ITO, Bangalore V. St. Patrick's Church, Bangalore

ITA 897/BANG/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5311 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 22-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 29-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K BIJU
• Assessee Lawyers: SUDHEENDRA B R
• Keywords: Depreciation; Charitable institution
• Section: 28; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 897/BANG/2016 ASSESSMENT YEAR : 2010-11 THE INCOME TAX OFFICER (EXEMPTIONS), WARD 3, BANGALORE. VS. ST. PATRICKS CHURCH, NO. 15-K, BRIGADE ROAD, BANGALORE 560 025. PAN: AADTS 7890K APPELLANT RESPONDENT APPELLANT BY : SHRI M.K. BIJU, JCIT RESPONDENT BY : SHRI SUDHEENDRA B.R., CA DATE OF HEARING : 22.05.2017 DATE OF PRONOUNCEMENT : 31.05.2017 O R D E R PER VIJAY PAL RAO, JUDICIAL MEMBER THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 22.02.2016 OF CIT(A) FOR THE ASSESSMENT YEAR 2010-11. ITA NO. 897/BANG/2016 PAGE 2 OF 14 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS. ITA NO. 897/BANG/2016 PAGE 3 OF 14 ITA NO. 897/BANG/2016 PAGE 4 OF 14 3. THE FIRST ISSUE RAISED BY THE REVENUE IS REGARDING THE ALLOWABLE ACCUMULATION OF 15% U/S. 11(1)(A) OF THE ACT OF NET RECEIPT OR GROSS RECEIPT. I HAVE HEARD THE LD. DR AS WELL AS LD. AR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE CIT(A) HAS DECIDE D THIS ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE DECISIONS OF THIS TRIBUNAL IN CASE OF THE JYOTHI SEVA SOCIETY OF BANGALORE VS DCIT IN ITA NO. 366/BANG/2015 AS WELL AS IN CASE OF M/S. SOCIETY OF THE SERVANTS OF THE HOLY SPIRIT VS DCIT. AT THE OUTSET IT IS NOTED THAT THE COORDINAT E BENCH OF THIS TRIBUNAL IN CASE OF M/S. SOCIETY OF THE SERVANTS OF THE HOLY SPIRIT VS DCIT VIDE ORDER DATED 27.11.2015 IN ITA NO. 975/BANG/2015 HAS CONSIDERED AN IDENTICAL ISSUE IN PARA 6 AND 7 AS UNDER: ITA NO. 897/BANG/2016 PAGE 5 OF 14 ITA NO. 897/BANG/2016 PAGE 6 OF 14 ITA NO. 897/BANG/2016 PAGE 7 OF 14 ITA NO. 897/BANG/2016 PAGE 8 OF 14 ITA NO. 897/BANG/2016 PAGE 9 OF 14 4. FOLLOWING THE EARLIER ORDER OF THIS TRIBUNAL I DO N OT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF THE CIT(A) QUA THIS ISSU E. THE SAME IS UPHELD. 5. THE NEXT ISSUE RAISED BY THE REVENUE IS REGARDING C ARRY FORWARD OF EXCESS APPLICATION. I HAVE HEARD THE LD. DR AND LD. AR AN D CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE CIT(A) HAS ALLOWE D THE CLAIM OF EXCESS APPLICATION OF INCOME TO BE CARRIED FORWARD FOR SET TING UP OF INCOME AGAINST THE INCOME OF THE FUTURE YEAR BY FOLLOWING THE DECISION OF THIS ITA NO. 897/BANG/2016 PAGE 10 OF 14 TRIBUNAL IN CASE OF JYOTHI SEVA SOCIETY OF BANGALOR E VS DCIT (SUPRA) AND M/S. SOCIETY OF THE SERVANTS OF THE HOLY SPIRIT VS DCIT(SUPRA). 6. IT IS NOTED THAT IN CASE OF M/S. DOMINICAN SISTERS OF PRESENTATION VS DDIT IN ITA NO. 318(BNG)2015 THE COORDINATE BENCH O F THIS TRIBUNAL VIDE ORDER DATED 18.01.2016 HAS CONSIDERED AND DECI DED AN IDENTICAL ISSUE IN PARA 7 AS UNDER. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. 7.1. THE ISSUE IN APPEAL IS WHETHER THE EXCESS APPL ICATION OF INCOME DURING THE YEAR FOR CHARITABLE PURPOSES CAN BE CARRIES FORWARD AND ALLOWED TO BE SET OFF IN FUTURE YEARS. THE ISSUE IS NO MORE RES-INTEGRA, AS IT WAS COVERED BY THE CO-ORDIN ATE BENCH OF THIS TRIBUNAL IN THE CASE OF ST. FRANCIS DE SALES ( SUPRA) WHEREIN IT IS HELD AS FOLLOWS; 5.3.1 WE HAVE HEARD THE RIVAL CONTENTIONS OF B OTH PARTIES AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RE CORD; INCLUDING JUDICIAL PRONOUNCEMENTS, CITED AND PLACED RELIANCE UPON. WE FIND THAT THE CASE OF INSTITUTE OF BANKING (SUPRA), THE HON'BLE HIGH COURT OF BOMBAY HAS HELD AS UNDER :- NOW COMING TO QUESTION NO. 3, THE POINT WHICH ARISE S FOR CONSIDERATION IS : WHETHER EXCESS OF EXPENDITURE IN THE EARLIER YEARS CAN BE ADJUSTED AGAINST THE INCOME OF THE SUBSEQUEN T YEAR AND WHETHER SUCH ADJUSTMENT SHOULD BE TREATED AS APPLIC ATION OF INCOME IN SUBSEQUENT YEAR FOR CHARITABLE PURPOSES? IT WAS ARGUED ON BEHALF OF THE DEPARTMENT THAT EXPENDITURE INCURR ED IN THE EARLIER YEARS CANNOT BE MET OUT OF THE INCOME OF THE SUBSEQ UENT YEAR AND THAT UTILIZATION OF SUCH INCOME FOR MEETING THE EXP ENDITURE OF EARLIER YEARS WOULD NOT AMOUNT TO APPLICATION OF INCOME FOR CHARITABLE OR RELIGIOUS PURPOSES. IN THE PRESENT CASE, THE AO DID NOT ALLOW CARRY FORWARD OF THE EXCESS OF EXPENDITURE TO BE SET OFF AGAINST THE SURPLUS OF THE SUBSEQUENT YEARS ON THE GROUND THAT IN THE CASE OF A CHARITABLE TRUST, THEIR INCOME WAS ASSESSABLE UNDER SELF-CONTAINED CODE MENTIONED IN S. 11 TO S. 13 OF THE IT ACT AND THAT THE INCOME OF THE CHARITABLE TRUST WAS NOT ASSESSABLE UNDER THE H EAD 'PROFITS AND GAINS OF BUSINESS' UNDER S. 28 IN WHICH THE PROVISI ON FOR CARRY FORWARD OF LOSSES WAS RELEVANT. THAT, IN THE CASE O F A CHARITABLE TRUST, THERE WAS NO PROVISION FOR CARRY FORWARD OF THE EXCESS OF EXPENDITURE OF EARLIER YEARS TO BE ADJUSTED AGAINST INCOME OF SUBSEQUENT YEARS. WE DO NOT FIND ANY MERIT IN THIS ARGUMENT OF THE DEPARTMENT. INCOME DERIVED FROM THE TRUST PROPERTY HAS ALSO GOT TO ITA NO. 897/BANG/2016 PAGE 11 OF 14 BE COMPUTED ON COMMERCIAL PRINCIPLES AND IF COMMERC IAL PRINCIPLES ARE APPLIED THEN ADJUSTMENT OF EXPENSES INCURRED BY THE TRUST FOR CHARITABLE AND RELIGIOUS PURPOSES IN THE EARLIER YE ARS AGAINST THE INCOME EARNED BY THE TRUST IN THE SUBSEQUENT YEAR W ILL HAVE TO BE REGARDED AS APPLICATION OF INCOME OF THE TRUST FOR CHARITABLE AND RELIGIOUS PURPOSES IN THE SUBSEQUENT YEAR IN WHICH ADJUSTMENT HAS BEEN MADE HAVING REGARD TO THE BENEVOLENT PROVISION S CONTAINED IN S. 11 OF THE ACT AND THAT SUCH ADJUSTMENT WILL HAVE TO BE EXCLUDED FROM THE INCOME OF THE TRUST UNDER S. 11(1)(A) OF T HE ACT. OUR VIEW IS ALSO SUPPORTED BY THE JUDGMENT OF THE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SHRI PLOT SWETAMBER MURTI PUJAK JAI N MANDAL (1994) 119 CTR (GUJ) 144 : (1995) 211 ITR 293 (GUJ) . ACCORDINGLY, WE ANSWER QUESTION NO. 3 IN THE AFFIRMATIVE I.E., I N FAVOUR OF THE ASSESSEE AND AGAINST THE DEPARTMENT. 5.3.2 THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF BALDWIN METHODIST EDUCATIONAL SOCIETY (SUPRA), HAS HELD AS UNDER :- WE ALSO FIND THAT A BENCH OF THIS TRIBUNAL IN TH E CASE OF ACADEMY OF LIBERAL EDUCATION IN ITA NO.687/BANG/2014 DATED 20/2/2015, TO WHICH ONE OF US I.E. THE ACCOUNTANT MEMBER IS THE S IGNATORY, HAS CONSIDERED THIS ISSUE AND IN PARA.8 OF ITS ORDER, H ELD AS UNDER: 8. WE ARE OF THE VIEW THAT PENDENCY OF A N APPEAL BEFORE THE HON'BLE HIGH COURT OF KARNATAKA CANNOT BE THE BASIS NOT TO FOLLOW THE DECISION ON THE ISSUE ALREADY RENDERED IN IDENT ICAL CASES. SECTION 11(1)(A) DOES NOT CONTAIN ANY WORDS OF LIMI TATION TO THE EFFECT THAT THE INCOME SHOULD HAVE BEEN APPLIED FOR CHARITABLE OR RELIGIOUS PURPOSE ONLY IN THE YEAR IN WHICH THE INC OME HAS ARISEN. THE APPLICATION FOR CHARITABLE PURPOSES AS CONTEMPL ATED IN SECTION 11(1)(A) TAKES PLACE IN THE YEAR IN WHICH THE INCOM E IS ADJUSTED TO MEET THE EXPENSES INCURRED FOR CHARITABLE OR RELIGI OUS PURPOSES. HENCE, EVEN IF THE EXPENSES FOR SUCH PURPOSES HAVE BEEN INCURRED IN THE EARLIER YEARS AND THE SAID EXPENSES ARE ADJU STED AGAINST THE INCOME OF A SUBSEQUENT YEAR, THE INCOME OF SUCH SUB SEQUENT YEAR CAN BE SAID TO BE APPLIED FOR CHARITABLE OR RELIGIO US PURPOSES IN THE YEAR IN WHICH SUCH ADJUSTMENT TAKES PLACE. IN OTHER WORDS, THE SET- OFF OF EXCESS OF EXPENDITURE INCURRED OVER THE INCO ME OF EARLIER YEARS AGAINST THE INCOME OF A LATER YEAR WILL AMOUN T TO APPLICATION OF INCOME OF SUCH LATER YEAR. THE ABOVE IS THE POSITIO N OF LAW AS HELD IN THE CASE OF CIT VS. MAHARANA OF MEWAR CHARITABLE FOUNDATION 164 ITR 439 (RAJ) CIT VS. SHRI PLOT SWETAMBER MURTI PUJAK JAIN MANDAL 211 ITR 293 (GUJ.). IN CIT VS. INSTITUTE OF BANKING PERSONNEL SELECTION 264 ITR 110 (BOM), IT WAS HELD THAT IN CASE OF CHARITABLE TRUST WHOSE INCOME IS EXEMPT UNDER S. 11 , EXCESS OF EXPENDITURE IN THE EARLIER YEARS CAN BE ADJUSTED AG AINST INCOME OF SUBSEQUENT YEARS AND SUCH ADJUSTMENT WOULD BE APPLI CATION OF INCOME FOR SUBSEQUENT YEARS AND THAT DEPRECIATION I S ALLOWABLE ON THE ASSETS THE COST OF WHICH HAS BEEN FULLY ALLOWED AS APPLICATION OF INCOME UNDER S. 11 IN PAST YEARS. IN GOVINDU NAICKE R ESTATE VS. ADIT 248 ITR 368 (MAD), THE HONBLE MADRAS HIGH COU RT HELD THAT THE INCOME OF THE TRUST HAS TO BE ARRIVED AT HAVING DUE REGARD TO THE COMMERCIAL PRINCIPLES, THAT S. 11 IS A BENEVOLENT P ROVISION, AND THAT ITA NO. 897/BANG/2016 PAGE 12 OF 14 THE EXPENDITURE INCURRED ON RELIGIOUS OR CHARITABLE PURPOSES IN EARLIER YEAR OR YEARS CAN BE ADJUSTED AGAINST THE I NCOME OF THE SUBSEQUENT YEAR. THE PRINCIPLE THAT THE LOSS INCURR ED UNDER ONE HEAD CAN ONLY BE SET OFF AGAINST THE INCOME FROM TH E SAME HEAD IS NOT OF ANY RELEVANCE, IF THE EXPENDITURE INCURRED W AS FOR RELIGIOUS OR CHARITABLE PURPOSES, AND THE EXPENDITURE ADJUSTED A GAINST THE INCOME OF THE TRUST IN A SUBSEQUENT YEAR, WOULD NOT AMOUNT TO AN INCIDENCE OF LOSS OF AN EARLIER YEAR BEING SET OFF AGAINST THE PROFIT OF A SUBSEQUENT YEAR. THE OBJECT OF THE RELIGIOUS AND CHARITABLE TRUST CAN ONLY BE ACHIEVED BY INCURRING EXPENDITURE AND I N ORDER TO INCUR THAT EXPENDITURE, THE TRUST SHOULD HAVE AN INCOME. SO LONG AS THE EXPENDITURE INCURRED IS ON RELIGIOUS OR CHARITABLE PURPOSES, IT IS THE EXPENDITURE PROPERLY INCURRED BY THE TRUST, AND THE INCOME FROM OUT OF WHICH THAT EXPENDITURE IS INCURRED, WOULD NOT BE LIABLE TO TAX. THE EXPENDITURE, IF INCURRED IN AN EARLIER YEAR IS ADJU STED AGAINST THE INCOME OF A LATER YEAR, IT HAS TO BE HELD THAT THE TRUST HAD INCURRED EXPENDITURE ON RELIGIOUS AND CHARITABLE PURPOSES FR OM THE INCOME OF THE SUBSEQUENT YEAR, EVEN THOUGH THE ACTUAL EXPE NDITURE WAS IN THE EARLIER YEARS, IF IN THE BOOKS OF ACCOUNT OF TH E TRUST SUCH EARLIER EXPENDITURE HAD BEEN SET OFF AGAINST THE INCOME OF THE SUBSEQUENT YEAR. THE EXPENDITURE THAT CAN BE SO ADJUSTED CAN O NLY BE EXPENDITURE ON RELIGIOUS AND CHARITABLE PURPOSES AN D NO OTHER. THE HIGH COURT RELIED ON THE DECISION IN THE CASE OF CI T VS. SOCIETY OF SISTERS OF ST. ANNE 146 ITR 28 (KAR). WE FIND THAT THE ORDER OF THE CIT(A) IS IN CONSONAN CE WITH THE JUDICIAL PRECEDENTS REPRODUCED ABOVE. THEREFORE, W E SEE NO REASON TO INTERFERE WITH THE ORDER OF THE CIT(A). THE REVENUES APPEAL IS, ACCORDINGLY, DISMISSED. 5.3.3 IT IS CLEAR FROM THE RELEVANT PORTIONS OF THE AFORESAID DECISIONS OF THE HON'BLE HIGH COURT OF BOMBAY (SUPR A) AND THE CO- ORDINATE BENCH OF THE ITAT, BANGALORE (SUPRA) EXTRA CTED ABOVE THAT THE INCOME OF CHARITABLE TRUSTS IS REQUIRED TO BE C OMPUTED ON COMMERCIAL PRINCIPLES. THE CONCEPT OF APPLICATION OF THE INCOME FOR THE YEAR IN WHICH THE INCOME HAS ARISEN IS NOT FOUN D IN SECTION 11(1)(A) OF THE ACT. NO LIMITATION TO THE ABOVE EF FECT IS FOUND IN THE LANGUAGE OF THE SECTION. IT MERELY REQUIRES APPLIC ATION OF THE INCOME THAT HAS ARISEN FROM THE PROPERTY HELD UNDER TRUST. IN THIS VIEW OF THE MATTER, THE PRINCIPLES RELATING TO SET OFF OF LOSSES, ETC. IS NOT OF ANY RELEVANCE AND THEREFORE ANY EXCESS APPL ICATION OF INCOME DURING THE YEAR CAN BE REGARDED AS APPLICATI ON OF THE INCOME OF FUTURE YEARS AND CAN BE ADJUSTED. THEREF ORE, IN OUR VIEW, THE CLAIM OF THE ASSESSEE FOR CARRY FORWARD OF EXC ESS APPLICATION IS IN ACCORDANCE WITH THE JUDICIAL PRECEDENTS ON THE I SSUE AND THE SAME IS ALLOWABLE. 5.3.4 IN THE CASE OF INDIAN NATIONAL THEATER (S UPRA) RELIED ON BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. THE HON'B LE HIGH COURT OF DELHI HAS HELD THAT TO SATISFY THE REQUIREMENTS OF SECTION 11(2)(B) OF THE ACT, THE INVESTMENT MUST NECESSARILY COME OU T OF CURRENT YEARS INCOME AND THE INVESTMENT MADE IN THE PAST O BVIOUSLY ITA NO. 897/BANG/2016 PAGE 13 OF 14 CANNOT SATISFY THE REQUIREMENTS FOR THE CURRENT YEA R. THE ABOVE DECISION OF THE HON'BLE DELHI HIGH COURT HAS CONSID ERED THE PROVISIONS OF SECTION 11(2) OF THE ACT AND HAS TAKE N THE VIEW THAT THE ACCUMULATION UNDER SECTION 11(2) OF THE ACT CA N BE ONLY OUT OF CURRENT INCOME. WE, HOWEVER, FIND THAT THE CO-ORDI NATE BENCHES OF THE BANGALORE TRIBUNAL HAVE CONSISTENTLY FOLLOWED T HE VIEW OF THE HON'BLE BOMBAY HIGH COURT (SUPRA) IN WHICH THE APPL ICATION HAS BEEN REGARDED AS ADJUSTABLE AGAINST THE INCOME OF T HE FUTURE YEARS. WE ARE, THEREFORE, INCLINED TO FOLLOW THE VIEW TAKE N BY THE CO- ORDINATE BENCHES OF THIS TRIBUNAL, INTER ALIA, IN T HE CASE OF BALDWIN METHODIST EDUCATIONAL SOCIETY (SUPRA), BASED ON THE VIEW/DECISIONS OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF INS TITUTE OF BANKING (SUPRA) AND THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT V SHRI PLOT SWETAMBER MURTI PUJAK JAIN MANDAL R EPORTED IN 211 ITR 293. IN THIS VIEW OF THE MATTER, THE ASSESSING OFFICER IS DIRECTED TO ALLOW CARRY FORWARD OF THE EXCESS APPLICATION OF RS.17,35,360 FOR THE YEAR TO BE ADJUSTED FROM INCOME FROM PROPERTY H ELD UNDER TRUST OF THE SUBSEQUENT YEARS. IT IS ORDERED ACCORDINGLY . CONSEQUENTLY, GROUNDS 2 AND 3 OF ASSESSEE'S APPEAL ARE ALLOWED. RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDIN ATE BENCH, WE DIRECT THE AO TO ALLOW THE CARRY FORWARD OF THE AMOUNT OF EXCE SS INCOME APPLIED DURING THE YEAR TO THE FUTURE YEAR FOR SET OFF AGAI NST HE INCOME. 7. IN VIEW OF THE VARIOUS DECISIONS OF THIS TRIBUNAL W HEREIN THE TRIBUNAL HAS TAKEN A CONSISTENT VIEW ON THIS ISSUE I DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF THE CIT(A) QUA THIS ISSUE. 8. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSE D. PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF MAY, 2017 SD/- (VIJAY PAL RAO) JUDICIAL MEMBER BANGALORE, DATED, THE 31 ST MAY, 2017. / MS/ ITA NO. 897/BANG/2016 PAGE 14 OF 14 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.