M/s. Shri Chatrapati Shivaji Maharaj Memoria National Committee, New Delhi V. ITO (E), New Delhi

ITA 3521/DEL/2015

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8854 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2010-2011
• Appeal Filed On: 02-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ROHIT JAIN; MEENAL GOYAL
• Keywords: Charitable institution; Additional evidence; Set aside
• Section: 80G; 12A; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI FRIDAY BENCH D : NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI K.N. CHARY, JUDICIAL MEMBER ITA NO. 3521/DEL/2015 ASSESSMENT YEAR : 2010-11 SHRI CHATRAPATI SHIVAJI MAHARAJ MEMORIAL NATIONAL COMMITTEE, B-14/A, QUTAB INSTITUTIONAL AREA, NEW DELHI 110 016 (PAN: AAFTS3397H) VS. ITO(E), WARD 2(1), 24 TH FLOOR, BLOCK E-2, PRATYAKSH KAR BHAWAN, CIVIC CENTRE, NEW DELHI 110 002 (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ROHIT JAIN, ADV. & MS. MEENAL GOYAL, CA RESPONDENT BY : MS. RAKHI VIMAL, SR. DR. DATE OF HEARING : 28.07.2020 DATE OF PRONOUNCEMENT : 28 .07.2020 ITA NO. ITA NO. ITA NO. ITA NO.3521 3521 3521 3521/DEL/20 /DEL/20 /DEL/20 /DEL/2015 1515 15 2 ORDER PER K.N. CHARY, JM : AGGRIEVED BY THE ORDER DATED 12/3/2015 IN APPEAL NO. 91/13-14 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APP EALS)-21, NEW DELHI (LD. CIT(A)) FOR THE ASSESSMENT YEAR 2010-11 IN THE CASE OF SHRI CHATRAPATI SHIVAJI MAHARAJ MEMORIAL NATIONAL COMMIT TEE, NEW DELHI (THE ASSESSEE), THIS APPEAL IS PREFERRED BY THE A SSESSEE. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A CHARITABLE SOCIETY, REGISTERED UNDER THE SOCIETIES REGISTRATIO N ACT, 1860 VIDE REGISTRATION NO. S-1205 DATED 03.10.1981 AND SECTIO N 12A OF THE INCOME TAX ACT, 1961 VIDE ORDER NO. DIT(E)/2010-2011/S-47 65/2349 DATED 28.03.2011 WITH THE AIMS AND OBJECTIVES AS DEFINED IN ITS MEMORANDUM OF ASSOCIATION, PARTICULARLY TO PROMOTE CONCEPTS AN D PHILOSOPHY OF SHRI CHATRAPATI SHIVAJI MAHARAJ. THE ASSESSEE-SOCIETY I S ALSO APPROVED U/S. 80G OF THE INCOME TAX ACT, 1961 VIDE ORDER NO. DIT( E)/2008-09/S- 4765/1881 DATED 08.10.2008. THE ASSESSEE FILED IT S RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010-11 ON 05.10.2020 SHOWING T HE INCOME AS NIL. LD. ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS RECEIVED CERTAIN SUMS TOWARDS AMENITIES AND MAINTENANCE CHARGES W ITH RESPECT TO A PART OF THE PROPERTY HELD BY THE ASSESSEE-SOCIETY AND HAD BEEN GIVEN ON LEASE. HE THEREFORE, TREATED IT AS FEE/CONSIDERAT ION FOR CARRYING THE ACTIVITY OF RENDERING ANY SERVICE IN RELATION TO AN Y TRADE, COMMERCE OR ITA NO. ITA NO. ITA NO. ITA NO.3521 3521 3521 3521/DEL/20 /DEL/20 /DEL/20 /DEL/2015 1515 15 3 BUSINESS, NOT INCIDENTAL TO THE OBJECT OF THE TRUST . ON THIS PREMISE, THE LD. AO INVOKED THE PROVISO TO SECTION 2(15) OF THE I.T. ACT, 1961 (THE ACT) AND MADE THE ADDITION TO THE TUNE OF RS. 1,74,49,12 4/-. 3. WHEN THE ASSESSEE PREFERRED AN APPEAL, LD. CIT(A ) HELD THAT THE ASSESSEE-TRUST DID NOT FULFILL ITS AIMS AND OBJECTS AND THEREFORE, ITS ACTIVITY ESPECIALLY DURING THE PERIOD UNDER CONSIDERATION, C AN HARDLY COME UNDER THE AMBIT OF CHARITY AND THEREFORE, SUCH ACTIVITIE S BELIE ITS CLAIM AS A TRUST FOR CHARITABLE PURPOSES AS DEFINED IN SECTI ON 2(15) OF THE ACT. ON THIS PREMISE, LD. CIT(A) DECLINED TO CONSIDER THE CASE OF THE ASSESSEE FOR THE PURPOSE OF SECTION 2(15) OF THE ACT HOLDING THAT THE QUESTION OF APPLICABILITY OR OTHERWISE OF THE PROVISO TO SECTIO N 2(15) OF THE INCOME TAX ACT, 1961 DOES NOT ARISE. CONSEQUENTLY, THE L D. CIT(A) RECORDED THAT THE LD. AO HAS RIGHTLY DENIED THE BENEFIT U/S. 11 & 12 OF THE ACT TO THE ASSESSEE-TRUST, ALBEIT ON A DIFFERENT REASONING . 4. ASSESSEE IS, THEREFORE, AGGRIEVED BY SUCH FINDIN GS OF THE LD. CIT(A) AND PREFERRED THIS APPEAL BEFORE US CONTENDI NG THAT LD. CIT(A) IGNORED THE FINDINGS OF THE LD. AO WHILE REACHING T O THE CONCLUSION THAT THE ASSESSEE-TRUST DID NOT FULFILL ITS AIMS AND OBJ ECTS AND ITS ACTIVITIES AND DECLARATION TO EXIST AS A TRUST FOR CHARITABL E PURPOSES WITHIN THE MEANING OF SECTION 2(15) OF THE ACT. ACCORDING T O THE LD. AR THE REASONING ADOPTED BY THE LD. CIT(A) RUNS CONTRARY TO THE FINDINGS OF THE LD. AO, HE SUBMITTED THAT WHEN THE LD. AO BASED HIS FINDING FOR ITA NO. ITA NO. ITA NO. ITA NO.3521 3521 3521 3521/DEL/20 /DEL/20 /DEL/20 /DEL/2015 1515 15 4 DENYING THE BENEFIT OF SECTION 11 & 12 OF THE ACT O N THE GROUND THAT THE RECEIPT OF AMOUNTS IN RESPECT OF A PART OF THE PROP ERTY AMOUNTS TO FEE/CONSIDERATION FOR CARRYING THE ACTIVITY OF REND ERING SERVICES IN THE NATURE OF TRADE, COMMERCE OR BUSINESS WHICH IS NOT INCIDENTAL TO THE OBJECTS OF THE TRUST WHEREAS LD. CIT(A) HAS GIVEN A GO-BYE TO THE OBSERVATIONS OF THE AO AND REACHED TO THE CONCLUSI ON THAT THE FINDINGS OF THE AO ARE JUSTIFIABLE ON A DIFFERENT REASONS I.E. THE ACTIVITIES OF THE ASSESSEE DOES NOT JUSTIFY THE DECLARATION TO EXIST OF THE ASSESSEE AS TRUST FOR CHARITABLE PURPOSE AND ON THAT SCORE LD. CIT(A) DECLINED TO CONSIDER THE CONTENTIONS OF THE ASSESSEE AS TO THE NATURE OF THE ACTIVITIES CONDUCTED BY THE ASSESSEE AND TO SEEK OR LOOK INTO THE MATERI AL IN SUPPORT THEREOF. HE, THEREFORE, SUBMITS THAT THE ASSESSEE IS NOW REA DY WITH THE ADDITIONAL EVIDENCE IN SUPPORT OF THEIR CONTENTIONS FOR THEIR CLAIM AS A CHARITABLE TRUST WITHIN THE MEANING OF SECTION 2(15) OF THE A CT. 5. LD. DR DISPUTED THE CONTENTIONS RAISED BY THE AS SESSEE AND SUBMITTED THAT THE LD. CIT(A) DID NOT DRAW A DIFFER ENT VIEW FROM THE AO, BUT ON THE OTHER HAND HE HAD EXAMINED THE CASE OF THE ASSESSEE TO A DIFFERENT LEVEL AND SUPPORTED THE FINDINGS OF THE A O WITH SOME OTHER REASONS ALSO. SHE, THEREFORE, SUBMITS THAT THE ASS ESSEE HAS NO CASE TO ARGUE. IN RESPECT OF THE ADDITIONAL EVIDENCES, I T IS HER SUBMISSIONS THAT IN VIEW OF THE DECISIONS OF THE ITAT, E BENCH, NE W DELHI DATED 12.10.2015 IN THE CASE OF MAHALAXMI BULLONS PVT. LT D. VS. DCIT IN ITA ITA NO. ITA NO. ITA NO. ITA NO.3521 3521 3521 3521/DEL/20 /DEL/20 /DEL/20 /DEL/2015 1515 15 5 NO. 6036 & 6036/DEL/2014 (AY 2011-12 & 2012-13) AND IN THE CASE OF NORTH DELHI BULLION TRADES PVT. LTD. VS. DCIT, CC-2 2, NEW DELHI PASSED IN ITA NOS. 6033, 6034 & 6035/DEL/2014 (AY 20110-11 , 2011-12 & 2012-13) AND ITAT, B BENCH HYDERABAD DECISION DAT ED 22.2.2012 PASSED IN THE CASE OF M/S SRS & SRI SAI GANESH PROD UCTIONS VS. ACIT IN IT(SS)A NO. 19/HYD/2000 BLOCK PERIOD AYS. 1997-98 T O 2003-04 (TILL 21.2.2003) AND REVENUES APPEAL NO. 20/HYD/2000, A T THIS STAGE SUCH EVIDENCES CANNOT BE RECEIVED BECAUSE THE ASSESSEE F AILED TO JUSTIFY ITS CONDUCT IN NOT PRODUCING THEM AT APPROPRIATE STAGE . 6. WE HAVE GONE THROUGH THE RIVAL SUBMISSIONS AND W E ARE UNABLE TO ACCEPT THE CONTENTION OF THE LD. DR THAT LD. CIT(A) CONSIDERED THE CASE OF THE CASE OF THE ASSESSEE ON A FURTHER SCRUTINY I N AS MUCH AS THE LD. CIT(A) HIMSELF RECORDED IN PARA NO. 6.3 THAT THE AO WAS JUSTIFIED IN THE DENIAL OF EXEMPTION U/S. 11 & 12 OF THE ACT, ASSESS EE ALBEIT ON A DIFFERENT REASONING MENTIONED IN THE ASSESSMENT ORDER. IT IS NOT A CASE OF THE REVENUE THAT WHILE DECLINING TO CONSIDER THE CASE OF THE ACTIVITIES THEREOF FOR THE PURPOSE OF SECTION 2(15) OF THE ACT , LD. CIT(A) HAD SOUGHT ANY MATERIAL FROM THE ASSESSEE AND ON NOT B EING SATISFIED WITH SUCH MATERIAL OR EVIDENCES, THE LD. CIT(A) CAME TO THE CONCLUSION THAT THE ACTIVITIES OF THE ASSESSEE SHOW THAT THE ASSESS EE HAS NOT BEEN FULFILLING ITS AIMS AND OBJECTS AND THEREFORE, IT CANNOT CLAIM TO COME UNDER THE AMBIT OF CHARITY AND CONSEQUENTLY U/S. 2(15) OF THE ACT. NON- ITA NO. ITA NO. ITA NO. ITA NO.3521 3521 3521 3521/DEL/20 /DEL/20 /DEL/20 /DEL/2015 1515 15 6 CONSIDERATION OF THIS ASPECT BY THE LD. CIT(A) LEFT A GREY AREA WHICH THE ASSESSEE COULD NOT TREAD BY PRODUCING THE RELEVA NT MATERIAL. WE ARE, THEREFORE, SATISFIED THAT THERE WAS NO OPPORTUNITY FOR THE ASSESSEE TO PUT- FORTH THEIR CONTENTIONS ON THE ASPECT OF THE ACTIVI TIES VIS--VIS THE PRODUCTION OF ADDITIONAL EVIDENCES BY THE ASSESSEE AND WE ARE OF THE CONSIDERED OPINION THAT IN THE INTEREST OF JUSTICE, THE SAME HAS TO BE RECEIVED. THE DECISIONS RELIED UPON BY THE LD. DR ARE NOT APPLICABLE TO THE PRESENT CASE. 6.1 AS WE HAVE STATED EARLIER THAT THE LD. CIT(A) D ID NOT CONSIDER THE CASE OF THE ASSESSEE IN LIGHT OF AOS PERSPECTIVE, TO EITHER ACCEPT OR DISCARD THE ELIGIBILITY OF THE ASSESSEE FOR THE BEN EFIT U/S. 11 & 12 OF THE ACT, WITH REFERENCE TO SECTION 2(15) OF THE ACT, W E DO NOT HAVE ANY ASSISTANCE FROM THE LD. FIRST APPELLATE AUTHORITYS ORDER ON THIS ASPECT. FURTHER TO REACH A JUST CONCLUSION ON THIS ASPECT C ONSIDERATION OF THE ADDITIONAL EVIDENCES BY THE LD. CIT(A) IS NECESSARY . WE, THEREFORE HOLD THAT IT IS A FIT CASE TO SET ASIDE THE IMPUGNED OR DER AND TO REMAND THE ISSUE TO THE FILE OF THE LD. CIT(A) TO TAKE A FRESH VIEW ON THE ASPECT OF THE APPLICABILITY OF SECTION 2(15) OF THE ACT AND PROVI SO THEREOF IN LIGHT OF THE CONTENTIONS PUT-FORTH AND ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE. NEEDLESS TO SAY THAT REASONABLE OPPORTUN ITY SHOULD BE GIVEN TO THE ASSESSEE. WE ORDER ACCORDINGLY. ITA NO. ITA NO. ITA NO. ITA NO.3521 3521 3521 3521/DEL/20 /DEL/20 /DEL/20 /DEL/2015 1515 15 7 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ABOVE DECISION WAS PRONOUNCED ON 28 TH JULY, 2020. SD/- (G.S. PANNU) SD/- (K.N. CHARY) VICE PRESIDENT JUDICIAL MEMBER SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT : 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR