RAJASTHAN PARA-MEDICAL COUNCIL,JAIPUR vs. COMMISSIONER OF INCOME (EXEMPTION) TAX, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 331/JP/2022 fu/kZkj.k o"kZ@Assessment Year : 2020-21. cuke Rajasthan Para-Medical Council, Commissioner of Income-tax C-7, Sultan House, 2nd & 3rd Floor, Vs. (Exemptions) Sawai Jai Singh Highway, Kailash Height, Lal Kothi, Tonk Bani Park, Road, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. AAAGR 0105 G vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Shyam Lal Agarwal (CA) & Shri Tarun Agarwal (CA) jktLo dh vksj ls@ Revenue by : Shri James Kurian (CIT) & Shri P.R.Meena (CIT) lquokbZ dh rkjh[k@ Date of Hearing : 12/01/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 3/04/2023 vkns'k@ ORDER PER: SANDEEP GOSAIN, J.M.

This appeal by the assessee is directed against the order dated 16.08.2022 of ld. CIT (Exemptions), Jaipur passed under section 12AA(1)(b) of the IT Act, 1961. The assessee has raised the following grounds :- 1. The learned Commissioner of Income Tax (Exemptions), Jaipur has erred in law as well as in facts in rejecting the application of the Council for seeking registration u/s 12AA of the Income Tax Act, 1961 and holding that the applicant society cannot be held as charitable within the meaning of Sec. 2(15) of the Income-tax Act, 1961.

2. The learned Commissioner of Income Tax (Exemptions), Jaipur has erred in law as well as in facts holding that the Council is not engaged in the “ Charitable purpose “ of education, and that its activities fall under “General Public Utility” thereby attracting Proviso to Sec. 2(15).

3. The learned Commissioner of Income Tax (Exemptions), Jaipur has erred in law as well as in facts in not providing proper opportunity of being heard to the appellant before passing the order.

4. The petitioner craves the right to add, alter, modify or amend in any manner the grounds of appeal on or before the hearing.

The applicant was issued a letter/notice No. ITBA/EXM/F/41/2020- 21/1027702192(1) dated 12.08.2020 requesting therein to submit certain documents/explanations by 25.08.2020 and to produce original RC/MOA for verification. However, only part details were submitted the applicant. Accordingly, a show cause notice was issued to the applicant society vide No. ITBA/EXM/F/41/2020-21/1029329636(1) dated 29.12.2020 through which certain details were called for and date of hearing was fixed as 11.01.2021. In compliance, the applicant council furnished reply on 06.01.2021 along with the details called for, which has been examined in detail. The reply to the specific query on payment of taxes on surplus in different years has been found inappropriate as per the provisions of the I.T. Act, 1961. The ld. CIT (E) rejected the application for registration under section 12A of the IT Act, 1961 stating that it is not covered as Education because it is a regulatory body for Para-medical education and does not provide direct schooling. As per the order, it was mentioned that the appellant Council is covered under General Public utility but since, the major receipts are from exam fee, revaluation fee, students registration fee, affiliation etc., hence are treated as business receipts. Aggrieved by the order of the ld. CIT (E), the assessee has filed the present appeal before the Tribunal.

3. The grounds no. 1 to 3 raised by the assessee are inter-connected and inter- related, therefore, these grounds are being disposed off together.

4. Before us, the ld. Counsel for the assessee has submitted common submissions for both the grounds as under :-

“ 1. A Brief About the Appellant :

Rajasthan Para Medical Council (the Appellant) is a 100% owned and controlled by the Government of Rajasthan constituted by an Act of the Legislature in the year 2008 as Rajasthan Para medical Council Act, 2008 with the primary objective to develop, promote and regulate the Para-medical education and profession in the state of Rajasthan. It also aims for the recognition of institutions under its control and supervision in a systematic manner for imparting education or training in Para Medical subjects in the state and for matters connected therewith or incidental thereto.

The aim of the Council is also to promote innovations, research & development in Para-Medical subjects and establishment of new Para-Medical subjects. The Rajasthan Para-Medical Council is formulating schemes for promoting Para-Medical education and promoting an effective link between Para-Medical education and medical education.

2. The major functions of the Appellant are: Proscribing syllabus and curriculum for various para-medical i. courses Conducting qualifying examination for the courses ii. Registration and granting certificate to qualified persons to practice iii. their profession. ( to serve the Public Health under qualified and trained hands and mindsets) Granting recognition to the training institutions and inspection there iv. on.

The qualifications offered by the Appellant are : Sr.No Courses Eligibility Duration Diploma in Medical Laboratory 10 + 2 (Science 1 2 Years Technology subject) 10 + 2 (Science 2 Diploma in Radiation Technology 2 Years subject) 10 + 2 (Science 3 Diploma in Dental Mechanics Technology 2 Years subject) 4 Diploma in Dental Hygiene Technology 10 + 2 (Science 2 Years subject) 10 + 2 (Science 5 Diploma in Operation Theater Technology 2 Years subject) 10 + 2 (Science 6 Diploma in Dialysis Technology 2 Years subject) 10 + 2 (Science 7 Diploma in Orthopedic Technology 2 Years subject) 10 + 2 (Science 8 Diploma in ECG Technology 2 Years subject) 10 + 2 (Science 9 Diploma in Blood Bank Technology 2 Years subject) 10 + 2 (Science 10 Diploma in Endoscopy Technology 2 Years subject) 10 + 2 (Science 11 Diploma in EEG Technology 2 Years subject) 10 + 2 (Science 12 Diploma in Cath Lab Technology 2 Years subject) Diploma in Emergency and Trauma Care 10 + 2 (Science 13 2 Years Technology subject) 10 + 2 (Science 14 Diploma in Opthalmic Technology 2 Years subject) 10 + 2 (Science 15 Diploma in Perfusion Technology 2 Years subject) Diploma in Medical Laboratory 10 + 2 (Science 16 2 Years Technology subject)

(ii) to hear and decide appeals from the decision of the Registrar in such manner as may be prescribed by regulations;

(iii) to prescribe by regulations a code of ethics for regulating the professional conduct of registered Para-medical professionals;

(iv) to reprimand a registered Para-medical professional to suspend or remove the name from the Register of Para-medical professionals, or to take such other disciplinary action against him/her as may, in the opinion of the Council, be necessary or expedient;

(v) to permit any member to remain absent from three consecutive meeting of the Council;

(vi) to promote innovations, research and development in establishment of new Para-medical subjects in the Schedule;

(vii) to recommend to the State Government to include new para- medical subjects in the Schedule;

(viii) to formulate schemes for promoting Para-medical education;

(ix) to promote an effective link between para-medical education and medical education, and to promote research and development in Para- medical subjects;

(x) to lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examination in Para-medical education;

(xi) to fix norms and guidelines for institutional charges and other fees;

(xii) to recognize the institutions conducting courses in Para-medical subjects;

(xiii) to provide guidelines for admission of student to Para-medical institutions imparting Para-medical education;

(xiv) to inspect or cause to be inspected any Para-medical institution;

(xv) to constitute a board for conducting the examination in Para- medical subjects so as to maintain uniformity of standards; and (xvi) to perform such other functions as may be prescribed by rules.

The Council is also the sole recognized body to regulate the para-medical profession in the State of Rajasthan through qualification courses.

In view of the above it is clearly established that the Appellant Council is constituted by the State Government primarily for para- medical education and to promote, develop & regulate the same for the welfare of the society, and the public health with no intent of any business and profit at all.

4. On the Major findings in the impugned order of the Learned CIT (E):

Here, it is pertinent to note that the Learned CIT in his order has clearly spelt the nature of receipts which apparently directly from education being registration fee , counseling fee , examinations fee revaluation fee , inspection fee etc. but has without any basis or fact has grossly erred by holding it as business income for the Council, thereby trying to divert the whole issue by implying that the appellant has been doing business of education, so as to transfer the issue to the residuary limb of GPU and thereby rejecting the application by applying the proviso to section 2(15), since the proviso is not applicable to education.

Further, the Ld CIT at para 07 of page 15 of the order has mentioned that “07. Based on above discussion, it is clear that the activities of the applicant society are not charitable in nature as it is predominantly carrying out functions of a Regulatory Body consisting of maintenance of Registers of registered para- medical professionals and annual publication of names there of, recognition of para-medical institutions and approval for conduction of any course in para-medical subjects but does not train/ educate/ disseminate knowledge. The applicant is therefore not engaged in the “charitable purpose” of education, and hence its activities fall under “General Public Utility” thereby attracting Proviso to Sec. 2(15).”

The above finding with the relevant paras of the order , itself settle the issue that it is a regulatory body, conduct exam, prescribe courses and recognize institution for education and training for which the regular inspections are made by which it provide the education in a systematic manner . Further it accepts that it is a GPU where by applying the proviso, the registration is denied. Further the case law referred is fundamentally applied on wrong interpretation without going to the facts of the case that it is established education Institution by an Act itself and provide and promote the education in a systematic manner. The said case law referred is dealt in the case laws as reported by us herein after.

The learned CIT(E) has even after agreeing and spelling that the revenue is also from education and also a regulatory body and provide degree/Diploma and do the registration, conduct examination, has grossly erred in not granting registration under the limb of “Education” and rejecting the application.

5. The applicability of the proviso to section 2(15) as made by the Ld CIT is far away from the facts as all income are from the main object of Education only and all functions are as per the Act , there is no question of any business at all . The activities performed by the Council are as per the Act and the core activities undertaken by the Council are towards achieving their predominant object of education. Even if we discuss the matter also as a GPU , all the revenue are from the main object and there is no other revenue from any business and hence the proviso is not applicable in case of added registration is given as GPU.

Further, it is a settled through various series of judgments of Hon.ble Supreme court , High Court and Hon’ble this tribunal that, where the predominant object is charitable, the proviso to section 2(15) of the Income Tax Act, 1961 is not applicable.

6. The Council is therefore covered under the limb of education. Further, we would like to mention that the there is no doubt to the fact that the Council is a body owned and governed by the State Government having the purpose to provide and regulate education of para-medical courses and to implement the Educational Policy of the State and the facts and circumstances of the cases referred by Ld CIT (E) are conceptually misinterpreted from the facts of the present case.

The State Government implements its education policy through these bodies to develop and regulate the professional services in the area of medical treatment and allied services. These professional supplements the work of highly trained and skilled medical professionals to support various treatment and also play a vital role in the time of pandemic when there is shortage of trained medical professionals as was largely witnessed by the whole world at the time of pandemic.

Further, it is very important and matter of concern that the institution affiliated with the Council are treated and granted exemption as educational institution, where they cannot provide education without affiliation and all exams are held by the Council.

Here we would like to categorically mention that the Appellant Council is providing education at each level directly under its supervision and control in a systematic manner, and also to regulate the educational institutions to implement the Educational Policy of the State. Further, it is also important to mention that the affiliated institutions of the Council are provided registration as Charitable institution under the limb of ‘Education’.

The Honorable Supreme Court in the case of Assam State Text Book Production and Publication Corporation Ltd. has mentioned in the similar circumstances that State - controlled Educational Committees/Boards had been constituted to implement the educational policy of the States and consequently they should be treated as educational institutions.

There is no system of distribution of surplus in the Council and the surplus have to be utilized only for the purposes of the Council.

The acid test to determine whether any institution is constituted for the purpose of earning profit or charity could be the manner the distribution of surplus is made among the members. Where the surplus is not distributed among the members but used for general public, such institution is only meant for charity.

Case Laws relied upon in support of our submissions.

1. The case of the appellant is squarely covered by the decision of Honorable Delhi High Court in Council for the Indian School Certificate

Examinations vs. DGIT reported in (2012) 362 ITR 436 (Delhi) wherein it has been held as under:- 4. Reading of section 10(23C)(iv) shows that any University or other educational institution existing solely for educational purposes qualify under the clause. The University and the educational institution should not be for the purposes of profit. The second requirement is negative in nature, whereas the first requirement is positive. We cannot accept the contention of the Revenue and the reasoning given in the impugned order that the petitioner is not an educational institution because it is an examination body and its principal work is to conduct examination and charge examination fee, etc. The words "educational institution" used in Section 10(23C)(vi) and the phrase "educational purpose" have been interpreted and examined in several cases. We have a direct decision of Orissa High Court in the case of Secondary Board of Education v. ITO, MANU/OR/0151/1972 : (1972) 86 ITR 408 (Ori).

2. In the case of ADIT (Exemption) vs. Jeevan Vidhya Mission (2015) 155 ITD 1150, the Honorable Mumbai bench of the ITAT analyzed scope of the term 'Education' as envisaged by the legislature while mentioning it u/s 2(15) and held that "8.1 In our considered opinion, based upon analysis of the facts of this case, the assessee trust is engaged in the field of 'education'. In our considered view, based upon our understanding of law, there is no merit in the order of Assessing Officer to give a restricted meaning to the scope of meaning of term educational activities. It is not necessary that there should be holding of regular classes or wholesome educational activities to be only eligible to be called educational activities eligible for benefits under section 11 and 12. As per our understanding, the term "education" is of wide scope and amplitude, especially in the context of section 2(15). In this fast evolving society, the term 'education' has assumed greater role and significance, then ever. Education has got pivotal role in evolution of a society. Therefore, keeping this crucial aspect in mind, the legislature in its wisdom had decided to place this activity within the definition clause of the term "charitable

purpose", as per section 2(15) of the Income-tax Act, wherein it has been specifically mentioned that the term 'charitable purpose' includes …. "education" …. Thus, the very activity of education itself has been included within the meaning of the term 'charitable purpose'. It may further be seen that activity of imparting "education" has been specifically included in the definition, thus showing that the intention of the legislature, very clearly, is to promote education, which is further fortified by the fact that when the first proviso was inserted to section 2(15), the activity of 'education' was not covered therein and only other object of general public utility alone was covered therein. The first proviso was brought in to curtail the scope of 'charitable purpose' with respect to the activities of general public utility, by excluding the same from this definition, if it involved carrying on of any activity in the nature of trade, commerce or business. Further, even after huge litigation with respect to blanket exemption to educational institutions, when the amendment was made by the Finance Act, 2009, the activity of the education was kept outside the purview of newly inserted proviso. Thus, impliedly, it can be said that, it is clear that the legislature has given great significance to the utility of 'education' in our country.

3. The Honorable Supreme Court in the Case of Assam State Text Book Production & Publication Corpn. Ltd. has held that “Following the judgment of the Rajasthan High Court, we are of the view that, in this case, the High Court, in its impugned judgment, has not considered the historical background in which the Corporation came to be constituted; secondly, the High Court ought to have considered the source of funding, the shareholding pattern and aspects, such as Return on Investment; thirdly, it has not considered the letters issued by CBDT which are referred to in the judgment of the Rajasthan High Court granting benefit of exemption to various Board/Societies in the country under section 10(22) of the Act; fourthly, it has failed to consider the judgments mentioned hereinabove; and lastly, it has failed to consider the letter of the Central Government dated 9-7-1973, to the effect that all State-controlled Educational Committee(s)/ Board(s) have been constituted to implement the Educational policy of the State(s), consequently, they should be treated as Educational Institution.

