ITO (E) 1(3), MUMBAI vs. FREE TRADE UNION, MUMBAI

Being, aggrieved the revenue filed miscellaneous application u/s 254(2) and requested to recall order passed by the Tribunal for the detailed reasons stated in their petition. The ITAT in MA No. 324/Mum/2017 dated 16-02-2018, recalled revenue appeal in and restored appeal filed by the revenue by observed as under: -

The recalled revenue appeal in is heard along with other appeals for subsequent Asst. years filed by the assessee as well as the revenue, as the issue involved in this appeal is identical to the issues in all appeals of the assessee and revenue for all assessment years.

The first issue that came up for our consideration from assessee appeal is denial of exemption u/s 11 of the Act. Although, the issue has been decided against the assessee by the ITAT, for Asst. year 2003-04 in the ld. Authorized representative vehemently argued the matter at length with the help of certain judicial precedents to keep the issue alive. The ld. A R for the assessee submitted that the ld. AO as well as the Ld. CIT(A) failed to appreciate the fact is right perspective in the light of facts of the case before rejection of exemption u/s 11 of the Act. The AO on the basis of appraisal of incorrect facts came to wrong conclusion that there is violation of section 13(1)(c ) of the Act, insofar as loans and advances given to two trade unions without understanding basic facts that the main object of the trust is to help members of trade union for which it has lent loan and the same has been used for the benefit of members of union. The AO made baseless allegation of siphoning of large scale money by trustees without appreciation fact that out of total loans given to two trade unions, only a sum of Rs. 8,00,000/- was given to Chandbibi and remaining amount has been spent for the objects for which necessary evidences has been filed. In so far as purchase of Motor car in the name of R. J Mehta, another trustee, although car is purchased in the name of trustee, the car is used exclusively for trust purpose and necessary approval has been taken from competent authority. Similarly, the AO has misconstrued the facts with regard to expenditure incurred for repairs of building without appreciating fact that amount given to Shankar Gadam of M/s Mahalaxmi Enterprises is treated as advance and not debited to the profit and loss account. The assessee has filed all details to prove an observation of the AO is incorrect and there is no violation of any of the provisions, but the AO has conveniently ignored all evidences to reject exemption u/s 11 of the Act. In this regard, he relied upon the decision of Hon’ble Supreme Court in the case of ACIT vs. Surat City Gymkhana 300 ITR 214(SC) and Hon’ble Karnataka HC in the case of CIT vs. Fr. Mullers Charitable Institution 363 ITR 230.

The Ld. DR on the other hand submitted that the issue has been already decided against the assessee by ITAT Mumbai “F” Bench in and without any change in facts no contrary decision can be taken in subsequent years. The Ld. DR further submitted that the assessee failed to explain violations of section 13(1)(c ) pointed out by the AO and such violation is continued in subsequent years, therefore the AO has rightly rejected exemption and his order should be upheld.

We have heard both the parties, perused materials on record and gone through the orders of authorities below. We have also carefully considered case law relied upon by the assessee. The coordinate bench of ITAT, “F” bench has already decided the issue against the assessee in ITA No. 1336/Mum/2014. The Tribunal after considering relevant facts in light of provisions of section 13(1)( c), 13(2) and 13(1)(d) observed that the assessee has violated provisions of section 13(1)(c ) r.w.s 13(3) of the Act, and hence not eligible for exemption u/s 11 of the Act. The relevant portion of ITAT order from Para 6 to 6.2 is reproduced at Para 6 of this order.

Facts remain unchanged. When the bench pose a specific question about continuation of violation referred to u/s 13(1)(c) for subsequent years, the ld. AR for the assessee fairly accepted that such violation is perpetuated in subsequent years, however tried to argued that violations brought out by the AO shall not be reason for denial of exemption, when the assessee continued to carry out its activities in accordance with its objects. We find that, the assessee failed to negate observation of the lower authorities in the light of provisions of section 13(1)(c ) of the Act. Therefore, consistent with the view taken by the Coordinate bench, we are of the considered view that the assessee is not eligible for exemption u/s 11 of the Act, and hence we are inclined to upheld finding of the ld. CIT(A) and reject ground of the assessee for all asst. years.

The next issue that came up for our consideration from assessee appeals is taxation of corpus donations. The Ld. CIT(A) dealt corpus donation issue in para 5.10 of his order. According to the lower authorities, corpus donation is forming part of income derived from property held under trust, once exemption u/s 11 is denied. The ld. CIT(A) further observed that, although assessee furnished letters indicating donors intention to donate for corpus of the trust, these letters are identically worded without any further evidences. The ld. CIT(A) further held that as per section 12(1) voluntary contributions will also deemed to be income derived from property held under trust, and provisions of section 11 and 13 shall apply and accordingly, once exemption is denied, then whole receipts including corpus donation shall be treated as receipt of trust and normal commercial principles shall be applied to determine income. It is the contention of the assessee that even if exemption is denied, still corpus donation shall not be taxed as income derived from property held under trust. The Ld. AR for the assessee vehemently argued the matter in the light of provisions of section 11(1)(d) and 12(1) and certain judicial decisions, and submitted that voluntary contributions made with a specific direction shall not form part of income derived from property held under trust, therefore cannot be taxed even if exemption is denied. In this regard, he relied upon plethora of judgments including the following judgments.

We have heard both the parties, perused materials on record and gone through orders of authorities below. It is an admitted fact that exemption u/s 11 has been denied to the assessee. It is also an admitted fact that the assessee has failed to file necessary evidences to prove corpus donations are made with specific direction that they shall form part of corpus of the trust. No doubt, corpus donation received with a direction that they shall form part of corpus of the trust shall not be treated as income derived from property held under trust. But, the onus is on the assessee to prove that such donations are in fact corpus donations which shall not form part of income of the trust u/s 11(1) of the Act. In this case, on perusal of facts, we find that the AO as well as the ld. CIT(A) gave categorical findings that the assessee failed to file any evidences to prove that these donation are corpus donations. Once, these donations are not corpus donations, then, automatically all receipts including corpus donations shall be treated as receipts of the trust and income wherefrom shall be computed in normal commercial practices by deducting all expenses. The CIT(A) after considering relevant facts has rightly treated corpus donation as part of gross receipts to determine income. We do not find any error in the order of the ld. CIT(A). Hence, we are inclined to uphold the CIT(A) order and reject ground taken by the assessee for all years.

The next issue that came up for our consideration for A.Y.2005-06 is non adjudication of ground No.8. The assessee has taken ground on the issue of expenditure of Rs. 15,80,077 made out of corpus donations. Although, the AO has not made any specific additions for this amount in the assessment order, yet the assessee has taken a ground with abundant precaution for the reason that in para 2 of his order, the AO has said that exemption claimed towards corpus donation of Rs. 16,17,230 and expenditure of Rs. 15,80,077 is taxable.

Having heard both sides, we find that the AO did not made any addition towards expenditure of Rs. 15,80,077/- in the assessment, therefore, there is no cause of grievance for the assessee insofar this issue is concerned. But, fact remains that, the AO has said in para 2 of his order that the amount of expenditure is taxable. Once, exemption is denied, income shall be computed under normal accounting principles by considering all income and expenses to determine profit/loss, but at no stretch of imagination expenditure shall be treated as income, unless such expenses is unexplained or such expenses has not be substantiated with evidences. In this case, there are no findings from the AO on these aspects. Therefore, we are of the considered view that no addition can be made towards expenditure incurred for objects of the trust.

The next issue that came up for consideration for A.Y. 2013-14 is denial of credit for TDS. The assessee claims that the AO did not allowed credit for TDS amounting to Rs. 1,25,032/-. But, on perusal of orders of the ld. AO as well as the Ld. CIT(A), we find that facts with regard to claim of TDS is not emanating from orders of lower authorities. However, if the assessee able to prove the claim with necessary TDS certificates and corresponding income is already considered in books, then the AO is directed to allow credit for TDS. Hence, the matter is set aside to the file of the AO to cause necessary enquiries and allow credit for TDS.

The next issue that came up for our consideration from assessee additional ground of appeal is carry forward and set off of loss of earlier years. The assessee has taken additional ground in as much as, if benefit of exemption is denied and income is computed under commercial principles, then loses hall be allowed to carry forward and set off against income of subsequent years. We find that the assessee has claimed exemption u/s 11 and hence, not exercised option to carry forward and set off losses. The AO denied benefit of exemption u/s 11 and computed income under normal commercial principles. Once, benefit of exemption is denied and income is considered under normal commercial principles, then the benefit of carry forward and set off of losses shall be allowed, provided all other conditions of carry forward and set off of losses as provided under section 72 are satisfied. Therefore, we set aside the issue to the file of the AO to cause necessary enquiries and allow the benefit accordingly.

The ld. DR submitted that the ld. CIT(A) failed to appreciate fact that end use of the funds from those trade unions provided to the trustees through the series of transactions is merely camouflage the intention and diversion of funds from trust to the trustees. The DR further submitted that the assessee has violated provisions of section 13(1)(c) and 11(5) of the Act, which needs to be taxed in the hands of the assessee, but the ld. CIT(A) deleted additions on the ground that loans and advances cannot be treated as income of the assessee without appreciating fact that trust funds has been siphoned off by the trustees.

The ld. AR for the assessee, on the other hand strongly supported order of the CIT(A). The AR further submitted that at no stretch of imagination loans and advances being assets cannot be treated as income of the assessee only for the reason that these loans are hit by the provisions of section 13(1)(c). The violation of section 13(1)(c) may be a ground for denial of exemption, but such loans cannot be treated as income of the assessee.

We have heard both the parties and perused materials on record. The AO made additions to loans and advances given to two trade unions only on the ground that the said loan is hit by the provisions of section 13(1)(c ) of the Act, by misconception of law and facts. There is no findings from the AO that assessee has claimed deduction for such loans against income. On the other hand, the ld. CIT(A) recorded categorical fact that these loans are not claimed as expenditure, but are treated as current assets in books of accounts. The facts gathered during assessment and violations of section 13(1)(c) brought out by the AO may be a good reason for rejection of exemption, but loans and advances being current assets cannot be treated as income of the assessee. The ld. CIT(A) after considering relevant facts has rightly deleted additions towards loan and advances. We do not find any error in the order of the ld. CIT(A) and hence, we are inclined to upheld findings of the CIT(A) and reject grounds of revenue for all assessment years.

The next issue that came up for our consideration from revenue appeals is additions towards purchase car in the name of trustee and repairs and also other expenses. The AO, while completing assessment made additions towards expenditure incurred for objects of the trust, purchase car in the name of trustee and non genuine repair expenses on the ground that the trustees have siphoned off money by purchasing car in personal name and booking non genuine expenditure. It is the contention of the assessee that the facts gathered by the AO to hold there is violation of section 13(1)(c ) may be a good reason for rejection of exemption, but purchase of car being capital expenditure and expenses incurred for objects of the trust cannot be treated as income.

Having heard both parties, we find that the ld. CIT(A) has recorded categorical facts that purchase of car has been treated as fixed assets in books. Similarly, amount paid to Shankar Gadam of M/s Mahalaxmi Enterprises has been treated as advance in books of account. The CIT(A) further observed that expenditure incurred for objects of the trust could not be treated as income, unless there is findings from the AO that these are non genuine expenditures. The revenue fails to bring on record any contrary evidences to controvert findings of the ld. CIT(A). We, therefore, of the opinion that once, exemption is denied, income shall be computed under normal accounting principles by considering all income and expenses to determine pofit/loss, but at no stretch of imagination expenditure shall be treated as income, unless such expenses is unexplained within the provisions of section 69C or such expenses has not be substantiated with evidences. In this case, there is no finding from the AO on these aspects. Therefore, we are of the considered view that no addition can be made towards expenditure incurred for objects of the trust, purchase of car being capital in nature and treated as such in books and amount paid to Shankar Gadam of M/s Mahalaxmi Enterprises. The ld. CIT(A) after considering relevant facts has rightly deleted additions made by the AO. We do not find any error in order of the ld. CIT(A) and hence, we are inclined to upheld findings of the CIT(A) and reject grounds of revenue for all assessment years.

In the Result, the appeals filed by the assessee in to 3084/Mum/2016 and ITA No. 6952 To 6954/Mum/2017 are partly allowed for statistically purposes and the appeals filed by the Revenue in ITA No. 1336/Mum/2014, ITA No. 3793 to 3795/Mum/2016 and ITA No. 3800 to 3801/Mum/2016 are dismissed.