St. James School, Raibareli V. Commissioner of Income Tax, Faizabad

ITA 743/LKW/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83452 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 23-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIVEK MISHRA
• Keywords: Opportunity of being heard
• Section: 12A; 12AA; 12; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.743/LKW/2014 ASSESSMENT YEAR: N.A. C.I.T., FAIZABAD. VS ST. JAMES SCHOOL, CIVIL LINES, GORA BAZAR, RAEBARELI. PAN:AAFTS8927F (RESPONDENT) (APPELLANT) SHRI B. DAS GUPTA, C.A. APPELLANT BY SHRI VIVEK MISHRA, C.I.T., D. R. RESPONDENT BY 11/11/2014 DATE OF HEARING 17 /12/2014 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT, FAIZABAD DATED 25/07/2014 U/S 12AA OF THE ACT. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX, FAIZABAD HAS ERRED IN HOLDING THAT THE APPLICANT EDUCATIONAL INSTITUTION WAS REQUIRED TO BE REGISTERED UNDER THE SOCIETIES REGISTRATION ACT OR TRUST ACT. 2. AS PER RULE 17A 'THE DOCUMENT EVIDENCING THE ESTABLISHMENT OF THE INSTITUTION' IS REQUIRED WHICH HAS BEEN SUBMITTED BEFORE THE COMMISSIONER OF INCOME TAX I.E. 3. EVIDENCE OF ESTABLISHMENT OF THE APPLICANT INSTITUTION AS PER RULE 17A: ( A ) AFFILIATION CERTIFICATE CBSE/ISE BOARD, NEW DELHI 2 ( B ) ASSESSMENT ORDER OF APPLICANT A.Y. 2008 - 09 EXEMPTION GRANTED U/S 10(23(C)(II IAD) ( C ) CONSTITUTION OF DIOCESAN EDUCATION BOARD REGISTERED AS SOCIETY, IN WHICH THE ST. JAMES SCHOOL, RAEBARELI IS LISTED AS COMPONENT UNIT. ( D ) INSPECTION OF THE INSTITUTION DONE BY THE INCOME TAX DEPARTMENT AND SUBMITTED INTERNAL REPORT. ( E ) THE PAN NUMBER HAS BE EN GRANTED AFTER ACCEPTING THE EVIDENCE OF ESTABLISHMENT AND ITS EXISTENCE. 3A. SECTION 12A (A) STARTS WITH THE WORD 'THE PERSON IN RECEIPT OF THE INCOME HAS MADE AN APPLICATION FOR REGISTRATION OF THE TRUST OR INSTITUTION'. 4. THE SUPREME COURT HAS HELD THAT IF THE INCOME IS RECEIVED DIRECTLY BY THE BENEFICIARY THEN THE BENEFICIARY SHOULD BE ASSESSED SEPARATELY AS PER CHARGING SECTION 5 OF THE INCOME TAX ACT. 5. SEVERAL INSTANCES OF EDUCATIONAL INSTITUTIONS, IN SPITE OF BEING UNDER TRUST HAVE BEEN REGISTERED UNDER SECTION 12A WERE PRESENTED WITH EVIDENCE BEFORE THE COMMISSIONER OF INCOME TAX. 6. THE PRINCIPLE OF RES - JUDICTA APPLIES. 7. IN CASE OF TWO OPINION POSSIBLE THE OPINION IN FAVOUR OF THE ASSESSEE IS TAKEN. 8. IN THE ASSESSMENT ORDER FOR T HE ASST. YEAR 2008 - 09 ALL THE FACTS HAVE BEEN FOUND IN FAVOUR OF THE ASSESSEE IN TERMS OF SECTION 10(23C) (IIIAD) AND THE APPLICANT INSTITUTION HAS BEEN FOUND FIT FOR EXEMPTION U/S 23 (C ) (IIIAD) AS EDUCATIONAL INSTITUTION AND RIGHTLY APPLIED UNDER SECTIO N 12A FOR REGISTRATION. 9. APPLICATION OF LAW SHOULD BE MADE ACCORDING TO PRACTICABILITY AS PER THE FACTS AND CIRCUMSTANCES OF THE INSTITUTION OR TRUST TO PROMOTE THE OBJECTIVE WHICH THE LEGISLATURE AND THE MINISTRY OF LAW AIMED TO ACHIEVE I.E. TO BRING A BOOST IN THE FIELD OF EDUCATION BY ENCOURAGING TO APPLY 100% RECEIPTS FOR THE EDUCATIONAL PURPOSES AND ITS DEVELOPMENT I.E. 85% TO BE APPLIED IN THE SAME YEAR AND 15% TO BE CARRIED FORWARD FOR COMING YEARS AS PER 3 SECTION 11 AND 12 INSTEAD OF TAKING A PERC ENTAGE OF TAX AND GIVING ALL THE FREEDOM TO THE INSTITUTION. 10. THERE IS NO LOSS OF REVENUE, RATHER THE OBJECTIVE OF 100% MOBILIZATION OF FUNDS WILL BE ACHIEVED BY GRANTING REGISTRATION U/S 12AA TO THE INSTITUTION. 11. AS PER ALL THE FACTS THE APPLICANT INSTITUTION SHOULD BE GRANTED REGISTRATION U/S 12AA. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THERE ARE SEVERAL OTHER SCHOOLS ALSO RUN BY SAME SOCIETY I.E. DIOCESE OF LUCKNOW (C.N.I.). HE FURTHER SUBMITTED THAT LIST OF SUCH SCHOOLS CAN BE SEEN ON PAGE NO. 111 TO 112 OF THE PAPER BOOK. HE ALSO SUBMITTED THAT OUT OF THOSE SCHOOLS, SOME OF THE OTHER SCHOOLS HAVE ALREADY BEEN GRANTED REGISTRATION U/S 12AA OF TH E ACT. IN THIS REGARD , HE SUBMITTED THAT ON PAGE NO. 7 IS REGISTRATION CERTIFICATE GRANTED TO BISHOP JHONSON SCHOOL & COLLEGE, ALLAHABAD WHICH IS ALSO RUN BY THE SAME SOCIETY. HE ALSO SUBMITTED THAT ON PAGE NO. 6 IS ASSESSMENT ORDER OF TH AT ASSESSEE FOR ASSESSMENT YEAR 2006 - 07 AND IN THAT , IT IS NOTED THAT THIS SCHOOL HAS BEEN REGISTERED U/S 12A VIDE ORDER DATED 21/09/2000 AND THE ASSESSEE WAS GRANTED EXEMPTION. IT WAS HIS SUBMISSION THAT WHEN SIMILAR SCHOOL, RUN BY THE SAME SOCIETY, IS GRANTED REGISTRAT ION THEN SUCH REGISTRATION SHOULD BE GRANTED TO THIS SCHOOL ALSO. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDER OF LEARNED CIT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT AS PER THE MINUTES OF DIOCESAN EDUCATION BOARD, AVAILABLE O N PAGE NO. 107 TO 112, THE SOCIETY IS RUNNING VARIOUS SCHOOLS SUCH AS JAY NARAYANS INTER COLLEGE, VARANASI, C.N.I. GIRLS HIGH SCHOOL, FAIZABAD, CHRISTIAN PRIMARY SCHOOL, PREMNAGAR, JHANSI, LAWTON MEMORIAL PRIMARY SCHOOL, JHANSI, ST. MARKS HOLY CROSS BRAN CH, JHANSI, BISHOP JOHNSON SCHOOL, ALLAHABAD, MARY LUCAS PRIMARY SCHOOL, ALLAHABAD, ALLEN PRIMARY SCHOOL, AZAMGARH, ST. PAULS CHURCH, BANDA AND SOME OTHER SCHOOLS. IT IS THE SUBMISSION OF THE ASSESSEE THAT SOME OF 4 THE SCHOOLS ARE ALREADY GRANTED REGISTRA TION U/S 12A. REGISTRATION CERTIFICATE OF TWO OF SUCH SCHOOL S I.E. BISHOP JOHNSON SCHOOL & COLLEGE, ALLAHABAD AND MARY LUCAS PRIMARY SCHOOL, ALLAHABAD HAVE BEEN SUBMITTED IN THE PAPER BOOK. UNDER THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT THE MAT TER SHOULD GO BACK TO LEARNED CIT FOR FRESH DECISION AFTER EXAMINING THE BYE - LAWS OF THE PRESENT SCHOOL AND THESE TWO SCHOOLS AND THEN DECIDE THE ISSUE AFRESH AND PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. WE ORDER ACCORDINGLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 17 /12/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR