THE REDIANT WAY SCHOOL,RAIPUR (CG) vs. THE THE CHIF COMMISIONER OF INCOME TAX, RAIPUR (CG)

Facts in brief are that the assessee filed an application in Form No.56D on 24.07.2013 seeking issuance of exemption certificate u/s.10(23C)(vi) & (via) of the Act for the Financial Year 2012-13 onwards. However, the CCIT rejected the application of the assessee-society holding that the assessee is existing for purposes of profit and not solely for educational purposes.

Against the rejection of application of the assessee filed u/s. 10(23C)(vi) & (via) of the Act, the assessee is in appeal before the Tribunal.

At the outset it is submitted that the appeal filed by the assessee in the present case is delayed by 916 days and affidavit have also been furnished to this effect. The reasons for delay was described by the assessee are as under:- During this period, the appellant was under bonafide belief that since no demand has been raised for the AY 2013-14 and there being an approval from the CCIT u/s 10(23C)(vi) from the CCIT, Raipur in the subsequent year on the same facts and circumstances of the case, the return filed by the appellant claiming exemption for AY 2013-14 has been accepted. It can be seen from the facts of the case and reasons mentioned in such affidavit that even in the absence of any demand notice and there being no procedure to Appeal before Hon'ble ITAT under the provisions of Income Tax Act, the Appellant had taken multiple course of action as per its best judgment to get the justice in this matter, such as, filing the writ before Hon'ble High Court of CG State and Application before CCIT (Exemptions), New Delhi for reviewing of order of CCIT. It was only after the approval of CCIT on 11.09.2015 on the subsequent application, the appellant withdrew its writ petition based on the advice of its High Court counsel.

With reference to delay in filing of the appeal in the instant case in view of the above submissions and circumstances wherein the assessee was continuously making effort to have its contentions accepted with various recourses as believed available such as writ before the Hon‟ble High court on 04/10/2014 which was later withdrawn on 07/10/2015, a review petition before CCIT(Exemption) New Delhi was filed on 26/08/2016 but was not entertained due to unavailability of any review procedure in law. The appeal against the orders under section 10(23C)(vi) were bring within the net of admissibility of an appeal u/s 253 by an amendment effective from 01.06.2015, this remedy was not available with the assesee at the time of issue of rejection order by Ld CCIT dated 27.06.2014. Later, on receipt of a show cause notice u/s 221(1) on 03/02/2017 an appeal filed before the ITAT. In this regard assessee also have placed its reliance on the following cases: a. Emsons Organics Ltd. v. Deputy Commissioner of Income-tax, Circle-I, Chandigarh [2020] 113 taxmann.com 269 (Chandigarh -Trib.) In this case, the Hon'ble bench relied upon the principles laid down by the Hon'ble Supreme court in in the case of Collector, Land Acquisition v. MST. Katiji [1987] 167 ITR 471 so as to what may constitute a sufficient cause, and held as under: "Jn this case, we further find that by considering the delay in the peculiar facts, no disadvantage is visited upon the Revenue. We have also seen that by way of filing of the present appeals late, the assessee also has not derived any undue advantage as there is no vested right in favor of the Revenue which can be said to be disturbed if the present delay is condoned. Guided by the principles as laid down by the Apex Court in the aforesaid decision, we are of the view that in the absence of any justifiable reason to deny the relief sought, the delay of 615 days in each or the appeals filed for the reasons set out hereinabove deserves to be condoned"

After carefully considering the facts of the case, on perusal of the case laws relied upon by the Ld AR, since the assessee‟s conduct in the present case was observed to be attentive towards tax compliance hence bonafides of the assessee cannot be doubted. Therefore, we are of the considered view that there was a sufficient cause for delay in filing of the appeal and thus it would be just and fair to condone such unintentional delay in the interest of principle of natural justice. Regarding condonation of delay, when the Ld Dr was asked to refute, he has not objected to it. Therefore, in all fairness the delay in filing of appeal of the assessee is condoned and it is decided to dispose off the appeal is on merits.

Now, to adjudicate the main issue challenge by the assessee in this appeal apropos - rejecting application for grant of exemption u/s 10(23C)(vi), we have heard and considered the rival contentions as under:

Ld. AR before us submitted that the assessee is involved in charitable activities however the CCIT has erred in concluding that the objects of the society are not solely for education purpose without taking into cognizance of the fact that the appeallant is an education Institution (and not the society) run by such Society which is exclusively for education purpose. Objects of the society submitted are as under:- The objects of the society self-translated into English is given below:

Ld AR submitted that the CCIT has not appreciated and considered the objects of the assessee at Sr. No. a, d and f as distinctive, independent, distributive and perused independently of others. While deciding the issue on legal and factual aspect the CCIT has observed and relied on a judgment by Hon‟ble Supreme Court in the case of Sole Trustee, Loka Sikshan Trust Vs CIT (1975) 101 ITR 234, wherein the interpretation of word Education has been elaborately expounded, held as under:

Considering the findings in the aforesaid judgment in the case of Sole Trustee, Loka Sikshan Trust (supra) the Ld CCIT cocluded that the assessee does not exist for educational purpose. However, Ld Ar submitted that the facts and circumstances of the case of the assessee and judgment cited by the Ld CCIT in the case of Sole Trustee, Loka Sikshan Trust(supra) are altogether different and thus, the ratio of judgment is wrongly applied by the CCIT to the appellant‟s case.

Ld AR in representation to support the above contentions of the assessee has relied upon the following judgments :- a. CIT vs. Geetha Bhavan Trust (1995) 213 ITR 296 (Ker): TheHonorable Kerala High Court on the similar facts held as under: "It is true that the objects of the trust comprehend various items. But admittedly the trust is running only the two educational institutions referred to earlier. The objects clause has no doubt delineated in 7 great amplitude, the objects for which the institution in question was constituted. In reality, however, it only empowers the institution to embark upon the various activities permitted by it. It does not necessarily imply that the institution should embark on them or has embarked on them.

What section 10(22) speaks of is income of a university or other educational institutions existing only for educational purposes, and not for purpose of profit. Here is a trust running two educational institutions. The income which is sought to be subjected to assessment is that derived from these educational institutions. It is an admitted fact that the surplus was used only for the purposes of the educational institutions. The profits of the trust are not distributed. It is not a profit-making organisation and the surplus earned from the schools is ploughed back into the schools themselves for their educational and developmental purposes. What is relevant under section 10(22) is the source of the income, whether it has been derived from an educational institution existing solely for educational purpose. The schools in question are not used for any other purposes. They therefore existed solely for educational purposes. Even the trust, for that matter, existed solely for that purpose during the relevant years despite the permissive amplitude of its objects clause, since it had not embarked upon any other activity. 'Exist' means 'to be in present force, activity or effect at a given time'. If during the relevant year, the trust in question existed solely for educational purposes, we should think that section 10(22) is attracted to the facts of this case, when the income derived is solely from the educational institutions run by it, and the activities of the trust are not for profit. 6, We do not find anything in the decisions in Sole Trustee, Loka Shikshana Trust v. CIT [1975] 101 ITR 234 (SC), Addl CIT v. Surat Art Silk Cloth Mfrs. Association [1980] 121 ITR 1 (SC) or Municipal Corpn. of Delhi v. Children Book Trust [1992] 3 SCC 390, which militates against the view we have taken. All those cases dealt with the scope and effect of the term 'charitable purpose' and as to what exactly was charity. They have no application to this case where the claim is under section 10(22). We do not find any error in the order of the Tribunal and no referable question of law arising out of it. We dismiss the petition The above citation clearly explains why the Apex Court judgement in Sole Trustee, Loka Shikshana Trust v. CIT [1975] 101 ITR 234 (SC), Addl CIT v. Surat Art Silk Cloth Mfrs relied upon by CCIT, is not applicable in this matter. b. Little Angels Shiksha Samiti v. Union of India 11 taxmann.com 37 [2011] (MP), The Hon'ble High Court has observed and held in various Paras as under:

On the issue of rejection of registration u/s 10(23C)(vi) by CCIT observing that the assessee had a surplus in the FY 2010-11, 2011-12 and 2012-13, thus the assessee is existing for the purpose of making profit and not solely for educational purpose, Ld AR Submitted that the argument of the department itself is fragile, for the reason that the concept of surplus is embedded in the expression „Income‟, unless there is surplus or income, there is no question of granting exemption. There was no specific finding by the Ld CCIT that the school was being run for profit purpose and it is not existed solely for educational purpose. It is further submitted that unless it is proved that the surplus is being used for personal benefit or was not being used for the purpose of educational activities, the same cannot suggest that the institution is existing for profit motive. Thus the surplus was only incidental to the main object of 10 spreading education. In support the assessee placed before us a judgment of the Apex Court which interprets this aspect as under:- a. Queen's Educational Society v. CIT 55 taxmann.com 255 [2015] (SC) The Hon'bie Apex Court has concurred and approved the Punjab & Haryana High Court judgment in Pinegrone International Charitable Trust v. Union of India [2010] 327 ITR 73/188 Taxman 402 where in it was held as under: "....The fact that the Petitioner has a surplus of income over expenditure for the three years in question, cannot by any stretch of logical reasoning lead to the conclusion that the Petitioner does not exist solely for educational purposes or, as that Chief Commissioner held that the Petitioner exists for profit. The test to be applied is as to whether the predominant nature of the activity is educational. In the present case, the sole and dominant nature of the activity is education and the Petitioner exists solely for the purposes of imparting education. An incidental surplus which is generated, and which has resulted in additions to the fixed assets is utilized as the balance-sheet would indicate towards upgrading the facilities of the college including for the purchase of library books and the improvement of infrastructure. With the advancement of technology, no college or institution can afford to remain stagnant. The Income-tax Act 1961 does not condition the grant of an exemption under Section 10(23C) on the requirement that a college must maintain the status-quo, as it were, in regard to its knowledge- based infrastructure. Nor for that matter is an educational institution prohibited from upgrading its infrastructure on educational facilities save on the pain of losing the benefit of the exemption under Section 10(23C). Imposing such a condition which is not contained in the statute would lead to a perversion of the basic purpose for which such exemptions have been granted to educational institutions. Knowledge in contemporary times is technology driven. Educational institutions have to modernize, upgrade and respond to the changing ethos of education. Education has to be responsive to a rapidly evolving society. The provisions of Section 10(23C) cannot be interpreted regressively to deny exemptions. So long as the institution exists solely for educational purposes and not for profit, the test is met." Thus, where a surplus was made by educational institution which was ploughed back for educational purposes, said institution was to be held to be existed solely for educational purpose and not for purpose of profit. Similarly, in the instant case, the surplus of the institutes is lying in Bank Accounts of schedule banks and are retained with the institute for utilizing it for educational purposes.

The ld. CIT-DR relied on the order of the CCIT and reiterated the findings of the Apex Court in the case of Sole Trustee, Loka Sikshan Trust (supra). Thus, argued that the findings of the LD CCIT were absolutely justified and deserves to be upheld.

We have heard rival submissions, perused the record carefully and have gone through the case laws referred herein above by both the parties. Ostensibly, the approval of the application of the assessee was denied by the Ld CCIT on the basis of (1) findings of the Apex Court in the case of Sole Trustee, Loka Sikshan Trust (supra), observing that the emphasis in section 10(22) is on word „solely‟, which means exclusively and not primarily. (2) Amendment of the objects of the society dated 16/06/2014 can be considered prospectively from 17/06/2014, thus will not help the assessee in application 24/07/2013 made for exemption u/s 10(23C)(vi) and (via) for the financial year 2012-13 and onwards. (3) As per audit reports submitted by assessee there were activities which are not covered by the objects of the society like advancing funds, earning of interest and sale of books, the assessee has furnished the details but no separate accounts were kept for income and expenses relating to sale of books. Further it is observed that the surplus were generated by the assessee in all three FY‟s 2010-11, 2011-12 and 2012-13, hence

The case law referred to by the department in the case of Sole Trustee, Loka Sikshan Trust (supra), wherein the definition of education was interpreted by the Hon‟ble Apex Court as early as in year 1975, where in it is demonstrated that all the activities which teaches someone something cannot be brought in to the net of definition of Education for example travelling, reading of news paper and magazins, seeing pictures, visit art gallery, museum and zoos, dealing with people and gaining experience, learning of lesson on being cheated when your wallet has been stolen and also by visiting night clubes, all this in way is education in the great school of life, but can‟t be the “education” in terms of section 2(15) of the Act. Education connotes in the clause is the process of training and developing the knowledge, skill mind, and character of students by formal schooling. This judgment of the Hon‟ble Apex Court, later, has been duly referred by the Hon‟ble Kerala High Court in the case of CIT Vs. Geeta Bhawan Trust (1995) (supra). Hon‟ble MP High Court in the case of Little Angels Shiksha Samiti (2011)(supra) has took wordings of Sole Trustee, Loka Sikshan Trust (supra) to construe the meaning of Education defined u/s 2(15) of the act and reiterated that the word education used in clause (15) of section 2 means the process of training and developing the knowledge, skill, mind and character of the student by normal schooling. The objects of the assessee educational institution are also for the overall development of the students; assesse was not found

In the result, the appeal of assessee is allowed. Order pronounced in pursuance to Rule 34(4) of ITAT Rules, 1963 21/09/2022. (RAVISH SOOD) (ARUN KHODPIA) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER रायऩुर/Raipur; ददनाांक Dated 21/09/2022 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनतलऱपऩ अग्रेपषत/Copy of the Order forwarded to : अऩीऱाथी / The Appellant- 1. प्रत्यथी / The Respondent- 2. आयकर आयुक्त(अऩीऱ) / The CIT(A), 3. आयकर आयुक्त / CIT 4. 5. विभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, रायऩुर/ DR, ITAT, Raipur गार्ड पाईऱ / Guard file. 6. सत्यावऩत प्रयत ////