MAHARAJA SAWAI MAN SINGH II MUSEUM TRUST, Jaipur V. CIT, Jaipur

ITA 478/JPR/2012

• Counselvise Citation: 47823114 RSA 2012
• Duration Of Justice: 1 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 16-11-2012
• Assessment Year: misc
• Appeal Filed On: 15-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA
• Assessee Lawyers: RAJEEV PANDEY
• Keywords: Charitable institution
• Section: 12; 10; 11; 80G; 12A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI HARI OM MARATHA AND SHRI N.K. SAI NI) ITA NO. 478/JP/2012 UNDER SECTION 80G(5)VI) OF I.T. ACT, 1961 PAN: AAATM 2030 N MAHARAJA SAWAI MAN SINGH II VS. THE LD CIT MUSEUM TRUST, CITY PALACE JAIPUR-II JAIPUR JAIPUR (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJEEV PANDEY DEPARTMENT BY: SHRI SUBHASH CHANDRA DATE OF HEARING : 22-01-2014 DATE OF PRONOUNCEMENT: 05-03-2014 ORDER PER HARI OM MARATHA, JM:- THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT, JAIPUR-II, JAIPUR DATED 19-03-2012, WHEREBY APPLICA TION FOR APPROVAL SOUGHT BY THE APPELLANT TRUST U/S 80G(5)(VI) OF THE INCOME -TAX ACT, 1961 (THE ACT FOR SHORT) HAS BEEN DISMISSED. 2.1 THE APPELLANT HAS RAISED FOLLOWING GROUNDS. I. ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE LD. COMMISSIONER OF INCOME TAX ERRED IN 1. HOLDING THAT THE MUSEUM TRUST DOES NOT FULFILL CONDITIONS MENTIONED IN S. 80G (I) OF INCOME TAX ACT, 1961 AND THEREBY REJECTING THE APPL ICATION FOR GRANT OF EXEMPTION U/S 80G(5)(VI) OF INCOME TAX ACT, 1961 AND IN NOT FOL LOWING PROVISIONS OF LAW. 2 2. IN HOLDING THAT MUSEUM TRUST BY VIRTUE OF PARA 22 OF THE TRUST DEED WHICH IS REPRODUCED IN PARA 3.3 OF THE ORDER DOES NOT AUTHOR ISE THE TRUSTEES TO USE THE IMMOVABLE PROPERTY OF THE TRUST FOR THE PURPOSE OF ANY SCHEME OF CHARITY WHICH INCLUDES RUNNING OF SCHOOL (FOR NON-PROFIT AND SOLELY FOR PURPOSE OF ED UCATION) AND THEREBY NOT FOLLOWING PROVISIONS OF LAW. 3. IN HOLDING THAT ACTIVITY OF RUNNING SCHOOL IS NOT COVERED UNDER THE OBJECTS OF THE TRUST AND THIS ACTIVITY CANNOT BE HELD UNDER THE TRUST AS PER ITS OBJECTS AND THEREBY DENYING THE OPPORTUNITY OF RUNNING SCHOOL (FOR NON-PROFIT AND S OLELY FOR PURPOSE OF EDUCATION) AND THEREBY NOT FOLLOWING PROVISIONS OF LAW. 4. IN HOLDING THAT THE MUSEUM TRUST IS NOT ENTITL ED TO USE THE PROPERTY FOR THE PURPOSES OF ANY SCHEME OF CHARITY AND THEREBY MISDIRECTING H IMSELF AND DENYING THE MUSEUM TRUST OPPORTUNITY AVAILABLE FOR CHARITY AND IN NOT FOLLOWING PROVISIONS OF LAW. 2.2 BEFORE WE DELVE UPON REAL CONTROVERSY, IT WOULD BE APPROPRIATE TO MENTION THE FACTS OF THE CASE. THE APPELLANT TRUST FILED AN APPLICATION IN FORM NO.10G FOR GRANT OF EXEMPTION U/S 80G(5)(VI) OF THE ACT ON 15-04-2011. ADMITTEDLY, THE TRUST WAS CREATED ON 16-04-1959. TH E OBJECT OF THE TRUST AS PER CLAUSE 5 OF THE TRUST DEED IS AS UNDER:- (A) THE TRUSTEES SHALL MANAGE THE SAID MUSEUM, C OLLECT AND RECOVER THE INTEREST DIVIDENDS AND INCOME (IF ANY) IN RESPECT THEREOF AN D SHALL PAY ALL EXPENSES AND OUTGOINGS IN RELATIONS THERETO. (B) THE TRUSTEES SHALL MAINTAIN THE SAID MUSEUM IN PERPETUITY WITHIN THE LIMITS OF JAIPUR CITY ONLY, AS A MUSEUM OR ART-GALLERY OR PLACE OF E XHIBITION FOR THE USE OF THE PUBLIC OF JAIPUR AND OR VISITORS TO JAIPUR CITY AND SHALL OTH ERWISE USE OR PERMIT TO BE USED AND KEEP AND MAINTAIN THE SAME FOR THE OBJECTS AND PURPOSES CONTAINED IN THESE PRESENTS AND SUBJECT TO THE POWERS, PROVISIONS AND DECLARATIONS HEREIN CONTAINED AND ALSO SUBJECT TO THE RULES AND REGULATIONS THAT MAY BE FRAMED BY THE TRU STEES FOR THE ADMINISTRATION AND MANAGEMENT OF THE SAID MUSEUM. (C) TO PROTECT, PROMOTE, PRESERVE, ENLARGE AND IM PROVE THE SAID COLLECTION AND OTHER COLLECTION AND ARTICLES AND THINGS RELATING TO THE SAID MUSEUM AND THE TRUSTEES WILL TAKE ALL NECESSARY STEPS TO THE BEST OF THEIR ABILITY AND M EANS TO PROTECT, PROMOTE , PRESERVER AND IMPROVE THE EXISTING COLLECTION PERTAINING TO THE S AID MUSEUM AND TO HELP SEEKERS OF KNOWLEDGE IN THE STUDY OF AND RESEARCH IN ART INCLU DING THEREIN LITERARY, SCIENTIFIC, HISTORIC AND RELIGIOUS MATTERS LEADING TO THE PROGRESS AND DEVELOPMENT OF KNOWLEDGE IN GENERAL. 3 THE LD. CIT NOTICED THAT THE APPELLANT TRUST HAS BE EN CREATED FOR THE PURPOSE OF MAINTENANCE OF MUSEUM CONTAINING THE PICTURES, P AINTINGS, PORTRAITS, WORKS OF ART ETC. WHICH HAVE BEEN AS PRESENTS. TH E LD. CIT ALSO NOTICED THAT APART FROM RUNNING MUSEUM, IT HAS STARTED RUNNING A SCHOOL NAMED MAHARAJA SAWAI BHAWANI SINGH SCHOOL, JAGATPURA, JAIPUR AS A UNIT OF THIS TRUST FROM F.Y. 2007-08. ACCORDING TO HIM, RUNNING OF SCHOOL I S NOT THE PRESCRIBED OBJECT OF THE TRUST AS PER THE TRUST DEED. HOWEVER, THE CASE OF THE TRUST IS THAT CLAUSE 2 OF THE TRUST DEED AUTHORIZES THE TRUSTEE T O USE IMMOVABLE PROPERTY OF THE TRUST FOR THE PURPOSE OF ANY SCHEME OF CHARITY. SINCE RUNNING OF SCHOOL IS CHARITABLE ACTIVITY AND THEREFORE, THE APPROVAL U/S 80G(5)(VI) OF THE ACT HAS TO BE GRANTED. HOWEVER, THE LD. CIT HAS CONCLUD ED THAT EVEN AS PER CLAUSE 22 OF WHATEVER ACTIVITIES ARE DONE, IT MUST BE FOR THE PURPOSE OF COLLECTION OF MUSEUM NOT FOR ANY OTHER ACTIVITY. H E HAS OBSERVED THAT RUNNING OF A SCHOOL CANNOT BE RELATED WITH THE COLL ECTION. ACCORDINGLY, AFTER HOLDING THAT RUNNING OF SCHOOL IS NOT ONE OF THE OB JECTS OF THE TRUST. IT CANNOT BE GRANTED APPROVAL IN THIS SECTION. FURTHER, HE HA S FOUND THAT INCOME FROM RUNNING OF SCHOOL WILL NOT BE EXEMPT U/S 11 AND 12 OF THE ACT AS THIS ACTIVITY IS NOT FALLING UNDER THE OBJECTS OF THE TRUST. ACCO RDINGLY, HE HAS DECLINED FROM GRANTING EXEMPTION U/S 80G(5)(VI) OF THE ACT. 2.3 AGGRIEVED, THE ASSESSEE HAS COME IN APPEAL BEFO RE US. 2.4 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CA REFULLY PERUSED THE ENTIRE MATERIAL ON RECORD. BOTH PARTIES HAVE TAKEN SAME STAND AS IT WAS TAKEN 4 BEFORE THE LD. CIT. THE LD. AR HAS ALSO FILED THE PAPER BOOK ALONGWITH DETAILED WRITTEN SUBMISSION TO SUPPORT THE BOLSTER APPELLANT CASE. WE HAVE CAREFULLY EXAMINED THE WRITTEN SUBMISSION AND WE HA VE ALSO GONE THROUGH THE OBJECTS OF THE TRUST AS AVAILABLE IN THE TRUST DEED AND IN THE LIGHT OF RELEVANT PROVISION OF THE ACT. IT IS FOUND THAT THE TRUST STANDS REGISTERED U/S 12A OF THE ACT. THEREFORE , THERE CANNOT BE TWO OPI NIONS AND THE LD CIT CANNOT DISPUTE THE FACT THAT THE OBJECTS OF THE TRU ST ARE NOT CHARITABLE IN NATURE. HAVING OBSERVED AS ABOVE, WE ARE SATISFIED THAT IN CLAUSE 20 OF THE TRUST DEED, THE TRUST IS PERMITTED TO CARRY ON ANY SCHEME OR CHARITY AND IT IS NOT RESTRICTED TO DISPLAY OF MUSEUM ARTIFACTS. IT SHALL ALSO BE LAWFUL FOR THE TRUSTEE TO PERMIT ANY IMMOVABLE PROPERTY FORMING PART OF THE TRUST FUND TO BE HELD USED AND ENJOYED FOR THE PURPOSE OF ANY SCHEME OF CHARITY OR OTHER PURPOSE OF THESE PRESENTS. THE SCHOOL IS AN UNIT OF THE TRUST AND ITS ESTABLIS HMENT IS IN ACCORDANCE WITH THE TRUST DEED AND HAS BEEN RECOGNIZED BY THE CHARI TY DEPARTMENT ALSO. 2.5 THE SECTION 80G(5) OF THE INCOME-TAX ACT, 1961 READS AS UNDER:- (5) THIS SECTION APPLIES TO DONATIONS TO ANY INST ITUTION OR FUND REFERRED TO IN SUB-CLAUSE ( IV ) OF CLAUSE ( A ) OF SUB-SECTION (2), ONLY IF IT IS ESTABLISHED IN INDIA FOR A CHARITABLE PURPOSE AND IF IT FULFILS THE FOLLOWING CONDITIONS, NAMELY : [( I ) WHERE THE INSTITUTION OR FUND DERIVES ANY INCOME, SUCH INCOME WOULD NOT BE LIABLE TO INCLUSION IN ITS TOTAL INCOME UNDER THE PROVISIONS OF SECTIONS 11 AND 12 3[* * *] 4[5[***]] 6[OR CLAUSE ( 23AA )] 7[OR CLAUSE ( 23C )] OF SECTION 10 : [ PROVIDED THAT WHERE AN INSTITUTION OR FUND DERIVES ANY INCOM E, BEING PROFITS AND GAINS OF BUSINESS, THE CONDITION THAT SUCH INCOME WOULD N OT BE LIABLE TO INCLUSION IN ITS TOTAL INCOME UNDER THE PROVISIONS OF SECTION 11 SHALL NOT APPLY IN RELATION TO SUCH INCOME, IF ( A ) THE INSTITUTION OR FUND MAINTAINS SEPARATE BOOKS OF ACCOUNT IN RESPECT OF SUCH BUSINESS; ( B ) THE DONATIONS MADE TO THE INSTITUTION OR FUND ARE NOT USED BY IT, DIRECTLY OR INDIRECTLY, FOR THE PURPOSES OF SUCH BUSINESS; AND 5 ( C ) THE INSTITUTION OR FUND ISSUES TO A PERSON MAKING THE DONATION A CERTIFICATE TO THE EFFECT THAT IT MAINTAINS SEPARAT E BOOKS OF ACCOUNT IN RESPECT OF SUCH BUSINESS AND THAT THE DONATIONS RECEIVED BY IT WILL NOT BE USED, DIRECTLY OR INDIRECTLY, FOR THE PURPOSES OF SUCH BUSINESS;]] ( II ) THE INSTRUMENT UNDER WHICH THE INSTITUTION OR FUN D IS CONSTITUTED DOES NOT, OR THE RULES GOVERNING THE INSTITUTION OR FUND DO NOT, CONTAIN A NY 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 PUR POSE; ( III ) THE INSTITUTION OR FUND IS NOT EXPRESSED TO BE FO R THE BENEFIT OF ANY PARTICULAR RELIGIOUS COMMUNITY OR CASTE; ( IV ) THE INSTITUTION OR FUND MAINTAINS REGULAR ACCOUNT S OF ITS RECEIPTS AND EXPENDITURE; 9[* * *] ( V ) THE INSTITUTION OR FUND IS EITHER CONSTITUTED AS A PUBLIC CHARITABLE TRUST OR IS REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, 1860 (21 OF 1 860), OR UNDER ANY LAW CORRESPONDING TO THAT ACT IN FORCE IN ANY PART OF INDIA OR UNDER SECTION 2510 OF THE COMPANIES ACT, 1956 (1 OF 1956), OR IS A UNIVERSITY ESTABLISHED BY LAW, OR IS ANY OTHER EDUCATIONAL INSTITUTION RECOGNISED BY THE GOVERNMENT OR BY A UNIVERSITY EST ABLISHED BY LAW, OR AFFILIATED TO ANY UNIVERSITY ESTABLISHED BY LAW, OR IS AN INSTITUTIO N FINANCED WHOLLY OR IN PART BY THE GOVERNMENT OR A LOCAL AUTHORITY; [( VI ) IN RELATION TO DONATIONS MADE AFTER THE 31ST DAY OF MARCH, 1992, THE INSTITUTION OR FUND IS FOR THE TIME BEING APPROVED BY THE COMMISSI ONER IN ACCORDANCE WITH THE RULES15 MADE IN THIS BEHALF ( VII ) WHERE ANY INSTITUTION OR FUND HAD BEEN APPROVED U NDER CLAUSE ( VI ) FOR THE PREVIOUS YEAR BEGINNING ON THE 1ST DAY OF APRIL, 2007 AND EN DING ON THE 31ST DAY OF MARCH, 2008, SUCH INSTITUTION OR FUND SHALL, FOR THE PURPOSES OF THIS SECTION AND NOTWITHSTANDING ANYTHING CONTAINED IN THE PROVISO OF CLAUSE (15) OF SECTION 2, BE DEEMED TO HAVE BEEN- (A) ESTABLISHED FOR CHARITABLE PURPOSES FOR THE PR EVIOUS YEAR BEGINNING ON THE IST DAY OF APRIL,2008 AND ENDING ON THE 31 ST DAY OF MARCH,2009 AND (B) APPROVED UNDER THE SAID CAUSE (VI) FOR THE PREV IOUS YEAR BEGINNING ON THE IST DAY OF APRIL, 2008 AND ENDING ON THE 31 ST DAY OF MACH, 2009 ] THIS SECTION DESCRIBES DEDUCTION IN RESPECT OF DONA TIONS TO CERTAIN FUNDS, CHARITABLE INSTITUTION ETC. SECTION 80G(5) LAYS DOW N CERTAIN CONDITIONS FOR GETTING APPROVAL AFTER IT FALLS IN SUB-CLAUSE (IB) OF CLAUSE (A) OF SUB-SECTION 2. IN OUR CONSIDERED OPINION, THE ASSESSEE FALLS UNDER THIS SUB-CLAUSE AND ALSO 6 FULFILS ALL THE CONDITIONS LAID DOWN IN SEC 80G(5) OF THE ACT. ACCORDINGLY, WE DO NOT FIND ANY REASON FOR NOT GRATING APPROVAL U/S 80G(5) OF THE ACT. THE OBSERVATIONS MADE BY THE LD. CIT ARE NOT CORRECT. A NY INCOME DRAWN BY THE APPELLANT TRUST CANNOT BE INCLUDED IN ITS TOTAL INC OME UNDER THE PROVISION OF SECTION 11 AND 12 OR CLAUSE (23AA) OR CLAUSE (23C) OF SECTION 10. AS A RESULT, WE ALLOW APPEAL OF THE APPELLANT TRUST AND DIRECT THE LD. CIT TO GRANT APPROVAL TO IT U/S 80G(5) OF THE ACT AS HAS BEEN PR AYED BY THE APPELLANT TRUST. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE STAND S ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05-03-2014. SD/- SD/- (N.K. SAINI) (HARI OM MARATHA) ACCOUNTANT MEMBER JUDICIAL MEMEBR DATED: 5 TH MARCH, 2014 *MISHRA COPY FORWARDED TO:- BY ORDER 1. M/S. MAHARAJA SAWAI MANSINGH - II, JAIPUR 2. THE LD. CIT, JAIPUR II, JAIPUR 3. THE LD. CIT 4. THE DR 5. THE GUARD FILE (ITA NO.478/JP/12) A.R. ITAT: JAIPUR 7 8