ITO (EXEMPTION)-1(3) MUMBAI, MUMBAI V. GULABCHAND FOUNDATION, MUMBAI

ITA 5344/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0285 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 30-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POOJA SWARUP
• Assessee Lawyers: MILESH DARU
• Keywords: Charitable institution; Capital expenditure
• Section: 12A; 10B; 28; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'J' BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO. 5344/MUM/2016 (ASSESSMENT YEAR: 2012-13) INCOME TAX OFFICER (EXEMPTIONS) 1(3) ROOM NO. 511, 5TH FLOOR PIRAMAL CHAMBERS, PAREL LALBAUG, MUMBAI 400012 VS. M/S. GULABCHAND FOUNDATOIN HINCON HOUSE LAL BAHADUR SHASTRI MARG VIKHROLI (W), MUMBAI 400083 PAN AACCG1683N APPELLANT RESPONDENT APPELLANT BY: MS. POOJA SWARUP RESPONDENT BY: SHRI MILESH DARU DATE OF HEARING: 07.02.2018 DATE OF PRONOUNCEMENT: 14.02.2018 O R D E R PER RAJESH KUMAR, AM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF THE CIT(A)-1, MUMBAI DATED 20.06.2016 FOR A.Y. 2012-13. 2. THE ISSUE RAISED BY THE REVENUE IS AGAINST THE ORDE R OF THE CIT(A) ALLOWING CARRY FORWARD OF DEFICIT OF ` 91,50,784/- FOR SET OFF AGAINST THE INCOME OF THE SUBSEQUENT YEARS BY IGNORING THE FACT THAT THERE IS NO EXPRESS PROVISION IN THE INCOME TAX ACT, 1961 (HERE INAFTER THE ACT) PERMITTING THE SAID ALLOWANCE OF THE CLAIM OF THE A SSESSEE. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 06.09.2012 ACCOMPANYING THERE WITH A COPY OF THE INCOME & EXPENDITURE ACCOUNT, BALANCE SHEET AND AUDIT REPORT IN FORM NO. 10B DECL ARING TOTAL DEFICIT OF ` 91,50,784/-. THE ASSESSEE IS A REGISTERED TRUST UNDER SECTION 12A WITH REGISTRATION NO. TF/37595 DATED 01.08.2003 . THE TRUST IS ALSO REGISTERED UNDER SECTION 80-G OF THE ACT AND ACCORD INGLY CLAIMED DEDUCTION UNDER SECTION 11 OF THE ACT. THE CASE WAS SELECTED FOR SCRUTINY ITA NO. 5344/MUM/2016 M/S. GULABCHAND FOUNDATOIN 2 AND NOTICE UNDER SECTION 143(2) WAS ISSUED ON 23.09 .2012 AND DULY SERVED ON THE ASSESSEE. DURING THE ASSESSMENT PROCE EDINGS, THE AO NOTICED A DEFICIT OF ` 91,50,784/- WHEREAS THERE IS NO PROVISION IN THE AC T WHICH ALLOWS DETERMINATION OF LOSS/DEFICIT WHILE CO MPUTING INCOME UNDER SECTION 11 OF THE ACT. THE AO OBSERVED THAT 15% OF THE INCOME IS EXEMPT US 11(1) AND THE REMAINING 85% OF INCOME IS REQUIRE S TO BE SPENT DURING THE YEAR SO THAT THE ENTIRE INCOME MAY BE ASSESSED AS EXEMPT AND THUS THE ASSESSEE HAS TO SPEND A PORTION OF THE CURRENT INCOME IN THE SUCCEEDING YEAR WHICH IT COULD NOT SPENT FOR CERTAI N REASONS BEYOND THE CONTROL OF THE ASSESSEE IN THE CURRENT YEAR. THE AO ALSO OBSERVED THAT THE ASSESSEE HAS ALSO AN OPTION TO ACCUMULATE ITS INCOM E FOR A PERIOD OF FIVE YEARS AND UTILISE THE SAME WITHIN THE SAID SPAN. TH E AO ALSO OBSERVED THAT CAPITAL EXPENDITURE ON CONSTRUCTION/ACQUISITION OF ASSET IS ALSO TREATED AS APPLICATION OF INCOME. FINALLY HE REJECTED THE CLAI M OF THE ASSESSEE BY HOLDING THAT THE EXCESS EXPENDITURE OVER INCOME IS EITHER OUT OF ACCUMULATED INCOME OR OUT OF CORPUS FUND RECEIVED B Y THE TRUST. THE AO OBSERVED THAT ACCUMULATED INCOME CANNOT BE FURTHER SUBJECT TO DEDUCTION FROM THE INCOME SINCE DEDUCTION IN RESPECT OF ACCUM ULATION HAS BEEN CLAIMED AND ALLOWED IN THE PREVIOUS YEARS AND ANY F URTHER ALLOWANCE OF THE SAME WOULD AMOUNT TO DOUBLE DEDUCTION FOR THE SAME OUTGOING. IN VIEW OF THE SAID REASONS THE AO DID NOT ALLOW THE DEFICIT O ` 91,50,784/- TO BE CARRY FORWARD TO THE FUTURE YEARS IN ORDER TO SET OFF. AG GRIEVED, ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). 4. IN THE APPELLATE PROCEEDINGS THE LEARNED CIT(A) ALL OWED THE APPEAL OF THE ASSESSEE AFTER CONSIDERING THE CONTENTION OF TH E ASSESSEE WHICH HAS BEEN REPRODUCED IN PARA 5.1 OF HIS ORDER BY OBSERVI NG AS UNDER: - 5.2 I HAVE CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE, GONE THROUGH THE ASSESSMENT ORDER OF THE A.O AND TH E SUBMISSIONS OF THE APPELLANT AND ALSO DISCUSSED THE CASE WITH THE AR OF THE APPELLANT. THE CONTENTIONS AND SUBMISSIONS OF THE A PPELLANT ARE BEING DISCUSSED AND DECIDED HERE IN UNDER: I. RELYING UPON SEVERAL CASE LAWS THE APPELLANT STATED THAT DEFICIT OF THE CURRENT YEAR IS REQUIRED TO BE CARRIED FORWA RD TO THE ITA NO. 5344/MUM/2016 M/S. GULABCHAND FOUNDATOIN 3 SUBSEQUENT YEARS. ON PERUSAL OF THE FACTS OF THE CA SE AND SUBMISSIONS OF THE APPELLANT AS ABOVE, I FIND THAT THE CASE OF APPELLANT IS SQUARELY COVERED BY THE JUDGEMENT OF H ON'BLE BOMBAY HIGH COURT IN THE CASE OF INSTITUTE OF BANKING PERSONNEL 264 ITR 110 WHEREIN THE HON. JURISDICTIONAL HIGH COURT HAS OBSERVED AS UNDER ...........'5. NOW COMING TO QUESTION NO. 3 THE POI NT WHICH ARISES FOR CONSIDERATION IS: WHETHER EXCESS OF EXPENDITURE IN THE EARLIER YEARS CAN BE ADJUSTED AGAINST THE INCOME OF THE SUB SEQUENT YEAR AND WHETHER SUCH ADJUSTMENT SHOULD BE TREATED AS APPLICATION OF INCOME IN SUBSEQUENT YEAR FOR CHARIT ABLE PURPOSES? IT WAS ARGUED ON BEHALF OF THE DEPARTMENT THAT EXPENDITURE INCURRED IN THE EARLIER YEARS CANNOT BE MET OUT OF THE INCOME OF THE SUBSEQUENT YEAR AND THAT UTILIZAT ION OF SUCH INCOME FOR MEETING THE EXPENDITURE OF EARLIER YEARS WOULD NOT AMOUNT TO APPLICATION OF INCOME FOR CHARITABLE OR R ELIGIOUS PURPOSES. IN THE PRESENT CASE, THE ASSESSING OFFICE R DID NOT ALLOW CARRY FORWARD OF THE EXCESS OF EXPENDITURE TO BE SET OFF AGAINST THE SURPLUS OF THE SUBSEQUENT YEARS ON THE GROUND THAT IN THE CASE OF A CHARITABLE TRUST, THEIR INCOME WAS ASSESSABLE UNDER SELF-CONTAINED CODE MENTIONED IN SECTION 11 T O SECTION 13 OF THE INCOME TAX ACT AND THAT THE INCOME OF THE CH ARITABLE TRUST WAS NOT ASSESSABLE UNDER THE HEAD 'PROFITS AN D GAINS OF BUSINESS' UNDER SECTION 28 IN WHICH THE PROVISION F OR CARRY FORWARD OF LOSSES WAS RELEVANT. THAT, IN THE CASE O F A CHARITABLE TRUST, THERE WAS NO PROVISION FOR CARRY FORWARD OF THE EXCESS OF EXPENDITURE OF EARLIER YEARS TO BE AD JUSTED AGAINST INCOME OF SUBSEQUENT YEARS. WE DO NOT FIND ANY MERIT IN THIS ARGUMENT OF THE DEPARTMENT. INCOME DERIVED FROM THE TRUST PROPERTY HAS ALSO GOT TO BE COMPUTED ON COMME RCIAL PRINCIPLES AND IF COMMERCIAL PRINCIPLES ARE APPLIED THEN ADJUSTMENT OF EXPENSES INCURRED BY THE TRUST FOR CH ARITABLE AND RELIGIOUS PURPOSES IN THE EARLIER YEARS AGAINST THE INCOME EARNED BY THE TRUST IN THE SUBSEQUENT YEAR WILL HAVE TO BE REGARDED AS APPLICATION OF INCOME OF THE TRUST FOR CHARITABLE AND RELIGIOUS PURPOSES IN THE SUBSEQUENT YEAR IN WH ICH ADJUSTMENT HAS BEEN MADE HAVING REGARD TO THE BENEV OLENT PROVISIONS CONTAINED IN SECTION 11 OF THE ACT AND T HAT SUCH ADJUSTMENT WILL HAVE TO BE EXCLUDED FROM THE INCOME OF THE TRUST UNDER SECTION 11(1)(A) OF THE ACT. OUR VIEW I S ALSO SUPPORTED BY THE JUDGMENT OF THE GUJARAT HIGH COURT IN THE CASE OF CIT V. SHRI PLOT SWETAMBER MURTI PUJAK JAIN MANDAT (1995) 211 ITR 293 (GUJ). ACCORDINGLY, WE ANSWER QU ESTION NO. 3 IN THE AFFIRMATIVE I.E., IN FAVOUR OF THE ASSESSE E AND AGAINST THE DEPARTMENT.' II. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY T HE HON. JURISDICTIONAL HIGH COURT AS ABOVE, THE AO IS DIREC TED TO ALLOW ITA NO. 5344/MUM/2016 M/S. GULABCHAND FOUNDATOIN 4 THE CARRY FORWARD OF DEFICIT IN THE SUCCEEDING YEAR S AFTER DUE VERIFICATION OF THE FACTS. III. GROUND OF APPEAL NO. 1 IS THEREFORE ALLOWED. THUS THE CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE BY FOLLOWING THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT I N THE CASE INSTITUTE OF BANKING PERSONNEL 264 ITR 110. 5. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MAT ERIAL ON RECORD INCLUDING THE IMPUGNED DECISION OF THE HON'BLE BOMB AY HIGH COURT IN THE CASE OF INSTITUTE OF BANKING PERSONNEL (SUPRA). WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE SAID DECISION IN FAVOUR OF THE ASSESSEE AND THUS THE LEARNED CIT(A) HAS RIGHTLY ALLOWED THE APPEAL O F THE ASSESSEE BY FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE BOMBAY HIGH COURT. ACCORDINGLY WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE CIT(A) WHICH IS A REASONED ORDER AND ACCORDINGLY UPHOLD TH E SAME. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH FEBRUARY, 2018. SD/ - SD/ - (MAHAVIR SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 14 TH FEBRUARY, 2018 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -1, MUMBAI 4. THE CIT - (EXEMPTIONS), MUMBAI 5. THE DR, J BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.