ITO, Kota V. SHRI BADE MATHURESH JI TEMPLE BOARD, Kota

ITA 685/JPR/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5165 (ITAT-JAIPUR)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 24-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAGHUVIR SINGH DUGAR
• Assessee Lawyers: ADITYA VIJAY; DIPESH KARJANI
• Keywords: Charitable institution; Question of law
• Section: 143(3); 142(1); 6; 12; 10; 11; 139; 92

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH VH-VKJ-EHUK ] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA-@ ITA NO. 685/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13. THE INCOME TAX OFFICER, (EXEMPTION), KOTA. CUKE VS. M/S. SHRI BADE MATHURESH JI TEMPLE BOARD, PATANPOLE, KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAATS 8511 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAGHUVIR SINGH DUGAR (ADDL.CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI ADITYA VIJAY, (ADVOCATE) AND SHRI DIPESH KARJANI (C.A.) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 22.06.2016. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 22/06/2016. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THE APPEAL BY THE REVENUE IS DIRECTED AGAINST THE O RDER OF LD. CIT (A) DATED 15 TH JUNE, 2015 PERTAINING TO ASSESSMENT YEAR 2012-13. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- I. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A), KOTA HAS ERRED IN ALLOWING THE CLA IM OF ASSESSEE SEEKING EXEMPTION U/S 10(23BBA) OF THE INCOME TAX ACT, 1961. II. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A), KOTA HAS ERRED IN ALLOWING THE EXEMPTIONS U/S 11 OF THE INCOME TAX ACT, 1961. III. DURING THE PROCEEDINGS APPELLANT CRAVES TO ALTER, A MEND AND MODIFY THE GROUNDS OF APPEAL. 2 ITA NO. 685/JP/2015 ITO VS. SHRI BADE MATHURESH JI TEMPLE BOARD 2. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS PICKED UP FOR SCRUTINY UNDER SECTION 143(3) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AND ASSESSMENT WAS FRAMED VIDE ORDER DATED 13 TH MARCH, 2015. WHILE FRAMING THE ASSESSMENT, THE AO DECLINED EXEMPTION UNDER SEC TION 10(23BBA) OF THE ACT AND EXEMPTION UNDER SECTION 11 OF THE ACT AND STATUS OF THE ASSESSEE WAS CONSIDERED TO BE AOP. THE ASSESSEE AGGRIEVED BY THIS ORDER, PREF ERRED APPEAL BEFORE LD. CIT (A), WHO CONSIDERING THE SUBMISSIONS OF THE ASSESSEE ALL OWED THE CLAIM OF EXEMPTION U/S 10(23BBA) OF THE ACT. 3. NOW THE REVENUE IS IN APPEAL BEFORE US. 3.1. THE LD. D/R SUBMITTED THAT LD. CIT (A) WAS NOT JUSTIFIED IN GRANTING THE EXEMPTION. HE PLACED STRONG RELIANCE ON THE ORDER O F AO. 3.2. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSES SEE REITERATED THE SUBMISSIONS AS WERE MADE BEFORE LD. CIT (A) AND ALSO PLACED REL IANCE ON THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE IN INCOME TAX APPEAL NO. 83/2014. 3.3. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE M ATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FI ND THAT COORDINATE BENCH OF THE TRIBUNAL IN THE ASSESSEES OWN CASE PERTAINING TO A .Y. 2008-09 AND 2009-10 DECIDED THE ISSUE OF AVAILABILITY OF EXEMPTION UNDER SECTIO N 10(23BBA) IN FAVOUR OF THE ASSESSEE BY OBSERVING AS UNDER :- 10. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. TO RESOLVE THE PRESENT CONTROVERSY, IT IS PERTINENT TO DISCUSS THE PROVISIONS OF SECTION 10(23BBA) OF THE ACT, WHICH READS AS UNDER: - 3 ITA NO. 685/JP/2015 ITO VS. SHRI BADE MATHURESH JI TEMPLE BOARD 10. IN COMPUTING THE TOTAL INCOME OF A PREVIOUS YE AR OF ANY PERSON, ANY INCOME FALLING WITHIN ANY OF THE FOLLOW ING CLAUSES SHALL NOT BE INCLUDED- (23BBA) ANY INCOME OF ANY BODY OR AUTHORITY (WHETHER OR NOT A BODY CORPORATE OR CORPORATION SOLE) ESTABL ISHED, CONSTITUTED OR APPOINTED BY OR UNDER ANY CENTRAL, S TATE OR PROVINCIAL ACT WHICH PROVIDES FOR THE ADMINISTRATIO N OF ANY ONE OR MORE OF THE FOLLOWING, THAT IS TO SAY, PUBLI C RELIGIOUS OR CHARITABLE TRUSTS OR ENDOWMENTS (INCLUDING MATH S, TEMPLES, GURUDWARAS, WAKFS, CHURCHES, SYNAGOGUES, A GIARIES OR OTHER PLACES OF PUBLIC RELIGIOUS WORSHIP) OR SOC IETIES FOR RELIGIOUS OR CHARITABLE PURPOSES REGISTERED AS SUC H UNDER THE SOCIETIES REGISTRATION ACT, 1860 (21 OF 1860), OR A NY OTHER LAW FOR THE TIME BEING IN FORCE: PROVIDED THAT NOTHING IN THIS CLAUSE SHALL BE CONST RUED TO EXEMPT FROM TAX THE INCOME OF ANY TRUST, ENDOWMENT OR SOCIETY REFERRED TO THEREIN; FROM THE ABOVE PROVISIONS, IT IS CRYSTAL CLEAR THAT ANY INCOME OF ANY BODY OR AUTHORITY ESTABLISHED, CONSTITUTED OR A PPOINTED BY OR UNDER ANY CENTRAL/STATE OR PROVINCIAL ACT, WHICH PR OVIDES FOR THE ADMINISTRATION OF ANY PUBLIC RELIGIOUS OR CHARITABL E TRUST OR ENDOWMENTS SHALL NOT BE INCLUDED IN COMPUTING THE T OTAL INCOME. IN THE PRESENT CASE, SHREE BADE MATHURESHJI TEMPLE BOARD, KOTA HAS BEEN CONSTITUTED U/S 92 OF THE C.P.C. VIDE ORDE R DATED 07/5/1974 IN CIVIL EXECUTION CASE NO. 32 OF 1973 BY THE DISTRICT JUDGE, KOTA. THE COPY OF THE SAID ORDER IS PLACED A T PAGE NO. 26 TO 143 OF THE ASSESSEES PAPER BOOK. THE SAID ORDER HA S BEEN UPHELD BY THE HON'BLE JURISDICTIONAL HIGH COURT VIDE ORDER DATED 1 ST SEPTEMBER, 1986. COPY OF WHICH IS PLACED AT PAGES N O. 2 TO 25 OF THE ASSESSEES PAPER BOOK. THEREFORE, IT IS CRYSTAL CLEAR THAT THE ASSESSEE BOARD, IS CONSTITUTED UNDER THE CENTRAL AC T I.E. SECTION 92 OF THE C.P.C., 1908, THEREFORE, THE PROVISIONS OF S ECTION 10(23BBA) OF THE ACT ARE APPLICABLE AND THE INCOME OF THE ASSESSEE FROM ANY SOURCE IS EXEMPT. 11. ON A SIMILAR ISSUE, THE HON'BLE ORISSA HIGH COU RT IN THE CASE SHRI JAGANNATH TEMPLE MANAGING COMMITTEE VS. COMMIS SIONER OF INCOME TAX & ORS. (2008) 218 CTR (ORI) 568 HELD AS UNDER:- 4 ITA NO. 685/JP/2015 ITO VS. SHRI BADE MATHURESH JI TEMPLE BOARD THE PETITIONER IS A BODY CORPORATE WITH PERPETUAL SUCCESSION AND A COMMON SEAL AND IS CREATED BY S. 5 OF SHRI JAGANNAT H TEMPLE ACT (ORISSA ACT II OF 1955) AND WHICH HAS RECEIVED THE ASSENT OF THE PRESIDENT ON 15 TH OCT. 1955). THEREFORE, THE PROVISO TO S. 10(23BBA) DOES NOT APPLY TO THE PETITIONER AND THE EXEMPTION WHICH HAS BEEN GRANTED TO THE PETITIONER UNDER S. 10(23BBA) IS A T OTAL UNCONDITIONAL EXEMPTION. IT IS NOT IN DISPUTE THAT THAT THE TEMPL E AND ALL ITS ENDOWMENTS HAVE VESTED IN THE PETITIONER, NAMELY, T HE COMMITTEE WHICH WAS SET UP UNDER S. 5 R/W/ S. 6 OF THE SAID A CT. SEC. 10(23BBA) MANDATES THAT ANY INCOME OF A BODY LIKE THE PETITIO NER IN UNCONDITIONALLY EXEMPT FROM THE LEVY OF INCOME TA X. IT HAS FURTHER BEEN HELD THAT:- SEC. 139(4C) WAS INSERTED BY THE FINANCE ACT, 2002 , W.E.F. 1 ST APRIL, 2003, REQUIRING CERTAIN SPECIFIC BODY OR INSTITUTIO NS SUCH AS, SCIENTIFIC RESEARCH ASSOCIATION, NEWS AGENCY OR INS TITUTION REFERRED TO UNDER VARIOUS CLAUSES OF S. 10 TO FILE IT RETURNS. IT WOULD BE CLEAR THAT WHILE INCORPORATING THE AFORESAID AMENDMENT, U NION PARLIAMENT DID NOT INCLUDE THEREIN, A BODY COVERE D UNDER S. 10(23BBA) SUCH AS THE PRESENT PETITIONER. THEREFORE , IT IS CLEAR THAT IT IS ONLY THOSE INSTITUTIONS/BODIES WHOSE INCOMES ARE CONDITIONALLY EXEMPT, ARE REQUIRED TO FILE THEIR IT RETURNS AN D THE BODIES LIKE THE PETITIONER WHOSE INCOMES ARE UNCONDITIONALLY E XEMPT FROM THE LEVY OF INCOME TAX ARE CONSEQUENTLY NOT REQUIRED T O FILE THEIR IT RETURNS. IT IS, THEREFORE, CLEAR FROM CIRCULAR NO. 4 OF 2002, DATE. 16 TH JULY, 2002 THAT THE BODIES OR AUTHORITIES WHICH ARE COVERED UNDER S. 10(23BBA) ARE NOT STATUTORILY REQUIRED TO FILE ANY RETURN OF INCOME UNDER S. 139 NOR ANY TAX IS REQUIRED TO BE DEDUCTED AT SOURCE FROM SUCH AUTHORITY UNDER S. 194A. THEREFORE, THE DIRECT ION OF THE IT AUTHORITIES IN THE NOTICE PURPORTED TO BE ISSUED UN DER S 142(1) FOR SUBMISSION OF RETURN BY THE PETITIONER IS CONTRARY TO THE MANDATE OF THE SAID CIRCULAR. EQUALLY, THE DIRECTION TO DEDUCT TAX AT SOURCE UNDER S.. 194A IN RESPECT OF INCOME OF THE PETITIONER WHI CH IS TOTALLY EXEMPTED UNDER S. 10(23BBA) IS NOT AUTHORIZED UNDER LAW. VARIOUS DIRECTIONS WHICH HAVE BEEN ISSUED ON THE BANK FOR D EDUCTION OF TAX ARE SET ASIDE. THE PETITIONER IS NOT REQUIRED TO FI LE ANY RETURN UNDER S. 142(1) AND THE DIRECTIONS GIVEN BY THE REVENUE TO T HAT EFFECT ARE UNAUTHORIZED AND OF NO LEGAL EFFECT. 12. IN THE PRESENT CASE ALSO, THE ASSESSEE I.E. SHR EE BADE MATHURESHJI TEMPLE BOARD, KOTA IS HAVING PERPETUAL SUCCESSION AND IS CONSTITUTED U/S 92 OF THE C.P.C. 1908, BY TH E DISTRICT JUDGE, KOTA FOR THE BETTER MANAGEMENT AND LOOKING AFTER DA Y TO DAY FUNCTIONING OF SHREE BADE MATHURESHJI TEMPLE, KOTA. THE SAID TEMPLE IS ANCIENT PUBLIC TEMPLE, WHICH IS VERY FAMO US AND SCARED 5 ITA NO. 685/JP/2015 ITO VS. SHRI BADE MATHURESH JI TEMPLE BOARD PLACE OF WORSHIP, THEREFORE, THE BENEFIT