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Before: Shri H. S. SIDHU & Shri L.P. SAHU
ORDER Per L.P. Sahu, A.M.: This is an appeal filed by the assessee against the order of ld. CIT(A), Muzaffarnagar dated 26.02.2015 for the assessment year 2010-11 on the following grounds : 1. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in taking the assessed income at NIL from charitable activity as against the claimed of the appellant at (-) Rs.2,30,77,383/-.
2. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in taking income from charitable activity at NIL as against Ld. AO’s own action in treating the application at Rs. 16,67,85,363/- and thus Ld. AO ought to have ITA No. 2774/Del./2015 2
computed the income from charitable activity at (-) Rs.3,06,53,738/- (Rs. 16,67,85,363 - Rs.13,61,31,625).
That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in not allowing the depreciation Rs.2,33,30,470/- on the ground that investment in capital assets has been treated as capital application.
4. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in taking the hostel activities/ transport activities as business and has thus erred in computing the income at Rs.68.83,597/- and hence further erred in not setting it off against the excess application from charitable activities.
5. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in holding the surplus amount hostel and transportation would be chargeable as business u/s 11(4A).
6. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in not treating the hostel expenses as applicable for charitable purpose.
7. That having regard to the facts and circumstances of the case,' Ld. CIT(A) has erred in law and on facts in not reversing the action of Ld. AO in charging interest u/s 234B, 234C and 234D of the Income Tax Act, 1961.
8. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other.
2. The brief facts of the case are that the assessee society is running college named and offering different courses such as B. Tech, BSc ( Biotech), BBA, BCA, B.Ed & MBA etc and providing Hostel facilities to the students. It is registered with Registrar of societies as well as under section 12AA of the IT Act. Assessee filed its return of income declaring nil income. The case was selected for scrutiny. In the assessment proceedings the Assessing Officer noticed that ITA No. 2774/Del./2015 3 assessee, in addition to educational activities, also provide hostel facility to the students in its college. After seeking the explanation of the assessee, the Ld. AO was of the view that generating of surplus on account of hostel running or any other activity falls under business category, which is incidental to the business. Therefore according to him the hostel running itself is not an educational activity and can at the most be said to be incidental to the object of the trust. Therefore, according to him the provisions of sub-section (4A) of section 11 would come into play to deal with these activities. He further held that educational activity and hostel activities are separable, for which separate books of accounts need to be maintained. The total hostel receipts during the year were of Rs. 1,44,66,375/- and some expenses were attributable to the hostel expenses which was ranging from 25.72% to 40.30%. After, relying on various decisions and examining the income and expenditure account of hostel receipts and expenses, the AO determined the net surplus of the hostel activities at Rs. 68,83,597/- and charged it to tax as business income of the assessee.
3. It was further observed by the Assessing Officer that the assessee trust has claimed a depreciation of Rs. 2,33,30,470/– , which was disallowed by him on the premise that hundred percent application of capital expenditure has already been allowed to the assessee in the year of investment and now the claim of the depreciation on the same assets again amounts to double deduction. He, therefore, following the decision of the Hon’ble Supreme Court in case of escorts Ltd and Kerala High Court decision in case of Lessi Medical Institutions. Versus CIT, disallowed the depreciation of Rs. 2,33,30,470/–. Accordingly, total taxable income of the assessee was determined at Rs. 68,83,600/-. This order of assessment was challenged before the ld. CIT(A), where the first appellate authority, after considering the submissions of the assessee and various
ITA No. 2774/Del./2015 4 decisions, dismissed the appeal of the assessee. Aggrieved, the assessee is in appeal before the Tribunal.
The ground No. 01 & 02 was not pressed by the asseseee. Ground No. 7 is consequential and ground No. 8 us general in nature. Therefore, these grounds do not require any specific adjudication.
On ground Nos. 3, 4, 5 & 6, assailing the impugned order, the ld. AR submitted that both the issues pertaining to hostel expenses and depreciation are squarely covered by the decision of co-ordinate Bench in the case of Kanha Charitable Trust vs. Addl. CIT (ITA No. 3297 & 5987/Del/2015 – A.Yrs. 2010-11 and 2011-12) dated 24.11.2017, wherein the Tribunal after considering various decisions, has decided the identical issues in favour of the assessee. The ld. AR has also relied on the following decision :
(i). CIT vs. Rajasthan and Gujrati Charitable foundation, Pune (civil appeal No. 7186/2014 – dated 13.12.2017)(SC). (ii). Krishna Charitable Society vs. Addl. CIT (ITA No. 4639/Del/2015 – dated 15.09.2017- ITAT Delhi) (iii). M/s. Lajpat Rai Educational Society vs. ACIT (ITA No. 3437/2015 – dated 23.05.2017)(ITAT Delhi) (iv). Friends Charitable Society vs. Addl. CIT (ITA No. 4640/2015 – dated 15.02.2017)(ITAT Delhi) (v). Institute of Management Education vs. JCIT (ITA No. 3422/Del/2015 – dated 10.02.2017) (vi). Raman Educational Society vs. ACIT (ITA No. 4641/Del/2015 – dated 15.02.2017) (vii). M/s. Suraj Mal Memorial Education Society vs. CIT (E) (ITA No. 2136/Del/2016 – dated 30.05.2016) (viii). ITO (E) vs. Suvasini Charitable Trust (ITA No. 4330/Del/2012 – dated 17.03.2016) (ix). DDIT (E) vs. The Young Womens Christian Association of India (ITA No. 2408/Del/2013 – dated 29.02.2016)
ITA No. 2774/Del./2015 5 (x). Hiranandani Foundation vs. ADIT(E) (ITA No. 560/Mum/2016 – dated 27.05.2016) (xi). DIT(E) vs. M/s. Lala Lajpatrai Memorial (ITA No. 2307/2013 – dated 15.10.2014)(Bom) (xii). CIT vs. Karnataka Lingayat Education Society (ITA No. 5004/2012 dated 15.10.2014)(Kar) (xiii) ACIT(E) vs. Dawat-e-Hadiyah (ITA No. 3421/Mum/2015 dated 30.07.2015) (xiv). DIT(E) vs. M/s. Indraprastha Cancer Society (ITA No. 240/2014 – dated 18.11.2014)(Del) (xv). Unity Hospital (P) Ltd. vs. State of Kerala (WA No.1648/2009 – dated 21.12.2010 (Ker). (xvi). DDIT(E) vs. Willingdon Charitable Trust (2007) 107 ITD 493 (ITAT Chennai) (xvii) Anjuman-E-Khyrkhah-E-AAM vs. DIT (E) (2012) 49 SOT 242 (ITAT Chennai) (xviii).Society for Advance Health Education vs. CIT (2013) 145 ITD 257 – ITAT, Agra) (xix). CIT & Anr. Vs. Children’s Education society (2013) 358 ITR 373 (Kar. HC) (xx). Delhi Public School Ghaziabad vs. ACIT (ITA No. 3593/Del/2015 – dated 08.05.2018.
The ld. DR, on the other hand, opposing the contention of assessee, relied on the orders of the authorities below.
Having considered the rival submissions and gone through the entire material on record, we find that the issues and additions involved in this appeal are squarely covered in favour of the assessee by the decision of Co-ordinate Bench in the case of Kanha Charitable Trust (supra)for A.Y. 2010-11 and 2011- 12, where in the Tribunal has decided the identical issues in favour of the assessee in similar set of facts and relying on various decisions as under :
“12. We have carefully considered the rival contentions and perused the orders of the lower authorities. With respect to the hostel facilities provided by the assessee society we have decided the identical issue in case of Krishna Charitable Society Vs. Addl CIT, Range- 1, Ghaziabad in for Assessment Year 2011-12 dated 15.09.2017 as under:- “11. We have carefully considered the rival contentions and perused the orders of the lower authorities and other judicial pronouncement placed before us. In the grounds No. 1 – 3 assessee is contesting that addition made by the Ld. assessing
ITA No. 2774/Del./2015 6 officer treating hostel places provided to college student as business of the society and tax the alleged surplus of Rs. 9887873/– as business income of the appellant. It was not the case of the revenue that assessee has rented out these hostels to the students who are not parted education in the above institutes. It was also not the case of revenue that assessee is primarily engaged in the business of providing hostel facilities to the students. The above issue is no more res Integra in view of the decision of the Hon‟ble Karnataka High Court in CIT versus Karnataka Lingayat education society in dated 15/10/2014 wherein it has been held that providing hostel to the students/staff working for the society‟s incidental to achieve the object of providing education, namely the object of the society. In view of this we are of the opinion that providing of hostel facilities and transport facilities to the student and staff member of the educational Institute cannot be considered as business activity but is subservient to the object of educational activities performed by the society. We are also supported by our view by the decision of the Hon‟ble Allahabad High Court in IIT versus state of UP, (1976) 38 STC 428 (All) wherein question arose in Indian Institute of Technology v. State of U.P. (1976) 38 STC 428 (All) with respect to the visitors' hostel maintained by the Indian Institute of Technology where lodging and boarding facilities were provided to persons who would come to the Institute in connection with education and the academic activities of the Institute. It was observed that the statutory obligation of maintenance of the hostel, which involved supply, and sale of food was an integral part of the objects of the Institute nor could the running of the hostel be treated as the principal activity of the Institute. The Institute could not be held to be doing business. Further meals being supplied in a hostel to the scholars, visitors, guest faculty etc. can not be exigible to sales tax where main activity is academics as held in Scholars home Senior Secondary School 42 VST 530. Further, the reliance placed by the lower authorities on the decision of the Hon‟ble Madras High Court in case of DCIT versus Wellington charitable trust is also misplaced because in that case, the only activity of that particular trust was renting out of the property and not education. We are also not averse to considering the latest legal developments too where in the recently introduced new legislation of Goods and service tax it is provided that no GST would be chargeable on the hostel fees etc recovered from the Students , faculties and other staff for lodging and boarding as they are engaged in education activities . Therefore we reverse the finding of the lower authorities and held that transport and hostel facilities surplus cannot be considered as business income of the assessee society which is mainly engaged in business activities and these activities are subservient to the main object of education of the trust. In the result Ground No. 1 – 3 of the appeal of the assessee are allowed.”
The facts and circumstances of the case is identical to the facts before us. The ld DR could not submit a single incident where the hostel facilities and transport facilities were provided to anybody other than students and staff of the trust. In view of this, we reverse the finding of the lower authorities and held that transport and hostel facilities are part of the “educational activities” of the assessee and they cannot be considered different then activities of the society of “education”. The hostel and transport facilities is incidental to achieve the object of providing education as per object of the trust. In view of this ground No. 1 to 3 of the appeal are allowed.
ITA No. 2774/Del./2015 7
Ground No. 4 of the appeal is with respect to the depreciation which is covered in favour of the assessee by decision of Hon'ble Delhi High Court in DDIT Vs. Indraprastha Cancer Society dated 18.11.2014. Therefore, respectfully following the decision of the Hon'ble Delhi High Court where the decision of the Hon'ble Supreme Court relied upon by the ld Assessing Officer are considered, ground No. 4 is allowed directing the Assessing Officer to delete the disallowance of depreciation of Rs. 18991092/-.”
There being no change in the facts and circumstances and no contrary material on record, respectfully following the decision of Co-ordinate Bench of Tribunal, we decide these issues in favour of the assessee. The case of assessee further stands supported by the decision of Hon’ble Supreme Court in CIT vs. Rajasthani and Gujrati Charitable Foundation, Poona (Civil Appeal No. 7186 of 2014) relied by assessee (copy placed on record). Accordingly, the additions made by the ld. Authorities below deserve to be deleted and the appeal of the assessee to be allowed.
In the result, the appeal is allowed.
Order pronounced in the open court on 29th October, 2018.