ITO, Kota V. M/S BADE MATHURESHJI TEMPLE BOARD, Kota

ITA 773/JPR/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5604 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 24-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K KHANDELWAL
• Keywords: Charitable institution; Cost of acquisition
• Section: 142(1); 10; 11; 139; 92

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JAIPUR BENCH: JAIPUR (BEFORE SHRI H.M. MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER) I.T.A. NOS. 773 & 774/JP/2012 ASSTT. YEARS- 2008-09 & 2009-10 INCOME TAX OFFICER M/S BADE MATHURESHJI TEMPLE WARD 2(2), KOTA. VRS. BOARD, PATANPOE, KOTA. PAN NO. AAATS8511N (APPELLANT) (RESPONDENT) C.O. NO. 71 & 72/JP/2012 (IN I.T.A. NOS. 773 & 774/JP/2012) ASSTT. YEARS- 2008-09 & 2009-10 M/S BADE MATHURESHJI TEMPLE INCOME TAX OFFICER BOARD, PATANPOE, KOTA. VRS. WARD 2(2), KOTA. PAN NO. AAATS8511N (OBJECTOR) (RESPONDENT) DEPARTMENT BY :- SHRI A.K. KHANDELWAL, D.R. ASSESSEE BY :- SHRI SANJAY JHANWAR. DATE OF HEARING : 16/01/2014 DATE OF PRONOUNCEMENT : 22/01/2014 O R D E R PER: N.K. SAINI, A.M. THE APPEALS BY THE DEPARTMENT AND THE CROSS OBJECTI ONS ARISING OUT OF THE APPEALS OF THE DEPARTMENT FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 25/7/2012 OF THE LD. CIT(APPEALS) , KOTA FOR THE ASSESSMENT YEARS 2008-09 AND 2009-10. ITA 773 & 774/JP/2012 & CO 71 & 72/JP/2012 2 2. IN THE DEPARTMENTAL APPEALS, COMMON ISSUE IS INV OLVED AND THE APPEALS ALONGWITH CROSS OBJECTIONS WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIE NCE AND BREVITY. 3. IN I.T.A. NO. 773/JP/2012 FOLLOWING GROUNDS HAS BEEN RAISED. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) HAS ERRED IN:- (I) ALLOWING THE CLAIM OF ASSESSEE SEEKING EXEMPTIO N U/S 10 (23BBA) OF THE ACT. (II) NOT CONSIDERING COST OF ACQUISITION OF LAND AT VILLAGE RANPUR ADOPTED BY A.O. AT RS. 1,38,940/- AND ALSO NOT CONS IDERING COMPUTATION OF CAPITAL GAIN OF RS. 21,08,58,996/-. (III) THE APPELLANT CRAVES LIBERTY TO RAISE ADDITIO NAL GROUND AND TO MODIFY/AMEND THE GROUND OF APPEAL AT THE TIME OF HE ARING. 4. FROM THE ABOVE GROUNDS, IT IS GATHERED THAT THE MAIN GRIEVANCE OF THE DEPARTMENT RELATES TO THE EXEMPTION U/S 10(23BBA) O F THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) DIR ECTED TO BE ALLOWED TO THE ASSESSEE BY THE LD. CIT(A), KOTA. 5. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 30/1/2009 DECLARING NIL INCOME. THE ASSESSEE DERIVE D INCOME OF RS. 2,40,46,337/- FROM CAPITAL GAIN, WHICH WAS CLAIMED AS EXEMPT. THE ASSESSING OFFICER, HOWEVER, FRAMED THE ASSESSMENT AT AN INCOM E OF RS. 21,08,57,000/- BY DEDUCTING COST OF ACQUISITION AMOUNTING TO RS. 7,65 ,559/- OUT OF THE COMPENSATION OF RS. 21,16,22,555/- RECEIVED FROM UR BAN IMPROVEMENT TRUST, ITA 773 & 774/JP/2012 & CO 71 & 72/JP/2012 3 KOTA. THE ASSESSING OFFICER ALSO DID NOT ALLOW DEDU CTION U/S 11(1)(A) OF THE ACT. 6. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND THE SUBMISSIONS MADE BY THE ASSESSEE AS INCORPORATED IN PARA 4.21 OF THE IMPUGNED ORDER ARE REPRODUCED VERBATIM AS UNDER:- 4.21 :- 1. WITH REGARD TO THE ABOVE GROUND OF APPEAL, IT I S HUMBLY SUBMITTED AT THE OUTSET THAT THE LD. ASSESSING OFFICER HAS TO TALLY ERRED IN FINALIZING THE ASSESSMENT OF THE APPELLANT BOARD AN D CREATING A HUGE TAX DEMAND BY NOT GRANTING THE BENEFIT OF SECT ION 10(23BBA) TO THE APPELLANT. 2. IT IS HUMBLY SUBMITTED THAT THE APPELLANT BOARD WAS CONSTITUTED THROUGH A SCHEME UNDER THE PROVISIONS OF A CENTRAL ACT NAMELY C.P. C., 1908 FOR THE PURPOSE OF BETTER AND EFFICIE NT ADMINISTRATION OF SHREE BADE MATHURESHJI TEMPLE AT KOTA WHICH IS A PUBLIC TEMPLE AND ALSO A VERY ANCIENT AND VERY FAMOUS AND SACRED PLACE OF WORSHIP FOR HINDU WORSHIPPERS OF THE CITY OF KOT A AS WELL AS OF ENTIRE COUNTRY. THE APPELLANT BOARD WAS CONSTITUTED U/S 92 OF THE C.P.C., 1908 THROUGH A DECREE OF CIVIL COURT AND WH ICH WAS LATER UPHELD BY THE HON'BLE HIGH COURT OF RAJASTHAN IN AP PEAL (COPIES OF BOTH OF WHICH ORDERS ARE PLACED IN THE PAPER-BOO K AT PAGE NOS. 28 TO 143 AND 2 TO 25 RESPECTIVELY) AND WHEREIN IT WAS SPECIFICALLY MENTIONED THAT SHREE BADE MATHURESHJI TEMPLE BOARD HAS BEEN CONSTITUTED FOR THE BETTER MANAGEMENT AND LOOKING A FTER THE DAY TO DAY FUNCTIONING OF SHREE BADE MATHURESHJI TEMPLE AT KOTA. WHILE ITA 773 & 774/JP/2012 & CO 71 & 72/JP/2012 4 PASSING THE SAID DECREE, THE CIVIL COURT ALSO FRAME D A SCHEME U/S 92 OF C.P.C. FOR THE BETTER MANAGEMENT AND EFFICIEN T ADMINISTRATION OF THE TEMPLE OF SHREE BADE MATHURESHJI AND VIDE S UCH SCHEME CONSTITUTED THE APPELLANT BOARD. A COPY OF SUCH SCH EME FRAMED BY HON'BLE DISTRICT JUDGE, KOTA IN CIVIL SUIT NO. 1 OF 1955 DECIDED ON 05/07/1972 U/S 92 OF C.P.C. IS PLACED IN THE PAPER BOOK AT PAGE NO. 131 TO 140. HOWEVER, SUCH SCHEME FRAMED BY HON 'BLE DISTRICT JUDGE WAS LATER AMENDED TO A LITTLE EXTENT BY THE H ON'BLE HIGH COURT OF RAJASTHAN, JAIPUR BENCH IN CIVIL FIRST APP EAL NO. 192/1972 DECIDED ON 01/09/1986 WHEREIN THE ORDER OF HON'BLE DISTRICT JUDGE WAS CHALLENGED AND WAS UPHELD BY THE HON'BLE HIGH COURT. A COPY OF SUCH AMENDED SCHEME U/S 92 OF C.P. C. IS ALSO PLACED IN THE PAPER BOOK AT PAGE NO. 15 TO 24. 3. THAT THE TEMPLE OF SHREE BADE MATHURESHJI AT KOT A WAS ESTABLISHED AT KOTA IN VIKRAM SAMVAT 1801 (CORRESPONDING ENGLIS H CALANDER YEAR 1744-1745) AND SINCE ITS INCEPTION HAS BEEN AN D STILL IS AN INSTITUTION OF UNIQUE NATIONAL IMPORTANCE AND ATTRA CTS THOUSANDS AND LAKHS OF HINDU DEVOTEES FROM ALL OVER INDIA. TH E TEMPLE STANDS AS A SYMBOL OF RELIGIOUS TRADITIONS OF VALLABHKUL VAISHNAV SAMPRADAYA OF HINDU RELIGION AND AN ICON OF FAITH, BELIEF AND WORSHIP FOR COUNTLESS HINDU DEVOTEES ALL OVER INDIA . AS SUCH IN ORDER TO PROPERLY ORGANIZE ITS MANAGEMENT AND TO FO RMULATE A SCHEME OF RUNNING THE AFFAIRS OF THE TEMPLE, THE AP PELLANT BOARD WAS CONSTITUTED AS ALREADY MENTIONED ABOVE AND IN F URTHERANCE OF THE SAME. HON'BLE DISTRICT JUDGE SHRI. S.R. KOTHARI VIDE ORDER DATED 07/05/1974 IN CIVIL EXECUTION NO. 32 OF 1973 CONSTITUTED THE ITA 773 & 774/JP/2012 & CO 71 & 72/JP/2012 5 APPELLANT-BOARD FOR THE FIRST TIME. A COPY OF SUCH ORDER DATED 07/05/1974 IS PLACED IN THE PAPER BOOK AT PAGE NO. 26 TO 27. 4. THE APPELLANT BOARD IS A BODY CORPORATE UNDER TH E SAID SCHEME AND HAVING A PERPETUAL SUCCESSION AND A COMMON SEAL AND CAN SUE AND BE SUED IN ITS OWN NAME. FURTHER, THE POWERS OF THE APPELLANT BOARD REGARDING THE ADMINISTRATION AND GOVERNANCE O F SHREE BADE MATHURESHJI TEMPLE AND ITS FUNDS ARE ABSOLUTE. EXCE PTING THE APPELLANT BOARD SET UP AS PER THE SCHEME NO OTHER A UTHORITY IS VESTED WITH THE POWER OF ADMINISTRATION AND GOVERNA NCE OF THE TEMPLE AND ITS ADMINISTRATION AND THIS IS CLEAR FRO M THE PROVISIONS OF THE SCHEME. 5. IN THE LIGHT OF THE ABOVE STATED NECESSARY FACTS , IT IS PERTINENT TO DISCUSS THE PROVISION OF SECTION 10(23BBA) OF THE A CT UNDER WHICH THE APPELLANT BOARD CLAIMS EXEMPTION. SECTION 10 (2 3BBA) OF THE ACT UNDER WHICH THE APPELLANT BOARD CLAIMS EXEMPTIO N,. SECTION 10 OF THE ACT PROVIDES THAT IN COMPUTING THE TOTAL INC OME OF A PREVIOUS YEAR OF ANY PERSON, ANY INCOME INDICATED IN ANY OF THE CLAUSES IN SECTION 10 INCLUDING CLAUSE (23BBA) SHALL NOT BE IN CLUDED. THE PURPOSE OF INTRODUCTION OF THE SAID PROVISION IS TO UNCONDITIONALLY EXEMPT THE INCOME OF STATUTORY BODIES WHICH ARE ENT RUSTED WITH THE ADMINISTRATION OF PUBLIC, RELIGIOUS OR CHARITABLE I NSTITUTION AND ARE NOT ENGAGED IN COMMERCIAL ACTIVITIES. THE SAID SECT ION 10(23BBA) IS SET OUT HEREIN BELOW: 10. INCOME NOT INCLUDED IN TOTAL INCOME. ITA 773 & 774/JP/2012 & CO 71 & 72/JP/2012 6 IN COMPUTING THE TOTAL INCOME OF A PREVIOUS YEAR O F ANY PERSON, ANY INCOME FALLING WITHIN ANY OF THE FOLLOWING CLAUSES SHALL NOT BE INCLUDED- (23BBA) ANY INCOME OF ANY BODY OR AUTHORITY (WHETHER OR NOT A BODY CORPORATE OR CORPORATION SOLELY) ESTABLISHED, CONSTITUTED OR APPOINTED BY OR UNDER ANY CENTRAL, STATE OR PROVINC IAL ACT WHICH PROVIDES FOR THE ADMINISTRATION OF ANY ONE OR MORE OF THE FOLLOWING, THAT IS TO SAY, PUBLIC RELIGIOUS OR CHARITABLE TRUS TS OR ENDOWMENTS (INCLUDING MATHS, TEMPLES, GURUDWARAS, WAKFS, CHURCHES, SYNAGOGUES, AGIARIES OR OTHER PLACES OF PUBLIC RELI GIOUS WORSHIP) OR SOCIETIES FOR RELIGIOUS OR CHARITABLE PURPOSES REGISTERED AS SUCH UNDER THE SOCIETIES REGISTRATION ACT, 1860 (21 OF 1 860), OR ANY 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 SOCI ETY REFERRED TO THEREIN; 6. FROM A PERUSAL OF THE SAID SECTION, IT APPEARS T HAT IT GIVES COMPLETE EXEMPTION IN RESPECT OF- A. ANY INCOME OF ANY BODY OR AUTHORITY WHETHER IT I S A BODY CORPORATE OR A CORPORATION. B. WHICH IS ESTABLISHED AND APPOINTED UNDER A CENTR AL, STATE OR PROVINCIAL ACT. C. FOR THE ADMINISTRATION OF ANY PUBLIC RELIGIOUS O R CHARITABLE TRUSTS OR ENDOWMENTS D. INCLUDING MATHS, TEMPLES, GURUDWARAS, WAKFS, C HURCHES, ETC. ITA 773 & 774/JP/2012 & CO 71 & 72/JP/2012 7 7. THEREFORE, IF WE SEE THE ORGANIZATION/STRUCTURE OR THE APPELLANT BOARD IN THE LIGHT OF THE ABOVE MENTIONED PROVISION , IT BECOMES CLEAR THAT THE APPELLANT BOARD COMPLIED WITH ALL TH E CONDITIONS MENTIONED IN SECTION 10 (23BBA) OF THE ACT FOR GETT ING UNCONDITIONAL EXEMPTION OF ITS INCOME FROM INCOME T AX AS IT IS ALSO A BODY CORPORATE CONSTITUTED UNDER A CENTRAL ACT (I .E. C.P.C., 1908) FOR THE ADMINISTRATION AND MANAGEMENT OF SHRE E BADE MATHURESHJI TEMPLE AND HENCE IT WAS UNCONDITIONALLY ELIGIBLE FOR EXEMPTION U/S 10(23BBA) OF THE ACT IN RESPECT OF IT S INCOME FROM ANY SOURCE AND IN SPITE OF THE SAME, THE LD. ASSESS ING OFFICER DID NOT EVEN DISCUSS SUCH ELIGIBILITY OF THE APPELLANT BOARD FOR GETTING EXEMPTION IN RESPECT OF ALL ITS INCOMES LEAVE ALONE DISMISSING SUCH ELIGIBILITY ON SOME GROUND AND HAS THEREFORE, ERRED IN PASSING THE IMPUGNED ASSESSMENT ORDER. 8. IT IS ALSO SUBMITTED THAT THE SAID EXEMPTION U/S 10(23BBA) OF THE ACT WAS INTRODUCED IN ORDER TO EXEMPT THE INCOME O F THE BODIES OR AUTHORITIES WHICH ARE SET UP BY OR UNDER ANY CENTRA L, STATE OR PROVINCIAL ACT AND WHICH ARE ENTRUSTED WITH THE ADM INISTRATION OF PUBLIC RELIGIOUS AND CHARITABLE TRUSTS WITHIN THEIR JURISDICTION. IT WAS MADE CLEAR WHILE INCORPORATING THE SAID PROVISI ON THAT SINCE THE BODIES ARE NOT ENGAGED IN ANY COMMERCIAL ACTIVI TY, IT WAS PROPOSED TO INSERT A NEW CLAUSE (23BBA) TO SECTION 10 IN ORDER TO GRANT EXEMPTION IN RESPECT OF INCOME ARISING TO AN Y BODY OR AUTHORITY ESTABLISHED, CONSTITUTED OR APPOINTED UND ER ANY ENACTMENT. ITA 773 & 774/JP/2012 & CO 71 & 72/JP/2012 8 9. THAT THE APPELLANT BOARD BEING CONSTITUTED FOR T HE MANAGEMENT AND ADMINISTRATION OF THE TEMPLE OF SHREE BADE MATH URESHJI AT KOTA U/S 92 OF C.P.C., 1908, IS A BODY CONSTITUTED UNDER THE LAW/CENTRAL ACT FOR THE ADMINISTRATION OF ENDOWMENT S AND THEREFORE, IT IS COVERED UNDER THE AMBIT OF CLAUSE (23BBA) OF SECTION 10 OF THE ACT AND THUS IS ENTITLED TO CLAI M UNCONDITIONAL EXEMPTION IN RESPECT OF ITS COMPLETE INCOME UNDER S ECTION 10(23BBA) OF THE ACT. DURING THE COURSE OF ASSESSME NT PROCEEDINGS, THE APPELLANT CLAIMED EXEMPTION UNDER THE SAID SECTION AND ALSO CLAIMED EXEMPTION U/S 11 OF THE AC T, HOWEVER, THE LD. ASSESSING OFFICER DID NOT EVEN DISCUSS THE BENE FIT OF EXEMPTION U/S 10(23BBA) OF THE ACT, AND ACCORDINGLY THE SAME WAS NOT GIVEN. 