Ahinsa Education and Health Trust, Hyderabad V. DIT (Exemptions), Hyderabad

ITA 1408/HYD/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74592 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 28-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P SOMASEKHAR R EDDYDR
• Assessee Lawyers: LAXMINIVAS SHARMA
• Keywords: Charitable institution; Competent authority
• Section: 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.1408/HYD/2013 AHINSA EDUCATION AND HEALTH -V- DIT (E) TRUST, HYDERABAD. HYDERABAD. PAN:AADTA7614D (APPELLANT) (RESPONDENT) APPELLANT BY SHRI LAXMINIVAS S HARMA RESPONDENT BY SHRI P. SOMASEKHAR R EDDY(DR) DATE OF HEARING 20-02-2014 DATE OF PRONOUNCEMENT 20-02-2014 ORDER PER SAKTIJIT DEY, J.M: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER DATED 27-8-2013 OF DIT(E) PASSED IN F.NO.DIT(E)/12(02)12A &80G/12-13 . 2. THE GRIEVANCE OF THE ASSESSEE IN GROUND NOS. 1 A ND 2 IS AGAINST THE ORDER PASSED BY THE DIT (E) IN GRANTING REGISTRATION TO THE ASSESSEE U/S 12AA AS A RELIGIOUS TRUST. 3. FACTS IN BRIEF ARE, THE ASSESSEE TRUST WAS CREA TED AS A PUBLIC CHARITABLE TRUST ON 2-11-2012 BY VIRTUE OF A REGIST ERED TRUST DEED WITH THE FOLLOWING AIMS AND OBJECTS:- 2 ITA NO.1408 OF 2013 AHINSA EDUCATION AND HEALTH TRUST, HYD. III. AIMS AND OBJECTS THE TRUSTEES SHALL BE AT LIBERTY TO APPLY THE NET I NCOME OR INTEREST OF THE FUNDS AND SO MUCH OF THE CORPUS OF THE TRUST AS THEY SHALL, IN THEIR ABSOLUTE DISCRETION, THINK FIT FOR ALL OR ANY OF THE FOLLOWING PURPOSE OR OBJECTS I.E. TO SAY: I) EDUCATION: A) OPENING, STARTING, CONDUCTING, PARTICIPATING, MAINT AINING SCHOOLS, COLLEGES, LIBRARIES, HOSTELS AND OTHER EDUCATIONAL AND /OR SKILL DEVELOP MENT INSTITUTIONS. B) RENDERING HELP, SCHOLARSHIP, ASSISTANCE TO DESERVIN G PERSONS AND POOR AND NEEDY WITHOUT ANY RESTRICTIONS OF CASTE CREED OR RELIGION ETC. C) RENDERING FINANCIAL ASSISTANCE TO EDUCATIONAL INSTI TUTIONS, SCHOOLS, COLLEGES, UNIVERSITIES, LIBRARIES BY WAY OF DONATION OR SUBSCRIPTION. TO BUILD OR ASSIST IN BUILDING. TAKE POSSESSION, AL TER AND IMPROVE, MAINTAINING AND OPERATING EDUCATIONAL INSTITUTIONS, HOSTELS AND LIBRARIES. MEDICAL AND HEALTH: TO RENDER HELP AND ASSISTANCE TO DESERVING PERSONS FOR MEDICAL TREATME NT AND MAINTAIN GOOD HEALTH . A) RENDERING FINANCIAL ASSISTANCE TO HOSPITALS, CLINIC S, HEALTH CARE CENTERS, BY WAY OF DONATION OR SUBSCRIPTIONS FOR TREATMENT OF THE POOR AND NEED Y WITHOUT ANY DISCRIMINATION OF CASTE, CREED, RELIGION ETC. B) TO BUILD OR ASSIST IN BUILDING, TAKE POSSESSION, AL TER AND IMPROVE, MAINTAINING AND OPERATING MEDICAL INSTITUTIONS, RESEARCH CENTRES. C LINICS, NURSING HOMES, MATERNITY HOMES, SANATORIUMS, DISPENSARIES, AND OTHER FACILITIES FOR RENDERING MEDICAL AND HEALTH CARE TO GENERAL PUBLIC. II) SENIOR CITIZENS AND OTHERS: A) TO CONSTRUCT AND MANAGE AND RUN THE HOME FOR THE AG ED PERSONS WIDOWS, DESTITUTE, ORPHANS, HANDICAPPED OR POOR AND NEEDY PERSONS IN T HE NEED AND PROVIDED THEM WITH FACILITIES, MEDICAL SUPPORT AND OTHER NEEDFUL THING S TO LAKE CARE AND DO THE THINGS FOR THEIR RELIEF AND UPLIFT. III) PHYSICAL NEEDS: A) WITHOUT ANY DISCRETION OF CASTE, CREED, RELIGION ETC., TO GIVE AID TO DESERVI NG OR POOR NEEDY PERSONS IN THE SHAPE OF MONEY, CLOTHES, ARTICLES OR PROVIDING THEM WITH FOOD OR SHELTER. B) TO GIVE RELIEF TO PEOPLE IN DISTRESS CAUSED BY ELEM ENTS OF NATURE SUCH AS FAMINE, TEMPEST, FLOOD, EARTHQUAKE OR ANY OTHER NATURAL CALAMITY. C) TO BUILD OR ASSIST IN BUILDING, TAKE POSSESSION, AL TER AND IMPROVE, MAINTAINING AND OPERATING DHARMSALAS, CHOULTRIES , WADI, ANADH ASHR AMS, SADVRAT OR SUCH OTHER INSTITUTIONS AND OTHER FACILITIES FOR RENDERING CAR E TO GENERAL PUBLIC. 3 ITA NO.1408 OF 2013 AHINSA EDUCATION AND HEALTH TRUST, HYD. IV) RURAL DEVELOPMENT AND SOCIAL WELFARE: TO UNDERTAKE, CARRYOUT, PROVIDE AND SPONSOR RURAL D EVELOPMENT INCLUDING PROGRAMMES FOR PROMOTING THE SOCIAL AND ECONOMIC WELFARE FOR THE U PLIFT OF THE PUBLIC IN ANY RURAL AREA AND TO INCUR ANY EXPENDITURE ON ANY PROGRAMME. V) OTHERS: A) DIGGING WELLS AND MAINTAINING EXISTING WELLS AND OT HER WATER SUPPLY FACILITIES TO GENERAL PUBLIC. B) PROMOTE SPORTS, MUSIC, ART, LITERATURE AND OTHER RECREATIONAL ACTIVITIES SUCH A S REST HOUSES, PARKS ETC FOR PUBLIC BENEFIT C) TO ESTABLISH, SUPPORT, MAINTAIN AND AID BOARDING HO USES AND HOSTELS AND OTHER INSTITUTIONS FOR BOARDING, LODGING OF NEEDY DESERVING STUDENTS. D) TO ORGANIZE LECTURES OR SEMINARS OR MAKE PUBLICATIO N OF ANY BOOKS, LITERATURE, NEWS PAPERS ERE FOR PROMOTION OF THE OBJECTS OF THE TRUST AND F OR NATIONAL INTEGRATION. E) TO PURCHASE, TAKE ON LEASE OR EXCHANGE, HIRE OR OTH ERWISE ACQUIRE ANY REAL OR PERSONNEL PROPERTY OR RIGHTS AND PRIVILEGES WHICH THE TRUSTEE S MAY THINK NECESSARY FOR THE PROMOTION OF THE OBJECTS OF THE TRUST F) THE TRUSTEES MAY UTILIZE THE INCOME OF THE TRUST FO R OTHER PURPOSES BENEFICIAL TO THE GENERAL PUBLIC NOT FALLING UNDER ANY OF THE FOREGOING PURPO SE G) TO DO ALL SUCH OTHER THINGS AS SHALL FURTHER THE AT TAINMENT OF THE OBJECTS OF THE TRUST. 5. THE TRUST APPLIED IN THE PRESCRIBED MANNER FOR REGISTRATION U/S 12A OF THE ACT BEFORE THE DIT (E) ON 11-2-2013. THE DIT (E) VIDE ORDER DATED 27-8-2013 ALSO GRANTED REGISTRATION U/S 12AA OF THE ACT TO THE ASSESSEE. HOWEVER, WHILE DOING SO THE DIT ( E) IN PARAGRAPH- 2 OF HIS ORDER HELD AS UNDER:- ACCORDINGLY, THE SAID TRUST IS HEREBY REGISTERED AS A RELIGIOUS TRUST IN THE REGISTER MEANT FOR APPLICATI ON IN FORM NO.10A VIDE F.NO.DIT(E)/12(02)/12A & 80G/12-13. TH IS REGISTRATION IS GRANTED WITH EFFECT FROM 11-2-2013 ONWARDS. 4 ITA NO.1408 OF 2013 AHINSA EDUCATION AND HEALTH TRUST, HYD. AGGRIEVED BY THE AFORESAID OBSERVATION OF THE DIT ( E) IN TREATING IT AS A RELIGIOUS TRUST, ASSESSEE IS BEFORE US. 6. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI ALS ON RECORD. THE LEARNED AR REFERRING TO THE AIMS AND O BJECTS OF THE TRUST AS MENTIONED IN THE TRUST DEED SUBMITTED THA T THE TRUST IS PURELY A PUBLIC CHARITABLE TRUST AND NOT A SINGLE O BJECT IS OF RELIGIOUS NATURE. HE THEREFORE PLEADED FOR ISSUING NECESSARY DIRECTION TO THE DIT (E) FOR TREATING THE TRUST AS A PUBLIC CHARITAB LE TRUST INSTEAD OF A RELIGIOUS TRUST. ON GOING THROUGH THE AIMS AND O BJECTS OF THE TRUST REPRODUCED HEREINABOVE, WE DO NOT FIND EVEN A SINGLE OBJECT OF RELIGIOUS NATURE. ON THE CONTRARY, THE OBJECTS ARE OF PURELY CHARITABLE NATURE. WE THEREFORE DIRECT THE DIT (E) TO MODIFY HIS ORDER PASSED U/S 12AA BY REGISTERING THE ASSESSEE A S A PUBLIC CHARITABLE TRUST INSTEAD OF RELIGIOUS TRUST. THE G ROUNDS RAISED ARE ALLOWED. 