DEPUTY DIRECTOR OF INCOME-TAX, BANGALORE vs. M/S.FRANCISCAN SERVICE SOCIETY, BANGALORE

Date of hearing : 26/09/2017 Date of pronouncement : 27/09/2017 O R D E R Per INTURI RAMA RAO, AM:

This is an appeal filed by the revenue directed against the order of the CIT(A)(LTU), Bengaluru, dated 22/09/2016 for the assessment year 2012-13.

3. Briefly facts of the case are that the respondent-trust is a public religious cum charitable institution registered under the Karnataka Societies Registration Act, 1960. The respondent-assessee was duly registered under section 12A [hereinafter referred to as 'the Act' for short][hereinafter referred to as 'the Act' for short]. Return of income for the assessment year 2012-13 was filed on 29/09/2012 declaring ‘nil’ income. Against said return of income, the case was selected for scrutiny assessment and the assessment was completed at nil income. The Assessing Officer (AO) determined excess application of income over income of Rs.20,70,172/-. However, excess was not allowed to be carried forward by the AO.

Page 3 of 5 4. Being aggrieved, assessee carried the matter in appeal before the CIT(A), who vide impugned order, allowed the appeal following the decisions of the co-ordinate bench of Tribunal in the following cases: i. Jyothy Charitable Trust in ii. St.Charles Medical Society Nirmal Hospital vs. DDIT(Exemption) in ITA No.346/Bang/2015 dated 9/10/2015 iii. Mary Immaculate Society ITA Nos.240 & 241/Bang/2015 and iv. Public Education Society vs. DDIT(E) in ITA No.664/Bang/2015 dated 25/08/2015

“13. In the grounds of appeal, the Revenue has reiterated the stand of the AO that there is no provision in the Act to allow carry forward of excess application of income for set off as application of income in subsequent years. The ld. DR reiterated the stand of the Revenue as contained in the grounds of appeal.

14. We have considered his submission. Section 11(1)(a) does not contain any words of limitation to the effect that the income should have been applied for charitable or religious purpose only in the year in which the income has arisen. The application for charitable purposes as contemplated in section 11(1)(a) takes place in the year in which the income is adjusted to meet the expenses incurred for charitable or religious purposes. Hence, even if the expenses for such purposes have been incurred in the earlier years and the said expenses are adjusted against the income of a subsequent year, the income of such subsequent year can be said to be applied for charitable or religious purposes in the year in which such adjustment takes place. In other words, the set-off of excess of expenditure incurred over the income of earlier years against the income of a later year will amount to application of income of such later year. The above is the position of law as held in the case of CIT v. Maharana of Mewar Charitable Foundation [1987] 164 ITR 439/[1986] 29 Taxman 476 (Raj) and CIT v. Plot Swetamber Murti Pujak Jain Mandal [1995] 211 ITR 293 (Guj.). In CIT v. Institute of Banking Personnel Selection [2003] 264 ITR 110/131 Taxman 386 (Bom.) it was held that in case of charitable trust whose income is Page 4 of 5 exempt under s. 11, excess of expenditure in the earlier years can be adjusted against income of subsequent years and such adjustment would be application of income for subsequent years and that depreciation is allowable on the assets the cost of which has been fully allowed as application of income under s. 11 in past years. In Govindu Naicker Estate v. Asstt. DIT [2001] 248 ITR 368/[1999] 105 Taxman 719 (Mad.), the Hon'ble Madras High Court held that the income of the trust has to be arrived at having due regard to the commercial principles, that s. 11 is a benevolent provision, and that the expenditure incurred on religious or charitable purposes in earlier year or years can be adjusted against the income of the subsequent year. The principle that the loss incurred under one head can only be set off against the income from the same head is not of any relevance, if the expenditure incurred was for religious or charitable purposes, and the expenditure adjusted against the income of the trust in a subsequent year, would not amount to an incidence of loss of an earlier year being set off against the profit of a subsequent year. The object of the religious and charitable trust can only be achieved by incurring expenditure and in order to incur that expenditure, the trust should have an income. So long as the expenditure incurred is on religious or charitable purposes, it is the expenditure properly incurred by the trust, and the income from out of which that expenditure is incurred, would not be liable to tax. The expenditure, if incurred in an earlier year is adjusted against the income of a later year, it has to be held that the trust had incurred expenditure on religious and charitable purposes from the income of the subsequent year, even though the actual expenditure was in the earlier years, if in the books of account of the trust such earlier expenditure had been set off against the income of the subsequent year. The expenditure that can be so adjusted can only be expenditure on religious and charitable purposes and no other. The High Court relied on the decision in the case of Society of Sisters of ST. Anne (supra ).

15. We are therefore of the view that there is no merit in ground Nos. 3 to 3.2 raised by the Revenue. Accordingly, the same are dismissed.”

The decision of the CIT(A) is in consonance with the ratio laid down by the co-ordinate bench of the Tribunal in the case of Jyothi Charitable Trust (supra). Therefore, we do not find any reason to interfere with the order of the CIT(A).

Page 5 of 5 6. In the result, the appeal of the revenue is dismissed.