145/2001 & 180/2001                                 Page 65 of 71
the present appeal. It is, therefore, to no avail as far as the INC is
concerned, that in the remand proceedings the AO relied on the audited
accounts submitted by the INC at the appellate stage.


(xiv) The rule of consistency cannot be applied to condone the violation
of the law by the INC.


(xv) There is no basis indicated by the AO for estimating the figure of
voluntary contributions received by the state units during AY 1994-95 at
Rs 15 crores and therefore the above estimation cannot be sustained.
However, it would be futile to remand the matter to the AO for such
estimation as the submitted accounts are not reliable and it is not
possible to even reasonably guess what could be the contribution to a
political party in a given year because of the variety of factors involved.


(xvi) The expenditure claimed by the INC as relatable to `income from
other sources' is disallowed. On the receipts side, the Revenue will
simply have to go by whatever is disclosed by the INC as income by
way of voluntary contributions in the return as originally filed and treat
that as income from other sources. Consequently, the decision of the
CIT (A) and the ITAT restricting the expenditure of the INC to 60% of
the amount claimed are set aside.


(xvii) Subsequent to the decision of the Supreme Court in
Commissioner of Income Tax v. Bhagat Construction Co. Pvt. Ltd.
[2015] 279 CTR 185 (SC) interest can be charged on the tax amount due

ITA Nos. 145/2001 & 180/2001                                    Page 66 of 71
under Sections 234A and 234B of the Act, even if the same was not
separately dealt with in the assessment order. The decision of the ITAT
on this aspect is set aside.


Answers to the questions in the Revenue's appeal
130. The Court answers the questions framed by the order dated 3 rd
January 2002 in ITA 145/2001 as under:


Question No.1 is answered by holding that the Assessee INC was not
entitled to any exemption in respect of the disclosed income by way of
voluntary contributions i.e., Rs.25,12,68,081-Rs.15,00,00,000 (the latter
amount being the estimate by the AO which has been set aside by this
Court).


Question No.2 is answered in the negative by holding that the ITAT
was not justified in restricting the estimate of income to the figure
disclosed by the INC in the books of accounts produced by it.


Question No.3 is answered by holding that the ITAT was not justified
in holding that the objects of a political party fall within the scope of the
expression any other object of general public utility appearing in Section
2(15) of the Act.


Question No.4 is answered by holding that ITAT was not justified in
deleting the interest charged under Section 234A and 234B of the Act.



ITA Nos. 145/2001 & 180/2001                                     Page 67 of 71
Question No.5 (framed as Question No. 3A on 12th November 2014) is
answered by holding that voluntary contributions received by a political
party is in terms of Section 2(24) of the Act read with Section 14(F) and
Section 56(1) of the Act taxable as `income from other sources'. The
corresponding expenditure incurred by a political party for attaining
aims and objects of the party cannot be allowed as a deduction since it is
not provided under Section 57 of the Act except to the extent that a
political party is able to demonstrate that it is able to claim a deduction
under Section 57(iii) of the Act. However any such expenditure can be
allowed as a deduction, only if the conditions of the first proviso to
Section 13A of the Act are cumulatively satisfied by the political party.


Question No. 6 (framed on 8th December 2015) is answered by holding
that when the voluntary contributions received by a political party does
not satisfy the requirement of Section 13A of the Act - viz., maintaining
books of accounts, keeping a record of voluntary contributions in excess
of Rs. 10,000 and getting the accounts audited, such voluntary
contributions would be included in the taxable income under the head
"income from other sources"


Answers to the questions in the Assessee's appeal
131. Now the Court proceeds to answer the questions that have been
framed in ITA 180/2001 by the order dated 8th December 2015:


Question No.1 is answered in the affirmative by holding that the ITAT
was correct in law in holding that the audited accounts filed by the INC

ITA Nos. 145/2001 & 180/2001                                   Page 68 of 71
before the CIT (A) could not be accepted as evidence since they were
not audited till the assessment was framed and, therefore, the INC was
not entitled to exemption under Section 13A of the Act.


Question No.2 is answered in the affirmative by holding that the ITAT
was justified in denying exemption to the INC under Section 13A of the
Act and refusing to condone the delay that had occurred in the audit of
some of the state units.


Question No.3 is answered in the affirmative by holding that the ITAT
was right in its conclusion that the INC failed to fulfil the three
conditions envisaged under clauses (a), (b) and (c) of Section 13A of the
Act.


132. The impugned order dated 9th April 2001 of the ITAT in ITA Nos.
4181/Del/98 and 5100/Del/98 for AY 1994-95 and the corresponding
order dated 31st March 1997 of the AO and the order dated 8th July
1998 of the CIT (A) shall stand modified in terms of this judgment. It is
clarified that the inasmuch as this Court has set aside the impugned
order of the ITAT to the extent it has remanded the proceedings to the
AO, the orders passed on remand by the AO, the CIT (A) and the ITAT
do not survive.


133. The appeals of the INC and the Revenue are disposed of in the
above terms. There shall be no order as to costs.



ITA Nos. 145/2001 & 180/2001                                  Page 69 of 71
Postscript
134. This case demonstrates the need for a slew of legislative measures
that need to be put in place for an effective check on the influence of
money on the electoral process. Recently in Ashok Shankarrao Chavan
v. Madhavrao Kinhalkar (2014)7 SCC 99 the Supreme Court observed:
       "48. It is common knowledge as is widely published in the Press
       and Media that nowadays in public elections payment of cash to
       the electorate is rampant and the Election Commission finds it
       extremely difficult to control such a menace. There is no
       truthfulness in the attitude and actions of the contesting
       candidates in sticking to the requirement of law, in particular to
       Section 77 and there is every attempt being made to violate the
       restrictions imposed in the matter of incurring election expenses
       with a view to woo the electorate concerned and thereby, gaining
       their votes in their favour by corrupt means viz by purchasing the
       votes..."

135. In its 255th Report on 'Electoral Reforms' submitted in March 2015
the LCI has suggested several changes to the RP Act, the Companies
Act 1956 as well as the Act. Among the significant changes suggested is
that "only up to Rs. twenty crore or twenty per cent of the total
contribution      of   a       political   party's   entire   collection     (whether
cash/cheque), whichever is lesser, can be anonymous. Apart from this,
the details and amounts of all donations and donors (including PAN
cards, wherever applicable) need to be disclosed by political parties,
regardless of their source or amount." The other significant
recommendations are that (i) each recognised political party should
maintain accounts clearly and fully disclosing all the amounts received
and the expenditure incurred by them (ii) have the accounts audited by a
qualified and practicing chartered accountant from a panel of such

ITA Nos. 145/2001 & 180/2001                                               Page 70 of 71
accountants maintained by the Comptroller and Auditor General of India
(iii) within six months of the close of each financial year submit
accounts to the ECI which shall in turn make them publicly available on
its website and for inspection on the payment of a prescribed fee.


136. Considering that political parties are an essential part of our
democracy and are dealing in large sums of public money, much of
which is unaccounted, the proper auditing of the accounts of the
political parties is both imperative critical to the conduct of free and fair
elections. The above recommendations of the LCI should receive
serious and urgent attention at the hands of the executive and the
legislature if money power should not be allowed to distort the conduct
of free and fair elections. This will in turn infuse transparency and
accountability into the functioning of the political parties thereby
strengthening and deepening democracy.




                                                    S. MURALIDHAR, J



                                                    VIBHU BAKHRU, J
MARCH 23, 2016
Rk/b'nesh/dn




ITA Nos. 145/2001 & 180/2001                                     Page 71 of 71

 
 
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