Asstt. Commissione of Income Tax 1, Kanpur V. M/s.Kanpur Subhash Shiksha Samiti, Kanpur

ITA 193/LKW/2012

• Counselvise Citation: 19323714 RSA 2012
• Duration Of Justice: 1 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 13-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 13-04-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: S K JAIN; AWARN SINGH
• Keywords: Charitable institution
• Section: 12A; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKN BENCH A : LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A. K. GARODIA , ACCOUNTANT MEMBER I.T.A. NO. 193 /LKW/201 2 ASSESSMENT YEAR :2008 - 2009 A.C.I.T. - 1, VS. M/S KANPUR SUBHASH SHIKSHA SAMITI, KANPUR. 127/470, SAKET NAGAR, KANPUR. PAN:AAATK6164B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ALOK MITRA, D.R. RESPONDENT BY : S/SHRI AWARN SINGH & S. K. JAIN DATE OF HEARING : 13 / 11 /2013 DATE OF PRONOUNCEME NT : 07/01/2014 ORDER PER SUNIL KUMAR YADAV: TH IS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF CIT(A) , MAINLY ON TWO GROUNDS, WHICH ARE AS UNDER: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.20,42,591/ - ON ACCOUNT OF EXCESS OF INCOME OVER EXPENDITURE WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE 2 ADDITION OF RS.32,59,520/ - ON ACCOUNT OF CORPUS DONATION WITHOUT APPRECIATING THE FACTS BROUGHT ON R ECORD BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 2. APROPOS GROUND NO. 1, IT HAS BEEN CONTENDED ON BEHALF OF THE ASSESSEE THAT THIS GROUND IS SQUARELY COVERED BY THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006 - 07. COPY OF THE ORDER IS PLACED ON THE RECORD. IT WAS ALSO CONTENDED THAT THE CIT(A) HAS ADJUDICATED THE ISSUE FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL. THESE FACTS WERE NOT DISPUTED BY THE REVENUE. 3. HAVING CAREFULLY EXAMINED THE ORDERS OF THE AUTHORITIES BELOW AND THE DOCUMENTS PLACED ON RECORD, IT IS NOTICED THAT THE ASSESSEE WAS REGISTERED U/S 12A OF THE ACT AND THE REGISTRATION WAS GRANTED WITH EFFECT FROM 01/04/1996. THE ASSESSEE SOCIETY WAS ENGA GED IN CHARITABLE ACTIVITY OF ADVANCEMENT OF EDUCATION AND WAS RUNNING EDUCATIONAL INSTITUTIONS NAMELY SUBHASH INSTITUTE OF SOFTWARE TECHNOLOGY, SUBHASH BALIKA INTER COLLEGE AND SUBHASH PUBLIC SCHOOL. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSES SING OFFICER HAS NOTED THAT THE LOAN OF RS.1,28,06,709/ - WAS GIVEN TO RAM LAKHAN SHIKSHA SAMITI DURING FINANCIAL YEAR 2002 - 03 WHICH WAS OUTSTANDING AS ON 31/03/2008. RAM LAKHAN SHIKSHA SAMITI IS ANOTHER CHARITABLE SOCIETY ESTABLISHED FOR THE ADVANCEMENT O F EDUCATION AND THE REGISTRATION U/S 12A OF THE ACT WAS GRANTED WITH EFFECT FROM 01/04/2004. THE ASSESSING OFFICER HAD DENITED THE EXEMPTION U/S 11 OF THE ACT TO THE APPELLANT AND ASSESSED THE TOTAL INCOME OF THE ASSESSEE AT RS.53,02,110/ - AFTER INCLUDING THE CORPUS DONATION OF RS.32,59,520/ - . THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) AND EMPHATICALLY ARGUED THAT THE ADVANCEMENT OF LOAN TO RAM 3 LAKHAN SHIKSHA SAMITI DURING THE FINANCIAL YEAR 2002 - 03 WAS ALREADY CONSIDERED BY THE TRIBUNAL WHILE PAS SING AN ORDER FOR ASSESSMENT YEAR 2006 - 07 HOLDING THAT THE TEMPORARY LOAN WAS GIVEN BY THE ASSESSEE TO ANOTHER SOCIETY HAVING SIMILAR OBJECTS AND NOTHING WAS BROUGHT ON RECORD BY THE ASSESSING OFFICER TO SHOW THAT THE LOAN WAS OUT OF THE ACCUMULATED SURPLU S OF THE YEAR UNDER CONSIDERATION. THEREFORE, PROVISION OF SECTION 13(1)(D) WAS NOT APPLICABLE. 4. AGGRIEVED, THE REVENUE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL. DURING THE COURSE OF HEARING, LEARNED D.R. ADMITTED THAT THE IMPUGNED ISSUE IS COVERED BY THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2006 - 07 IN WHICH UNDER SIMILAR SET OF FACTS, THE TRIBUNAL HAS ALLOWED EXEMPTION U/S 11 OF THE ACT DESPITE THE ADVANCEMENT OF LOAN OF RS.1,28,06,709/ - TO RAM LAKHAN SHIKSHA SAMITI DURING FINANCIAL YEAR 2 002 - 03. SINCE THE TRIBUNAL HAS TAKEN A PARTICULAR VIEW IN FAVOUR OF THE ASSESSEE, WE FIND NO JUSTIFICATION TO TAKE A CONTRARY VIEW UNDER SIMILAR SETS OF FACTS. WE ACCORDINGLY FOLLOWING THE ORDER OF THE TRIBUNAL, DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSE E. WE, THEREFORE, FIND NO INFIRMITY IN THE ORDER OF CIT(A) AND CONFIRM THE SAME. 5. THE ANOTHER GROUND RAISED BY THE REVENUE IS WITH REGARD TO DELETION OF ADDITION OF RS. 32,59,520/ - ON ACCOUNT OF CORPUS DONATION WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER. IN THIS REGARD WE HAVE NOTICED THAT THE ASSESSING OFFICER HAS MADE THE ADDITION HAVING OBSERVED THAT THE CORPUS DONATION IS INCLUDED TO THE INCOME OF THE ASSESSEE IN VIEW OF THE PROVISION OF SECTION 2(24)(IIA) OF THE ACT. THOUGH THE ASSESSEE HAD RAISED THIS GROUND BEFORE THE CIT(A) AS GROUND NO. 5 BUT THE CIT(A) HAS NOT ADJUDICATED THIS GROUND IN HIS ORDER. HE HOWEVER, 4 GRANTED THE ENTIRE RELIEF TO THE ASSESSEE. NOW THE LEARNED D.R. HAS CONTENDED THAT AS PER SECTION 12 O F THE ACT, A DONATION TOWARDS CORPUS CAN ONLY BE EX CLUDED FROM THE INCOME DERIVED FROM THE PROPERTY HELD UNDER TRUST WHOLLY FOR CHARITABLE PURPOSES. TO MAKE THE DONATION/ CONTRIBUTION TOWARDS CORPUS THE DONOR HAS TO MAKE HIS INTENTION CLEAR THROUGH SOME DO CUMENTARY EVIDENCE THAT THE DONATION WAS MADE FOR CORPUS. BUT IN ABSENCE OF THIS DOCUMENTARY EVIDENCE, DONATION CANNOT BE CONSIDERED TO BE THE CORPUS DONATION. THOUGH THE ASSESSING OFFICER HAS DISALLOWED THE SAME BUT THE CIT(A) HAS NOT ADJUDICATED THIS I SSUE AT ALL IN THE ORDER . WE, THEREFORE, ARE OF THE VIEW THAT THIS ISSUE WAS LEFT TO BE ADJUDICATED BY THE CIT(A). WE ACCORDINGLY RESTORE THIS ISSUE TO THE FILE OF CIT(A) TO ADJUDICATE IT IN THE LIGHT OF RELEVANT PROVISION OF THE LAW. ACCORDINGLY, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE O PEN COURT ON 07/01/2014 ) SD/. SD/. (A. K. GARODIA) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 07/01/2014 *C . L . SINGH COPY FORWARDED TO THE: 1. APPELLANT. 2. RESPONDENT. 3. CIT (A) 4. CIT 5. DR. ASSISTANT REGISTRAR