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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI D.T. GARASIA & SHRI O.P. MEENA
PER O.P. MEENA, ACCOUTANT MEMEBR. This appeal is filed by the assessee against the order of
ld. Commissioner of Income-tax (Appeals)-22, holding
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concurrent jurisdiction of CIT(A), Indore-1 [hereinafter referred
to as the CIT(A)] dated 08.12.2015. This appeal pertains to
assessment year 2005-06 as against appeal decided in respect
of assessment order dated 31.12.2007 passed u/s 143(3) of
the Income-tax Act, 1961 (hereinafter referred to as “the Act”
by the ACIT, 2(1), Circle 2(1), Indore (hereafter referred to as
the AO).
Ground nos.1.1 and 1.2 relate to denying of claim of
exemption u/s 10(23C)(iiiad) of the Act.
2.1 Succinctly, the facts as culled out from the orders of
the lower authorities are that the assessee is an A.O.P.
registered with Registrar of Society vide Registration
No.IMD/2914/98 dated 09.12.1998. The Society is running an
educational institution in the name of “Auckland Academy”.
The assessee has filed its return of income on 30.10.2003
showing income at Rs. Nil. The assessee has shown net profit
of Rs. 2,62,971/- on the gross annual receipt of Rs.
41,99,249/- and claimed exemption of Rs. 2,62,971/- u/s
10(23C)(iiiad) of the Act. The AO examined the claim and held
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that the assessee society registered on 09.12.1998, and
applied for registration u/s 12A on 02.04.2007 before the
CIT(A), Indore, which has not been decided, hence, the
assessee is not eligible for benefit u/s 11 & 12 of the Act. With
regard to exemption u/s 10(23C)(iiiad), the AO observed that
in the assessment order u/s 143(3) dated 15.11.2006, for
assessment year 2004-05, it was held that the assessee was
not existed primarily for educational purposes as it has given
loan of Rs. 1.25 crores to M/s. Sheetu Educational Services
Pvt.Ltd., Indore, ( for short – SESPL ), hence, the assessee has
diverted the funds to its sister concern. Further, the assessee
had neither utilized/expanded its income/funds wholly and
exclusively for educational purposes nor for the objects of the
institution. The AO further observed that the assessee has
shown receipts of Rs. 9,17,200/- for bus fee and also claimed
depreciation of Rs. 2,76,872/- @ 40% on motor buses, which
means that buses were for solely used for the business of
running them on hire and not for other purposes. In view of
this matter, the AO held that the assessee is not existed solely
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for educational purposes during the accounting year under
consideration, hence, the claim of exemption u/s 10(23C)(iiiad)
of the Act is not allowable.
2.2 Being aggrieved, the assessee filed an appeal before
the CIT(A). However, the ld. CIT(A) noted that the CIT(A)-II,
Indore, vide order dated 31.12.2012 for assessment year 2004-
05 in appeal no. 129/09-10/455 held that the exemption u/s
10(23C)(iiiad) is not available as the conditions u/s
10(23C)(iiiad) is not satisfied. According to the CIT(A), the
institution should not be for the purpose of profit and this
condition is not satisfied as held in the assessment year 2004-
Therefore, following the decision of assessment year 2004-
05, the ld. CIT(A) has upheld the order of the AO.
2.3 Being aggrieved, the assessee has filed this appeal
before us. The Ld. Counsel for the assessee submitted that the
assessee has not advanced loan to SESPL, Indore of Rs.
1,25,27,660/- but the entire amount was advanced for
construction of school building, which was ultimately used by
the assessee over running of school. The AO referred that the
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amount of Rs. 4,01,947/- was further advanced by the
assessee, but from the balance sheet of the company, it is
clear that the said amount was utilized for the purpose of
repayment of liability and maintenance of school building and
furniture. The contention of the AO that amount was given to
M/s. SESPL was diversion of funds by the assessee society is
not correct. The assessee on lease hold land of individual
family members is in possession of the company, constructed
a school building society and the school building was also
used for the purpose of running of school of the society.
Hence, there was no diversion of funds of the society for non-
educational purposes. As regards observation of the AO that
advance to company tantamount to contravention of
provisions of Section 13 of the Act is not correct, as the AO
has failed to appreciate factual position that when company is
in the lease hold land construct a school building for the
assessee society and the said school building was also used for
the purpose of running of the school of the society. Hence, the
amount as advanced for the construction of the school
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building was not contravention of the provisions of Section 13
of the Act. Thus, the assessee has properly utilized its entire
income for the purpose of educational activities. Further, the
bus fee and other receipts are directly linked with the
educational activities of the society and, therefore, the
assessee solely engaged in the educational activities. The AO’s
interpretation that bus used for the purpose of running on
hire is factually not correct as the buses used for pick up and
drop of the students and bus fee was separately charged from
the students. Hence, for the purpose of allowability of
depreciation, the same has been considered as bus run on
hire otherwise all the buses are used for pick and drop of the
students only.
2.4.1 The ld. Authorized Representative of the assessee
further submitted that it is not in dispute that gross receipts
of the assessee is Rs. 48,66,663/-, which is less than Rs. 1
crore and the assessee solely existed for educational purposes.
Hence, it is eligible for exemption u/s 10(23C)(iiiad) of the Act.
The ld. AO/CIT(A) disallowed the exemption by holding that
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the assessee having surplus income and the same was used in
advancing to M/s. SESPL, one of the group companies.
However, the AO and CIT(A) has failed to appreciate that the
assessee entered into a Deed of sub-lease on 28.08.1999 with
M/s.SESPL for taking of the building of M/s. SESPL on lease
for running of its school in that building. The land area was
around 1.50 acres and built up area was around 15,000 sq.ft.
The Deed agreement was executed between both the parties on
31.03.2000 whereas it was agreed that “the party referred to
as tenant above has deposit with the owner of the amount
which has been mutually decided by both the parties by way
of security deposit. Against this deposit, the interest shall not
be charged by the party referred to as tenant (Jasleen
Educational Service Society) above and the parties referred to
as owner (SESPL) shall not be charged rent on said building.”
Thus, the amount received by SESPL was not used for
personal purposes but used for construction of building. The
ld. Authorized Representative of the assessee further
submitted that surplus earning of the assessee in the year of
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appeal and also few previous year and subsequent years are
as under :-
S.No. Particulars 31.03.03 31.03.04 31.03.05 31.03.06 31.03.07 1. Gross 6632783 7646452 4866664 4414765 4439171 Receipt 2. Net 3904546 2229702 262970 482906 670353 Income 15.10 % of 58.87 % 29.16 % 5.40% 10.94% Surplus
2.4.2 The ld. Authorized Representative of the assessee relied
on the following decisions :-
(i) St. Joseph’s Upper Primary School vs. ITO, 16 TTJ 389 (Hyd Bench – I.T.A.T. )
(ii) Addl CIT vs. Aditanar Educational Institution, (1979) 118 ITR 235 (Mad).
(iii) Governing Body of Rangaraya Medical College vs. CIT,(1979) 117 ITR 284 (AP).
(iv) Ereaut (H.M. Inspector of Taxes) vs. Girls Public Day School Trust Ltd., (1930) 15 TC 529 (HL) (English decision)
2.4.3 The Board itself seems to have accepted this view by
their Instruction No. 1112 ( F.No.194/16/77-IT (A-I) dated 29th
October, 1977 in the following words :-
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“However, there may be cases where the
educational institution may be owned by the trusts
or societies to whom the provisions of sections 11
may be applicable. Where all the objects of these
trusts are educational and the surplus, if any, from
running the educational institution is used for
educational purposes only, it can be held that the
institution is existing solely for educational purposes
and not for the purposes of profit.”
2.4.4 The ld. Authorized Representative of the assessee
further relied upon the following decisions :-
(a) OASIS Educational Society vs. ADIT (Exemptions), 132 TTJ 59 ( Hyd Bench – I.T.A.T. )
(b) Aditanar Educational Institution etc. vs. Addl. CIT, 224 ITR 310 ( S. C.)
(c) ACIT vs. VATSALYA Senior Secondary School, 130 TTJ 27 (Ind. I.T.A.T. )
2.5 The ld. Departmental Representative relied on the
orders of the lower authorities.
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2.6 We have considered the facts, rival submissions and
perused the material available on record. The undisputed fact
of the case are that the assessee society does not possess
registration u/s 12A of the Act for the year under
consideration. Therefore, exemption in Section 11 & 12 is not
available to assessee. We find that the assessee is in
possession of lease hold land which belongs to individual
family member of trustees. The entire amount of Rs. 1.25
crore, given to M/s. SESPL by the assessee has been utilized
for construction of school building on the land in possession of
land. We also find that the assessee had utilized the said
building for the purpose of running school, without paying any
rent. Further, the amount of Rs. 4,01,947/- paid was for the
purpose of repayment of liability and maintenance of school
building and furniture. Therefore, we do not find any diversion
of funds as alleged by the AO. As the funds so advanced were
used for the purpose of education only. In view of these facts,
we are of the view that the assessee has properly utilized the
entire income for the purpose of educational activities. We also
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find that the buses were used for pick up and drop of the
students only for which fees were separately charged.
Therefore, it cannot be said that the buses were used for
running them on hire, as except pick and drop of student,
these buses were used. Hence, it cannot be held that the
assessee has derived any business profit from buses. However,
for the purpose of allwoability, it was considered on running
them on hire. We also note that the amount of Rs. 1.25 crore
advanced to M/s. SESPL was for the purpose of construction
of school building, as is evident from the facts that no interest
thereon has been charged nor any rent of school building was
given. This view is supported from the decision of Hon'ble
Supreme Court in the case of Aditanar Educational
Institution, etc. vs. Addl. CIT, (1997) 224 ITR 310 (S.C.),
wherein it was held that “ when surplus is utilized for
educational purposes i.e. for infrastructure development, it
cannot be said that the institution was having the object to
make profit, that the surplus used for management and
betterment of the institution could not be termed as profit.”
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2.6.1 We also find support of our view from C.B.D.T.
Instruction No. 1112 dated 29.10.1977, wherein it has been
laid down that where all objects of trust are educational and if
there is any surplus from running of educational institute,
which is used for educational purpose only and it can be held
that the said institution is existing solely for educational
purpose and not for the purpose of profit. We also find that the
assessee and M/s. SESPL has entered into an agreement
dated 31.03.2000 according to which the assessee is not to
charge any rent on security deposit and M/s. SESPL will not
charge rent from the assessee society.
2.6.2 We also find support from the decision relied by the
ld. Authorized Representative of the assessee in the case of St.
Joseph’s Upper Primary School vs. ITO, 16 TTJ 389 (Hyd.-
Trib), wherein the school was housed in two buildings owned
by the society. The other belongs to Smt. Rajamma, who was
daughter in law of Secretary of the Society, the first and
second floor was constructed by borrowings from the society.
But the society has benefit of housing of its school without
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paying any rent. It was for this reason that interest was not
charged. It was held that there was no misuse of any authority
so as to make the society’s professed objects as not being real
and, therefore, society cannot be deprived of benefit of
exemption u/s 13 of the Act. We find that the facts of the
present case is identical as here the building was constructed
on the amount given by society in which society is running
school. Therefore, the assessee society is eligible for exemption
u/s 10(23C)(iiiad) of the Act. The ld. Authorized Representative
of the assessee also relied in the case of Oasis Educational
Society vs. ADIT (Exemption) 132 TTJ 59 (Hyd), wherein the
preamble read….. that it is found that merely because the land
on which the school building was constructed belong to the
sons and wife of the Principal/Secretary of the Society, it could
not be said that the assessee society is running the
educational society for earning profit and not for charitable
purpose…. . The other case laws are relied and referred above
in submission of ld. Authorized Representative of the assessee
also support the case of the assessee society.
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2.6.3 We find that a society can claim exemption u/s
10(23C)(iiiad) of the Act, if the condition enumerated therein
are satisfied. We find that aggregate annual receipt of the
society are at Rs. 48,66,663/- which does not exceed the
amount of Rs. 1 crore for the assessment years under
consideration. Therefore, the assessee is eligible for deduction
u/s 10(23C)(iiiad) of the Act. The perusal of the assessment
order shows that imparting of educational nature of activities
carried on by the assessee has not been doubted by the AO.
The provisions of Section 10(23C)(iiiad) of the Act reads as
under :-
“(iiiad) any university or other educational institution
existing solely for educational purposes and not for
purposes of profit if the aggregate annual receipts of
such university or educational institution do not
exceed the amount of annual receipts as may be
prescribed; or……
2.6.4 The perusal of the above provision shows that the
exemption u/s 10(23C)(iiiad) of the Act is available to an
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institution, which is solely exists for educational purposes.
Therefore, the phrase used as “solely” means that not for the
purposes of profit. Therefore, plain reading of the said Section
means that an educational institution, which is engaged solely
for the purpose of imparting education is solely for the
purpose of imparting education is qualifies for the exemption
u/s 10(23C)(iiiad). The “solely” words used therein means that
the assessee institution is not carrying out other activities of
earning of profit.
2.6.5 We have gone through the case laws relied upon by
the ld. Authorized Representative of the assessee. We find
that in the case of Addl.CIT vs. Aditanar Educational
Institution, (1979) 118 ITR 235 (Mad), wherein it was held that
if a society registered under Societies Registration Act, 1880,
to run educational institution could be treated as an
educational institution itself u/s 10(22) of the Act. This
decision was approved by Apex Court in Aditanar Educational
Institution vs. Addl. CIT, (1997) 224 ITR 310 ( S.C.).
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2.6.6 In the light of above discussion, facts and
circumstances, we find that the assessee society is engaged in
the running of school and amount of surplus has also been
utilized by the assessee for construction of school building,
which was also used by the assessee, hence, the society is
engaged in the charitable purpose u/s 2(15) of the Act. Since
the gross receipts of society is less than Rs. 1 crore, therefore,
it is eligible for exemption u/s 10(23C)(iiiad) of the Act. We
also find that the facts of the present case are squarely
covered by the above decisions discussed above. Therefore, we
are of the considered opinion that the lower authorities were
not justified in not allowing the deduction to the assessee u/s
10(23C)(iiiad) of the Income-tax Act, 1961. Accordingly, the AO
is directed to treat the Society as covered by Section
10(23C)(iiiad) of the Act and allow the relief accordingly.
Accordingly, ground nos.1.1 & 1.2 are allowed.
Ground no. 2.1 & 2.2 reads as under:-
“ 2.1 That on the facts and in the circumstances of the case, the ld. CIT(A) erred in maintaining disallowance of kitchen expenses by invoking
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the provisions of Section 40(a)(ia) of the Act when the assessee has reimbursed the same to IMPERIAL ACADEMY. 2.2 That on the facts and in the circumstances of the case, the ld. CIT(A) erred in not allowing the claim of kitchen expenses as per 2nd proviso to Section 40(a)(ia) of the Act even when 2nd proviso having retrospective effect as per decision of the Hon'ble Delhi High Court in the case of Ansal Land Mark Township (P) Limited,( I.T.A.No. 160/161 of 2015)” 3.1 The AO found that the assessee has claimed Rs.
4,75,486/- as kitchen expenses out of which Rs. 1,89,000/-
were reimbursed to Sheetu Eductional Society for the kitchen
work carried out by Imperial Academy. The AO was of the view
that these expenses were paid fixed @ Rs 1000/- per student
for 189 students, hence, payment falls on services rendered
under contract, on which, TDS was liable to be deducted u/s
194C of the Act. Since, no TDS was done, hence, payments
were disallowed u/s 40(a)(ia) of the Act.
3.2 The ld. CIT(A) has observed that the payment has been
made of round figure of Rs. 1000/- per annum per student,
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hence, it is not reimbursement of actual expenses but lump
sum payment for services, hence TDS was required to be
made. As regards reliance by assessee in the case of Ansal
Land Mark Township (P) Limited (I.T.A.No. 160-161/2015
dated 26.08.2015), the CIT(A) has held that second proviso to
Section 40(a)(ia) r.w.s. 201(1) and Rule 31 ACB, specifies that
Form 26A is required to be filed for claiming benefit of second
proviso to Section 40(a)(ia), which has not been filed, hence,
dismissed the appeal.
3.3 Being aggrieved, the assessee filed this appeal before us,
the ld. Authorized Representative of the assessee submitted
that the assessee has reimbursed kitchen expenses incurred
by Imperial Academy, hence, not liable for TDS. Further, the
receipt has duly considered the receipts in their books on
which legitimate amount of tax due is paid, hence, as per
second proviso to Section 40(a)(ia) having retrospective effect
in the light of decision in the case of Ansal land Mark
Township P.Ltd. (160-161/2015 dated 26.08.2015), the AO
was not justified in disallowing the claim.
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3.4 The ld. Departmental Representative relied upon on the
orders of the lower authorities.
3.5 We have considered the facts, rival submissions and
perused the material available on record. Since, the claim of
assessee that the recipient has paid due tax in the light of
second proviso to Section 40(a)(ia), we deem fit to restore this
issue to the file of the AO for verification and if found correct
allow the same as the ratio laid down in the case of Ansal
Land Mark Township P.Ltd. [160 – 161/2015 dated
26.08.2015 ]
Ground No. 4 states as under :-
“That on the facts and in the circumstances of the case, the ld. CIT(A) erred in maintaining disallowance of Rs. 28,648/- out of kitchen expenses without properly appreciating the facts of the case and submission made before him even when there was no specific defects were pointed out by the AO in the books of accounts of the assessee.”
4.1 The assessee has claimed kitchen expenses of Rs.
5,75,486/- out of which Rs. 1,89,000/- were claimed as
reimbursement to Imperial Academy and for balance of Rs.
2,86,484/- only ledger copy was filed. On spot inquiry, the
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Inspector found that no meal was provided to students,
considering the genuineness, the AO disallowed Rs. 28,648/-
being 10% of expenses of Rs. 2,86,480/- as income for non-
education activity.
4.2 The ld. CIT(A) has also confirmed the disallowance so
made.
4.3 The ld. Authorized Representative of the assessee
submitted that kitchen expenses relates to mess facility
provided to student, teacher and staff, therefore, there was no
justification for disallowance whether books of accounts are
audited.
4.4 We have considered the facts and we are of the view that
the AO was not justified in making ad hoc disallowance when
books of accounts are audited, vouchers and accounts
produced and there cannot be any expenses other than
education purposes, hence, disallowance made by the AO is
deleted. This ground is allowed.
In the result, the appeal is partly allowed for statistical
purposes.
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The order has been pronounced in open court on the 28th February , 2017.
Sd/- Sd/- (डी.ट�.गरा�सया) (ओ.पी.मीना) �या�यक सद�य लेखा सद�य (D.T.GARASIA) (O.P.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER
�दनांक /Dated : 28th February, 2017.
CPU*