Bhuvan Hriday Anand Vrindavan Sewa Sansthan, Mathura V. C.I.T.-1, Agra

ITA 35/AGR/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6355 (ITAT-AGRA)
• Duration Of Justice: 3 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-08-2014
• Assessment Year: misc
• Appeal Filed On: 24-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SHIKHA SWAROOP
• Assessee Lawyers: M M AGARWAL
• Keywords: Charitable institution
• Section: 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH: AGRA BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER, AND D R . MITHA LAL MEENA, ACCOUNTANT MEMBER I.T.A NO . 35 /AGRA/201 4 (ASSESSMENT YEAR - N/A ) A SSESSEE BY SHRI M. M. AGARWAL , AR REVENUE BY DR. SHIKHA SWAROOP, CIT . DR. ORDER PER , A. D. JAIN, JUDICIAL MEMBER : TH IS IS ASSESSEES APPEAL A GAINST THE ORDER DATED 2 1 . 11 .201 3 PASSED BY THE LD. CIT , REJECTING THE ASSESSEES APPLICATION SEEKING GRANT OF APPROVAL U/S 80G(5)(VI) OF THE I.T. ACT. 2. THE REGISTRY HAS REPORTED A DELAY OF 30 DAYS IN FILING THE APPEAL. AS PER THE APPLICATION FOR CONDONATION OF DELAY, THE DELAY OCCURRED DUE TO ILLNESS OF SHRI AMAR BEHARI PATHAK, PRESIDENT OF TRUST, WHO WAS ADVISED STRICT BED REST ON BHUVAN HRIDAY ANAND VRINDAVAN SEWA SANSTHAN PURANA SHAHAR, VRINDABAN, MATHURA. PAN NO. AA CTB0992J (ASSESSEE) V S .. CIT - 1 AGRA . (R EVENUE ) DATE OF HEARING 1 1 . 0 4 .201 7 DATE OF PRONOUNCEMENT 28 .0 4 .201 7 I.T.A NO. 35 /AGRA/201 4 2 14.01.2014 AND WHO REMA IN ED UNDER CONSTANT OBSERVATION AND MEDICATION TILL 10.02.2014, CAUSING THE DELAY IN FILING OF THE APPEAL, WH ICH WAS BEYOND THE CONTROL OF THE ASSESSEE. THE APPLICATION IS ACCOMPANIED BY AN AFFIDAVIT OF SHRI AMAR BEHARI PATHAK, PRESIDENT OF TRUST, AND THE CONCERNED MEDICAL CERTIFICATE. IN VIEW THEREOF, FINDING THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN FILING THE APPEAL LATE, THE SAID DELAY OF 30 DAYS IS CONDONED. 3. THE LD. CIT HAS HELD AS FOLLOWS: THE ABOVE OBJECTS CONTRAVENE THE PROVISIONS OF SECTION 80G(5)(II), 80G(5)(III) AND EXPLANATION 3 TO SECTION 80G(5) OF THE IT ACT, 1961.THE RELEVANT PROVISIONS OF ABOVE SECTIONS ARE REPRODUCED FOR THE SAKE OF CLARITY - 80G(5)(II): THE INSTRUMENT UNDER WHICH THE INSTITUTION OR FUND IS CONSTITUTED DOES NOT, OR THE RULES GOVERNING THE INSTITUTION OR FUND DON NOT, CONTAIN ANY PROVISION FOR THE TRANSFER OR APPLICATION AT ANY TIME OF THE WHOLE OR ANY PART OF THE INCOME OR ASSETS OF THE INSTITUTION OR FUND FOR ANY PURPOSE OTHER THAN A CHARITABLE PURPOSE; 80G (5)(III): THE INSTITUTION OR FUND IS NOT EXPRESSED TO BE FOR THE BENEFIT OF ANY PARTICULAR RELIGIOUS COMMUNITY OR CASTE; EXPLANATION 3 TO SECTION 80G: IN THIS SECTION, 'CHARITABLE PURPOSE' DOES NOT INCLUDE ANY PURPOSE THE WHOLE OR SUBSTANTIALLY THE WHOLE O F WHICH IS OF A RELIGIOUS NATURE. 4. IN VIEW OF ABOVE, IT IS CLEAR THAT THE DOMINANT OBJECT OF THE TRUST ARE RELIGIOUS IN NATURE AND FOR THE BENEFIT, OF HINDU I.T.A NO. 35 /AGRA/201 4 3 COMMUNITY. IN THE CASE CIT VS UPPER GANGAGE SUGAR MILLS LTD.(1985) 154 ITR 308 (CAL), ESTABLISHME NT OR MAINTENANCE OF PUBLIC PLACES OF WORSHIP AND PRAYER HALLS HAS BEEN HELD TO BE A RELIGIOUS PURPOSE. THE CALCUTTA DECISION (154 ITR 308(CAL) HAS BEEN AFFIRMED IN UPPER GANGES SUGAR MILLS LTD. VS. CIT, (1997) 227 ITR 578 (SC). 5. FROM THE ABOVE IT IS CLE AR THAT THE ASSESSEE SOCIETY DOES NOT QUALIFY THE CONDITIONS LAID DOWN IN SECTION 80G(5)(II), 80G(5)(III) & 80G(5B) AND IT IS NOT A TRUST FOR 'CHARITABLE PURPOSE' WITHIN MEANING OF EXPLANATION 3 BELOW 80G OF IT ACT,L96L. THEREFORE, IT DOES NOT QUALIFY FOR GRANT OF APPROVAL U/S 80G (5) OF IT ACT, 1961. AFTER CONSIDERING ALL THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AS DISCUSSED ABOVE, THE APPLICATION DATED 01.07.2013 IN FORM NO.10G FOR GRANT OF APPROVAL U/S 80G(5) OF I.T.ACT,1961 IS HEREBY REJECTED. 4. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE LD. CIT, WHILE WRONGLY REJECTING THE ASSESSEES APPLICATION, ERRED IN HOLDING THAT SOME OF THE OBJECTS OF THE TRUSTS ARE RELIGIOUS IN NATURE; THAT THE LD. CIT ERRED IN NOT PROVIDING ANY OPPORTUNITY O F BEING HEARD TO THE ASSESSEE; AND THAT THE LD. CIT FURTHER ERRED IN IGNORING THE PROVISIONS OF SECTION 80G(5) (B) OF THE ACT, ACCORDING TO WHICH, NOTWITHSTANDING SECTION 80G(5)(II) AND EXPLANATION - 3, WHERE A SUM NOT EXCEEDING 5% OF THE TOTAL INCOME OF THE TRUST IS APPLIED FOR RELIGIOUS PURPOSES , THE PROVISIONS OF SECTION 80G ARE APPLICABLE. 5. THE LD. DR RELIED ON THE IMPUGNED ORDER. I.T.A NO. 35 /AGRA/201 4 4 6. WE HAVE HEARD BOTH THE PARTIES AND HAVE PERUSED THE RELEVANT MATERIAL ON RECORD. 7. SECTION 80G(5B) WAS INTRODUCED IN THE ACT BY FINANCE ACT 1999 W.E.F. 01.04.2000, TO PROVIDE THAT NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 80G(5)(II) AND EXPLANATION 3 TO SECTION 80G, IF THE EXPENDITURE INCURRED BY THE INSTITUTION IN ANY PREVIOUS YEAR DOES NOT EXCEED 5% OF ITS TOTAL RECEIPTS, IT SHALL BE DEEMED TO BE AN INSTITUTION TO WHICH THE PROVISIONS OF SECTION 80G WOULD APPLY. AS PER THE RECORD, THE ASSESSEE TRUST HAD PLACED ITS INCOME AND EXPENDITURE ACCOUNT (APB 19) FOR THE PERIOD ENDING ON 31.0 3.2013 BEFORE THE LD. CIT. HOWEVER, THE LD. CIT DID NOT RETURN ANY FINDING, EITHER THAT ANY EXPENDITURE INCURRED BY THE TRUST WAS RELIGIOUS EXPENDITURE, OR THAT THE TRUST HAD INCURRED EXPENDITURE IN EXCESS OF 5% OF ITS RECEIPTS, FOR RELIGIOUS PURPOSES. THE GAU SEWA AND BHANDARA OR FREE KITCHEN EXPENSES, IN ACCORDANCE WITH SHRI RADHA RAMAN NIWAS TRUST, RENDERED BY THIS BENCH OF THE TRIBUNAL VIDE ORDER (APB 40 - 83) IN ITA NOS. 541 AND 542 AGRA, 2012, VIDE ORDER DATED 22.03.2013, AS APPROVED BY THE HONBLE JU RISDICTIONAL HIGH COURT VIDE ORDER (APB 84 - 87) DATED 19.09.2013 IN ITA NO. 202/2013, CANNOT BE TERMED AS EXPENDITURE FOR RELIGIOUS PURPOSES. THEN, IN CIT VS. SRI JAGANNATH JEW, 107 ITR 9 (SC), IT WAS HELD THAT A PREPONDERANT PART OF THE INCOME WAS SPENT ON GENERAL PUBLIC CAUSES LIKE POOR FEEDING, ART GALLERY, AVIARY, MENAGERIE AND KEEPING A GARDEN. I.T.A NO. 35 /AGRA/201 4 5 8. THEN, IN A SIMILAR MATTER, IN ANANT SHRI VIBHUSHIT JAGATGURU NIBARKACHARYA SHRI MUKUND DEVACHARYA PEETH SEWA SAMITI CHARITABLE TRUST VS. CIT, THIS BENCH, VIDE ORDER (COPY FILED) DATED 30.11.2016, AUTHORED BY ONE OF US, THE LD. A.M., IN ITA NO.318/AGRA/2013, IT HAS BEEN HELD AS FOLLOWS: 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED MATERIAL ON RECORD. IT IS UNDISPUTED FACT THAT THE LD. CIT HAS NOT CO NSIDERED THE PROVISION OF SECTION 80G(5B), AS CONTENDED BY THE LD. AR FOR THE ASSESSEE. WE FIND THAT THE ASSESSEE HAD GIVEN A COPY OF ITS ACCOUNTS AND OTHER EVIDENCES WITH REGARDS TO CLAIM FOR GRANT OF APPROVAL U/S 80G(5) OF I.T. ACT 1961. HOWEVER, THE ASS ESSEES CLAIM OF APPLICABILITY OF SECTION 80G(5B) OF THE ACT, ACCORDING TO WHICH, NOTWITHSTANDING CLAUSE (II) OF SUB SECTION 5 AND EXPLANATION 3, WHERE A SUM NOT EXCEEDING 5% OF THE TOTAL INCOME OF THE TRUST IS APPLIED FOR RELIGIOUS PURPOSES THE PROVISION S OF SECTION 80G(5) ARE APPLICABLE. WE ARE NOT INCLINED TO DEAL WITH THE CASE ON MERITS. IN OUR CONSIDERED VIEW, THE APPROPRIATE ACTION WOULD BE TO REMIT THE MATTER TO THE CIT TO RE - DECIDE THE CLAIM OF THE ASSESSEE BY CONSIDERING THE PROVISIONS OF SECTION 80G(5B) OF THE ACT. IT IS SO ORDERED. 9. IN VIEW OF THE ABOVE, TH IS MATTER IS REMITTED TO THE LD. CIT TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW ON DEALING WITH THE ASSESSEES CLAIM OF APPLICABILITY OF SECTION 80G(5B) OF THE ACT, ON AFFORDING DUE AND AD EQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE NO DOUBT, SHALL CO - OPERATE IN THE FRESH I.T.A NO. 35 /AGRA/201 4 6 PROCEEDINGS BEFORE THE LD. CIT. ALL PLEAS AVAILABLE TO THE ASSESSEE UNDER THE LAW SHALL REMAIN SO AVAILABLE. ORDERED, ACCORDINGLY. 10. IN THE RESULT, THE A PPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON 28 / 0 4 / 2017 . SD/ - SD/ - ( D R . MITHA LAL MEENA) (A.D. JAIN) ACCOU N TANT MEMBER JUDICIAL MEMBER DATED 28 / 0 4 /201 7 *AKV* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR