REGIONAL COLLEGE OF ENGINEERING & MANAGEMENT,BHUBANESWAR vs. ITO, WARD-2(2), BHUBANESWAR

आयकर अपीऱीय अधिकरण, कटक न्यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM आयकर अऩीऱ सं./ITA No.94/CTK/2016 (नििाारण वषा / Assessment Year :2008-2009 Regional College of Engineering & Vs. ITO Ward-2(2), Bhubaneswar Management, Plot No.18, Sector-A, Zone-B, Mancheswar Industrial Estate, Bhubaneswar-751010 PAN No. : AAAAR 1386 H (अऩीऱाथी /Appellant) (प्रत्यथी / Respondent) .. ननधााररती की ओर से /Assessee by : Shri Sunil Mishra, Advocate राजस्व की ओर से /Revenue by : Shri Subhendu Datta, DR सुनवाई की तारीख / Date of Hearing : 20/08/2020 घोषणा की तारीख/Date of Pronouncement : 21/08/2020 आदेश / O R D E R Per L.P.Sahu, AM: This is an appeal filed by the assessee against the order of the CIT(A)-3, Bhubaneswar, dated 28.12.2015 for the assessment year 2008-2009, on the following grounds of appeal :- 1. That, the learned CIT (A) has committed serious error in not allowing the appeal of the appellant against the order of the learned AO passed u/s 154 of the Income Tax Act dated 15.10.2014 . 2. That, the learned CIT (A) has committed serious error in not accepting that the denial of "emption to a charitable Trust granted registration u/s 12AA of the Income Tax Act is a mistake apparent from record as envisaged u/s 154 of the Income Tax Act, 1961. 3. That, the learned CIT (A) has committed serious error in holding that the mistake of disallowance for violation of provision of Section 40(a)(ia) of the Income Tax Act is not a mistake apparent from record in the case of a charitable Trust registered u/s 12AA of the Income Tax Act.

2 ITA No.94/CTK/2016 4. That, the appellant may add, alter, delete or modify any of the grounds at the time of hearing of the matter with the leave of the Hon'ble ITAT. 2. Brief facts of the case are that the assessee is running an

educational institution and granted registration u/s.12AA of the

Income Tax Act w.e.f.01.04.2001 by the CIT, Bhubaneswar vide

Registration No.45/2001-02, dated 07.08.2002. The assessee filed Nil

return of income, later on the case was assessed u/s.143(3) of the Act

determining the income of Rs.2,67,000/-, the addition was made

u/s.40(a)(ia) of the Income Tax Act for not deducting the TDS on

expenses paid by the assessee. Later on the assessee filed an

application u/s.154 of the Act for rectification of the mistake by

contending that the provisions of Section 40(a)(ia) of the Act has not

been considered properly while framing the assessment u/s.143(3) of

the Act and rejected the contention of the assessee that there is no

mistake on the records.

filed u/s.154 of the Act, the assessee appealed before the CIT(A). The

CIT(A) dismissed the appeal of the assessee by holding that the liability

for deduction of tax at source on payments made like other assessee is

also applicable for the charitable trust and its institutions and he

further observed that mistake of disallowance for violation of

provisions of Section 40(a)(ia) of the Act as claimed by the assessee is

3 ITA No.94/CTK/2016 not a mistake apparent on record. Accordingly, he dismissed the appeal

of the assessee.

appeal before the Income Tax Appellate Tribunal.

deduct TDS because its income is determined/calculated as per

Sections 11, 12 & 13 of the Income Tax Act and its income is not

calculated as per Section 28 of the Act, therefore, this provision is not

applicable in the present case in hand. Therefore, the AO has wrongly

invoked Section 40(a)(ia) of the Act for deduction of tax at source on

advertisement expenses is a mistake apparent from the records. In

support of his arguments, he relied on the decision of coordinate bench

of the Tribunal in the case of M/s Mahatma Gandhi Seva Mandir, ITA

No.4138/Mum/2011, order dated 11.05.2012.

below and submitted that the lower authorities were justified for

applying the provisions of section 40(a)(ia) of the Act which are

mandatory in nature for payments made by the assessee like other

assessee.

