ASST CIT (E) I(1), MUMBAI V. JAMSHETJEE TATA TRUST, MUMBAI

ITA 3807/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4198 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 19-01-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 22-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHRIDR
• Assessee Lawyers: DI LIP J THAKKAR
• Keywords: Charitable institution; Maximum Marginal Rate; Earning of tax free income
• Section: 143(3); 263; 12

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI J BENCH BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & RAM LAL NEGI,JUDICIAL MEMBER /.ITA NO.3807/MUM/2015, /ASSESSMENT YEAR-2011-12 ACIT-(EXEMPTION)-I(1) ROOM NO.506, 5 TH FLOOR, PIRAMAL CHAMBER, LALBAUG, MUMBAI-400 012. VS JAMSHETJEE TATA TRUST BOMBAY HOUSE, 24, HOMI MODY STREET MUMBAI-400 001. PAN:AAATJ 0095 N ( / APPELLANT) ( / RESPONDENT) /ASSESSEE BY : SHRI DILIP J. THAKKAR / REVENUE BY : SHRI ALOK JOHRI-DR / DATE OF HEARING : 19.01.2016 / DATE OF PRONOUNCEMENT : 04.02.2016 , 1961 1961 1961 1961 254 254 254 254( (( (1 11 1) )) ) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER DATED 27.3.2004, OF CIT(A)-7 THE ASSESSING OFFICER (AO) HAS FILED THE PRESENT APPEAL RAISING FOUR EFFECTIVE GROUNDS OF AP PEAL(GROUND NO.1-5).THE ASSESSEE TRUST FILED ITS RETURN OF INCOME ON 29.9.2011,DECLARING TOTAL I NCOME AT RS.NIL.THE AO COMPLETED THE ASSESSMENT U/S. 143(3) OF THE ACT ON 25.2.2014 DET ERMINING THE INCOME OF THE ASSESSEE AT RS.2, 08,88,89,106/-. 2. DURING THE ASSESSMENT PROCEEDINGS,THE AO OBSERVED T HE ASSESSEE HAD SOLD ONE CRORE SHARES OF TCS LTD. FOR RS.537.10 CRORES IN THE EARLIER AY, TH AT IT HAD RE-INVESTED THE PROCEEDS BY ACQUIRING 8% CUMULATIVE REDEEMABLE PREFERENCE SHARES OF TATA SONS LTD. (TSL), THAT IT HAD SHOWN PROFIT, ON SALE OF SHARES DIRECTLY IN THE BALANCE SHEET AS INVESTMENT RESERVE INSTEAD OF ROUTING IT THROUGH THE INCOME AND EXPENDITURE ACCOUNT, THAT THE INVEST MENT OF CAPITAL GAIN IN THE PREFERENCE SHARES WAS VIOLATIVE OF THE PROVISIONS OF SECTION 13(1)(D ) AND 13(2)(H) OF THE ACT, THAT THE EXEMPTION U/S. 11 WAS DENIED TO THE ASSESSEE FOR THE EARLIER AY. FOLLOWING THE ORDER FOR AY.2010-11,THE AO HELD THAT PROVISIONS OF SECTIONS 13(1)(D) AND 13 (2)(H) OF THEACT WERE APPLICABLE FOR THE YEAR UNDER CONSIDERATION ALSO, THAT THE DIVIDEND INCOME EARNED BY THE ASSESSEE WAS NOT EXEMPT U/S. 10(34) AND 10(35) OF THE ACT. DURING THE ASSESSMENT PROCEEDINGS THE AO ALSO FOUND THAT IN THE EARLIER YEAR, THE THEN AO HAD DENIED THE EXEMPTION TO THE ASSESSEE ON THE GRANTS GIVEN TO THE STUDENTS IN INDIA FOR STUDIES ABROAD.FOLLOWING THE ORDER FOR AY.2011-12,THE AO HELD THAT THE AMOUNT SPENT BY THE ASSESSEE UNDER THE HEAD EDUCAT ION GRANT WAS NOT ENTITLED FOR CLAIMING EXEMPTION U/S.11 OF THE ACT. 3. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREF ERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA). AFTER CONSIDERING THE SUBMISSION O F THE ASSESSEE, THE ASSESSMENT ORDER AND THE ORDER OF THE ITAT MUMBAI FOR THE AY 2010-11,HE HELD THAT THE ASSESSEE HAD COMMITTED BREACH OF SEC.13(1)(D) AND 13(2)(H) OF THE ACT, THAT THE E NTIRE INCOME OF THE ASSESSEE WOULD NOT BE SUBJECT TO MAXIMUM MARGINAL RATIO OF TAX U/S.164(2) OF THE ACT,THAT EXEMPTION U/S.11 OF THE ACT ITA/3807/M/15,AY.11-12-JAMSHETJEE TATA TRUST 2 WOULD BE AVAILABLE ONLY FOR THE INCOME TO THE EXTEN T THE SAME WAS DERIVED IN CONFORMITY WITH SECTION 11 OF THE ACT AND APPLIED DURING THE YEAR F OR SUCH PURPOSES OF CHARITABLE NATURE. ACCORDINGLY,HE DIRECTED THE AO TO RE-COMPUTE THE EN TITLEMENT OF EXEMPTION TO THE ASSESSEE U/S.11 OF THE ACT. WITH REGARD TO DENIAL OF EXEMPTI ON IN RESPECT OF DIVIDEND INCOME,HE HELD THAT SUCH INCOME WAS EXEMPT U/S.10(34),10(35) AND 10(38) OF THE ACT, THAT SAME COULD NOT BE BROUGHT TO TAX BY APPLYING SECTION 11AND13 OF THE ACT.REGAR DING DENIAL OF EXEMPTION IN RESPECT OF GRANTS GIVEN TO STUDENTS IN INDIA FOR STUDIES ABROAD THE F AA HELD THAT GRANTS GIVEN FOR HIGHER EDUCATION ABROAD FULFILLED THE CONDITION OF APPLICATION OF MO NEY FOR SUCH PURPOSE IN INDIA, THAT THE AMOUNT IN QUESTION WAS ENTITLED FOR THE EXEMPTION ENVISAGE D U/S.11 OF THE ACT. 4. DURING THE COURSE OF HEARING BEFORE US THE DR LEFT THE ISSUE TO THE DISCRETION OF THE BENCH. THE AR STATED THAT IDENTICAL ISSUE WAS DECIDED IN FAVOU R OF THE ASSESSEE BY THE TRIBUNAL WHILE, ADJUDICATING THE APPEAL FOR AY.2010-11 IN ITA NO.70 06/MUM/2013 DT.26.3.2014. HE ALSO REFERRED TO THE CASE OF GURDAYAL BERLIA CHARITABLE TRUST (34 ITD 489) AND WORKING WOMENS FORUM (365 ITR353). 