Ahmedabad South Indian Association Charitable Trust, Ahmedabad V. The ACIT., Cent.Circle-1(3), Ahmedabad

ITA 2741/AHD/2004

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0329 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 09-10-2009
• Assessment Year: 1998-1999
• Appeal Filed On: 13-09-2004
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUDHANSHU JHA
• Assessee Lawyers: PF JAIN
• Keywords: Depreciation; Charitable institution; Difference of opinion; Capital receipt; Change of opinion; Reassessment proceedings; Capital expenditure
• Section: 147; 148; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER DATE OF HEARING: 9/10/2009 DRAFTED ON: 12/10/2 009 ITA NO.2741/AHD/2004 ASSESSMENT YEAR : 1998-1999 AHMEDABAD SOUTH INDIAN ASSOCIATION CHARITABLE TRUST, 1, SUNRISE PARK, DRIVE-IN- ROAD, AHMEDABAD. VS. THE ASSTT. OF INCOME TAX CENTRAL CIRCLE 1(3), AHMEDABAD. PAN/GIR NO. : AAATA2542L (APPELLANT) .. (RESPONDENT) ITA NO.2986/AHD/2004 ASSESSMENT YEAR : 1998-1999 THE ASSTT. OF INCOME TAX CENTRAL CIRCLE 1(3), AHMEDABAD VS. AHMEDABAD SOUTH INDIAN ASSOCIATION CHARITABLE TRUST, 1, SUNRISE PARK, DRIVE-IN-ROAD, AHMEDABAD. PAN/GIR NO. : AAATA2542L (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI P.F.JAIN RESPONDENT BY: SHRI SUDHANSHU JHA SR. D.R. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THESE ARE THE CROSS APPEALS FILED BY THE ASSESSEE AND REVENUE AGAINST THE ORDER OF THE LD.CIT(APPEALS)-I, AHMEDABAD DATED 7.0 7.2004. 2. GROUND NOS.1, 2, 3, 4 AND 6 OF THE ASSESSEES AP PEAL READS AS UNDER: 1. THE LD. LEARNED COMMISSIONER OF INCOME TAX(APP EALS) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE REASSESS MENT PROCEEDINGS INASMUCH AS THAT THERE WAS NO INCOME ESCAPING ASSESSMENT AS ENVISAGED IN SECTION 147 OF THE INCOME TAX ACT, AND FOR THE FACT THAT CONDITION S LAID DOWN IN SECTION 147 ARE NOT FULFILLED SO FAR AS THE FACTS OF THE APPELLANT ARE CONCERNED AND THE HON'BLE GUJARAT HIGH COURT HAS PRONOUNCED DECISION ONLY ON THE VALIDITY OF NOTICE ISSUED UNDER SECTION 148 OF THE ACT. ITA NO.2741 & 2986/AHD/2004 AHMEDABAD SOUTH INDIAN ASSOCIATION CHARITABLE TRUST . ASST.YEAR -1998-99 - 2 - 2. THE REASSESSMENT PROCEEDINGS OUGHT TO HAVE BEEN HELD AS BAD IN LAW INASMUCH AS THAT IT WAS A CASE OF CHANGE OF OPINION AND PROCEEDINGS HAVE BEEN INITIATED AT THE INSTANCE OF OTHERS. 3. THE LD. C.I.T.(APPEALS) OUGHT TO HAVE HELD THAT AS PER SECTION 164(2) OF THE INCOME TAX ACT ONLY THAT PART OF INCOME WILL BE LIABLE TO TAX FOR WHICH CONDITION PRESCRIBED UNDER SECTION 11, 12 AND 13 HA VE NOT BEEN FULFILLED WHICH MEANS THAT ENTIRE INCOME WILL NOT BE LIABLE FOR TAX ATION FOR INFRINGEMENT OF SAID CONDITIONS. IN THE CASE OF THE APPELLANT, THERE BEI NG NO SUCH INCOME WHICH CAN BE TREATED AS NOT EXEMPT AND HENCE, EVEN OTHERWISE, ALSO THE TAXABLE INCOME OUGHT TO HAVE BEEN TREATED AS NIL R.W.S. 164(2) OF THE INCOME TAX ACT AND C.B.D.T. CIRCULAR NO.387 DATED 6.07.1984 REPORTED I N 151 ITR (ST) PARA 28. 4. HE HAS ERRED IN UPHOLDING THE VIEW OF THE LEARNE D ASSESSING OFFICER THAT THE INCOME OF THE APPELLANT TRUST IS NOT EXEMP T UNDER SECTION 10(22) OF THE I.T. ACT INASMUCH AS THE APPELLANT TRUST EXISTED SO LELY FOR EDUCATIONAL PURPOSES ONLY. 6. WITHOUT PREJUDICE TO THE ABOVE THE INCOME ORIGIN ALLY RETURNED AND ASSESSED AT NIL OUGHT TO HAVE BEEN ACCEPTED AND PRO CEEDINGS UNDER SECTION 147 OF THE INCOME-TAX ACT OUGHT TO HAVE BEEN DROPPED AS PROVIDED UNDER SECTION 152(2) OF THE INCOME TAX ACT. 3. AT THE TIME OF THE HEARING, THE LEARNED AUTHORIS ED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT HE IS NOT PRESSING THE GROU ND NO.1, 2 AND 4 TAKEN IN THE MEMO OF APPEAL. THEREFORE, THESE GROUNDS OF APPEAL ARE DISMISSED AS NOT PRESSED. 4. GROUND NOS.5 OF THE APPEAL OF THE ASSESSEE ARE A S UNDER: 5. THE LD. C.I.T.(APPEALS) HAS ERRED IN NOT CONSID ERING COMPUTATION OF INCOME WHICH SHOWS DEFICIT OF RS.5,10,546/- AFTER T AKING INTO CONSIDERATION THE APPLICATION OF THE INCOME OF RS.1 5,03,746/- DURING THE YEAR AS PROVIDED UNDER SECTION 11 OF THE I.T.ACT WH ICH LAYS DOWN THAT INCOME DERIVED FROM PROPERTY HELD UNDER TRUST AND W HICH IS APPLIED FOR THE OBJECTS OF THE TRUST SHALL NOT BE INCLUDED IN THE TOTAL INCOME OF THE TRUST. 5. THE SOLE GROUND OF APPEAL OF THE REVENUE READS AS UNDER: THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECT ING TO TREAT THE AMOUNT RECEIVED OF RS.49,33,506/- AS DONATION TOWARDS THE CORPUS OF THE TRUST AND THUS DIRECTING THAT THE SAME BE REDUCED FROM THE INCOME OF THE TRUST WORKED OUT BY THE LEARNED ASSESSING OFFICER. 6. AS THE FACT AND ISSUE INVOLVED IN THE ABOVE GROU NDS OF APPEAL ARE COMMON, THEY ARE DISPOSED OF TOGETHER AS UNDER. ITA NO.2741 & 2986/AHD/2004 AHMEDABAD SOUTH INDIAN ASSOCIATION CHARITABLE TRUST . ASST.YEAR -1998-99 - 3 - 7. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E CLAIMED THAT DONATION OF RS.49,33,506/- WAS TOWARDS THE CORPUS OF THE TRUST. THE LEARNED ASSESSING OFFICER OBSERVED THAT THESE FUNDS WERE RECEIVED BY THE ASSESSEE FOR SOUVENIR ADVERTISEMENT AND NOT DONATION. HE FURTHER OBSERVED THAT IN A DONATION THERE IS NO QUID PRO-QUO AND IT IS VOLUNTARY. HE FURTHER OBS ERVED THAT IN THE AUDITED INCOME AND EXPENDITURE ACCOUNT AND BALANCE-SHEET, T HE AUDITOR OF THE TRUST HAS - NEVER CONSIDER THE ADVERTISEMENT RECEIPTS AS PART O F CORPUS OR TRUST FUNDS AND THE SAME CANNOT BE TREATED BY THE ASSESSEE AFTER SEVERA L YEARS AS CORPUS FUND. THE LEARNED ASSESSING OFFICER HAS OBSERVED THAT HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF SUKHDEV CHARITY ESTATE VS. CIT (1984) 149 I TR 470 (RAJ,) HAS HELD THAT IT IS THE INTENTION OF THE DONOR AND THE DONEE AT T HE INITIAL STAGE WHICH HAS TO BE TAKEN INTO CONSIDERATION TO DECIDE WHETHER THE AMOU NT RECEIVED IS CAPITAL OR REVENUE IN NATURE. IF THE RECEIPT, SUBSEQUENTLY CON DUCTS IN A WAY THAT THE INITIAL INTENTION GOES AWAY, STILL THAT WILL NOT CHANGE THE NATURE OF THE AMOUNT. THE LEARNED ASSESSING OFFICER THEREFORE DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE THAT AMOUNT IN QUESTION WAS CORPUS DONATION AND ADD ED THE SAME TO THE INCOME OF THE ASSESSEE. AS REGARDS, THE EXPENDITURE INCURR ED BY THE ASSESSEE IN BUILDING CONSTRUCTION AND TREATING THE SAME AS UTILIZATION O F ADVERTISEMENT RECEIPT, THE LEARNED ASSESSING OFFICER OBSERVED THAT INVESTMENT IN BUILDING HAS NO CO- RELATION WITH THE RECEIPT FROM THE ADVERTISEMENT IN SOUVENIR AS THE RECEIPTS FOR ADVERTISEMENT WAS RS.32,50,960/- IN ASSESSMENT YEAR 1996-97, RS.58,41,210/- IN ASSESSMENT YEAR 1997-98 AND RS.49,33,506/- IN A SSESSMENT YEAR 1998-99 AND THE CORRESPONDING EXPENDITURE ON BUILDING WORK IN PROGRESS WAS RS.27,73232/-, 93,14,654/- AND 9,36,053/-. HE FURTH ER OBSERVED THAT ADDITION TO BUILDING WAS NOT AN ITEM OF INCOME AND EXPENDITURE AND THEREFORE SUCH EXPENSE CANNOT BE REDUCED FROM INCOME OF ADVERTISEMENT. TH EREFORE, HE HELD THAT THE TRUST INCOME WAS LIABLE FOR TAX IN VIOLATION OF SEC TION 10, 11, 12 AND 13 OF THE ACT. HENCE, HE COMPUTED THE NET TAXABLE INCOME OF THE ASSESSEE AT RS.59,26,708/-. 8. IN APPEAL, THE LEARNED COMMISSIONER OF INCOME TA X(APPEALS) OBSERVED AS UNDER: ITA NO.2741 & 2986/AHD/2004 AHMEDABAD SOUTH INDIAN ASSOCIATION CHARITABLE TRUST . ASST.YEAR -1998-99 - 4 - APPELLANT HAS MADE TWO CLAIMS. FIRST IS IN RESPECT OF DONATIONS OF RS.49,33,506/-, WHICH IS CLAIMED TO BE TOWARDS THE CORUPOS OF TRUST. THESE FUNDS WERE RECEIVED FROM SPONSORSHIP ETC. I FIND THAT IDE NTICAL ISSUE AROSE IN APPELLANTS CASE IN ASSESSMENT YEAR 1999-2000 AND 20001-2002. IN APPELLANT ORDERS FOR THOSE YEARS, APPELLANTS CLAIM WAS ALLOW ED IN VIEW OF BOMBAY HIGH COURT DECISION IN THE CASE OF CIT VS. V TRUSTEES OF VISHA NEMA CHARITY TRUST REPORTED IN 138 ITR PAGE 564 AND DECISION OF GUJARA T HIGH COURT IN THE CASE OF CIT V.STHANAKVASI VARDHMAN VANIK JAIN SANGH REPORTE D IN 260 ITR PAGE 367. AS FACTS ARE IDENTICAL, FOLLOWING THERE ORDERS, THE LEARNED ASSESSING OFFICER IS DIRECTED TO TREAT THE AMOUNT OF RS.49,33,506/- AS D ONATION TOWARDS CORPUS OF THE TRUST AND REDUCE IT FROM THE INCOME WORKED OUT BY HIM. SO FAR AS THE CLAIM OF EXPENDITURE OF RS.15,03,746/ - IS CONCERNED, THE LEARNED AUTHORISED REPRESENTATIVE COULD NOT POINT O UT HOW IT CAN BE ALLOWED. THESE EXPENSES ARE OF CAPITAL IN NATURE AND HAS BEE N ADDED TO VARIOUS ASSETS ON WHICH DEPRECIATION IS BEING CLAIMED. IN FACT, IN AS SESSMENT YEAR 2001-02, DEPRECIATION CLAIMED WAS DISALLOWED AND THE SAME WA S ULTIMATELY ALLOWED IN APPEAL. IT IS THUS CLEAR THAT THESE EXPENSES HAVE BEEN CLAIMED AS CAPITAL EXPENDITURE BY THE APPELLANT HIMSELF. EVEN IN WRITT EN SUBMISSIONS, IT HAS NOT BEEN POINTED OUT AS TO HOW THESE EXPENDITURE IS AN ALLOWABLE DEDUCTION. THIS CLAIM IS THEREFORE, NOT ALLOWABLE. TO SUM UP INCOME IS DIRECTED TO BE REDUCED BY AN AM OUNT OF RS.49,33,506/- ON ACCOUNT OF CORPUS DONATION. THESE GROUNDS ARE THUS ALLOWED IN PART. 9. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE SUBMITTED THAT EXCESS OF INCOME OVER EXPENDITURE AS PER THE INCOME AND EXPENDITURE ACCOUNT OF THE ASSESSEE IS RS.59,26,706/- OUT OF WHICH CORPUS DONATION RECEIVED FROM SOUTH INDIAN MEMBERS AND WELL WISHER RS.14,96,504/- AND F ROM CORPORATE EDUCATIONAL PROGRAM SPONSORSHIP SOUVENIR ADVERTISEMENT RS.34,37 ,002/- ARE NOT LIABLE TO TAX BEING CAPITAL RECEIPTS AND THEREAFTER, THE SURPLUS IS REMAINING RS.9,93,200/- AGAINST WHICH ASSESSEE SPENT FOR BUILDING ADDITION RS.9,36,053/- AND FOR FURNITURE AND FIXTURE OF RS.5,67,693/- TOTALLING TO RS.15,03, 746/-. THUS, THERE BEING NO SURPLUS LEFT AFTER THE APPLICATION, THEREFORE, NOTH ING REMAINS WHICH IS TAXABLE IN THE HANDS OF THE ASSESSEE. HE THEREFORE, SUBMITTED THAT LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WAS NOT JUSTIFIED IN HOLDING TH AT RS.15,03,746/- WAS CAPITAL EXPENDITURE AND WAS NOT LIABLE TO BE ADJUSTED AGAIN ST THE RECEIPTS OF THE ASSESSEE. 10. THE LEARNED AUTHORISED REPRESENTATIVE OF THE AS SESSEE REPLIED ON THE DECISION OF AHMEDABAD A BENCH OF THE TRIBUNAL IN TH E CASE OF AHMEDABAD ITA NO.2741 & 2986/AHD/2004 AHMEDABAD SOUTH INDIAN ASSOCIATION CHARITABLE TRUST . ASST.YEAR -1998-99 - 5 - SOUTH INDIAN ASSOCIATION CHARITABLE TRUST IN ITA NO .261/AHD/2004 FOR ASSESSMENT YEAR 1999-00 ORDER DATED 4.09.2009 AND I N ASSESSMENT YEAR 2001- 02 TO 2004-05 ITA NOS.2331/AHD/2004, ITA NO.84/AHD/ 2006 & CO NO.35/AHD/2006 AND OTHERS ORDER DATED 24.07.2009, W HEREIN IT HAS BEEN HELD AS UNDER: 2. THE ISSUE INVOLVED IN THE PRESENT APPEAL IS WHETHER THE MONEY RECEIVED BY THE ASSESSEE FROM ADVERTISEMENT IN SOUVENIR IS ON ACCOU NT OF CORPUS OF THE TRUST OR IT IS REVENUE RECEIPT OUT OF WHICH 85% IS REQUIRED TO BE APPLIED FOR CHARITABLE PURPOSES. THE ASSESSING OFFICER HAS TREATED IT AS R EVENUE RECEIPT AND INCLUDED IT FOR THE PURPOSE OF FINDING OUT WHETHER IT WAS APPLI ED FOR CHARITABLE PURPOSES OR NOT. 3. THE LEARNED CIT(APPEALS) DELETED THE ADDITION AN D TREATED THE RECEIPT AS FOR CORPUS OF THE TRUST BY FOLLOWING THE DECISIONS OF H ON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. TRUSTEES OF VISHA NIMA CHARITY TRUST (138ITR564) AND OF CIT VS. S.V. VANIK JAIN SANGH (260ITR367). 4. WE HAVE HEARD THE LD.DR AND THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF ITAT A HMEDABAD BENCH A IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2001-02 TO 2004-05 (BY WAY OF ITA NOS.2331/AHD/2004, ITA NO.84/AHD/2006 & CO NO.35/AH D/2006 AND OTHERS) DATED 24/07/2009, WHEREIN THE TRIBUNAL HAS HELD AS UNDER: 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW, THERE IS NO CASE FO R INTERFERENCE IN THE ORDER OF THE LEARNED CIT(A) IN THIS REGARD. NOT ONLY THE ISS UE IS COVERED BY THE DECISION OF HON'BLE BOMBAY AND GUJARAT HIGH COURTS IN THE CA SE OF CIT V. V. TRUSTEES OF VISHA NIMA CHARITY TRUST (138 ITR 564) AND CIT V. S .V.VANIK JAIN SANGH (260 ITR 367) RESPECTIVELY, ON REASONING ALSO, NO CASE I S MADE OUT IN FAVOUR OF THE REVENUE. FIRSTLY, BECAUSE, THE ASSESSEE IS ONLY RUN NING EDUCATIONAL INSTITUTION AND IT IS NOT A PLACE OR INSTITUTION FOR PUBLICITY/ ADVERTISEMENT. PRINTING SOUVENIR IS ONLY AN ACTIVITY INCIDENTAL TO THE ANNUAL PROGRA MME OF THE INSTITUTION AND CONTRIBUTORS DO NOT PLACE ADVERTISEMENT IN THE SOUV ENIR OF THE TRUST WITH THE INTENTION OF GETTING ANY PUBLICITY FOR THEM OR FOR THEIR PRODUCTS FOR ENHANCING THE MARKET VALUE BUT THE CONTRIBUTIONS ARE MADE ONLY FO R THE PURPOSE OF HELPING THE INSTITUTION. NO CASE IS MADE OUT BY THE REVENUE TO SHOW THAT THE .CONTRIBUTORS/PARTIES PLACING ADVERTISEMENT HAVE DE RIVED ANY BENEFIT FROM SUCH ADVERTISEMENT PUBLISHED IN THE SOUVENIR OF THE TRUS T. THE CIRCULATION OF THE SOUVENIR DID NOT REACH TO PUBLIC AT LARGE, THE FREQ UENCY/PERIODICITY DO NOT REFLECT THAT ADVERTISEMENT IN THE SOUVENIR WOULD HELP THE A DVERTISERS IN INCREASING THE MARKETABILITY OF THEIR PRODUCTS. THEREFORE, RECEIPT S FROM THE ADVERTISEMENT CANNOT BE TAKEN AS REVENUE RECEIPT IN THE HANDS OF THE ASSESSEE. IN FACT THE ASSESSEE TRUST IS NOT RENDERING ANY SERVICES BY WAY OF PLACING ADVERTISEMENT IN THEIR SOUVENIR FOR WHICH IT COULD HAVE RECEIVED MON EY BEING IN THE NATURE OF REVENUE RECEIPT. THE NATURE AND SCOPE OF RECEIPT AM PLY SUGGESTS THAT IT IS A CAPITAL RECEIPT. SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE BOMBAY HIGH COURT IN CIT VS. TRUSTEES OF VISHA NIMA CHARITY TRUST (13 8 ITR 564),WHEREIN IT IS HELD ''THAT THE ASSESSEE-TRUST WAS FORMED PRIMARILY BY THE MEMBERS OF A PARTICULAR CASTE, ALTHOUGH THE OBJECTS THEREOF WERE OBJECTS OF GENERAL PUBLIC CHARITY. THE APPEAL ISSUED BY THE TRUSTEES MADE IT CLEAR THAT THE OBJECT OF THE ITA NO.2741 & 2986/AHD/2004 AHMEDABAD SOUTH INDIAN ASSOCIATION CHARITABLE TRUST . ASST.YEAR -1998-99 - 6 - TRUST WAS TO HAVE A PERMANENT HOME FOR PROVIDING SH ELTER TO THOSE WHO CAME TO BOMBAY FOR A SHORT DURATION. THE MEMBERS OF THE PUB LIC TO WHOM THE APPEAL WAS ADDRESSED CAME FROM COMPARATIVELY PROSPEROUS RU RAL AREAS AND WHO LIKED TO STRENGTHEN THE RELATIONS ALREADY EXISTING AMONGS T THE MEMBERS OF THE CASTE AND AT THE SAME TIME HELP A NOBLE CAUSE. IN THE APP EAL, THERE WAS NO REFERENCE TO THE ADVERTISEMENTS IN THE SOUVENIR BEING LIKELY TO CONTRIBUTE TO THE ADVANCEMENT OF THE BUSINESS OF THE PERSONS FROM WHO M THE ADVERTISEMENTS WERE SOUGHT. IT WAS UNLIKELY ON THE FACTS OF THE CASE TH AT THE PERSONS TO WHOM THE APPEAL FAR, TICKETS AND ADVERTISEMENTS WAS ISSUED W OULD HAVE GIVEN AN ADVERTISEMENT IN THE SOUVENIR OR PURCHASED TICKETS FOR THE CHARITY SHOW FOR ANY PURPOSE OTHER THAN THE CHARITY, AND AS A VOLUNTARY CONTRIBUTION. THEREFORE, THE CONTRIBUTIONS MADE BY WAY OF TICKETS AND FOR ADVERT ISEMENTS WERE, ON THE FACTS OF THE CASE, MERELY VOLUNTARY CONTRIBUTIONS AND WERE E XEMPT UNDER SUB-S. (I) OF S. 12, EVEN ASSUMING THAT THE RECEIPTS CONSTITUTED THE INCOME OF THE ASSESSEE AND NOT THE CORPUS THEREOF. FURTHER, THE CONTRIBUTIONS COULD NOT BE REGARDED AS INCOME DERIVED BY THE ASSESSEE-TRUST FROM PROPERTY HELD UNDER TRUST AS CONTEMPLATED UNDER S. 11. IN VIEW OF THE ABOVE, WE CONFIRM THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND DISMISS GROUND RAISED BY THE REVENUE IN THIS REGARD FOR ALL THE AYS UNDER CONSIDERATION. 2. FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL, WE D ISMISS THE APPEAL OF THE REVENUE. 11. LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED T HE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). 12. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. IN THE REVENUES APPEAL, THE CONTENTION OF THE REVENUE IS THAT RS.49,33,506/- RE CEIVED BY THE ASSESSEE FROM THE ADVERTISERS OF THE ADVERTISEMENT PUBLISHED IN THE S OUVENIR PUBLISHED BY THE ASSESSEE IS ITS INCOME AND IS NOT CORPUS DONATION. WE FIND THAT IT IS NOT IN DISPUTE THAT THE ASSESSEE RECEIVED RS.49,33,506/- FROM VARI OUS PERSONS IN RESPECT OF ADVERTISEMENT GIVEN IN THE SOUVENIR PUBLISHED BY TH E ASSESSEE. WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THIS T RIBUNAL IN THE CASE OF THE ASSESSEE ITSELF IN ITA NO.261/AHD/2004 FOR ASSESSM ENT YEAR 1999-00 ORDER DATED 4.09.2009 AND IN ASSESSMENT YEAR 2001-02 TO 2 004-05 ITA NOS.2331/AHD/2004, ITA NO.84/AHD/2006 & CO NO.35/AH D/2006 AND OTHERS ORDER DATED 24.07.2009, WHEREIN IT HAS BEEN HELD AS UNDER: 4. WE HAVE HEARD THE LD.DR AND THE LEARNED AUTHORI SED REPRESENTATIVE OF ITA NO.2741 & 2986/AHD/2004 AHMEDABAD SOUTH INDIAN ASSOCIATION CHARITABLE TRUST . ASST.YEAR -1998-99 - 7 - THE ASSESSEE. LOOKING TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF ITAT AHMEDABAD BENCH A IN ASSESSEES OWN CASE FOR ASSESSMENT YEA RS 2001-02 TO 2004-05 (BY WAY OF ITA NOS.2331/AHD/2004, ITA NO.84 /AHD/2006 & CO NO.35/AHD/2006 AND OTHERS) DATED 24/07/2009, WHEREI N THE TRIBUNAL HAS HELD AS UNDER: 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW, THERE IS NO CASE FOR INTERFERENCE IN THE ORDER OF THE LEARNED CIT(A) IN THIS REGARD. NOT ONL Y THE ISSUE IS COVERED BY THE DECISION OF HON'BLE BOMBAY AND GUJARAT HIGH COURTS IN THE CASE OF CIT V. V. TRUSTEES OF VISHA NIMA CHARITY TRUST ( 138 ITR 564) AND CIT V. S.V.VANIK JAIN SANGH (260 ITR 367) RESPECTIVELY, ON REASONING ALSO, NO CASE IS MADE OUT IN FAVOUR OF THE REVENUE. FIRST LY, BECAUSE, THE ASSESSEE IS ONLY RUNNING EDUCATIONAL INSTITUTION AN D IT IS NOT A PLACE OR INSTITUTION FOR PUBLICITY/ADVERTISEMENT. PRINTING S OUVENIR IS ONLY AN ACTIVITY INCIDENTAL TO THE ANNUAL PROGRAMME OF THE INSTITUTION AND CONTRIBUTORS DO NOT PLACE ADVERTISEMENT IN THE SOUV ENIR OF THE TRUST WITH THE INTENTION OF GETTING ANY PUBLICITY FOR THEM OR FOR THEIR PRODUCTS FOR ENHANCING THE MARKET VALUE BUT THE CONTRIBUTIONS AR E MADE ONLY FOR THE PURPOSE OF HELPING THE INSTITUTION. NO CASE IS MADE OUT BY THE REVENUE TO SHOW THAT THE .CONTRIBUTORS/PARTIES PLACING ADVERTI SEMENT HAVE DERIVED ANY BENEFIT FROM SUCH ADVERTISEMENT PUBLISHED IN TH E SOUVENIR OF THE TRUST. THE CIRCULATION OF THE SOUVENIR DID NOT REAC H TO PUBLIC AT LARGE, THE FREQUENCY/PERIODICITY DO NOT REFLECT THAT ADVERTISE MENT IN THE SOUVENIR WOULD HELP THE ADVERTISERS IN INCREASING THE MARKET ABILITY OF THEIR PRODUCTS. THEREFORE, RECEIPTS FROM THE ADVERTISEMEN T CANNOT BE TAKEN AS REVENUE RECEIPT IN THE HANDS OF THE ASSESSEE. IN FA CT THE ASSESSEE TRUST IS NOT RENDERING ANY SERVICES BY WAY OF PLACING ADVERTISEMENT IN THEIR SOUVENIR FOR WHICH IT COULD HAVE RECEIVED MONEY BEI NG IN THE NATURE OF REVENUE RECEIPT. THE NATURE AND SCOPE OF RECEIPT AM PLY SUGGESTS THAT IT IS A CAPITAL RECEIPT. SIMILAR VIEW HAS BEEN TAKE N BY THE HON'BLE BOMBAY HIGH COURT IN CIT VS. TRUSTEES OF VISHA NIMA CHARITY TRUST (138 ITR 564),WHEREIN IT IS HELD ''THAT THE ASSESSEE-TRUST WAS FORMED PRIMARILY BY THE MEMBERS OF A PARTICULAR CASTE, ALT HOUGH THE OBJECTS THEREOF WERE OBJECTS OF GENERAL PUBLIC CHARITY. THE APPEAL ISSUED BY THE TRUSTEES MADE IT CLEAR THAT THE OBJECT OF THE TRUST WAS TO H AVE A PERMANENT HOME FOR PROVIDING SHELTER TO THOSE WHO CAME TO BOMBAY FOR A SHORT DURATION. THE MEMBERS OF THE PUBLIC TO WHOM THE APPEAL WAS ADDRES SED CAME FROM COMPARATIVELY PROSPEROUS RURAL AREAS AND WHO LIKED TO STRENGTHEN THE RELATIONS ALREADY EXISTING AMONGST THE MEMBERS OF T HE CASTE AND AT THE SAME TIME HELP A NOBLE CAUSE. IN THE APPEAL, THERE WAS N O REFERENCE TO THE ADVERTISEMENTS IN THE SOUVENIR BEING LIKELY TO CONT RIBUTE TO THE ADVANCEMENT OF THE BUSINESS OF THE PERSONS FROM WHOM THE ADVERT ISEMENTS WERE SOUGHT. IT WAS UNLIKELY ON THE FACTS OF THE CASE THAT THE PERS ONS TO WHOM THE APPEAL FAR, TICKETS AND ADVERTISEMENTS WAS ISSUED WOULD HAVE GI VEN AN ADVERTISEMENT IN THE SOUVENIR OR PURCHASED TICKETS FOR THE CHARITY S HOW FOR ANY PURPOSE OTHER THAN THE CHARITY, AND AS A VOLUNTARY CONTRIBUTION. THEREFORE, THE ITA NO.2741 & 2986/AHD/2004 AHMEDABAD SOUTH INDIAN ASSOCIATION CHARITABLE TRUST . ASST.YEAR -1998-99 - 8 - CONTRIBUTIONS MADE BY WAY OF TICKETS AND FOR ADVERT ISEMENTS WERE, ON THE FACTS OF THE CASE, MERELY VOLUNTARY CONTRIBUTIONS A ND WERE EXEMPT UNDER SUB- S. (I) OF S. 12, EVEN ASSUMING THAT THE RECEIPTS CO NSTITUTED THE INCOME OF THE ASSESSEE AND NOT THE CORPUS THEREOF. FURTHER, THE C ONTRIBUTIONS COULD NOT BE REGARDED AS INCOME DERIVED BY THE ASSESSEE-TRUST FR OM PROPERTY HELD UNDER TRUST AS CONTEMPLATED UNDER S. 11. IN VIEW OF THE ABOVE, WE CONFIRM THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND DISMISS GROUND RAISED BY THE REVENUE IN THIS RE GARD FOR ALL THE AYS UNDER CONSIDERATION. 2. FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL, WE D ISMISS THE APPEAL OF THE REVENUE. THE REVENUE COULD NOT CITE ANY GOOD REASON BEFORE U S THAT WHY THE ABOVE ORDER OF THE TRIBUNAL SHOULD NOT BE FOLLOWED BY US. IN AB SENCE OF ANY GOOD REASON SHOWN, WE FOLLOWING THE ABOVE ORDER CONFIRM THE ORD ER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AND DISMISS THE APPEAL OF THE REVENUE. 13. IN THE INSTANT CASE, WE FIND THAT INCOME OF RS. 9,93,200/- WAS TREATED BY THE LEARNED ASSESSING OFFICER AS NOT EXEMPT UNDER S ECTION 11 AND 12 OF THE ACT. BUT, WE FIND THAT THE LEARNED COMMISSIONER OF INCOM E TAX(APPEALS) HAS ALREADY ALLOWED THE CLAIM OF THE ASSESSEE TREATING THE TRUS T FALLING UNDER THE PROVISION OF SECTION 11 AND 12 OF THE ACT, ACCORDINGLY, WE ARE O F THE VIEW THAT IF THE AMOUNT OF RS.15,03,746/- WAS APPLICATION OF INCOME, THE IN COME ASSESSED BY THE LEARNED ASSESSING OFFICER AT RS.9,93,200/- WILL NOT BE CHAR GED TO TAX. THIS FACT NEEDS VERIFICATION AT THE LEVEL OF THE LEARNED ASSESSING OFFICER. IN CASE, THERE IS APPLICATION OF THIS AMOUNT OF RS.15,03,746/- FOR TH E FULFILLMENT OF THE OBJECT OF THE TRUST, THE ASSESSEE IS ENTITLED FOR EXEMPTION, IN CASE THE POSITION IS VISE VERSA, THEN THE ASSESSEE IS NOT ENTITLED FOR EXEMPTION. TH E LEARNED ASSESSING OFFICER WILL DECIDE ACCORDINGLY. 14. GROUND NO.7 OF THE APPEAL OF THE ASSESSEE READS AS FOLLOWS: NO INTEREST U/S.234 B OF THE INCOME TAX ACT OUGHT TO HAVE BEEN LEVIED. ITA NO.2741 & 2986/AHD/2004 AHMEDABAD SOUTH INDIAN ASSOCIATION CHARITABLE TRUST . ASST.YEAR -1998-99 - 9 - 15. NO ARGUMENTS WERE MADE BY THE LEARNED AUTHORISE D REPRESENTATIVE OF THE ASSESSEE AT THE TIME OF THE HEARING. WE HOLD TH AT CHARGING OF INTEREST IS CONSEQUENTIAL AND ACCORDINGLY DISPOSED OF THIS GROU ND OF APPEAL OF THE ASSESSEE. 16. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED AND THAT OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING IN THE PRESENCE OF PARTIES ON 9/10/2009. SD/- SD/- ( MAHAVIR SINGH) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 9/10/2009 PARAS# COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-I, AHMEDABAD. 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD