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Income Tax Appellate Tribunal, RANCHI BENCH, RANCHI
Before: SHRI N.S SAINI & PAVAN KUMAR GADALE
IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI BENCH, RANCHI
BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA No.100/Ran/2014 Assessment Year: 2009-2010
Asst. Commissioner of Vs. M/s. Xavier Institute of Income Tax, Circle-3, Social Service, Purulia Road, Ranchi. Ranchi PAN/GIR No. AAATX 0040 P (Appellant) .. ( Respondent)
Assessee by: Shri B.K.Banka, CA Revenue by : Shri D.K. Sutariaya, CIT (DR)
Date of Hearing : 24/05/ 2018 Date of Pronouncement : 30/05/ 2018
O R D E R Per N.S.Saini, AM
This is an appeal filed by the revenue against the order of the CIT(A)-
Ranchi dated 20.12.2013 for the assessment year 2009-2010.
Ground No.1 of appeal of the revenue is directed against the order of
the CIT(A) in deleting the addition under the head “Loans and advances” of
Rs.2,28,41,789/-.
2 IT A No.1 00/R an/2 014 Asse ssmen t Year: 2 009 -20 10 3. The brief facts of the case are that from the examination of balance
sheet, the Assessing Officer found that during the financial year 2008-09,
the assessee instate has given advance to staff members of
Rs.1,07,03,784/-. Similar advance was given to others totalling to
Rs.2,28,41,789/-. Thus, the total advance given was Rs.2,28,41,789/-. The
Assessing Officer required the assessee to explain justification for giving
such high amount as advance. The assessee was required to give
particulars of recovery of the same. The assessee was required to submit
specific details in respect of Rs.15,10,000/- advance given to Shri Durlabh
Mahto and Rs.8,78,905/- advance given to Shri Bhim Vishwakarma. The
assessee was required to file relevant ledger copy of the accounts. The
assessee informed that the documents have been lost and it is unable to
produce the same. The assessee filed copy of a letter written to Police
Station that it was carrying two bundles in Auto rickshaw on 14.11.2011,
which were lost. The Assessing Officer observed that the assessee has not
stated the reasons for giving advance to Shri Durlabh Mahto and has also
failed to file details of the alleged identity of the recipients of advance.
Therefore, he held that the assessee had no credible explanation for
utilisation of funds ostensibly stated to be given as advances. Therefore, he
assumed that the assessee has applied the money for the purpose other
than for which it has been granted exemption under section 10(23C)(vi) of
the Act and added the same to the income of the assessee.
3 IT A No.1 00/R an/2 014 Asse ssmen t Year: 2 009 -20 10 4. On appeal before the CIT(A), the assessee submitted that the
Assessing Officer has erred in not allowing advance of Rs.2,28,41,789/-has
not been applied for educational purpose and adding it to the income of the
assessee even though the loans and advances have been made in the
ordinary course of assessee’s educational activities. The assessee has
already applied 85% of its income towards object of the trust and has
specified conditions for exemption u/s.10(23C)(vi) of the Act. The loans and
advances have not been claimed as application of income. The Assessing
Officer has failed to consider that the assessee is entitled to exemption
u/s.11 of the Act as it is registered u/s.12AA of the Act. The assessee has
applied 85% of its income in their object even in the earlier years and the
same is accepted by the income tax Department for the assessment year
2008-09 and earlier assessment years. Since the assessee has applied more
than 85% of its income, the balance income is not subject to any further
restriction as specified in the provisions of section 10(23C)(vi) and section
11(2) of the Act.
After considering the submissions of the assessee, the CIT(A) deleted
the addition.
We have heard the rival submissions, perused the orders of lower
authorities and materials available on record. In the instant case, the
assessee claimed its entire income as exempt u/s.11 & 12 of the I.T.Act,
4 IT A No.1 00/R an/2 014 Asse ssmen t Year: 2 009 -20 10 1961. The Assessing Officer assessed the total income of the assessee at
Rs.3,36,05,892/- and levied tax thereon @ 30%.
On appeal, the CIT(A) deleted the addition by observing as under:
“4.2 It is noted that the AO had made this addition on the basis that the assessee had applied loan and advance of INR Rs.2,28,41,789/- for the purpose of other than education activities. In the instant case, it is observed that as per the Gazettee of India issued on 24th January, 2005, in exercise of powers conferred by sub-section (1) read with clause (b) of the Section 35AC of the Income Tax Act, 1961 (43 of 1961) the Central Government had granted Rs.6.99 crores to the assessee concerned for F.Y. 2004-05, 2005-06 & 2006-07 for the promotion of Social & Economic Welfare. Further, it is also to be noted that Hon’ble Chief Commissioner of Income Tax, Ranchi vide 3rd Notification dated September 2009 bearing Memo 3/8th No.CIT/Ran/Tech/10(23C)-13/2008-09/4357-4410 dated September, 2009 had in exercise of the powers conferred by sub- clause (vi) of clause 23C of Section 10 of the income tax Act, 1961 read with Rule 2CA of the Income tax Rules, 1962 has granted approval to the assessee u/s 10(23C)(vi) of the Income tax Act, 1961 for the years 2009-10, 2010-11 and 2011-12 and the Hon’ble Chief Commissioner of Income tax, Ranchi vide Notification dated 27th September, 2012 vide Memo No.CCIT/Ran/Tech/10(23C/5/2011- 12/6748-68 dated 27th September, 2012 had also granted approval to the assessee u/s.10(23C)(vi) of the Income tax Act, 1961 for the F.Y. 2011-12 onwards. In the present case vide F.No.64 of 2006 dated 23.5.2007 the National Commissioner for Minority Education Institutions had issued a certificate to the assessee wherein it has been mentioned that Xavier Institute of Social Services, Purulia Road, Ranchi, Jharkhand managed by the Xavier Institute of Social Service, Ranchi exclusively is a minority education institution within the meaning of section 2(g) of the National Commissioner for Minority Education Institutions 2004. This certificate had also declared that this institution is a minority educational institution covered under Article 30 of the Constitution of India. It is also to be noted that in the assessee’s case the assessment orders for A.Ys 2008-09 & 2010- 11 were also passed u/s.143(3) of the I.T.Act, 1961, wherein, te ld A.Os have accepted the return of income of the assesse with the following observations. The assessee is trust. It had been registered under section 12A of the Act vide letter No.Tech/VII-30/12A/2003-
5 IT A No.1 00/R an/2 014 Asse ssmen t Year: 2 009 -20 10 04/1071-73 dated 15.12.2003. The assessee is a trust and exemption under section 10(23C)(vi) of the Act for the F.Y. 2009-10 was granted to the assessee on 8.9.2009 vide Memo No.CCIT/Ran/Tech/10(23C)/13/2008-09/4351-4410. It has also been accepted by both the AO during the A.Ys. 2008-09 and 2010-11 that the assessee is running a university and offers programme at bachelor’s and master’s level in management, science & technology and other allied areas and is receiving its income mainly from properties held by it, campus activity fund and interest income from fixed deposits. It is also to be noted that the appellant has applied more than 85% of its income, the balance income is not subject to the restrictions outlined in Section 11(2) of the Act and thus in the present case the provisions of section 11(3) of the Act cannot be invoked. In the instant case, it is seen that the assessee is running minority education institution and the advances given by it to staff and others are in the normal course of activities of the society and there is no enquiry made by the AO to establish that these advances have been given for purpose other than purpose of the society i.e. education. In view of these discussions and after nothing that assessee is entitled to exemption u/s.10(23C)(vi) the addition made under this head is difficult to be sustained in appeal and, therefore, this addition is directed to be deleted. Accordingly, this ground of appeal of the assessee is allowed.”
Before us, ld D.R. relied on the order of the Assessing Officer.
On the other hand, ld A.R. supported the order of the CIT(A).
We find that no specific error in the order of the CIT(A) could be
pointed out by ld D.R. No material was brought before us to show that the
approval granted to the assessee u/s.10(23C)(vi) of the Act or Section 12AA
of the Act was withdrawn by the department. In the above circumstances,
we do not find any good reason to interfere with the order of the CIT(A),
which is hereby confirmed and ground of appeal of the revenue is dismissed.
6 IT A No.1 00/R an/2 014 Asse ssmen t Year: 2 009 -20 10 11. Ground No.2 of appeal reads as under:
“That the CIT(A) is not justified in deleting the addition under the head ‘depreciation’. The CI(A) has not appreciated the fact that claiming of depreciation in case of trust is amount to double deduction, also assessee has placed no bills./vouchers for maintenance expenditure.”
The Assessing Officer observed that the assessee institute has claimed
to have added a sum of Rs.3,38,42,325/- during the financial year 2008-09.
From the accounts, it is also observed that the assessee has claimed to have
spent Rs.1,02,98,103.15 on the maintenance of building and other assets.
The assesse was asked to furnish the details and supporting evidences to
justify the amount incurred on maintenance. The assessee produced only
ledger but could not produce bills and vouchers in support of its claim. The
assessee was also requested to furnish approved plan for building and other
particulars regarding the size and cost. But as claimed by the assessee, the
documents were lost. In view of above, the Assessing Officer held that the
application of amount had not been incurred for educational purposes and,
therefore, disallowed Rs.1,02,98,103.15 and added the same to the income
of the assessee.
Before the CIT(A), ld A.R. of the assessee argued that the assessee
owns vehicles, building, staff quarters, furnitures and other assets on which
depreciation has been claimed. It has also been contended that the income
of a charitable trust as contemplated by section 11(1)(a) and Section
7 IT A No.1 00/R an/2 014 Asse ssmen t Year: 2 009 -20 10 10(23)(C) of the Act is required to be computed not in accordance with
those provisions, but in accordance with the normal rules of accountancy
where depreciation is always taken into account for finding out the real
income. It has also been contended that the amount of depreciation debited
to the accounts of the charitable institution has to be deducted to arrive at
the income available for application to charitable and religious purposes.
