Sou.Kesharbai Hiralal Soni Memorial Trust, Pune v. CIT,III,Pune,

ITA 1570/PUN/2008 | 2005-2006
Pronouncement Date: 21-12-2010 | Result: Allowed

Appeal Details

RSA Number 157024514 RSA 2008
Bench Pune
Appeal Number ITA 1570/PUN/2008
Duration Of Justice 2 year(s) 10 day(s)
Appellant Sou.Kesharbai Hiralal Soni Memorial Trust, Pune
Respondent CIT,III,Pune,
Appeal Type Income Tax Appeal
Pronouncement Date 21-12-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 21-12-2010
Assessment Year 2005-2006
Appeal Filed On 11-12-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI SHAILENDRAKUMAR YADAV AND SHRI D. KARUNAKARA RAO ITA NO. 1570 TO 1572/PN/08 (A.Y: 2005-06 TO 2007-08 ) SOU. KESHARBAI HIRALAL SONI MEMORIAL TRUST 1237 APTE ROAD PUNE 411004 PAN NO. AACT8629K .... APPELLANT VS. CIT-III PUNE . RESPONDENT APPELLANT BY : MRS. DEEPA KHARE RESPONDENT BY : SHRI A. S. SINGH ORDER PER BENCH: THESE THREE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT III PUNE IDENTICALLY DATED 20-10-2008 FOR THE ASSESSMENT YEARS 2005-06 TO 2007-08. GROUNDS IN ALL THE THREE APPEALS ARE IDENTICAL AND THE GROUNDS FROM A.Y 2005-06 ARE REPRODUCED BELOW FOR READY OUR GUIDANCE IN MAKING THI S ORDER:- 1. THE LEARNED CIT ERRED IN LAW AND ON FACTS IN NO T GRANTING APPROVAL U/S. 80G(5) ON THE GROUND THAT THE PROVISIONS OF SE C. 11(2) HAVE NOT BEEN COMPLIED WITH. 2. THE LEARNED CIT ERRED IN LAW AND ON FACTS IN HO LDING THAT INCOME OF THE TRUST IS LIABLE TO BE INCLUDED IN ITS TOTAL INC OME FOR THE RELEVANT ASSESSMENT YEAR. 2. WE HAVE HEARD THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE ORDER OF THE CIT AND OTHER AVAILABLE RECORDS BEFORE US. LATE ST DECISION OF ITAT B BENCH PUNE IN THE CASE OF PROMOTERS AND BUILDERS ASSO CIATION OF PUNE BEARING ITA NO. 39/PN/2009 A.Y 2008-09 ORDER DATED 30-11-2010 WAS ALSO PERUSED. WE HAVE ALSO GONE THROUGH THE RELEVANT PROVISIONS IN T HIS REGARD WHICH ARE AS FOLLOWS:- SEC 2(15) CHARITABLE PURPOSE INCLUDES RELIEF OF THE POOR EDUCATION MEDICAL RELIEF [PRESERVATION OF ENVIRONMENT (INCLUDING WATERSHEDS FORESTS AND WILDLIFE) AND PRESERVATION OF MONUMENTS OR PLACES OR OBJECTS OF ARTISTIC OR HISTORIC INTEREST ] AND THE ADVANCEMENT OF ANY OTHER OBJECT O F GENERAL PUBLIC UTILITY: ITA NO. 1570 TO 1572/PN/08 A.Y: 2005-06 TO 2007-08 PAGE 2 OF 3 PROVIDED THAT THE ADVANCEMENT OF ANY OTHER OBJECT OF GENERA L PUBLIC UTILITY SHALL NOT BE A CHARITABLE PURPOSE IF IT INVOLVES THE CARRYING O N ACTIVITY OF RENDERING ANY SERVICE IN RELATION TO ANY TRADE COMMERCE OR BUSINE SS FOR A CESS OR FEE OR ANY OTHER CONSIDERATION IRRESPECTIVE OF THE NATURE OF USE OR APPLICATION OR RETENTION OF THE INCOME FROM SUCH ACTIVITY: . .. FURTHER THE PROVISION OF SECTION 80G(5)(I) IS AS UNDER . 80G(5)(I). THIS SECTION APPLIES TO DONATIONS TO ANY INSTITUTION OR F UND REFERRED TO IN SUB-CLAUSE (IV) OF CLAUSE (A) OF SUB-SECTION (2) ONLY IF IT IS ESTABLISHED IN INDIA FOR A CHARITABLE PURPOSE AND IF IT FULFILS THE FOLLOWIN G CONDITIONS NAMELY:- [(I) WHERE THE INSTITUTION OR FUND DERIVES ANY INCOME S UCH INCOME WOULD NOT BE LIABLE TO INCLUSION IN ITS TOTAL INCOME UNDER THE PROVISIONS OF SECTIONS 11 AND 12 [OR CLAUSE (23AA)] [OR CLAUSE (23C)] OF SECTION 10 : [ PROVIDED THAT WHERE AN INSTITUTION OR FUND DERIVES ANY INCOME B EING PROFITS AND GAINS OF BUSINESS THE CONDITION THAT SUCH INCOME WO ULD NOT BE LIABLE TO INCLUSION IN ITS TOTAL INCOME UNDER THE PROVISIONS OF SECTIO N 11 SHALL NOT APPLY IN RELATION TO SUCH INCOME IF- 4. FURTHER WE HAVE ALSO PERUSED THE DELHI BENCH DECISION IN THE CASE OF GAIN EDUCATIONAL SOCIETY(SUPRA) THE HELD PORTION READS AS UNDER:- HELD ALLOWING THE APPEAL THAT THE ASSESSEE PROVIDED FR EE PROFESSIONAL TRAINING OF SEWING WEAVING AND MUSIC TO THE POOR WIDOWS AND H ELPLESS UNEDUCATED FEMALES TO MAKE THEM SELF-DEPENDENT AGAINST NOMINAL PAYM ENTS. THE ACTIVITIES WERE CARRIED ON WITH THE HELP OF DONATIONS RECEIVED FROM MEMBERS AND FROM PERSONS CONTRIBUTING FOR CHARITY. MOREOVER THE RECOGNITION GRANTED TO THE ASSESSEE UNDER SECTION 12A WAS IN FORCE AND HAD NOT BEEN WITHDRAWN . THE GRANT OF RENEWAL OF 80G CERTIFICATE HAD WRONGLY BEE N REFUSED TO THE ASSESSEE AS ACCORDING TO THE FATS OF THE CASE THE AC TIVITY OF THE ASSESSEE WAS VERY MUCH CHARITABLE IN NATURE AS IT WAS CONSTITUTED TO PROVIDE EDUCATION TO THE NEEDY PERSONS AND FEMALES TO ENABLE THEM TO BECOME SE LF-DEPENDENT. NO SPECIFIC INSTANCE HAD BEEN BROUGHT ON RECORD BY THE CO MMISSIONER TO SHOW THAT WHAT WAS STATED BY THE ASSESSEE WAS NOT CORRECT. THERE WAS NO JUSTIFICATION FOR NON-GRANT OF RENEWAL OF CERTIFICATE UNDER SECTI ON 80G AND THE COMMISSIONER WAS DIRECTED TO GRANT RENEWAL OF CERTI FICATE UNDER SECTION 80G OF THE ACT TO THE ASSESSEE. 3. FROM THE SAID PROVISIONS IT IS EVIDENT THAT THE P ROVISIONS TO SEC. 80G(5) ARE NOT INDEPENDENT AND THEY HAVE TO BE INTERPRETED IN CONJUNCTION WITH THE OTHER PROVISIONS OF THE ACT SUCH AS SEC. 11 AND 12 OF THE INCOME TAX ACT. THE INCOME WHICH IS OTHER WISE INELIGIBLE FOR INCLUSION IN THE TOTAL INCOME FOR THE PURPOSE OF SEC. 11 AND 12 OF THE INCOME TAX ACT CANNOT BE ELIGIBLE FOR INCLUSION IN THE TOTAL INCOME UNDER THE SAID PROVISIONS. IN THE SE CIRCUMSTANCES BOTH THE PARTIES HAVE AGREED TO GO BACK TO THE FILES OF THE CI T PUNE FOR DECIDING THE ISSUE AFRESH AFTER EXAMINATION OF THE ISSUE AFRESH. WE FIND MERIT IN THE REQUEST OF THE PARTIES ACCORDINGLY THE GROUNDS RAISED IN THE APPEAL ARE SET ASIDE TO THE FILES OF THE CIT WITH THE DIRECTION TO DECIDE THE IS SUE DE NOVO AFTER CONSIDERING THE DECISION MENTIONED ABOVE AND ALSO ANY OTHER LAW IN FORCE. IT GOES WITHOUT SAYING THAT CIT SHOULD HONOUR THE PRINCIPLE OF NATURAL JUSTICE AND ACCORD ITA NO. 1570 TO 1572/PN/08 A.Y: 2005-06 TO 2007-08 PAGE 3 OF 3 ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. DR RELIED ON A JUDGMENT FROM THE HON BLE KERAL HIGH COURT REPORTED IN 258 ITR 39 5 AND THE CIT CONSIDER WHILE ADJUDICATING THE ISSUE. FURTHER IT IS OUR DIRECT ION THAT THE CIT SHALL ALSO CONSIDER THE DECISION REPORTED IN 246 ITR 452 (GUJ) AN D 256 ITR 696 (GUJ) AND RELIED UPON BY THE LD COUNSEL FOR THE ASSESSEE. ACCORD INGLY GROUNDS ARE SET ASIDE. 4. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 21 ST DECEMBER 2010. SD/- SD/- (SHAILENDRAKUMAR YADAV) (D.KARUNAKAR A RAO) JUDICIAL MEMBER ACCOUNTANT MEMBE R PUNE DATED THE 21 ST DECEMBER 2010 R COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT-III PUNE 4. D.R. ITAT B BENCH BY ORDER ASSISTANT REGISTRAR I.T.A.T PUNE