Shree Ram Mandir Seva Samiti, Bhubaneswar V. CIT, Bhubaneswar, Bhubaneswar

ITA 270/CTK/2014

• Counselvise Citation: 27022114 RSA 2014
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 26-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K AJAY KUMAR
• Assessee Lawyers: S K AGARWA L LA; H K HOTA
• Keywords: Charitable institution
• Section: 12; 80G; 12A; 12AA

Judgement Text

I.T.A. NO. 270 / CTK ./20 1 4 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI S .V. MEHROTRA (ACCOUNTANT MEMBER) , AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO. 270 / CTK / 20 1 4 SHREE RAM MANDIR SEVA SAMITI, .............................. .APP ELL AN T PLOT NO. 1, KHARAVEL NAGAR, JANPATH, BHUBANESWAR - 751 001, ODISHA [PAN : A AGTS 3675 K ] - VS. - COMMISSIONER OF INCOME TAX , .... ........................ . RESPONDENT BHUBANESWAR , AAYAKAR BHAWAN, RAJASWA VIHAR, 3 RD FLOOR, BHUBANESWAR - 751 007, ODISH A APPEARANCES BY: SHRI H.K. HOTA , A .R. AND SHRI S. K. AGARWA L LA, C.A. , FOR THE ASSESSEE SHRI K. AJAY KUMAR , CIT, D.R, FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : OCTOBER 1 7 , 2 01 4 DATE OF PRONOUNCING THE ORDER : OCTOBER 21 , 201 4 O R D E R PE R GEORGE MATHAN : TH IS IS AN APPEAL FILED BY THE ASSESSE E AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX , BHUBANESWAR IN F. NO. CIT/ITO(TECH.)/12AA - 106/13 - 14/2014 - 15 DATED 05 . 06 .20 1 4 IN RESPECT OF ASSESSEES APPLICATION FOR GRANT OF REGISTRAT ION UNDER SECTION 12AA OF THE ACT . 2. SHRI H.K. HOTA , A.R. , REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI K. AJAY KUMAR, CIT , D.R, REPRESENTED ON BEHALF OF THE REVENUE . I.T.A. NO. 270 / CTK ./20 1 4 PAGE 2 OF 4 3. AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. A.R. THAT THE ASSESSEE IS A T RUST THAT CAME INTO EXISTENCE VIDE TRUST DEED DATED 14.03.1969 AND THE OBJECTS OF THE TRUST ARE MENTIONED IN THE ORDER OF THE LD. CIT. IT WAS THE SUBMISSION THAT THE LD. CIT HAD REFUSED THE ASSSESSEE THE BENEFIT OF REGISTRATION UNDER SECTION 12AA ON THE GR OUND THAT THE PRIMARY OBJECT WAS A RELIGIOUS OBJECT AND IT WAS CONFINED TO A PARTICULAR RELIGIOUS COMMUNITY AND CONSEQUENTLY THE PROVISIONS OF SECTION 13(1)(B) OF THE ACT WOULD APPLY. IT WAS THE SUBMISSION THAT ONLY ONE OF THE OBJECTS WAS TO PROPAGATE HIND U R ELIGION. THE OTHER OBJECTS WERE CLEARLY CHARITABLE IN NATURE. IT WAS THE SUBMISSION THAT THE ASSESSEE MAY BE GRANTED REGISTRATION. 4 . IN REPLY, LD. CIT(D.R.) VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT WHO REFUSED TO GRANT REGISTRATION UNDER SECTION 1 2AA. IT WAS THE SUBMISSION THAT THE TRUST WAS BASICALLY A R ELIGIOUS TRUST. 5 . WE HAVE HEARD THE RIVAL SUBMISSIONS. AT THE OUTSET, IT MUST BE MENTIONED HERE THAT IT HAS BEEN HELD BY THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SHIV MANDIR DEVSTTAN P ANCH COMMITTEE SANSTAN IN ITA NO. 223/NAGPUR/2009 DATED 11.10.2012, WHEREIN IT HAS BEEN HELD THAT HINDUISM IS NOT A R ELIGION. HINDUISM IS A WAY OF LIFE. FURTHER THE COORDINATE BENCH HAS HELD AS FOLLOWS: - 10. NOW COMING TO THE QUESTION WHETHER THE ASSESSE E TRUST HAS VIOLATED THE CONDITIONS AS LAID DOWN IN CLAUSE (III) OF SECTION 80G(5), WE REPRODUCE THIS CLAUSE WHICH READS AS UNDER : (III). THE INSTITUTION OR FUND IS NOT EXPRESSED TO BE FOR THE BENEFIT OF ANY PARTICULAR RELIGIOUS COMMUNITY OR CASTE. THIS CLAUSE STIPULATES THAT THE INSTITUTION OR THE TRUST MUST NOT BE FOR THE BENEFIT OF ANY PARTICULAR RELIGIOUS COMMUNITY OR CASTE. THE WORDS RELIGIOUS COMMUNITY MEANS THE GROUP OF PEOPLE HAVING A COMMON RELIGION OR FAITH. THE WORD RELIGION MEANS THE BELI EF IN AND WORSHIP TO A SUPERHUMAN CONTROLLING POWER, SPECIALLY THE PERSONAL GOD OR GODS, A PARTICULAR SYSTEM OF FAITH AND WORSHIP. IT MEANS THE TRUST SHOULD NOT BE FOR THE BENEFIT OF ANY PARTICULAR GROUP OF PERSONS HAVING THE COMMON BELIEF IN WORSHIPING OF SUPERHUMAN CONTROLLING POWER OR HAVING COMMON SYSTEM & FAITH AND WORSHIP. IF THE TRUST IS FOR THE BENEFIT OF ANY PARTICULAR RELIGIOUS COMMUNITY, IT WOULD INCLUDE THE ADVANCEMENT, SUPPORT OR PROPAGATION OF A RELIGION AND ITS TENANTS, IT COULD BE SAID THAT A TRUST HAS VIOLATED THE CONDITION NO. (III) OF SECTION 80G(5). THE OBJECTS AS HAS BEEN POINTED OUT BY CIT, NOWHERE TALKS OF ADVANCEMENT, SUPPORT OR PROPAGATION OF A PARTICULAR RELIGION, WORSHIPPING OF LORD SHIVA, HANUMANJI , GODDESS D URGA AND MAINTAINING OF TEMPLE, IN OUR OPINION, CANNOT BE REGARDED FOR THE ADVANCEMENT SUPPORT OR PROPAGATION OF A PARTICULAR RELIGION. NO EVIDENCE OR MATERIAL WAS PLACED ON RECORD OR BROUGHT BEFORE US BY THE LEARNED DR WHICH MAY PROVE THAT THESE OBJECT RELATE TO A PARTICULAR RELIGION. NO DOUBT THE DR ARGUED THAT IT RELATE TO HINDU RELIGION BUT IN OUR OPINION IT IS NOT SO. LORD SHIVA, HANUMANJI, GODDESS DURGA DOES I.T.A. NO. 270 / CTK ./20 1 4 PAGE 3 OF 4 NOT REPRESENT ANY PARTICULAR RELIGION, THEY ARE MERELY REGARDED TO BE THE SUPER POWER OF THE UNIVERSE. 11. IN THE CASE OF COMMISSIONER OF HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS MADRAS VS. SRI LAKSHMINDRA THIRTHA SWAMIAR 1954 SCJ335, RELIGION HAS BEEN EXPRESSED TO MEAN A MATTER OF FAITH WITH INDIVIDUALS OR COMMUNITIES AND IT IS NOT NECESSARILY THERISTIC. THERE ARE WELL KNOWN RELIGIONS IN INDIA, LIKE BUDDHISM AND JAINISM, WHICH DO NOT BELIEVE IN GOD OR IN ANY INTELLIGENT FIRST CAUSE. A RELIGION UNDOUBTEDLY HAS ITS BASIS IN A SYSTEM OF BELIEFS OR DOCTRINES WHICH ARE REGARDED BY THOSE WHO PROFESS THAT RELIGION AS CONDU CIVE TO THEIR SPIRITUAL WELL BEING, BUT IT WILL NOT BE CORRECT TO SAY THAT RELIGIONS IS NOTHING ELSE BUT A DOCTRINE OR BELIEF. A RELIGION MAY NOT ONLY LAY DOWN A CODE OF ETHICAL RULES FOR ITS FOLLOWERS TO ACCEPT, BUT IT MIGHT PRESCRIBED RITUALS AND OBSERVA NCES, CEREMONIES AND MODES OF WORSHIP WHICH ARE REGARDED AS INTEGRAL PARTS OF A RELIGION, AND THESE FORMS AND OBSERVANCES MIGHT EXTEND EVEN TO MATTERS OF FOOD AND DRESS. NO MATERIAL OR EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE DEPARTMENT WHICH MAY PROVE T HAT ANY PERSON COMING, WORSHIPPING AND MAINTAINING THE TEMPLE HAS TO FOLLOW A PARTICULAR CODE OF ETHICAL RULES AND HAS TO CARRY OUT THE PRESCRIBED RITUALS AND OBSERVANCES, CEREMONIES AND M ODES OF WORSHIP. THE ENTRY IS NOT RESTRICTED TO A PARTICULAR GROUP O F PERSONS. ANY BODY WHETHER WANT TO WORSHIP OR NOT AND WANT TO MAINTAIN OR NOT CAN COME TO THE TEMPLE AND AVAIL OF ALL THE FACILITIES AVAILABLE TO THE PUBLIC AT LARGE. THEREFORE, THESE OBJECTS CANNOT BE REGARDED TO BE THE RELIGIOUS OBJECTS. IN OUR OPINION, UNTIL AND UNLESS THE ACTIVITIES FOR WHICH THE TRUST IS ESTABLISHED, INVOLVE THE ACTIVITY RELIGIOUS PURPOSE, IT CANNOT BE SAID THAT THE ASSESSEE HAS NOT COMPLIED WITH THE CONDITION NO. (III) ENUMERATED U/S. 80G(5) OF THE ACT. 12. EVEN WE NOTED THAT ALL T HE BUILDING MAINTENANCE EXPENSES, FREE FOOD EXPENSES AND FESTIVAL , PRAYER AND DAILY EXPENSES CANNOT BE REGARDED TO BE THE ONE INCURRED FOR RELIGIOUS OBJECT ,EVEN IF THE OBJECT IS REGARDED TO BE RELIGIOUS ONE. IT IS NOT DENIED THAT IN THE BUILDING THE ASSE SSE WAS CARRYING YOGA CENTRE , TAILORING TRAINING CENTRE AS WELL AS FOOD FOR THE NEEDY AND OPTICAL CENTRE FOR THE POOR. 13. EXPLANATION 3 TO SECTION 80G(V) STATES THAT IN THIS SECTION, CHARITABLE PURPOSE DOES NOT INCLUDE ANY PURPOSE THE WHOLE OR SUBST ANTIALLY THE WHOLE OF WHICH IS OF A RELIGIOUS NATURE. THIS EXPLANATION TAKES NOTE OF THE FACT THAT AN INSTITUTION OR FUND SHALL BE FOR A CHARITABLE PURPOSE AND MAY HAVE A NUMBER OF OBJECTS. IF ANY ONE OF THESE OBJECTS IS WHOLLY OR SUBSTANTIALLY WHOLLY OF A RELIGIOUS NATURE, THE INSTITUTION OR FUNDS FALLS OUTSIDE THE SCOPE OF SECTION 80G AND THE DONATION TO IT WILL NOT MAKE THE DONOR ENTITLED FOR THE DEDUCTION U/S. 80G. THE OBJECTS AS PER EXPLANATION 3 MUST BE WHOLLY OR SUBSTANTIALLY WHOLE OF WHICH MUST BE OF RELIGIOUS NATURE. THE ASSESSEE HAS SUBMITTED ALL THE EVIDENCE INCLUDING THE OBJECTS AND HOW THE EXPENDITURE HAS BEEN INCURRED BY IT. THE ONUS, IN OUR OPINION, GETS SHIFTED ON THE REVENUE TO PROVE THAT THE ASSESSEE - TRUST IS WHOLLY OR SUBSTANTIALLY FOR TH E RELIGIOUS PURPOSE. THERE IS NO ALLEGATION ON THE PART OF THE REVENUE THAT THE WHOLE OR SUBSTANTIALLY WHOLE OF THE OBJECT OF THE TRUST IS TO PROPAGATE OR ADVANCE SUPPORT TO A PARTICULAR SECT. WE MAY OBSERVE THAT HINDUISM IS A WAY OF LIFE OF A CIVILIZED SO CIETY. IT AS SUCH IS NOT A RELIGION. IN THIS REGARD WE RELY ON THE CASE OF T T KUPPUSWAMY CHETTIAR VS. STATE OF TAMIL NADU (1987) 100 LW 1031 IN WHICH IT WAS HELD THE WORD HINDU HAS NOT BEEN DEFINED IN ANY OF THE TEXTS NOR IN JUDGMENT MADE LAW. THE WOR D WAS GIVEN BY BRITISH ADMINISTRATORS TO INHABITANTS OF INDIA, WHO WERE NOT CHRISTIANS, MUSLIMS, PARSIS OR JEWS. THE ALLEGED HINDU RELIGION CONSISTS OF FOUR CASTES BRAHMINS, KSHATRIYAS, VAISHYAS AND SUDRAS BELONGING ULTIMATELY TO TWO SCHOOLS OF LAW, MITAKS HARAS AND DAYABHAGA. THERE IS, HOWEVER, NO RELIGION BY THE NAME HINDU . IT ONLY SHOWS THAT SO CALLED HINDU RELIGION HAS BEEN CALLED FOR CONVENIENCE. CIT MUST BE AWARE OF THAT THE HINDU CONSISTS OF A NUMBER OF COMMUNITIES HAVING THE DIFFERENT GODS WHO ARE BEING WORSHIPPED IN A DIFFERENT MANNER, DIFFERENT RITUALS, DIFFERENT ETHICAL CODES. EVEN THE WORSHIP OF GOD IS NOT ESSENTIAL FOR A PERSON WHO HAS ADOPTED HINDUISM WAY OF LIFE. THUS, HINDUISM HOLDS WITHIN ITS FOLD MEN OF DIVERGENT I.T.A. NO. 270 / CTK ./20 1 4 PAGE 4 OF 4 VIEWS AND TRADITIONS WHO HAVE VERY LITTLE IN COMMON EXCEPT A VAGUE FAITH IN WHAT MAY BE CALLED THE FUNDAMENTALS OF THE HINDUISM. THE WORD COMMUNITY MEANS A SOCIETY OF PEOPLE LIVING IN THE SAME PLACE, UNDER THE SAME LAWS AND REGULATIONS AND WHO HAVE COMMON RIGHTS AND PRIVILEGES. THIS MAY APPLY TO CHRISTIANITY OR M U SL I M BUT NOT TO HINDUISM. THEREFORE, IT CANNOT BE SAID THAT HINDU IS A SEPARATE COMMUNITY OR A SEPARATE RELIGION. TECHNICALLY HINDU IS NEITHER A RELIGION NOR A COMMUNITY. THEREFORE, EXPENSES INCURRED FOR WORSHIPPING OF L ORD SHIVA, HANUMAN, GODDESS DURGA AND FOR MAINTENANCE OF TEMPLE CANNOT BE REGARDED TO BE FOR RELIGIOUS PURPOSE. UNDER THESE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE CIT IS NOT CORRECT IN LAW IN NOT ALLOWING THE APPROVAL TO THE ASSESSEE TRUST U/ S. 80G OF THE ACT. WE ACCORDINGLY, SET ASIDE THE ORDER OF THE CIT AND DIRECT THE CIT TO GRANT APPROVAL TO THE ASSESSEE - TRUST U/S. 80G(5)(VI) OF THE ACT . THIS HAS BEEN DECIDED IN THE CASE OF 80G R EGISTRATION. HOWEVER, THE PRINCIPLE WOULD APPLY TO R EGISTRA TION UNDER SECTION 12A ALSO. THIS HAVING BEEN HELD BY THE COORDINATE BENCH OF THIS TRIBUNAL FOR GRANTING REGISTRATION BY HOLDING THAT THE OBJECT TO PROPAGATE HINDU RELIGION IS A RELIGIOUS OBJECT WOULD NO MORE SURVIVE. THE OTHER OBJECTS AS MENTIONED CLEAR LY ARE CHARITABLE IN NATURE. IN THESE CIRCUMSTANCES, THE LD. CIT IS DIRECTED TO GRANT THE ASSESSEE THE BENEFIT OF R EGISTRATION UNDER SECTION 12AA OF THE ACT. FURTHER , IT IS SPECIFICALLY HELD THAT THE GRANTING OF 12AA R EGISTRATION WOULD NOT DISENTITLE THE A SSESSING OFFICER TO CONSIDER VIOLATIONS OF THE PROVISIONS OF SECTIONS 11, 12 & 13 OF THE ACT IN THE COURSE OF REGULAR ASSESSMENT. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST OCTOBER , 201 4. SD/ - SD/ - S .V. MEHROTRA GEORGE MATHAN ( ACCOUNTANT MEMBER) ( JUDICIAL MEMBER) KOLKATA, THE 21 ST D AY OF OCTO BER , 201 4 COPIES TO : (1) THE ASSESSEE (2) THE DEPARTMENT (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL CUTTACK B EN CH, CUTTACK LAHA/SR. P.S.