5 .WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL BEFORE US.WE FIND THAT THE AO HAD DENIED THE EXEMPTION TO THE ASSESSEE-TRUST ON M ANY A COUNTS INCLUDING NON APPLICATION OF 85% OF THE INCOME OF THE TRUST FOR CHARITABLE PURP OSES,VIOLATION OF THE PROVISIONS OF SECTION 13(1)(D) AND 13(2)(H) OF THE ACT ETC.HE WAS OF THE OPINION THAT THE INCOME SHOULD BE TAXED AT THE MAXIMUM MARGINAL RATE AND THAT THE ASSESSEE WAS NOT ENTITLED TO CLAIM DEDUCTION U/S.10(34),10 (35).WE FIND THAT ALL THE ISSUES RAISED BY THE AO H AVE BEEN DEALT BY THE TRIBUNAL WHILE DECIDING THE APPEAL FOR THE EARLIER AY.WE ARE REPRODUCING TH E RELEVANT PART OF THE ORDER AND SAME READS AS UNDER: 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE INCOME OF THE CHARITABLE/RELIGIOUS TRUST OR INSTITUTION IS EXEMPT U/S 11 OF THE INCOME TAX ACT SUBJECT TO THE FULFILLMENT OF CONDITIONS STIPULATED U/S 11 AND 13 OF THE ACT. THERE ARE TWO TESTES TO BE QUALIFIED BY THE TRUST OR INSTITUTION TO AVAIL THE EXEMPTION U/S 11 OF THE ACT. THESE TWO TESTS ARE BROADLY CATEGORIZED AS APPLICATION OF INCOME AND SOURCE OF INCOME THE CONDITIONS AND MANNER OF APPLICATION OF INCOME AS ENUMERATED U/S 11 (5) OF T HE ACT. WHEREAS THE CONDITION OF SOURCE OF INCOME ARE PROVIDED UNDER SECTION 13 AND PARTICULAR LY UNDER SUB SECTION 1 AND 2 OF SECTION 13 OF INCOME TAX ACT. WE ARE CONCERNED ONLY WITH THE COND ITIONS PRESCRIBED IN CLAUSE (D) OF SUB SECTION (1) AND CLAUSE (H) OF SUBS SECTION (2) OF S ECTION 13. BOTH THESE TESTS ARE TO BE QUALIFIED FOR EXEMPTION U/S 11. FIRST WE WILL DEAL WITH THE ISSUE OF APPLICATION OF INCOME IN CONFORMITY WITH THE PROVISIONS OF SECTION 11 OF THE ACT. FOR READY REFE RENCE WE QUOTE SECTION 11(1) AS UNDER:- XXXXXXXXX 6.1 AS PER SECTION 11(1), THE INCOME DERIVED FROM P ROPERTY HELD UNDER TRUST WHOLLY FOR CHARITABLE OR RELIGIOUS PURPOSES SHALL NOT BE INCLUDED IN THE TOTAL INCOME OF THE TRUST/INSTITUTION TO EXTENT SUCH INCOME IS APPLIED FOR CHARITABLE/RELIGIOUS PUR POSE IN INDIA, AND IN CASE SUCH INCOME IS ACCUMULATED OR SET APART FOR APPLICATION TO SUCH PU RPOSE IN INDIA TO THE EXTENT SUCH ACCUMULATION IS NOT IN EXCESS OF 15% OF THE TOTAL INCOME FROM SU CH PROPERTY. THUS IF THE INCOME DERIVED FROM THE PROPERTY HELD UNDER TRUST IS APPLIED TO THE EXT ENT OF 85% FOR CHARITABLE/RELIGIOUS PURPOSE IN INDIA, SUCH INCOME IS EXEMPT. THIS CONDITION OF APP LICATION OF 85% OF INCOME IS RELAXED TO THE EXTENT THAT IF THE SAME IS APPLIED IN THE IMMEDIATE SUBSEQUENT YEAR AND THE ASSESSEES TRUST ITA/3807/M/15,AY.11-12-JAMSHETJEE TATA TRUST 3 EXERCISE SUCH OPTION IN WRITING BEFORE THE EXPIRE O F TIME ALLOWED U/S 139(1) OF INCOME TAX ACT FOR FURNISHING THE RETURN OF INCOME THEN IT WOULD BE DE EMED TO BE INCOME APPLIED TO SUCH PURPOSE DURING THE PREVIOUS YEAR IN WHICH THE INCOME WAS DE RIVED. SUB SECTION 2 OF SECTION 11 FURTHER RELAXES THE CONDITION OF APPLICATION OR DEEMED APPL ICATION OF 85% OF INCOME DURING THE RELEVANT PREVIOUS YEAR IF SUCH INCOME IS ACCUMULATED OR SET APART EITHER IN WHOLE OR IN PART FOR APPLICATION TO SUCH PURPOSE IN INDIA SUBJECT TO THE CONDITION P ROVIDED UNDER THIS SUB SECTION 2 WHICH READS AS UNDER:- XXXXXXXXX 6.2 THUS THE TRUST WOULD NOT LOSE EXEMPTION EVEN 8 5% OF THE INCOME APPLIED OR DEEMED APPLIED DURING THE YEAR IF THE WHOLE OR PART OF SUCH INCOME IS ACCUMULATED OR SET APART FOR APPLICATION OF SUCH PURPOSE IN INDIA BY GIVING NOTICE IN WRITING T O THE AO AND THE MONEY SO ACCUMULATED OR SET APART IS INVESTED OR DEPOSITED IN THE FORM OR MODE SPECIFIED IN SUB SECTION (5) OF SECTION 11. THE MODE OF INVESTMENT AND DEPOSIT UNDER SUB SECTION (5 ) AS UNDER:- XXXXXXXXX 6.3 THE ASSESSEE BEFORE US UNDISPUTEDLY HAS NOT COM PLIED WITH THE CONDITION OF APPLICATION OF 85% OF THE INCOME DURING THE YEAR AS WELL AS THE IN VESTMENT/DEPOSIT OF ACCUMULATION OF THE SHORTFALL IN TERMS OF SUB SECTION (2) AND (5) OF SE CTION 11. THIS FACT IS APPARENT FROM THE DETAILS OF THE INCOME AND APPLICATION CLAIMED AS UNDER:- DETAILS OF INCOME LESS APPLICATI ON OF INCOME EXPENSES ON THE OBJECTS OF THE TRUST 160.93 ADMINISTRATIVE EXPENSES 2.73 CONTRIBUTION TO PTA FUND - 0.93 164.59 6.3 FOR THE PURPOSE OF APPLICATION OF INCOME IN TER MS OF SECTION 11 (1) AND (2), THE ENTIRE INCOME OF THE TRUST HAS TO BE CONSIDERED INCLUDING THE DIVIDEND AND LONG TERM CAPITAL GAIN CLAIMED AS EXEMPT U/S 10. IT IS PERTINENT TO MENTIO N THAT FOR AVAILING THE EXEMPTION U/S 11, THE INCOME DERIVED FROM THE PROPERTY HELD UNDER TRUST H AS TO BE CONSIDERED IRRESPECTIVE OF THE FACT THAT SOME OF THE INCOME SO DERIVED IS ALSO EXE MPT U/S 10, THEREFORE, 85% OF THE ENTIRE INCOME WITHOUT EXCLUSION OF DIVIDEND AND LONG TERM CAPITAL GAIN ON SHARES HAS TO BE APPLIED FOR SUCH PURPOSE IN INDIA FOR AVAILING DEDUCTION U/ S 11. AS IT IS CLEAR FROM THE DETAILS GIVEN ABOVE THAT OUT OF TOTAL INCOME OF RS. 714.42 CRORES , THE ASSESSEE TRUST HAS APPLIED DURING THE YEAR ONLY RS 164.59 CRORES. THE BALANCE HAS BEEN IN VESTED IN THE SHARES OF TATA SONS LTD WHICH IS NOT IN CONFORMITY WITH SECTION 11(5) OF TH E INCOME TAX ACT. THE LD. SENIOR COUNSEL SUBMITTED THAT THE ASSESSEE HAD EXERCISED OPTION UN DER CLAUSE 2 OF THE EXPLANATION AND THE INCOME APPLIED FOR SUCH PURPOSE IN NEXT YEAR SHALL BE DEEMED TO HAVE APPLIED IN PREVIOUS YEAR. HE HAS REFERRED THE LETTER DATED 13.09.2010 W HEREBY THE ASSESSEE EXERCISED ITS OPTION UNDER CLAUSE 2 OF THE EXPLANATION TO SECTION 11 (1) (A) OF THE INCOME TAX ACT. IT IS PERTINENT TO NOTE THAT WHILE COMPUTING THE APPLICATION OF THE IN COME THE ASSESSEE HAS EXCLUDED DIVIDEND AND LONG TERM CAPITAL GAIN AS WELL AS SHORT TERM CA PITAL GAIN AND SHOWN THE INCOME AT RS. 25.78 CRORES. WHEREAS THE TOTAL INCOME OF THE ASSES SEE INCLUDING CAPITAL GAIN AND DIVIDEND INCOME IS RS. 714.42 CRORES. TO MEET THE REQUIREMEN T OF 85% OF THE INCOME OF RS. 714.42 CRORES, THE ASSESSEE WAS REQUIRED TO APPLY OR DEEME D TO HAVE BEEN APPLIED THE INCOME TO THE EXTENT OF RS. 607.43 CRORES. AS PER THE DETAILS, TH E ASSESSEE HAS APPLIED RS. 164.93 CRORES ITA/3807/M/15,AY.11-12-JAMSHETJEE TATA TRUST 4 DURING THE YEAR AND NOTHING HAS BEEN BROUGHT BEFORE US TO SHOW THAT THE SHORTFALL OF MORE THAN 446 CRORES HAS BEEN APPLIED IN THE IMMEDIATE F OLLOWING YEAR. THEREFORE, APPARENTLY THE ASSESSEE TRUST HAS NOT APPLIED THE SHORTFALL OF MOR E THAN 446 CRORES IN THE IMMEDIATE NEXT YEAR IN TERMS OF THE EXPLANATION TO SECTION 11(1) O F THE ACT. BECAUSE THE ASSESSEE HAS ALREADY APPLIED THE ENTIRE BALANCE AMOUNT IN THE SHARES OF TATA SONS LTD., THEREFORE, THE QUESTION OF APPLICATION OF SHORTFALL IN THE IMMEDIATE NEXT YEAR DOES NOT ARISE. 7 NOW WE TURN TO THE ISSUE OF CONDITION OF SOURCE OF INCOME IN TERMS OF SECTION 13 OF THE INCOME TAX ACT. THE AO HAS DISALLOWED THE EXEMPTION ON TWO VIOLATIONS VIZ. VIOLATION OF SECTION 13(1)(D)(III) AND SECTION 13(2)(H). SO FAR AS THE CONDITIONS REQUIRED TO BE FULFILLED U/S 13(1)(D)(III) ARE CONCERNED ANY INCOME FROM THE SHA RES IN A COMPANY OTHER THAN PUBLIC SECTOR COMPANY OR SHARES PRESCRIBED OR FORM OF INVESTMENT UNDER CLAUSE (XII) OF SUB SECTION 5 OF SECTION 11 IS NOT EXEMPT U/S 11 OF THE ACT. SECTION 13(1)(D) READS AS UNDER:- XXXXXXXXXXX 7.1 IN THE CASE OF THE ASSESSEE THE DIVIDEND INCOME , LONG TERM CAPITAL GAIN AND SHORT TERM CAPITAL AGAIN DERIVED FROM THE SHARES OF TCS HELD BY THE AS SESSEE IN CONTRAVENTION OF SECTION 13(1)(D)(III). THE SHARES OF TCS WERE RECEIVED BY T HE ASSESSEE IN THE YEAR 2001-02 AND THERE IS NO DISPUTE THAT HOLDING OF THESE SHARES BY ASSESSEE IS BEYOND THE PERMITTED LIMIT OF TIME PERIOD PRESCRIBED U/S 13(1)(D). THE LD. SENIOR COUNSEL HOW EVER HAS ARGUED THAT THE BONUS SHARES RECEIVED BY THE ASSESSEE ON 19.06.2009 ARE NOT HELD BY THE ASSESSEE BEYOND THE LIMIT PERMITTED BY THE PROVISO TO SECTION 13(1)(D) OF THE ACT. THIS CO NTENTION OF THE LD. SENIOR COUNSEL IS NOT ACCEPTABLE SIMPLY ON THE REASON THAT THE TIME PERIO D PERMITTED UNDER PROVISO TO SECTION 13(1)(D) IS TO EXIT FROM NON PERMISSIBLE INVESTMENT/HOLDING OF SHARES AND CONVERT THE SAME INTO PERMISSIBLE INVESTMENT. CLAUSE (IIA) OF PROVISO HAS BEEN INSERTED BY THE FINANCE ACT 1991 TO SECURE THAT MERE ACCRETION OF THE EXISTING HOLDING OF SHARES BY WAY OF BONUS SHARES OR ACCEPTANCE OF DONATION IN KIND OR ANY ASSET NOT CONFORMING TO THE PROVISIONS OF SECTION 11(5) WILL NOT MAKE THE FUND OR TRUST OR INSTITUTION LOSE TAX EXEMPTION IF THE TRUST/INSTITUTION COVERT THE ASSET NOT CONFORMING TO SECTION 11(5) INTO PERMISSIBLE INVEST MENT WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH SUCH BONUS SHARES OR OTHER ASSETS ARE RECEIVED OR ON 31.3.1992 WHICHEVER IS LATER. THE EXPLANATORY NOTE ON THE PRO VISION AS ISSUED BY THE CBDT VIDE CIRCULAR NO. 621 DATED 19.12.1991 REPORTED IN 195 ITR (ST) 1 54 IS RELEVANT ON THIS POINT. PARA 15.2 OF THE SAID CIRCULAR READS AS UNDER:- FURTHER A NEW CLAUSE (IIA) HAS BEEN INSERTED IN TH E PROVISO IN CLAUSE (D) OF SUB SECTION (1) OF SECTION 13 TO SECURE THAT MERE ACCRETION TO THE EXISTING HOLDING OF SHARES BY WAY OF BONUS SHARES OR ACCEPTANCE OF DONATIONS IN KIND OR ANY ASSET NOT CONFORMING TO THE PROVISION OF SECTION 11(5) WILL NOT MAKE THE FUND O R TRUST OR INSTITUTION LOSE TAX EXEMPTION. THE TRUSTS OR INSTITUTIONS WILL, HOWEVER , BE' REQUIRED TO DISPOSE OR CONVERT THE ASSETS NOT CONFORMING TO THE REQUIREMENT OF SECTION 11(5) INTO PERMISSIBLE INVESTMENT WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH SUCH BONUS SHARES OR OTHER ASSETS ARE RECEIVED OR 31-3-1992, WHICHEVER IS LATE R. 7.2 THUS IT IS CLEAR THAT CLAUSE (IIA) OF THE PROV ISO TO SECTION 13(1)(D) WAS INSERTED WITH A VIEW THAT HOLDING OF THE ASSET NOT CONFORMING TO THE PRO VISIONS OF SECTION 11(5) WOULD NOT MAKE THE TRUST OR INSTITUTION LOSE TAX EXEMPTION IS SUCH ASS ETS WERE DISPOSED OFF OR CONVERTED INTO PERMISSIBLE INVESTMENT WITHIN ONE YEAR FORM THE END OF THE FINANCIAL YEAR IN WHICH SUCH ASSETS ITA/3807/M/15,AY.11-12-JAMSHETJEE TATA TRUST 5 WERE RECEIVED. DUE TO CERTAIN ANOMALIES AND HARDSHI P ARISING OUT OF THE REQUIREMENT OF THE PROVISO TO SECTION 13(1)(D) CLAUSE (IIA) WAS FURTHE R AMENDED VIDE FINANCE ACT 1992 WHEREBY THE PERIOD OF DISINVESTMENT ALLOWED UPTO 31ST MARCH 199 3 OR WITHIN ONE YEAR FORM THE END OF THE FINANCIAL YEAR IN WHICH THE SUCH ASSETS WERE RECEIV ED WHICHEVER IS LATER. 7.3 IN THE CASE IN HAND, THOUGH THE ASSESSEE HELD THE BONUS SHARES OF TCS FOR THE DURATION WHICH IS WITHIN THE TIME LIMIT PRESCRIBED UNDER CLAUSE (I IA) OF THE PROVISO TO SECTION 13(1)(D) THE ASSESSEE CONVERTED THE ASSETS BEING BONUS SHARES OF TCS INTO THE PREFERENTIAL SHARE OF TATA SONS LTD. JAMSETJI TATA TRUST 18 WHICH IS NOT A CONVERSI ON INTO THE ASSET/INVESTMENT PERMISSIBLE U/S 11(5) OF THE ACT. THEREFORE, CLAUSE (IIA) OF PROVIS O TO SECTION 13(1)(D) WOULD NOT RESCUE THE ASSESSEE FROM THE MISCHIEF OF SECTION 13(1)(D) (III ) OF THE INCOME TAX ACT. THE INTENT BEHIND THE INSERTION OF CLAUSE (IIA) OF THE PROVISO IS TO EXIT FORM NON PERMISSIBLE INVESTMENT, AND TO CONVERT INTO PERMISSIBLE INVESTMENT AND NOT TO JUST CHANGE ONE NON PERMISSIBLE INVESTMENT TO ANOTHER NON PERMISSIBLE INVESTMENT. IF IT IS PERMITTED IT WILL DEFEAT THE VERY PURPOSE OF OBJECT OF THE SAID CLAUS E OF THE PROVISO. 8. THE NEXT QUESTION ARISES IS, VIOLATION OF PROVIS IONS OF SECTION 13(2)(H) WHICH READS AS UNDER:- (H) IF ANY FUNDS OF THE TRUST OR INSTITUTION ARE, OR CONTINUE TO REMAIN, INVESTED FOR ANY PERIOD DURING THE PREVIOUS YEAR (NOT BEING A PERIOD BEFORE THE 1ST DAY OF JANUARY, 1971 ) IN ANY CONCERN IN WHICH ANY PERSON REFERRED TO IN SUB- SECTION (3) HAS A SUBSTANTIAL INTEREST. 8.1 THE AO HELD THAT INVESTMENT IN SHARES OF TATA S ONS LTD IS IN CONTRAVENTION OF CLAUSE (H) OF SUB SECTION 2 OF SECTION 13 BECAUSE TATA SONS LTD., IS A CONCERN IN WHICH THE PERSON REFERRED IN SUB SECTION 3 HAS SUBSTANTIAL INTEREST. LD. SENIOR COUNSEL THOUGH REITERATED THE ASSESSEES STAND TAKEN BEFORE THE AUTHORITIES BELOW HOWEVER HE HAS C ONTENDED THAT VIOLATION OF SECTION 13(2)(H) WOULD NOT RENDER THE ENTIRE INCOME OF THE TRUST LOS E EXEMPTION U/S 11. IN SUPPORT OF HIS CONTENTION HE HAS RELIED UPON THE DECISION OF THE TRIBUNAL IN THE CASE OF TATA EDUCATION TRUST AND TATA SOCIAL WELFARE TRUST (SUPRA). AS FAR AS THE VIOLATI ON OF CLAUSE (H) OF SECTION 13(2) IS CONCERNED WE FIND THAT THE AUTHOR OF THE ASSESSEE TRUST AND ITS RELATIVE DEFINITELY HAVE A SUBSTANTIAL INTEREST IN THE TATA SONS LTD, THEREFORE, THE INVESTMENT IN THE SHARES OF TATA SONS LTD IS CLEAR VIOLATION OF CLAUSE (H) OF SECTION 13(2). WE HAVE GIVEN OUR SERI OUS THOUGHT ON THE ISSUE AND ARE OF THE VIEW THAT VIOLATION OF SECTION 13(1)(D) AND SECTION 13(2 )(H) WOULD DISQUALIFY EXEMPTION OF INCOME FROM THE INVESTMENT IN NON CONFORMING OF SECTION 11(5) B UT NOT THE ENTIRE INCOME OF TRUST IF THE OTHER INCOME OF THE TRUST OTHERWISE FULFILL THE CONDITION FOR EXEMPTION. THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF TATA EDUCATION TRUST AND TA TA SOCIAL WELFARE TRUST (SUPRA) HAS DECIDED A SIMILAR ISSUE IN PARA 13 AS UNDER:- 13 WE HAVE HEARD THE PARTIES. THE ASSESSEE IS A P UBLIC CHARITABLE TRUST. DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL, THE ASSESSEE DERIVED ITS INCOME FROM INTEREST AND DIVIDEND. SINCE THE ASSESSEE CONTINUED TO HOLD THE SHARES OF TATA SONS LTD. BEYOND THE PERMITTED DATE PRESCRIBED FOR DISINVESTMENT U/S 13( 1)(D), THE EXEMPTION WAD DENIED BY THE AO AND THE ENTIRE INCOME OF THE ASSESSEE WAS BROUGHT T O TAX EXCEPT THE DIVIDEND INCOME RECEIVED ON SHARES OF TATA SONS LTD. ON APPEAL, THE LD. CIT(A) HAS HELD, FOLLOWING HIS APPELLATE ORDER DATED 20.06.2000 FOR AY 1996-97, THAT THE ENTIRE INCOME O F THE ASSESSEE WOULD NOT ATTRACT DISQUALIFICATION FOR THE PURPOSE OF SECTION 11 BUT ONLY THE INCOME DERIVED FORM THE INVESTMENTS FALLING IN PROHIBITED CATEGORY WOULD BE CHARGEABLE TO TAX. IN HIS APPELLATE ORDER FOR A.Y. 1996- 97, THE LD. CIT(A) HAS FOLLOWED THE DECISION OF THI S TRIBUNAL IN GURU DAYAL BERLIA CHARITABLE ITA/3807/M/15,AY.11-12-JAMSHETJEE TATA TRUST 6 TRUST, 34 ITD 489 IN WHICH IT HAS BEEN HELD THAT ON LY THE RELEVANT INCOME DERIVED FROM IMPERMISSIBLE INVESTMENT WOULD BE SUBJECTED TO TAX AND THE NON-FULFILLMENT OF THE CONDITION STIPULATED IN SECTION 13(1)(D)(III) WOULD NOT DEPRI VE A TRUST OF ITS EXEMPTION FROM TAX IN RESPECT OF OTHER INCOME WHICH HAS ALREADY BEEN GRANTED TO IT I N EARLIER YEARS. THE ORDER OF THE LD. CIT(A) IS IN CONFORMITY WITH THE ORDER OF THIS TRIBUNAL REFER RED TO BY HIM IN HIS APPELLATE ORDER FOR AY 1996-97. IN THIS VIEW OF THE MATTER,, HIS ORDER IS CONFIRMED. APPEAL FILED BY THE DEPARTMENT IS DISMISSED. 8.2 WE FURTHER NOTE THAT WHILE DECIDING THE SIMILA R ISSUE THE TRIBUNAL IN THE CASE OF GURU DAYAL BERLIA CHARITABLE TRUST VS. ITO HAS REPRODUCED THE RELEVANT PART OF THE EXPLANATORY NOTE ON THE FINANCE ACT 1984 VIDE CIRCULAR NO. 387 IN PARA 6 OF THE SAID ORDER WHICH READS AS UNDER:- 6 . BEING AGGRIEVED BY THE ORDERS OF THE CIT(A), THE ASSESSEE HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE REIT ERATED THE SUBMISSIONS, WHICH WERE MADE BEFORE THE IT AUTHORITIES AND STRONGLY URGED THAT T HEY SHOULD HAVE ACCEPTED THE ASSESSEE'S CONTENTION THAT IT WOULD LOSE EXEMPTION UNDER S. 11 OF THE ACT IN RESPECT OF THE DIVIDEND INCOME ONLY. HE WAS FAIR ENOUGH TO STATE THAT IT IS NOT IN DISPUTE THAT BY VIRTUE OF THE PROVISIONS OF S. 11 (5) OF THE ACT, THE ASSESSEE WOULD LOSE EXEMPTION U NDER S. 11 OF THE ACT, AS IT IS HOLDING 12,000 PREFERENCE SHARES OF THE NATIONAL RAYON CORPORATION LTD. HOWEVER, HE HASTENED TO STATE THAT THE ASSESSEE WOULD LOSE EXEMPTION UNDER S. 11 OF THE AC T IN RESPECT OF THE DIVIDEND INCOME RECEIVED ON THE SAID SHARES AND NOT IN RESPECT OF OTHER INCO ME EARNED BY IT. IN OTHER WORDS THE LEARNED COUNSEL FOR THE ASSESSEE WANTED TO IMPRESS UPON US THAT JUST CA SE THE ASSESSEE WAS NOT IN A POSITION TO DISPOSE OF THE SHARES OF NATIONAL RAYON CORPORATION LTD., IT SHOULD NOT LOSE EXEMPTION CONTEMPLATED UNDER S. 11 OF THE ACT IN RESPECT OF O THER INCOME EARNED BY IT. IN THIS CONNECTION H INVITED OUR ATTENTION TO CIRCULAR NO. 387 CONTAININ G EXPLANATORY NOTES ON THE FINANCE ACT, 1984, MORE PARTICULARLY PARAGRAPH 28.6 WHICH READS AS UND ER. 28.6 IT MAY BE NOTED THAT NEW SUB-S. (1A) INSERTED IN S. 161 OF THE IT ACT, WHICH PROVIDES FOR TAXATION OF THE ENTIRE INCOME RECEIVED BY TRUST S AT THE MAXIMUM MARGINAL RATE IS APPLICABLE ONLY IN THE CASE OF PRIVATE TRUSTS HAVIN G PROFITS AND GAINS OF BUSINESS. SO FAR AS THE PUBLIC CHARITABLE AND RELIGIOUS TRUSTS ARE CONC ERNED, THEIR BUSINESS PROFITS ARE NOT EXEMPT FROM TAX, EXCEPT IN THE CASES FALLING UNDER CL. (A) OR CL. (B) OF S. 11(4A) OF THE IT ACT. AS THE MAXIMUM MARGINAL RATE OF TAX UNDER THE NEW PROVISO TO S. 164(2) APPLIES TO THE WHOLE OR A PART OF THE RELEVANT INCOME OF A CHA RITABLE OR RELIGIOUS TRUST WHICH FORFEITS EXEMPTION BY VIRTUE OF THE PROVISIONS OF THE IT ACT IN REGARD TO INVESTMENT PATTERN OR USE OF THE TRUST PROPERTY FOR THE BENEFIT OF THE SETTLO R. ETC., CONTAINED IN S. 13(L)(C) AND (D) OF THAT ACT, THE SAID RATE WILL NOT APPLY TO THE BUSIN ESS PROFITS OF SUCH TRUST WHICH ARE OTHERWISE CHARGEABLE TO TAX. IN OTHER WORDS, WHERE SUCH A TRUST CONTRAVENES THE PROVISIONS OF S. 13(L)(C) OR (D) OF THE ACT, THE' MAXIMUM MARG INAL RATE OF INCOME TAX WILL APPLY ONLY TO THAT ART OF THE INCOME WHICH HAS FORFEITED EXEMP TION UNDER THE SAID PROVISIONS. 8.3 AFTER CONSIDERING THE EXPLANATORY NOTE THE TRIB UNAL DECIDED THE ISSUE BY HOLDING THAT THE PROVISION OF SECTION 164(2) ALONG WITH THE PROVISO THERETO WOULD COME INTO OPERATION AND ONLY SUCH INCOME WOULD BE BROUGHT TO TAX AT THE MAXIMUM MARGINAL RATE WHICH COULD NOT BE TREATED AS EXEMPTION BY VIRTUE OF NON FULFILLMENT OF CONDITION S OF INVESTMENT IN SPECIFIED SECURITIES AS PRESCRIBED U/S 11(5). THE HONBLE JURISDICTIONAL HI GH COURT IN THE CASE OF DIRECTOR OF INCOME ITA/3807/M/15,AY.11-12-JAMSHETJEE TATA TRUST 7 TAX (EXEMPTION) VS. SHETH MAFATLAL GAGALBHAI FOUNDA TION TRUST (249 ITR 533) AS HELD IN PARA 6 AS UNDER:- SECTION 164 OF THE INCOME-TAX ACT DOES NOT CREATE A CHARGE ON THE INCOME OF A DISCRETIONARY TRUST. THE WORD 'CHARGE' IN SECTION 1 64 MEANS 'LEVY'. SECTION 164(2) REFERS TO THE RELEVANT INCOME WHICH IS DERIVED FROM PROPER TY HELD UNDER TRUST WHOLLY FOR CHARITABLE OR RELIGIOUS PURPOSES. IF SUCH INCOME CO NSISTS OF SEVERABLE PORTIONS, EXEMPT AS WELL AS TAXABLE, THE PORTION WHICH IS EXEMPT IS TO BE LEFT OUT AND THE PORTION WHICH IS NOT EXEMPT IS CHARGED TO TAX AS IF IT IS THE INCOME OF THE ASSOCIATION OF PERSONS. THEREFORE, A PROVISO WAS INSERTED BY THE FINANCE ACT OF 1984 WIT H EFFECT FROM APRIL 1, 1985, UNDER WHICH IN CASES WHERE THE WHOLE OR ANY PART OF THE R ELEVANT INCOME IS NOT EXEMPT UNDER SECTION 11 OR SECTION 12 BECAUSE OF THE CONTRAVENTI ON OF SECTION 13(1)(D), THEN TAX SHALL BE CHARGED ON SUCH INCOME OR PART THEREOF, AS THE C ASE MAY BE, AT THE MAXIMUM MARGINAL RATE. IN OTHER WORDS, ONLY THE NON-EXEMPT INCOME PO RTION WOULD FALL IN THE NET OF TAX AS IF IT WAS THE INCOME OF THE ASSOCIATION OF PERSONS. ON THE OTHER HAND, SECTION 11(5) LAYS DOWN VARIOUS MODES OR FORMS IN WHICH A TRUST IS REQ UIRED TO DEPLOY ITS FUNDS. SECTION 13(1) LAYS DOWN CASES IN WHICH SECTION 11 SHALL NOT APPLY. UNDER SECTION 13(1)(D)(III), IT HAS BEEN LAID DOWN THAT ANY SHARE IN A COMPANY, NOT BEING A GOVERNMENT COMPANY, HELD BY THE TRUST AFTER NOVEMBER 30, 1983, SHALL RESULT IN FORFEITURE OF EXEMPTION. BY VIRTUE OF PROVISO (IIA) IT HAS BEEN LAID DOWN THAT ANY ASSET WHICH DOES NOT FORM PART OF PERMISSIBLE INVESTMENT UNDER SECTION 11(5) SHALL BE DISPOSED OF WITHIN ONE YEAR FROM THE END OF THE PREVIOUS YEAR IN WHICH SUCH ASSET IS ACQUIRED OR BY MARCH 31, 1993, WHICHEVER IS LATER. IN THE PRESENT CASE, THE ASSESSEE WAS REQUIRED TO DISP OSE OF THE SHARES UNDER THE SAID PROVISO BY MARCH 31, 1995 (SEE THE JUDGMENT OF THIS COURT I N I. T. A. NO. 81 OF 1999, DECIDED ON SEPTEMBER 14, 2000--DIRECTOR OF INCOME-TAX (EXEMPTI ONS) V. SHARDABEN BHAGUBHAI MAFATLAL PUBLIC CHARITABLE TRUST [2001] 247 ITR 1). THE SHARES HAVE NOT BEEN DISPOSED OF EVEN DURING THE ASSESSMENT YEAR IN QUESTION. NOW , UNDER SECTION 164(2) IT IS, INTER ALIA, LAID DOWN THAT IN THE CASE OF RELEVANT INCOME WHICH IS DERIVED FROM PROPERTY HELD UNDER TRUST FOR CHARITABLE PURPOSES, WHICH IS OF TH E NATURE REFERRED TO IN SECTION 11(4A), TAX SHALL BE CHARGED ON SO MUCH OF THE RELEVANT INC OME AS IS NOT EXEMPT UNDER SECTION 11. SECTION 164(2) WAS REINTRODUCED BY THE DIRECT T AX LAWS (AMENDMENT) ACT, 1989, WITH EFFECT FROM APRIL 1, 1989. EARLIER IT WAS OMIT TED BY THE DIRECT TAX LAWS (AMENDMENT) ACT, 1987. HOWEVER, THE LEGISLATURE INS ERTED A PROVISO BY THE FINANCE ACT, 1984, WITH EFFECT FROM APRIL 1, 1985. BY THE SAID P ROVISO, IT IS, INTER ALIA, LAID DOWN THAT WHERE THE WHOLE OR PART OF THE RELEVANT INCOME IS N OT EXEMPT BY VIRTUE OF SECTION 13(1)(D), TAX SHALL BE CHARGED ON THE RELEVANT INCO ME OR PART OF THE RELEVANT INCOME AT THE MAXIMUM MARGINAL RATE, THE PHRASE 'RELEVANT INCOME OR PART OF THE RELEVANT INCOME' IS REQUIRED TO BE READ IN CONTRADISTINCTION TO THE PHR ASE 'WHOLE INCOME' UNDER SECTION 161(1A). THIS IS ONLY BY WAY OF COMPARISON. UNDER S ECTION 161(1A), WHICH BEGINS WITH A NON OBSTANTE CLAUSE, IT IS PROVIDED THAT WHERE AN Y INCOME IN RESPECT OF WHICH A PERSON IS LIABLE AS A REPRESENTATIVE ASSESSEE CONSISTS OF PROFITS OF BUSINESS, THEN TAX SHALL BE CHARGED ON THE WHOLE OF THE INCOME IN RESPECT OF WH ICH SUCH PERSON IS SO LIABLE AT THE MAXIMUM MARGINAL RATE. THEREFORE, READING THE ABOVE TWO PHRASES SHOW THAT THE LEGISLATURE HAS CLEARLY INDICATED ITS MIND IN THE P ROVISO TO SECTION 164(2) WHEN IT ITA/3807/M/15,AY.11-12-JAMSHETJEE TATA TRUST 8 CATEGORICALLY REFERS TO FORFEITURE OF EXEMPTION FOR BREACH OF SECTION 13(1)(D), RESULTING IN LEVY OF MAXIMUM MARGINAL RATE OF TAX ONLY TO THAT P ART OF THE INCOME WHICH HAS FORFEITED EXEMPTION. IT DOES NOT REFER TO THE ENTIRE INCOME B EING SUBJECTED TO MAXIMUM MARGINAL RATE OF TAX. THIS INTERPRETATION OF OURS IS ALSO SU PPORTED BY CIRCULAR NO. 387, DATED JULY 6, 1984 (SEE [1985] 152 ITR (ST.) 1). VIDE THE SAID CI RCULAR, IT HAS BEEN LAID DOWN IN PARA. 28.6 THAT, WHERE A TRUST CONTRAVENES SECTION 13(1)( D) OF THE ACT, THE MAXIMUM MARGINAL RATE OF INCOME-TAX WILL APPLY ONLY TO THAT PART OF THE INCOME WHICH HAS FORFEITED EXEMPTION UNDER THE SAID PROVISION AND NOT TO THE E NTIRE INCOME. WE MAY ALSO ADD THAT IN LAW, THERE IS A VITAL DIFFERENCE BETWEEN ELIGIBILIT Y FOR EXEMPTION AND WITHDRAWAL OF EXEMPTION/FORFEITURE OF EXEMPTION FOR CONTRAVENTION OF THE PROVISIONS OF LAW. THESE TWO CONCEPTS ARE DIFFERENT. THEY HAVE DIFFERENT CONSEQU ENCES. IT IS INTERESTING TO NOTE THAT ALTHOUGH THE LEGISLATURE WITHDREW SECTION 164(2) BY THE DIRECT TAX LAWS (AMENDMENT) ACT, 1987, WHICH PROVISION WAS REINTRODUCED BY THE DIRECT TAX LAWS (AMENDMENT) ACT, 1989, THE LEGISLATURE DID NOT TOUCH THE PROVISO TO SECTION 164(2) WHICH HAS BEEN ON THE STATUTE BOOK RIGHT FROM APRIL 1, 1985. THE SAID PRO VISO WAS INSERTED BY THE FINANCE ACT, 1984, THE PROVISO SPECIFICALLY REFERS TO VIOLATION OF SECTION 13(1)(D) AND ITS CONSEQUENCES. IN THE CIRCUMSTANCES, WE FIND MERIT I N THE CONTENTION OF THE ASSESSEE THAT IN THE PRESENT CASE, THE MAXIMUM MARGINAL RATE OF TAX WILL APPLY ONLY TO THE DIVIDEND INCOME FROM SHARES IN MAFATLAL INDUSTRIES LIMITED A ND NOT TO THE ENTIRE INCOME. THEREFORE, INCOME OTHER THAN DIVIDEND INCOME SHALL BE TAXED AT THE NORMAL RATE OF TAXATION UNDER THE ACT. 8.4 FOLLOWING THE ABOVE DECISION WE HOLD THAT THE B REACH OF SECTION 13(1)(D) AND 13(2)(H) WOULD LEAD TO FORFEITURE OF EXEMPTION OF INCOME DERIVED F ROM SUCH INVESTMENT AND NOT THE ENTIRE INCOME WOULD BE SUBJECTED TO THE MAXIMUM MARGINAL RATE OF TAX U/S 164(2). THUS THE EXEMPTION U/S 11 IS AVAILABLE TO THE ASSESSEE ONLY ON THE INCOME TO THE EXTENT THE SAME IS DERIVED IN CONFORMITY OF SECTION 11 AND APPLIED DURING THE YEAR FOR SUCH PUR POSE OF CHARITABLE TRUST. 9. GROUND NO.2 IS REGARDING DENIAL OF EXEMPTION U/ S 10(34), 10(35) AND 10(38). 9.1 THE ASSESSEE CLAIMED THAT DIVIDEND INCOME ON SH ARES AND UNIT AND LONG TERM CAPITAL GAIN ON SALE OF SHARES ARE EXEMPT U/S 10(34), 10(35) AND 10 (38) RESPECTIVELY. THE AO DENIED THE EXEMPTION ON THE GROUND THAT THE INCOME DERIVED FRO M THE PROPERTY HELD BY THE TRUST AND NOT ANY OTHER PERSON, SECTION 11 EXCLUSIVELY DEALS WITH THE INCOME DERIVED FROM THE PROPERTY HELD UNDER TRUST AND NOT SECTION U/S 10(34), 10(35) AND 10(38) . HENCE THE AO HELD THAT THERE IS A VIOLATION U/S 13 AND AS A RESULT OF THE SAME EXEMPTION U/S 11 IS DENIED. THE ASSESSEE CANNOT CLAIM THE ALTERNATIVE CLAIM FOR EXEMPTION U/S 10(34), 10(35) AND 10(38) BECAUSE THESE SECTIONS DO NOT DEAL WITH INCOME DERIVED FROM THE PROPERTY HELD UNDER TH E TRUST. IF THE INCOME OF THE TRUST WHICH IS NOT HELD EXEMPT U/S 11, 12 AND 13 IS ALLOWED TO EXEMPT UNDER OTHER SUB SECTIONS OF SECTION 10 IT WILL LEAD TO OPEN GROUND FOR TRUST TO EXERCISE LONG TERM SECURITIES INCOME AND DIVIDEND INCOME AND CLAIMED EXEMPTION OF THE SAME UNDER OTHER SUB SECTI ONS OF SECTION 10 OF INCOME TAX ACT. 9.2 ON APPEAL, CIT(A) CONCUR WITH THE VIEW OF AO. 9.3 BEFORE US, THE LD. SENIOR COUNSEL HAS SUBMITTE D THAT ANY INCOME BY WAY OF DIVIDEND REFERRED TO IN SECTION 115O OF THE INCOME TAX ACT IS EXEMPT FROM TAX U/S 10(34) OF THE INCOME TAX ACT. SINCE THE DIVIDEND IS ALREADY SUBJECTED TO TAX AT T HE HAND OF THE DISTRIBUTING COMPANY U/S 115O AND, THEREFORE, IT CANNOT BE TAXED TWICE. ONCE THE INCOME IS EXEMPT U/S 10 IT WOULD NOT REQUIRED ITA/3807/M/15,AY.11-12-JAMSHETJEE TATA TRUST 9 TO BE QUALIFIED U/S 11 OF THE ACT. IN SUPPORT OF HI S CONTENTION HE HAS RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DIV INE LIGHT MISSION. (278 ITR 659) AND SUBMITTED THAT THE HONBLE HIGH COURT DEALT WITH AN IDENTICAL ISSUE REGARDING AGRICULTURAL INCOME EXEMPT U/S 10(5) OF THE INCOME TAX ACT HELD THAT THIS INCOME IS NOT REQUIRED TO BE CONSIDERED AT ALL EVEN FOR THE PURPOSE OF SECTION 1 1 OF THE INCOME TAX ACT. THUS THE LD. SENIOR COUNSEL HAS SUBMITTED THAT IF EXEMPTION IS AVAILABL E U/S 10 THEN SECTION 11 IS IRRELEVANT. HE HAS RELIED UPON THE FOLLOWING DECISIONS:- (I) COMMISSIONER OF INCOME-TAX. VS. SEETHAKATHI TRU ST (295 ITR 520.) (II) BRAHMIN EDUCATIONAL SOCIETY VS ASSISTANT COMMI SSIONER OF INCOME TAX (227 ITR 317) (III) COMMISSINER OF INCOME TAX VS. RAO BAHADUR CAL AVALA CUNNAN CHETTY CHARITIES [1982] (135 ITR 485 ) (IV) BAR COUNCIL OF UTTAR PRADESH VS COMMISSIONER O F INCOME-TAX (143 ITR 584) (V) COMMISSIONER OF INCOME-TAX. V. BAR COUNCIL OF MAHARASHTRA. (130 ITR 28) 9.4 THE LD. SENIOR COUNSEL REFERRED THE OBSERVATIO NS OF THESE DECISIONS AND SUBMITTED THAT ONCE THE INCOME IS EXEMPT U/S 10, SAME CANNOT BE SAID TO BE TAXED U/S 11 TO 13. HE HAS FURTHER CONTENDED THAT IF THE EXEMPTION IS AVAILABLE TO THE ASSESSEE UNDER TWO PROVISIONS OF THE ACT, THEN THE ASSESSEE IS ENTITLED TO EXEMPTION UNDER THE PRO VISION WHICH IS MORE BENEFICIAL. 9.5 ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT A S PER SECTION 11 OF THE ACT, THE INCOME FROM THE PROPERTY HELD UNDER TRUST IS COVERED UNDER THIS SECTION AND NOT U/S 10 OF THE INCOME TAX ACT. HE HAS CONTENDED THAT BOTH THESE SECTIONS ARE PART OF CHAPTER III AND, THEREFORE, SECTION 11 BEING SPECIFIC PROVISION FOR EXEMPTION OF INCOME FROM THE PROPERTY HELD UNDER TRUST WOULD OVERRIDE GENERAL PROVISIONS. HE HAS EMPHASIZED THAT THE PROV ISIONS UNDER SAME CHAPTER SHOULD BE CONSIDERED HARMONIOUSLY WHILE DEALING WITH SPECIAL MISCHIEF. SECTIONS 11, 12 AND 13 ARE STRINGS OF PROVISIONS AND IF THE CASE IS COVERED BY THESE S PECIAL PROVISIONS THEN GENERAL LAW WOULD NOT APPLY. HE HAS PUT FORTH THE LOGIC THAT SECTION 13 D EHORS THE APPLICABILITY OF SECTION 11 AND IN THE SAME MANNER IT WOULD ALSO DEHORS THE APPLICABILITY OF SECTION 10 IF THERE IS A VIOLATION OF SECTION 13 OF THE ACT. 9.6 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT PROVISIONS OF LAW. THE EXEMPTION U/S 10 IS INCOME SPECIFIC IRRESPECTIVE OF THE STATUS/CLASS OF PERSON. WHEREAS THE EXEMPTION UNDER SECTION 11 IS PERSON SPECIFIC THOUG H ON THE INCOME DERIVED FROM THE PROPERTY HELD UNDER THE TRUST. FURTHER THE EXEMPTION U/S 11 IS SUBJECT TO THE APPLICATION OF INCOME AND MODES OR FORM OF DEPOSIT AND INVESTMENT. THE HONBL E HIGH COURT IN THE CASE OF CIT VS. DIVINE LIGHT MISSION (SUPRA) WHILE DEALING WITH AN IDENTIC AL ISSUE HAS HELD IN PARA 9 AS UNDER : SO FAR AS QUESTION NO.4 OF PARAGRAPH NO. 3 WITH RE GARD TO AGRICULTURAL INCOME IS CONCERNED, SECTION 10(5) OF THE ACT SPECIFICALLY PO INTS OUT THAT AGRICULTURAL INCOME SHALL NOT BE INCLUDED IN COMPUTING THE TOTAL INCOME OF A PREVIOUS YEAR AND HENCE THE QUESTION IS REQUIRED TO BE ANSWERED IN FAVOUR OF THE ASSESSE E AND AGAINST THE REVENUE. THIS INCOME IS NOT REQUIRED TO BE CONSIDERED AT ALL EVEN FOR TH E PURPOSE OF SECTION 11 OF THE ACT. 9.7 WHILE DECIDING THE QUESTION THAT THE AGRICULTUR AL INCOME WAS INCOME FROM THE PROPERTY HELD UNDER THE TRUST CAN BE DENIED EXEMPTION U/S 11 OF T HE INCOME TAX ACT. THE HONBLE HIGH COURT HAS HELD THAT THE AGRICULTURAL INCOME SHALL NOT BE INCLUDED IN THE COMPUTATION OF TOTAL INCOME OF PREVIOUS YEAR IN VIEW OF SECTION 10(5) OF THE ACT. THEREFORE, THIS INCOME IS NOT REQUIRED TO BE CONSIDERED FOR THE PURPOSE OF SECTION 11 OF THE ACT . IN THE CASE OF HIS HOLINESS SILASARI KASIVASI ITA/3807/M/15,AY.11-12-JAMSHETJEE TATA TRUST 10 MUTHUKUMARASWAMI THAMBIRAN AVL & ORS. VS. AGRICULTU RAL INCOME TAX OFFICER & ORS. (113 ITR 889) THE HONBLE HIGH COURT OF MADRA HAS HELD T HAT THE AGRICULTURAL INCOME DERIVED BY CHARITABLE OR RELIGIOUS TRUST IS EXEMPT U/S 10 COUL D NOT BE SAID TO BE BROUGHT TO TAX U/S 11 TO 13. SIMILAR VIEW HAS BEEN TAKEN IN THE SERIES OF DECISI ONS AS RELIED UPON BY THE LD. SENIOR COUNSEL WHEN THE QUESTION INVOLVED WAS THE ALLOWABILITY OF EXEMPTION U/S 10, (22), (23) VS. SECTION 11 AND 13. IN OUR VIEW THE EXEMPTION U/S 11 IS AVAILABLE O N THE INCOME OF THE PUBLIC CHARITABLE /RELIGIOUS TRUST OR INSTITUTION WHICH IS OTHERWISE TAXABLE IN THE HANDS OF OTHER PERSONS. THUS THE INCOME WHICH IS EXEMPT U/S 10 CANNOT BE BROUGHT TO TAX BY VIRTUE OF SECTION 11 AND 13 OF THE ACT BECAUSE NO SUCH PRE CONDITION IS PROVIDED EITHER U/S 10 OR 11 TO 13 OF INCOME TAX ACT. THEREFORE, SECTION 11 TO 13 WOULD NOT OPERATE AS OVERRIDING AFFECT TO THE SECTION 10 OF THE ACT. THE LANGUAGE OF THESE PROVISIONS DOES NOT SUGGEST THAT EITHER SECTION 10 IS SUBJECTED TO THE PROVISIONS OF SECTION 11 TO 13 OR SECTION 11 TO 13 HAS ANY OVERRIDING AFFECT OVER SECTION 10. THEREFORE, THE BENEFIT OF SECTION 10 CANNOT BE DENIED BY INVOKING THE PROVISIONS OF SECT ION 11 TO 13 OF THE ACT. ONCE THE CONDITIONS OF SECTION 10 ARE SATISFIED THEN NO OTHER CONDITION CA N BE FASTENED FOR DENYING THE CLAIM UNDER SECTION 10 OF THE ACT. 9.8 IN VIEW OF THE ABOVE DISCUSSION AND FOLLOWING THE VARIOUS DECISIONS (SUPRA) WE HOLD THAT THE DIVIDEND INCOME ON SHARES AND MUTUAL FUNDS AND LONG TERM CAPITAL GAIN ON SALE OF SHARES AN EXEMPT U/S 10(34),10(35) AND 10(38) RESPECTIVELY AN D CANNOT BE BROUGHT TO TAX BY APPLYING SECTION 11 AND 13 OF THE ACT. 10. GROUND NO. 3 IS REGARDING EDUCATION GRANT GIVE N TO INDIAN STUDENTS FOR STUDYING ABROAD. 10.1 THE ASSESSEE HAS GIVEN GRANTS TO VARIOUS INDIA N STUDENTS/PERSONS TO PURSUE THEIR EDUCATION/HIGHER EDUCATION IN VARIOUS UNIVERSITIES ABROAD. THE AO NOTED THAT THE GRANT IS RELEASED BY THE ASSESSEE ONLY AFTER OBTAINING THE F IRST SEMESTER RESULTS OF THEIR EDUCATION OUTSIDE INDIA FROM EACH SCHOLAR. THE AO WAS OF THE VIEW THA T THE APPLICATION OF INCOME AS WELL AS CHARITABLE PURPOSE, BOTH SHOULD BE IN INDIA AND EXE CUTION OF CHARITABLE PURPOSE MAY BE INSIDE OR OUTSIDE INDIA. THE AO RELIED UPON THE DECISION OF H ONBLE DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOME TAX (EXEMPTION) VS. NATIONAL ASS OCIATION OF SOFTWARE AND SERVICES COMPANIES (345 ITR 362) AND HELD THAT THE AMOUNT OF RS. 1,53,50,000/- SPENT BY THE ASSESSEE FOR EDUCATION GRANT TO THE STUDENTS IS NOT APPLICATION OF ITS INCOME FOR CHARITABLE PURPOSE IN INDIA AND ACCORDINGLY DISALLOWED THE EXEMPTION U/S 11. 10.2 ON APPEAL CIT(A) CONFIRMED THE ACTION OF THE A O. XXXXXXXXX 10.5 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE RELEVANT MATERIAL. THE ASSESSEE HAS GIVEN GRANT TO 97 SCHOLARS STUDYING IN VARIOUS INSTITUTIONS AND UNIVERSITIES OUTSIDE INDIAN AND THE TOTAL AMOUNT OF GRANT IS RS. 1,53,50,000/-. THE ASSESSEE PAID THE GRANT IN INDIA AND FOR THE PURPOSE OF EDUCATION OF INDIAN STUDENTS/PERSONS, TH US THE CHARITABLE PURPOSE OF THE GRANT IS EDUCATION OF INDIAN PERSONS. THE APPLICATION OF INC OME OF THE ASSESSEE COMPLETES AT THE POINT WHEN THE ASSESSEE RELEASED THE GRANT WHICH TOOK PLA CE IN INDIA. THE DECISION RELIED UPON BY THE REVENUE IS NOT APPLICABLE IN THE FACTS OF THE PRESE NT CASE AS THE APPLICATION OF INCOME TOOK PLACE IN INDIA AND FOR THE PURPOSE OF EDUCATION OF INDIAN STUDENTS/PERSONS. THEREFORE, FOR TAKING EDUCATION BY BENEFICIARY FROM ABROAD WOULD NOT AMOU NT TO APPLICATION OF INCOME OF THE ASSESSEE OUTSIDE INDIA. IN THE CASE OF BHARATA KALANJI VS. I NCOME TAX OFFICER (SUPRA) THE CHENNAI BENCH OF THIS TRIBUNAL WHILE DECIDING A QUESTION ARISING FROM THE PAYMENT OF RS. 1.55 LAKH MADE TO A ITA/3807/M/15,AY.11-12-JAMSHETJEE TATA TRUST 11 TRAVEL CORPORATION OF INDIAN FOR SENDING A TROOP ON TOUR. THE AO TREATED THE EXPENDITURE AS APPLICATION OF INCOME OF THE TRUST FOR CHARITABLE P URPOSE. HOWEVER CIT REVISED THE ASSESSMENT AND WAS OF THE OPINION THAT THIS EXPENDITURE WAS PR OHIBITED AND WAS NOT APPLIED FOR PURPOSE OF TRUST IN INDIA AND, THEREFORE, NOT ELIGIBLE FOR EXE MPTION U/S 11. THE MAIN OBJECT OF THE TRUST WAS TO ADVANCE, PROPAGATE, INCREASE AND PROMOTION OF INDIA N CLASSICAL AND FOLK ARTS AND INDIAN MUSIC ETC. THE TRUST WAS INVITED BY THE GOVERNMENT OF NIG ERIA TO GIVE CERTAIN DANCE PERFORMANCE ABROAD. ACCORDINGLY THE TRUST SEND A TROOP AND PAID A SUM OF RS. 1.55 LAKH BEING THE PASSAGE MONEY TO THE TRAVEL CORPORATION OF INDIA. THE TRIBU NAL HELD IN PARA 6 AS UNDER:- 6. THE CRUCIAL QUESTION IS ONLY WHETHER THE CONDIT IONS IN SECTION 11 ARE COMPLIED WITH. THAT SECTION STATES THAT THE INCOME DERIVED FROM PR OPERTY HELD UNDER TRUST WHOLLY FOR CHARITABLE PURPOSES SHALL NOT BE INCLUDED IN THE TO TAL INCOME TO THE EXTENT TO WHICH SUCH INCOME IS APPLIED TO SUCH PURPOSES IN INDIA. THE QU ESTION IS WHETHER THIS SECTION REQUIRES THE APPLICATION OF MONEY IN INDIA OR THE CARRYING O UT OF THE PURPOSES IN INDIA OR BOTH. THE CONTENTION OF THE REVENUE IS THAT APART FROM THE MO NEY BEING SPENT IN INDIA EVEN THE PURPOSE MUST BE CARRIED OUT IN INDIA. THE SECTION I TSELF CONTRADICTS THIS CONTENTION. SECTION 11(1)(C)( II) PROVIDES THAT INCOME APPLIED TO SUCH PURPOSES OUTSIDE INDIA IS EXEMPT IN THE CASE OF TRUST CREATED BEFORE 1-4-1952 SUBJECT TO THE APPROVAL OF THE BOARD. THIS UNDERLINES THE PRINCIPLE THAT GOVERNMENTS DO N OT FOREGO THEIR REVENUE IN FAVOUR OF CHARGES PAID OUTSIDE THEIR COUNTRIES AND HENCE THE RELEVANT CONSIDERATION IS WHETHER THE SITUS OF THE APPLICATION OF THE MONEY AND NOT THE P LACE IN WHICH THE OBJECTS OF THE TRUST MAY BECOME EFFECTIVE. IT MAY BE PERTINENT TO REFER TO SECTION I O( 16) WHICH EXEMPTS SCHOLARSHIPS GRANTED TO MEET THE COST OF EDUCATION WHERE ALSO THE CBDT ITSELF DOES NOT CONSIDER SCHOLARSHIP GRANTED FOR EDUCATION ABROAD A S MONEY SPENT OUTSIDE INDIA. SIMILARLY, IN THE PRESENT CASE OF SUCH A WIDE OBJEC T OF PROPAGATION OF ART IT WOULD BE DIFFICULT TO CONFINE IT TO THE SHORES OF THE LAND. WE ARE OF THE CONSIDERED OPINION THAT THE EXPRESSION 'APPLIED TO SUCH PURPOSES IN INDIA' REFE RS ONLY TO THE SITUS OF THE EXPENDITURE AND NOT' TO THE PLACE 'WHERE THE 'PURPOSES' ARE CAR RIED OUT. THE FACT THAT THE TROUPE GAVE THE PERFORMANCE ABROAD IS THEREFORE NO DISQUALIFICA TION FOR TREATING HE AMOUNT ACTUALLY SPENT IN INDIA AS APPLICATION OF THE AMOUNT FOR CHA RITABLE PURPOSES. THE COMMISSIONER ALSO REFERRED TO COLLECTIONS MADE FOR PERFORMANCES GIVEN AS AN ACTIVITY FOR PROFIT. WE FIND THAT SUCH PERFORMANCES DO NOT CONSTITUTE ACTIVITIES FOR PROFIT AS THE COLLECTIONS ARE IN THE NATURE OF DONATIONS RECEIVED FOR THE PURPOSES OF TH E TRUST. HENCE THIS OBJECTION ALSO CANNOT BE SUSTAINED, IT FOLLOWS THAT THE EXEMPTION GRANTED BY THE INCOME-TAX OFFICER WAS NOT ERRONEOUS AND DID NOT REQUIRE TO BE REVIEWED BY THE COMMISSIONER. HENCE HIS ORDER U/S 263 IS CANCELLED. THE APPEAL IS ALLOWED. 10.6 SIMILARLY IN THE CASE OF CEO CLUBS INDIA VS. D IRECTOR OF INCOME TAX (EXEMPTION), CO- ORDINATE BENCH OF THIS TRIBUNAL HAS HELD IN PARA 11 AS UNDER:- THE OTHER OBJECTION OF THE DIT WAS THAT THE ACTIV ITIES OF THE ASSESSEE WERE NOT CONFINED TO INDIA AND THEREFORE REGISTRATION CANNOT BE GRANT ED. THE BASIS FOR THESE OBSERVATIONS IS THAT CONFERENCES WERE TO BE HELD OUTSIDE INDIA. WE ARE OF THE VIEW THAT HOLDING OF CONFERENCES ABROAD WOULD NOT MAKE THE ACTIVITIES OF THE ASSESSEE BEING CARRIED OUT OUTSIDE INDIA. THE BENEFITS OF SUCH CONFERENCE WILL ULTIMATE GO TO ASSESSEE AND ITS ITA/3807/M/15,AY.11-12-JAMSHETJEE TATA TRUST 12 MEMBERS. IT CANNOT BE SAID THAT THE ACTIVITIES OF T HE ASSESSEE WERE CARRIED ON OUTSIDE INDIA. 10.7 FOLLOWING THE ABOVE DECISIONS OF TRIBUNAL, WE HOLD THAT THE EDUCATION GRANT GIVEN TO THE INDIAN STUDENTS IN INDIA FOR EDUCATION/HIGHER EDUCA TION ABROAD FULFILLS THE CONDITIONS OF APPLICATION OF MONEY FOR SUCH PURPOSE IN INDIA. FINALLY,THE TRIBUNAL PARTLY ALLOWED THE APPEAL FILE D BY THE ASSESSEE.RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL FOR THE EARLIER YEAR WE DECID E ALL THE EFFECTIVE GROUNDS(GOA1-5)AGAINST THE AO. AS A RESULT APPEAL FILED BY THE AO STANDS DISMISSED. . ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH FEBRUARY, 2016. , 2016 SD/- SD/- ( /RAM LAL NEGI) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /MUMBAI, /DATE: 04.02. 2016 . . . .. . JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.