J.C.I.T., Range-3, Etah V. Om Sarla Babu Educational Trust, Hathras

ITA 158/AGR/2013

• Counselvise Citation: 15820314 RSA 2013
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-12-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 13-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Section: 10; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO. 158/AGRA/ 2013 ASSESSMENT YEAR: 2009-10 JOINT COMMISSIONER OF INCOME TAX (A.O.) VS. OM SARL A BABU EDUCATIONAL RANGE-1, ALIGARH. TRUST, SASNI, HATHRAS. (PAN AAATO 2074 N) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.K. MISHRA, JR. D.R. RESPONDENT BY : NONE DATE OF HEARING : 16.12.2013 DATE OF PRONOUNCEMENT : 20.12.2013 ORDER PER PRAMOD KUMAR, ACCOUNTANT MEMBER: BY WAY OF THIS APPEAL, ASSESSING OFFICER HAS CHALLE NGED THE CORRECTNESS OF CIT(A)S ORDER DATED 27 TH FEBRUARY, 2013, IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2009-10, ON THE FOLLOWING GROUNDS :- 1. THE LD. CIT(A), GHAZIABAD HAS ERRED IN TREATING AS CHARITABLE EDUCATIONAL INSTITUTE AND IN ALLOWING EXEMPTION U/S 10(23C) OF THE I T ACT, 1961 EVEN THOUGH A NUMBER OF OBJECTS OTHER THA N EDUCATIONAL WERE ALSO INCLUDED IN THE OBJECTS CLAUSE. 2. THE CIT(A) ERRED IN TREATING ALL THE DONATIONS A S EXPLAINED AND TOWARDS CORPUS EVEN WHEN IN CASE OF 161 DONATIONS A MOUNTING TO RS.49,99,000/-, EVEN THE IDENTITY OF DONORS WAS NOT ESTABLISHED AT ALL. ITA NO.158 /AGRA/2013 A.Y. 2009-10 2 3. APPELLANT CRAVES LEAVE TO AMEND, ALTER, ADD OR M ODIFY ANY GROUND OR GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF CASE. 2. NONE APPEARED FOR THE ASSESSEE BUT WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTUAL MATRIX OF THE CASE IN THE ALIGHT OF THE APPLICABLE LEGAL P OSITION. 3. AS FAR AS FIRST ISSUE IN APPEAL IS CONCERNED, LE ARNED DEPARTMENTAL REPRESENTATIVE FAIRLY ACCEPTS THAT IT IS COVERED IN FAVOUR OF THE ASSESSEE BY OUR ORDER DATED 29 TH NOVEMBER, 2013 IN THE CASE OF ITO VS. HARDAYAL CHA RITABLE & EDUCATION TRUST (ITA NO.193/AGRA/2013; A.Y. 2009-10 ), WHEREIN IT IS OBSERVED AS FOLLOWS :- 5. LEARNED COUNSEL DOES NOT DISPUTE THE FACTUAL EL EMENTS EMBEDDED IN THE GRIEVANCES RAISED BY THE ASSESSING OFFICER. HE DOES FAIRLY ACCEPT THAT THERE ARE CERTAIN, THOUGH S OMEWHAT GENERALISED, OBJECTS WHICH GO BEYOND THE EDUCATIONA L ACTIVITIES BUT HE POINTS OUT THAT NONE OF THESE OBJECTS HAVE A CTUALLY BEEN IMPLEMENTED. AS SUCH, ACCORDING TO THE LEARNED COUN SEL, THESE NON EDUCATIONAL OBJECTS HAVE BEEN RATHER DORMANT, N EVER IMPLEMENTED AND NOTHING MORE THAN PLAIN RITUALISTIC AND GENERAL OBJECTS. ON THIS BACKDROP OF UNDISPUTED FACTS, HE I NVITES OUR ATTENTION TO THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF NEERAJ JANHITKARI GRAMIN SEWA SANSTH AN VS CCIT [ (2013) 36 TAXMANN.COM 105 (ALLAHABAD)] WHEREIN IT IS, INTER ALIA, HELD THAT WHERE THE SOCIETY IS PURSUING ONLY EDUCATIONAL OBJECTS AND NO OTHER ACTIVITY IS CARRIED OUT, APPLI CATION FOR GRANT OF APPROVAL UNDER SECTION 10 (23 C)(VI) CANNO T BE REJECTED ON THE GROUND THAT ITS AIMS AND OBJECTS CONTAIN SEV ERAL OTHER OBJECTS APART FROM EDUCATIONAL OBJECTS. WHEN IT WAS SO POINTED OUT TO THE LEARNED DEPARTMENTAL REPRESENTATIVE, HE DID NOT HAVE MUCH TO SAY EXCEPT TO PLAY A RATHER BLAND RELIANCE ON THE STAND OF THE ASSESSING OFFICER AND THE GROUND OF APPEAL I TSELF. 6. THE PLEA OF THE LEARNED COUNSEL IS INDEED WELL T AKEN. ONCE HONBLE JURISDICTIONAL HIGH COURT EXPRESSES ITS VIE W TO THE EFFECT THAT ONLY ACTUAL ACTIVITIES OF THE SOCIETY A RE TO BE TAKEN INTO ACCOUNT FOR ITS ELIGIBILITY TO STATUTORY EXEMP TIONS UNDER THE SCHEME OF THE ACT, AND NOT THE OBJECTS AS SET OUT I N ITS TRUST DEED, ITA NO.158 /AGRA/2013 A.Y. 2009-10 3 THE VERY FOUNDATION OF REVENUES GRIEVANCES CEASES TO BE SUSTAINABLE IN LAW. THE DORMANT OBJECTS OF THE SOCI ETY, I.E. THE OBJECTS WHICH HAVE NOT BEEN PURSUED IN REALITY, CAN NOT BE REASON ENOUGH TO DECLINE AN EXEMPTION TO WHICH THE ASSESSEE IS OTHERWISE ENTITLED. IN THIS VIEW OF THE MATTER, WE REJECT THE GRIEVANCES RAISED BY THE ASSESSING OFFICER. 4. AS REGARD THE SECOND ISSUE, I.E. REGARDING GENUI NENESS OF DONATIONS AMOUNTING TO RS.49,99,000/-, LEARNED DEPARTMENTAL R EPRESENTATIVES PRIMARY CONTENTION IS THAT THE RELIEF GIVEN BY THE CIT(A) I S BASED ON SWEEPING GENERALIZATIONS WITHOUT SPECIFICALLY DEALING WITH T HE CASES IN WHICH EVEN BASIC DETAILS SUCH AS PAN NOS., ADDRESSES ETC. WARE NOT A VAILABLE AND WHICH HAVE BEEN RECEIVED IN CASH. 5. HAVING HEARD THE LEARNED DEPARTMENTAL REPRESENTA TIVE AND HAVING PERUSED THE MATERIAL ON RECORD, WE DO SEE MERITS IN GRIEVAN CE OF THE APPELLANT. LEARNED CIT(A) HAS HIMSELF ACCEPTED THAT IN SOME CASES, WHI CH HE ESTIMATES AT 5%, THE REQUISITE DETAILS ARE NOT AVAILABLE AND DONATION AR E IN CASH, BUT HE DOES NOT SPECIFICALLY DEAL WITH THE SAME. THE OBSERVATIONS MADE BY THEM ARE RATHER VAGUE. WE, THEREFORE, DEEM IT FIT AND PROPER TO REMIT THIS ISSUE FOR FRESH ADJUDICATION, BY WAY OF A SPEAKING ORDER ON MERITS, BY THE CIT(A). 6. GROUND NO.2 IS THUS ALLOWED FOR STATISTICAL PURP OSES. 7. IN THE RESULT, APPEAL IS PARTLY ALLOWED FOR STAT ISTICAL PURPOSES IN THE TERMS INDICATED ABOVE. (ORDER PRONOUNCED IN THE OPEN COURT ON 20.12.2013) SD/- SD/- (BHAVNESH SAINI) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* DATE: 20.12.2013 ITA NO.158 /AGRA/2013 A.Y. 2009-10 4 COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY