ITO, Calicut V. Daughters of Mary Bathery, Wynad

ITA 470/COCH/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58324 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-02-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 04-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAYAPRABHA
• Assessee Lawyers: L KURIAKOSE
• Keywords: Charitable institution
• Section: 11

Judgement Text

1 ITA NO.469 & 470/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.TA NO. 469 & 470/COCH/2010 (ASSESSMENT YEARS 2000-01 & 2001-02) ITO, WD.1(4) VS DAUGHTERS OF MARY BATHERY CALICUT SULTHAN BATHERY, WAYANAD PAN : AAATD2053Q (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. VIJAYAPRABHA RESPONDENT BY : SHRI L KURIAKOSE DATE OF HEARING : 16-02-2012 DATE OF PRONOUNCEMENT : 29-02-2012 O R D E R PER N.R.S. GANESAN (JM) THESE APPEALS OF THE REVENUE ARE DIRECTED AGAINST THE COMMON ORDER OF THE COMMISSIONER OF INCOME-TAX(A)-I, CALICUT DATED 2 6-5-2010 AND PERTAIN TO ASSESSMENT YEARS 2000-01 AND 2001-02. SINCE COMMON I SSUE ARISES FOR CONSIDERATION, FOR THE SAKE OF CONVENIENCE, THESE AP PEALS WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS EXEMP TION U/S 11 OF THE INCOME- TAX ACT. 2 ITA NO.469 & 470/COCH/2010 3. SMT. VIJAYAPRABHA, THE LD.DR SUBMITTED THAT THE ASSESSING OFFICER REJECTED THE CLAIM OF EXEMPTION U/S 11 OF THE INCOME-TAX ACT ON THE GROUND THAT THE OBJECT OF THE TRUST WAS CHARITABLE AND RELIGIOUS IN NATURE. ACCORDING TO THE LD.DR, THE ASSESSEE TRUST CANNOT HAVE BOTH OBJECTS. IT HA S TO CONFINE EITHER TO CHARITABLE ACTIVITY OR RELIGIOUS ACTIVITY. THE MIXED OBJECT O F RELIGIOUS AND CHARITABLE NATURE CANNOT BE TREATED AS CHARITABLE TRUST FOR EXEMPTION U/S 11 OF THE INCOME-TAX ACT. REFERRING TO THE ORDER OF THIS TRIBUNAL, THE LD.DR SUBMITTED THAT THE REVENUE HAS ALREADY FILED THE APPEAL BEFORE THE HIGH COURT, THE REFORE, THE COMMISSIONER OF INCOME-TAX(A) IS NOT CORRECT IN PLACING RELIANCE ON THE ORDER OF THIS TRIBUNAL. 4. ON THE CONTRARY, SHRI L KURIAKOSE, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE COMMISSIONER OF INCOME-TAX(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE BASED ON THE ORDER OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE IN ITA NOS. 554/COCH/2007 DATED 15-10-2009 FOR THE ASSESSMEN T YEAR 2003-04 . THIS TRIBUNAL HAS FOUND THAT THE ASSESSEE IS ELIGIBLE FO R EXEMPTION EVEN THOUGH THE OBJECT IS BOTH CHARITABLE AND RELIGIOUS IN NATURE. REFERRING TO THE EARLIER ORDER OF THIS TRIBUNAL, THE LD.COUNSEL FOR THE ASSESSEE SUBM ITTED THAT IN FACT THE DEPARTMENT FILED APPEAL BEFORE THE HIGH COURT AND T HE HIGH COURT HAS ALREADY CONFIRMED THE ORDER OF THIS TRIBUNAL. THEREFORE, I T IS NOT CORRECT TO SAY THAT THE APPEAL OF THE DEPARTMENT IS PENDING BEFORE THE HIGH COURT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND HAVE ALSO GONE THROUGH THE MATERIAL PLACED BEFORE US. ADMITT EDLY, IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2003-04 THIS TRIBUNAL E XAMINED THE ISSUE AND FOUND THAT THE ASSESSEE IS ELIGIBLE FOR EXEMPTION U/S 11 EVEN THOUGH THE OBJECT WAS BOTH RELIGIOUS AND CHARITABLE IN NATURE. ON IDENTI CAL SET OF FACTS, THIS TRIBUNAL, IN THE CASE OF OTHER ASSESSEES ALSO FOUND THAT THE ASS ESSEE IS ELIGIBLE FOR EXEMPTION 3 ITA NO.469 & 470/COCH/2010 U/S 11 EVEN THOUGH THEIR OBJECTS WERE BOTH RELIGIOU S AND CHARITABLE IN NATURE. IN FACT THE HIGH COURT HAS ALSO CONFIRMED THE ORDER OF THIS TRIBUNAL. THEREFORE, THIS TRIBUNAL IS OF THE OPINION THAT THE COMMISSIONER OF INCOME-TAX(A) HAS RIGHTLY FOLLOWED THE ORDER OF THIS TRIBUNAL WHILE DIRECTING THE ASSESSING OFFICER TO GRANT EXEMPTION U/S 11 OF THE ACT. WE DO NOT FIND ANY IN FIRMITY IN THE ORDER OF THE LOWER AUTHORITY. THE SAME IS CONFIRMED. ACCORDING LY, BOTH THE APPEALS OF THE REVENUE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF FEBRUARY, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 29 TH FEBRUARY, 2012 PK/- COPY TO: 1. ITO, WD.1(4), CALICUT 2. DAUGHTERS OF MARY BATHERY, SULTAN BATHERY, MARY MAT HA CONVENT, WAYANAD 3. THE COMMISSIONER OF INCOME-TAX(A)-I, CALICUT 4. THE C.I.T., CALICUT 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH