M/S.ILAHIYA TRUST,MUVATTUPUZHA,ERNAKULAM vs. THE ACIT,(EXEMPTION), KOCHI

Per George George K., JM

This appeal at the instance of the assessee is directed against the order of the CIT(A) dated 16.04.2018. The relevant assessment year is 2012-2013. The assessee has also filed a Stay Application seeking to stay the recovery of outstanding tax arrears.

ITA No.313/Coch/2018 2 SA No.31/Coch/2018 : M/s.Ilahia Trust. provisions of section 40(a)(ia) of the I.T.Act ? and (iii) whether the CIT(A) is correct in confirming the disallowance of labour charges expenses amounting to Rs.5,40,390?;

Whether the CIT(A) is justified in directing the A.O. to tax an amount of Rs.72,45,000 and interest of Rs.13,04,700 at the maximum marginal rate:

3.1 Brief facts in relation to the above issue are follows:-

Assessee is a Trust. For the assessment year 2012-2013, return of income was filed on 01.01.2013 declaring total income at Rs.Nil, after claiming exemption u/s 11 of the I.T.Act. The assessment was taken up for scrutiny by issuance of notice u/s 143(2) of the I.T.Act. During the course of assessment proceedings, it was noticed that the assessee- trust had advanced a sum of Rs.72,45,000 to M/s.VUS Timbers. M/s.VUS Timbers is a proprietory concern of Mrs.K.Sainaba, who is wife of Managing Trustee of the assessee-trust Sri.V.U.Siddik. The assessee was directed to give reasons why the advance was given to M/s.VUS Timbers. It was submitted that the advance was given to M/s.VUS Timbers for purchase of timber for the purpose of construction of a medical college. It was stated that, the medical college could not be constructed since no permission was granted and advance was repaid to the assessee trust. The assessee was further show caused as to why the provisions of section 13(1)(c) of the I.T.Act should not be

ITA No.313/Coch/2018 3 SA No.31/Coch/2018 : M/s.Ilahia Trust. invoked and the exemption u/s 11 of the I.T.Act be denied. The assessee contended that the amount was paid for the purpose of purchase of timber and since the medical college could not be constructed, the amount advanced by the assessee-trust was duly repaid in the assessment years 2013- 2014, 2014-2015 and 2015-2016. It was submitted that all the repayments were made by account payee cheques. The Assessing Officer, however, rejected the contention raised by the assessee. The A.O. held that there was a clear violation of provisions of section 13(1)(c) of the I.T.Act since the assessee- trust had advanced money to the wife of Managing Trustee, a person mentioned u/s 13(3) of the I.T.Act. It was further held by the A.O. that the wife of the Managing trustee had the benefit of the advance, without payment of any interest. The A.O. was also of the view that since the assessee trust was paying interest on its borrowings, it was liable to be taxed for further amount of Rs.13,04,700, being 18% interest on advance of Rs.72,45,000. The A.O. concluded by stating that since there is a violation of provisions of section 13(1)(c) of the I.T.Act, exemption u/s 11 of the I.T.Act is to be denied.

3.2 Aggrieved by the assessment denying the benefit of deduction u/s 11 of the I.T.Act, the assessee preferred an appeal to the first appellate authority. The CIT(A) held that there is a violation of provisions of section 13(1)(c) of the I.T.Act and hence the A.O. has correctly calculated the notional interest on the advance made by the assessee-trust to M/s.VUS Timbers. The CIT(A), however, directed to allow exemption for the balance amount thereby restoring

ITA No.313/Coch/2018 4 SA No.31/Coch/2018 : M/s.Ilahia Trust. exemption u/s 11 of the I.T.Act for the income other than Rs.72,45,000 and notional interest of Rs.13,04,700. The relevant finding of the CIT(A) in this regard reads as follows:-

“In the instant case, the assessee has paid an amount of Rs.72,45,000 in the proprietory concern of the wife of the Managing Trustee. The appellant claimed it to be an advance for purchase of timber for the proposed construction of a Medical College. This reason of the appellant is far from convincing, as timber is required only after the construction of wall etc. involving brick work etc. are completed. I have not heard of anyone purchasing timber first and then planning the construction. Obviously, the money was given to the wife in contravention of the provisions of section 13( 1)( d). Because of this contravention, the AO denied the claim of exemption u/s. 11 to the appellant. However, as per the discussion above the AO should have taxed only the amount of Rs.72,45,000/- and should not have denied the exemption under section 11 altogether. Subsequent repayment of the amount of Rs.72,45,000/- by the wife of the Managing Trustee is of no consequence. It is also seen that even though she has held on to the money for a substantial period of time, she has not paid any interest to the appellant Trust, whereas the Appellant Trust has been paying interest on its borrowings. Therefore, I do not see any infirmity in the decision of the AO in disallowing the proportionate interest amounting to Rs.13,04,700/-. Thus, in view of above, discussion, the AO is directed to tax the amount of Rs.72,45,000/- + Rs.13,04,700/- at the maximum rate and allow exemption u/s 11 for the balance amount.”

3.3 Aggrieved by the CIT(A)’s order, the assessee has filed the present appeal before the Tribunal. The learned Counsel for the assessee submitted that the amount advanced to M/s.VUS Timbers was for the purpose of purchase of wood, and there is no violation of provisions of section 13(1)(c) of the I.T.Act. It was submitted that the assessee-trust is running various educational institutions and for the purpose of construction of a medical college, advance was made to

ITA No.313/Coch/2018 5 SA No.31/Coch/2018 : M/s.Ilahia Trust. M/s.VUS Timbers for the purchase of timber. It was submitted that the medical college could not be constructed since no permission was granted, hence, the amount advanced to M/s.VUS Timbers was returned by account payee cheques. It was further stated that substantial portion of the advance paid to M/s.VUS Timbers was returned within a short period of four months, and therefore, there is no benefit to the wife of the Managing trustee and hence there is no violation of the provisions of section 13(1)(c) of the I.T.Act.

3.4 The learned Departmental Representative, on the other hand, strongly supported the orders of the assessment and the CIT(A).

3.5 We have heard the rival submissions and perused the material on record. Section 13(1)(c) of the I.T.Act states that if any income of the trust during the previous year is used or applied directly or indirectly to any person referred to in sub- section (3) of section 13, provisions of section 11 will not have application. Admittedly, the amount has been advanced to M/s.VUS Timbers, a proprietory concern of wife of the Managing trustee. Therefore, the advance clearly comes within the mischief of section 13(1)(c) of the I.T.Act unless it is proved that the said advance is for the purpose of assessee- trust itself. It is the claim of the assessee that the amount has been advanced for purchase of timber for the proposed construction of a medical college. It is an admitted fact that no permission was given for the setting up of medical college. The assessee has also not produced any application or other

ITA No.313/Coch/2018 6 SA No.31/Coch/2018 : M/s.Ilahia Trust. documents which ought to have been submitted to the Governmental authorities or Medical Council of India for the proposal for setting up of medical college. The story of the assessee is far from convincing that the advance has been made for the purchase of timber. The timber is normally purchased only subsequent to the construction of the building and even without constructing any building, the assessee had made the advance for purchase of timber. It is also an admitted fact that no wood was received by the assessee. Therefore, in the garb of purchase of timber, the advance amounts were diverted for the personal benefit of an interested party, who is mentioned in section 13(3) of the I.T.Act. Therefore, there is clear violation of provisions of section 13(1)(c) of the I.T.Act. The contention of the assessee that the amounts were returned by account payee cheques and within a short period is of no consequence. Only a small portion of the advance was repaid to the assessee trust within four months from the date of advance. Therefore, the repayment by M/s.VUS Timbers of all the advance by account payee cheques is of no significance insofar as there was already a violation of provisions of section 13(1)(c) of the I.T.Act. Therefore, the CIT(A) is justified in directing the A.O. to treat an amount of Rs.72,45,000 as advance as income of the assessee. The assessee was paying interest on borrowings, and therefore, notional interest at the rate of 18% on the advance of Rs.72,45,000 was rightly brought to tax as income of the assessee by the A.O. Therefore, we see no reason to

ITA No.313/Coch/2018 7 SA No.31/Coch/2018 : M/s.Ilahia Trust. interfere with the findings of the CIT(A). Accordingly, we confirm the order of the CIT(A) on this issue.

Whether the CIT(A) is justified in confirming the disallowance of Rs.21,27,846 by invoking the provisions of section 40(a)(ia) of the I.T.Act?

4.1 The Assessing Officer has made the disallowance of Rs.21,27,846 by invoking the provisions of section 40(a)(ia) of the I.T.Act. The relevant finding of the A.O. reads as follows:-

“It is seen that Shri Varghese Innocent is appearing in the list of sundry creditors of M/s.Ilahia Trust division for Rs.11,83,384/- and as sundry credit with M/s.Ilahia School of Science & Technology, Muvattupuzha for Rs.9,44,462/-. The authorized representative was asked to furnish the nature of work carried out by Varghese Innocent and TDS deducted. It is seen that no TDS is seen deducted from contracts given. Hence the amount of Rs.2127846/- (Rs.11,83,384/- + Rs.944,462) is disallowed by applying provisions of Sec.40(a)(ia) of the I.T.Act, 1961.”

4.2 Aggrieved, the assessee preferred an appeal to the first appellate authority. The CIT(A) confirmed the view taken by the Assessing Officer. The relevant finding of the CIT(A) reads as follows:-

“6.3 The appellant has given its reply as per para 15 of his submission, which has been reproduced earlier. From the submission, it is clear that no tax has been deducted at source as the appellant has not given relevant details. If at all any tax was deducted, the appellant would have given details either at the time of assessment or appellate stage. I

ITA No.313/Coch/2018 8 SA No.31/Coch/2018 : M/s.Ilahia Trust. do not find any infirmity with the order of the A.O. The disallowance of Rs.21,27,846/- is confirmed and this ground of appeal of the appellant is dismissed.”

4.3 The learned AR reiterated the submissions made before the Income-tax authorities. The learned Departmental Representative, on the other hand, supported the orders of the Assessing Officer and the CIT(A).

4.4 We have heard the rival submissions and perused the material on record. Admittedly, no tax was deducted on the payment of Rs.21,27,846. The assessee has not proved that the provisions of section 40(a)(ia) of the I.T.Act does not have any application on the said payment of Rs.21,27,846. Hence, the A.O. was correctly disallowed the expenditure by invoking the provisions of section 40(a)(ia) of the I.T.Act, which was confirmed by the CIT(A). Hence, we see no reason to interfere with the order of the CIT(A) and we confirm the same.

4.5 Therefore, this issue raised by the assessee is rejected.

Whether the CIT(A) is correct in confirming the disallowance of labour charges expenses amounting to Rs.5,40,390?

5.1 The Assessing Officer had disallowed a sum of Rs.5,40,392. The relevant finding of the A.O. reads as follows:-

“8. The assessee was asked to furnish the nature of expenses and proof regarding the same. The assessee replied that these are the payments made to casual workers for various works done by them on various days settled then and

ITA No.313/Coch/2018 9 SA No.31/Coch/2018 : M/s.Ilahia Trust. there by Ilahia College of Engineering and Technology. The submission of the assessee is considered carefully but cannot be accepted as no proof has been produced before the undersigned regarding the nature of work, place of work. Hence, labour charges amounting to Rs.5,40,392/- is disallowed and added back to the income of the assessee.”

5.2 The CIT(A) confirmed the view taken by the Assessing Officer.

5.3 We have heard the rival submissions and perused the material on record. The assessee has not produced any details that the said labour charges has been expended by it. Hence, the A.O. had correctly disallowed the expenditure and added back to the income of the assessee. We see no reasons to interfere with the orders of the Income-tax authorities, and confirm the same.

SA No.31/Coch/2018 6. Since we have disposed off the appeal, the Stay Application filed by the assessee is dismissed as infructuous.

Order pronounced on this 29th day of October, 2018.

Sd/- Sd/- (Chandra Poojari) (George George K.) ACCOUNTANT MEMBER JUDICIAL MEMBER

Cochin ; Dated : 29th October, 2018. Devdas*

ITA No.313/Coch/2018 10 SA No.31/Coch/2018 : M/s.Ilahia Trust.

Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT Kochi. 4. The CIT(A)-II, Kochi. 5. DR, ITAT, Cochin 6. Guard file. BY ORDER,

(Asstt. Registrar) ITAT, Cochin