DCIT, Bangalore V. M/s CBCI Society for Medical Education, Bangalore

ITA 892/BANG/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7697 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-08-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 29-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Depreciation; Charitable institution; Retrospective amendment; Question of law; Revenue expenditure
• Section: 143(3); 12A; 12AA; 32; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, B E NGAL U R U BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 892 / BANG/20 1 6 (ASSESSMENT YEAR: 2006 - 07 ) DY. COMMISSIONER OF INCOME - TAX(EXEMPTION) CIRCL E - 1, BENGALURU. APPELLANT VS. M/S.CBCI SOCIETY FOR MEDICAL EDUCATION, ST.JOHNS MEDICAL COLLEGE, JOHN NAGAR, BENGALURU - 560034. RESPONDENT APPELLANT BY : SHRI G.R.REDDY, CIT(DR). RESPONDENT BY : SHRI JAMES JOSEPH, CA. DATE OF HEARING : 02/08/2017 DATE OF PRONOUNCEMENT : 04 /08/2017 O R D E R PER I NTURI RAMA RAO, AM : THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) - 14 [CIT(A)], DATED 05/02/2016 FOR THE ASSESSMENT YEAR 2006 - 07. 2. THE REVENUE RAISED THE FOLLOWING GROUNDS OF APPEAL: ITA 892 /BANG/201 6 PAGE 2 OF 11 ITA 892 /BANG/201 6 PAGE 3 OF 11 3. BRIEFLY FACTS OF THE CASE ARE AS UNDER: THE RESPONDENT - ASSESSEE IS A CHARITABLE SOCIETY REGISTERED UNDER THE THEN MYSORE STATE SOCIETIES REGISTRATION ACT, 1960 AND ALSO GRANTED REGISTRATION U/S 12A AND EXEMPTION U/S 10(23C) OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] FORMED FOR THE PURPOSE OF PROVIDING MEDICAL RELIEF TO PUBLIC AND CARRYING OUT MEDICAL EDUCATION AND RESEA RCH. RETURN OF INCOME FOR THE ASSESSMENT YEAR 2006 - 07 FILED ON 30/10/2006 WAS PROCESSED U/S 143(1) ON 14/8/2007 AND THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT VIDE ORDER DATED 20/10/2008 AT TOTAL INCOME OF RS.81,11,28,862/ - . WHILE DOING SO, THE AO HAS NOT ALLOWED DEPRECIATION OF RS. 6,72,87,155/ - AS APPLICATION OF INCOME . 4. BEING AGGRIEVED, AN APPEAL WAS FILED BEFORE THE CIT(A), WHO VIDE IMPUGNED ORDER, HAD ALLOWED DEPRECIATION AS APPLICATION OF INCOME FOLLOWING THE RATIO LAID DOWN BY THE TRIB UNAL IN THE CASE OF DDIT(EXEMPTIONS) VS. CUTCHI MEMON UNION, JYOTHI CHARITABLE TRUST (60 TAXMANN.COM 165)(BANG - TRIB.) ITA 892 /BANG/201 6 PAGE 4 OF 11 5. BEING AGGRIEVED BY THIS ORDER, THE REVENUE IS IN APPEAL BEFORE US IN THE PRESENT APPEALS. 6. WE HEARD RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. THE REVENUE IS CHALLENG ING THE DIRECTION OF THE CIT(A) ALLOWING DEPRECIATION AS PART OF APPLICATION OF INCOME OF THE TRUST. THIS ISSUE IS NO MORE RES INTEGRA AS THE HON BLE JURISDICTIONAL HIGH COURT, IN THE CASE OF CIT VS. KA RNATAKA REDDY JANASANGHA (389 ITR 229)(KAR) CONSIDERING SEVERAL PRECEDENTS ON THE ISSUE, HELD THAT THE SAME DOES NOT AMOUNT TO DOUBLE DEDUCTION AND THE SAME IS ALLOWABLE AND THE AMENDED PROVISIONS OF SECTION 11(6) OF THE ACT ARE PROSPECTIVE IN NATURE AND O PERATIVE EFFECTIVE FROM 01/04/2015. THE RELEVANT PARAGRAPH OF THE JUDGMENT IS REPRODUCED BELOW: 15. THE QUESTION INVOLVED IN THIS CASE IS NO MORE RES INTEGRA. THIS QUESTION WAS CONSIDERED BY THIS COURT AS FAR BACK AS IN THE YEAR 1984, IN THE CASE OF SOCI ETY OF THE SISTER'S OF ST.ANNE ( SUPRA ) WHEREIN THE DIVISION BENCH OF THIS COURT HAS HELD THUS: '9. IT IS CLEAR FROM THE ABOVE PROVISIONS THAT THE INCOME DERIVED FROM PROPERTY HELD UNDER TRUST CANNOT BE THE TOTAL INCOME BECAUSE S. 11(1) SAYS THAT THE FORMER SHALL NOT BE INCLUDED IN THE LATTER, OF THE PERSON IN RECEIPT OF THE INCOME. THE EXPRESSION 'TOTAL INCOME' HAS BEEN DEFINED UNDER S. 2(45) OF THE ACT TO MEAN 'THE TOTAL AMOUNT OF INCOME REFERRED TO IN S. 5 COMPUTED IN THE MANNER LAID DOWN IN THIS ACT'. TH E WORD 'INCOME' IS DEFINED UNDER S. 2(24) OF THE ACT TO INCLUDE PROFITS AND GAINS, DIVIDENDS, VOLUNTARY PAYMENT RECEIVED BY TRUST, ETC. IT MAY BE NOTED THAT PROFITS AND GAINS ARE GENERALLY USED IN TERMS OF BUSINESS OR PROFESSION AS PROVIDED U/S. 28. THE WO RD 'INCOME', THEREFORE, IS A MUCH WIDER TERM THAN THE EXPRESSION 'PROFITS AND GAINS OF BUSINESS OR PROFESSION'. NET RECEIPT AFTER DEDUCTING ALL THE NECESSARY EXPENDITURE OF THE TRUST (SIC). 10. THERE IS A BROAD AGREEMENT ON THIS PROPOSITION. BUT STILL THE CONTENTION FOR THE REVENUE IS THAT THE DEPRECIATION ALLOWANCE BEING A NOTIONAL INCOME (EXPENDITURE?) CANNOT BE ALLOWED TO BE DEBITED TO THE EXPENDITURE ACCOUNT OF THE TRUST. THIS CONTENTION APPEARS TO PROCEED ON ITA 892 /BANG/201 6 PAGE 5 OF 11 THE ASSUMPTION THAT THE EXPENDITURE SHOULD N ECESSARILY INVOLVE ACTUAL DELIVERY OF OR PARTING WITH THE MONEY. IT SEEMS TO US THAT IT NEED NOT NECESSARILY BE SO. THE EXPENDITURE SHOULD BE UNDERSTOOD AS NECESSARY OUTGOINGS. THE DEPRECIATION IS NOTHING BUT DECREASE IN VALUE OF PROPERTY THROUGH WEAR, DET ERIORATION OR OBSOLESCENCE AND ALLOWANCE IS MADE FOR THIS PURPOSE IN BOOK KEEPING, ACCOUNTANCY, ETC. IN SPICER & PEGLER'S BOOK - KEEPING AND ACCOUNTS, 17TH EDN., PP. 44, 45 & 46, IT HAS BEEN NOTED AS FOLLOWS : 'DEPRECIATION IS THE EXHAUSTION OF THE EFFECTIVE LIFE OF A FIXED ASSET OWING TO 'USE' OR OBSOLESCENCE. IT MAY BE COMPUTED AS THAT PART OF THE COST OF THE ASSET WHICH WILL NOT BE RECOVERED WHEN THE ASSET IS FINALLY PUT OUT OF USE. THE OBJECT OF PROVIDING FOR DEPRECIATION IS TO SPREAD THE EXPENDITURE, INC URRED IN ACQUIRING THE ASSET, OVER ITS EFFECTIVE LIFETIME; THE AMOUNT OF THE PROVISION, MADE IN RESPECT OF AN ACCOUNTING PERIOD, IS INTENDED TO REPRESENT THE PROPORTION OF SUCH EXPENDITURE, WHICH HAS EXPIRED DURING THAT PERIOD.' 16. SIMILAR VIEW IS TAKEN B Y THE OTHER HIGH COURTS VIZ., GUJARAT, PUNJAB AND HARYANA, DELHI, MADRAS, CALCUTTA AND MADHYA PRADESH IN THE FOLLOWING JUDGMENTS. (1) COMMISSIONER OF INCOME - TAX, V. FRAMJEE CAWASJEE INSTITUTE , 109 CTR 463 [GUJ.] ; (2) COMMISSIONER OF INCOME - TAX, V. RAIPUR PALLOTTINE SOCIETY, . [1989] 180 ITR 579 [MP] (3) COMMISSIONER OF INCOME - T AX, V. SETH MANILAL RANCHODDAS VISHRAM BHAVAN TRUST 198 ITR 598 [GUJ.] ; (4) COMMISSIONER OF INCOME - TAX , V. BHORUKA PUBLIC WELFARE TRUST [1999] 240 ITR 513 [CAL.] ; (5) COMMISSIONER OF INCOME - TAX, V. RAO BAHADUR CALAVALA CUNNAN CHETTY CHARITIES 135 ITR 485 (MAD.) ] (6) COMMISSIONER OF INCOME - TAX V. MARKET COMMITTEE, PIPLI [ (2011) 238 CTR (P&H) 103 ALLOWING DEPRECIATION IN SUBSEQUENT YEARS, ON THE CAPITAL A SSET, WHICH HAS ALREADY AVAILED THE BENEFIT OF DEDUCTION IN COMPUTING THE INCOME OF THE TRUST IN THE YEAR OF ITS ACQUISITION IS CONSIDERED BY THE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF MARKET COMMITTEE, PIPLI ( SUPRA ) AND HELD THUS: '9. IN THE PRESENT CASE, THE ASSESSEE IS NOT CLAIMING DOUBLE DEDUCTION ON ACCOUNT OF DEPRECIATION AS HAS BEEN SUGGESTED BY LEARNED COUNSEL FOR THE REVENUE. THE INCOME OF THE ASSESSEE BEING EXEMPT, THE ASSESSEE IS ONLY CLAIMING THAT DEPRECIATION SHOULD BE REDUCED FROM THE IN COME FOR DETERMINING THE PERCENTAGE OF FUNDS WHICH HAVE TO BE APPLIED FOR THE ITA 892 /BANG/201 6 PAGE 6 OF 11 PURPOSES OF THE TRUST. THERE IS NO DOUBLE DEDUCTION CLAIMED BY THE ASSESSEE AS CANVASSED BY THE REVENUE. JUDGMENT OF THE HON'BLE SUPREME COURT IN ESCORTS LTD., & ANR. ( SUPRA ) IS DISTINGUISHABLE FOR THE ABOVE REASONS. IT CANNOT BE HELD THAT DOUBLE BENEFIT IS GIVEN IN ALLOWING CLAIM FOR DEPRECIATION FOR COMPUTING INCOME FOR PURPOSES OF SECTION 11. THE QUESTIONS PROPOSED HAVE, THUS, TO BE ANSWERED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE.' 17. HIGH COURT OF BOMBAY IN THE CASE OF INSTITUTE OF BANKING ( SUPRA ) AFTER PLACING RELIANCE ON THE JUDGMENT OF CIT V. MUNISWARAT JAIN (1994 TLR 1084) ON AN IDENTICAL ISSUE, HELD: 'IN THAT MATTER ALSO, A SIMILAR ARGUMENT, AS IN THE PRESENT CASE, WAS ADVANCED ON BEHALF OF THE REVENUE, NAMELY, THAT DEPRECIATION CAN BE ALLOWED AS DEDUCTION ONLY UNDER SECTION 32 OF THE INCOME TAX ACT AND NOT UNDER GENERAL PRINCIPLES. THE COURT REJECTED THIS ARGUMENT. IT WAS HELD THAT NORMAL DEPRECIATION CAN BE C ONSIDERED AS A LEGITIMATE DEDUCTION IN COMPUTING THE REAL INCOME OF THE ASSESSEE ON GENERAL PRINCIPLES OR UNDER SECTION 11(1)(A) OF THE INCOME TAX ACT. THE COURT REJECTED THE ARGUMENT ON BEHALF OF THE REVENUE THAT SECTION 32 OF THE INCOME TAX ACT WAS THE O NLY SECTION GRANTING BENEFIT OF DEDUCTION ON ACCOUNT OF DEPRECIATION. IT WAS HELD THAT INCOME OF A CHARITABLE TRUST DERIVED FROM BUILDING, PLANT AND MACHINERY AND FURNITURE WAS LIABLE TO BE COMPUTED IN NORMAL COMMERCIAL MANNER ALTHOUGH THE TRUST MAY NOT BE CARRYING ON ANY BUSINESS AND THE ASSETS IN RESPECT WHEREOF DEPRECIATION IS CLAIMED MAY NOT BE BUSINESS ASSETS. IN ALL SUCH CASES, SECTION 32 OF THE INCOME TAX ACT PROVIDING FOR DEPRECIATION FOR COMPUTATION OF INCOME DERIVED FROM BUSINESS OR PROFESSION IS NOT APPLICABLE. HOWEVER, THE INCOME OF THE TRUST IS REQUIRED TO BE COMPUTED UNDER SECTION 11 ON COMMERCIAL PRINCIPLES AFTER PROVIDING FOR ALLOWANCE FOR NORMAL DEPRECIATION AND DEDUCTION THEREOF FROM GROSS INCOME OF THE TRUST. IN VIEW OF THE AFORESTATED JUD GMENT OF THE BOMBAY HIGH COURT, WE ANSWER QUESTION NO. 1 IN THE AFFIRMATIVE I.E., IN FAVOUR OF THE ASSESSEE AND AGAINST THE DEPARTMENT.' 18. THE JUDGMENT IN ESCORTS LIMITED ( SUPRA ) WAS RENDERED BY THE APEX COURT IN THE CONTEXT OF SECTION 10(2)(VI) AND SECT ION 10(2)(XIV) OF THE 1922 ACT OR UNDER SECTION 32(1)(II) AND SECTION 35(2)(IV) OF THE 1965 ACT. IT WAS THE CASE OF THE ASSESSEE CLAIMING A SPECIFIED PERCENTAGE OF THE WRITTEN DOWN VALUE OF THE ASSET AS DEPRECIATION BESIDES CLAIMING DEDUCTION IN 5 CONSECUT IVE YEARS OF THE EXPENDITURE INCURRED ON THE ACQUISITION OF THE CAPITAL ASSET USED FOR SCIENTIFIC RESEARCH. IN SUCH CIRCUMSTANCES, THE APEX COURT HELD THUS: 'THERE IS AN APPARENT PLAUSIBILITY ABOUT THESE ARGUMENTS, PARTICULARLY IN THE CONTEXT OF THE ALLEGE D DEPARTURE IN THE LANGUAGE USED BY S. 10(2)(XIV) FROM THAT EMPLOYED IN S. 20 OF THE U.K. FINANCE ACT, 1944. WE MAY, HOWEVER, POINT OUT THAT THE LAST FEW UNDERLINED WORDS OF THE ENGLISH STATUTE SHOW THAT THERE IS REALLY NO DIFFERENCE BETWEEN THE ENGLISH AN D INDIAN ACTS; THE FORMER ALSO IN ITA 892 /BANG/201 6 PAGE 7 OF 11 TERMS PROHIBITS DEPRECIATION ONLY SO LONG AS THE ASSETS ARE USED FOR SCIENTIFIC RESEARCH. IN OUR OPINION, THE OTHER PROVISIONS OF THE ACT TO WHICH REFERENCE HAS BEEN MADE - SOME OF WHICH WERE INSERTED AFTER THE PRESENT CON TROVERSY STARTED - ARE NOT HELPFUL AND WE HAVE TO CONSTRUE THE REAL SCOPE OF THE PROVISIONS WITH WHICH WE ARE CONCERNED. WE THINK THAT ALL MISCONCEPTION WILL VANISH AND ALL THE PROVISIONS WILL FALL INTO PLACE, IF WE HEAR IN MIND A FUNDAMENTAL, THROUGH UNWR ITTEN, AXIOM THAT NO LEGISLATURE COULD HAVE AT ALL INTENDED A DOUBLE DEDUCTION IN REGARD TO THE SAME BUSINESS OUTGOING, AND IF IT IS INTENDED IT WILL BE CLEARLY EXPRESSED. IN OTHER WORDS, IN THE ABSENCE OF CLEAR STATUTORY INDICATION TO THE CONTRARY, THE ST ATUTE SHOULD NOT BE READ SO AS TO PERMIT AN ASSESSEE TWO DEDUCTIONS BOTH UNDER S. 10(2)(VI) AND S. 10(2)(XIV) UNDER THE 1922 ACT OR UNDER S. 32(1)(II) AND 35(2)(IV) OF THE 1922 ACT - QUA THE SAME EXPENDITURE. IS THEN THE USE OF THE WORDS 'IN RESPECT OF THE SAME PREVIOUS YEAR' IN CLAUSE (D) OF THE PROVISO TO S. 10(2)(XIV) OF THE 1922 ACT AND S. 35(2)(IV) OF THE 1961 ACT CONTRA - INDICATION WHICH PERMITS A DISALLOWANCE OF DEPRECIATION ONLY IN THE PREVIOUS YEARS IN WHICH THE OTHER ALLOWANCE IS ACTUALLY ALLOWED. WE THINK THE ANSWER IS AN EMPHATIC 'NO' AND THAT THE PURPOSE OF THE WORDS ABOVE REFERRED TO IS TOTALLY DIFFERENT. IF, AS CONTENDED FOR BY THE ASSESSEES, THERE CAN BE NO OBJECTION IN PRINCIPLE TO ALLOWANCES BEING MADE UNDER BOTH THE PROVISIONS AS THEIR NATU RE AND PURPOSE ARE DIFFERENT, THEN THE INTERDICT DISALLOWING A DOUBLE DEDUCTION WILL BE MEANINGLESS EVEN IN RESPECT OF THE PREVIOUS YEARS FOR WHICH DEDUCTION IS ALLOWED UNDER S. 10(2)(XIV)/S. 35 IN RESPECT OF THE SAME ASSET. IF THAT WERE THE CORRECT PRINCI PLE, THE ASSESSEE SHOULD LOGICALLY BE ENTITLED TO DEDUCTION BY WAY OF DEPRECIATION FOR ALL PREVIOUS YEARS INCLUDING THOSE FOR WHICH ALLOWANCE HAVE BEEN GRANTED UNDER THE PROVISION RELATING TO SCIENTIFIC RESEARCH. THE STATUTE DOES NOT PERMIT THIS. THE RESTR ICTION IMPOSED WOULD, THEREFORE, BE ILLOGICAL AND UNJUSTIFIED ON THE BASIS SUGGESTED BY THE ASSESSEES. ON THE OTHER HAND, IF WE ACCEPT THE PRINCIPLE WE HAVE OUTLINED EARLIER VIZ. THAT, THERE IS A BASIC LEGISLATIVE SCHEME, UNSPOKEN BUT CLEARLY UNDERLYING TH E ACT, THAT TWO ALLOWANCES CANNOT BE, AND ARE NOT INTENDED TO BE, GRANTED IN RESPECT OF THE SAME ASSET OR EXPENDITURE, ONE WILL EASILY SEE THE NECESSITY FOR THE LIMITATION IMPOSED BY THE QUOTED WORDS. FOR, IN THIS VIEW, WHERE THE CAPITAL ASSET IS ONE OF TH E NATURE SPECIFIED, THE ASSESSEE CAN GET ONLY ONE OF THE TWO ALLOWANCES IN QUESTION BUT NOT BOTH.' 19. SECTION 11 OF THE ACT DEALS WITH APPLICATION OF INCOME DIFFERENT FROM REVENUE EXPENDITURE OR ALLOWANCE. THUS, THE JUDGMENT OF THE APEX COURT IN THE CASE OF ESCORTS LTD., ( SUPRA ) IS DISTINGUISHABLE AND AS SUCH IS NOT APPLICABLE TO THE CHARITABLE TRUSTS WHERE INCOME IS TO BE COMPUTED UNDER CHAPTER III OF THE ACT. ACCORDINGLY, THE JUDGMENT OF LISSIE MEDICAL INSTITUTIONS ( SUPRA ) BASED ON ESCORTS LTD. , ( SUPRA ), IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. ITA 892 /BANG/201 6 PAGE 8 OF 11 20. IT IS ALSO TO BE NOTICED THAT WHILE IN THE YEAR OF ACQUIRING THE CAPITAL ASSET, WHAT IS ALLOWED AS EXEMPTION IS THE INCOME OUT OF WHICH SUCH ACQUISITION OF ASSET IS MADE AND WHEN DEPRECIATION DEDUCTI ON IS ALLOWED IN THE SUBSEQUENT YEARS, IT IS FOR THE LOSSES OR EXPENSES REPRESENTING THE WEAR AND TEAR OF SUCH CAPITAL ASSET INCURRED IF, NOT ALLOWED THEN THERE IS NO WAY TO PRESERVE THE CORPUS OF THE TRUST FOR DERIVING ITS INCOME AS HELD IN SOCIETY OF SIS TERS OF ST. ANNE ( SUPRA ). THIS JUDGMENT OF CO - ORDINATE BENCH OF THIS COURT IS BINDING ON US AND WE HAVE NO REASONS TO DISTURB THE SETTLED POSITION OF LAW AT THIS LENGTH OF TIME/DEPART FROM THE SAID REASONING. AS SUCH, THE ARGUMENTS ADVANCED BY THE REVENUE APPREHENDING DOUBLE DEDUCTION IS TOTALLY MISCONCEIVED. 21. SECTION 11[6] INSERTED WITH EFFECT FROM 1.4.2015 BY FINANCE ACT NO. 2/2014, READS AS UNDER: '(6) IN THIS SECTION WHERE ANY INCOME IS REQUIRED TO BE APPLIED OR ACCUMULATED OR SET APART FOR APPLICATI ON, THEN, FOR SUCH PURPOSES THE INCOME SHALL BE DETERMINED WITHOUT ANY DEDUCTION OR ALLOWANCE BY WAY OF DEPRECIATION OR OTHERWISE IN RESPECT OF ANY ASSET, ACQUISITION OF WHICH HAS BEEN CLAIMED AS AN APPLICATION OF INCOME UNDER THIS SECTION IN THE SAME OR A NY OTHER PREVIOUS YEAR.' 22. THE PLAIN LANGUAGE OF THE AMENDMENT ESTABLISHES THE INTENT OF THE LEGISLATURE IN DENYING THE DEPRECIATION DEDUCTION IN COMPUTING THE INCOME OF CHARITABLE TRUST IS TO BE EFFECTIVE FROM 1.4.2015. THIS VIEW IS FURTHER SUPPORTED BY THE NOTES ON CLAUSES IN FINANCE [NO. 2] BILL, 2014, MEMO EXPLAINING PROVISIONS AND CIRCULARS ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES IN THIS REGARD. CLAUSE NO. 7 OF THE NOTES ON CLAUSES READS THUS: 'CLAUSE 7. OF THE BILL SEEKS TO AMEND SECTION 11 OF T HE INCOME - TAX ACT RELATING INCOME FROM PROPERTY HELD FOR CHARITABLE OR RELIGIOUS PURPOSES. THE EXISTING PROVISIONS OF THE AFORESAID SECTION CONTAIN A PRIMARY CONDITION THAT FOR GRANT OF EXEMPTION IN RESPECT OF INCOME DERIVED FROM PROPERTY HELD UNDER TRUST, SUCH INCOME SHOULD BE APPLIED FOR THE CHARITABLE PURPOSES IN INDIA, AND WHERE SUCH INCOME CANNOT BE SO APPLIED DURING THE PREVIOUS YEAR, IT HAS TO BE ACCUMULATED IN THE PRESCRIBED MODES. IT IS PROPOSED TO INSERT SUB - SECTIONS (6) AND (7) IN THE SAID SECTIO N SO AS TO PROVIDE THAT ( I ) WHERE ANY INCOME IS REQUIRED TO BE APPLIED OR ACCUMULATED OR SET APART FOR APPLICATION, THEN, FOR SUCH PURPOSES THE INCOME SHALL BE DETERMINED WITHOUT, ANY DEDUCTION OR ALLOWANCE BY WAY OF DEPRECIATION OR OTHERWISE IN RESPECT OF ANY ASSET, ACQUISITION OF WHICH HAS BEEN CLAIMED AS AN APPLICATION OF INCOME UNDER THIS SECTION IN ANY PREVIOUS YEAR, AND ( II ) WHERE A TRUST OR AN INSTITUTION HAS BEEN GRANTED REGISTRATION UNDER CLAUSE (B) OF SUB - SECTION (1) OF SECTION 12AA OR HAS O BTAINED REGISTRATION AT ANY TIME UNDER SECTION 12A [AS IT STOOD BEFORE IS ITA 892 /BANG/201 6 PAGE 9 OF 11 AMENDMENT BY THE FINANCE (NO. 2) ACT, 1996] AND THE SAID REGISTRATION IS IN FORCE FOR ANY PREVIOUS YEAR, THEN, NOTHING CONTAINED IN SECTION 10 [OTHER THAN CLAUSE (1) AND CLAUSE (23C) THEREOF] SHALL OPERATE TO EXCLUDE ANY INCOME DERIVED FROM THE PROPERTY HELD UNDER TRUST FROM THE TOTAL INCOME OF THE PERSON IN RECEIPT THEREOF FOR THAT PREVIOUS YEAR. THIS AMENDMENT WILL TAKE EFFECT FROM 1 ST APRIL, 2015 AND WILL, ACCORDINGLY, APPLY IN RE LATION TO THE ASSESSMENT YEAR 2015 - 16 AND SUBSEQUENT YEARS'. THE MEMO EXPLAINING THE PROVISIONS IN FINANCE [NO. 2] BILL, 2014 READS THUS: 'THE SECOND ISSUE WHICH HAS ARISEN IS THAT THE EXISTING SCHEME OF SECTION 11 AS WELL AS SECTION 10(23C) PROVIDES EXEMP TION IN RESPECT OF INCOME WHEN IT IS APPLIED TO ACQUIRE A CAPITAL ASSET. SUBSEQUENTLY, WHILE COMPUTING THE INCOME FOR PURPOSES OF THESE SECTIONS, NOTIONAL DEDUCTION BY WAY OF DEPRECIATION ETC. IS CLAIMED AND SUCH AMOUNT OF NOTIONAL DEDUCTION REMAINS TO BE APPLIED FOR CHARITABLE PURPOSE. THEREFORE, DOUBLE BENEFIT IS CLAIMED BY THE TRUSTS AND INSTITUTIONS UNDER THE EXISTING LAW. THE PROVISIONS NEED TO BE RATIONALIZED TO ENSURE THAT DOUBLE BENEFIT IS NOT CLAIMED AND SUCH NOTIONAL AMOUNT DOES NOT EXCLUDED FROM THE CONDITION OF APPLICATION OF INCOME FOR CHARITABLE PURPOSE'. 23. PARAGRAPHS 7.5, 7.5.1, 7.6 OF CENTRAL BOARD OF DIRECT TAXES CIRCULAR REPORTED IN 371 ITR 22 MAKES IT CLEAR THAT THE SAID AMENDMENT SHALL TAKE EFFECT FROM 1.4.2015 AND WILL ACCORDINGLY APPL Y IN RELATION TO THE ASSESSMENT YEAR 2015 - 16 AND SUBSEQUENT ASSESSMENT YEARS. 24. THE CONSTITUTION BENCH OF THE APEX COURT IN VATIKA TOWNSHIP (P.) LTD.'S CASE ( SUPRA ), HAD LAID DOWN GENERAL PRINCIPLES CONCERNING RETROSPECTIVITY IN PARAGRAPHS 33 AND 34, AND THE SAME IS EXTRACTED HEREUNDER: '33. WE WOULD ALSO LIKE TO POINT OUT, FOR THE SAKE OF COMPLETENESS, THAT WHERE A BENEFIT IS CONFERRED BY A LEGISLATION, THE RULE AGAINST A RETROSPECTIVE CONSTRUCTION IS DIFFERENT. IF A LEGISLATION CONFERS A BENEFIT ON SOME PERSONS BUT WITHOUT INFLICTING A CORRESPONDING DETRIMENT ON SOME OTHER PERSON OR ON THE PUBLIC GENERALLY, AND WHERE TO CONFER SUCH BENEFIT APPEARS TO HAVE BEEN THE LEGISLATORS OBJECT, THEN THE PRESUMPTION WOULD BE THAT SUCH A LEGISLATION, GIVING IT A PURP OSIVE CONSTRUCTION, WOULD WARRANT IT TO BE GIVEN A RETROSPECTIVE EFFECT. THIS EXACTLY IS THE JUSTIFICATION TO TREAT PROCEDURAL PROVISIONS AS RETROSPECTIVE. IN GOVERNMENT OF INDIA & ORS. V. INDIAN TOBACCO ASSOCIATION , THE DOCTRINE OF FAIRNESS WAS HELD TO BE RELEVANT FACTOR TO CONSTRUE A STATUTE CONFERRING A BENEFIT, IN THE CONTEXT OF IT TO BE GIVEN A RETROSPECTIVE OPERATION. THE SAME DOCTRINE OF FAIRNESS, TO HOLD THAT A STATUTE WAS RETROSPECTIVE IN NATURE, WAS APPLIED IN THE CASE OF VIJAY V. ITA 892 /BANG/201 6 PAGE 10 OF 11 STATE OF MAHARAS HTRA & ORS. IT WAS HELD THAT WHERE A LAW IS ENACTED FOR THE BENEFIT OF COMMUNITY AS A WHOLE, EVEN IN THE ABSENCE OF A PROVISION THE STATUTE MAY BE HELD TO BE RETROSPECTIVE IN NATURE. HOWEVER, WE ARE CONFRONTED WITH ANY SUCH SITUATION HERE. 34. IN SUCH CASE S, RETROSPECTIVELY IS ATTACHED TO BENEFIT THE PERSONS IN CONTRADISTINCTION TO THE PROVISION IMPOSING SOME BURDEN OR LIABILITY WHERE THE PRESUMPTION ATTACHES TOWARDS PROSPECTIVITY. IN THE INSTANT CASE, THE PROVISO ADDED TO SECTION 113 OF THE ACT IS NOT BENE FICIAL TO THE ASSESSEE. ON THE CONTRARY, IT IS A PROVISION WHICH IS ONEROUS TO THE ASSESSEE. THEREFORE, IN A CASE LIKE THIS, WE HAVE TO PROCEED WITH THE NORMAL RULE OF PRESUMPTION AGAINST RETROSPECTIVE OPERATION. THUS, THE RULE AGAINST RETROSPECTIVE OPERAT ION IS A FUNDAMENTAL RULE OF LAW THAT NO STATUTE SHALL BE CONSTRUED TO HAVE A RETROSPECTIVE OPERATION UNLESS SUCH A CONSTRUCTION APPEARS VERY CLEARLY IN THE TERMS OF THE ACT, OR ARISES BY NECESSARY AND DISTINCT IMPLICATION. DOGMATICALLY FRAMED, THE RULE IS NO MORE THAN A PRESUMPTION, AND THUS COULD BE DISPLACED BY OUTWEIGHING FACTORS'. 25. THE APEX COURT IN THE SAID JUDGMENT, WHILE INTERPRETING THE PROVISO, WHETHER TO BE APPLIED RETROSPECTIVELY OR PROSPECTIVELY, HAS CONSIDERED THE NOTES ON CLAUSES APPENDED, THE FINANCE BILL AND THE UNDERSTANDING OF THE CENTRAL BOARD OF DIRECT TAXES IN THIS REGARD. THE APEX COURT HAS ALSO TAKEN COGNIZANCE OF THE FACT THAT THE LEGISLATURE IS FULLY AWARE OF 3 CONCEPTS INSOFAR AS AMENDMENTS MADE TO A STATUTE: ( I ) PROSPECTIVE A MENDMENTS WITH EFFECT FROM A FIXED DATE; ( II ) RETROSPECTIVE AMENDMENTS WITH EFFECT FROM A FIXED ANTERIOR DATE; AND ( III ) CLARIFICATORY AMENDMENTS WHICH ARE PROSPECTIVE IN NATURE. KEEPING IN VIEW, THE AFORESAID PRINCIPLES ENUNCIATED BY THE APEX COURT , IN VATIKA TOWNSHIP (P.) LTD.'S CASE ( SUPRA ), IT WOULD BE SAFELY HELD THAT SECTION 11(6) OF THE ACT IS PROSPECTIVE IN NATURE AND OPERATES WITH EFFECT FROM 01.04.2015. THIS IS FURTHER CLARIFIED WHEN COMPARED WITH CERTAIN OTHER PROVISIONS WHICH HAVE BEEN MA DE RETROSPECTIVELY IN THE SAME FINANCE ACT. 26. FOR THE FOREGOING REASONS, WE ANSWER THE QUESTION OF LAW IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 27. IN THE RESULT, ALL THE APPEALS ARE DISMISSED.' 5. IN VIEW OF THE ABOVE, AS THE QUESTIONS ARE ALR EADY COVERED BY THE DECISION OF THIS COURT AS CONCEDED BY THE LEARNED COUNSEL FOR THE APPELLANTS - REVENUE, IT CANNOT BE SAID THAT ANY SUBSTANTIAL QUESTION OF LAW WOULD ARISE FOR CONSIDERATION. ITA 892 /BANG/201 6 PAGE 11 OF 11 SINCE T HE DECISION OF THE CIT(A) IS IN CONSONANCE WITH THE LAW LAID DOWN BY THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF KARNATAKA REDDY JANASANGHA (SUPRA), W E DO NOT FIND ANY FALLACY IN THE REASONING ADOPTED BY THE CIT(A). HENCE, THE GROUNDS OF APPEAL ARE DISMISSED. 7 . IN THE RESULT, THE APPEAL FILED B Y THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH AUGUST , 201 7 SD/ - SD/ - ( LALIET KUMAR ) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : B EN GAL URU D A T E D : 04 /0 8 /2017 SRINIVASULU, SPS COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) - 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME - TAX APPELLATE TRIBUNAL BANGALORE