No AI summary yet for this case.
Income Tax Appellate Tribunal, DIVISION BENCH ‘A’, CHANDIGARH
Before: SHRI SANJAY GARG & MS. ANNAPURNA GUPTA
IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH ‘A’, CHANDIGARH
BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA No.1185/Chd/2017 (Assessment Year : 2017-18) Gaushala Trust Society, Vs. The CIT(Exemptions), Spatu Road, Central Revenue Building, Ambala City. 5th Floor, Sector-17E, Chandigarh. PAN: AABAG6754D (Appellant) (Respondent)
Appellant by : Shri Rohit Goyal, CA Respondent by : Shri Gulshan Raj, CIT DR Date of hearing : 26.04.2018 Date of Pronouncement : 11.07.2018
ORDER PER ANNAPURNA GUPTA, A.M. :
This appeal has been preferred by the assessee against
the order of learned Commissioner of Income Tax
(Exemptions), Chandigarh (hereinafter referred to as
CIT(Appeals)) dated 31.5.2017 relating to assessment year
2017-18, refusing grant of registration u/s 12A of the
Income Tax Act, 1961 (in short the ‘Act’).
Briefly stated, the assessee had filed an application in
Form No.10A seeking registration as a charitable trust for
claiming exemption of its income u/s 11 and 12 of the Act.
The Ld.CIT(E) noted from the application that the assessee
society was an ongoing entity since 1913 with the following
aims and objects as outlined in para 2 of the order as
under:
“2. The stated ostensible aims and objects of the society are to make general improvement of cows and its off springs and thus to increase milk yield; to develop such cattle into cows, oxen and bulls of good pedigree; to take care of old, tame and lame and famine- stricken cows, oxen, bulls, calves and their pedigree and to give maximum help/protection to aforesaid; to supply pure milk in the illaqa at reasonable rates; to feed up and develop the calves and selected various pedigrees into stud-bulls and to provide such bulls to villages for improvement of cows bread at reasonable rates.” 3. With this background the Ld.CIT(E) proceeded to
examine whether the assessee was entitled for registration
as per the provisions of section 12A of the Act and,
therefore, issued a questionnaire seeking to examine the
fulfillment of the conditions for grant of registration u/s
12AA, being the genuineness of the objects and the
genuineness of the activities carried out by the assessee.
Due replies were filed by the assessee, after considering
which, the Ld.CIT(E) held that the assessee had failed to
fulfill the basic conditions for being eligible for grant of
registration, since its major emphasis was on creating
income from sale of milk, enhancing FDR’s and earning
interest on the same and that there was no income from
property of the assessee society, as the title of land in the
name of the society, was under litigation for the past many
years. The Ld.CIT(E) denied the registration also for the
reason that there was no corpus fund received by the
assessee society and the same was created only by way of
accretion in the shape of profits, which the Ld.CIT(E) held,
did not partake the character of corpus donations as
envisaged u/s 11(1)(d) of the Act and further that there
were no voluntary donations received by the assessee and
thus no income that could be covered by the provisions of
sections 11 and 12 of the Act. The Ld.CIT(E) also found the
claim of the society of treating more than 500 cows as not
genuine for the reason that the assessee gaushala was
running a Government Veterinary hospital in its premises
since it had employed a doctor from the Government for
treating injured and sick cows and only meagre amount had
been spent by it on medicine and, therefore, it was not the
assessee who was treating the sick and injured cows but
the Government which was doing so, which belied the claim
of the assessee that it was carrying out charitable activities
of treating sick and injured cows. For the above reasons,
the Ld.CIT(E) refused the grant of registration u/s 12A of
the Act. The relevant findings of the Ld.CIT(Appeals) in
paras 7 to 10 of the order are as under:
“7. On 18.05.2017, Sh. Karan Jain, C.A., Counsel for the applicant attended and filed, written submissions in response to above noted queries, While examining the Income & Expenditure statements for the F.Y 2016-17 it transpired that major emphasis of the society is on creating income from, sale of milk and enhancing FDRs and earning interest on the same. This issue also exacerbated by the fact that the income from sale milk in F.Y. 2015-16 was 56.31 lacs and. the same has readied to 63.51 lacs in F.Y. 2016-17. This arrangement clearly leads to conclude that society has been diverted from its object of serving the old, tame and lame cows and got involved in commercial activity of selling of milk. Moreover the claims of the applicant that it is taking care of more than 500 old and lame cows loses its veracity as how old and lame cows could produce that huge quantity of milk that would increase income on account of milk sale from 56 lacs to 63 lacs. 8. It has also been observed that title of land in the name of the society is under litigation from last many year tinder this scenario it clearly leads to conclusion that there is no income from property and it might possibly be the case of encroachment on government land, by the applicant. Further perusal of financial statements reveals that no evidence of corpus funds being shown, in. the balance sheet being received as such has been provided by the applicant rather the
accretions in. the shape of profits are being taken to corpus every year by the applicant. This doesn't take partake the character of corpus donations as envisaged in section 11(1 )(d). Moreover, Perusal of Income & Expenditure reveals no voluntary donations as envisaged in section 12 of l.T. Act has been, received and there is no income that could be covered, by the provision of section 11 & 1.2 of IT. Act. 9. It has also been, revealed from the submissions that a veterinary hospital is running in. the premises of Gaushala and government has employed a doctor which, clearly establishes that it is a government hospital being managed by the government and. society has nothing to do with it. The issue gets exacerbated by the fact, that society has claimed exemption u/s l0(23C)(v) in the previous year on account of charitable activities of serving of injured, or sick cows which in actuality is being done by the Govt. Veterinary Hospital. The same claim was even rejected by the Assessing office in last assessment,: This issue also gets impinged by the fact that out of the total income of 90 lcs as on 31.03.2017 only a sum of 92,.982/- has been spent on medicines which is merely 1.02%. This arrangement clearly leads to the conclusion that claim of society that it is treating more than 500 cows is not genuine rather it is operating on commercial principal and. focusing on generating income on account of milk sale and creation of Fixed Assets. Moreover, no justification for the claim of exemption, after 113 years of incorporation of the society has been provided by the applicant 10. In the instant case, given all of the above. The application, under section 12.A for grant of registration is rejected.” 4. Aggrieved by the same, the assessee has come up in
appeal before us, raising the following ground of appeal:
“1. The learned Commissioner of Income Tax (Exemptions) has erred in laws and facts and law in not registering the applicant Trust u/s 12AA.” 5. During the course of hearing before us, the Ld. counsel
for assessee first stated the facts relating to the assessee
society pointing out that the assessee society was more
than 100 years old and had been established with the object
to take care and to give shelter to old and lame cows, whom
the public do not keep with them. That it was taking care of
more than 500 vows and was running a cow hospital by
employing the Government doctor to serve the old and
helpless cows. The Ld. counsel for assessee stated that it
was providing free medical facilities for the treatment of any
cow brought by general public. The Ld. counsel for assessee
further stated that the cost of maintenance of cow was
being met out of selling milk of these very cows. The Ld.
counsel for assessee drew our attention to the submissions
made in this regard before the Ld.CIT(E) placed at Paper
Book page NO.29 as under:
“1. Assessee is engaged in the activities to take care and to give shelter to old and lame Cows, whom the public do not, keep with them and are of status of without owner. Presently the Gaushala is taking care of more than 500 cows. To meet the purpose of serving ill & helpless cows, Gaushala is maintaining a cow hospital in which Government employed a doctor. A Veterinary Hospital is running in the premises of Gaushala and a regular veterinarian is engaged there whose main responsibility is to treat the cows of Gaushala and the Gaushala Hospital is providing free medical facility for the treatment of any cow brought for treatment by General Public. Gaushala is also providing medicines for cows free of cost. As the Gaushala is engaged in taking care of old and lame Cows and running a Government Veterinary Hospital in the premises itself 'which is an evidential proof of its charitable activities. Thus, exemption under Section 10(23C) is claimed. Photocopy of Assessment order for the A.Y. 2014-15 is enclosed herewith. 2. Financial Statement as on 31.03.2017 i.e. Receipt & Payment Account, Balance Sheetand Income & Expenditure Account are attached herewith. The Gaushala Trust Society was established in February 1913 with the object to take care and to give shelter to old and lame Cows, whom the public do not keep with them and the Gaushala is serving its object from more than last 100 years. The motto of Gaushala is "GAU SEWA - ISHWAR SEWA". Presently the Gaushala is taking care of more than 500 cows. For meeting out the cost of Maintenance of Cows, the Society sells the milk of Cows which is an allied work as after providing medical aid, good and nutritious feed, it produces milk. For feeding the cows, the society has its own agriculture land on which the feed for cows are sown. As the number of cows are more than 500 therefore Milk sale is of considerable amount but
the fact is that main source of funds for meeting out day to day maintenance expenses like feed, consumables, labour etc is the Milk sale. During the year 2015-16 the total expenses of the Gaushala excluding Depreciation was Approx. 78 Lacs as against the milk sale of Rs. 63 Lacs. From the above it is clear that the. presumption of engagement of Gaushala in commercial activities of sale of milk is not correct.” 6. The Ld. counsel for assessee thereafter stated that the
basis on which the Ld.CIT(E) held that the assessee was not
entitled to grant of registration u/s 12A of the Act were
either on misappreciation of facts or were irrelevant to the
issue of grant of registration. Drawing our attention to the
contention of the Ld.CIT(E) that the assessee was indulging
primarily in the commercial activity of selling milk, the Ld.
counsel for assessee stated that the generation of milk and
selling of the same was an allied activity and incidental
activity of the assessee society arising from its main
activity of looking after cows. Ld.Counsel for the assessee,
in this regard stated that out of 500 cows which it was
looking after, only 80 cows were producing milk while the
balance were either non milk producing cows or those not
used for breeding or they were bulls used for breeding or
were cows which were breedable and were not giving milk at
that time. In this regard, the Ld. counsel for assessee drew
our attention to a certificate of the Veterinary Surgeon
certifying monthly progress report of the gaushala for the
month of March, 2017, to the office of the Deputy Director,
ICD Project Ambala City. The Ld. counsel for assessee
stated that this progress report showed the number
animal/cows which were there with gaushala and their
break-up on the basis of whether they were milk cows,
breedable cows, buffaloes, heifers etc. and also their daily
milk production, annual milk production, monthly and
yearly expenses on the cows. The Ld. counsel for assessee
drew our attention to the analysis of the data in the said
monthly report by way of a chart submitted before us as
under:
Cows (in Milk/Breedable) Cows/Bullocks(Non Milk Producing/ Bulls used for Breeding Not used for Breeding) Description Nos. Description Nos. Description Nos. Current Milk 80 Disabled Cows 103 Good Bulls used for 5 Bearing cows non Milk breeding Producing Breedable but not 105 Calves Male 48 milk bearing currently Female Heifers 43 Sterlised 73 Bullocks Calves Female 52 Bulls not used 31 for breeding TOTAL 280 TOTAL 255 TOTAL 5
Pointing out to the above the Ld. counsel for assessee
stated that it was evident from the above that out of the
540 cows owned by it, only 80 cows were currently bearing
milk and only 280 in all were capable to give milk, while the
rest were either disabled, sterilized or male cows or were
bulls. The Ld. counsel for assessee, therefore, stated that
the above statistics clearly revealed that major objective of
the assessee society was not to indulge in milk generation
and sale of the same. The Ld. counsel for assessee drew our
attention to an analysis of the milk realization by assessee
society for the year ending 31-03-2017 and pointed out
there from that even as per the said data of the annual milk
production of the assessee society , which was correlated
with the data as certified by the Veterinary doctor and
revenue generation on account of the same which tallied
with the revenue generated from the sale of milk as
reflected in the income and expenditure account of the
assessee , the total milk yielding cows available with the
assessee society were approximately 75. The Ld. counsel
for assessee further pointed out that the selling price of the
milk was Rs.38/- to Rs.40/- per litre which was far less
than the market price and which proved that the intention
of the assessee society was not to indulge in any
commercial activity and generation of huge profits by sale
of milk. The Ld. counsel for assessee further pointed out
that in any case, the assessee society was not earning any
surplus from the sale of milk and to substantiate the same.