5. The decision of Honorable Rajasthan High Court in CIT vs. Rajasthan State Text Book Board (2000) 113 Taxman 204 (Raj.) wherein it has been held as under:- “It could be seen from the orders of the Commissioner (Appeals) as well as the tribunal that, in a similar situation, in the case of Tamil Nadu Text Book Society, the CBDT, as per the letter dt. 19.8.1975 and F.No.184/26 of 1975, stated that the Tamil Nadu Text Book Society was an educational institution, existing solely for the purpose of education, within the meaning of Sec.10(22). It was not disputed that the aims and objects of the Tamil Nadu Text Book Society and those of the assessee were almost identical. It was also not shown that the surplus amount, if any, of the assessee, was used for any other purpose or distributed to other members. The Commissioner (Appeals) as well as the Tribunal had noticed that even if some amount remained surplus, that was utilised only for the purposes of education. Thus, having regard to the concurrent finding of act recorded by the Commissioner(Appeals) and the tribunal has also taking note of the letter of the CBDT itself, it was not possible to say that the order of the tribunal was erroneous in any way. In this way, no question of law arose for consideration, much less a substantial question of law.

7. The Hon’ble Delhi Bench of ITAT has held in the case of Bhartiya Siksha Samiti (ITA No. 816/Del/2015, AY2010-11) that “13. In my view the activities carried out by the assessee fall within the term 'Education'. The Revenue was wrong coming to the conclusion that, only when Assessee runs schools directly, it can be held to impart education. In my view, the Education can be imparted, even through affiliated schools also. A perusal of the activities listed above demonstrates the same. The activity of the assessee- society in my view is educational activity.”

of the aforesaid discussion and facts of this case, we do not find any justification in the view adopted by the Ld. DIT that pre- schooling is not part of education activity. In our considered view pre-schooling is very much integral part of the term 'education' as has been envisaged u/s 2(15) of the Act and we hold so.”

Your kind Honours are requested to allow the appeal in the public interest and oblige.”

In support, he placed reliance on the judgment of the Hon’ble Supreme Court in the case of Sole Trustee, Loka Shikshana Trust vs. CIT, (1975) 101 ITR 234 (SC) and decision of the Coordinate Bench of the ITAT Jaipur in the case of Rajasthan Nursing Council vs. CIT (Exemption), (2020) 119 taxmann.com 354.

6. We have heard ld. Counsels for both the parties, perused the material available on record and gone through the order of the lower authority. After hearing the rival submissions, it has been noted that the appellant has applied for the registration w.e.f FY 2019-20 under section 12A, which was rejected on the ground that the revenue earned by the Council is from commercial activities. The Council is established under an Act by the State Government for Para-medical education and to promote, develop and regulate the same for the welfare of the society and the public health, with no intent of any business. It has been noted that the surplus is not distributed and only utilized for the activities and the fees/charges are decided in consultation with the State Government at normal level looking to the welfare of the public. The Ld CIT (Exemption) in his order has mentioned that the receipts are from examination fees, registration fees, revaluation fees, inspection fees and counseling fees, which are commercial in nature whereas apparently such receipts are from the key services for education only. In this way the contents are contradictory neither it has been brought on record that they are abnormally high with an intent to earn profit on commercial lines nor the same has been established that how they are not related to education in the instant case. In view of the arguments made by the ld A/R, supra, the surplus cannot lead by itself that the activities are from trade, commerce or business. There can be a revenue surplus in particular year/s which is allowed to be applied in the next year(s) as permitted under the Act. The un-applied amount becomes the income of the assessee after the end of the time-limit. Since, the proviso to section 2(15) is, otherwise, also not applicable as the activities are not in the nature of trade, commerce or business.

18 Rajasthan Para-Medical Council, Jaipur. 6.1. In light of the above discussions and in the entirety of the facts and circumstances of the case and respectfully following the decisions referred supra, we are of the considered view that the object of the appellant Council qualified as charitable purpose and covered under Section 2(15) as applied by the appellant and given that there is no dispute on the genuineness of the activities carried on by the assessee Council in furtherance of its object, the order passed by ld. CIT (E) is hereby set aside and directed to grant the registration to the appellant Council under section 12AA as applied by them.

Order pronounced in the open court on 3/04/2023.