Income Tax Appellate Tribunal - Chandigarh
Chime Gatsal Ling Monastery, Kangra vs Assessee on 28 October, 2014
IN THE INCOME TAX APPELLATE TRIBUNAL
CHANDIGARH BENCH 'B', CHANDIGARH
BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER
AND SHRI T.R.SOOD, ACCOUNTANT MEMBER
ITA Nos. 216 to 219/Chd/2012
Assessment Years : 2005-06 to 2008-09
The Income Tax Officer, Vs. Chime Gatsal Ling Monastery,
Dharamshala. Sidhbari, Dharamshala,
H.P. Distt. Kangra (H.P.).
PAN: AAAAC8633Q
And
C.O.No.32/Chd/2012
Arising out of
ITA No.216/Chd/2012
Assessment Year : 2005-06
Chime Gatsal Ling Monastery, Vs. The Income Tax Officer,
Sidhbari, Dharamshala, Dharamshala.
Distt. Kangra (H.P.). H.P.
PAN: AAAAC8633Q
And
C.O.No.46/Chd/2012
Arising out of
ITA No.217/Chd/2012
Assessment Year : 2006-07
Chime Gatsal Ling Monastery, Vs. The Income Tax Officer,
Sidhbari, Dharamshala, Dharamshala.
Distt. Kangra (H.P.). H.P.
PAN: AAAAC8633Q
And
C.O.No.47/Chd/2012
Arising out of
ITA No.218/Chd/2012
Assessment Year : 2007-08
2
Chime Gatsal Ling Monastery, Vs. The Income Tax Officer,
Sidhbari, Dharamshala, Dharamshala.
Distt. Kangra (H.P.). H.P.
PAN: AAAAC8633Q
And
C.O.No.48/Chd/2012
Arising out of
ITA No.219/Chd/2012
Assessment Year : 2008-09
Chime Gatsal Ling Monastery, Vs. The Income Tax Officer,
Sidhbari, Dharamshala, Dharamshala.
Distt. Kangra (H.P.). H.P.
PAN: AAAAC8633Q
(Appellant) (Respondent)
Assessee by : Shri Dinesh Kumar Sood
Department by : Shri J.S.Nagar, DR
Date of hearing : 16.10.2014
Date of Pronouncement : 28.10.2014
O R D E R
PER BENCH :
The departmental appeals as well as the Cross Objections filed by the assessee are directed against the order of learned CIT (Appeals), Shimla, dated 28.11.2011 for assessment years 2005-06 to 2008-09.
2. The departmental appeals are time barred by 8 days. The Assessing Officer (ITO, Dharamshala, H.P.) has explained in the application for condonation of delay that since the order of the learned CIT (Appeals), Shimla was received only on 13.2.2012 and the appeals were to be filed by 15.2.2012, therefore, there was some delay in filing the appeals. The 3 learned counsel for the assessee did not object to the condonation of delay.
3. Considering the explanation of the Department, we are satisfied that the delay in filing the departmental appeals was not intentional and the Assessing Officer was prevented by sufficient cause in not filing the appeal within the period of limitation. The delay in filing the departmental appeals are accordingly condoned.
4. The learned counsel for the assessee at the outset submitted that he may be permitted to withdraw all the Cross Objections. In view of the submission of the learned counsel for the assessee all the Cross Objections are dismissed as withdrawn.
5. In all the departmental appeals the grounds of appeal are common. Therefore, the same are reproduced here as have been raised in ITA No.216/Chd/2012 :
i. "On the facts and circumstances of the case, the A.O. was right in treating the donations received by the assessee as taxable revenue receipts in its hands.
ii. On the facts and circumstances of the case, the A.O. was right in treating the expenditure incurred by the assessee for construction of a monastery as capital expenditure not allowable as deduction in computation of income.
iii. On the facts and circumstances of the case, the A.O. was right in treating the assessee a non- charitable AOP.
iv. It is prayed that the order of the Ld CIT (A) be set-aside and that of the A.O. restored.
v. The Appellant craves leave to add any other ground of appeal which may arise at the time of hearing."
6. Briefly, the facts of the case are that the assessee is a Tibetan Buddhist Temple which was under construction 4 during the given assessment years. It got registered as a society under the Societies Registration Act. The assessee applied for grant of registration under section 12A of the Income Tax Act, which was not granted. The assessee for all the four assessment years filed return of income at nil income. The Assessing Officer, however, passed the assessment order against the assessee in the status of AOP treating the gross receipts of donation of the assessee as income. The additions were challenged before the learned CIT (Appeals) and it was submitted that the assessee institution is a Buddhist temple/monastery, which is run by one of the four Sects of Buddhism. The assessee was constructing a temple purely on public contributions and after issue of proper receipts for the same, the receipt books were got specifically printed for the said purpose. The amount collected as donation for construction was strictly used towards the specific purpose of construction only. The Assessing Officer acknowledged the same fact vide para No.2.1 of the assessment order. The assessee was not having any other income and accordingly it had prepared the Balance Sheet and the Receipts and Payments Account. All the receipts of the assessee institution were of capital nature and all the expenses incurred also qualify as a capital expenditure. It was submitted that once the registration under section 12A of the Income Tax Act is not granted, the provisions of sections 11 and 12 of the Income Tax Act cannot be applied against the assessee as have been applied by the Assessing Officer for making the additions. It was submitted 5 that the assessee was in the process of constructing a Monastery during all the years under consideration and, therefore, no income had started to accrue to the assessee. There being no income in the hands of the assessee, the taxable income was rightly declared as nil for all the assessment years. The CIT (Appeals) considering the submissions of the assessee and the material available on record deleted the additions and allowed the appeals of the assessee. His findings in the impugned order in paras 4 to 4.3 are reproduced as under:
"4. The rival submissions have been carefully considered with reference to the relevant documents and records. It has been duly mentioned by the ld. A.O. that the appellant assessee is a society set up for charitable and religious purposes and was constructing a huge building after receiving amount in he form of voluntary donations. It has also been acknowledged by the Id. A.O. that the appellant had produced the relevant books of account alongwith bills and vouchers and requisite documents. The Id. A.O. has held that since the appellant institution had not been registered u/s 12A of the I. T. Act, its claim regarding its income being exempt was not acceptable. However, despite holding that registration u/s 12A of the I. T. Act was not granted to the appellant assessee, the Id. A.O. has chosen to apply the provisions of section 12(1) of the I. T. Act to the appellant's case and thereby treated the voluntary contributions received by it as deemed income from properties held under the trust wholly for charitable or religious purposes within the meaning of section 11 of the I. T. Act. He held that voluntary donations were received by the assessee and therefore, the same were covered u/s 12(1) of the I. T. Act. The Id. A.O. has also acknowledged in para 2.3 of the assessment order that the appellant's case could be considered for exemption u/s 11 of the Act but the conditions specified in section 12A were not fulfilled by the appellant for claiming exemption u/s 11. The Id. A.O., while finalizing the assessment of the appellant as AOP, has treated the gross 6 receipts of donations of Rs.18,57,900/-, Rs.28,15,600/-, Rs.31,52,300/- and Rs.12,18,600/- for the assessment years 2005- 06, 2006-07, 2007-08 and 2008-09 as taxable income of the appellant assessee. The Id. A.O. has not allowed the expenditure claimed by the appellant assessee in respect of the construction of the monastery observing that the said expenditure was in the nature of capital expenditure and cannot, therefore, be allowed. The Id. A.O. has also applied the maximum marginal rate of taxation holding that the individual shares of the members of the AOP were not determinate or known in the given case.
4.1 It is seen that the appellant is a registered society for charitable and religious purposes and was totally devoted to the construction of a monastery. The said monastery was being built up with the voluntary donations and there were no other profession or occupation in which the appellant society was engaged. Books of account, registers and receipt books were meticulously maintained by the appellant society incorporating the details of the smallest sums of donations received and spent towards the construction of the monastery/Buddhist temple. The said books of accounts and documents have a/so been produced during the course of the proceedings. The said donations have duly been acknowledged by the Id. A.O. Once the appellant is assessed in the status of an AOP, the provisions relating to the assessment of a Trust can not possibly be applied to its case. To that extent the Id. A. 0. has misled himself in invoking the provisions of section 12 of the I. T. Act. The said provisions would not be applicable to the appellant assessee, since the appellant is not assessed as a Trust.
4.2 It is also evident from the facts of the case that the assessee had not commenced any operation or activities during the four assessment years under consideration. During all the four years, the monastery was under construction and the appellant society was receiving donations and spending the money thus received on the construction of the said monastery. Therefore, no income had started to accrue to the appellant during the said period. It is, therefore, not understood as to how the Id. A.O. has treated the gross amount of voluntary donations received by the Society as the taxable income without looking at the expenditure incurred by the appellant towards the construction of 7 the monastery. The Id. A.O. is not justified in treating the gross receipts of the appellant as the revenue receipts and in treating the expenditure on construction as the capital expenditure despite acknowledging the fact that a huge building was being constructed by the appellant. The Id. A.O. has not been able to substantiate as to how the donations received by the appellant partake the character of income and for what activity. It is also not the Id. A.O's case that the monastery was being constructed with the help of receipts /income from some other sources.
