ITO, Bangalore V. St. Claret Education Society, Bangalore

ITA 850/BANG/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5287 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-04-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 26-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G KAMALDHAR
• Assessee Lawyers: JAMES JOSEPH
• Keywords: Charitable institution; Benefit of exemption; Revenue expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE S HRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER I.T . A. NO. 850 /BANG/20 16 (ASSESSMENT YEAR : 20 11 - 12 ) INCOME TAX OFFICER (EXEMPTIONS), WARD 3, BANGALORE . . APPELLANT. VS. ST. CLARET EDUCATION SOCIETY, 5 TH CROSS, SHARADAMBA NAGAR, JALAHALLI POST, BANGALORE - 560 013 . .. RESPONDENT. AP PELLANT BY : SHRI G. KAMALDHAR, STANDING COUNSEL. R E SPONDENT BY : SHRI JAMES JOSEPH, CA. DATE OF H EARING : 04.04.2017. DATE OF P RONOUNCEMENT : 05 .0 6 .201 7 . O R D E R PER SHRI VIJAY P AL RAO, J .M . : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DT.08.03.2016 OF COMMISSIONER OF INCOME TAX (APPEALS) FOR THE ASSESSMENT YEAR 2011 - 12. 2 IT A NO. 850 /BANG/201 6 2. THE REVENUE HAS RAISED VARIOUS GRO UNDS IN THIS APPEAL HOWEVER THE ONLY ISSUE IS ARISES WHETHER THE PERMISSIBLE ACCUMULATION UNDER SECTION 11(2) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') @ 15% OF T HE INCOME WOULD BE CONSIDERED ON THE GROSS RECEIPTS OF THE YEAR OR NET RECEIPTS. 3. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AS WELL AS LEARNED AUTHORISED REPRESENTATIVE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LEARNED DR HAS SUBMITTED THAT EXPENDITURE NECESSARILY INCURRED FOR EARNING THE RECEIPTS NEED TO BE RED UCED IN ORDER TO ARRIVE AT THE ACTUAL INCOME WHICH WAS AVAILABLE FOR APPLICATION OF INCOME . THUS THE ACCUMULATION HAS TO BE CALCULATED AT 15% OF NET RECEIPTS. HE HAS RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 4. ON THE OTHER HAND, THE LEARNED A UTHORISED REPRESENTATIVE HAS SUBMITTED THAT THE CIT (APPEALS) HAS ALLOWED THE CLAIM OF ACCUMULATION OF 15% OF GROSS RECEIPTS BY FOLLOWING VARIOUS DECISIONS OF THIS TRIBUNAL. HE HAS ALSO SUBMITTED THAT IN THE LATEST DECISION OF THE TRIBUNAL DT.13.7.2016 IN THE CASE OF MOOGAMBIGAI CHARITABLE AND EDUCATIONAL 3 IT A NO. 850 /BANG/201 6 TRUST VS. ACIT IN ITA NO.1224/BANG/2015, THE TRIBUNAL HAS AGAIN DECIDED THIS ISSUE IN FAVOR OF THE ASSESSEE. 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD, AT THE OUTSET, WE NOTE THAT AN IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF MOOGAMBIGAI CHARITABLE AND EDUCATIONAL TRUST VS. ACIT (SUPRA) IN PARA 17.4 TO 18 AS UNDER : 17.4 WE FIND THAT THE TRIBUNAL I N THE CASE OF CAPUCHIN FRIAR SERVICES OF SOCIETY (SUPRA) HAS DEALT WITH AN IDENTICAL ISSUE IN PARAS 10 & 11 AS UNDER : 10. WE FIND THAT THE ISSUE IS COVERED BY THE CO - ORDINATE BENCH DECISION IN THE CASE OF JYOTHY CHARITABLE TRUST IN ITA NO.662/BANG/20 15. THE RELEVANT EXTRACT IS REPRODUCED BELOW: - 15. THE THIRD ISSUE THAT ARISES FOR CONSIDERATION IN THIS APPEAL IS AS TO WHETHER 15% ACCUMULATION FOR APPLICATION IN FUTURE HAS TO BE CALCULATED ON GROSS RECEIPTS OR NET RECEIPTS AFTER DEDUCTION OF REVENUE EXPENDITURE. THE ASSESSEE CLAIMED ACCUMULATION OF INCOME FOR APPLICATION FOR CHARITABLE PURPOSE AT 15% OF THE GROSS RECEIPTS. THE AO WAS OF THE VIEW THAT ACCUMULATION WILL BE ALLOWED ONLY TO THE EXTENT OF 15% OF THE INCOME AFTER REVENUE EXPENDITURE. IN OTH ER WORDS INCOME TO BE SET APART U/S.1 1(1)(A) OF THE ACT HAS TO BE COMPUTED AT 15% OF THE NET INCOME I.E., GROSS RECEIPTS MINUS REVENUE EXPENDITURE AND NOT ON THE GROSS RECEIPTS AS CLAIMED BY THE ASSESSEE. SINCE IN THE CASE OF THE ASSESSEE, THE GROSS RECEI PTS AFTER REVENUE EXPENDITURE WAS NIL, THE AO DENIED THE BENEFIT OF ACCUMULATION TO THE ASSESSEE. 16. ON APPEAL BY THE ASSESSEE, THE CIT(A) CONFIRMED THE ORDER OF THE AO. HENCE GROUND NO - 4 RAISED BY THE ASSESSEE BEFORE THE TRIBUNAL. 17. THE ISSUE TO BE D ECIDED IS THEREFORE AS TO WHETHER FOR THE PURPOSE OF COMPUTING ACCUMULATION OF INCOME OF 15% UNDER SECTION 11(1)(A) OF THE ACT, ONE HAS TO TAKE THE GROSS RECEIPTS OR GROSS RECEIPTS AFTER EXPENDITURE FOR CHARITABLE PURPOSE I.E., THE NET RECEIPTS. THIS IS IS SUE IS NO LONGER RES INTEGRA AND HAS BEEN DECIDED BY THE SPECIAL BENCH MUMBAI IN THE CASE OF BAI SONABAI HIRJI AGIARY TRUST VS. ITO 93 LTD 0070 (SB). THE FACTS IN THE AFORESAID CASE WERE THAT THE ASSESSEE WAS A PUBLIC CHARITABLE TRUST ENJOYING EXEMPTION UN DER S. 11 OF THE IT ACT. AS PER THE REQUIREMENT OF S. 11(1) OF THE IT ACT, AS IT PREVAILED AT THAT POINT OF TIME, THE ASSESSEE HAD TO APPLY 75 PER CENT OF ITS INCOME FOR THE OBJECTS AND PURPOSES OF THE TRUST AND THE ASSESSEE WAS PERMITTED TO 4 IT A NO. 850 /BANG/201 6 ACCUMULATE OR SET APART UP TO 25 PER CENT OF ITS INCOME, WHICH WAS SUBJECT TO FULFILLMENT OF OTHER CONDITIONS. WHILE CALCULATING THE AFORESAID 25 PER CENT, THE IMPORTANT QUESTION WHICH AROSE WAS AS TO WHETHER FOR THIS PURPOSE, THE GROSS INCOME EARNED BY THE ASSESSEE IS RELEVANT OR THE INCOME AS COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF IT ACT. IN OTHER WORDS, WHETHER OUTGOINGS FROM OUT OF GROSS INCOME WHICH ARE IN THE NATURE OF APPLICATION OF INCOME, SHOULD BE FIRST DEDUCTED FROM THE GROSS INCOME AND 25 PER CENT OF O NLY THE REMAINING AMOUNT SHOULD BE ALLOWED TO BE ACCUMULATED OR SET APART. THE SPECIAL BENCH OF THE ITAT ON THE ISSUE HELD AS FOLLOWS: - 9. COMING TO THE MERITS OF THE ISSUE, WE ARE OF THE VIEW THAT THE SAME IS CLEARLY COVERED BY THE DECISION OF THE HON' BLE SUPREME COURT IN THE CASE OF CIT VS. PROGRAMME FOR COMMUNITY ORGANIZATION (SUPRA). IN THE DECISION, THEIR LORDSHIPS, AFTER TAKING NOTE OF PROVISIONS OF SEC. 11(L)(A), HAVE HELD AS UNDER: 'HAVING REGARD TO THE PLAIN LANGUAGE OF THE ABOVE PROVISION, IT I S CLEAR THAT A CHARITABLE OR RELIGIOUS TRUST IS ENTITLED TO ACCUMULATE TWENTY - FIVE PER CENT OF ITS INCOME DERIVED FROM PROPERTY HELD UNDER TRUST. FOR THE PRESENT PURPOSES, THE DONATIONS THE ASSESSEE RECEIVED, IN THE SUM OF RS. 2,57,376, WOULD CONSTITUTE IT S PROPERTY AND IT IS ENTITLED TO ACCUMULATE TWENTY - FIVE PER CENT THEREOUT. IT IS UNCLEAR ON WHAT BASIS THE REVENUE CONTENDED THAT IT WAS ENTITLED TO ACCUMULATE ONLY TWENTY FIVE PER CENT OF RS.87,010. FOR THE AFORESAID REASONS, THE CIVIL APPEAL IS DISMISSED .' IT IS CLEAR FROM THE ABOVE THAT DEDUCTION OF TWENTY - FIVE PER CENT WAS HELD TO BE ALLOWABLE NOT ON TOTAL INCOME AS COMPUTED UNDER THE IT ACT. ANY AMOUNT OR EXPENDITURE, WHICH WAS APPLICATION OF INCOME, IS NOT TO BE CONSIDERED FOR DETERMINING TWENTY FIVE PER CENT TO BE ACCUMULATED. THEIR LORDSHIPS, AS NOTED EARLIER, AFFIRMED THE DECISION OF KERALA HIGH COURT IN (1997) 141 CTR (KER) 502 : (1997) 228 ITR 620 (KER) (SUPRA) WHEREIN IT IS HELD AS UNDER: 'AT THE OUTSET, THE STATUTORY LANGUAGE OF S. U(I)(A) OF TH E IT ACT, 1961, RELATES TO THE INCOME DERIVED BY THE TRUST FROM PROPERTY. THE TRUST IS REQUIRED TO BE WHOLLY FOR CHARITABLE OR RELIGIOUS PURPOSES, AND THE INCOME IS EXPECTED TO HAVE RELATION TO THE EXTENT TO WHICH SUCH INCOME IS APPLIED TO SUCH PURPOSES I N INDIA. IT IS THEREAFTER THE STATUTORY PROVISION PROCEEDS FURTHER THAT SUCH INCOME IS NOT TO BE UNDERSTOOD TO BE IN EXCESS OF 25 PER CENT OF THE INCOME FROM SUCH PROPERTIES. IN OTHER WORDS, THE VERY LANGUAGE OF THE STATUTORY PROVISION UNDER CONSIDERATION SETS APART 25 PER CENT OF THE INCOME FROM THE SOURCE OF PROPERTY WITH REFERENCE TO THE EXTENT TO WHICH SUCH INCOME IS APPLIED FOR SUCH PURPOSES, CHARITABLE OR RELIGIOUS. IN OTHER WORDS, FOR THE PURPOSE OF S. II(I)(A) OF THE ACT, THE INCOME IN TERMS OF RELE VANCE WOULD BE THE INCOME OF THE TRUST FROM AND OUT OF WHICH 25 PER CENT IS SET APART IN ACCORDANCE WITH THE SPIRIT OF THE STATUTORY PROVISION.' THIS MEANS THAT, WHEN IT IS ESTABLISHED THAT TRUST IS ENTITLED TO FULL BENEFIT OF EXEMPTION UNDER S. 11(1), THE SAID TRUST IS TO GET THE BENEFIT OF TWENTY - FIVE PER CENT AND THIS TWENTY - FIVE PER CENT HAS TO BE UNDERSTOOD AS INCOME OF THE TRUST UNDER THE RELEVANT HEAD OF S. 11(1). IN OTHER WORDS, INCOME THAT IS NOT TO BE INCLUDED FOR THE PURPOSE OF COMPUTING THE TOTA L INCOME WOULD BE THE AMOUNT EXPENDED FOR PURPOSES OF TRUST IN INDIA. THEIR LORDSHIPS IN THE ABOVE CASE HAVE EMPHASIZED ON THE CLEAR AND UNAMBIGUOUS LANGUAGE OF S. 11(1)(A) AND DECIDED THE MATTER ON THE BASIS OF THE SAME. IT HAS BEEN HELD THAT AS PER THE S TATUTORY LANGUAGE OF THE ABOVE SECTION THE INCOME WHICH IS TO BE TAKEN FOR PURPOSE OF ACCUMULATION IS THE INCOME DERIVED BY THE TRUST FROM PROPERTY. IF BOTH THE DECISIONS ARE CAREFULLY READ, IT BECOMES EVIDENT THAT ANY EXPENDITURE WHICH IS IN THE SHAPE O F APPLICATION OF INCOME IS NOT TO BE TAKEN INTO ACCOUNT. HAVING FOUND THAT TRUST IS ENTITLED TO EXEMPTION UNDER S. 11(1), WE ARE TO GO TO THE STAGE OF INCOME BEFORE APPLICATION THEREOF AND TAKE INTO ACCOUNT 25 PER CENT OF SUCH INCOME. 5 IT A NO. 850 /BANG/201 6 THEIR LORDSHIPS HAVE POINTED THAT THE SAME HAS TO BE TAKEN ON 'COMMERCIAL' BASIS AND NOT 'TOTAL INCOME' AS COMPUTED UNDER THE IT ACT. THEIR LORDSHIPS IN THE DECIDED CASE REJECTED THE CONTENTION OF THE REVENUE THAT THE SUM OF RS 1,70,369 WHICH WAS SPENT AND APPLIED BY THE ASSES SEE FOR CHARITABLE PURPOSES WAS REQUIRED TO BE EXCLUDED FOR PURPOSE OF TAKING AMOUNT TO BE ACCUMULATED. HAVING REGARD TO THE CLEAR PRONOUNCEMENT OF THEIR LORDSHIPS OF THE SUPREME COURT, IT IS DIFFICULT TO ACCEPT THAT OUTGOINGS WHICH ARE IN THE NATURE OF AP PLICATION OF INCOME ARE TO BE EXCLUDED. THE INCOME AVAILABLE TO THE ASSESSEE BEFORE IT WAS APPLIED IS DIRECTED TO BE TAKEN AND THE SAME IN THE PRESENT CASE IS RS. 3,42,174. TWENTY FIVE PER CENT OF THE ABOVE INCOME IS TO BE ALLOWED AS A DEDUCTION. SIMILAR V IEW HAS ALSO BEEN TAKEN BY THE HON'BLE MADHYA PRADESH HIGH COURT IN PARSI ZORASTRIAN ANJUMAN TRUST VS. CIT (SUPRA). NO REASON WHATSOEVER HAS BEEN GIVEN BY THE REVENUE AUTHORITIES FOR DEDUCTING RS. 2,17,126 IN THIS CASE FOR PURPOSES OF S. I 1(1)(A). THE DEC ISION CITED ON BEHALF OF THE REVENUE DID NOT TAKE INTO ACCOUNT THE DECISION OF THE SUPREME ITA NO.367/BANG/2015 PAGE 10 OF 11 COURT REFERRED TO ABOVE. THE CIRCULAR OF CBDT HAS ALSO BEEN CONSIDERED BY THE HON'BLE KERALA HIGH COURT IN ITS DECISION REFERRED T O ABOVE. ACCORDINGLY, THE QUESTION REFERRED TO IS ANSWERED IN THE AFFIRMATIVE AND IN FAVOUR OF THE ASSESSEE.' 18. THE AFORESAID DECISION CLEARLY SUPPORTS THE PLEA OF THE ASSESSEE. FOLLOWING THE SAME, WE HOLD THAT THE ACCUMULATION U/S 11(1)(A) OF THE ACT S HOULD BE ALLOWED AS CLAIMED BY THE ASSESSEE. GROUND NO.4 RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. 11. FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL, WE SET ASIDE THE ORDER OF THE CIT(A) . FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH OF THIS TRIBUNAL, WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO CONSIDER THE ALLOWABLE ACCUMULATION OF INCOME AT 15% OF THE GROSS RECEIPTS. IN VIEW OF THE ABOVE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUN AL, WE HOLD THAT THE ACCUMULATION UNDER SECTION 11(1)(A) OF THE ACT IS ALLOWABLE AT 15% OF THE GROSS RECEIPTS. 6. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 5TH DAY OF JUNE , 2 01 7 . SD/ - ( INTURI RAMA RAO ) ACCOUNTANT MEMBER SD/ - ( VIJAY PAL RAO ) JUDICIAL MEMBER BANGALORE, DT. 05 .0 6 .2017. *REDDY GP