M/s Sri Jagannadha Swamy, Sri Anjaneya Swamy & Sri Venkateswara Swamy Temples, Guntur V. The CIT, -, Guntur

ITA 681/VIZ/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0118 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 30-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJIV KUMAR SINGH
• Assessee Lawyers: A V RAGHURAM
• Keywords: Charitable institution; Condonation of delay; Set aside
• Section: 12AA; 12; 11

Judgement Text

PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO.681/VIZAG/2008 ASSESSMENT YEAR: N/A SRI JAGANNADHA SWAMY, SRI ANJANEYA SWAMY & SRI VENKATESWARA SWAMY TEMPLES, GUNTUR VS. CIT, GUNTUR (APPELLANT) (RESPONDENT) PAN NO. AAPTS 8844 H APPELLANT BY: SHRI A.V.RAGHU RAM, ADVOCATE RESPONDENT BY: SHRI RAJIV KUMAR SINGH, DR ORDER PER SHRI B R BASKARAN, ACCOUNTANT MEMBER : THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 30.10.2008 PASSED BY THE LD CIT, GUNTUR REFUSING TO GRANT REGISTRATION U/S 12AA OF THE ACT. 2. THE FACTS RELATING TO THE ISSUE ARE STATED IN BR IEF. THE ASSESSEE IS A TEMPLE, A RELIGIOUS BODY, RUNNING A TEMPLE NAMED SR I JAGANNADHA SWAMY, SRI ANJANEYA SWAMY & SRI VENKATESWARA SWAMY TEMPLES LOC ATED AT LALAPET GUNTUR. IT FILED AN APPLICATION IN FORM NO.10A ON 29 .5.2008 SEEKING REGISTRATION U/S 12AA OF THE ACT ALONG WITH A PETIT ION SEEKING CONDONATION OF DELAY IN FILING APPLICATION. THE LD CIT (A) REJECTE D THE APPLICATION AND THE REASONS FOR REJECTION ARE FURNISHED HEREUNDER IN BR IEF. A) PROVISION FOR CONDONATION OF DELAY IS APPLICABLE ON LY IF AN APPLICATION IS FILED ON OR BEFORE 1.6.2007 B) THE ASSESSEE DID NOT FILE ANY DOCUMENT EVIDENCING C REATION OF TRUST AND THE ACTUAL DATE OF CREATION OF THE TRUST IS ALSO NOT FURNISHED. PAGE 2 OF 5 C) TWO COPIES OF THE ACCOUNTS OF THE TRUST RELATING TO THE PAST YEARS ALONG WITH AUDIT REPORT IN FORM NO.10B WERE ALSO NO T FILED. D) THE DETAILS OF OBJECTS OF THE TRUST ARE NOT AVAILAB LE. E) SINCE THE TRUST IS CARRYING ON ACTIVITIES OF RELIGI OUS POOJA IN TEMPLES, IT CANNOT BE CONSIDERED AS A PUBLIC CHARITABLE TRUS T AS CLAIMED BY THE ASSESSEE. 3. AGGRIEVED BY THE ORDER OF THE LD CIT THE ASSESSE E IS IN APPEAL BEFORE US WITH A PRAYER TO GIVE FOLLOWING DIRECTIONS TO TH E LD CIT. A) TO DIRECT TO REGISTRATION UNDER SECTION 12 A OF THE INCOME TAX ACT, 1961 B) TO TREAT THE SURPLUS OF THE TRUST HAS NOT TAXABLE C) TO DIRECT THAT THE TRUST IS ELIGIBLE FOR EXEMPTION UNDER SECTION 10(23BBA) OF THE INCOME TAX ACT, 1961 D) TO DIRECT TO CONDONE THE DELAY IN FILING THE APPLIC ATION FOR SECTION-2 A AND OTHER PAPERS E) TO GRANT ANY OTHER RELIEF DEEMED TO BE PROPER IN TH E CIRCUMSTANCES OF THE ABOVE CASE. 4. THE LD COUNSEL FOR THE ASSESSEE FAIRLY AGREED TH AT IT IS NOT ELIGIBLE FOR CONDONATION OF DELAY, AS THE ASSESSEE HEREIN HAS FI LED APPLICATION ONLY ON 29.5.2008. HE ALSO AGREED THAT THE ONLY ISSUE THAT NEEDS TO BE ADJUDICATED IS WHETHER THE ASSESSEE HEREIN IS ENTITLED TO REGISTRA TION U/S 12 AA OF THE ACT. 5. THE LD AR SUBMITTED THAT TRUST NEED NOT BE CREAT ED THROUGH A DOCUMENT AND THE OBJECT OF THE TRUST CAN BE INFERRE D FROM THE INTENTION OF THE AUTHOR OF THE TRUST. IN THIS CONNECTION THE LD AR RELIED UPON THE FOLLOWING DECISIONS: A) CIT, BOMBAY CITY II V. TRUSTEES OF SHRI CUTCHI LOHANA PANCHTADE MAHAJAN TRUST (98 ITR 448 (BOM)) B) R.S. DAYALJI GHISALAL MODI CHARITY TRUST V. INCOME TAX OFFICER (1979) 7 TTJ (IND) 443 PAGE 3 OF 5 C) MORMUGAO PORT TRUST V. CIT, PANAJI, 109 ITD 303 (PA NAJI) D) THE GURU HARKISHAN MEDICAL TRUST (TGHMT) V DIRECTOR OF INCOME TAX (EXEMPTIONS) (2009) 18 DTR (DEL)(TRIB) 28. ACCORDING TO LD AR, THE EXISTENCE OF THE PRESENT AS SESSEE AND THE OBJECTS OF THE TRUST ARE VERY MUCH KNOWN TO EVERY BODY AND HEN CE THE ABSENCE OF A TRUST DEED SHOULD NOT BE A GROUND FOR REJECTION OF THE APPLICATION. THE LD AR ALSO SUBMITTED THAT THE ASSESSEE IS IN A POSITION T O FURNISH THE DETAILS OF ACCOUNTS ALONG WITH AUDIT REPORT. HOWEVER, LD DR S TOOD BY THE ORDER PASSED BY LD CIT. 6. WE HAVE HEARD THE PARTIES AND CAREFULLY PERUSED THE RECORD. AS PER THE RULE 17 A OF THE INCOME TAX RULES, THE APPLICATI ON SEEKING REGISTRATION U/S 12AA OF THE ACT SHALL BE ACCOMPANIED WITH COPIE S OF THE TRUST DEED IF THE TRUST IS CREATED UNDER AN INSTRUMENT. IN THE SAID R ULES IT HAS ALSO BEEN PROVIDED THAT WHERE THE TRUST IS CREATED OR THE INST ITUTION ESTABLISHED OTHERWISE THAN UNDER AN INSTRUMENT, THE DOCUMENT E VIDENCING CREATION OF THE TRUST OR THE ESTABLISHMENT OF THE INSTITUTION T OGETHER WITH ONE COPY THEREOF CAN BE ATTACHED TO THE APPLICATION. ON CARE FUL READING OF THIS RULE INDICATES THAT THE TRUST OR THE INSTITUTION NEED NO T NECESSARILY BE ESTABLISHED UNDER AN INSTRUMENT. IF THE TRUST OR INSTITUTION IS ESTABLISHED OTHERWISE THAN BY AN INSTRUMENT, THEN IT IS PROPER COMPLIANCE OF L AW IF ANY DOCUMENT EVIDENCING CREATION OF THE TRUST IS ATTACHED TO THE APPLICATION, MEANING THEREBY, WHAT IS REQUIRED TO BE PROVED IS THE EXIST ENCE OF THE TRUST AND GENUINENESS OF ITS ACTIVITIES. THE CASE LAWS RELIE D UPON BY THE ASSESSEE ALSO SUGGEST THAT THE OBJECTS OF THE TRUST COULD BE INFE RRED FROM THE INTENTION OF THE SETTLOR. THUS THE TRUE OBJECTIVE NEED NOT ALWA YS BE WRITTEN IN THE TRUST DEED AND THE SAME CAN BE INFERRED FROM THE INTENTIO N OF THE SETTLOR. 7. IN THE INSTANT CASE THE EXISTENCE OF THE TRU ST CANNOT BE DOUBTED AS THE TEMPLE RUN BY THE ASSESSEE IS IN EXISTENCE FOR MORE THAN 300 YEARS. MOREOVER, THIS TEMPLE HAS FALLEN UNDER THE PURVIEW OF THE ANDHRA PRADESH STATE GOVERNMENT BY VIRTUE OF THE ANDHRA PRADESH CH ARITABLE AND HINDU RELIGIOUS INSTITUTIONS & ENDOWMENTS ACT, 1987. ACCO RDINGLY THE ADMINISTRATION OF THE TEMPLE IS CARRIED ON BY THE S TATE GOVERNMENT THROUGH PAGE 4 OF 5 ITS AUTHORITIES. THUS THE EXISTENCE OF THE TRUST A ND THE GENUINENESS OF THE ACTIVITIES ARE PROVED. 8. THE LD CIT HIMSELF HAS INFERRED THE OBJECTI VES OF THE TRUST IN THE FOLLOWING LINES IN HIS ORDER: OBJECTS OF THE TRUST ARE NOT DEFINED, HOWEVER, ON THE BASIS OF HISTORY OF THE TEMPLES, IT CAN BE SAID THAT IT I S A PUBLIC RELIGIOUS TRUST, WHICH IS CARRYING ON ACTIVITY OF P ERFORMING RELIGIOUS POOJA IN TEMPLES ONLY AND THEREFORE, IT CANNOT BE CONSIDERED AS A PUBLIC CHARITABLE TRUST AS CLAIMED BY THE ASSESSEE. THUS, THERE IS NOT DISPUTE WITH REGARD TO THE OBJEC TS OF THE ASSESSEE. 9. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE ASSESSEE HEREIN IS A PUBLIC RELIGIOUS TRUST. A CAREFUL READING OF SEC TION 11 WOULD SHOW THAT NOT ONLY THE CHARITABLE TRUSTS BUT ALSO THE RELIGIOUS T RUSTS ARE ENTITLED TO EXEMPTION U/S 11, OF COURSE SUBJECT TO THE FULFILME NT OF CONDITIONS PRESCRIBED THEREIN. SINCE THE ASSESSEE HEREIN IS A TRUST EXIS TING FULLY FOR RELIGIOUS PURPOSES, ITS INCOME IS EXEMPT U/S 11, SUBJECT TO T HE FULFILMENT OF THE CONDITIONS PRESCRIBED THEREIN. 10. THE LD AR HAS ALREADY SUBMITTED THAT NON FILING OF ACCOUNTS RELATING TO PAST ORDER ALONG WITH AUDIT REPORT IS ONLY A TECHNI CAL MISTAKE AND THE ASSESSEE IS IN A POSITION TO FILE THE SAME. 11. IN VIEW OF THE FOREGOING, WE SET ASIDE THE MATTE R TO THE FILE OF THE LD. CIT FOR FRESH CONSIDERATION IN THE LIGHT OF DISCUSS IONS MADE ABOVE. THE ASSESSEE IS ALSO DIRECTED TO FURNISH COPIES OF ACCO UNTS AND OTHER DOCUMENTS THAT MAY BE CALLED FOR BY LD CIT IN THIS REGARD. PAGE 5 OF 5 12. IN THE RESULT THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 15. 09.2009 SD/- SD/- (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM, 15 TH SEPTEMBER, 2009. COPY TO 1 THE ASSTT. COMMISSIONER & EXECUTIVE OFFICER, SRI JAGANNADHA SWAMY, SRI ANJANEYA SWAMY & SRI VENKATESWARA SWAMY TEMPLES, LA LAPET, GUNTUR TOWN, GUNTUR 2 THE CIT, GUNTUR 3 THE JCIT, RANGE-1, GUNTUR 4 THE ACIT, CIRCLE-1(1) GUNTUR 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM