Rai University, Ahmedabad V. The DIT(Exemp)., Ahmedabad

ITA 815/AHD/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68063 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 18-11-2013
• Assessment Year: misc
• Appeal Filed On: 19-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIMALENDU VERMA
• Assessee Lawyers: M G PATEL
• Section: 12A; 12AA

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BENCH, AHMEDABAD .., ! '# '# '# '# $ %&, ! BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER #./ I.T.A. NO.815/AHD/2013 ( ( ')( ( ')( ( ')( ( ')( / / / / ASSESSMENT YEAR : - ) RAI UNIVERSITY SARODA POST DHOLKA AHMEDABAD / VS. DIRECTOR OF INCOME TAX (EXEMPTION) AHMEDABAD !* #./+, #./ PAN/GIR NO. : AABAR 4376 A ( *- / // / APPELLANT ) .. ( ./*- / RESPONDENT ) *- 0 / APPELLANT BY : SHRI M.G.PATEL, A.R. ./*- 1 0 / RESPONDENT BY : SHRI VIMALENDU VERMA, CIT-DR $'2 1 & / / / / DATE OF HEARING : 18/11/2013 34) 1 & / DATE OF PRONOUNCEMENT : 19/12/2013 5 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.DIRECTOR OF INCOME TAX (EXEMPTIONS), AHMEDABAD (DIT(E) FOR SHORT) DATED 26/02/2013. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE DIRECTOR OF INCOME TAX (EXEMPTION), AHMEDABAD H AS ERRED IN LAW AS WELL AS ON FACTS OF THE CASE IN NOT GRANTING REGISTRATION TO THE APPELLANT, M/S.RAI UNIVERSITY U/S.12AA OF THE INCOM E TAX ACT, 1961. 2. THE DIRECTOR OF INCOME TAX (EXEMPTION), AHMEDABAD H AS ERRED IN HOLDING THAT THE TRUST WAS NOT CONSTITUTED UNDER TR UST DEED THOUGH THE UNIVERSITY IS FORMED BY THE PROVISIONS OF GUJAR AT PRIVATE UNIVERSITY ACT WHICH CONTAINS MEMORANDUM OF ASSOCIA TION AS WELL ITA NO.815/AHD/ 2013 RAI UNIVERSITY VS. DIT (EXEMPTIONS) - 2 - AS ARTICLES OF ASSOCIATION AND IS ACCORDINGLY GOVER NED DIRECTLY BY THE PROVISIONS OF SAID ACT AND NO TRUST DEED IS REQ UIRED. 3. YOUR APPELLANT PRAYS THAT THE UNIVERSITY BE GRANTED REGISTRATION U/S.12AA OF THE I.T.ACT, 1961. 4. THE APPELLANT UNIVERSITY IS FULLY CONFORMING TO THE REQUIREMENT OF THE PROVISIONS OF SECTION 12AA OF THE INCOME TAX AC T, 1961. 5. YOUR APPELLANT PRAYS TO RESERVE THE RIGHT TO ADD, A LTER, AMEND AND/OR WITHDRAW ANY OF THE ABOVE GROUNDS OF APPEAL. 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE MADE AN APPLICATION FOR REGISTRATION OF TRUST U/S.12AA OF THE I.T.ACT, 1961 . THE SAID APPLICATION WAS REJECTED BY THE LD.DIRECTOR OF INCOME TAX (EXEM PTIONS), AHMEDABAD. AGAINST THIS, THE ASSESSEE FILED THE PR ESENT APPEAL. 3. DURING THE COURSE OF HEARING, LD.COUNSEL FOR THE ASSESSEE HAS ALSO MADE WRITTEN SUBMISSIONS. LD.COUNSEL FOR THE ASSES SEE SUBMITTED THAT THE ORDER OF LD.DIT(E) IS NOT JUSTIFIED. HE SUBMITTED THAT THE LD.DIT(E) REJECTED THE APPLICATION ON THE BASIS THAT THE ASSE SSEE FAILED TO SUBMIT TRUST-DEED OR MEMORANDUM OF ARTICLE OR MEMORANDUM O F ASSOCIATION, WHEREBY THE OBJECTS AND NOTIFICATIONS CAN BE ASCERT AINED. HE SUBMITTED THAT THE ASSESSEE IS REGISTERED UNDER THE GUJARAT P RIVATE UNIVERSITY ACT. HE SUBMITTED THAT THE ASSESSEE IS GOVERNED BY THE G UJARAT PRIVATE UNIVERSITY ACT, 2009. HE HAS PLACED ON RECORD DEED OF DECLARATION OF THE TRUST WHICH IS AVAILABLE IN THE PAPER-BOOK AT PAGE NO.107. 3.1. ON THE CONTRARY, LD.CIT-DR SUPPORTED THE ORDER OF THE DIT(E). HE SUBMITTED THAT RELEVANT DETAILS WERE NOT FURNISHED BY THE ASSESSEE, THEREFORE LD.DIT(E) WAS JUSTIFIED IN REJECTING THE APPLICATION. ITA NO.815/AHD/ 2013 RAI UNIVERSITY VS. DIT (EXEMPTIONS) - 3 - 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE WRITTEN SUBMISSIONS FILED BY THE ASS ESSEE. WE FIND THAT THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS WHICH AR E REPRODUCED HEREUNDER FOR READY REFERENCE. 1. THE ABOVE APPEAL FILED AGAINST REJECTION OF REGISTRATION UNDER SECTION 12A OF THE I.T. ACT WAS FIXED FOR HEARING B EFORE HON'BLE BENCH 'D' ON 10 TH SEPTEMBER 2013, WHEREIN EXPLANATIONS AS WELL AS INFORMATIONS WERE CALLED-FOR BY THE HON'BLE BENCH A ND THE MATTER HAS BEEN NOW FIXED FOR HEARING ON 18 TH NOVEMBER 2013. 2. IN THIS CONNECTION, THE APPELLANT HAS COLL ECTED THE INFORMATIONS CALLED-FOR BY THE HON'BLE BENCH, WHICH IS SUBMITTED HEREWITH IN FORM OF PAPER BOOK NO.II. 3. AT THE OUTSET, THE APPELLANT WOULD LIKE TO REF ER TO COPY OF GUJARAT ACT NO.8 OF 2009, WHICH IS AN ACT TO PROVIDE FOR ES TABLISHMENT AND INCORPORATION OF PRIVATE UNIVERSITIES IN THE STATE OF GUJARAT. COPY OF THE SAME IS AVAILABLE AT PAGES 10 TO 36 OF THE PAPE R BOOK. THROUGH OVERSIGHT, SCHEDULE FORMING PART OF THE ACT BEARING PAGE NO.9-28 WAS OMITTED TO BE ATTACHED. THE SAME IS NOW REPRODUCED AT PAGE NO.99 OF PAPER BOOK NO.II, WHICH IS BEING FILED ALONG WITH T HIS WRITTEN SUBMISSIONS. THE FIRST ITEM IN SCHEDULE IS AS UNDER: SR.NO. NAME AND ADDRESS OF THE PRIVATE UNIVERSITY DETAILS OF REGISTRATION AND REGISTRATION NUMBER SPONSORING BODY 1. THE AHMEDABAD UNIVERSITY, AHMEDABAD F/C7, AHMEDABAD UNDER THE BOMBAY PUBLIC TRUSTS ACT, 1950. 767 OF 1935- 1936, BOMBAY UNDER THE SOCIETIES REGISTRATION ACT, AHMEDABAD EDUCATION SOCIETY, COMMERCE SIX ROADS, NAVRANGPURA, AHMEDABAD ITA NO.815/AHD/ 2013 RAI UNIVERSITY VS. DIT (EXEMPTIONS) - 4 - 1860 FROM THE SAME, IT CAN BE SEEN THAT AHMEDABAD EDUCAT ION SOCIETY IS THE SPONSORING BODY OF THE AHMEDABAD UNIVERSITY, AHMEDA BAD. THE DETAILS OF REGISTRATION AND THE REGISTRATION NUMBER HAVE BE EN SPECIFIED IN COLUMN 3 AS ABOVE. 5. WE ARE SUBMITTING HEREWITH ON PAGE NO. 100 OF PA PER BOOK NO.II, A COPY OF REGISTRATION CERTIFICATE OF AHMEDA BAD EDUCATION SOCIETY WITH PUBLIC TRUST REGISTRATION OFFICE AS WE LL AS CERTIFICATE NO.767 OF 1935-1936 BEING REGISTRATION UNDER THE SO CIETIES REGISTRATION ACT, 1860. FROM THE SAME, IT IS CLEAR THAT IN COLUM N 3, THE REGISTRATION NUMBERS QUOTED ARE OF THIS SPONSORING BODY ONLY. TH E SPONSORING BODY IS ALSO REGISTERED U/S.12A ON 07.08.1996, WHICH IS ENCLOSED AT PAGE NO. 101 OF PAPER BOOK NO.II. SO FAR AS AHMEDABAD UN IVERSITY, AHMEDABAD IS CONCERNED, THE SAME IS INDEPENDENTLY R EGISTERED U/S.12A BY DIRECTOR OF INCOME TAX (EXEMPTION), AHMEDABAD ON 30.03.2010. THE SAID CERTIFICATE IS REPRODUCED ON PAGES NO. 102 TO 106 OF PAPER BOOK NO.II. 6. FROM THE ABOVE, IT IS CRYSTAL CLEAR THAT THE UNI VERSITY ESTABLISHED AS PER THE PRIVATE UNIVERSITIES ACT IS AN INDEPENDE NT ORGANIZATION ESTABLISHED AS PER THE GUJARAT PRIVATE UNIVERSITIES ACT, 2009. THE OPERATIONS OF THE SAME ARE TO BE CARRIED OUT IN TER MS OF PROVISIONS CONTAINED IN THE SAID ACT. 7. SO FAR AS THE APPELLANT IS CONCERNED, AS PER PAG E-9 OF PAPER BOOK NO.I, IT IS SPONSORED BY RAI FOUNDATION AND TH E DETAILS MENTIONED IN COLUMN 3 OF PAGE 9 ARE OF RAI FOUNDATION ONLY. I N SUPPORT THEREOF, WE ARE PRODUCING HEREWITH ON PAGES 107 TO 122 OF TH E PAPER BOOK II, A DEED OF DECLARATION OF TRUST OF RAI FOUNDATION DATE D 31.07.1996, REGISTERED AT SR. NO.5539 DATED 01.08.1996. SO ALSO WE PRODUCE HEREWITH A CERTIFICATE OF REGISTRATION U/S.12AA OF THE I.T. ACT DATED 10.02.1997 OF RAI FOUNDATION AT PAGE NO.123 OF PAPE R BOOK NO.II. WE ALSO SUBMIT HEREWITH A PROPOSAL OF SETTING UP RAI U NIVERSITY BY RAI FOUNDATION DATED 10.10.2008 AT PAGES NO.124 TO 366 OF PAPER BOOK NO.II ALONG WITH PROJECT REPORT FOR SETTING UP PRIV ATE UNIVERSITY IN GUJARAT. THEREAFTER, A MEMORANDUM OF UNDERSTANDING BETWEEN RAI FOUNDATION AND GOVT. OF GUJARAT WAS EXECUTED ON 13. 01.2009, COPY OF WHICH IS ENCLOSED HEREWITH ON PAGES NO.367 AND 368 OF PAPER BOOK NO.II. A LETTER DATED 19.09.2011 WAS ADDRESSED TO P RINCIPAL SECRETARY, ITA NO.815/AHD/ 2013 RAI UNIVERSITY VS. DIT (EXEMPTIONS) - 5 - EDUCATION DEPARTMENT REGARDING PROPOSAL FOR ESTABLI SHMENT OF RAI UNIVERSITY, A COPY OF WHICH IS ENCLOSED HEREWITH AT PAGE 369 OF PAPER BOOK NO.II. IN RESPONSE TO THE SAME, EDUCATION DEPA RTMENT, GOVERNMENT OF GUJARAT HAS ISSUED A SANCTION LETTER OF INTENT DATED 22.02.2012 FOR SETTING UP RAI UNIVERSITY IN GUJARAT , A COPY OF WHICH IS ENCLOSED HEREWITH ON PAGE NO.370 TO 372 OF PAPER BO OK NO.II. THE SAID LETTER MENTIONS THAT SEPARATE ENDOWMENT FUND OF RS. 5 CRORES BE CREATED AND THE AMOUNT TO BE DEPOSITED WITH GUJARAT STATE F INANCIAL SERVICES LTD., WHICH WAS DULY DONE ON 28.02.2012. COPY OF SA ID DEPOSIT IS ENCLOSED HEREWITH AT PAGE NO.373 OF PAPER BOOK NO.I I. FINALLY, THE GOVERNMENT OF GUJARAT AMENDED GUJARAT PRIVATE UNIVE RSITIES ACT, 2009, WHEREBY IN SCHEDULE AT SR. NO. 10, NAME OF RA I UNIVERSITY WAS INCLUDED AS A UNIVERSITY ESTABLISHED UNDER THE GUJA RAT PRIVATE UNIVERSITIES ACT (PAGE NO.9 OF PAPER BOOK). 8. WE ALSO ENCLOSE HEREWITH ON PAGE NO.374 T O 385 OF PAPER BOOK NO.II COPY OF HARYANA PRIVATE UNIVERSITIES ACT, 200 6 CONTAINING THE SIMILAR PROVISIONS AS GUJARAT PRIVATE UNIVERSITIES ACT. WE HAVE ALREADY REPRODUCED AT PAGE 72 OF PAPER BOOK NO.I, A COPY OF DECISION OF I.T.A.T. T' BENCH, DELHI IN THE CASE OF O.P. JINDAL GLOBAL UNIVERSITY VS. CIT, ROHTAK, WHEREIN IN EXACTLY SIMILAR CIRCUMSTANC ES, THE REGISTRATION WAS GRANTED U/S.12AA TO O.P. JINDAL GLOBAL UNIVERSI TY AS A UNIVERSITY INCORPORATED UNDER HARYANA PRIVATE UNIVERSITIES ACT , 2006. 9. IT IS FURTHER SUBMITTED THAT AS PER THE P ROVISIONS OF RULE 17A OF THE INCOME TAX RULES 1962, THE APPLICATION FOR REGI STRATION U/S.12A SHOULD BE SUBMITTED IN FORM NO.10A ALONG WITH COPY OF INSTRUMENT CREATING THE TRUST. HOWEVER, IT ALSO STATES THAT IF IT IS ESTABLISHED OTHERWISE THAN UNDER THE INSTRUMENT, THE DOCUMENT E VIDENCING THE CREATION OF TRUST OR ESTABLISHMENT OF THE INSTITUTI ON SHOULD BE SUBMITTED. IN THE PRESENT CASE, THE INSTITUTION VIZ. RAI UNIVE RSITY IS ESTABLISHED BY THE PROVISIONS OF GUJARAT PRIVATE UNIVERSITIES ACT, 2009 AND THEREFORE, THERE CANNOT BE ANY SEPARATE INSTRUMENT FOR THE CRE ATION OF RAI UNIVERSITY BUT NONE THE LESS THE SAME COMPLIES WITH THE PROVISIONS OF RULE 17A. 10. IN SUPPORT OF THE ABOVE CONTENTIONS, WE WO ULD LIKE TO PLACE RELIANCE ON THE FOLLOWING DECISIONS OF THE SUPREME COURT:- (I) CIT VS. ANDHRA PRADESH STATE ROAD TRANSPORT CO RPORATION - 159 ITR 1, WHICH WAS CONSTITUTED BY ROAD TRANSPORT CORP ORATION ACT, 1950 BY THE STATE OF ANDHRA PRADESH. ITA NO.815/AHD/ 2013 RAI UNIVERSITY VS. DIT (EXEMPTIONS) - 6 - (II) CIT VS. GUJARAT MARITIME BOARD - 295 ITR 561 , WHICH WAS CONSTITUTED UNDER GUJARAT MARITIME BOARD ACT. (III) U.P. FOREST CORPORATION VS. DCIT - 297 ITR 1, WHEREIN IT WAS ESTABLISHED UNDER U.P. FOREST CORPORATION ACT, 1974 . REGISTRATION U/S.12A HAS BEEN GRANTED IN ALL THE AB OVE CASES ON THE BASIS OF PROVISIONS OF RELEVANT ACT THOUGH THERE WA S NO SEPARATE TRUST DEED OR REGISTRATION UNDER TRUST ACT. 11. WE WOULD FURTHER LIKE TO POINT OUT THE DECI SION OF M.P. HIGH COURT IN THE CASE OF LAXMINARAYAN MAHARAJ VS. CIT - 150 ITR 465, WHEREIN IT WAS HELD THAT WHERE THE TRUST IS NOT CRE ATED UNDER INSTRUMENT, IT IS IMPOSSIBLE TO PRODUCE CONSTITUTIO NAL DOCUMENT, AND HENCE, THE RULE REQUIRES THE PRODUCTION OF EVIDENTI ARY DOCUMENTS I.E. THE DOCUMENTS EVIDENCING THE CREATION OF TRUST. IN THE PRESENT CASE, GUJARAT PRIVATE UNIVERSITIES ACT, 2009 CONTAINS PRO VISIONS REGARDING RUNNING OF INSTITUTION BY WHICH RULE 1 A IS COMPLIE D WITH. IN VIEW OF THE ABOVE, WE REQUEST THE HON'BLE MEMBER S OF THE BENCH TO KINDLY CONSIDER THE ABOVE AND GRANT REGISTRATION U/ S.12AA OF THE I.T. ACT, 1961 TO THE APPELLANT. DATE: 18.09.2013 SD/- PLACE: AHMEDABAD. (APPELLANT) ENCL: AS ABOVE. 4.1. THE OBJECTION OF THE LD.DIT(E) WAS THAT THE AS SESSEE DID NOT FURNISH THE TRUST-DEED/MEMORANDUM OF ARTICLE/MEMORA NDUM OF ASSOCIATION, WHEREBY THE OBJECTS AND NOTIFICATIONS CAN BE ASCERTAINED. ON THE CONTRARY, THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE IS THAT THE TRUST IS REGISTERED UNDER GUJARAT PRIVATE UNIVERSIT Y ACT AND AS PER THE GUJARAT GOVERNMENT GAZETTE DATED 11/04/2012, IT IS MENTIONED THE TRUST REGISTRATION NO.5539 DATED 01/08/1996. AFTER HEARI NG THE RIVAL SUBMISSIONS AND THE DOCUMENTS FILED BY THE ASSESSEE DURING THE COURSE OF HEARING, IT WOULD BE APPROPRIATE IF THE MATTER IS R ESTORED BACK TO THE FILE ITA NO.815/AHD/ 2013 RAI UNIVERSITY VS. DIT (EXEMPTIONS) - 7 - OF LD.DIT(E) FOR FRESH DECISION. THE ORDER OF LD.D IT(E) IS HEREBY SET ASIDE AND THE APPEAL IS RESTORED BACK TO THE FILE O F DIT(E) FOR FRESH DECISION. THE DIT(E) IS DIRECTED TO CONSIDER THE DO CUMENTS AS FILED BY THE ASSESSEE, I.E. DEED OF TRUST AND DECIDE THIS IS SUE IN THE LIGHT OF VARIOUS CASE-LAWS RELIED UPON BY THE LD.COUNSEL FOR THE ASS ESSEE. THE ASSESSEE SHALL FURNISH ALL THE REQUIRED DETAILS IN SUPPORT O F ITS CONTENTION BEFORE THE LD.DIT(E). THUS, GROUNDS OF ASSESSEES APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED BUT FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) ($ %&) ! ! ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 19/12 /2013 8.., '.../ T.C. NAIR, SR. PS 5 1 .&9 :9)& 5 1 .&9 :9)& 5 1 .&9 :9)& 5 1 .&9 :9)&/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. ## & $; / CONCERNED CIT 4. $;() / THE DIT(EXEMPTIONS), AHMEDABAD 5. 9'%< .& , , / DR, ITAT, AHMEDABAD 6. <( =2 / GUARD FILE. 5$ 5$ 5$ 5$ / BY ORDER, /9& .& //TRUE COPY// > >> >/ // / #+ #+ #+ #+ ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD