M/S. A V M CHARITIES,CHENNAI vs. ITO, EXEMPTIONS WARD-1, CHENNAI, CHENNAI

आदेश / O R D E R PER BENCH:

This bunch of ‘seven’ appeals filed by the assessee are directed against separate, but identical orders of the Commissioner of Income Tax (Appeals)-20, Chennai, all dated 30.10.2023 and pertains to assessment years 2012-13 to 2018-19. Since, facts are identical and issues are common, for the sake of convenience, these appeals were heard together and are being disposed off, by this consolidated order. to 1638/Chny/2023 :: 2 ::

2. The assessee has, more or less, raised common grounds of appeal for both the assessment years. Therefore, for the sake of brevity, grounds of appeal filed for the AY 2012-13 in , are re- produced as under:

3. For that the Learned Commissioner of Income Tax (Appeals) erred in upholding the reopening of the completed assessment beyond a period of four years, where there is no failure on the part of the appellant to disclose fully and truly all material facts.

4. For that the Learned Commissioner of Income Tax (Appeals) erred in upholding the Assessment Order without appreciating the fact that it is a settled principle of law that 'change of opinion' is not permissible under the garb of reopening of a completed assessment.

Without prejudice to the above grounds, we raise the following grounds:

5. For that the Learned Commissioner of Income Tax (Appeals) erred in confirming the action of the Learned AO in denying the claim of exemption claimed u/s.11 of the Act, without appreciating the facts and circumstances of the case.

6. For that the Learned Commissioner of Income Tax (Appeals)by upholding the denial of claim of exemption u/s 11 of the Act erred in denying the treatment of income from Kalyanamandapam as business income, despite the decision of Hon'ble ITAT in appellant's own case rendered in the earlier Assessment Years treating such income as income from property held under trust.

7. For that the Learned Commissioner of Income Tax (Appeals) erred in concluding that the activity of renting of Kalyanamandapam is commercial in nature without appreciating the fact that the said activity is incidental to the attainment of the objects of the Trust as the income derived from such activity were purely utilized for the purposes of charity in the view of provisions of section 11(4) of the Act.

8. For that the Learned Commissioner of Income Tax (Appeals) erred in denying the entire, exemption claimed u/s.11 of the Act by merely stating that - 'since there is a violation of provisions of section 13(1)(c) of the Act, entire exemption claimed u/s.11 is not allowable including the income received from kalyanamandapams' without assigning proper reasons for denial of entire exemption.

to 1638/Chny/2023 :: 3 ::

9. For that the Learned Commissioner of Income Tax (Appeals) ought to have restricted the denial of claim of exemption u/s.11 of the Act to the extent of alleged violation of provisions of section 13(1)(c) of the Act.

10. For that the Learned Commissioner of Income Tax (Appeals) erred in treating the alleged difference in the rental income from M/s.Cine Film Distributors amounting to Rs.1,19,70,707/- as income of the appellant by invoking provisions of section 13(1)(c) r.w.s.13(2) of the Act and in consequently erred in levying tax at maximum marginal rate as per Proviso to Section 164(2) of the Act.

11. For that the Learned Commissioner of Income Tax (Appeals) erred in confirming the action of Assessing Officer for invoking the provisions of section 13(1)(c) of the Act with respect to the renting of immovable property to M/s.Cine Film Distributors without appreciating the fact that construction costs were incurred by M/s.Cine Film Distributors.

12. For that the Learned Commissioner of Income Tax (Appeals) erred in confirming the addition of the depreciation as claimed by the appellant amounting to Rs.38,24,001/-.

13. For that the Learned Commissioner of Income Tax (Appeals) erred in confirming the addition of the depreciation as claimed by the appellant amounting to Rs.38,24,001/- without appreciating the fact that the provisions of section 11(6) of the Act were amended vide Finance Act, 2014 which was prospectively applicable from AY 2015-16.

14. For that the Learned Commissioner of Income Tax (Appeals) erred in taxing the addition of the depreciation of Rs.38,24,001/- without appreciating the fact that, despite the addition of depreciation, more than 85% of the gross receipts had been spent towards the objects of the trust, thus satisfying the requirements of Section 11.

15. Assuming but not admitting the decision of Learned Commissioner of Income Tax (Appeals) having held that the appellant is not eligible for exemption u/s.11 of the Act, he ought to have allowed the claim of depreciation amounting to Rs.38,24,001/- in accordance with provisions of section 32 of the Act.

For these grounds and such other grounds that may be adduced before or during the hearing of the appeal, it is prayed that the Hon'ble Tribunal may be pleased to delete the additions made and/or pass such other orders as this Hon'ble Tribunal deems fit.

u/s.11 of the Act. The assessee Trust was having income from two Kalyanamandapams, namely M/s Rajeswari Thirumana Kalyanamandapam (in short “RTK“), located in Dr.Radhakrishnan Salai, Chennai, and Mena Kalyanamandapam (in short “Mena”), located at Kumaran Colony Main Road, Vadapalani, Chennai. The assessee was also running a Health Centre at AVM Charities Health Centre at Vadapalani.

Apart from this, the assessee had given a property of 5 acres with building located at Valasarawakkam, Chennai, to a Trust called AVM Rajeswari Educational Trust, from which, the latter run a School called Avichi. The assessee had let out one other building at P.S. Sivaswamy Road, Chennai, to AVM Medical and ENT Research Foundation for running a Diabetic Centre. The assessee had also given a space for library at Virugambakkam, Chennai, run by the Government. The assessments for AYs 2012-13 to 2014-15 were completed u/s.143(3) of the Act, and the AO denied exemption u/s.11 of the Act, by invoking provisions of Sec.2(15) of the Act, by holding that the activities of the assessee Trust comes under advancement of any other object of General Public Utility (in short “GPU“). From the AY 2015-16, there was no scrutiny assessment.

The assessee had challenged denial of exemption u/s.11 of the Act, by the AO before the ITAT. The ITAT Chennai Benches, vide their order dated 02.01.2019 in to 286/Chny/2018 held that running of Kalyanamandapam by the assessee Trust/Society is incidental to the attainment of main objects and is covered by Sec.11(4) of the Act, but to 1638/Chny/2023 :: 5 :: not hit by proviso to Sec.2(15) of the Act, and thus, directed the AO to allow exemption u/s.11 of the Act, as claimed by the assessee up to assessment years 2014-15.

recorded, as per which, any income chargeable to tax had been escaped assessment on account of under assessment of rental income from letting out of property to M/s.CFD, and accordingly, notice u/s.148 of the Act, dated 29.03.2019 was issued and served on the assessee. In response to notice u/s.148 of the Act, the assessee Trust filed a letter on 03.09.2019 and stated that return of income originally filed u/s.139(1) of the Act, may be treated as return filed in response to notice u/s.148 of the Act.

The cases were selected for scrutiny and during the course of assessment proceedings, the AO noticed that the assessee Trust has allowed benefit to the interested persons referred to u/s.13(2) of the Act, by letting out land & building for the use of persons during the previous year without charging adequate rent or other compensation and thereby, violates provisions of Sec.13(1)(c) of the Act. Therefore, called upon the assessee to explain ‘as to why’ the benefit of exemption u/s.11 of the Act, cannot be denied for AYs 2012-13 to 2018-19. The AO had also called upon the assessee Trust to explain ‘as to why’ difference between the rental income offered by the assessee Trust towards letting out properties to M/s.CFD and rental income received by M/s.CFD from three tenants as income of the assessee Trust. The AO had also called upon the assessee to explain ‘as to why’ depreciation on fixed assets claimed as application of income u/s.11(1)(a) of the Act, cannot be disallowed, because, the assessee Trust has claimed cost of asset purchased as application of income in the year of purchase. to 1638/Chny/2023 :: 7 ::

per agreement between the parties. The assessee further submitted that depreciation on fixed assets, the cost of which has been treated as application of income for charitable purpose u/s.11(1)(a) of the Act, is covered by the decision of the Hon’ble Supreme Court in the case of CIT v. Rajasthan & Gujarati Charitable Foundation, Poona, reported in [2018] 89 taxmann.com 127 (SC) up to AY 2014-15, and thus, even if cost of to 1638/Chny/2023 :: 8 ::

asset has been claimed as application of income, depreciation should be allowed for computing income from property held under Trust.

9. The Ld.CIT(A) after considering relevant submissions of the assessee and also taken note of certain judicial precedents, rejected the ground taken by the assessee challenging re-opening of assessment for AYs 2012-13 to 2016-17 on the ground that there is a failure on the part of the assessee to disclose fully and truly all material facts necessary for completion of assessment in respect of rental income received from M/s.CFD on let out of premise which is clearly evident from Form No.10B filed by the assessee for all assessment years, where, the assessee has not disclosed the details with regard to income or properties of the Trust was made or continued to be made available for the use of any such persons during the previous year referred to u/s.13(3) of the Act. The Ld.CIT(A) further held that during the course of survey u/s.133A of the Act, the Department has gathered information, which clearly shows that the assessee has let out its property to a partnership firm, where, the trustees are partners of a firm for nominal rent, which is far less than the prevailing market rate of the property which amounts to allowing the benefit of Trust directly or indirectly to the persons referred to u/s.13(3) of the Act, and thus, rejected the ground taken by the assessee and upheld re-opening of assessment.

10. The Ld.CIT(A) had also upheld the findings of the AO in denial of exemption u/s.11 of the Act, on the ground that once the Trust violates provisions of Sec.13(1)(c) of the Act, then, the benefit of exemption to 1638/Chny/2023 :: 11 ::

u/s.11 of the Act, cannot be allowed. The Ld.CIT(A) discussed the issue at length in light of discussion of the ITAT in the assessee own case along with certain judicial precedents and held that although, the ITAT has held that the objects of the Trust are charitable in nature and further, running of Kalyanamandapam is incidental to the attainment of main objects and is covered by u/s.11(4) of the Act, but facts are that the Trust violates provisions of Sec.13(1)(c) of the Act, and thus, the benefit of exemption u/s.11 of the Act, cannot be allowed. Therefore, the CIT(A) upheld the findings of the Assessing Officer for denial of exemption u/s.11 of the Act.

The Ld.CIT(A) had also upheld the additions made by the AO towards difference in rental income received by the assessee Trust from the partnership firm, M/s.CFD, and rental income received by M/s.CFD, from three tenants on the ground that the facts gathered during the course of survey clearly shows that the assessee has under stated rental income towards letting out of properties and thus, the AO has rightly made additions towards difference between rental income in the hands of the assessee as its income. The Ld.CIT(A) has also upheld additions made by the AO towards disallowance of depreciation on fixed assets on the ground that the income of AOP which is not eligible for exemption u/s.11 of the Act, should be computed under normal commercial accounting principles, and thus, once the cost of asset has been allowed as deduction in the year in which such asset was purchased, depreciation on said assets, cannot be allowed as deduction and thus, rejected arguments of to 1638/Chny/2023 :: 12 :: the assessee and sustained additions made by the AO towards disallowance of depreciation. Aggrieved by the order of the Ld.CIT(A), the assessee is in appeals before us.

the Trust and income derived from such activities were purely utilized for the purpose of charity and thus is covered under provisions of Sec.11(4) of the Act. The Ld.Counsel for the assessee referring to reasons recorded by the AO for re-opening of assessment submitted that the reasons given by the AO is verbatim reproduction for all assessment years and the AO has computed under assessment or escapement of income from the return of income filed by the assessee towards rental income received by the assessee Trust from M/s.CFD and rental income received by the partnership firm. From the above, it is undisputedly clear that the re- opening of assessment is contrary to provisions of Sec.147 of the Act, because, the assessments have been re-opened after four years from the end of relevant assessment years without any allegation of failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. Therefore, he submitted that the re-opening of assessments for AYs 2012-13 to 2016-17 should be quashed.

12. The Ld.DR, Shri V. Nandakumar, CIT, on the other hand, supporting the order of the Ld.CIT(A) submitted that the assessee has not made full and true disclosure of income derived from property let out to partnership firm, M/s.CFD, where the trustees of the Trust are partners. This fact has been noticed during the course of survey conducted u/s.133A of the Act, where the Department has gathered information and as per said information, the assessee has let out these properties for nominal rent to partnership firm, in which, the trustees are interested and the firm has to 1638/Chny/2023 :: 14 ::

derived huge rental income. This fact has not been disclosed by the assessee in the return of income in the relevant assessment year.

Although, the assessments for AYs 2012-13 to 2014-15 were concluded u/s.143(3) of the Act, but there is no full and true disclosure from the assessee with regard to let out of properties and rental income derived from partnership firm in Form No.10B filed for all these assessment years.

Further, assessments for AYs 2015-16 & 2016-17 are completed u/s.143(1) of the Act, and the AO has not considered the issue.

Therefore, provisions of Sec.147(1) of the Act, does not apply for AYs 2015-16 & 2016-17. The Ld.CIT(A) after considering relevant facts has rightly upheld the re-opening of assessment and their orders should be upheld.

The AO was of the opinion that there was under assessment of rental to 1638/Chny/2023 :: 15 :: income towards let out of property to partnership firm. According to the AO, the assessee has let out property to a partnership firm, in which, the trustees of the assessee Trust are partners for a nominal rent which is far more less than the prevailing market rate of the property. Therefore, the AO opined that the assessee Trust has directly or indirectly allowed property or income of the Trust to the persons referred to u/s.13(3) of the Act, and thereby, violates provisions of Sec.13(1)(c) of the Act.

Therefore, re-opened the assessments u/s147 of the Act, for the reasons stated as per which income chargeable to tax had been escaped assessment u/s.147 of the Act.

assessment for such assessment year by the reason of failure on the part of the assessee to make a return u/s.139 of the Act or to disclose fully and truly all material facts necessary for his assessment for that assessment years. From the combined reading of provisions of Sec.147 of the Act and proviso provided therein, it is undoubtedly clear that in case of original assessment was made u/s 143(3) of the Act, the assessments cannot be reopened after four years from the end of the relevant assessment year, unless there is a failure on the part of the assessee to disclose fully and truly all material facts necessary for that assessment year. In other words, if the AO wants to re-open the assessment after four years from the end of the relevant assessment year, then, there should be clear finding with respect to failure of the assessee to fully and truly disclose necessary information for that assessment year. Unless, there is a finding from the AO with regard to failure on the part of the assessee to fully and truly disclose all material facts necessary for these assessment years, the assessments cannot be re-opened u/s.147 of the Act. In this case, the AO has re-opened the assessments, on the ground that there is no full and true disclosure from the assessee in respect of rental income derived from let out of property to a partnership firm and according to the AO, said non-disclosure amounts to failure on the part of the assessee to disclose fully and truly all material facts necessary for that assessment year. In our considered view, the AO is completely erred in coming to the conclusion that there is to 1638/Chny/2023 :: 17 :: a failure on the part of the assessee to disclose fully and truly all material facts necessary for that assessment year, because, the assessee has very much disclosed rental income derived from let out of property to the partnership firm, M/s.CFD, in the return of income filed for AYs 2012-13 to 2014-15. The assessment for the above three years were completed u/s.143(3) of the Act. The assessee has filed all details including relevant financial statements for the above assessment years before the AO and the AO has completed assessment without there being any observation with regard to rental income derived by the assessee from the partnership firm. From the above, it is undisputedly clear that the assessee has made full and true disclosure of all facts necessary for completion of assessment in respect of rental income derived from the partnership firm, and thus, in our considered view, the re-opening of assessment after four years from the end of the relevant assessment years is bad in law and liable to be quashed. This legal preposition is supported by the decision of the Hon’ble Supreme Court in the case of CIT v. Foramer France reported in [2003] 264 ITR 566 (SC), wherein the Hon’ble Supreme Court has held as under:

Section 148, read with sections 147 and 153, of the Income-tax Act, 1961 - Income escaping assessment - Issue of notice for - Assessment years 1988-89 to 1990-91 - Petitioner-foreign company was engaged in business of oil exploration and providing expertise and assistance in said field - Proceeds from manning and management contracts received by petitioner were originally assessed in February, 1991 under section 143(3) treating same as business income in terms of section 44BB - However, following Tribunal's decision rendered in case of petitioner's expatriate employee, Assessing Officer issued a notice under section 148 in November, 1998 seeking to reassess same income as fees for technical services - Whether law prevailing on date of issue of impugned notice would apply to instant case, and since new section 147 had come into force with effect from 1-4-1989, provisions of that section were applicable - Held, yes - Whether since admittedly there was no failure on part of to 1638/Chny/2023 :: 18 :: petitioner to make return or to disclose fully and truly all material facts necessary for assessment, proviso to new section, which bars issue of notice under section 148 after expiry of four years from end of relevant assessment year, squarely applied to facts of instant case and, therefore, impugned notice was barred by limitation - Held, yes - Whether since notice under section 148 was without jurisdiction, there was no merit in plea that petitioner was to be relegated to alternative remedy - Held, yes.

A new section substituted section 147 with effect from 1-4-1989. The new section 147 has made a radical departure from the original section 147 inasmuch as clauses (a) and (b) of the original section 147 have been deleted and a new proviso added to section 147.

In Rakesh Aggarwal v. Asstt. CIT [1997] 225 ITR 496/[1996] 87 Taxman 306, the Delhi High Court held that in view of the proviso to section 147 notice for reassessment under section 147/148 should only be issued in accordance with the new section 147 and where the original assessment had been made under section 143(3), then in view of the proviso to section 147 the notice under section 148 would be illegal if issued more than four years after the end of the relevant assessment year. In the instant case, the law prevailing on the date of issue of the notice under section 148, i.e., 20-11-1998, had to be seen. Admittedly, by that date, the new section 147 had come into force and, hence, it was the new section 147 which would apply to the facts of the present case. In the instant case, there was admittedly no failure on the part of the assessee to make a return or to disclose fully and truly all material facts necessary for the assessment. Hence, the proviso to the new section 147 squarely applied, and the impugned notices were barred by limitation mentioned in the proviso.

The revenue relied on section 153(3)(ii ) and submitted that there was no bar of limitation in view of the said provision. There was no merit in such to 1638/Chny/2023 :: 19 :: a plea. Section 153 relates to passing of an order of assessment and it does not relate to issuing of notice under section 147/148. Moreover, this was not a case where reassessment was sought to be made in consequence of, or to give effect to, any finding or direction contained in the order of the Tribunal in Boudier Christian's case. As already stated above, Boudier Christian's case related to the employees of the company, whereas the impugned notice had been issued to the company. Hence, it could not be said that the proposed reassessment in consequence of the impugned notice would be in consequence of, or to give effect to, any findings of the Tribunal in Boudier Christian's case.

A direction or finding as contemplated by section 153(3)(ii) must be a finding necessary for the disposal of a particular case, that is to say, in respect of the particular assessee and in relevance to a particular assessment year. To be a necessary finding, it must be directly involved in the disposal of the case. To be a direction as contemplated by section 153(3)(ii), it must be an express direction necessary for the disposal of the case before the authority or court.

The case of an expatriate employee was to be decided on the basis of the provisions of article XIV of the treaty with France, whereas corporate income was to be decided on the basis of either article III or article XVI of the treaty or section 44BB. Hence, the observation of the Tribunal in Boudier Christian's case was not a direction necessary for the disposal of the appeal relating to the petitioner. The eligibility of income of the petitioner from manning and management contracts was never an issue directly or indirectly involved in the case of Boudier Christian.

Moreover, the Tribunal in the appeal relating to the assessment of the petitioner's own case, vide Dy. CIT v. O.N.G.C. As agent of Foramer France[1999] 70 ITD 468 (Delhi), had considered the decision of the Tribunal in Boudier Christian's case. It is settled law that an appeal is a continuation of the original proceedings and, hence, when the Tribunal in the appeal relating to the petitioner had considered the decision of the Tribunal in Boudier Christian's case, the impugned notice under section 147/148 would obviously be on the basis of a mere change of opinion by the income-tax authorities, which would not be valid.

In the decision of the Tribunal in the assessee's own case, - O.N.G.C.'s case (supra), it had been held that the income from the contract between the parties was business income and not fee for technical services.

As regards alternative remedy, since the notice under section 148 was without jurisdiction, the petitioner should not be relegated to his alternative remedy. The writ petition was, accordingly, allowed and the impugned notices were to be quashed.

of assessments for AYs 2012-13 to 2014-15 is bad in law and are liable to be quashed, because, the assessments have been re-opened without there being any allegation as to failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment year and for that assessment years. The Ld.CIT(A) without appreciating relevant facts simply upheld re-opening of assessment. Thus, we quashed re-opening of assessments and orders passed by the AO u/s.143(3) r.w.s.147 of the Act for AYs 2012-13 to 2014-15.

escapement of income. The AO has formed reasonable belief of escapement of income and thus, in our considered view, re-opening of assessments for AYs 2015-16 & 2016-17 are valid in accordance with law and thus, we reject the arguments of the assessee and also reject grounds taken by the assessee challenging validity of assessment for AYs 2015-16 & 2016-17. Thus, reopening of assessment for Asst. Years 2015- 16 & 2016-17 are upheld.

The facts with regard to the impugned dispute are that the assessee is a registered society under Society Registration Act, 1860 and having registration u/s.12AA of the Act. The assessee has claimed exemption u/s.11 of the Act, in respect of income derived from property held under trust, which includes income from two Kalyanamandapams namely Rajeswari Thirumana Kalyanamandapam and Mena Kalyanamandapam.

The assessee had also derived income from letting out of properties to various Trusts and persons. The AO denied exemption u/s.11 of the Act, on the ground that the activity of running Kalyanamandapam is in the nature of trade and commerce which is hit by proviso to Sec.2(15) of the Act, and as per said proviso, if gross receipts exceeds threshold limit, then, the assessee looses the benefit of exemption u/s.11 of the Act. to 1638/Chny/2023 :: 22 ::

Act, and thus, argued that the benefit of exemption u/s.11 of the Act, should be allowed as claimed by the assessee.

Ahmadabad Urban Development Authority reported in [2022] 449 ITR 1 (SC), the law has been changed in so far as the GPU trusts are concerned. The Ld.DR further submitted that as per the decision of the Hon’ble Supreme Court, there is a difference between running of a business as a property held under Trust and running of a business as a property held for the Trust. If running of a business as property held under Trust, then, the Trust can took advantage of provisions of Sec.11(4) of the Act, and claim the benefit of exemption. In case, the business has been run on behalf of Trust and such business is in the nature of GPU activities and covered by provisions of Sec.2(15) of the Act, then, said Trust cannot claim the benefit of exemption u/s.11 of the Act.

In the present case, the assessee Trust main activities are running of Kalyanamandapam as a commercial activity and spending meager amount to 1638/Chny/2023 :: 24 :: for Charitable Trust. Therefore, the AO and the Ld.CIT(A) rightly held that the assessee Trust is not entitled for exemption u/s.11 of the Act. The Ld.DR further submitted that the AO has also brought out violation of provisions of Sec.13(1)(c) of the Act, and in case, there is a violation of Sec.13(1)(c) of the Act, then, said Trust cannot claim the benefit of exemption u/s.11 of the Act. Therefore, he submitted that the order of the Ld.CIT(A) should be upheld.

activities carried for these assessment years, there is no dispute that the assessee Trust has carried out its activities in accordance with the objects and the objects of the Trust are charitable in nature and more particularly in the field of medical relief. Further, this issue has already been settled by the Coordinate bench in assessee own case in the earlier round of litigation in to 286/Chny/2018 order dated 02-01-2019. The ITAT after considering the main objects of the Trust, the activities carried out for relevant assessment year and also the income derived from running of Kalyanamandapam has held that the activity of running Kalyanamandapam is property held under Trust and rental income received by the assessee from Kalyanamandapam that which was in the nature of income from business, but such income was derived from property held under Trust. The Tribunal further held that such business of running a Kalyanamandapam is incidental to attainment of main objects and the assessee Trust can take advantage of sub-section (4) to sec.11 of the Act. The Tribunal further held that the audited accounts filed along with its return clearly shows separate income and expenditure for each of the activities including Kalyanamandapam and thus, sub-sec 4A is not applicable to the assessee once its business is considered as incidental to the attainment of its main objects. The relevant findings of the Tribunal are as under:

business. In fact Hon’ble Jurisdictional High Court while remitting the question back to the ld. Commissioner of Income Tax (Appeals) for assessment years 1997-98, 98-99 etc, had indicated that income of the assessee from the Kalyanamandapam was more in the nature of business income, by virtue of the judgment of their Lordships in the case of CIT vs.Halai Nemon Association, (2000) 243 ITR 439. This view was taken by their Lordships overruling the opinion of this Tribunal in the earlier round, wherein Co-ordinate Bench held the income from Kalyanamandapam as income from house property. For taking this view, in the earlier round, this Tribunal had relied on a judgment of Jurisdictional High Court in the case of CIT vs. Samyuktha Gowda Saraswatha Sabha, (2000) 245 ITR 242, which was also duly considered by their Lordships when the question was remitted back to the ld. Commissioner of Income Tax (Appeals). Obviously, assessee cannot now raise a plea against the finding of the ld. Commissioner of Income Tax (Appeals) that income of the assessee from renting out Kalyanamandapams were business income, and it has wisely done so. However, it is peeved on the view taken by the ld. Commissioner of Income Tax (Appeals) that such business income could not be considered as income earned from a property held under the Trust, thereby disentitling the assessee from taking advantage of Sub section (4) of Section 11 of the Act. Section 11(4) and 11(4A) of the Act, as it was stood in the period covered by the appeals before us and which are apposite are reproduced hereunder:-

Section 11(4) of the Act:-

‘’For the purposes of this section "property held under trust" includes a business undertaking so held, and where a claim is made that the income of any such undertaking shall not be included in the total income of the persons in receipt thereof, the Assessing Officer shall have power to determine the income of such undertaking in accordance with the provisions of this Act relating to assessment ; and where any income so determined is in excess of the income as shown in the accounts of the undertaking, such excess shall be deemed to be applied to purposes other than charitable or religious purposes.

Section 11(4A) of the Act:-

Sub-section (1) or sub-section (2) or sub-section (3) or sub-section (3A) shall not apply in relation to any income of a trust or an institution, being profits and gains of business, unless the business is incidental to the attainment of the objectives of the trust or, as the case may be, institution, and separate books of account are maintained by such trust or institution in respect of such business’’.

Ld.CIT(Appeals) was of the opinion that Kalyanamandapam having being built by the assessee subsequent to its formation in the year 1959, could not be considered as property under trust. Ld. Authorised Representative, during the course of his arguments has stated that the land in which Kalyanamandapam were built was part of the original settlement and the building were built therein by the assessee from its income. Be that as it may, there is no dispute that the land and building was owned by the assessee society, whether it was part of original

:: 27 :: settlement or not. In our opinion, once income of a trust is used by it to acquire a property, the property so acquired will be property held under trust. Income from such property will be income from property under the trust. Thus, in our opinion, rental income received by the assessee from Kalyanamandapam though it was in the nature of income from business, such income was nothing but income from property held under trust.

3. The objects for which the Society is established are :-

a) to provide for, carry out, and - do all such acts and things as will or are likely or calculated to, promote the objects and purposes of a wholly and society charitable nature. b) To provide medial relief in its most comprehensive sense and other relief whatsoever, but of a wholly charitable nature to the public irrespective of nationality caste, creed, colour, sect or any other distinction whatsoever. c) without prejudice to the above comprehensive objects expressed in general terms and, without limiting, in any way, the scope or extent thereof, to establish, promote, provide for and maintain maternity homes nursing homes, hospitals, general and for the treatment of children’s diseases, provide facilities for surgical operations. out-patient. Dispensariessupply of medicines and after-treatment care and to take care of and provide for orphans, the aged, the infirm and the destitute i. to acquire, by accepting as gift, purchase, lease, exchange or otherwise, lands, buildings and structures of any tenure or description, to sell, mortgage, exchange, lease, let out, hire or otherwise deal with such property; and to build constructions on lands and extend, improve and repair buildings and structures and otherwise deal with the property; and to receive rent and other income from property ii. to make donations to such persons or bodies and in such cases, and either of cash or other. Assets as the Society may think directly or indirectly conclusive to any of its objects. iii. To do all such acts as may be necessary for the benefit of the Society or in Its Interest to derive benefits from Its :: 28 :: assets consistently always with the charitable nature of the Society's objects. iv to open current. demand deposit, fixed deposit and other accounts with any Scheduled Bank and operate same; v. to receive gifts, donations, contributions, subscriptions, whether In cash or in kind. vi. To do, subject always to the provisions of the Societies Registration Act, 1860 and to the Rules and Regulations of this Society, all such other or further acts and things as shall or may be conducive or incidental to the attainment of charitable objects for which this society is formed’’.

By virtue of clause (d) above, assessee can purchase, build and let out properties for its other purposes. The purpose mentioned in clause (a) clearly indicate promotion of any object which was wholly and solely charitable in nature. No doubt ld. Commissioner of Income Tax (Appeals) had mentioned this to be a very wide expressions, disentitling it from claiming exemption u/s.11 of the Act. It is true that clause (a) is of a wide amplitude. However what we need to remember is that the assessee was having registration u/s.12A of the Act since 11.04.1975, and such registration still continued. If the main object of the assessee was too wide, as mentioned by ld. Commissioner of Income Tax (Appeals), it would not have been given such registration. Having given such registration, which was alive since 1975, Revenue cannot now turn back and say that the main object was very wide and assessee could not be given benefit of Section 11(1) of the Act. Activity of renting out Kalyanamandapam in our opinion could be construed as only incidental to the attainment of its main object. Assessee therefore could take advantage of Sub Section (4) of Section 11 of the Act. There is no dispute that assessee had maintained separate books for its Kalyanamandapam. The audited accounts filed along with its return clearly show separate income and expenditure for each of the activities, including Kalyanamandapam. Sub Section 4A would not apply to the assessee once its business is considered as incidental to the attainment of its main objects.

11. Now coming to the question whether the predominant activity of the assessee was charity and if so what was the nature of charity. It is not disputed that apart from the two Kalyanamandapams, assessee was having properties from which a school, a health centre and a library were run. It might be true that the school was run by another trust. However, rental received by the assessee for running the school called Avichi school was nominal. We find great strength in the argument of the ld. Authorised Representative, that property from which the School was run, if given out on market rates, would fetch tens of crores in income, and forgoing such income for educational purpose, was nothing but charity in the nature of education. Especially so, since the school was run by a trust which was undisputedly having registration u/s.12A of the Act. Apart from this assessee had earned little revenue from its diabetic centre. It had also given out a premises to the Government for a library.

to 1638/Chny/2023 :: 29 ::

All the activities of the assessee were either in the field of education or in field of medical care. Net revenue earned by the assessee and its expenditure in the field of medical aid, health care and donations as compiled from its income and expenditure account and Balance sheet reads as under:-

Net revenue includes what the assessee received as rentals from its Kalyanamandapams also. Submission of the assessee that donations given were all to organization engaged in either education or medical relief, which were having registration under Section 80G of the Act was not rebutted by the Revenue. No doubt, ld. Departmental Representative has raised an argument that such donations can at best be treated as donation given by an individual for which benefit to the extent given under Section 80G alone could be claimed. However, a reading of Section 11(1) of the Act clearly show that, types of income mentioned in clauses (a) to (d) therein have to be excluded while computing the total income of a person in receipt of such income. Exclusion is available to any person irrespective of status. Viz whether an individual, HUF, AOP, firm or company. Vide clause (a), income which is applied for charitable purpose or religious purpose is necessarily to be excluded Donations given to a trust having 12A registration which is pursuing an object of :: 30 :: medical relief, education or relief to poor, is in our opinion equivalent to using the money for such purpose. Intention remains the same. No doubt, ld. Commissioner of Income Tax (Appeals) has observed that assessee could not produce evidence for the charity done by it. However, it is not disputed that assessee had maintained books of accounts and produced the books and records before ld. Assessing Officer. Such books were subject to audits and assessee had filed Audit reports in form 10A of the Act. In such circumstances, we find no reason to uphold the finding of the lower authorities that predominant activity of the assessee was not charity.

2(15) "charitable purpose" includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility ;

[Provided that the advancement of any other object of general public utility shall not be a charitable purpose, if it involves the carrying on of any activity in the nature of trade, commerce or business, or any activity of rendering any service in relation to any trade, commerce or business, for a cess or fee or any other consideration, irrespective of the nature of use or application, or retention, of the income from such activity, unless-

(i) Such activity is undertaken in the course of actual carrying out of such advancement of any other object of general public utility; and (ii) the aggregate receipts from such activity or activities during the previous year, do not exceed twenty per cent of the total receipts, of the trust or institution undertaking such activity or activities, of the previous year]

First proviso applies to an assessee engaged in advancement of general public utility other than relief to the poor, education, medical relief, preservation of environment and preservation of monuments. As already mentioned by us, assessee’s charitable activities were directly or indirectly in the nature of relief to the poor or education or medical relief. It was not an organization which was pursuing an activity of general public utility, different from education, medical relief or relief to the poor. First proviso to Section 2(15) of the Act is attracted only where an assessee carries on activities which was of general public utility other than those mentioned specifically in the definition of charitable purpose given in Section 2(15) of the Act. In the circumstances, we are of the opinion that assessee was eligible for the exemption claimed by it u/s.11(1) of the Act for the impugned assessment years. Orders of the lower authorities are set aside and the ld. Assessing Officer is directed to give assessee the exemption claimed by it u/s.11(1) of the Act for the impugned assessment years. to 1638/Chny/2023 :: 31 ::

name M/s.CFD on monthly rent. It was further noted that the firm M/s.CFD has sub-let said property to three entities namely Hotel Saravana Bhavan, M/s.B &M Hot Breads Pvt. Ltd., & M/s.Hatsun Agro Products Ltd. The AO tabulated year wise rent received by the assessee from M/s.CFD and rent received by M/s CFD from three tenants which is available in CIT(A) order. According to the AO, the assessee has let out a property to a partnership firm, in which, the Trustees are partners for a nominal rent which is far more less than the prevailing market rate and thus, worked out the difference between the rental income received by the assessee from partnership firm and rental income received by the partnership firm from three tenants and treated said difference as income of the assessee and added to total income for AYs 2012-13 to 2018-19.

The assessee has let out the property which consists of land and building with asbestos sheets. The assessee has fixed rent to the property on the basis of prevailing market rate as on the date. The said agreement has to 1638/Chny/2023 :: 33 :: been renewed for a further period from time to time and enhanced the rent. The partnership firm, M/s.CFD has put up construction and also spent huge amount right from 1975. The Ld.Counsel for the assessee further submitted that initially the property has been converted into a Preview Theatre by re-building the property and also installing necessary plant & machinery and said property has been used as Preview Theatre up to August, 1994. Thereafter, the property has been, once again, renovated with structural changes and let out to three tenants on monthly rent. Further, what was let-out by the assessee to the firm is a different property and what was let-out by the partnership firm is a different property. Therefore, the AO cannot compare rental income derived by the partnership firm from subletting of property and rental income received by the assessee from letting out of the property, because, the partnership firm has re-build the property to make it suitable for letting out for commercial purpose. The Ld.Counsel for the assessee referring to agreement between the parties and agreement between the partnership firm and three tenants submitted that the assessee has spent huge amount for re-building and renovating the building and for this purpose, filed relevant financial statements of partnership firm. Therefore, he submitted that the AO and the Ld.CIT(A) are erred in making addition towards difference between rental income in the hands of the assessee. to 1638/Chny/2023 :: 34 ::

repair the building and put up additional construction as per their requirement. The said agreement has been renewed from time to time up to 01.04.2015. The rent of the premise was initially fixed at Rs.4,500/-

per month for five years in 1975 and the same has been enhanced to Rs.40,000/- per month from 01.04.2015. The partnership firm, M/s.CFD has used said premises as a Preview Theatre right from 1975 and up to 1994. From 1994 onwards, said property has been rebuild/refurbished into a smaller properties and let out to three tenants viz., M/s. Hotel Saravana Bhavan, M/s.B & M Hot Breads Pvt. Ltd., & M/s. Hatsun Agro Products Ltd. The assessee claims that M/s CFD has spent huge amount for further construction and renovation of building from time to time to make the building more suitable for sub-letting. According to the assessee, the property let out by the assessee to the partnership firm and rental income is different and the property let-out and rent received by the partnership firm from three tenants is a different property and same cannot be compared. The assessee further contended that rent received by the Trust from the partnership firm is in consonance with prevailing market rate and further, it is comparable with Fair Market rent fixed by municipal authorities for fixation of municipal taxes.

by the AO for the simple reason that, what was let-out by the assessee to the partnership firm is a different property and what was let-out by the partnership firm to three different tenants is a different property. No doubt, there is a huge difference between rent received by the assessee from the partnership firm and rent received by the partnership firm from the three tenants, but that alone is not a reason for the AO to disbelieve the arrangement between the parties and agreement for letting out the premise. In our considered view, the AO has made additions towards difference in rental income purely on suspicion and surmise basis without there being any factual findings as to why rent received by the assessee is not commensurate with prevailing market rate. Further, the AO is not disputing the fact that the assessee has let out said property to the partnership firm in the year 1975 and as per Letter of Arrangement dated 01.01.1980, said property is a land and building with asbestos sheet hall.

Further, as per said Letter of Arrangement, the lesser has allowed the lessee to repair/renovate the property to make it suitable for their business. Further, as per Letter of Arrangement dated 01.02.1985 and 01.10.1994 and subsequent Letter of Arrangements, there was a clear understanding that sub-letting the property after making it suitable for said purpose. We further noted that the assessee has filed relevant evidences to prove that the partnership firm has spent huge amount for re-construction and renovating the property right from 1975 to make it a Preview Theatre up to 1994, from 1994 onwards said property has been to 1638/Chny/2023 :: 37 :: once again re-constructed/re-modeled by spending huge amount to make it suitable for commercial let out. From the above, it is undoubtedly clear that what was let-out by the assessee to the partnership firm is a different property and rent received by the assessee from the partnership firm is comparable with prevailing market rate. Further, what was let-out by partnership firm to three tenants is a different property which is re- modeled/re-build by the firm to make it suitable for commercial purpose, and thus, rent received by the partnership firm cannot be considered as prevailing market rent of the property let out by the assessee Trust to the firm. Therefore, we are of the considered view that the AO and the Ld.CIT(A) are completely erred in coming to the conclusion that the assessee Trust has allowed income or property of the Trust to the benefit of interested persons referred to u/s.13(2) of the Act and thereby, violates provisions of Sec.13(1)(c) of the Act, in so far as rental income is concerned.

building from time to time since 1975 onwards and if you consider the amount of money spent by the partnership firm to make the schedule of property for let out, in our considered view, the rent received by the partnership firm from three tenants is commensurate with what was let- out by the partnership firm. Further, the assessee has also filed relevant evidences to prove that the prevailing market rate of rent for all these assessment years is comparable with Fair Market Value of the property as

per municipal authorities, where the municipal authorities have determined the Fair Market Value of the property for the purpose of municipal taxes which is lesser than the amount of rent received by the assessee from the partnership firm. Further, it was not the case of the AO that the prevailing market rate of rent for similar kind of property for these assessment years is higher than the rent received by the assessee from the partnership firm. In fact, the AO has not made any attempt to find out the fair market rent of the property in the adjoining areas during relevant period. But, the AO simply took rent received by the partnership firm and compared with rent received by the assessee from the partnership firm and held that rent received by the assessee from partnership firm is lesser than the fair market rent only on the ground that partnership firm is related to the assessee as per the provisions of Sec.13(3) of the Act. In our considered view, provisions of Sec.13(1)(c) r.w.s.13(2) of the Act will come into operation only in a case where any Trust or Institution allows the income or property of a Trust to the benefit to 1638/Chny/2023 :: 39 ::

of persons referred to u/s.13(3) of the Act, without any adequate consideration or compensation. In case, said property has been allowed to use by any person by paying consideration or compensation which is commensurate with prevailing market rent, then provisions of Sec.13(1)(c) r.w.s13(2) of the Act, cannot be applied. Therefore, we are of the considered view that the AO and the Ld.CIT(A) are completely erred in invoking provisions of Sec.13(1)(c) r.w.s.13(2) of the Act, and made additions towards difference between rental income. Thus, we reverse the findings of the Ld.CIT(A) on this issue and direct the AO to delete the additions made towards difference between rental income received by the assessee from partnership firm and rental income received by the partnership firm from three tenants as income of the assessee.

The fact with regard to the impugned dispute are that the assessee being a Trust registered u/s.12AA of the Act, has claimed expenditure incurred towards purchase of capital assets as application of income for relevant assessment year. The assessee had also claimed depreciation on said fixed assets for every year on WDV as per rate applicable for those assets and claimed as application of income. The AO has disallowed depreciation on fixed assets on the ground that once expenditure incurred for to 1638/Chny/2023 :: 40 :: acquisition/purchase of fixed assets has been allowed as application of income, then, allowing depreciation on said fixed assets amounts to double deduction, which is not permissible under law. It was the arguments of the Ld.Counsel for the assessee that this issue is covered in favour of the assessee by the decision of the Hon’ble Supreme Court in the case of CIT v. Rajasthan & Gujarati Charitable Foundation, Poona, reported in [2018] 89 taxmann.com 127 (SC), where it has been held that depreciation on fixed assets has to be allowed as application of income, even though, the cost of acquisition/purchase of fixed assets has been allowed as application of income for earlier assessment years. It was further submitted that up to AY 2014-15, this issue is covered in favour of the assessee by the above decision, but from the AY 2015-16, the law has been amended to provisions of Sec.11(6) vide Finance Act, 2014 and as

per said provisions, depreciation on fixed assets, cannot be claimed as application of income, once, the cost of said fixed assets has been allowed as application of income in the year of purchase.

acquisition/purchase of fixed assets has been allowed as application of income u/s.11(1)(a) of the Act, when such fixed assets were purchased, but still depreciation on said fixed assets should be allowed as application of income, because, income of a charitable institution claiming exemption u/s.11 of the Act, should be computed like any other entity in normal commercial accounting principles. This legal position has been upheld by the Hon’ble Supreme Court in the case of CIT v. Rajasthan & Gujarati Charitable Foundation, Poona, (supra), and said position is applicable up to AY 2014-15. Since, the assessee Trust is a registered u/s.12AA of the Act, and also claiming exemption u/s.11 of the Act, in our considered view, depreciation on fixed assets should be allowed as application of income up to AY 2014-15. Thus, we direct the AO to delete additions made towards disallowance of depreciation on fixed assets for AYs 2012- 13 to 2014-15. In so far as AYs 2015-16 to 2018-19, the law has been amended by the Finance Act, 2014 to provisions of Sec.11(6) of the Act and as per said provisions, where any income required to applied or accumulated or set part for application, then, for such purpose, the income shall be determined without any deduction or allowance by way of depreciation or otherwise in respect of any asset, acquisition of which has been claimed as application of income under this section in the same or in any other previous year. From the amendment provisions of sec.11(6) of the Act, by the Finance Act, 2014, which is applicable from AY 2015-16 onwards, depreciation on fixed assets cannot be allowed as application of to 1638/Chny/2023 income, in case, the cost of acquisition of said fixed assets has been allowed as application of income in the same year or in any earlier year. Thus, we are inclined to uphold the findings of the Ld.CIT(A) for AYs 2015-16 to 2018-19 and reject ground taken by the assessee.

Order pronounced on the 27th day of March, 2024, in Chennai.