7. THE ASSESSEE HAS ALSO RAISED THE FOLLOWING ADDIT IONAL GROUND:- THE DIT (E) ERRED IN DIRECTING THE TRUST TOP OBTAIN THE REGISTRATION FROM THE COMPETENT AUTHORITY OF GOVERN MENT OF ANDHRA PRADESH U/S 43 OF THE ANDHRA PRADESH CHARITA BLE AND HINDU RELIGIOUS INSTITUTIONS AND ENDOWMENTS ACT, 19 87, WHERE THE SAME IS NOT PRESCRIBED IN THE INCOME TAX ACT. SINCE THE ISSUE RAISED IN THE ADDITIONAL GROUND IS A LEGAL ISSUE AND CAN BE DECIDED ON THE BASIS OF MATERIALS ON RECORD, WE ADM IT THE ADDITIONAL GROUND AND PROCEED TO DECIDE THE SAME. WHILE GRANTI NG REGISTRATION U/S 12AA OF THE ACT, THE DIT (E) IN PARAGRAPH-9 OF HIS ORDER OBSERVED THAT THE TRUST SHOULD OBTAIN REGISTRATION FROM COMPETENT AUTHORITY U/S 43 OF ANDHRA PRADESH CHARITABLE & HINDU RELIGIOUS INSTITU TIONS & ENDOWMENTS ACT, 1987. FURTHER HE DIRECTED THE TRUST TO FURNIS H A COPY OF SUCH 5 ITA NO.1408 OF 2013 AHINSA EDUCATION AND HEALTH TRUST, HYD. REGISTRATION WITHIN A PERIOD OF SIX MONTHS. FOR TH IS PURPOSE, THE DIT (E) RELIED UPON DECISION OF HONBLE SUPREME COURT IN CA SE OF BIHARILAL JAISWAD AND OTHERS VS. CIT & OTHERS(217 ITR 746) AND OF HON BLE ANDHRA PRADESH HIGH COURT IN CASE OF M/S NEW NOBLE EDUCATIONAL SOC IETY VS. CHIEF COMMISSIONER OF INCOME-TAX (334 ITR 303). HAVING C ONSIDERED THE SUBMISSIONS OF THE PARTIES, WE ARE OF THE VIEW THAT THE DIT (E) WAS NOT CORRECT IN DIRECTING THE ASSESSEE TO OBTAIN REGIS TRATION/S 43 OF THE ANDHRA PRADESH CHARITABLE & HINDU RELIGIOUS INSTITU TIONS AND ENDOWMENTS ACT, 1987. WHEN THE PROVISIONS CONTAINED U/S 12A RE AD WITH SEC. 12AA OF THE ACT DO NOT MANDATE OBTAINING OF SUCH REGISTRATI ON AS A CONDITION PRECEDENT FOR REGISTRATION U/S 12A, THE DIT (E) CAN NOT INSIST UPON SUCH REGISTRATION. DIFFERENT BENCHES OF THE TRIBUNAL IN CLUDING THE HYDERABAD BENCHES HAVE ALSO EXPRESSED THE VIEW THAT FOR GRANT OF REGISTRATION U/S 12A OF THE ACT IT IS NOT NECESSARY FOR A TRUST TO G ET REGISTERED UNDER THE ANDHRA PRADESH CHARITABLE & HINDU RELIGIOUS INSTITU TIONS & ENDOWMENTS ACT, 1987. THE DECISIONS RELIED UPON BY THE DIT (E ) ARE TOTALLY INAPPLICABLE TO A CASE OF GRANT OF REGISTRATION/S 1 2A OF THE ACT. THEREFORE, WE DIRECT THE DIT (E) NOT TO INSIST UPON OBTAINING REGISTRATION U/S 43 OF THE ANDHRA PRADESH CHARITABLE & RELIGIOUS INSTITUTIONS ENDOWMENTS ACT, 1987. THIS GROUND IS ALSO ALLOWED. 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 20-02-2014. SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER SD/ - (SAKTIJIT DEY) JUDICIAL MEMBER HYDERABAD, DATED THE 20 TH FEBRUARY, 2014. JMR* 6 ITA NO.1408 OF 2013 AHINSA EDUCATION AND HEALTH TRUST, HYD. COPY TO:- 1) AHINSA EDUCATION AND HEALTH TRUST, SAGAR CO-OPERATI VE SOCIETY LIMITED, ROAD NO.2, BANJARA HILLS, HYDERABA D. 2) DIT (E), BASHEERBAGH, HYDERABAD. 3) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABA D.