THE ACIT, 2(1), UJJAIN vs. M/S. UJJAIN SHIKSHAN SHODH SAMITI, UJJAIN

आदेश /O R D E R PER SHRI C.M. GARG, JM

This appeal has been filed by the Revenue against the order of

the learned CIT(A), Ujjain, dated 30.10.2014 in First Appeal No. U-

551/2011-12 for the assessment years 2009-10.

except main ground nos. 1 and 2 other grounds are argumentative

and supportive to the main substantial grounds which read as

follows :-

“On the facts and in the circumstances of the case, ld. CIT(A)

erred in – (i) Deleting the addition of Rs. 40 lacs being donations received. (ii) Holding that the donation of Rs. 40 lacs constituted corpus donation and hence was not income u/s 2(24)(iia).

We have heard the arguments of both the sides and 3.

carefully considered the relevant material placed on record

of the Tribunal, inter alia, impugned assessment order,

first appellate order and decisions relied upon and cited at

bar during the course of arguments.

Officer submitted that since the assessee has not included

the donation received of Rs. 40 lacs during the period,

under consideration, as income in the income and

expenditure account, nor it was shown in the computation

of income, which constitutes income of the assessee.

Therefore, the Assessing Officer was right and justified in

making the addition. The learned DR further submitted

that since the assessee institution is not registered u/s 12A

of the Act, therefore, provisions of sections 11 and 12 of the

does not apply to the society. The learned DR vehemently

contended that section 2(24)(iia) of the Act mandates that

income includes any voluntary contribution received by the

institution like the present assessee, therefore, the addition

made by the Assessing Officer may kindly be restored as

the Commissioner of Income Tax (Appeals) has granted

relief to the assessee without any basis and justified

reasoning.

assessee strongly supported the first appellate order and

submitted that as per the decision of the ITAT, Indore

Bench, dated 16.2.006 in the case of ITO vs. Narmidiya

Brahmin Samaj; ITA Nos. 925 to 928/Ind/05, the donation

received towards corpus is not income chargeable to tax

even if the trust is not registered u/s 12A of the Act. The

learned counsel for the assessee further submitted that as

per the provisions of section 2(24)(iia) of the Act, while

taking such a view in the matter, the aforesaid section was

amended subsequently and both the amended provisions

have been taken into consideration by the Tribunal. The

learned counsel for the assessee lastly submitted that from

the order of ITAT, Indore Bench (supra), it is clear that

voluntary contribution received by the trust or institution

is income subject to exception i.e. contribution received

towards corpus which is not taxable even if the assessee

does not have registration u/s 12A of the Act. Therefore,

the order of the Commissioner of Income Tax (Appeals) may

kindly be upheld by dismissing the appeal of the revenue.

submissions, from the relevant part of the first appellate

order we observe that the Commissioner of Income Tax

(Appeals) has granted relief to the assessee with the

following observations :-

“The appellant has received corpus fund donation of

Rs.40,00,000/- from various persons during the year

under consideration. The corpus funds are generally

made out of corpus donation. A donation will be treated

as a corpus donation only if it is accompanied by a

specific written direction of the donor. In the absence of

the any written direction of the donor a contribution or

grant cannot be transferred to corpus fund. In the

appellant’s case the donor’s have given the donation for

building construction. Since the donation for building 5

construction is donation for specific purpose, hence, the

same cannot be treated as a part of income.

Contributions made with a specific direction that they

shall form part of the purpose of the trust or institution

cannot be terms as deemed income. The appellant has

received donation for specific purpose for building

construction and the receipt to the donor mentions that

the same donation will go to the corpus fund. The

intention of the society that they are in need of fund for

construction of building & for other infrastructure

development was depicted in the appeal letter given to

them. Even on the face of the donation receipts it is

shown that this donation will go to the corpus of the

society for construction of building.

“I have also examined the term corpus fund and

corpus donation as it is being generally used with

respect to a trust. A corpus fund denotes a

permanent fund kept for the basic expenditure

needed for the administration and survival of the

organisation. The corpus fund is generally not

allowed to be utilised for the attainment of the

purposes, but the interest/dividend accrued on

such fund can be utilised as well as accumulate.

Such fund can also be used for creation of capital

asset or property of the trust from which income

can be generated. Corpus fund are generally

created out of corpus donation. A donation will be

treated as corpus donation only if it is

accompanied by a specific written direction of the

donor. In the absence of any written direction of the

donor, a contribution of grant cannot be transferred

to corpus fund. In the present case, the donors has

very categorically in their receipts, while providing

the money to the appellant trust, has mentioned

the amount of Rs. 40,00,000/- as corpus donation

and such amount has been used by the trust for

building construction. Therefore, the amount of

Rs.40,00,000/- shown by the appellant trust has

been found to be in the nature of corpus donation.

Now the question arises whether such corpus

donation is taxable as income or not even in the

case in which the trust is not registered under

section 12AA because for those trusts which are

registered under section 12AA, exemption to corpus

donation has been provided as per provision of

section 11(1)(d). For such trust to which registration

under section 12AA has not been provided, its

taxability is required to be decided with reference

to the scheme of the Act as held in the decision of

Pentafour Software Employees Welfare Foundation

v. Asstt. CIT (supra). In the case of Pentafour

Software Employees Welfare Foundation vs. Asstt.

CIT, it has been held that corpus donation being in

the nature of capital receipt is not chargeable to

income tax.

I have also come across another decision of

the Hon'ble Income Tax Appellate Tribunal, Kolkata

in the case of Shri Shankar Bhagwan Estate vs.

ITO (1997) 61 ITD 196 (Cal) in which the taxability

of corpus donation has been examined in the light

of section 12 read section 2(24)(iia) of the Income

tax Act and in this decision, it has been held as

under :-

“So far as section 2(24)(iia) is concerned, this

section has to be read in the context of the

introduction of the present section 12 it is

significant that section 2(24)(iia) was inserted with

effect from April 1, 1973 simultaneously with the 9

present section 12, both of which were introduced

from the said date by the Finance Act, 1972.

Section 12 makes it clear by the words appearing

in parenthesis that contributions made with a

specific direction that they shall form part of the

corpus of the trust or institution shall not be

considered as income of the trust. The Board’s

Circular No. 108 dated March 20, 1973 is extracted

at page 1277 of Volume I of Sampath Iyengar’s

Law of Income-tax, 9th edn. In which the inter-

relation between section 12 and section 2(24) has

been brought out. Gifts made with clear directions

that they shall form part of the corpus of the

religious endowment can never be considered as

income. In the case of R.B. Shreeram Religious &

Charitable Trust vs. CIT (1988) 172 ITR 373 (SC) it

was held by the Bombay High Court that even

ignoring the amendment to section 12, which

means that even before the word appearing to

parenthesis in the present section 12, it cannot be

held that voluntary contributors specifically

received towards the corpus of the trust may be

brought to tax. The aforesaid decision was followed

by the Bombay High Court in the case of CIT vs.

Trustees of Kasturbai Scindia Commission Trust

(1991) 189 ITR 5 (Bom). The position after the

amendment is a fortioriri. In the present case the

Assessing Officer on evidence has accepted the

facts that all the donations have been received

towards the corpus of the endowments. In view of

this clear finding it is not possible to hold that they

are to be assessed as income of the assessees. We,

therefore, hold that the assessment of the corpus

donations cannot be supported.

After considering the position of law as it is

prevailing at present on the basis of the decision of

three Tribunals, i.e. Income-tax Appellate Tribunal,

Chennai, Income tax Appellate Tribunal, Delhi and

Income tax Appellate Tribunal, Kolkata and further

confirmed by the Delhi High Court, the corpus

donation is in the nature of a capital receipt and

are not taxable, irrespective of the fact whether the

trust is registered under section 12AA or not.

Therefore, I agree with the learned authorised

representative that the amount of Rs.68,50,000/-

being in the nature of corpus donation is not

taxable under the Income tax Act being in the

nature of capital receipt and therefore the addition

of Rs.68,50,000 made by the Assessing Officer

towards the taxable income of the assessee is

hereby deleted and accordingly Ground no. 2 is

allowed. The Hon'ble ITAT, Indore in the order no.

ITA No. 925 to 928 dated 16.02.2006 in the case of

Narmadeya Brahmin Samaj, Ujjain vs. CIT held

that any contribution to the corpus donation is not

liable to be treated as revenue income.

Therefore A.O. is directed to treat the amount of

Rs.40,00,000/- as corpus donation and the

addition made on this account is deleted.”

Further, from the order of ITAT, Indore Bench, in the case

of ITO vs.Narmidiya Brahmin Samaj (supra) we observe

that under similar facts and circumstances the Tribunal

concluded as follows :-

been completed in the status of unregistered Trust(AOP). Thereafter, he has noted that compliance made by the assessee Trust in pursuance with the statutory notices issued u/s 143(2) by several AR’s. It was pleaded before him that in view of the decision of the Appellate Tribunal, Delhi Bench, In the case of M/s Mahila Sidh Nirman Yojna v. IAC 50TTJ (Del) 494, even if the Trust was not registered u/s 12A, contribution towards Corpus fund was not liable to tax because such receipt was not income. The AO, however, distinguished the aforesaid decision on the ground that in that case the registration u/s 12A was pending for decision whereas it has been rejected in the case of the assessee. The amount standing in Building Fund over and above the income declared was brought to tax. The assessment was challenged before the CIT (A) and detailed written submissions together with copy of various decisions relied upon, the copy of Audited Balance Sheet for the year under consideration as well for earlier years to support the contention that the opening balance of Building Fund stood at Rs.2,92,126/- and hence the AO committed grave error on facts as well in law to bring the entire Building Fund to tax in the year under consideration. The assessee in the written submissions submitted that the assessee maintained regular books of accounts and Balance Sheet have been filed in response to notice u/s 148. The assessee raised corpus fund for constructing Dharamshala Bhavan to fulfil the objectives. For the purpose of collected money as Corpus Fund from various persons and spent the money so raised towards Dharamshala fund on construction of Dharamshala Bhavan. It was submitted that without prejudice to the above the AO erred by adding the amounts to the total income as building funds received though the money received during the period was very small. The assessee also challenged the status declared by the AO which is not subject matter in appeal before us. It was also stated that AO has erred in taxing building funds received as income. The corpus fund is capital receipt and is not covered by the definition of income as given in section 2(24). The

decision of the Appellate Tribunal, Hyderabad bench “B” in the case of Society for integrated development in urban & rural areas vs. DCIT; 90ITD 493 was relied upon in which at pages 6 to 13 it was held “assessment on denial of exemption - Though by virtue of section 2(24)(iia) voluntary contribution are income this by itself does not entitle the tax gatherer to ignore all other well settled principles of taxation and general law and levy tax on gross receipts without considering the claim for deduction. Only the surplus or profit can be brought to tax and the same has to be computed in the manner laid down in the Act applying the normal principles of accountancy & taxation laws. Matter reminded for fresh assessment. Following decisions were relied on by the Hon’ble Income Tax Appellate Tribunal. 1. Sukhdeo Charity Estate v. CIT 424 ITR (Raj.) 218 2. Sukhdeo Charity Estate v. ITO 192 ITR 613 (Raj.) 3. Nirmal Agricultural Society v. ITO 94 ITD 152 Arya Vyuya Abhyudaya Sangu v. IT ITA no.77/HYD/02 dated 25th 4. June 2002. 5. Mahila Siddh Nirman Yojna v/s IAC; 50TTJ (Del) 494 The detail submission of the assessee has been recorded by the CIT (A) in the appellate order. The CIT (A) considering the submissions and the material on record directed the AO to delete the entire amount of building fund as added by him. His findings from Para 4.2 to 4.2.1 are reproduced hereunder- 4.2 The issue to be decided now remains is about taxability of contribution of building fund (corpus fund). The factual position is that the actual amount as per audited account added in the building find during the year under consideration stood at Rs.2,329/- only and the balance amount represent the opening balance and hence the AO action in taxing the entire amount of Rs.2,94,655/- for the year under consideration is not found to be at all justified. Further the issue regarding taxability of contribution to capital fund were examined in detail in the case of Kalyan Aasharam Trust in appeal no U-349/04-05 decided on 27/08/2005. The relevant findings are extracted hereunder. 4.5 However coming to the main contentions about the corpus donation being not liable to be treated as a revenue income there as a prima facie sufficient merit in the contentions of the Appellant advance in this behalf as the provision of section 12(1) & 11(d) also lay down that these are to be treated separately and not like all other regular voluntary contributions. Secondly, once commercial principle are applied for determination of income in the case of trust also, the amount received being admittedly on facts being in capital field can not be treated as revenue in absence of clear and specific provision in this behalf. The various decisions cited by the appellants referred before the AO and again pressed in course of appeal proceedings also support the Appellants case. The AO apart from the brief observation about such decisions being not applicable on the account of distinguishable facts has not recorded any detailed and proper findings as basis as to why such donation receipts towards specific corpus fund were liable to be taxed as income of the trust for the years under consideration even despite the fact that such decision were cited before him. 4.6 The aforesaid view is supported in the Hon’ble ITAT, Delhi Bench in the case of Mahila Siddh Nirman Yojna v. IAC 58 ITD 472(Del) wherein it was categorically held that – “Voluntary contributions received by a trust are income subject to exemption i.e. contributions received towards corpus. To put it differently all voluntary contributions received by trust, other than contributions towards corpus, are income in the hands of recipients. Even if the trust is not registered u/s 12(A), contributions towards ‘corpus’ is not liable to tax because the receipt (i.e. Donation towards corpus) itself is not income.” 4.7 Further, reference can be made to very detailed & elaborate decision of Hon’ble ITAT, Hyderabad bench in the case of Society for Integrated Development in Urban & Rural Area v/s DCIT, 90 ITD 493 (Hyd) wherein reference was made to the earlier Tribunal decision and view of the Ld. Authors Kanga and Palkiwala in the book law & practice of income tax, 8th edition vol.I as appering on page 387 as well the views of Ld. Authors Chaturvedi & Pithisaria ( referred in para.27 of the order ) & It was held – “ as argued by the Revenue, though by virtue of us 2(24)(iia) voluntary contribution are income, to our mind, this by itself does not entitle the tax gatherer to ignore all other well settled principles of taxation and general law and levy tax on gross receipts without considering the claim for deductions. Principles such as capital versus revenue, doctrine of overriding title, form versus substance, interpretation of “deeming” provisions, etc. have to be applied wherever necessary. Only the surplus of profit can be brought to tax and the same has to be computed in the manner laid down in the act applying the normal principles of accountancy and taxation law”. (Emphasis applied) 4.8 Lastly, it may be added that the issue of ‘corpus donation‘ was not involved in the decision of Hon’ble ITAT, Indore bench in the case of Shri. Mankalal Dhanraj Chordia (supra) and hence such decision will not be applicable to the issue on hand. 4.2.1 Accordingly the A.O is directed to delete the entire amount of building fund as added by him. The revenue is in appeal. 17

case then admittedly and undisputedly the assessee received Rs.40 lacs as corpus donation for building construction which was for

specific purpose, hence, the same cannot be treated as part of

income even though the assessee is not registered u/s 12A of the

Act. As we have noted above that the Indore Bench of the Tribunal

in the case of ITO vs. Narmidiya Brahmin Samaj (supra), after

considering the order of ITAT, Calcutta, in the case of Shri Shankar

Bhagwan Estate (supra) held that the amount being in the nature

of corpus fund is not taxable under the Income tax Act being in the

nature of capital receipt and, therefore, the addition made by the

Assessing Officer towards taxable income of the assessee is not

sustainable. In the present case, we hold that the proposition laid

down by the ITAT, Indore Bench, in the case of Narmidiya Brahmin

Samaj (supra) is squarely applicable to the present case. Therefore,

the conclusion drawn by the Commissioner of Income Tax (Appeals)

in deleting the addition is quite justified and reasonable and we are

unable to see any valid reason to interfere with the findings of the

Commissioner of Income Tax (Appeals) and, hence, we uphold the

same. Consequently, effective ground nos. 1 and 2, being de void of

merit, are dismissed.

The order has been pronounced in open Court on 30th May,

2017.

Sd/- sd/-

लेखा सद�य �या�यक सद�य (O.P.Meena) (C.M. Garg) Accountant Member Judicial Member May 30, 2017.

Dn/