10. AS THE ISSUE HEREIN IS ALSO RELATED TO WHETHER THE APPELLANT BOARD CONSTITUTED THROUGH A SCHEME FRAMED U/S 92 OF C.P.C ., WHICH IS A CENTRAL LEGISLATION IS ELIGIBLE FOR EXEMPTION U/S 1 0(23BBA) OF THE ACT WHICH PROVIDES EXEMPTION TO SUCH INCOME OF A BO DY CONSTITUTED BY OR UNDER A CENTRAL ACT AND WHICH PROVIDES FOR TH E ADMINISTRATION OF A TEMPLE, IT IS PERTINENT TO REFE R TO RELEVANT PART OF SECTION 92 OF C.P.C. AS PROVIDED HEREIN BELOW- 92. PUBLIC CHARITIES. (1) IN THE CASE OF ANY ALLEGED BREACH OF ANY EXPRES S OR CONSTRUCTIVE TRUST CREATED FOR PUBLIC PURPOSES OF A CHARITABLE O R RELIGIOUS NATURE, OR WHERE THE DIRECTION OF THE COURT IS DEEMED NECES SARY FOR THE ADMINISTRATION OF ANY SUCH TRUST, THE ADVOCATE GENERAL, OR TWO OR MORE PERSONS HAVING AN INTEREST IN THE TRUST AND HAVING OBTAINED THE LEAVE OF THE COURT MAY INSTITUTE A SUIT, WHETHE R CONTENTIOUS OR NOT, IN THE PRINCIPAL CIVIL COURT OF ORIGINAL JURIS DICTION OR IN ANY ITA 773 & 774/JP/2012 & CO 71 & 72/JP/2012 9 OTHER COURT EMPOWERED IN THAT BEHALF BY THE STATE G OVERNMENT WITHIN THE LOCAL LIMITS OF WHOSE JURISDICTION THE W HOLE OR ANY PART OF THE SUBJECT MATTER OF THE TRUST IS SITUATE TO OBTAI N A DECREE,- (G) SETTLING A SCHEME; OR (H) GRANTING SUCH FURTHER OR OTHER RELIEF AS THE NA TURE OF THE CASE MAY REQUIRE. 11. IT IS HUMBLY SUBMITTED THAT THE APPELLATE BOAR D WAS CONSTITUTED: A. UNDER THE ABOVE MENTIONED PROVISION OF THE CENTR AL ACT NAMELY THE CIVIL PROCEDURE CODE, 1908, BY THE DISTR ICT JUDGE AT KOTA IN ACCORDANCE WITH THE POWERS GIVEN TO HIM BY THE SAID CENTRAL ACT. B. PROVIDES FOR THE ADMINISTRATION OF SUCH TRUST WH ICH IS A PUBLIC RELIGIOUS TRUST AND THE SAID STATUTORY PROVI SION OF THE CENTRAL ACT PROVIDES FOR ADMINISTRATION OF THE PUBLIC CHARI TABLE AND RELIGIOUS TRUSTS. HENCE, IT IS CLEAR THAT THE APPELLANT BOARD QUALIFI ES FOR EXEMPTION U/S 10(23BBA) OF THE ACT. 12. IT IS ALSO RELEVANT TO SUBMIT THAT THE SCHEME A MENDED BY THE HIGH COURT AS MENTIONED IN PARA 2 ABOVE AS ITS POINT NO. 12 CLEARLY PROVIDED THAT THE APPELLANT BOARD SHALL MANAGE THE PROPERTIES AND AFFAIRS OF THE TEMPLE AND FURTHER AT POINT NO. 26 P ROVIDED THAT AFTER THE BOARD IS CONSTITUTED, ALL RIGHTS AND INTERESTS IN THE PROPERTIES MOVEABLE OR IMMOVABLE, RIGHTS AND LIABILITIES VESTE D IN THE RECEIVER SHALL BE TRANSFERRED TO THE BOARD BY THE OPERATION OF THE SCHEME. THEREFORE, IN RESPECT OF ALL THE PROPERTIES/INCOMES BELONGING TO THE TEMPLE OR TO THE DEITY OF SHREE BADE MATHURESHJI, T HE APPELLANT ITA 773 & 774/JP/2012 & CO 71 & 72/JP/2012 10 BOARD WAS LIABLE FOR MANAGEMENT AS WELL AS ADMINIST RATION AND USE OF SUCH PROPERTIES/INCOMES AS PER THE RULES LAI D DOWN IN THE SCHEME AND THAT IS WHY, IN THE PRESENT CASE, THE AP PELLANT BOARD WAS ASSESSED IN RELATION TO THE COMPENSATION RECEIV ED FROM UIT, KOTA FOR COMPULSORY ACQUISITION OF LAND BELONGING T O SHREE BADE MATHURESHJI TEMPLE BY UIT, KOTA. IN VIEW OF THE ABOVE SUBMISSIONS, IT IS HUMBLY SUBM ITTED THAT THE APPELLANT BOARD BE HELD TO BE UNCONDITIONALLY EXEMP T FROM INCOME TAX U/S 10(23BBA) OF THE ACT AND THE BENEFIT OF THE SAME BE GIVEN IN RESPECT OF ITS TOTAL INCOME ARISING IN THE IMPUGNED ASSESSMENT YEAR. 7. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE HELD THAT THE ASSESSEE TRUST WAS ELIGIBLE FOR EXEMPTION U/S 10 (23BBA) OF THE ACT IN RESPECT OF ITS INCOME FROM ANY SOURCE. HOWEVER, HE DID NOT ADJUDICATE THE ANOTHER ISSUE AGITATED BY THE ASSESSEE FOR DEDUCTI ON U/S 11 OF THE ACT. NOW THE DEPARTMENT IS IN APPEAL. 8. THE LD. D.R. STRONGLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND SUBMITTED THAT THE PROVISIONS OF SECTION 10(23BBA) OF THE ACT ARE APPLICABLE ONLY TO THE BODY OR AUTHORITY CONSTITUTED OR APPOIN TED BY OR UNDER ANY CENTRAL/STATE OR PROVINCIAL ACT AND IT SHOULD BE FO R ADMINISTRATION OF PUBLIC RELIGIOUS OR CHARITABLE TRUST. IT WAS FURTHER SUBMI TTED THAT THE ASSESSEE TRUST WAS NOT CONSTITUTED OR APPOINTED BY OR UNDER ANY CENTRA L/STATE OR PROVINCIAL ACT, THEREFORE, THE LD. CIT(A) WAS NOT JUSTIFIED IN ALLO WING THE EXEMPTION TO THE ASSESSEE U/S 10(23BBA) OF THE ACT. RELIANCE WAS PLA CED ON THE DECISION OF THE ITA 773 & 774/JP/2012 & CO 71 & 72/JP/2012 11 HON'BLE ORISSA HIGH COURT IN THE CASE OF SHRI JAGAN NATH TEMPLE MANAGING COMMITTEE VS. COMMISSIONER OF INCOME TAX & ORS. (20 08) 218 CTR (ORI) 568. 9. IN HIS RIVAL SUBMISSIONS, THE LD. COUNSEL FOR TH E ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND S TRONGLY SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). HE FURTHER SUBMITTED THAT THE BOARD WAS CONSTITUTED THROUGH A SCHEME UNDER THE PROVISIO NS OF CENTRAL ACT NAMELY C.P.C. (CIVIL PROCEDURE CODE), 1908 FOR BETTER AND EFFICIENT ADMINISTRATION OF SHREE BADE MATHURESHJI TEMPLE, KOTA, WHICH IS A VER Y ANCIENT PUBLIC TEMPLE AND ALSO A SACRED PLACE OF WORSHIP AND WAS CONSTITU TED U/S 92 OF THE C.P.C., 1908, THROUGH A DECREE OF THE CIVIL COURT, WHICH WA S LATER ON UPHELD BY THE HON'BLE RAJASTHAN HIGH COURT. THEREFORE, THE LD. CI T(A) WAS JUSTIFIED IN ALLOWING THE BENEFIT OF SECTION 10(23BBA) OF THE AC T TO THE ASSESSEE. IT WAS FURTHER STATED THAT THE CASE RELIED BY THE LD. C.I. T. D.R. I.E. SHRI JAGANNATH TEMPLE MANAGING COMMITTEE VS. COMMISSIONER OF INCOM E TAX & ORS. (2008) 218 CTR (ORI) 568 ALSO FAVOURS THE CASE OF THE ASSE SSEE. 10. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. TO R ESOLVE THE PRESENT CONTROVERSY, IT IS PERTINENT TO DISCUSS THE PROVISI ONS OF SECTION 10(23BBA) OF THE ACT, WHICH READS AS UNDER:- 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- ITA 773 & 774/JP/2012 & CO 71 & 72/JP/2012 12 (23BBA) ANY INCOME OF ANY BODY OR AUTHORITY (WHETHER OR NOT A BODY CORPORATE OR CORPORATION SOLE) ESTABLISHED, CO NSTITUTED OR APPOINTED BY OR UNDER ANY CENTRAL, STATE OR PROVINC IAL ACT WHICH PROVIDES FOR THE ADMINISTRATION OF ANY ONE OR MORE OF THE FOLLOWING, THAT IS TO SAY, PUBLIC RELIGIOUS OR CHARITABLE TRUS TS OR ENDOWMENTS (INCLUDING MATHS, TEMPLES, GURUDWARAS, WAKFS, CHURC HES, SYNAGOGUES, AGIARIES OR OTHER PLACES OF PUBLIC RELI GIOUS WORSHIP) OR SOCIETIES FOR RELIGIOUS OR CHARITABLE PURPOSES REG ISTERED AS SUCH UNDER THE SOCIETIES REGISTRATION ACT, 1860 (21 OF 1 860), OR ANY 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 SOCI ETY REFERRED TO THEREIN; FROM THE ABOVE PROVISIONS, IT IS CRYSTAL CLEAR THAT ANY INCOME OF ANY BODY OR AUTHORITY ESTABLISHED, CONSTITUTED OR APPOINTED BY OR UNDER ANY CENTRAL/STATE OR PROVINCIAL ACT, WHICH PROVIDES FOR THE ADMINISTRATI ON OF ANY PUBLIC RELIGIOUS OR CHARITABLE TRUST OR ENDOWMENTS SHALL NOT BE INCLUDE D IN COMPUTING THE TOTAL INCOME. IN THE PRESENT CASE, SHREE BADE MATHURESHJI TEMPLE BOARD, KOTA HAS BEEN CONSTITUTED U/S 92 OF THE C.P.C. VIDE ORDER DA TED 07/5/1974 IN CIVIL EXECUTION CASE NO. 32 OF 1973 BY THE DISTRICT JUDGE , KOTA. THE COPY OF THE SAID ORDER IS PLACED AT PAGE NO. 26 TO 143 OF THE ASSESS EES PAPER BOOK. THE SAID ORDER HAS BEEN UPHELD BY THE HON'BLE JURISDICTIONAL HIGH COURT VIDE ORDER DATED 1 ST SEPTEMBER, 1986. COPY OF WHICH IS PLACED AT PAGES NO. 2 TO 25 OF THE ASSESSEES PAPER BOOK. THEREFORE, IT IS CRYSTAL CLE AR THAT THE ASSESSEE BOARD, IS ITA 773 & 774/JP/2012 & CO 71 & 72/JP/2012 13 CONSTITUTED UNDER THE CENTRAL ACT I.E. SECTION 92 O F THE C.P.C., 1908, THEREFORE, THE PROVISIONS OF SECTION 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. COMMISSIONE R OF INCOME TAX & ORS. (2008) 218 CTR (ORI) 568 HELD AS UNDER:- 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 ACT. SE C. 10(23BBA) MANDATES THAT ANY INCOME OF A BODY LIKE THE PETITIONER IN U NCONDITIONALLY EXEMPT FROM THE LEVY OF INCOME TAX. 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 INSTITUTION RE FERRED TO UNDER VARIOUS CLAUSES OF S. 10 TO FILE IT RETURNS. IT WO ULD BE CLEAR THAT WHILE INCORPORATING THE AFORESAID AMENDMENT, UNION PARLIA MENT DID NOT INCLUDE THEREIN, A BODY COVERED UNDER S. 10(23BBA ) SUCH AS THE PRESENT PETITIONER. THEREFORE, IT IS CLEAR THAT IT IS ONLY THOSE INSTITUTIONS/BODIES WHOSE INCOMES ARE CONDITIONALL Y EXEMPT, ARE REQUIRED TO FILE THEIR IT RETURNS AND THE BODIES LIKE THE PETITIONER WHOSE INCOMES ARE UNCONDITIONALLY EXEMPT FROM THE LEVY OF INCOME TAX ARE CONSEQUENTLY NOT REQUIRED TO 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 U NDER S. 139 NOR ANY TAX IS REQUIRED TO BE DEDUCTED AT SOURCE FROM SUCH AUTH ORITY UNDER S. 194A. THEREFORE, THE DIRECTION OF THE IT AUTHORITIES IN T HE NOTICE PURPORTED TO BE ISSUED UNDER S 142(1) FOR SUBMISSION OF RETURN B Y THE PETITIONER IS ITA 773 & 774/JP/2012 & CO 71 & 72/JP/2012 14 CONTRARY TO THE MANDATE OF THE SAID CIRCULAR. EQUAL LY, THE DIRECTION TO DEDUCT TAX AT SOURCE UNDER S.. 194A IN RESPECT OF I NCOME OF THE PETITIONER WHICH IS TOTALLY EXEMPTED UNDER S. 10(23 BBA) IS NOT AUTHORIZED UNDER LAW. VARIOUS DIRECTIONS WHICH HAVE BEEN ISSUED ON THE BANK FOR DEDUCTION OF TAX ARE SET ASIDE. THE PETITI ONER IS NOT REQUIRED TO FILE ANY RETURN UNDER S. 142(1) AND THE DIRECTIONS GIVEN BY THE REVENUE TO THAT EFFECT ARE UNAUTHORIZED AND OF NO LEGAL EFF ECT. 12. IN THE PRESENT CASE ALSO, THE ASSESSEE I.E. SHR EE BADE MATHURESHJI TEMPLE BOARD, KOTA IS HAVING PERPETUAL SUCCESSION AND IS C ONSTITUTED U/S 92 OF THE C.P.C. 1908, BY THE DISTRICT JUDGE, KOTA FOR THE BE TTER MANAGEMENT AND LOOKING AFTER DAY TO DAY FUNCTIONING OF SHREE BADE MATHURES HJI TEMPLE, KOTA. THE SAID TEMPLE IS ANCIENT PUBLIC TEMPLE, WHICH IS VERY FAMO US AND SCARED PLACE OF WORSHIP, THEREFORE, THE BENEFIT U/S 10(23BBA) OF TH E 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 OR DER. 13. FACTS FOR THE ASSESSMENT YEAR 2009-10 IN ITA NO . 774/JP/2012 ARE SIMILAR TO THE FACTS INVOLVED FOR THE ASSESSMENT YEAR 2008- 09, THEREFORE OUR FINDINGS GIVEN IN FORMER PART OF THIS ORDER SHALL APPLY MUTA TIS MUTANDIS FOR THE ASSESSMENT YEAR 2009-10 ALSO. 14. AS REGARDS TO THE CROSS OBJECTIONS FILED BY THE ASSESSEE, LD. COUNSEL FOR THE ASSESSEE DURING THE COURSE OF HEARING, DID NOT PRESS THE SAME. THEREFORE, CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSE D AS NOT PRESSED. ITA 773 & 774/JP/2012 & CO 71 & 72/JP/2012 15 15. IN THE RESULT, APPEALS OF THE DEPARTMENT AND TH E CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 22/01/2014) SD/- SD/- (HARI OM MARATHA) (N.K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR, DATED : 22/01/2014 * RANJAN COPY FORWARDED TO :- 1. APPELLANT THE ITO, WARD 2(2), KOTA. 2. RESPONDENT- M/S BADE MATHURESHJI TEMPLE BOARD, K OTA. 3. THE CIT (A) 4. THE CIT 5. THE D/R GUARD FILE (I.T.A. NOS. 773 & 774/JP/2012 & CO 71 & 72/JP/2012) BY ORDER, AR ITAT JAIPUR.