U/S 10(23B BA) OF THE ACT IS AVAILABLE TO THE ASSESSEE BOARD. WE, THEREFORE, DO NOT SEE ANY VALID GROUND TO INTERFERE WITH THE FINDINGS GIVEN BY THE LD. CIT(A) IN THE IMPUGNED ORDER. THE FINDING OF THE TRIBUNAL WAS CONFIRMED BY THE HO NBLE JURISDICTIONAL HIGH COURT IN INCOME TAX APPEAL NO. 83/2014 BY OBSERVING AS UNDER :- IN VIEW OF ABOVE, SECTION 10(23BBA) OF THE ACT OF 1961 HAS RIGHTLY BEEN APPLIED BY THE TRIBUNAL. SECTION 11 AND 12 APP LY WHERE A BODY OR AUTHORITY IS NOT CREATED IN THE MANNER GIVEN UNDER SECTION 10(23BBA) OF THE ACT BUT THE CASE IN HAND IS NOT COVERED BY S ECTION 11 AND 12 OF THE ACT OF 1961. WE FIND THAT THE LEARNED TRIBUNAL HAS RIGHTLY DECID ED THE ISSUE AND THE PRESENT APPEAL AGAINST THE SAID ORDER DOES NOT INVO LVE ANY SUBSTANTIAL QUESTION OF LAW SO AS TO ENTERTAIN IT. WE FURTHER FIND THAT SIMILAR ISSUE WAS CONSIDERED B Y THE ORISSA HIGH COURT IN THE CASE OF SHRI JAGANNATH TEMPLE MANAGING COMMITTEE VERSUS COMMISSIONER OF INCOME TAX & ORS. (2008) 218 CTR (ORI) 568. THE JUDGMENT AFORESAID HAS BEEN REFERRED BY THE TRI BUNAL WHILE DISMISSING THE APPEAL PREFERRED BY THE REVENUE. THE RATIO PROPOUNDED THEREIN APPLIES TO THE CASE. IN THE LIGHT OF AFORESAID, WE FIND NO ILLEGALITY IN THE ORDER OF THE TRIBUNAL. THE APPEAL DOES NOT INVOLVE SUBSTANTIAL Q UESTION OF LAW. THE APPEAL IS ACCORDINGLY DISMISSED. THE FACTS AND CIRCUMSTANCES IN THE PRESENT CASE ARE IDENTICAL AS WERE IN THE ASSESSMENT YEAR 2008-09. THE REVENUE HAS NOT PLACE D ANY CONTRARY MATERIAL IN SUPPORT OF ITS CASE. THEREFORE, RESPECTFULLY FOLLOW ING THE BINDING PRECEDENT, WE DO NOT SEE ANY REASON TO INTERFERE INTO THE ORDER OF L D. CIT (A) AND THE SAME IS HEREBY AFFIRMED. 6 ITA NO. 685/JP/2015 ITO VS. SHRI BADE MATHURESH JI TEMPLE BOARD 4. APROPOS GROUND NO. 2, LD. D/R AT THE OUTSET FAIR LY CONCEDED THAT THIS GROUND DOES NOT ARISE FROM THE ORDER OF LD. CIT (A). 4.1. GROUND NO. 2 RELATES TO CLAIM OF EXEMPTION UND ER SECTION 11 OF THE ACT. THIS GROUND WAS RAISED BEFORE THE LD. CIT (A) BY THE ASS ESSEE AS GROUND NO. 3. THIS GROUND WAS NOT ADJUDICATED BY THE LD. CIT (A) BY OB SERVING THAT AS THE ASSESSEE WAS ALLOWED EXEMPTION UNDER SECTION 10(23BBA), THER E IS NO NEED TO ADJUDICATE THIS GROUND OF APPEAL. UNDER THESE FACTS, THE GROUND RAISED BY THE REVENUE IS DISMISSED. 5. GROUND NO. 3 IS GENERAL IN NATURE, WHICH NEEDS N O SEPARATE ADJUDICATION. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 22/06/2016 . SD/- SD/- VH-VKJ-EHUK] ( DQY HKKJR ) ( T.R. MEENA) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 22/06/2016. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE ITO (EXEMPTION),KOTA. 2. THE RESPONDENT- SHRI BADE MATHURESH JI TEMPLE BO ARD, KOTA. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (WTA NO. 685/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 7 ITA NO. 685/JP/2015 ITO VS. SHRI BADE MATHURESH JI TEMPLE BOARD