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Income Tax Appellate Tribunal, JAIPUR BENCHES, ‘’SMC” JAIPUR
Before: Hon’ble SHRI SANDEEP GOSAINvk;dj vihy la-@ITA No. 399/JP/2024
ORDER PER: SANDEEP GOSAIN, JM This appeal filed by the assessee is directed against order of the ld. CIT(A) dated 30-01-2024, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2012-13 raising therein following grounds of appeal. ‘’1, That on the facts and circumstances of the case and in law the Id. CIT(E) grossly erred in confirming the addition of Rs 1,30,747/- and 1,21,000/- made by the AO on account of Pratapeshwar Mandir and Nandini Cow Account
1. 2. That on the facts and circumstances of the case and in law the ld. CITIE) grossly erred in confirming addition made by the Id assessing officer of Rs 14,14,420-on account of creation of F.D.
3. That on the facts and circumstances of the case and in law the ld. CIT(E) grossly erred in remanding the matter back to Assessing Officer for addition on account of receipts from Well amounting to Rs. 13,46,621/-when all the information was filed during the course of assessment proceedings & is on record.’’ 2.1 Brief facts of the case are that the assessee is charitable trust engaged in the running a cow-shelter. The return of income was filed declaring nil income. However, assessment was completed u/s 143(3) of the Act thereby assessing total income at Rs.42,29,310/- and making addition under different heads. 2.2 Appeal against order of assessment was filed by the assessee but remained unsuccessful. 2.3 Aggrieved by the order of the ld. CIT(A), the assessee has now preferred the present appeal before me on the ground mentioned hereinabove. 3.1 During the course of hearing, the ld. AR of the assessee has not pressed the Ground No.3. Hence, the same is dismissed being not pressed. 4.1 The Ground No. 1of the assessee relates to confirming the addition of Rs.1,30,747/- and Rs.1,21,000/- made by the AO on account of Pratapeshwar Mandir and Nandini Cow Account. Before I proceed to adjudicate this ground, I SHREE KRISHNA GAUSHALA VS ITO (EXEMPTION), WARD –II, JAIPUR feel it necessary to analyse the order of the ld. CIT(A) and the relevant portion of ld. CIT(A)’s order at para 6.8 is reproduced as under:- ‘’6.8 Regarding the addition of Rs.1,30,747 on account of receipts from Paratapeshwar Mandir and Rs. 1,21,000 on account of Nandini Cow Account, the appellant has not brought anything before me to suggest why these items should not be part of the income of the appellant. Additions made by the AO is upheld. These items should be included in the income for the purpose of application.’’ 4.2 Now before me, the ld.AR has moved an application for leading additional evidences as the ld. CIT(A) has categorically held that the assessee has not brought anything before him to suggest as to why these items should not be part of the income of the appellant. The application moved by the assessee for leading additional evidence is reproduced below. ‘’July 30, 2024 Appeal No. No. 399/JPR/2024. Assessment Year 2012-2013 Application Under Rule 29 of the ITAT Rules, 1963 HON'BLE SIR, GROUND No. 1 Addition of Rs 1,30,747/- and 1,21,000/- made by the Id. assessing officer on account of Pratapeshwar Mandir and Nandini Cow Account. Income from Nandini Cow Account- Rs 1.21.000/- 1.1. That the assessee appellant is a registered trust and regularly filing its Income-tax Return. 1.2. That during the year under consideration assessee appellant has shown the Income of Rs 121,000/- in the Balance-Sheet and same was not included in the Income of the assessee.
SHREE KRISHNA GAUSHALA VS ITO (EXEMPTION), WARD –II, JAIPUR 1.3. That during the assessment proceeding, the assessee could not submit the explanation and documents before the ld Assessing officer regarding the claim of Rs 1,21,000/- on account of Nandini Cow which was shown in the Balance-sheet and not included in the Income. 1.4. That It is humbly submitting that total Receipt during the year under consideration from the account of Nandini Account is Rs 4,32,100/- and out the total receipt, the assessee Invested Rs 1,21,000/- in FDR and remaining shown as income during the year. 1.5. That during the assessment proceeding, assessee could not produced the receipt before the Id. Assessing officer and therefore we are filing the receipt of the Rs 1,21,000/-. Income from Pratapeshwar Mandir- Rs 1,30,747/- 2. That during the year under consideration assessee appellant has shown the Rs 130,747/- in the Balance-Sheet in the name of Pratapeshwar Mandir and same was not included in the Income of the assessee. 2.1. That during the assessment proceeding, the assessee could not submit the explanation and documents before the Id. Assessing officer regarding the claim of Rs 3,59,405/- on account of Pratapeshwar Mandir which was shown In the Balance-sheet and not included in the Income. 2.2. That It is humbly submitting that earned Rs 23,047/- from the FDR and during the year under consideration assessee also invested in Fixed Deposit of Rs 1,07,747/- from the receipt towards donation. 2.3. That during the assessment proceeding, assessee could not produce the receipt before the Id. Assessing officer and therefore we are filing the receipt of the Rs 1,07,747/-.
Therefore, it is humbly requested to kindly allow the instant application and Receipts towards the donation which could not submit during the assessment proceeding may kindly be taken on record and oblige.’’ 4.3 On the other hand, the ld. DR contested the application for leading additional evidence by submitting that the assessee has intentionally not cooperated or placed on record the documents at the time of assessment. Therefore, this application may be rejected. 4.4 After having gone through the facts of the case and also considering the application for leading additional evidence, I found that the assessee has admitted SHREE KRISHNA GAUSHALA VS ITO (EXEMPTION), WARD –II, JAIPUR that he could not produce the receipts during the course of assessment proceedings and these are necessary documents which go to the root of the case for adjudicating the controversy in question. Since these documents which now the assessee want to place on record are in the shape of receipts which needs verification at the end of the AO. Therefore, considering the interest of justice and fair play, I am of the view that the application moved by the assessee relating to additional evidence deserves to be allowed and the matter be restored back to the file of the AO who after verifying the same shall afresh order. 5.1 Now coming to Ground No. 2 raised by the assesse which relates to challenging the order of the ld.CIT(A) in confirming the addition made by the AO on account of creation of FD. 5.2 In order to support this Ground, the ld.AR of the assessee relied upon the written submission which is reproduced as under:- ‘’ITA No. 399/JPR/2024 AY: 2012-13 Fixed for hearing on 30.07.2024 May it please Your Honour, The appellant is a charitable trust registered under the Societies Registration Act and is running a cow shelter. For the sake of brevity, the facts are not being reiterated here as a summary of the same is squarely available on Pg.9-12 of the order passed by the Ld. CIT(A) on 31/01/2024 vide DIN & Order No: ITBA/NFAC/S/250/2023-24/1060281815(1), in appeal no. CIT(A). Jaipur- 3/11209/2015-16 (Manual Appeal Register Number: 209/2015-16)
The humble appellant would like to urge the following grounds of appeal before Your Honour: Ground No.2 SHREE KRISHNA GAUSHALA VS ITO (EXEMPTION), WARD –II, JAIPUR That on the facts and circumstances of the case and in law, the Ld. CIT(E) grossly erred in conforming the addition made by the Ld. AO of Rs. 14,14,420/- on account of creation of FD. 1.1. Your Honour may kindly note that there is only one effective ground in this case that requires further elucidation due to erroneous interpretations at the stage of both the assessment and first appeal. The issue at hand pertains to the taxing of an amount of Rs. 14,14,420/-. The decision on this matter was made by the Id. CIT(A) in para 6.9 on page 12 of the order dated 30/01/2024, The decision was as follows: "The A.O. excluded Rs.14,14,420/- from the purview of application of income. The creation of an FD is not deemed as an application of income towards the object of the Trust. Therefore, the addition is upheld." 1.2. It's worth noting that in the assessment order, the AO did not provide any discussion or reasoning regarding this disallowance or the taxing of the FD of Rs.14,14,420/- This issue emerged from para E on the penultimate and last page of the assessment order issued by the AO. For easy reference, the content of para E is reproduced below: ‘’E. After discussion with the A/R of the assessee and in view of necessary information called for and placed on record, exemption as claimed u/S.11 is disallowed. The total income is recomputed as below: As per receipts and payment account:- Receipts: 94,75,656/- Less opening balance: - 13,83,603/- Add income from Pratapeshwar Mahadev Mandir a/c: 1,30,747/- Add income from Nandini cow a/c: 1,21,000/- Add income from well a/c to the extent not included: 13,46,621/- Total receipts: 95,59,674/- Payments: 94,75,656/- Less closing balance: - 11,36,978/- Less fixed deposits: - 14,14,420/- Less capital expenditure: - 17,96,198/- Add expenses to well a/c to the extent not included: 2,02,304/- Total expenses: 53,30,364/- Net Profit: 42,29,310/- Your Honour, it is imperative to highlight at this juncture that there is a calculation error in the assessment order w.r.t. the amount of total receipts that actually works out to Rs.96,90,421/-. 1.3. The Ld. AO, after an incorrect appreciation of the exemption provisions and the facts of the case, has denied exemption to the appellant and has treated the charitable trust as a commercial organization. Initially, the Ld. AO refused to accept that the appellant had registration u/S.12A SHREE KRISHNA GAUSHALA VS ITO (EXEMPTION), WARD –II, JAIPUR even though the certificate u.S.80G was produced before his good-self. The Ld. CIT(A), during appellate proceedings, allowed relief and deemed that the appellant was worthy of exemption, holding that a certificate u/S.80G cannot be given unless the trust is registered u/S.12A. 1.4. Once the status of the appellant as a charitable trust eligible for exemption from the incidence of tax was clarified by the Ld. CIT(A), then the provisions of S.11 become applicable and the same are being reproduced hereunder for Your Honour's ready reference:
11. (1) Subject to the provisions of sections 60 to 63, the following income shall not be included in the total income of the previous year of the person in receipt of the income- (a) income derived from property held under trust wholly for charitable or religious purposes, to the extent to which such income is applied to such purposes in India; and, where any such income is accumulated or set apart for application to such purposes in India, to the extent to which the income so accumulated or set apart is not in excess of fifteen] per cent of the income from such property; 1.5. Thus, the provisions of S.11 cast a responsibility on a charitable trust to spend an amount of 85% of its receipts towards the objects of the trust and the balance 15% can either be saved or set apart. 1.6. That assessee appellant had disclosed receipts at Rs. 94,76,656/-. Consequently, we ought to have spent 85% of the same towards the objects of the trust and the remaining 15%, which works out to Rs. 14,21,348/-, could either have been saved or set apart for future use. The investment in FD was of Rs. 14,14,420/-, which is lesser than the quantum of maximum amount of Rs. 14,21,348/, to be eligible for 100% exemption. 1.7. Notwithstanding the averments made in the paragraph above, your honour may kindly appreciate that we had an opening balance of Rs.13,83,603/-, and the normal presumption would be that the FD made would include the amount of the opening balance. In that case, the amount actually set apart or not expended amounts to a paltry sum of Rs.30,817/-. 1.8. The Ld. AO refused to recognise the appellant as a charitable trust in the absence of a certificate u/S.12A, owing to which the benefit of exemption was denied to it. However, the Ld. CIT(A) has, in cogent terms, stated that absence of a certificate of registration cannot prove absence of registration. Since the appellant produced certificate of registration u/S.80G which would not be granted by the Department without prior approval of the same institution u/S.12AA, there is no case to doubt the absence of registration. In light of this, there were no material facts or legal reasoning on the basis of which the Ld. CIT(A) has upheld the AO's stance to exclude Rs. 14,14,420/- from the purview of application of income., as this amount falls within the legally stipulated amount of 15% of receipts that could have been either set apart or saved for the future. 1.9. The following case laws have been relied upon to substantiate the case of the appellant:
1. HIGH COURT OF BOMBAY Commissioner of Income-tax v. Lilavati Kirtilal Mehta Medical Trust [2015] 54 taxmann.com 247 (Bombay)
SHREE KRISHNA GAUSHALA VS ITO (EXEMPTION), WARD –II, JAIPUR Section 11 of the Income-tax Act, 1961 Charitable or religious trust Exemption of income from property held under - Assessee-trust claimed exemption under section 11 Assessing Officer disallowed claim on ground that 85 per cent of net income had not been spent on charitable activities Facts revealed that after deducting running expenses and capital expenses on purchase of medical equipments from gross receipts, percentage of profit was 14.6 per cent, which was lower than 15 per cent permitted to be accumulated as per Act of trust income had object of trust, assessee Whether since 85 per cent been applied towards would be entitled to exemption under section 11 Held, yes (Para 10] [In favour of assessee) ii. IN THE ITAT HYDERABAD BENCH 'B' Deputy Commissioner of Income-tax v. National Fisheries Development Board [2024] 160 taxmann.com 5 (Hyderabad Trib.) It was observed that assessee had maintained books of account, bills, vouchers and all other requisite supporting documents in respect of grants received, spent and other activities - Such books were audited by independent auditors - Assessee had been following accounting procedure as defined in GFR 230(5) of Government of India and directions of Integrated Financial Division of Ministry of Agriculture, Government of India (IFD) over years and treating all grans as liabilities and only when grants were utilised by implementing agencies they were treated as income and when utilisation certificates were received, they were treated as expenditure irrespective of year in which grant was received, as per directions of Government of India - There was no income element on grant of funds by Central Government, nor any expenditure incurred merely by allocation Assessee had spent 85 per cent of income for objectives - Further, such an investment was made in SDMSSL, in financial year 2008-09 and not during current year and never in earlier years any objection on that aspect was taken Whether, in view of aforesaid, order passed by Commissioner (Appeals) was to be upheld - Held, yes [Paras 4 to 16] [In favour of assessee) 1.10.It is also a settled principle of law that Section 11(5) provides for investing or depositing money referred to in clause (b) of sub-section 2 of section 11, in the identified investments falling in clause (i) to (xii) of section 11(5). The money referred to in clause (b) of section 11(2) is one accumulated or set apart. Meaning thereby that even if 85% of the income is applied to charitable or religious purposes then to claim exemption on the whole of the income, the accumulated or set apart income has to be deposited or invested in the investments identified in section 11(5). The Hon'ble ITAT Chandigarh Bench vide order dated 04.11.2015 in IT Appeal no.80(CHD) of 2015 in the case of ITO(Exemptions), Ambala v. SD Public School has held that "It is evident from a bare perusal of the section that for the purpose of claiming exemption u/s 11 of the Act, 85% of the income from property held under trust for charitable or religion purposes should be "applied" to "such" purposes meaning charitable purposes. The same is to be done in the same year but where an assessee is unable to apply such income, a saving grace is provided in Explanation 2 to section 11(1) (a) whereby the application of income for charitable purposes can be postponed, by intimating the AO in writing of the same. Similarly section 11(2) also gives a further period of 5 years for application of income provided the assessee accumulates it for a specific and charitable purpose, intimates the same to the AO in a specified form and invests it in modes specified u/s 11(5). The common thread running through section 11(1)(a), Explanation (2)
SHREE KRISHNA GAUSHALA VS ITO (EXEMPTION), WARD –II, JAIPUR to section 11(1) and in section 11(2) is that the income of the trust must be applied for charitable purposes whether in the same years or in succeeding years. Meaning thereby it must be used for charitable purposes. This conclusion is logical enough considering that exemption u/s 11 is granted to charitable organizations for carrying out charitable activities. Thus it is only when funds of such entities are utilized for charitable purposes, the object of the entity will be achieved which in tum would justify the exemption granted by statute to such entities.
In the backdrop of the above factual and legal position we shall now proceed to examine whether investment of funds of the assessee trust in FDRs could be treated as application of income for charitable purpose. For arriving at this conclusion there has to be nexus between investment in FDRs and achievement of the charitable objects of the assessee, meaning thereby that by virtue of making this investment, some charitable objects of the assessee should be achieved. The purpose/intention for which the investment is made should be towards fulfilling the charitable objects of the assessee. Merely deposit of surplus funds in FDRs cannot be treated as application of funds for the purposes of charity. But if the deposit in FDRs is made for using them in the future for charitable purposes, the same will amount to application for charitable purposes subject to the condition that the same is done in conformity with the provisions of section 11(2) of the Act whereby the assessee has to inform the AO of this accumulation of income along with the specific purpose also for which it has been accumulated and utilize the same in five years.
In the present case we find that there is no finding by the authorities below regarding the purpose of investments in the FDRs. If the investments were made only to take care of the surplus funds of the assessee it would not amount to using the income of the assessee for charitable purposes. If the investment was made to set aside funds for future use for specific purpose of the trust, the same ought to have been done as per the provisions of section 11(2) by filing Form No. 10B to the AO. We find that the assessee has denied any claim of application of income u/s 11(2) of the Act, in the Audit Report submitted. Therefore this possibility is ruled out.
In the impugned case, we find that both the AO and the ld. CIT(A) have not examined this aspect. There is no finding in the orders of authorities below as to the purpose of making the investment. Even in the case of Ved Prakash Mukand Lal Educational Society (supra) relied upon by the ld. CIT(A), while allowing the assessee's appeal, the Hon'ble Tribunal has treated the investment in FDRs as application only on account of the fact that as per the Memorandum of Association of the assessee society, the objects of the assessee society, in addition to running Educational and Technology Institute, as per clause (vii) was to invest the money of the society in a manner as provided u/s 11(5) of the Act. In our considered opinion the examination of this aspect is important for determining whether the investment in FDRs could be treated as application for charitable purpose. The ld. CIT(A) while allowing the assessee's claim has not examined the case on the touchstones of the parameter on the basis of which the investment in FDRs was treated as application in the case of Ved Prakash Mukand Lal Educational Society (supra)." 1.11. The investment options available for trusts and foundations are subject to strict regulation by various laws and guidelines. Typically, these organizations are limited to investing in bank SHREE KRISHNA GAUSHALA VS ITO (EXEMPTION), WARD –II, JAIPUR fixed deposits, certain debt funds, and select government bonds. Bank fixed deposits are an attractive option for trusts and foundations that require flexibility and easy access to their funds. By placing surplus funds in fixed deposits, these organizations can allow their savings to grow through the accumulation of interest, providing a source of additional resources for future use. In the specific scenario at hand, the decision to invest accumulated funds in fixed deposits was made to secure these assets and further bolster the organization's financial reserves, ensuring continued support for the trust's objectives. Furthermore, the provision for making such investments is also included in the rules and regulations of the appellant trust. 1.12. Therefore, it is most respectfully submitted that in view of the facts mentioned above, the FD amount of Rs. 14,14,420/- is well within the allowable limit of 15% to avail complete exemption and is also in consonance with the provisions of S.11(5) of the Act, and it is humbly requested that relief on this account be granted to the appellant.’’ 5.3 On the other hand, the ld.DR relied upon the orders passed by the Revenue Authorities. 5.4 Before coming to the merits of the case, I have analyzed the order of the ld. CIT(A) and the relevant portion of ld. CIT(A)’s order at para 6.9 is reproduced as under:- ‘’6.9 The AO excluded Rs.14,14,420 from purview of application of income Creation of an FD is not application of income towards the object of the trust. This addition is upheld’’ 5.5 After having heard the Counsel for both the parties and perusing the order of the ld.CIT(A), I found that the ld. CIT(A) has adjudicated this ground only in one line order where in it is mentioned that Creation of an FD is not application of income towards the object of the trust but at the same time the ld. CIT(A) has not dealt with the contentions raised by the assessee. Moreover, the ld.CIT(A) has not mentioned any basis for coming to this conclusion. Thus, I can very well hold that SHREE KRISHNA GAUSHALA VS ITO (EXEMPTION), WARD –II, JAIPUR reaching a conclusion is very easy but recording of reasons or basis for reaching to the conclusion is heartbeat of order and since the findings recorded by the ld.CIT(A) is without any basis or reasoning and contentions raised by the assessee have not been controverted or rebutted or discussed or dealt with, therefore, to my mind this order passed by the ld.CIT(A) cannot be permitted as a speaking order. Be that as it may, at this stage, I am of the view that the ld. CIT(A) being statutory authority was under legal obligation to deal with the submission of the assesse and to record the reasoning before reaching to any conclusion. Hence, in my view this issue also deserves to be set aside to the file of the ld. CIT(A) with the direction to deal with the submissions of the assessee and to pass a well reasoned speaking order. Hence, the matter is restored to the file of the ld. CIT(A) to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings. Thus the appeal of the assessee is allowed for statistical purposes. 5.6 Before parting, the Bench makes it clear that its decision to restore the matter back to the file of the ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by ld. CIT(A) independently in accordance with law.
SHREE KRISHNA GAUSHALA VS ITO (EXEMPTION), WARD –II, JAIPUR 3.0 In the result, the appeal of the assessee is partly allowed for statistical purposes with no orders as to cost. Order pronounced in the open court on 04/10/2024.