DDIT, CHENNAI vs. VELS INSTITUTE OF SCIENCE, TECHNOLOGY & ADVANCED STUDIES,, CHENNAI

आदेश /O R D E R

PER N.R.S. GANESAN, JUDICIAL MEMBER:

The appeal by the Revenue and the cross-objection by the

assessee are directed against the order of the Commissioner of

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Income Tax (Appeals)-VII, Chennai, dated 31.05.2013 and pertain

to assessment year 2010-11.

submitted that the assessee-Trust is registered under Section 12AA

of the Income-tax Act, 1961 (in short 'the Act') and claimed

exemption under Section 11 of the Act for the year under

consideration. However, the Assessing Officer found that the

assessee-Trust gives loan to the interested persons in violation of

Section 13(1)(c) r.w.s. 13(3) of the Act. According to the Ld. D.R., during the year under consideration a sum of `15,76,00,000/- was

outstanding as loan and advances. The Assessing Officer on

verification of balance sheet, found that the said amount was paid to

Dr. Ishari K. Ganesh, the founder and Managing Trustee of the

assessee-Trust. Therefore, the Assessing Officer found that the

transaction of loan was in violation of Section 13(1)(c) r.w.s. 13(3) of

the Act. Referring to assessment order, the Ld. D.R. submitted that

the Assessing Officer brought out the entire transaction at pages 2

and 3 of his order. The assessee claimed before the Assessing

Officer that the transaction being a loan transaction, the money was

received in pursuance of agreement for sale. According to the Ld.

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D.R., the assessee claimed before the Assessing Officer that it

intended to establish a medical college. Therefore, the assessee

entered into an agreement for purchase of land with the Managing

Trustee. However, after considering the material available on

record, the Assessing Officer found that out of the total consideration of `20 Crores, the Managing Trustee received an

advance of `16,91,00,000/-. Therefore, the Assessing Officer found

that even if the transaction of purchase of property was considered

to be genuine, the payment of advance to the trustee, which is in

excess of the market value of the land, would make the assessee

ineligible for making claim under Section 11 of the Act. Therefore,

according to the Ld. D.R., there was a clear violation of provisions of

Section 13(1)(c) of the Act, since the money was advanced to the

Managing Trustee without any adequate security.

assessee has received donation from Sri Balaji Charitable and

Educational Trust. According to the Ld. D.R., by a gift deed dated

03.03.2010, Sri Balaji Charitable and Educational Trust has donated

three of its institutions to the assessee-Trust, along with land,

building and other infrastructures. The assessee recognized these

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educational institutions as its own institutions on and from

01.10.2009. Since the Assessing Officer found that the loan was

advanced by the assessee-Trust to its Managing Trustee against

the provisions of Section 13(1)(c) of the Act, the assessee is not

eligible for exemption under Section 11 of the Act. Therefore, the

corpus of the institution received by the assessee as donation from

Sri Balaji Charitable and Educational Trust to the extent of `37,83,27,838/- was taken as income of the assessee. According

to the Ld. D.R., since there was violation of Section 13(1)(c) of the

Act, the assessee is not eligible for exemption under Section 11 of

the Act, therefore, the Assessing Officer rejected the claim of the

assessee. However, on appeal by the assessee, the CIT(Appeals)

allowed the claim of the assessee on the ground that the money

was advanced to the Managing Trustee for purchasing the landed

property since the Trust had intended to establish a medical college.

Therefore, the CIT(Appeals) allowed the claim of the assessee.

According to the Ld. D.R., as rightly observed by the Assessing

Officer, the money was advanced to the Managing Trustee in

violation of provisions of Section 13(1)(c) of the Act. Therefore, the

CIT(Appeals) is not justified in allowing the claim of the assessee.

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assessee, submitted that the assessee-Trust has established and

administering educational institutions. The educational institution

established by the assessee was recognized as deemed university

by University Grants Commission. For the purpose of obtaining the

deemed university status, the University Grants Commission

prescribes certain guidelines, including infrastructure facilities.

During the financial year 2009-10, the assessee-Trust planned to

start a medical college as part of its charitable activity. As per the

guidelines prescribed by Medical Council of India, the minimum land

required is 25 acres. Therefore, the assessee-Trust proposed to

purchase the land belonging to the Managing Trustee Dr. Ishari K.

Ganesh to the extent of 28.93 acres of land. In that process, the assessee-Trust has paid `15,76,00,000/- on 31.03.2010. An

agreement was also entered into between the assessee-Trust and

the Managing Trustee for purchase of land. The Ld.counsel further

submitted that the assessee-Trust has also taken loan from the

Managing Trustee and the related persons. In fact, the

CIT(Appeals) extracted the interest-free loan received by the

assessee-Trust from the related persons and Managing Trustee.

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Act is not prohibiting any transaction by the Trust with interested

persons. What is prohibited by Section 13 of the Act is advancing of

money without adequate security or adequate interest. In the case

before us, even though the money was advanced for purchase of

property as per the agreement for sale, after cancellation of

agreement, the Managing Trustee has paid interest on the amount advanced. In fact, the Managing Trustee has paid `4,06,92,078/-

as interest including compensation of `25,00,000/-. In fact, the

CIT(Appeals) extracted the value of the interest paid by the

Managing Trustee at page 49 of his order. Therefore, according to

the Ld. counsel, it cannot be said that the money advanced by the

assessee is without any adequate security or without any interest.

In fact, the assessee had paid more interest than the market rate.

Therefore, there is no question of violation of Section 13(1)(c) of the

Act.

Charitable and Educational Trust, the Ld.counsel for the assessee

submitted that, in fact, the assessee-Trust received as donation

three institutions from Sri Balaji Charitable and Educational Trust.

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No funds of the assessee-Trust were transferred to Sri Balaji

Charitable and Educational Trust. The Institution has received as

donation from the institution which has similar object. The

disallowance was made merely because the assessee-Trust

advanced to interested persons. Since the advance was made only

for the purpose of purchasing the land and the Managing Trustee

has also repaid the amount with interest, according to the Ld.

counsel, there is no violation of Section 13(1)(c) of the Act.

Therefore, the receipt of donation of three institutions from Sri Balaji

Charitable and Educational Trust cannot be a reason for rejecting

the claim of the assessee under Section 11 of the Act. Therefore,

the CIT(Appeals) has rightly allowed the claim of the assessee

under Section 11 of the Act.

perused the relevant material on record. It is not in dispute that the

assessee-Trust is registered under Section 12AA of the Act. It is

also not in dispute that there was an agreement for sale of the land

belonging to the Managing Trustee to the assessee-Trust. The only

objection of the Revenue appears to be that the sale of the land is

not on par with the market value. From the order of the Assessing

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Officer it appears that the market value of the land is very less than

what was agree to be sold to the assessee-Trust. The fact remains

that there was an agreement for sale of the property and the

assessee-Trust advanced the funds. There is no fixed price for sale

of land. The price of a land is flexible, depending upon various

factors. The urgency of the vendor to sell the property, the

necessity of the purchaser to purchase the property, the location of

the land, the area of the land, infrastructures available nearer to the

land and future prosperity for development of the land, etc. need to

be considered while determining the market value of a land. Apart

from that, it is well settled principles of law that market value is

nothing but a price agreed between the willing seller and willing

purchaser. Therefore, we cannot say that a particular land has to

be sold by a particular person for a particular rate. If two willing

persons agreed to sell and purchase the property for a particular

price, then the Assessing Officer may not have any role to dismiss

the agreed price unless there are some evidences found that the

agreed price disclosed is not actually the agreed price. In the case

before us, it is nobody’s case that the price agreed between the

Managing Trustee and the Trust is not actually the agreed price.

Therefore, the observation of the Assessing Officer in the

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assessment order that the value of the land is much less than what

was agreed between the parties cannot stand in the eye of law.

When the assessee-Trust intended to establish a medical college

for which it requires minimum 25 acres of land and the Managing

Trustee has such vast area of land, nothing wrong in purchasing the

land from the Managing Trustee by paying the market value.

Subsequently, the assessee-Trust could not establish medical

college. Therefore, the agreement was cancelled. In fact, the

Managing Trustee repaid the part amount along with interest. It is

not the case of the Revenue that the interest paid by the Managing

Trustee is not in market rate.

of the Act. Section 13(1)(a) says that if any part of the property or

income of the Trust is given to the interested person without either

adequate security or adequate interest, for the benefit of the person

interested, then there shall be a diversion of funds for the interested

person. Section 13(1)(c) says that if the amount paid is excess of

what was reasonably paid for the service rendered has to be

considered as used or applied for the benefit of person interested.

In the case before us, the Managing Trustee has not rendered any

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service. In fact, there was an agreement for purchase of property.

Therefore, the question arises for consideration is whether the money advanced by the assessee to the extent of `15,76,00,000/-

is without adequate security and after cancelling the agreement,

whether the assessee has received the adequate interest from the

Managing Trustee. We have carefully gone through the order of the

CIT(Appeals). From the order of the CIT(Appeals) it appears that the assessee has received `4,06,92,078/- being the interest from

the Managing Trustee, in addition to the principal amount after

cancellation of agreement. Therefore, this Tribunal is of the

considered opinion that the CIT(Appeals) has rightly found that after

cancellation of agreement, the assessee-Trust was returned and

compensated by way of interest. Therefore, the transaction

between the assessee-Trust and the Managing Trustee cannot be

construed as without any adequate security or without any adequate

interest. Therefore, this Tribunal is of the considered opinion that

the money was in fact advanced in pursuance of the agreement for

sale. After cancellation of agreement, the money was returned in its

entirety. Since there was delay in repayment of money received as

advance for sale of the land, the Managing Trustee has also paid interest to the extent of `4,06,92,078/-. Therefore, at any stretch of

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imagination, it cannot be said that the money was diverted for

interest of the Managing Trustee. Therefore, this Tribunal is of the

considered opinion that there is no violation of Section 13 of the Act.

Charitable and Educational Trust, what was received by the

assessee is capital asset by way of three institutions and its

infrastructures. It is nobody’s case that the assessee’s funds were

diverted to any other Trust. When the assessee received three

institutions for carrying out its charitable activity, it cannot be said

that there was a violation of any other provisions of Income-tax Act.

In fact, the Assessing Officer himself disallowed the claim of the

assessee on the ground that the money was advanced to the

Managing Trustee. Since this Tribunal found that there was no

violation of Section 13(1)(c) of the Act in respect of the agreement

entered between the assessee-Trust and the Managing Trustee for

purchase of property and it is not in dispute that the Managing Trustee returned entire amount with interest of `4,06,92,078/-, the

assessee is entitled for exemption under Section 11 of the Act.

Therefore, this Tribunal do not find any infirmity in the order of the

CIT(Appeals) and accordingly, confirmed.

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depreciation to the extent of `5,25,30,554/-.

institution and it is claiming exemption under Section 11 of the Act.

The claim of the assessee under Section 11 of the Act is allowed by

the CIT(Appeals) which was confirmed by this Tribunal in the earlier

part of this order. It is not the case of the assessee that it is not

doing any business. Therefore, this Tribunal is of the considered

opinion that the assessee is not entitled for any depreciation under

Section 32 of the Act. In fact, this Bench of the Tribunal in the case

of Tamil Nadu Cricket Association v. DDIT(Exemptions) had an

occasion to consider an identical issue. This Tribunal, vide its order dated 14th August, 2015 in I.T.A. Nos.1535 to 1537/Mds/2014,

recorded its finding which is as follows:

“11. We have considered the rival submissions on either side and perused the relevant material on record. Let’s first take assessment year 2008-09. The assessee is claiming depreciation under Section 32 of the Act. For the purpose of convenience, we are reproducing Section 32 hereunder:- “32 (1) In respect of depreciation of-- (i) buildings, machinery, plant or furniture being tangible assets ;

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(ii) know-how, patents, copyrights, trade marks, licences, franchises or any other business or commercial rights of similar nature, being intangible assets acquired on or after the 1st day of April, 1998, owned, wholly or partly, by the assessee and used for the purposes of the business or profession the following deductions shall be allowed--

(i) in the case of assets of an undertaking engaged in generation or generation and distribution of power, such percentage on the actual cost thereof to the assessee as may be prescribed.

(ii) in the case of any block of assets, such percentage on the written down value thereof as may be prescribed:

Provided that no deduction shall be allowed under this clause in respect of--(a) any motor car manufactured outside India, where such motor car is acqired by the assessee after the 28th day of February, 1975 5but before the 1st day of April, 2001, unless it is used--(i) in a business of running it on hire for tourists; or(ii) outside India in his business or profession in another country ; and(b) any machinery or plant if the actual cost thereof is allowed as a deduction in one or more years under an agreement entered into by the Central Government under section 42:

Provided further that where any asset referred to in clause (i) 6or clause (ii) or clause (iia), as the case may be, is acquired by the assessee during the previous year and is put to use for the purposes of business or profession for a period of less than one hundred and eighty days in that previous year, the deduction under this sub- section in respect of such asset shall be restricted to fifty per cent. of the amount calculated at the percentage prescribed for an asset under clause (i) 6or clause (ii) or clause (iia), as the case may be:

Provided also that where an asset being commercial vehicle is acquired by the assessee on or after the 1st day of October, 1998, but before the 1st day of April, 1999, and is put to use before the 1st day of April, 1999, for the purposes of business or profession, the deduction in respect of such asset shall be allowed on such percentage on the written down value thereof as may be prescribed.

Explanation — For the purposes of this proviso,-- (a) the expression "commercial vehicle" means "heavy goods vehicle", "heavy passenger motor vehicle", "light motor vehicle", "medium goods vehicle" and "medium passenger motor vehicle" but does not include "maxi cab", "motor-cab", "tractor" and "road-roller" ; (b) the expressions "heavy goods vehicle", "heavy passenger motor vehicle", "light motor vehicle", "medium goods vehicle", "medium passenger motor vehicle", "maxi-cab", "motor-cab", "tractor" and "road-roller" shall have the meanings respectively as assigned to them in section 2 of the Motor Vehicles Act, 1988 (59 of 1988).

Provided also that, in respect of the previous year relevant to the assessment year commencing on the 1st day of April, 1991, the

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deduction in relation to any block of assets under this clause shall, in the case of a company, be restricted to seventy-five per cent. of the amount calculated at the percentage, on the written down value of such assets, prescribed under this Act immediately before the commencement of the Taxation Laws (Amendment) Act, 1991.

Provided also that the aggregate deduction, in respect of depreciation of buildings, machinery, plant or furniture, being tangible assets or know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature, being intangible assets allowable to the predecessor and the successor in the case of succession referred to in clause (xiii), clause (xiiib) and clause (xiv) of section 47 or section 170 or to the amalgamating company and the amalgamated company in the case of amalgamation, or to the demerged company and the resulting company in the case of demerger, as the case may be, shall not exceed in any previous year the deduction calculated at the prescribed rates as if the succession or the amalgamation or the demerger, as the case may be, had not taken place, and such deduction shall be apportioned between the predecessor and the successor, or the amalgamating company and the amalgamated company, or the demerged company and the resulting company, as the case may be, in the ratio of the number of days for which the assets were used by them.

Explanation — 1. Where the business or profession of the assessee is carried on in a building not owned by him but in respect of which the assessee holds a lease or other right of occupancy and any capital expenditure is incurred by the assessee for the purposes of the business or profession on the construction of any structure or doing of any work, in or in relation to, and by way of renovation or extension of, or improvement to, the building, then, the provisions of this clause shall apply as if the said structure or work is a building owned by the assessee.

Explanation — 2. For the purposes of this sub-section "written down value of the block of assets" shall have the same meaning as in clause (c) of sub-section (6) of section 43;

Explanation — 3. For the purposes of this sub-section, 10the expressions "assets" shall mean-- (a) tangible assets, being buildings, machinery, plant or furniture ; (b) intangible assets, being know-how, patents, copyrights, trade marks, licences, franchises or any other business or commercial rights of similar nature.

Explanation — 4. For the purposes of this sub-section, the expression "know-how" means any industrial information or technique likely to assist in the manufacture or processing of goods or in the working of a mine, oil-well or other sources of mineral deposits (including searching for discovery or testing of deposits for the winning of access thereto) ;

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Explanation — 5. For the removal of doubts, it is hereby declared that the provisions of this sub-section shall apply whether or not the assessee has claimed the deduction in respect of depreciation in computing his total income ;

(iia) in the case of any new machinery or plant (other than ships and aircraft), which has been acquired and installed after the 31st day of March, 2005, by an assessee engaged in the business of manufacture or production of any article or thing, a further sum equal to twenty per cent. of the actual cost of such machinery or plant shall be allowed as deduction under clause (ii) :

Provided that no deduction shall be allowed in respect of-(A) any machinery or plant which, before its installation by the assessee, was used either within or outside India by any other person ; or(B) any machinery or plant installed in any office premises or any residential accommodation, including accommodation in the nature of a guest-house ; or(C) any office appliances or road transport vehicles ; or(D) any machinery or plant, the whole of the actual cost of which is allowed as a deduction (whether by way of depreciation or otherwise) in computing the income chargeable under the head "Profits and gains of business or profession" of any one previous year ;

(iii) in the case of any building, machinery, plant or furniture in respect of which depreciation is claimed and allowed under clause (i) and which is sold, discarded, demolished or destroyed in the previous year (other than the previous year in which it is first brought into use), the amount by which the moneys payable in respect of such building, machinery, plant or furniture, together with the amount of scrap value, if any, fall short of the written down value thereof :

Provided that such deficiency is actually written off in the books of the assessee.

Explanation — For the purposes of this clause,-- (1) "moneys payable" in respect of any building, machinery, plant or furniture includes—

(a) any insurance, salvage or compensation moneys payable in respect thereof ; (b) where the building, machinery, plant or furniture is sold, the price for which it is sold, so, however, that where the actual cost of a motor car is, in accordance with the proviso to clause (1) of section 43, taken to be twenty-five thousand rupees, the moneys payable in respect of such motor car shall be taken to be a sum which bears to the amount for which the motor car is sold or, as the case may be, the amount of any insurance, salvage or compensation moneys payable in respect thereof (including the amount of scrap value, if any) the same proportion as the amount of twenty-five thousand rupees bears to the actual cost of the motor car to the assessee as it would have been computed before applying the said proviso ;

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(2) "sold" includes a transfer by way of exchange or a compulsory acquisition under any law for the time being in force but does not include a transfer, in a scheme of amalgamation, of any asset by the amalgamating company to the amalgamated company where the amalgamated company is 8an Indian company or in a scheme of amalgamation of a banking company, as referred to in clause (c) of section 5 of the Banking Regulation Act, 1949 (10 of 1949), with a banking institution as referred to in sub-section (15) of section 45 of the said Act, sanctioned and brought into force by the Central Government under sub-section (7) of section 45 of that Act, of any asset by the banking company to the banking institution. (2) Where, in the assessment of the assessee, full effect cannot be given to any allowance under sub-section (1) in any previous year, owing to there being no profits or gains chargeable for that previous year, or owing to the profits or gains chargeable being less than the allowance, then, subject to the provisions of sub-section (2) of section 72 and sub-section (3) of section 73, the allowance or the part of the allowance to which effect has not been given, as the case may be, shall be added to the amount of the allowance for depreciation for the following previous year and deemed to be part of that allowance, or if there is no such allowance for that previous year, be deemed to be the allowance for that previous year, and so on for the succeeding previous years.

In view of Section 32 of the Act, depreciation has to be allowed only in respect of an asset owned by the assessee and used for the purpose of business or profession. In this case, it is not a case of the assessee that they are not doing any business or profession. The assessee is categorically making a statement that they are charitable organization engaged itself in public utility service. Once the assessee claims that it is a charitable organization and not engaged in business or profession, this Tribunal is of the considered opinion that the provisions of Section 32 have no application at all. The provisions of Section 32 in fact were not brought to the notice of this Tribunal while deciding the assessee's own case for assessment year 2007-08 and also the decision of Sri Mariamman Educational Health and Charitable Trust (supra). In fact, this Tribunal examined the issue elaborately in The Anjuman- E-Himayath-E-Islam v. ADIT in I.T.A. No.2271/Mds/2014 by order dated 2nd July, 2015 and found that when the assessee is eligible for exemption under Section 11 of the Act, it is not eligible for depreciation under Section 32 of the Act. For the purpose of convenience, we are reproducing the decision taken by the co- ordinate Bench of this Tribunal in The Anjuman-E-Himayath-E- Islam (supra):-

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“5.2 We find this issue is elaborately discussed in the case of Lissie Medical Institution Vs. CIT reported in [2012] 348 ITR 344(Ker.) and held the issue against the assessee. While doing so, the Hon’ble Kerala High Court had considered the Circular No.5P(LLX-6) dated 19.06.1968 which has not been considered by the other decisions. The Circular No. 5P(LLX-6) is reproduced herein below for reference:- 1. Circular No. 5-P (LXX-6) of 1968, dated 19-6-1968.

Subject : Section 11—Charitable trusts—Income required to be applied for charitable purpose—Instructions regarding.

In Board's Circular No. 2-P(LXX-5) of 1963, dated the 15th May, 1963, it was explained that a religious or charitable trust claiming exemption under section 11(1) of the Income- tax Act, 1961, must spend at least 75 per cent of its total income, for religious or charitable purposes. In other words, it was not permitted to accumulate more than 25 per cent of its total income. The question has been reconsidered by the Board and the correct legal position is explained below.

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undertaking. Under section 11(4), any income of the business undertaking determined by the Income-tax Officer in accordance with the provisions of the Act, which is in excess of the income as shown in its accounts, is to be deemed to have been applied to purposes other than charitable or religious, and hence it will be charged to tax under sub-section (3). As only the income disclosed by the account will be eligible for exemption under section 11(1), the permitted accumulation of 25 per cent will also be calculated with reference to this income.

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After considering the Circular, the Hon’ble Kerala High Court held as follows:- “Held, that after writing off the full value of the capital expenditure on acquisition of assets as application of income for charitable purposes and when the assessee again claimed the same amount in the form of depreciation, such notional claim became a cash surplus available with the assessee, which was outside the books of account of the trust unless it was written back which was not done by the assessee. It was not permissible for a charitable institution to generate income outside the books in this fashion and there would be violation of section 11(1)(a). It was for the assessee to write back the depreciation and if that was done, the Assessing Officer would modify the assessment determining higher income and allow recomputed income with the depreciation written back by the assessee to be carried forward for subsequent years for application for charitable purposes.” Further Hon’ble Calcutta High Court has held in the case DCIT VS. Girdharilal Shewnarain Tantia Trust reported in [1993] 199 ITR 15(Cal.) that “The “income” contemplated by the provisions of section 11 is the real income and not the income as assessed or assessable. Respectfully following the decision of the Hon’ble Kerala High Court and taking cue from the decision of the Hon’ble Calcutta High Court, we do not find any hesitation to confirm the order of the Ld. CIT(A) and also the views expressed by him in his order. Accordingly this appeal is held in favour of the Revenue.”

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Order pronounced on 28th October, 2015 at Chennai.

sd/- sd/- (ए. मोहन अलंकामणी) (एन.आर.एस. गणेशन) (A. Mohan Alankamony) (N.R.S. Ganesan) लेखा सद�य/Accountant Member �या�यक सद�य/Judicial Member

चे�नई/Chennai, �दनांक/Dated, the 28th October, 2015.

Kri. आदेश क� ��त�ल�प अ�े�षत/Copy to: 1. अपीलाथ�/Appellant 2. ��यथ�/Respondent 3. आयकर आयु�त (अपील)/CIT(A)-VII, Chennai-34 4. Director of Income Tax (Exemptions), Chennai 5. �वभागीय ��त�न�ध/DR 6. गाड� फाईल/GF.