POKHARNA EDUCATIONAL TRUST,PUNE vs. CIT (EXEMPTION), PUNE

Assessment Year: 2020-21 Pokharna Educational Trust, V The CIT(Exemption), C, Bora College Road, s. Pune. Near Kilbil Hospital, Shirur – 412210. Maharashtra. PAN: AACTP7712J Appellant/ Assessee Respondent / Revenue Assessee by Shri Suhas Bora – AR Revenue by Shri Amit Bobde,IRS –CIT(DR) Date of hearing 18/06/2025 Date of pronouncement 30/06/2025 आदेश/ ORDER

PER DR. DIPAK P. RIPOTE, AM:

“ 1. The Ld.CIT(Exemption) has erred in drawing the conclusion that the assessment order passed by the FAO is erroneous, without application of mind and against the interest of revenue.

5. The Ld.CIT(Exemption) erred in invoking the provisions of Section 263 of the Act without appreciating the fact that the appellant trust is eligible for exemption u/s 10(23C)(iiiad) of the Act and therefore there is no prejudice to the revenue.

6. The ld.CIT(Exemption) erred in disregarding the claim of the appellant for expenses incurred towards the objects of the trust and thereby wrongly holding that the amount of Rs.72,34,827/- should have been offered for tax without appreciating the submission made by the appellant.

7. The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal

.” Submission of ld.AR :

2. Ld.AR for the Assessee filed one factual paper book and one case law paper book. However, ld.AR has not referred any specific case from the case law paper book. 2 2.1 Ld.AR submitted that ld.CIT(E) has erred in invoking provisions of Section 263 of the Act. Ld.AR submitted that all the details were filed during the scrutiny proceedings. Ld.AR further submitted that Assessee is a Trust which runs a school, however, Assessee do not have Registration u/s.12A of the Act, for the impugned year. Ld.AR submitted that the Assessing Officer has verified the claim of expenditure made u/s.57 of the Act. Therefore, assessment order is not erroneous and prejudicial to the interest of the Revenue. Ld.AR submitted that Assessee has shown the fees collected as “Other Income” and Expenditure incurred for running school has been deducted from the said Other Income. Ld.AR submitted that Assessee has given donation of Rs.50,000/- to a Charitable Trust called “Lok Biradhari Prakalp”, which is an expenditure allowable u/s.57 of the Act. Assessee has transferred Rs.64 lakhs towards Building Fund which is appearing in Balance Sheet. All these explanations were provided during assessment proceedings. Assessing Officer had verified all these facts and passed an assessment order accepting returned income. The relevant paragraph of the written submission filed by ld.AR is reproduced as under : 3 “4. Exemption Under Section 10(23C)(illad) Correctly Claimed

4.1. The assessce qualifies as an educational trust with receipts under Rs 1 crore. Such exemption under Section 10(23) is automatic and does not require registration under Section 12A, which is a separate requirement. (Refer Page No. 3, 27 and 38 of Paper Book) 4.2. It is further submitted that the appellant trust has duly claimed the exemption under Section 10(230)(iad) of the Income Tax Act, 1961 in the return of income filed, and the relevant particulars were appropriately disclosed therein. Therefore, the observation made by the learned PCIT in the impugned Section 263 order that the assessee only claimed the exemption during assessment proceedings and not in the return of income is factually incorrect and contrary to the record. The reliance placed by the PCIT on the decision of the Hon'ble Supreme Court in Goetze (India) Ltd. v. CIT (284 ITR 323) is also misplaced. In that case, the Hon'ble Court held that a claim not made in the return of income cannot be entertained by the AO unless a revised return is filed. However, in the present case, since the claim was made in the original return itself, the said ruling has no application whatsoever. Furthermore, Goetze (India) Ltd. does not curtail the powers of appellate or revisional authorities, and certainly not where the factual claim is already on record and considered by the AO 4.3. The AO properly analyzed whether conditions were satisfied before granting exemption. …………… 5.1. The return was filed in ITR-5 as a trust without registration. This was a procedural error, not invalidating the exemption claim. 6.1. It is most respectfully submitted that the appellant trust has not transferred any amount separately to a "Building DevelopmentFund" as erroneously assumed in the impugned order. The amount of ₹64 lakhs, which has been referred to by the learned PCIT, was in fact part of the school fees collected from students. These receipts were utilized towards the educational infrastructure, and therefore, the same have been rightly accounted for as expenditure on education, in line with the objectives of the trust. It is further submitted that the remaining income, after accounting for all such application towards educational purposes, has been correctly claimed as exempt under Section 10(23C) (iiiad) of the Act in the return of income filed by the trust. Thus, there is no misapplication of income or any diversion of funds contrary to the objects of the trust. Transfer of funds to the building fund is clearly 4 outlined in audited financials and is in furtherance of the trust's objects.” Submission of ld.DR : 3. Ld.DR for the Revenue relied on the order of the ld.CIT(E). Ld.DR specifically submitted that Assessee was not eligible to claim expenditure of Rs.64 lakhs u/s.57 of the Act, as these amounts have been merely transferred to Balance Sheet and not incurred actual expenditure. Ld.DR explained that u/s.57, only the expenditure which has been incurred for earning the Income from Other Sources is eligible for deduction. The so-called expenditure of Rs.64 lakhs was not incurred for earning the Income from Other Sources. Therefore, the Assessment Order was erroneous and prejudicial to the interest of the Revenue.

3.1 The ld.DR further submitted that the so-called donation made by the Assessee to another trust cannot be an expenditure eligible for deduction u/s.57 of the Act. Therefore, ld.CIT has rightly invoked the provisions of Section 263 of the Act.

Findings & Analysis : 4. We have heard both the parties and perused the records. In this case, Return of Income was filed by Assessee on 18.09.2020 for 5 A.Y.2020-21 in ITR-5 declaring NIL Income. The Assessee’s case was selected for scrutiny to verify deductions from income from Other Sources. The Assessing Officer issued notice u/s.143(2), 142(1) of the Act. The assessee filed submissions before the Assessing Officer. Assessing Officer passed assessment order u/s.143(3) of the Act, on 24.08.2022 accepting the returned income.

4.1 Ld.Commissioner of Income Tax(Exemptions) after studying the records of the assessee, issued notice u/s.263 of the Act. Assessee filed submissions before ld.CIT(E). The ld.CIT(E) held that assessment order was erroneous and prejudicial to the interest of the Revenue and accordingly, he set-aside the assessment order to the Assessing Officer for denovo adjudication.

5.1 In this case, it is an admitted fact that assessed had filed Return of Income on 18.09.2020 declaring total income at Rs.NIL. We have perused the Return of Income filed by the assessee. In the return of income, the assessee has shown following entries : xi Any other income (specify nature and amount) 14 1 Fees Received 8964255 2 Interest on Fixed Deposit 322182 Total 9286437 xii Total of other income (i + ii + iii + iv + v + vi + 9360082 vii + viii + ix + x + xi) 22 i. Salaries and wages 2452566 xi. Total compensation to employees (total of 22i to 2452566 22x) 23 iv. Other Insurance including factory, office, car, 6996 goods, etc. v. Total expenditure on insurance (23i + 23ii + 23iii 6996 + 23iv) 29 Advertisement 3970 43 Donation 5000 47 1 Bank Charges 2132 2 Cleaning Expenses 19520 3 Tea, Food & coffee Expenditure 20480 4 Computer Software Expenses 7000 5 Depreciation 363063 6 Office Expenses 23750 7 Newspaper expense 499 8 Sundry expense 460 9 School Building Fund Expense 6400000 Total 6837084 54 Net Profit before taxes (51 – 52iii – 53) 9466 Schedule BP –Computation of income from business or profession From business or profession other than speculative business and specified business 1 Profit before tax as per profit and loss account (item 1 9466 54, 62ii, 63ii, 64iv and 65iii & 66(iv) of Part A-P&L) 2a. Net profit or loss from speculative business included 2a 0 in 1 (enter – ve sign in case of loss ) [Sl. No.66iv of Schedule P&L] 2b. Net profit or Loss from Specified Business u/s 35AD 2b 0 7 included in 1 (enter –ve sign in case of loss)

3 Income/receipts credited to profit and loss account considered under other heads of income/chargeable u/s 115BBF/chargeable u/s 115BG a. House property 3a 0 b. Capital gains 3b 0 c. Other sources 3c 9360082 d. u/s 115BBF 3d 0 e. u/s 115BBG 3e 0 4a Profit or loss included in 1, which is referred to in 4a 0 section 44AD/44ADA/44AE/44B/44BB/44BBA /44BBB/44D/44DA/44DB/First Schedule of Income- tax Act (other than profit from life insurance business referred to in section 115B) i 44AD 4i 0 6 Balance (1-2a -2b-3a-3b-3c-3d-3e-4a-4b-4c-5d) 6 -9350616 9 Total (7a+7b+7c+7d+7e+8a+8b) 9 9350616 Schedule OS : Income from other sources Gross income charge 10135443 a Dividends Gross [(not exempt u/s 10(34) and 10(35)] 1 0 b Interest Gross 1b 1171188 bi From Saving Bank 1bi 73645 bii From Deposits 1bi 1097543 i 1e Any other income (please specify nature) 1e 8964255 1 Fees Received 8964255 3 Deduction under section 57: (other than those relating to income chargeable at special rates under 2a, 2b & 2d) a Expenses / Deductions a 10135443 b Depreciation (available only if income offered in 1c of B 0 “schedule OS”) c Total C 10135443 5.2 Thus, it can be observed that Assessee has claimed total expenses of Rs.1,01,35,443/- u/s.57 of the Act. Assessee has also shown fee receipts of Rs.89,64,255/- under the head “Any Other 8 Income”. At page no.9 of the paper book is the submission made by the Assessee before the Assessing Officer under the head “Educational Expenses”.The same is scanned and reproduced here as under :

5.3 Thus, it can be observed that Rs.64 lakhs has been claimed as expenditure under the head “Educational Expenses”. However, ld.AR has submitted that the said Rs.64 lakhs has been transferred to Balance Sheet. Therefore, the Closing Balance in the Balance Sheet under the head “School Building & Construction Fund” was Rs.94,55,920/- as on 31.03.2020(page 8 of the paper book). The Closing Balance of “School Building and Construction Fund” as on 31.03.2019 was Rs.24,36,630/-(page 42 of the paper book). 9 5.4 We have perused the submission made by the assessee, during the assessment proceedings, it is noted that no details of Rs.64 lakhs has been filed.

5.5 In the submission before the Commissioner of Income Tax (E) dated 28/01/2025 the Assessee has admitted that Building Fund Rs.64,00,000/- has been Transferred to Building Fund Account. (page 347 of Paper Book)

6.1 Though ld.AR during the proceedings before the ITAT has pleaded that assessee has claimed exemption u/s.10(23C)(iiiad) of the Act. However, we have studied the entire Return of Income filed by assessee and noted that nowhere assessee has claimed exemption u/s.10(23C)(iiiad), therefore, to that extent the pleadings were factually incorrect. Assessee had pleaded before ld.CIT(Exemption) that it has claimed exemption u/s.10(23C)(iiiad) of the Act. However, we have already mentioned that it is factually incorrect.

6.2 The Assessee has claimed expenditure of Rs.50,000/- paid to a Trust “Lok Biradhari Prakalp” u/s.57 of the Act.

6.3 Section 57 of the Act is reproduced here as under : “Deductions.

clause (c) of section 30, section 31 and sub-sections (1) and (2) of section 32 and subject to the provisions of section 38 ; (iia) in the case of income in the nature of family pension, a deduction of a sum equal to thirty-three and one-third per cent of such income or fifteen thousand rupees, whichever is less. Explanation.—For the purposes of this clause, "family pension" means a regular monthly amount payable by the employer to a person belonging to the family of an employee in the event of his death ; (iii) any other expenditure (not being in the nature of capital expenditure) laid out or expended wholly and exclusively for the purpose of making or earning such income; (iv) in the case of income of the nature referred to in clause (viii) of sub-section (2) of section 56, a deduction of a sum equal to fifty per cent of such income and no deduction shall be allowed under any other clause of this section. Following proviso shall be inserted in section 57 by the Finance Act, 2020, w.e.f. 1-4-2021 : Provided that no deduction shall be allowed from the dividend income, or income in respect of units of a Mutual Fund specified under clause (23D) of section 10 or income in respect of units from a specified company defined in the Explanation to clause (35) of section 10, other than deduction on account of interest expense, and in any previous year such deduction shall not exceed twenty per cent of the dividend income, or income in respect of such units, included in the total income for that year, without deduction under this section. Explanation.—[Omitted by the Finance Act, 1988, w.e.f. 1-4-1989.]” 6.4 As per Section 57, only the expenditure which has been wholly and exclusively incurred to earn the income “Income from Other Sources” is eligible for deduction. The amount of Rs.50,000/- paid is definitely not an Expenditure “wholly and exclusively incurred” to earn the fee receipts shown by assessee under the Head “Income from Other Sources”. The Assessing Officer has erroneously allowed the said expenditure. Therefore, the assessment order is erroneous and prejudicial to the interest of the revenue. 12

7.1 Even one more aspect needs to be considered, vide submission dated 02.12.2021 during the assessment proceedings, assessee submitted as under : “8. In respect of Donations, we submit that during the year, all the receipts received are Tuition fee Receipts from Students. There is no other donation received by the Trust.(page no.86 of the paper book).”

7.2 This above statement of the assessee is apparently incorrect, as appearing from the copies of the fee receipts submitted by the assessee. One such fee receipt is scanned and reproduced here under:

7.3 Apparently, it seems that Assessee has collected Rs.21,000/- from each student under the name “Building Fund”.Amount collected under the garb of Building Fund, over and above the tuition fee is nothing but Donation. The Assessee has not submitted these facts during the scrutiny proceedings and made a vague statement which has been reproduced by us above. This aspect has also not been verified by the Assessing Officer.

such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. Explanation 1.—For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,— (a) an order passed on or before or after the 1st day of June, 1988 by the Assessing Officer shall include— (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income-tax Officer on the basis of the directions issued by the Joint Commissioner under section 144A; (ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Principal Chief Commissioner or Chief Commissioner or Principal Director General or Director General or Principal Commissioner or Commissioner authorised by the Board in this behalf under section 120; (b) "record" shall include and shall be deemed always to have included all records relating to any proceeding under this Act available at the time of examination by the Principal 9a[Chief Commissioner or Chief Commissioner or Principal] Commissioner or Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Principal Commissioner or Commissioner under this sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal. Explanation 2.—For the purposes of this section, it is hereby declared that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the Principal 9a[Chief Commissioner or Chief Commissioner or Principal] Commissioner or Commissioner,— (a) the order is passed without making inquiries or verification which should have been made; (b) the order is passed allowing any relief without inquiring into the claim; 15

(c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or (d) the order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person. (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, National Tax Tribunal, the High Court or the Supreme Court. Explanation.—In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded. 8.1 As per Explanation-2 to Section 263 of the Act, which was introduced by Finance Act, 2015, assessment order passed without making enquiries or verifications which should have been done is erroneous and prejudicial to the interest of the revenue. Therefore, as per Explanation-2 to Section 263 of the Act, once the Commissioner of Income Tax arrives at a reasoned conclusion that Assessing Officer has not made the enquiries which should have been made, then he is right in invoking Section 263 as the assessment order becomes erroneous and prejudicial to the interest of the revenue.

10.1 Accordingly, for all the reasons discussed above in earlier paragraphs, the order u/s.263 is upheld.

11 Though there are six grounds of appeal raised by the assessee, all the grounds of appeal pertain to order u/s.263 of the Act. Therefore, all the grounds have been considered together. We have already discussed assessee’s claim for exemption u/s.10(23C)(iiiad) in earlier paragraphs.

11.1 Accordingly, all six grounds of appeal raised by the assessee are dismissed.

11.2 Ground Number 7 is general in nature, assessee has not added, amended any ground accordingly ground number 7 is dismissed.