available on record and the orders of authorities below, we find that

the assessee society is registered u/s.12AA of the Income Tax Act and

4 ITA No.94/CTK/2016 its income is calculated as per Sections 11, 12 & 13 of the Act as

specified in these sections. The income of the assessee is running a

charitable institution, therefore, Section 40(a)(ia) of the Act is not

applicable in this case for the impugned assessment year. The profit is

not calculated as per Chapter D under the head profit and gains from

business or profession. The case law relied on by the ld. AR of the

assessee is squarely applicable to the present case, wherein the

coordinate bench of the Tribunal has held as under :-

“7. We have carefully considered the rival submissions of both the parties and also the impugned order before us. It is an admitted fact that the assessee is a charitable trust, which is duly registered under Section 12A and accordingly its income and expenditure is computed in terms of section 11. The issue before us is whether the disallowance under Section 40(a)(ia) can be made for the non- deduction of TDS under Section 194 in the case of such kind of assessees. Under the Income Tax Act, computation of total income is made under the various heads of income, viz :-

i) Salary ii) Income from house property iii) Profits and gains from business or profession iv) Capital gains v) Income from other sources.

7.1. Now, let us examine Section 11 and Section 40 to decide this controversy. Section 11 to 13 is a part of Chapter 3 under the heading "Income which does not form the part of the total income". Section 11 (1) provides that "subject to the provisions of Section 60 to 63, the following income shall not be included in the total income of the previous year of the person in receipt of the income". Thereafter it is provided as to how the income and to what extent it can be applied for charitable purposes. The manner in which the income can be applied has been laid down in Section 11(1) to Section 11(5). Section 13 provides exception to Section 11 wherein such an income can be excluded from the exempt income of the trust. Thus, Section 11 to 13 provides for application of income by a trust for charitable purposes and to that extent, subject to certain conditions, income of the trust is treated to be exempted from taxation. The incomes which are computed under the various heads of income, the mode of computation has been provided under respective sections. 7.2 Here we are concerned

5 ITA No.94/CTK/2016 with Section 40, which is part of computation of profit and gains from business or profession. The profits and gains from business or profession are computed under Section 28 and section 29 states that "the income referred to in Section 28 shall be computed in accordance with the provisions contained in Section 30 to 43 D". Thus, Section 30 to 43 provides various kinds of deductions which are to be made while computing the profit of the assessee from business or profession. Section 40 provides an exception to such deductions which have been provided in Section 30 to 38 and starts with a non obstante clause reading as under :-

"notwithstanding anything to the contrary in sections 30 to 38, the following amounts shall not be deducted in computing the income chargeable under the head "profits and gains of business or profession".

Thus, Section 40 is applicable only when deductions under Sections 30 to 38 are being made in computing the income chargeable under the head "profits and gains of business or profession" under Section 28. The exception in Section 40 is carved out, only for the purpose of Section 28 and not for computing the exemption of income of a charitable trust under Section 11. The disallowance made under Section 40(a) will only go to enhance the business profit of an assessee whose income is assessable under section 28 and not otherwise. Hence, provisions of section 40(a) are not applicable in case of charitable trust or institution where income and expenditure is computed in terms of section 11.

reproduce Section 11(1) of the Income Tax Act, 1961, which reads as

under :-

Income from property held for charitable or religious purposes. 11. (1) Subject to the provisions of sections 60 to 63, the following income shall not be included in the total income of the previous year of the person in receipt of the income— (a) income derived from property held under trust wholly for charitable or religious purposes, to the extent to which such income is applied to such purposes in India; and, where any such income is accumulated or set apart for application to such purposes in India, to the extent to which the income so

6 ITA No.94/CTK/2016

accumulated or set apart is not in excess of fifteen per cent of the income from such property; (b) income derived from property held under trust in part only for such purposes, the trust having been created before the commencement of this Act, to the extent to which such income is applied to such purposes in India; and, where any such income is finally set apart for application to such purposes in India, to the extent to which the income so set apart is not in excess of fifteen per cent of the income from such property; (c) income derived from property held under trust— (i) created on or after the 1st day of April, 1952, for a charitable purpose which tends to promote international welfare in which India is interested, to the extent to which such income is applied to such purposes outside India, and (ii) for charitable or religious purposes, created before the 1st day of April, 1952, to the extent to which such income is applied to such purposes outside India: Provided that the Board, by general or special order, has directed in either case that it shall not be included in the total income of the person in receipt of such income; (d) income in the form of voluntary contributions made with a specific direction that they shall form part of the corpus of the trust or institution. [Explanation 1].—For the purposes of clauses (a) and (b),— (1) in computing the fifteen per cent of the income which may be accumulated or set apart, any such voluntary contributions as are referred to in section 12 shall be deemed to be part of the income; (2) if, in the previous year, the income applied to charitable or religious purposes in India falls short of eighty-five per cent of the income derived during that year from property held under trust, or, as the case may be, held under trust in part, by any amount— (i) for the reason that the whole or any part of the income has not been received during that year, or (ii) for any other reason, then— (a) in the case referred to in sub-clause (i), so much of the income applied to such purposes in India during the previous year in which the income is received or during the previous year immediately following as does not exceed the said amount, and (b) in the case referred to in sub-clause (ii), so much of the income applied to such purposes in India during the previous year immediately following the previous year in which the income was derived as does not exceed the said amount,

7 ITA No.94/CTK/2016 may, at the option of the person in receipt of the income (such option to be exercised before the expiry of the time allowed under sub-section (1) of section 139 for furnishing the return of income, in such form and manner as may be prescribed) be deemed to be income applied to such purposes during the previous year in which the income was derived; and the income so deemed to have been applied shall not be taken into account in calculating the amount of income applied to such purposes, in the case referred to in sub-clause (i), during the previous year in which the income is received or during the previous year immediately following, as the case may be, and, in the case referred to in sub-clause (ii), during the previous year immediately following the previous year in which the income was derived. [Explanation 2.—Any amount credited or paid, out of income referred to in clause (a) or clause (b) read with Explanation 1, to any other trust or institution registered under section 12AA, being contribution with a specific direction that they shall form part of the corpus of the trust or institution, shall not be treated as application of income for charitable or religious purposes.] [Explanation 3.—For the purposes of determining the amount of application under clause (a) or clause (b), the provisions of sub-clause (ia) of clause (a) of section 40 and sub-sections (3) and (3A) of section 40A, shall, mutatis mutandis, apply as they apply in computing the income chargeable under the head "Profits and gains of business or profession".]

inserted in the Income Tax Act by Finance Act, 2018 w.e.f.01.04.2019,

whereas the case before us is related to the assessment year 2008-

2009. Therefore, the provisions of Section 40(a)(ia) of the Act are not

applicable in this case. The impugned provisions were not available in

the Act for the disputed assessment year whereas the AO has

disallowed the claim of the assessee invoking provisions of Section

40(a)(ia) of the Act while framing the assessment, which is clearly a

mistake apparent from the record because it was not applicable for the

charitable institutions for the impugned assessment year. In view of the

8 ITA No.94/CTK/2016 above discussions, we are of the view that the order passed by both the

authorities below are not justified and accordingly, we allow the

grounds of appeal of the assessee. Consequently, appeal filed by the

assessee is allowed.

Order pronounced in the open court on 21/08/ 2020. Sd/- Sd/- (C.M.GARG) (L.P.SAHU) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER कटक Cuttack; ददनाांक Dated 21/08/2020 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : अऩीऱाथी / The Appellant- 1. Regional College of Engineering & Management, Plot No.18, Sector-A, Zone-B, Mancheswar Industrial Estate, Bhubaneswar-751010 प्रत्यथी / The Respondent- 2. ITO Ward-2(2), Bhubaneswar आयकर आयुक्त(अऩीऱ) / The CIT(A), 3. आयकर आयुक्त / CIT 4. ववभागीय प्रनतननधध, आयकर अऩीऱीय अधधकरण, कटक / DR, ITAT, 5. Cuttack गार्ा पाईऱ / Guard file. 6. आदेशािुसार/ BY ORDER, सत्यावऩत प्रनत //True Copy//

(Senior Private Secretary) आयकर अपीऱीय अधिकरण, कटक/ITAT, Cuttack