4.3 On the given facts and circumstances of the case it is evident that there is no receipt in the hands of the appellant in the nature of income. The Id. A. O's action in treating the gross receipts on account of voluntary donations as income without allowing the corresponding expenditure is misdirected. The additions made by the Id. A.O. for the 4 given assessment years are thus without any basis and are, therefore, directed to be deleted.
In result, the appeals of the appellant for all the 4 assessment years are allowed."
7. We have heard the learned representatives of both the parties and perused the material on record The learned D.R. for the Revenue relied upon the order of the Assessing Officer and submitted that all the receipts in the nature of corpus are income of the assessee and have been rightly taxed in the hands of the assessee as an AOP. On the other hand, the learned counsel for the assessee reiterated the submissions made before the authorities below and submitted that identical issue was considered by the I.T.A.T. Agra Bench in the case of ITO Vs. M/s Gaudiya Granth Anuved Trust, Mathura in ITA No.386/Agra/2012 vide order dated 2.8.2013 and on identical facts, the Tribunal dismissed the departmental appeal. The copy of the order is placed on record.
8
8. In view of the submissions of the parties and facts of the case in the light of the order of the learned CIT (Appeals), we do not find any justification to interfere with the order of the learned CIT (Appeals) in deleting the additions. The Assessing Officer referring to provisions of section 12(1) of the Income Tax Act considered the gross receipts of the assessee as income. The learned CIT (Appeals), therefore, correctly held that since the assessee is assessed as an AOP and no registration under section 12AA of the Income Tax Act has been granted to the assessee, therefore, the provisions of section 12 of the Income Tax Act would not apply in the case of the assessee. The provisions of sections 11 and 12 of the Income Tax Act will only apply if the assessee is registered under section 12AA of the Income Tax Act. Therefore, on this reason itself, the departmental appeal is liable to be dismissed. Further the Assessing Officer took the status of the assessee to be AOP but it is a fact established on record that the assessee collected the donation for construction of temple and used the same donation specifically for the purpose of construction only. Thus no income accrues or arises to the assessee and no material has been brought on record that the assessee started doing any activity which yielded any income to the assessee. The word "association" means "to join in common purposes, or to join in an action". Therefore, "association of persons", as used in Income Tax Act, means an association in which two or more persons join in a common purpose or common action and as the words 9 occurs in Income Tax Act, which imposes a tax on income, the association must be one the object of which is to produce income, profits or gains. We rely upon the decision of the Hon'ble Supreme Court in the case of CIT Vs. Indira Balkrishna [39 ITR 546 (SC)]. The learned CIT (Appeals) considering the material on record gave a specific finding of fact that the assessee society was meant for charitable and religious purposes and was totally devoted to the Buddhist temple/monastery in the year under consideration. The assessee was thus at the stage of construction of the temple and has not carried out any other profession or occupation for earning the income. Therefore, no income accrues to the assessee. The assessee has also specifically pleaded that the donations were received as corpus towards the construction of the temple. Therefore, the learned CIT (Appeals) was justified in holding that there is no receipts in the hands of the assessee in the nature of income. The learned counsel for the assessee also rightly relied upon the order of the I.T.A.T., Agra Bench in the case of ITO Vs. M/s Gaudiya Granth Anuved Trust, Mathura (supra), in which identical question was involved in which the assessee Trust was also not registered under section 12A of 12AA of the Income Tax Act and the Tribunal referring to other decisions of other Benches of the Tribunal dismissed the departmental appeal. Copy of the order is placed on record. Therefore, the issue is covered in favour of the assessee by the above order of the I.T.A.T., Agra Bench. Considering the totality of the facts and 10 circumstances, we do not find any merit in the departmental appeal and the same is dismissed.
9. In the result, all the appeals filed by the Revenue are dismissed and the Cross Objections filed by the assessee are dismissed as withdrawn.
Order pronounced in the open court on this 28th day of October, 2014.
Sd/- Sd/-
(T.R.SOOD) (BHAVNESH SAINI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated : 28 t h October, 2014
*Rati*
Copy to: The Appellant/The Respondent/The CIT(A)/The CIT/The DR.
Assistant Registrar, ITAT, Chandigarh