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Facts
The assessee, a charitable trust, had its registration u/s 12A cancelled by the AO for alleged violation of Section 13(1)(c) by leasing property to specified persons without adequate rent. The AO treated the assessee as an AOP.
Held
The Tribunal held that the CIT(A) was not justified in cancelling the registration and that the assessee trust was eligible for exemption u/s 11 and 12. The Tribunal followed previous consistent decisions in the assessee's own case.
Key Issues
Whether the trust violated provisions of Section 13(1)(c) by leasing its property to specified persons, making it ineligible for exemption under Sections 11 and 12.
Sections Cited
12A, 13, 13(1)(c), 13(2)(b), 11, 12, 143(3), 143(2), 142(1), 12AB(4), 12AB(1)(ac)(i)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “A” BENCH, PUNE
Before: SHRI MANISH BORAD & MS. ASTHA CHANDRA
आदेश / ORDER
PER ASTHA CHANDRA, JM :
The above two appeals filed by the Revenue are directed against the two separate orders both dated 13.01.2025 of the Ld. Commissioner of Income Tax (Appeals), NFAC, Delhi [“CIT(A)/NFAC”] pertaining to Assessment Years (“AYs”) 2017-18 and 2018-19. Since common issues are involved, both the appeals were heard together and are being disposed of by this common order. AY 2017-18
2. Briefly stated the facts are that the assessee is a charitable trust having a valid registration u/s 12A of the Income Tax Act, 1961 (the “Act”). For AY 2017-18, it filed its original return of income on 30.09.2017 declaring total income at Rs.Nil, subsequently followed by filing of revised return on 06.03.2019 declaring Rs.Nil income. The case was selected for scrutiny under CASS. Statutory notice(s) u/s 143(2) and 142(1) of the Act along with questionnaire were accordingly issued and served upon the assessee, in response to which the assessee furnished requisite information/details. On verification thereof, the Ld. Assessing Officer (“AO”) found that the assessee is engaged in religious activities which going through the objects of the trust. Further, from perusal of financials and assessment orders of earlier years, the Ld. AO found that the assessee was following practice of giving its property on lease to specified persons u/s 13(3) of the Act. Accordingly, benefit of exemption u/s 11 and 12 was denied to the assessee in earlier AYs for violation of provisions of section 13 of the Act. The Ld. AO, therefore, issued a show cause notice seeking an explanation from the assessee as to why the benefit of exemption may not be disallowed and income may not be assessed as an AOP if violation of the provisions of section 13(1)(c)(ii) and section 13(2)(b) of the Act exists in AY 2017-18 under consideration. The assessee filed its reply to the said show cause notice and contended that the Ld. CIT(A) vide order dated 28.07.2017 for AY 2013-14 has allowed the assessee’s claim of exemption u/s 11 of the Act and therefore there is no violation of provisions of section 13 of the Act and accordingly no question of treating the assessee as an AOP arises. Further, referring to proviso to section 13(1) of the Act, the assessee submitted that the trust is created by a trust deed executed on 10.02.1930 (i.e. much prior to the enactment of Income Tax Act) and in terms of clause 2 of the trust deed, it is specifically provided that no rent is to be recovered from the trustees for the use of the properties. A copy of the trust deed was furnished. However, the above contentions of the assessee were not found to be acceptable by the Ld. AO. Relying on the second proviso to section 13(1)(c) of the Act, the Ld. AO rejected the claim of the assessee by observing as under : “4.3 Reply of the assessee is duly considered and verified. The above contention of the assessee is not acceptable in view of the fact that the findings of Ld. CIT(A) for A.Y. 2013-14 has not been accepted by the Department and department has preferred appeal before Hon'ble ITAT against the order of Hon'ble CIT(A). Further, it is seen that the second proviso to section 13(1)(c) of the Act has been overlooked by the AR of the assessee in his reply to the show cause notice and it appears that Ld. CIT(A) has also not rightly appreciated the mandate of second proviso to sec 13(1)(c) while deciding the appeal of the assessee for AY 2013-14. Second proviso to sec 13(1)(c) read as under: "Provided further that in the case of a trust for religious purposes or a religious institution (whenever created or established) or a trust for charitable purposes or a charitable institution created or established before the commencement of this Act, the provisions of sub- clause (ii) shall not apply to any use or application, whether directly or indirectly, of any part of such income or any property of the trust or institution for the benefit of any person referred to in sub-section (3) in so far as such use or application relates to any period before the 1st day of June, 1970;" 4.4 Second Proviso to sec 13(1)(c) clearly states that provision of section 13(1)(c)(ii) would not apply in case the person referred to in sub-section 3 of sec 13 has used such property for any period before first day of June 1970. Therefore, w.e.f. 01-06-1970, use of any trust property directly or indirectly
for the benefit of any person referred to in sub section 3 of section 13 is clearly violative of the provisions of section 13(1)(c) (ii) of the I.T. Act, 1961. Further, as per mandate of sec 13(2)(b), if any land, building or other property of the trust or institution is/or continues to be, made available for the use of any person referred to in sub-section 3 of sec 13, for any period during the previous year without charging adequate rent or other compensation, then it can be concluded that the income of the trust shall be deemed to have been applied for the benefit of persons referred in sec 13(3) of the act. Accordingly, for the period of AY under consideration, assessee has clearly violated provisions of sec 13(1)(c) r.w.s. 13(2)(b) of the act. Due to this reasoning and clear mandate of provision of law, it can be safely concluded that the assessee trust does not qualify for the benefit of exemption granted by section 11 and 12 of the I.T. Act. 1961 as assessee trust has violated mandate of sec 13(1)(c) and hence, benefit of exemption u/s 11 & 12 for AY under consideration is hereby denied to the assessee trust and assessee is hereby assessed as an AOP for AY under consideration, due to above discussed reasons.”
2.2 He, thus concluded the assessment treating the assessee as an AOP, at assessed taxable income of Rs.16,82,92,463/- disallowing the exemption claimed u/s 11 and 12 of the Act by invoking the provisions of section 13(1)(c) of the Act vide order dated 22.12.2019 passed u/s 143(3) of the Act.
Aggrieved by such order of the Ld. AO, the assessee preferred an appeal before the Ld. CIT(A)/NFAC who allowed the appeal of the assessee by observing as under :
“5.1 I have perused the assessment order and grounds of appeal
. The impugned appeal pertains to principal issue whether the appellant is eligible for deduction u/s 11 and 12 of the IT Act since it has violated condition specified u/s 13 of the IT Act. Aggrieved by said assessment order, the appellant has filed appeal with multiple grounds of appeal which are adjudicated as under. The appellant has also filed alternate grounds of appeal if the appellant is found not being eligible for deduction u/s 11 and 12 of the IT Act. In view of the same appeal of the appellant is adjudicate as under. 5.2 Ground 1 and 2. Appellant was registered u/s 12A of the Act vide registration No. CH/P/PNA/1314/74- 75 dated 25-03-1975. The Appellant trust was created vide instrument dated 10-02-1930. The trust is registered u/s 12AA of the Income Tax Act, 1961 vide order dated 25.3.1975. According to the trust deed, the objects of the trust are as under: to give vedic and religious education to those students who believe in the value of “Varna ashram” to make the students performs rituals pooja of lord Mukund and celebrate all festivals during the year for their ethical and religious development and also to keep them in pure behaviour. to provide food , medicines , books and clothing etc. to poor students or to provide them monthly scholarships. to provide the students with adequate physical training and business education to open a library for the aforesaid students , to collect religious , cultural and ethical books for the library and also to buy daily , weekly and monthly magazines of the similar topics. note :- the aforesaid four clauses be made available primarily to the Marwari brahmins and ari community and then to any other brahmins and vaishya. to facilitate the scholars of vedic and religious and also invite them for lectures/ educational seminars of the aforesaid themes for the students community During the course of assessment proceedings, on perusal of financials and assessment orders of earlier years, it was found that Ld. AO observed that appellant was following practice of the giving its property (3 Shops) on lease to specified persons u/s 13(3) of the act. Accordingly, benefit of exemptions u/s 11 & 12 was denied to the appellant in earlier AYs for violation of provisions of section 13 of the act. The same practice continued during the year under consideration as well thus the exemptions u/s 11 & 12 was denied and the appellant was assessed as AOP. The impugned issue of eligibility of exemption u/s 11 and 12 is a legacy issue in case of the appellant since AY 2010-11. In past years all the appellate authorize had granted relief to appellant. The impugned litigation had travelled to Hon’ble High Court as well wherein Hon’ble Bombay High court had held that no substantial question of law arises for adjudication and accordingly revenue’s appeal was dismissed vide order dated 5th AUGUST, 2022. Thus, the litigation has reached its finality and the findings giving by Hon’ble ITAT in appellant’s case hold good. For AY 2010-11 and AY 2011-12, before Hon’ble ITAT it was contested that trust was established way back in the year 1930. The clause 2 of the trust deed categorically states that the trustees and their legal heirs are eligible to enjoy the property without paying rent. the proviso to section 13(1)(c)(ii) mandates that where the trust is created or established before the commencement of Act, the provisions of clause (2) shall not apply, if it has been specifically mentioned in the trust deed regarding use of any part of property of trust by any trustee or his legal heir. In the present case, the trust has given shops either directly or indirectly on concessional rent to Shri Purushottam Lohiya, one of the trustees of the trust. Since, the shops have been given on rent to Shri Purushottam Lohiya in accordance with the terms and conditions of trust deed, there is no violation of provisions of section 13(1)(c)(ii), in view of proviso to said section. Hon’ble Pune ITAT in appellant’s own case vide orders dated 28-06-2017 for appeal number and at para 7 to 10 has held that “… A perusal of the trust deed shows that the trust was created in the year 1930 i.e. much prior to the enactment of Income Tax Act, 1962. Thus, the first condition to fall within the scope of proviso to section 13(1)(c)(ii) of the Act is satisfied. As regards second condition i.e. the benefit to be granted to the assessee or the person referred to in sub-section (3) in application or uses of the property or income of trust is concerned, the use or application of the property should be in compliance of the mandatory terms of the trust. From perusal of English translation of the Trust Deed it appears that the trustees were in possession of the residential part of the property on second floor. As per the assertions of ld. AR, the legal heirs of the author of the trust were in possession of part of property on ground floor as well. Admittedly, there is a clear mandate in the trust deed that part of the property which is in possession of author of the trust shall be for the sole purpose of occupancy by the author of the trust or his legal heirs. The part of the property which is subject matter of dispute are 3 shops on ground floor of the building.
From the perusal of English translation of Trust Deed the details of the property in possession of the author of the trust at the time of execution of Trust Deed is not discernible. Under such circumstances, we are of considered opinion that this issue needs a re-visit to the Assessing Officer. Representative of both the sides concur on the point that the part of property referred to in the Trust Deed has to be clearly identified. The Assessing Officer is directed to ascertain the part of property which was in the possession of author of the trust at the time of execution of the trust in the year 1930, qua which mandate has been given for the exclusive use by the author of the trust and his legal heirs. In case the shops under question are part of the property which was in possession of the author of the trust deed at the time of execution, then the assessee clearly falls within the exception as mentioned in proviso to section 13(1)(c)(ii) of the Act. In view of the above, the Ld. AO was directed to ascertain whether the alleged shops were part of same property which was in possession of the author of the trust deed at the time of execution or not. In response to the ITAT directions, the Ld. AO vide order 23-03-2021 has given finding at para 6 stating that alleged shops are part of ground floor of Survey No 1158 and the Trust deed do not describe such shops. Therefore, the Ld. AO held that these shops are not part of same property. In this regard, the appellant had submitted that the alleged property being transferred to Trust in 1930, had undergone restructuring in year 1987 and Survey number 1158 of land was also re-numbered by municipal corporation as Survey Number 1105A/ B. In this regard, the appellant filed copy of resolution dated 24.02.1987 along with copy of Old building plan of property and New property as well. In terms of the said restricting arrangement, the trustees were offered the use of 3 shops on the ground floor ad mg. 1207 sq. ft. as against an area of 6284 sq. ft. occupied by them in the old structure as shown in the plans attached. On perusal of both plans it is evident that over all old structure was re-build by the Trust. Therefore, Ld. AO’s mapping the presence of Shops in Old Trust deed which was written in 1930 and actual existence in year 2021 are not correct way. The appellant had filed a letter dated 21.03.2018 which was filed before Jt. Commissioner of Income during proceedings pertaining to giving effect to directions of Hon’ble ITAT, wherein the appellant had stated that Income Tax Inspector deputed by Ld. AO has also visited the premises today i.e. 21.03.18 and had verified the occupation of the property. But the Ld. AO has not given any reference of said visit to premises or finding of Inspector in the assessment order dated 23-03-2021. On the contrary, the Ld. AO has given finding merely on old Trust deed which was written in 1930. The Appellant had also filed copies of resolution for re-rebuilding the structure, old and new plan of property before Ld. AO but the Ld. AO has proceeded to adjudicate the matter academically which is not in sprit of directions given by Hon’ble ITAT. Having regard, to documentation filed by the appellant it is evident that the survey number 1105A/ B (being old survey 1158) very well comprises the shops rented out to trustee. In respect to survey number 1105A/B the appellant had also filed copies of municipal tax receipts which appears to be in name of the appellant trust only. Thus, the finding of Ld. AO is held to be incorrect. The alleged Shops are very well part of the same property in substance though the form might have changed. In view of the above, I am of the considerate opinion that the appellant is not found to be in breach of second condition as contested by Hon’ble ITAT “i.e. the benefit to be granted to the assesee or the person referred to in sub- section (3) in application or uses of the property or income of trust is concerned, the use or application of the property should be in compliance of the mandatory terms of the trust.” On perusal of Trust deed, it observed that the trustee was entitled to use the alleged property as per trust deed without payment of any rental but despite that the appellant has paid certain rental to appellant. Thus there is no benefit being flown to the person specified u/s 13 as alleged by the Ld. AO. Therefore, the disallowance u/s 11 and 12 as carried out by the Ld. AO is found to be incorrect and the appellant is eligible to be assessed as Trust and not as AOP. Accordingly, Ground 1 and 2 of the appeal are allowed.
Dissatisfied, the Revenue is in appeal before the Tribunal raising the following grounds of appeal:-
“1. On the facts and circumstances of the case, the Ld. CIT(A) has erred in allowing the exemption u/s 11 and 12 of the Income-tax Act, 1961, despite the assessee trust violating provisions of sections 13(1)(c) by leasing its property to specified persons and restricting benefits to particular caste, thereby rendering it ineligible for exemption.
On the facts and circumstances of the case, the Ld. CIT(A) has erred in holding that the terms of the trust deed permit leasing of the property of the trust to specified persons as part of a municipal restructured arrangement. Additionally, the Ld. CIT(A), has failed to appreciate the fact that, the trust deed explicitly allowed benefits to trustees and their heirs, which constitutes a direct violation of Section 13(1)(c), of the Act.
3. On the facts and circumstances of the case, the Ld. CIT(A), has erred by not considering the fact that, the Ld. CIT(Exemptions), Pune had cancelled the assessee's registration u/s. 12AB(4) of the Act vide order dated 30.06.2024. The cancellation of registration clearly establishes that the trust did not qualify as a public charitable trust.
4. The appellant craves leave to add, alter or amend any or all the grounds of appeal.”
The Ld. DR relied on the order of Ld. AO.
At the outset, the Ld. AR submitted that the impugned issue is covered in favour of the assessee by the decision of the Co-ordinate Bench of the Tribunal in assessee’s own case, Shri Mukund Bhavan Trust Vs. CIT (Exemption) in dated 29.04.2025 and in the case of Shri Mukund Bhavan Trust Vs. DCIT in for AY 2010-11, dated 28.06.2017, which has been upheld by the Hon'ble Bombay High Court, ITA No. 683 of 2018 vide order dated 05.08.2022. The Ld. CIT(A) has duly taken cognizance of the same while adjudicating the impugned issue. A copy of the said orders were placed on record.
We have heard the Ld. Representatives of the parties and perused the material on record as well as the paper book filed by the Ld. AR on behalf of the assessee. The facts of the case are not in dispute. Admittedly there is no change in the factual matrix of the case in the present AY viz-a- viz the earlier AYs. We have perused the order of the Co-ordinate Bench of the Pune Tribunal in assessee’s own case in (supra) and find that ground Nos. 1 and 3 raised by the Revenue are covered in favour of the assessee by the said decision. Undisputedly, the assessee is a charitable trust duly registered u/s 12A of the Act. The Ld. AO completed the assessment u/s 143(3) denying the exemption claimed u/s 11 and 12 of the Act by invoking the provisions of section 13(1)(c) of the Act and treated the assessee as an AOP. On appeal, the Ld. CIT(A) allowed the claim of the assessee for the reasons reproduced in the preceding paragraphs. It has been brought to our attention that the Ld. CIT(Exemption) vide his order dated 30.06.2024 passed u/s 12AB(4) of the Act cancelled the registration u/s 12A against which the assessee filed an appeal before the Co-ordinate Bench of the Pune Tribunal in (supra). It is on account of this order of cancellation of registration that the Revenue has preferred the present appeal. We find that the Co-ordinate Bench of the Pune Tribunal vide order dated 29.04.2025 in ITA No. 1552/PUN/2024 (supra) decided the impugned issue pertaining to the cancellation of the registration by the Ld. CIT(Exemption) in favour of the assessee. The Tribunal in the said decision has held that the Ld. CIT(Exemption) was not justified in cancelling the registration u/s 12A and 12AB(1)(ac)(i) of the Act and has set aside the cancellation order and directed the Ld. CIT(Exemption) to grant registration to the assessee. The relevant extract of the said order of the Tribunal (supra) are as under : “28. We find some force in the above arguments of the Ld. Counsel for the assessee. The first issue i.e. the assessee was established for a particular caste i.e. Marwari Brahmin and Maheshwari Vaishyas who had belief in Hindu Varnashram, as such the assessee trust is in direct violation of the provisions of section 13(1) of the Income Tax Act, 1961 considered to be a violation of clause (e) of section 12AB(4) is concerned, we find it is an admitted fact that the trust came into being in the year 1930 and was granted approval on 25.08.1975 and again on 24.09.2021. We find the provisions of section 13(1)(b) of the Act read as under: “13(1)… (b) in the case of a trust for charitable purposes or a charitable institution created or established after the commencement of this Act, any income thereof if the trust or institution is created or established for the benefit of any particular religious community or caste”
A perusal of the same would show that the provisions of section 11 not to apply in certain cases if such trust has been created or established before the commencement of this Act to any income thereof, if the trust or institution is created or established for the benefit of any particular religious community or caste. Since in the instant case the trust was already created in the year 1930 i.e. much prior to the Income Tax Act, 1961, therefore, the Ld. CIT(E) in our opinion was not justified in holding that the assessee has violated the provisions of section 13(1)(b) of the Act. Further, it is also an admitted fact that the trust was granted registration by the Commissioner u/s 12A of the Act on 25.08.1975 and u/s 12AB(1)(ac)(i) of the Act on 24.09.2021. The trust is also regularly assessed to tax with most of the years being assessed u/s 143(3) and nowhere the activities of the trust have been treated as non- genuine. Therefore, following the rule of consistency even in tax proceedings would demand that if there are no changes of facts as compared to earlier years, a different view cannot be taken. In our opinion, adopting a different view inconsistent to the one taken in earlier years on the same set of facts would be merely a change of opinion, especially when a particular view has been taken right since inception to date spanning several years. For the above proposition, we rely on the decision of Hon'ble Supreme Court in the case of Radhasoami Satsang vs. CIT (1992) 193 ITR 321 (SC) wherein the Hon'ble Supreme Court has observed as under: “16. We are aware of the fact that strictly speaking res judicata does not apply to Income tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in subsequent year". ….. Parties are not permitted to begin fresh litigation because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted and there is abundant authority reiterating that principle. Thirdly, the same principle, namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the Judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken.”
We find the Hon'ble Supreme Court in Parashuram Pottery Works Ltd. v. ITO [1977] 106 ITR (SC) has held as under: “We are aware of the fact that strictly speaking res judicata does not apply to income-tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year. "On these reasonings in the absence of any material change justifying the Revenue to take a different view of the matter and if there was no change it was in support of the assessee we do not think the question should have been reopened and contrary to what had been decided by the Commissioner of Income Tax in the earlier proceedings, a different and contradictory stand should have been taken".
We find the Hon'ble Supreme Court in the case of Excel Industries Ltd reported in 358 ITR 295 (SC) has observed that "the Revenue cannot be allowed to flip-flop on the issue and it ought let the matter rest rather than spend the tax payers' money in pursuing litigation for the sake of it.”
In view of the above discussion, we hold that the Ld. CIT(E) is not justified in cancelling the registration on the ground that the trust is created for a particular community.”
We further find that ground No. 2 is also covered by the decision of the Co-ordinate Bench the Pune Tribunal in assessee’s own case for AY 2010-11 vide order dated 28.06.2017 in which has been duly considered by the Ld. CIT(A) in his appellate order, the relevant portion of which is extracted above in para 3 of this order. On further appeal, the Hon'ble Bombay High Court has dismissed the appeal of the Revenue in of 2018 holding that no substantial question of law arises as the issue is covered by the judgement of Hon'ble High Court in the case of CIT(E), Pune Vs. Audyogik Shikshan Mandal (2019) 101 taxmann.com 247.
It would thus be seen that the Ld. CIT(A) has given cogent reasons with facts available on the records and legal backing to negate the observations and findings of the Ld. AO. The issue involved in the present appeal is no longer re-integra. Identical facts were examined in the past year as well and the judicial consensus is that the assessee is eligible to be assessed as trust and consequently claim of exemption u/s 11 and 12 of the Act. In this view of the matter and respectfully following the decisions (supra) and in the absence of any contrary material brought on record by the Revenue so as to enable us to take a different view, we do not find any substance in the appeal of the Revenue which we hereby reject. The grounds of appeal raised by the Revenue are accordingly dismissed.
In the result, the appeal of the Revenue is dismissed.
ITA No. 827/PUN/2025, AY 2018-19
Both the sides are unanimous in stating that the facts and the grounds of appeal in for AY 2018-19 is identical to the grounds raised in for AY 2017-18 except for the variance in amount. Thus, in view of the fact that the issue raised in both the appeals are identical and are arising from same set of facts without any change thereof, the finding given by us while adjudicating the appeal in would mutatis mutandis apply to the appeal in ITA No. 827/PUN/2025 as well. Accordingly, the grounds of appeal raised by the Revenue in ITA No. 827/PUN/2025 are hereby dismissed in the same terms.
To sum up, both the appeals of the Revenue for AY 2017-18 and 2018-19 (ITA Nos. 829 & 827/PUN/2025) are dismissed.
Order pronounced in the open court on 08th October, 2025.