The Ld. counsel for assessee pointed out that against the
revenue generated from the sale of milk during the year
2015-16 of Rs.63,51,321/-, the expenses incurred in the
gaushala amounted to Rs.75 lacs approximately, thus
resulting in loss from this activity carried out by the
assessee society. The Ld.Counsel for the assessee stated
that it was amply clear from the above that the activity of
selling milk by the assessee society was in no way the
primary object of the assessee society and was also not
carried out with the object to earn profits, and, therefore,
the findings of the Ld.CIT(Appeals) in this regard were
incorrect and hence denial of registration for the above
reason.
Drawing our attention to the next contention of the Ld.
CIT(E), which was not actually taking care of old and lame
cows but only getting it done at no expenses to the
assessee society through a Government Veterinary doctor
and spending very meagre amount for treating the said
animals by way of purchase of medicines etc, Ld.Counsel for
the assessee stated that the Ld.CIT(E) had again
misappreciated the facts and contention on this issue. The
Ld. counsel for assessee stated that it was the Government
of Haryana which had extended the facilities and doctors for
the hospital and, therefore, it cannot be stated that for this
reason, the assessee was diverted from its object of serving
old and lame cows. As far the meagre amount spent on
taking care of these cows, the Ld. counsel for assessee
stated that the objective of the assessee society was to give
shelter and take care of old and lame cows and for this
purpose it provided feed and other consumables including
medicines to the cows. Further the Ld. counsel for assessee
stated that the Government of Haryana had extended the
facilities and doctors and also provided medicines available
with them for treating the cows at the gaushala and
besides, the assessee society had also spent an amount of
Rs.1,44,842/- towards medicines purchased for taking care
of the cows. The Ld. counsel for assessee stated that it is
clearly evident that the assessee was indulging in its stated
objective of taking care of old and lame cows and finding of
the of the Ld.CIT(E) that the expenditure on medicine was
very low and thus the assessee was not carrying out its
stated object, had no basis at all and was irrelevant. The
Ld. counsel for assessee drew our attention to its
contention before the Ld.CIT(E) in this regard reproduced at
Paper Book page No.30 as under:
“5. During the year 2015-16 the office has raised a query that out of total Receipts, only 1.06% amount is spent for medicine Purchased. The above correlation has no relevance to form a presumption that Gaushala is not following the basic principles of Gaushala. The main object of Gaushala is to-give shelter and take care of old and lame cow. To fulfilling its objects Gaushala provides Feed and other Consumables including Medicines etc to cows and provide proper medical checkup to Cows, time to time so that the Cows maintained by Gaushala may remain Healthy. Further a regular veterinarian is engaged there whose main responsibility is to treat the cows of Gaushala and the Gaushala Hospital is proving free medical facility for the treatment of any cow brought for treatment by general public. The expenses incurred for Medicine Purchase of Rs. 144842.00 only does not mean that Society is not following the basic purpose of its establishment. As the Cows maintained at Gaushala are healthy and the outsiders who brought their cows for medical treatment and consultancy are duly satisfied. It is worthwhile to state here that Govt of Haryana who has extended the facilities & doctors in the hospital also provide medicines available with them and rest of the medicines are purchased by us. 9. Taking up the contention of the Ld.CIT(E) that the
assessee was indulging only in the activity of enhancing its
FDRs and earning interest on the same, the Ld. counsel for
assessee stated that it had been clearly pointed out to the
Ld.CIT(E) that FDRs had been made from the fund received
from the Government out of compulsory acquisition of land
of the assessee society in the year and the assessee
Gaushala was holding on to the FDRs due to the
uncertainty regarding premises on which it was running
gaushala which was taken on lease, as it was under
litigation for the past many years. The Ld. counsel for
assessee stated that FDRs were being kept to be utilized if
the assessee had to vacate its present premises and shift to
a new place. The Ld. counsel for assessee drew our
attention to its submissions made in this regard before the
Ld.CIT(E) reproduced at page 30 of the Paper Book as
under:
“6. The FDR's appearing in the Balance Sheet are made of the Fund received from Government out of Compulsory acquisition of Land of Gaushala in the year. The Present premises of Gaushala is taken by it on Lease which is under litigation from last many Years. The Gaushala is Holding FDR's due to the future Uncertainty regarding its Premises, in case Gaushala has to vacant the premises it has to buy the Premises so that the Cows can be shifted there. Therefore Holding of FDR is not under the Discretion of Gaushala but it is bound to hold the FDR due to the uncertainty of Litigation outcome . A copy of lease deed is enclosed herewith.” 10. The Ld. counsel for assessee stated that it is clearly
evident from the above that it was not the objective of the
assessee society to enhance its FDRs and the finding of the
Ld.CIT(E) in this regard was, therefore, incorrect on facts.
Thereafter the Ld. counsel for assessee drew our
attention to the findings of Ld.CIT(E) that since the title of
land in the name of society was under litigation it had no
income from property and it was probably a case of
encroachment on Government land by the assessee. Our
attention was also drawn to the finding of Ld.CIT(E) at para
8 of its order that the assessee did not have any corpus
fund and was creating the same out of the profit generated
year to year, which as per the Ld.CIT(E) did not partake
the character of corpus donation. The Ld. counsel for
assessee further pointed out the findings of the Ld.CIT(E)
that no voluntary donation had been received by the
assessee and it had no income which could be covered by
the provisions of section 11 and 12 of the Act. The Ld.
counsel for assessee stated that the above findings of the
Ld.CIT(E) were wholly irrelevant for the purpose of grant of
registration u/s 12A of the Act since they did not impinge
on the genuineness of either its objects of the activities
carried out by it.
The Ld. counsel for assessee stated that it was clearly
evident that the assessee society was entitled to grant of
registration u/s 12A of the Act and the Ld.CIT(E) had on the
basis of irrelevant consideration and by mis-appreciation of
facts before it denied the same. Reliance was placed by the
Ld. counsel for assessee on the following judgments of the
Hon'ble High Court in support of its contention:
1) CIT Vs. Delhi Kannada Education Society 246 ITR 731 (Delhi HC) 2) Secondary Board of Education Orissa Vs. ITO (1972) 86 ITR 408 (Orissa HC) 3) DIT(Exemptions), Mumbai Vs. Shree Nashik Panchvati Panjrapole (2017) 397 ITR 501
4) DIT(Exemptions Vs. Sabarmati Ashram Gaushala Trust (2014) 362 ITR 539 13. The Ld. DR, on the other hand, relied upon the order
of the Ld.CIT(E).
We have heard the rival contentions, and also carefully
gone through the documents and case laws referred to
before us. The issue before us pertains to refusal of grant of
registration u/s 12A of the Act. That the assessee society
was established with the object of making general
improvement of cows and to take care of old and lame cows,
oxen, bulls, etc. is not disputed. Further, we find that it is
not the case of Revenue that the said stated objects were
not charitable in character. The contention of the Revenue,
we find, is that the assessee was not genuinely carrying out
its stated objects and the reason and basis for arriving at
this conclusion was the following:
1) That the assessee was primarily indulging in the
activity of selling milk, yielded by the cows, on
commercial lines.
That it was enhancing its FDRs from such income
derived from sale of milk for the purpose of earning
interest thereon.
3) That it was spending meagre amount on
medicines thus belying its claim that it was looking
after old and lame cows.
The Revenue has also contended that the assessee is
not entitled to registration u/s 12A for the reason that
it has neither any income from property, nor has it any
income either in the nature of corpus donation or
voluntary donation which are covered by the provisions
of sections 11 and 12 of the Act.
On careful consideration of the contentions of both the
parties, we find merit in the contention of the Ld. counsel
for assessee. The facts and figures, as pointed out to us and
which have not been controverted by the revenue,
substantiate the contention of the Ld.Counsel for the
assessee, that it was primarily indulging in its stated
objects of looking after cows and activity of the sale of milk
was only an incidental activity. We find that the assessee
had contended that it had 500-540 cows and that out of the
above, only 80 cows were milk producing. The Ld.Counsel,
on this basis, has asserted that majority of the cows with
the assessee society were solely for being taken care of,
which was the stated object of the society also. This fact
was evidenced by the monthly progress report of the
assessee society, issued by the Dy.Director, ICD Project,
Ambala. The assessee had also corroborated the same by
submitting an analysis of milk realization by the gaushala
for the year ended 31-03-2017 ,reflecting therein that the
revenue generated from the sale of milk ,at below market
price, was possible from milk produced by 75 cows only ,on
the basis of average daily milk produced by the cows in the
gaushala as certified by the deputy director ICD, Ambala.
The monthly progress report of the assessee society was
placed before the Ld.CIT(E) also and facts stated therein
have not been controverted by the Revenue. The same have
not been controverted even before us, nor has the Ld. DR
pointed out any infirmity in the analysis of the said
monthly progress report of the assessee society placed by
the assessee before us during the course of hearing. The
Revenue also has not pointed out any infirmity in the
analysis of the milk realization by the assessee society in
the year ending 31.3.2017. Thus, the fact that out of 500-
540 cows being looked after by the assessee society, only 80
cows were milk yielding, remains an uncontroverted fact.
We also find that the assessee had demonstrated from its
financial statements that the entire revenue earned from
the sale of milk was utilized in its activity of looking after
all the cows. It is clearly evident from the aforesaid fact
that only a small proportion of cows with the assessee
yielded milk which was sold by the assessee and the
revenue generated thereof was utilized in maintaining all
the cows, which majorly were not producing milk.Therefore
clearly the activity of selling milk was only an ancillary
activity of the assessee, the surplus generated from which
were utilized for achieving its main object of maintaining
and looking after lame and disowned cows, etc. Therefore,
we hold that the denial of grant of registration to the
assessee u/s 12A for the reason that it was primarily
indulging in the commercial activity of selling milk is
against the facts of the case and is totally unwarranted.
Further we find no merit in the contention of the
Revenue that the fact that the assessee was spending only
meagre amount on medicine, proved that it was not
indulging in its stated object of looking after lame and sick
cows. As rightly pointed out by the Ld. counsel for
assessee, its stated object was not merely treating sick
cows but looking after and maintaining disowned cows and
the financial statements of the assessee society for the year
ending 31.3.2017, 31.3.2016 and 31.3.2015, clearly showed
that it was carrying out its stated object, having spent
substantial amount on procuring feed for the cows
alongwith medicines. Besides, we find that the assessee
society had explained that the cows were being looked after
by the doctor which was provided by the Veterinary Hospital
of the Government. Therefore we find no merit in the
reasoning of the revenue that the low spend on medicines is
a pointer to the fact that the assessee was not carrying out
its stated object.
Further, we find no merit in the contention of the
Revenue that the assessee was only indulging in creating
FDRs and earning interest therefrom, since we find that the
assessee had stated that FDRs had been made from funds
received on acquisition of land owned by it and that it was
holding on to the said FDRs to meet any eventuality of
being displaced from its present premises which was being
disputed. The Revenue has not controverted the above
statement of the assessee. Therefore, the assessee having
explained that the FDRs had not been created from the
income generated from sale of milk, the denial of
registration for this reason also is rejected.
We further agree with the Ld. counsel for assessee that
the denial of registration for the reason that it had no
corpus donation or voluntary donation or any income from
property, are irrelevant consideration of grant of
registration since the only satisfaction which the Ld.CIT(E)
has to arrive at when granting registration is vis-à-vis the
genuineness of the objects and the activities of the assessee
society and the fact that it is getting corpus donation or
voluntary donation is irrelevant to the said consideration.
For the above reason, we set aside the order of the
Ld.CIT(E) in refusing grant of registration of the assessee
society and direct that the same be granted to the assessee
society.
In the result, the appeal of the assessee, therefore,
stands allowed.
Order pronounced in the Open Court.
Sd/- Sd/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 11th July, 2018 *Rati* Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) 4. The CIT 5. The DR
Assistant Registrar, ITAT, Chandigarh