The ld CIT(A) called for a remand report from the Assessing Officer.
Ld CIT(A) noted that Hon’ble Gujarat High Court in the case of CIT Vs. Sheth
Manilal R.amchordas Vish.ram Bhawan Trust 198 ITR 598 has held that the
amount of depreciation debited to the accounts of a charitable trust has to
be deducted to arrive at the income available for application to charitable
and religious purposes. The CIT(A) observed that the books of accounts of
assessee were duly audited and assessee is running educational institution
and had spent money under the head of maintenance of buildings and other
assets to the tune of Rs.1,02,98,103/-. This expenditure includes
expenditure for maintenance of assets such as vehicle and buildings etc and
depreciation of R.s.63,47,874/-. All these expenses have been incurred for
the assessee's activities as educational society and there is no enquiry to
establish that these expenses were incurred for any other purpose.
Considering the above, the CIT(A) deleted the addition made by the
Assessing Officer.
8 IT A No.1 00/R an/2 014 Asse ssmen t Year: 2 009 -20 10 15. Before us, ld D.R. relied on the order of the Assessing Officer
Ld A.R. supported the order of the CIT(A).
We find that no specific error in the order of the CIT(A) could be
pointed out by ld D.R. No contrary decisions of Hon’ble High Courts or
Hon’ble Supreme Court were placed by ld D.R. to take different view than
the view taken by the CIT(A). Hence, we find no good reason to interfere
with the order of the CIT(A), which is hereby confirmed and Ground No.2 of
appeal of the revenue is dismissed.
Ground No.3 of appeal reads as under:
“That the CIT(A) is not justified in deleting the addition under the head ‘advance payment to Shri Durlabh Mahto’ to the tune of Rs.4,66,000/-. The CIT(A) failed to appreciate the fact that advance payment to Shri Durlabh Mahto cannot be treated as application of income for educational purposes.
The Assessing officer observed that the assessee institute had given
Rs.4,66,000/-- to Shri Durlabh Mahto during the year under consideration.
In absence of any details filed by the assessee, the Assessing Officer treated
this amount to be spent not for the educational 'Purpose and added back to
the total income of the assessee.
On appeal before the CIT(A), ld counsel of the assessee argued that
the society has engaged Mr. Durlabh Mahto as its lawyer for assisting it with
9 IT A No.1 00/R an/2 014 Asse ssmen t Year: 2 009 -20 10 various legal matters and payment made to him by the appellant institute in
lieu of services provided by him. The counsel of the assessee has also
contended that the amount paid to Mr. Mahto is in connection with
appellant's education activities and has to be deducted to arrive at the
income available for application to charitable and religious purposes.
The CIT(A) noted that the assessee is a society running educational
institutions and it has many legal matter and for this purpose for assisting its
lawyer payment was made to Mr. Durlabh Mahto during the year under
consideration. The Assessing Officer had not established by any enquiry that
the expenditure was not incurred for the normal educational activities of the
society. He noted that in the assessee's own case the Patna Bench of the
Tribunal in ITA No.366(Pat) of 1979 for the A.Y.1977-78 had observed that
the income and expenditure shown in the income and expenditure account
related to the educational institution and the assessee neither received any
income from any other source nor any amount was spent on any other
objects of the assessee and under the above circumstances, the assessee
fulfilled the condition of Section 10(22) of the Act and the same was also
supported by the decision in 118 ITR 235. In view of the above, the CIT(A)
deleted the addition made by the Assessing Officer.
Before us, ld D.R. relied on the order of the Assessing Officer.
On the other hand, ld A.R. supported the order of the CIT(A).
10 IT A No.1 00/R an/2 014 Asse ssmen t Year: 2 009 -20 10 24. After hearing the rival submissions and perusing the orders of lower
authorities, we find that no specific error in the order of the CIT(A) could be
pointed out by ld D.R. We find that the CIT(A) has noted that the assessee
has given Rs.4,66,000/- to Shri Durlabh Mahto, who was rendering legal
assistance to the assessee. This fact is not controverted by ld D.R. by
showing any positive material before us. Hence, we find no good reason to
interfere with the order of the CIT(A) and dismiss the Ground No.3 of the
revenue.
In the result, appeal filed by the revenue is dismissed.
Order pronounced in the open court on 30 /05/2018
Sd/- sd/- (PAVAN KUMAR GADALE) (N.S Saini) JUDICIAL MEMBER ACCOUNTANT MEMBER Ranchi; Dated 30/05 /2018 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant: Asst. Commissioner of Income Tax, Circle-3, Ranchi. 2. The respondent: M/s. Xavier Institute of Social Service, Purulia Road, Ranchi 3. The CIT(A), Ranchi 4. Pr. CIT, Ranchi 5. DR, ITAT, Ranchi 6. Guard file. BY ORDER, //True Copy//
SR.PS, ITAT, CAMP AT RANCHI