Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: SH. N.K.CHOUDHRY & DR. A.L.SAINI
PER N. K. CHOUDHRY, JM:
This appeal has been preferred by the Assessee Society against the impugned order dated 07.07.2017 passed by the Ld. CIT(A)-2, Jalandhar u/s 250(6) of the Income Tax Act, 1961 (hereinafter called as ‘the Act’) whereby the Ld. CIT(A) upheld the assessment order dated 23.12.2016 passed u/s 143(3) of the Act.
ITA No. 539/Asr/2017 (A.Y. 2014-15) 2 Sh. Baba Gajja Ji Jain Society Vs. ITO
Brief facts of the case of the assessee are as under: The assessee society was formed on 16.06.2013 and got registered under The Societies Registration Act, 1860 on dated 26.09.2013 and thereafter applied for registration u/s 12AA of the Act which was declined by the Ld. CIT(E) Chandigarh vide order no. CIT(E)/Chd/12A/2014-15/2667 dated 17.03.2015. The assessee during the assessment year 2014-15 filed its return by declaring net income at 'NIL' on dated 19.02.2015 in ITR Form no. 7. The assessee's case was selected for scrutiny under compulsory manual selection of scrutiny. Thereafter questionnaire dated 12.05.2016 was issued to the assessee u/s 142(1) of the Act whereby the assessee was asked to furnish the information and supportive documents on or before 23rd May, 2016, in response to which the appellant society furnished the information as called for. The Assessing Officer while perusing the books of account as on 30th March 2014 and 23rd October, 2014 realized that the appellant had received Rs.1,24,64,869/- as total donation, out of which Rs.1,03,39,742/- has been received in cash. Though the appellant has claimed the corpus donation amounting to Rs.1,24,64,864/- as capital receipt, however, it was held by the Assessing Officer that the appellant is not registered u/s 12AA of the Act, therefore cannot claim the corpus donation as capital receipt as exempt. The Assessing Officer further observed that the aims and objects of the society seems to have been formed for private religious purpose and to benefit “Jain Community” in particular. Further the minutes of the meeting held by the society also showed that the society is in process of purchasing land for “Shree Baba Gajja Ji Jain Community Centre”, however it is evident that during the assessment year 2014-15, the assessee society is not registered u/s 12AA of the Act, therefore not entitled for exemption u/s 12AA r.w.s. 11 of the Act.
ITA No. 539/Asr/2017 (A.Y. 2014-15) 3 Sh. Baba Gajja Ji Jain Society Vs. ITO
Ultimately, the Assessing Officer made the addition of Rs.1,24,64,864/- in the income of the assessee. Further the Assessing Officer also made an addition of Rs.319586/- as surplus income (net profit) of the assessee. The Assessee challenged the said additions before the Ld. CIT(A) who vide impugned order upheld the same on the ground that the assessee society is neither registered u/s 12AA nor u/s 10(23C) of the Act and therefore rightly assessed as AOP by the AO.
The assessee being aggrieved, challenged the impugned order passed by the Ld. CIT(A) on both the addition, however at time of argument emphasized on the addition qua donation only, hence we are restricting our decision to the issue qua addition of Rs.1,24,64,864/- only.
Having heard the parties at length and perused the material available on record. The assessee while relying on the order passed by the co-ordinate Bench at Chandigarh in the case of the Income Tax Officer Dharamshala v. Chime Gatsal Ling Monastery, Sidhbari, Dharamshala (ITNo. 216 to 219/Chd/2012) decided on 28.10.2014), submitted that in the identical facts and circumstances as involved in this case, the coordinate bench sustained the order of the CIT(A) wherein the Ld. CIT(A) deleted the identical addition. The assessee has also filed a copy of the order dated 15.03.2019 passed u/s 12AA of the Act by the Ld. CIT(E) Chandigarh and submitted that the assessee is now approved u/s 12AA of the Act.
On the contrary, the Ld. CIT-DR relied upon the order passed by the Ld. CIT(E) and submitted that the same is well-reasoned order
ITA No. 539/Asr/2017 (A.Y. 2014-15) 4 Sh. Baba Gajja Ji Jain Society Vs. ITO
based on peculiar facts and circumstances of the case and logical reasoning and therefore dose not suffer from any perversity, impropriety and/or illegality. Hence, no interference is called for from this court.
Let us to peruse the conclusion drawn by the co-ordinate bench in the case of Income Tax Officer, Dharamshala v. Chime Gatsal Ling Monastery (supra) wherein para no. 8, the co-ordinate bench analyzed the facts and circumstances of the case and upheld the action of the Ld. CIT(A) in deleting the addition. For brevity the concluding part is reproduced herein below:
“8. In view of the submissions of the parties and facts of the case in the light of the order of the learned CIT (Appeals), we do not find any justification to interfere with the order of the learned CIT (Appeals) in deleting the additions. The Assessing Officer referring to provisions of section 12(1) of the Income Tax Act considered the gross receipts of the assessee as income. The learned CIT (Appeals), therefore, correctly held that since the assessee is assessed as an AOP and no registration under section 12AA of the Income Tax Act has been granted to the assessee, therefore, the provisions of section 12 of the Income Tax Act would not apply in the case of the assessee. The provisions of sections 11 and 12 of the Income Tax Act will only apply if the assessee is registered under section 12AA of the Income Tax Act. Therefore, on this reason itself, the departmental appeal is liable to be dismissed. Further the Assessing Officer took the status of the assessee to be AOP but it is a fact established on record that the assessee collected the donation for construction of temple and used the same donation specifically for the purpose of construction only. Thus no income accrues or arises to the assessee and no material has been brought on record that the assessee started doing any activity which yielded any income to the assessee. The word "association" means "to join in common purposes, or to join in an action". Therefore, "association of persons", as used in Income Tax Act, means an association in which two or more persons join in a
ITA No. 539/Asr/2017 (A.Y. 2014-15) 5 Sh. Baba Gajja Ji Jain Society Vs. ITO
common purpose or common action and as the words occurs in Income Tax Act, which imposes a tax on income, the association must be one the object of which is to produce income, profits or gains. We rely upon the decision of the Hon'ble Supreme Court in the case of CIT Vs. Indira Balkrishna [39 ITR 546 (SC)]. The learned CIT (Appeals) considering the material on record gave a specific finding of fact that the assessee society was meant for charitable and religious purposes and was totally devoted to the Buddhist temple/monastery in the year under consideration. The assessee was thus at the stage of construction of the temple and has not carried out any other profession or occupation for earning the income. Therefore, no income accrues to the assessee. The assessee has also specifically pleaded that the donations were received as corpus towards the construction of the temple. Therefore, the learned CIT (Appeals) was justified in holding that there is no receipts in the hands of the assessee in the nature of income. The learned counsel for the assessee also rightly relied upon the order of .the I.T.A.T., Agra Bench in the case of ITO Vs. M/s Gaudiya Granth Anuved Trust, Mathura (supra), in which identical question was involved in which the assessee Trust was also not registered under section 12A of 12AA of the Income Tax Act and the Tribunal referring to other decisions of other Benches of the Tribunal dismissed the departmental appeal. Copy of the order is placed on record. Therefore, the issue is covered in favour of the assessee by the above order of the I.T.A.T., Agra Bench. Considering the totality of the facts and circumstances, we do not find any merit in the departmental appeal and the same is dismissed.
In the result, all the appeals filed by the Revenue are dismissed and the Cross Objections filed by the assessee are dismissed as withdrawn.”
The coordinate bench while passing the aforesaid order, relied upon the decision of Apex Court in the case of CIT v. Indira Balkrishna 39 ITR 546 (SC) and held that the word “association” means “to join in common purposes or to join in an action”. Therefore “association of persons”, as used in Income Tax Act, means an association in which two
ITA No. 539/Asr/2017 (A.Y. 2014-15) 6 Sh. Baba Gajja Ji Jain Society Vs. ITO
or more persons to join in a common purpose or common action and as the words occurs in Income Tax Act, which imposes a tax on income, the association must be one, object of which is to produce income, profits or gains. The co-ordinate bench also considered the peculiar facts that the society was meant for charitable and religious purposes and was totally devoted to the Buddhist temple and Monastery in the year under consideration and thus was at the stage of the construction of the temple and has not carried out any other profession or occupation for earning the income. Therefore, no income accrues to the assessee. The coordinate bench further held that the assessee has also specifically pleaded that the donations were received as corpus toward construction of the temple, therefore, the Ld. CIT(A) was justified in holding that there is no receipts in the hands of the assessee in the nature of income. The coordinate bench while relying upon the order passed by the ITAT Bench At Agra in the case of ITO v. M/s Gaudiya Granth Anuved Trust, Mathura (in ITA No. 386/Agra/2012) order dated 2nd August, 2013 further held because in that case as well, the society was not registered u/s 12AA of the Act, and therefore the issue covered in favour of the assessee by the above order of the ITAT Agra Bench.
Coming to the instant case, admittedly during the assessment year under consideration, the appellant society was not registered u/s 12AA of the Act, however it is a fact that the appellant society has shown the amount of Rs.1,24,64,864/- as on 31st March, 2014 as opening balance in the corpus fund account/capital account. Further appellant society has shown the amount of Rs.1,04,63,627/- {99,33,000/- on account of land account and Rs.5,30,627/- on account of building (work in progress)}. It is undisputed fact that since 26.09.2013 the date of formation of society and till date, the appellant
ITA No. 539/Asr/2017 (A.Y. 2014-15) 7 Sh. Baba Gajja Ji Jain Society Vs. ITO
society is having and pursuing the same aims and objects as are mentioned below:
"To carry on religious and charitable projects such a progress of the Jain Samaj and propagation of eternal truth as manifested through the lives and teaching of 'Shree Baba Gajja Ji' & other Spiritual preachers.
To provide shelters to the visiting saints, Rishi Munis, Sadhu-Sanaysis, sewadaars and devotees of the society and to look after their needs.
To acquire land, construct, repair and manage the buildings, Langar hall(s) etc. of the community centers for utility of the public in general.
To celebrate religious functions and congregations and Melas related to Shree Baba Gajja Ji and other Spiritual Preachers:"
It is not the case of the department that the assessee society has changed its aims and objects. The assessee society has claimed that it had received the amount of Rs.1,24,64,864/- as anonymous donation during the financial year 2013-14 relevant to AY 2014-15 and spent the maximum part of which for the purchase of land and construction of temple and it is not the case of the Revenue department that the amount received as donation has been utilized by the appellant society for any other purposes. As the amount of donation has been spent towards the construction of temple for achieving the aims and objects of the society, therefore the addition qua donations is unsustainable. The assesse further claimed that the Revenue department would have sought the clarification from the appellant society to the effect as to whether the donation collected has
ITA No. 539/Asr/2017 (A.Y. 2014-15) 8 Sh. Baba Gajja Ji Jain Society Vs. ITO
been utilized for the purpose of construction of temple specifically and as to whether the assessee has been doing any other activity against the aims and objects of the society and as to whether there is any receipt in the hands of the society in the nature of income.
We realize that the authorities below failed to exercise on the aforesaid situations and passed the order on conjectures and surmises and hence in the interest of justice we are inclined to partly set aside orders passed by the authorities below and to remand back the issue qua addition of Rs.1,24,64,864/- to the file of the Assessing Officer for decision afresh while taking into consideration the amount received by the assessee and its utilization as to whether the same and upto what extent has been utilized by the assessee for the construction of temple and/for achieving the aims and objects of the society. Further as to whether the assessee has earned any income in its hand. Further as to whether the society has changed its aims and objects at any point of time at the time of filing the return for the relevant AY 2014-15 and before declining and grant of registration u/s 12AA of the Act. If the AO will find that the amount of donation has been spent for the construction of temple, then the Asseeee shall be entitled to claim the amount to that extent as capital receipts in nature. Consequently the issue qua addition of Rs.1,24,64,864/- is remanded to the file of the assessing Officer for decision afresh on the basis of observations and analyzations made above and in the light of decision of tribunal in the case of Income Tax Officer, Dharamshala v. Chime Gatsal Ling Monastery (supra) .
ITA No. 539/Asr/2017 (A.Y. 2014-15) 9 Sh. Baba Gajja Ji Jain Society Vs. ITO
In the result, the appeal filed by the assessee stand allowed for statistical purposes.
Order pronounced in the open Court on 16/01/2020.
Sd/- Sd/- (DR. A.L.SAINI) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated:16/01/2020. /GP/Sr.PS. Copy forwarded to: 1. The Appellant 2. The Respondent 3. The CIT 4. Then CIT(Appeals) 5. SR DR, I.T.A.T. Amritsar 6. Guard File True Copy By Order