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Facts
The assessee, Society for Human Transformation & Research, a charitable trust registered under Section 12A, was denied exemption under Section 11 of the Income Tax Act for AY 2014-15 and 2015-16. This denial by the AO and CIT(A) stemmed from an interest-free advance of funds totaling Rs. 18,03,595/- to Divine Real Build Private Limited, a 'specified person' under Section 13(3) of the Act, which was deemed a violation of Section 13(1)(c)(ii). The assessee contended that the advances were for land purchase and construction, with project delays due to late sanctioning of building maps.
Held
The tribunal acknowledged that the assessee submitted new documents (certificates and sanction letters from various government bodies) to support its claim, which were not available before the lower authorities. Finding these documents essential for a fair adjudication, the tribunal admitted them and remitted the entire issue back to the Assessing Officer for fresh adjudication, instructing the AO to consider the newly presented evidence.
Key Issues
Whether the CIT(A) was justified in denying the exemption under Section 11 of the Income Tax Act, 1961, on the grounds that an interest-free advance to a specified person constituted a violation of Section 13(1)(c)(ii) of the Act.
Sections Cited
Section 11, Section 12A, Section 13(1)(c), Section 13(1)(c)(ii), Section 13(2), Section 13(3), Section 2(15), Section 164(2), Section 10(23C)(vi), Section 143(2)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI BENCH ‘B’: NEW DELHI
PER YOGESH KUMAR U.S., JM: Both appeals are filed by the Assessee against the orders of
Learned Commissioner of Income Tax (Appeals)-40, Delhi [“Ld.
CIT(A)”, for short], dated 22/03/2019 for Assessment Year 2014-15
& 2015-16 respectively.
2 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation 2. The Assessee has raised common grounds except difference in
the amount. The Grounds taken in A.Y 2014-15 are as under :
“1. That the Ld. CIT(A) erred on facts and in law in confirming the assessment at assessed income of Rs. 74,49,530/- as against NIL income returned by the appellant.
That the Ld. CIT(A) erred on facts and in law in confirming the denial of exemption u/s 11 and holding that there is a violation u/s 13(1)(c)(ii) of the Income Tax Act, 1961.
That the Ld. CIT(A) erred on facts and in law in failing to consider the binding judgments of the High Court/the Supreme Court.
That the Ld. CIT(A) erred on facts and in law in confirming that the entire income Rs. 74,49,530/- is to be taxed at maximum marginal rate.
That the impugned order is arbitrary, illegal, bad in law and the violation of rudimentary principle of contemporary jurisprudence.
That the appellant craves leave to add, amend, alter, vary and / or withdraw any or all the above grounds of appeal before or at the time of hearing of the appeal.”
As both the Appeals are involved with similar issues, brief
facts of the case as mentioned in the order of the Ld. CIT(A) for A.Y
2014-15 are taken into consideration, which are as under:
3 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation “Return of income was filed on 29/09/2014 declaring nil income. The case was selected for scrutiny through CASS and notice under section 143(2) dated 28/08/2015 was issued. The assessee is society which is registered under the Societies Registration Act, 1860 and is also registered under section 12A vide order dated 23/10/2001. The main objects of the society are as under:
(i) To run educational/professional institutions from nursery onwards for the promotion of science, technology, literature, management, economics, art and culture etc, for value-based education.
(ii) To provide vocational/professional education in various disciplines.
(iii) To provide consultancy and research support to industry, business service organizations, academic's and other organizations.
(iv) To identify and develop various educational aids required at different levels of education for the benefit of ours and other educational institutions.
2.2 From Schedule 5 of the Balance Sheet it was noticed that loan/advance of Rs. 18,03,595/- had been given to
4 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation Divine Real Build Private Limited who is a specified person within the meaning of section 13(3). It was also noted that the assessee had not charge any interest on loans/advance given. Since interest free loan/advance had been given to specified person, a show cause notice was given to the assessee to explain why the benefit of Exemption under sections 11 and 12 be not denied to the assessee in view of the violation of section 13(1)(c). In response, a reply was given which was considered. From the Ledger account of Divine Real Build Private Limited in the books of accounts of the assessee, it was seen that it was maintaining a running account with the said concern since a lot of debit and credit entries were recorded in the Ledger account. With regard to these entries it we submitted by the assessee that it had applied for increase of FAR in the DDA office at could also submitted that the entries reflect money received back from Divine Real Build Private Limited due to delay in project. It was further submitted that the map has now been approved with increased FAR from 100 to 120% and Divine Real Build Private Limited has been given work of building which started from August, 2016. The assessing officer concluded from the running Ledger account of Divine Real Build Private Limited that whenever the related party needed funds, the same were provided by the assessee to it. It was also noted that even though no construction work
5 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation
had started during the period relevant to assessment years 2014-15, 2015-16 and 2016-17, the assessee continued to make regular payments to Divine Real Build Private Limited. The year wise breakup was noted as under: Assessment Opening Payment (in Rs.) Receipts (in Rs.) Closing balance Year Balance(in Rs) (in Rs.)
2014-15 25,31,140 2,27,455 9,55,30 18,03,595 0 2015-16 18,03,595 44,39,799 - 62,43,394 2016-17 62,43,394 29,78,374 - 92,21,768
2.3 Ledger account of Divine Real Build Private Limited in the books of accounts of the assessee pertaining to the head 'Property Account for the year ending 31/03/2014 revealed that there was brought forward balance of Rs. 97,10,000/- as on 01/04/2013. On being asked to explain, it was submitted that it had entered into an Agreement dated 27/12/2012 with Divine Real Build Private Limited for purchase of plot of land from it and the said balance was the advance payment made by the assessee to Divine Real Build Private Limited stop on being asked to produce the documents in original relating to the plot of land for which the advance was made, land documents worth Rs. 6,72,500/- were furnished which were for an agricultural land. The Assessing Officer concluded that the assessee, in order to pass benefit to its
6 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation related party, ie., Divine Real Build Private Limited, who is a specified person under section 13(3) deliberately advanced Rs. 97,10,000/- for a plot of land which was agricultural land worth Rs. 6, 72,500/-. It was also noted that subsequently the said Agreement was cancelled on 31/08/2013. From the confirmation filed by the assessee in respect of Divine Real Build Private Limited, the Assessing Officer noted that it had been stated that an amount of Rs. 18,03,595/- which was outstanding as on 31/03/2014 was of the nature of unsecured loan received from the assessee.
2.4. The Assessing Officer concluded that it was evident that even though no work w executed by Divine Real Build Private Limited, regular payments were made to it without any consideration and that too interest free. It was also noted that as per the confirmation received, the amount advance was in the nature of unsecured loan given Build Private Limited. It was held that the assessee had committed a violate meaning of section 13(1)(c) and, therefore, the benefit of exemption u/s 11 & 12 was denied to the assessee and it was assessed as an AOP under Chapter IV of the Income Tax Act. Assessment was completed at an income of Rs. 74,49,530/- to be taxed at maximum marginal rate as per the provisions of section 164(2), Aggrieved by the order, this appeal has been filed.”
7 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation 4. The Ld. A.O. has also passed similar Assessment Order for A.Y
2015-16 as well. As against the Assessment Orders dated
24/12/2016 and 22/12/2017 for A.y 2014-15 & 2015-16, the
assessee preferred the Appeals before the CIT(A), the Ld. CIT(A)
vide orders dated 22/03/2019, dismissed the Appeals filed by the
assessee. As against the orders dated 22/03/2019, the assessee
preferred the present Appeals on the Grounds mentioned above.
The ld. Counsel for the Assessee submitted that the Ld. CIT(A)
erred in confirming the assessed income of the Assessee as against
the NIL income returned by the Assessee and also erred in
confirming the denial of Exemption u/s 11 holding that there is a
violation u/s 13(1)(c) (ii) of the Act. The Ld. Counsel for the
Assessee further submitted that there was a delay in the project of
construction of building on account of late sanction of building map
by regulating authority, therefore, the Assessee received backs the
amount from M/s Divine Real Build Pvt. Ltd., but the authorities
below have not appreciated the material available on record and
documents produced before them and made the addition, therefore,
sought for allowing the Grounds of Appeal.
8 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation
Per contra, the Ld. Departmental Representative submitted
that the Assessee has not produced any written agreement and only
produced approved plan for increased FAR, the Assessee has not
even produced any of the details even before the CIT (A) to
substantiate the claim of the Assessee. The Ld. Departmental
Representative relying on the findings and the conclusions of the
Lower Authorities sought for dismissal of the Appeals of the
assessee.
We have heard the parties perused the material. In the
present case, the sole issue for consideration as to whether the
CIT(A) is right in confirming the assessment orders by denying the
exemption u/s 11 of the Act holding that there was a violation u/s
13(1)(c) (ii) of the Income Tax Act, (‘Act’ for short). The Assessing
Officer denied the Exemption u/s 11 of the Act by invoking the
provisions of Section 13(1)(c) since the interest free advance had
been made to Divine Real-build Pvt. Ltd. which was ‘specified
person’ within the meaning of Section 13(3) of the Act. It was the
case of the assessee that the assessee had entered into an
9 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation agreement with Divine Real Build Pvt. Ltd. for purchase of plot of
land in respect of which land documents worth Rs. 6,72,500/-
which was an agriculture land and the assessee had applied for
increasing FAR to DDA which was delayed and advance given for
construction was received back in installments. The assessee had
entered into a building construction agreement dated 08/03/2013
for expansion of the existing Institute building with Divine Real
Build Pvt. Ltd. for which the assessee was to seek permission of
plan from DDA with increased FIR. Since the permissions were
delayed due to technical reason and could finally be approved only
on 08/08/2016, further as per the said agreement the initial
advance payment of Rs. 20,00,000/- and balance after three
months of date of agreement and after nine months of date of
agreement were to be paid to the builders, although the work could
not be started due to the fault of the assessee in the getting the
plan sanctioned with increased FAR. It is also claimed by the
Assessee that the said money was received back from the builder
during Assessment Year 2014-15 and only balance left was Rs.
18,03,595/-. The assessee has paid Rs. 97,10,000/- in Assessment
Year 2013-14 to Divine Real Build Pvt. Ltd. as advance at Sector
10 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation 25, Rohini, Delhi at an agreed consideration of Rs. 1,30,00,000/-
as per Tax Agreement. But no payment was made during A.Y
2014-15 and instead the entire payment of Rs. 97,10,000/- was
returned back during .A.Y 2014-15. The Ld. CIT(A) after
considering the contentions of the Assessee dismissed the Appeal
filed by the Assessee in following manners:-
“4.2.2 I have considered the assessment order and the submissions of the appellant, it is a fact that amounts had been advanced to Divine Real Build Private Limited which it a specified person within the meaning of section 13(3). It is an admitted fact that the advances were given for the purposes of construction and for purchase of land. The construction activity could not commence till alter August 2016 when the plan was approved and it is also a fact that the agreement to purchase the land was cancelled for which no reasons have been given. No written agreements have been submitted and only approved plans for Increased FAIR have been submitted but there is nothing on record to show that when the application was made. Even in the submissions made during the appellate proceedings, no details have been given.
4.2.3 In the case of Director of Income-tax (Exemption) vs. Charanjiv Charitable Trust ((2014) 43 (axmann.com 300 (Delhi)], the Hon'ble Delhi High Court have held that in case of a charitable trust, where it is found that provisions of section 13(1)(c)(i) read with section 13(3) are not followed, the trust would lose its exemption in entirety, with result that assessment of its income will be made according to the other provident of the Income Tex Act. It has also been held that where the trust, advanced certain money for purchased of land to a person provided under
11 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation section 13(3), in view of fact that sale agreement was cancelled after a long time of paying advance money without charging any readout charging any interest on said advance money; it being a case of volition of Section 13(1)(c).
Assessee's claim for exemption under section 11 was to be rejected. In the said case, the Hon'ble Court have held as under:
We may first take to the fundamental question as to whether the assessee was ineligible for the exemption under Section 11 on the ground that there was contravention of the provisions of Section 13(1)(c)(u) read with Section 13(3) of the Act. It is necessary for briefly notice the statutory provisions in this regard Section 11 exempts any income derived from property held under trust wholly for charitable or religious purposes to the extent to which it is applied to such purposes in India, to the extent of 85% of such income. Charitable purposes are defined in Section 2(15). There is no dispute that the objects pursued by the assessee fall within the said definition. Even if the objects of a trust satisfies the definition of charitable purpose" as per Section 2(15), it does not automatically confer exemption to the trust; it has to further get itself registered under Section 12A. This condition is also satisfied in the present case since the assessee was registered under Section 12A on 28.05.1976. There are further conditions for being eligible to the exemption. Section 13(1) enumerates instances under which the provisions of Section 11 granting exemption will not operate. One such instance is furnished by clause (c) (ii) which says that if any part of the income or any property of the trust is, during the relevant previous year, used or applied directly or indirectly for the benefit of any person referred to any sub-section (3), the exemption will not
12 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation be allowed. Sub-section (3) enumerates the prohibited persons and there is no dispute that the assessee's case falls within clause (e) of sub-section (3). There is another provision which we have to notice and that is Section 13(2) which in clauses (a) to (h) thereof sets out illustrative instances where the income or property of the trust may be deemed to have been used or applied for the benefit of a prohibited person.
It is also to be noted that even if there is one instance of application or use of the income or property of the trust directly or indirectly for the benefit of any prohibited person, the trust will lose the exemption in respect of its entire income. Therefore, if in respect of the monies paid either to APIL or to Charanjiv Educational Society, it is found that the provisions of Section 13(1)(c)(ⅱ) read with Section 13(3) of the Act are not followed, the trust would lose its exemption entirely, with the result that the assessment of its income will be made according to the provisions of the Act.
4.2.4 In the case under consideration also amounts have been advanced to a specified person under section 13(3) and the advance given for purchase of land in the assessment year 2013-14 was returned without any reason being assigned. Similarly, advance was given for construction pursuant to Agreement dated 08/03/2013 whereas no construction could be undertaken till August, 2016 when the plans were approved. It is also to be noted that this is not a case of violation within the meaning of section 13(1)(d) but a case which falls under section 13(1)(c)(ii).
4.2.5 In the case of Budha Vikas Samity v. CIT [(2011) 11 taxmann.com.234/199 Taxman 395 (Patna)] it has been held that interest free advance given to a Trustee for construction of building was covered within the meaning of section 13(2)(a). In New Noble Educational Society v. CCIT [(2011) 334 ITR 303 (AP)], the High Court of Andhra
13 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation Pradesh have held that where a society had given interest- free advance to its secretary, provisions of section 13(1)(c) were attracted and society would not be entitled to exemption under section 10(23C)(vi). In CIT v. Gurukul Ghatkeswar Trust [(2011) 332 TUR 611 (AP)] the trust advanced money to an organisation in which the President of the trust was interested, it also gave loan to the widow of a founder who was one of the trustees of the trust. It was held that the amount so advanced did not fall within the modes of approved investments prescribed in section 11(5) and such acts fell within the mischief/disqualifications prescribed in section 13(1)(c). Thus the eligibility for exemption under section 11 was denied to the trust.
4.2.6 In view of the facts of the case as discussed above and the decision of the Hon'ble Delhi High Court in the case of Director of Income-tax (Exemption) vs. Charanjiv Charitable Trust (supra) and other decisions referred to above, the denial of exemption under section 11 by invoking the provisions of section 13 is upheld. Grounds of appeal Nos. 2 to 4 are dismissed. 8. The Ld. Counsel for the Assessee submitted as under:-
“(i) The allegation of A.O. is that funds were diverted to the specified persons (M/s. Divine Realbuild Pvt. Ltd.) without any consideration is factually incorrect as is evident from the fact that assessee has engaged the alleged specified person for the construction of the building which building was to be used for educational purposes. It is also relevant to mention here that it is not the case where there is any material even to allege that the assessee has not carried out its activities in accordance with the objects of the society.
(ii) 14. In this regard the assessee wish to rely upon the judgment of the Hon'ble Allahabad H.C. in the case of CIT v. Kamala Town Trust 279 ITR 89 wherein it has been held that benefit to interested person in common parlance
14 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation would denote providing something which is not due to them. Therefore, any reasonable compensation against any good, services or even property shall not be considered as "benefit" which is not due to them. It has been further held that even if there is some transaction involving the interested person it is not sufficient to attract section 13 unless some benefit is proved by the Revenue. Hon'ble HC stated that onus lies on the Revenue to bring on record cogent material to establish that the trust charitable institution is hit by provisions of Section 13.
(iii) It is submitted that (P.NO. 1A of Paper-book Vol.2) is the copy of the construction agreement of the building which was to be constructed by the alleged specified person namely Divine Real Build Pvt. Ltd. A perusal of the same agreement would show that the assessee has given funds in accordance with the provisions of the construction agreement. Therefore, it cannot be alleged that the amount of Rs. 2,27,455/- was diverted without any consideration.
(iv). It is submitted that nomenclature given by the assessee in its Books of Account under the head loan & advances does not mean that the amount was loan and advances without there being any consideration. The fact of the matter is that the Agreement was entered on 8.03.2013 and the plan was approved by the DDA on 08.08.2016 & thereafter full fledged construction was carried out by the Divine Real Build Pvt. Ltd. and the building was completed on 09.12.2020 (Please see P.No. 78 of Paper book Vol.1) However, all the above facts have been ignored by the A.O. as well as by CIT(A) and the exemption to the assessee have been denied without any cogent reason and material.
(v) It is submitted that in present case A.O, has made a passing remark in para 4.4 "the said amount must have been utilised by the company Divine Real Build for its
15 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation business activities". In this regard it is submitted that there are just passing remarks made by the A.O. without analysing the agreement for construction as well as without specifying the benefit which the specified person could have earned. Therefore, these observations are not relevant.
(vi) It is submitted that making subjective and passing reference are of no legal consequence. The AO has a legal responsibility to provide the exact statutory or judicial reason for substantiating various instances of violation. It has been held that mere citing facts as passing references have no legal consequence. In the case of Krupanidhi Educational Trust v. DIT (Exp.) [2012] 139 ITD 228 (Bang.- Trib.) it was held that purchase of BMW car, borrowing of loans from financiers, non-maintenance of regular books of account, violations of provisions of section 13(1)(c) in as much as the trustees were paid enormous salary all by way of passing reference having no relevance to whether or not the assessee was pursuing education as its main object.
(vii) It is submitted that assessee vide letter dated 07.12.2016 which is at (P. No. 65 of Paperbook Vol.1) has pointed out to the lower authorities that building construction could not take place due to the delay in sanctioning of the Map.
(viii). It is submitted that as per clause 3 of the Building Construction Agreement (at P. No. 1A of Paperbook Vol.2) it is categorically mentioned that the amount of Rs. 20 lakh + 11,567/-(Legal Cost) was to be given by the assessee to the Divine Real Build immediately upon the signing of the Agreement and that is why there was a closing balance of Rs. 18,03,595/ which balance is coming out from previous years and during the year only advance was given Rs 2,24,455/-.
16 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation (ix). It is submitted that Assessee vide letter dated 22.12.2016 has categorically explained the facts via-a-vis total cost of construction, advance to be given on signing of 'agreement, delay in sanctioning of map. By virtue of this letter Assessee has also placed on record the copy of sanctioned plan received from the Authorities. However, A.O. as well as CIT(A) without bringing any cogent material on record denied the exemption to the assessee.
(x). It is next submitted that the position of opening balance of assessee as on 01.04.14 was Rs. 99.87 Lakhs as capital fund and 9.5 Crores as Capital reserve which shows that the assessee had enough fund of its own (See P.No. 112 of PB-II). Therefore, it cannot be presumed that the assessee has either diverted interest bearing funds to the specified person or diverted any exempted funds to the specified person. Though there is no direct judgment on this point, however, analogy can be drawn from the following judgments: • Relaince Industry, 313 ITR 340 (SC) • CIT v. DD Industry Ltd., 323 ITR 596 (DHC) • CIT v. Bhartiya Televenture, 331 ITR 532 • CIT v. Hero Cycle, 311 ITR 349 (P&H HC)”
The Ld. A.O. observed that there were outstanding balances in
the name of M/s Divine Real Build (P) Ltd. at Rs. 18,03,595/- in
A.Y 2014-15 and Rs. 62,43,394/- for A.Y 2015-16 and also
narrated the breakup of the said amount as under:-
17 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation
A.Y Opening Payment (in Receipts (In Closing Balance (In Rs.) Rs.) balance (In Rs.) Rs.) 2014-15 25,31,140/- 2,27,455/- 9,55,300 18,03,595 2015-16 18,03,595 44,39,799 - 62,43,394
It is seen from the above, the Ld. A.O. invoked the provision
of Section 13(1)(c) of the Act to deny the exemption of Section 11 of
the Act and brought the entire surplus income at Rs. 74,49,529/-
for A.Y 2014-15 and Rs. 78,63,639/- for A.Y 2015-16 to tax which
were confirmed by the CIT(A). It is to be noted that there is no
dispute regarding the fact that M/s Divine Real Build (P.) Ltd. is a
specified person as per Section 13(1) (c) of the Act. The contention
of the Ld. AR is that the transaction took place on commercial
expediency and business transaction and the amount has been
advanced for land and construction of building for the Assessee.
However, the A.O. brought on record that the plot of the land for
which the advanced has been made was an agricultural land on
which there is no permission for construction of building or any
allied activities which could be undertaken by the Assessee for the
year under consideration. The Ld. Assessee’s Representative before
18 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation us strongly relied on following documents to support the argument
that the Assessee’s intention in those assessment years to have a
building for the Assessee trust in the land in question.
Particulars Page No. Certificate issued to assessee from Govt. Of India Ministry of 28-35 Minority affairs along with photographs dated 10/09/2021 Funds Sanction from Skill and Livelihoods Development from 36-38 Rajahstan Govt. Dated 30/01/2023 Funds Sanction from Gujarat Govt. To assessee dated 39-41 30/01/2023 Sanction of Funds from UP Govt. Dated 24/06/2020 42-44 Certificate from District Minority Welfare U. P. along with other 45-48 evidences dated 30/12/2019
The ld. A.R. made a plea before us that these documents were
not produced before the lower authorities as they were not available
at that point of time and sought for consideration of the above
documents to support the argument of the Assessee's
Representative, which are very much necessary to render justice.
Accordingly, prayed that these evidences to be admitted and
appreciated in the interest of justice. In our opinion, these
documents are not available at the time of proceedings before lower
authorities and these are very much required for fair adjudication of
dispute between the parties. Accordingly, these documents are
19 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation admitted for adjudication. Since these documents are filed for the
first time before this Tribunal and the lower authority have no
occasion to examine these documents on earlier occasions, while
the proceedings are going on, hence, it is appropriate to remit the
entire issue in dispute to the file of ld. AO to consider these
documents and decide the issue afresh in the light of above.
Accordingly, the issue in dispute is remitted to the file of ld. AO in
both assessment years for fresh adjudication.
In the result, both the Appeals filed by the assessee in ITA
Nos. 4416/Del/2019 and 4417/Del/2019 are partly allowed for
statistical purpose.
Order pronounced in the open Court on 29th APRIL, 2024
Sd/- Sd/- (M.BALAGANESH) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 29/04/2024 B.R./R.N Sr. Ps.
20 ITA Nos. 4416 & 4417/Del/2019 Society for Human Transformation