Income Tax Appellate Tribunal - Mumbai
Akhil Bharatiya Gandharva ... vs Ito (E) 1(1), Mumbai on 5 September, 2017
आयकर अपील य अ धकरण "एक-सद य मामला" यायपीठ मब ंु ई म।
IN THE INCOME TAX APPELLATE TRIBUNAL "SMC" BENCH, MUMBAI ी शमीम याहया, लेखा सद य के सम ।
BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER
आयकर अपील सं./I.T.A. No. 3245/Mum/2017
( नधारण वष / Assessment Year: 2012-13)
Akhil Bharatiya Gandharva ITO(E)-1(1),
Mahavidyalaya Mandal Mumbai
बनाम/
Gandharva Niketan, Plot No. 5,
Sector 9A, Vashi, Vs.
Navi Mumbai-400 703
थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AAATA 4224 A
(अपीलाथ /Appellant) : ( यथ / Respondent)
अपीलाथ क ओर से / Appellant by : Shri Devendra Jain
यथ क ओर से/Respondent by : None
सनु वाई क तार ख / : 27.06.2017
Date of Hearing
घोषणा क तार ख /
: 05.09.2017
Date of Pronouncement
आदे श / O R D E R
Per Shamim Yahya, A. M.:
This appeal by the assessee is directed against order of learned CIT(A)-1, Mumbai dated 28.02.2017 and pertains to the assessment year 2012-13.
2. The grounds of appeal reads as under:
On the facts and in the circumstances of case and in law, 2 ITA No. 3245/Mum/2017 (A.Y. 2012-13) Akhil Bharatiya Gandharva Mahavidyalaya Mandal vs. ITO(E)
1. The Ld. CIT(A) has erred in confirming the action of A.O of adding Life Membership Fee received to the tune of Rs.9,73,800/- to the income of the Trust by treating the same as revenue receipt.
2. The Ld. CIT(A) has erred in confirming the action of A.O of adding Life Membership Fee of Rs.9,73,800/- to the income of the Trust on the ground that the same is not corpus donations u/s 11 (1 )(d) as no documentary proof was submitted which was never asked for.
3. The Ld. CIT(A) has erred in confirming the action of A.O of adding Life Membership Fee of Rs. 9,73,800/- to the income of the Trust on the ground that justification about the non-applicability of Bombay high Court decision in the case of WIAA Club to the present case was not given though the same was never asked for.
3. Briefly the facts of the case are that the assessee is a trust registered with DIT(E), Mumbai u/s. 12A and 80G and with the Charity Commissioner, Mumbai. The assessee filed its return of income on 31.10.2012 along with the Income & Expenditure Account, balance sheet and audit report in Form 10B declaring total income at Rs.90,783/-. However, the A.O. completed the assessment vide order dated 13.3.2015 u/s. 143(3) of the I.T. Act, 1961 at taxable income of Rs.13,06,630/-.
4. In the assessment, the Assessing Officer (A.O.) inter alia held that the life membership fee amounting to Rs.9,73,800/- was revenue receipt and was to be taxed as such. The observations of the A.O. in this regard are as under:
5. Life Membership Fund:
It is seen from the balance sheet, the assessee has received a sum of Rs.9,73,800/- as Life Membership which is not routed through Income & Expenditure account. However, the assessee's representative was asked vide order sheet noting dated 10.03.2015 that as to why not Life Membership is treated as income. In response to this, the assessee's representative vide its letter has stated that:3 ITA No. 3245/Mum/2017 (A.Y. 2012-13)
Akhil Bharatiya Gandharva Mahavidyalaya Mandal vs. ITO(E) "Life Membership is a permanent membership far a Life & It is treated as a part of corpus of the trust and it is treated as a capital receipt & reflected under the Balance Sheet under the head Reserve & Surplus." The explanation of the assessee's representative is considered but the same is not acceptable on the following reasons:-
(1) Life membership of Rs.9,73,800/- received by the assessee is not corpus /Earmarked fund as the same is not voluntarily contribution for specific purpose which the assessee trust can claim exemption u/s.11(1)(d) of the Act. (2) Life membership is the tees charged by the trust and members get for future benefits, cannot be considered as voluntarily contribution for specific purpose.
(3) Reliance is placed in the case of WJ.A.A Club Ltd v/s CIT {1979} 2 Taxman 57 (Bom), the Hon"ble Bombay High Court held that "it would be seen that the lump sum payment of Rs.2,500/- in the case of life membership has two elements in it. A part is entrance fee and the other part is consolidated commuted payment in lieu of annual subscriptions. The element of entrance fee which in this case has to be computed at Rs.500 to maintain parity with ordinary members, is a return for vesting a right of membership and is clearly in the nature of a capital receipt. The other element of life membership, amounting to Rs.2,000 in each case, is the consolidation of a revenue receipt, and is taxable as income".
In view of the above, Life membership fees of Rs,9,73,800/- is treated as revenue receipt and brought to tax.
5. Before the learned CIT-A, the assessee's submissions reads as under:
i. Appellant submitted that the trust is established in the year 1946 and since, then the trust is following this system of transferring life membership fee to 'Membership Fund'. The trust has a practice of publishing and circulating their monthly magazine of about Rs.30/-per copy to the members of the trust. The trust circulates such monthly magazine to life members free of cost Thus, the trust nearly spends yearly Rs.450/- per life member on account of magazine while a fee is charged to others for the said magazine. The life members also have also voting rights. Thirdly, they have a right to attend Annual general meeting of the trust.
ii. Appellant further submitted that it is a basic accounting principle that life membership fee be treated as 'Corpus' especially when certain services on regular basis are provided to the members (e.g magazine subscription, voting rights etc.) The decision of Bombay HC in the case of W1AA Club has been 4 ITA No. 3245/Mum/2017 (A.Y. 2012-13) Akhil Bharatiya Gandharva Mahavidyalaya Mandal vs. ITO(E) quoted by the A.O, wherein part of life membership fee has been treated as revenue and a Dart of it is of capital nature. The accounting system followed by the appellant: trust has already taken care of the theory discussed in the said decision.
iii. Appellant also submitted that, for earlier assessment year i.e. A.Y. 2011- 12, there was increase of Rs.5,38,000/- towards life membership fund which was not routed through Income & Expenditure account. Despite this fact, no addition towards life membership fees was made in the assessment completed under 143(3) for the said year. Thus, the method consistently adopted by the appellant is accepted by the department. It is worth noting that the trust is following same accounting treatment and policies year to year and there has been no change.
iv. In view of the foregoing, it was requested that the addition of Rs. 9,73,8007- may be deleted.
6. However, the Ld. CIT-A was not convinced, he decided the issue against the assessee by holding as under:
6.2 I have considered the facts and circumstances of the case, gone through the assessment order of the A.O and the submissions of the appellant and also discussed the case with the AR of the appellant. The contentions and submissions of the appellant are being discussed and decided here in under:
i. Appellant submitted that Life Membership fee of Rs.9,73,800/- is to be treated as corpus. However, nothing has been brought on record to rebut the observation of the Assessing Officer that, the same is not corpus/earmarked fund being not voluntary contribution for specific purpose which the assessee can claim exempt u/s.11(1)(d). Also claim of the appellant, that its accounting system takes care of the theory propounded by the Hon. Bombay High Court in the case of WIAA Club (supra) is neither elaborated nor supported by any documentary evidence. Accordingly, it is held that the decision of Bombay High Court squarely applies to the facts of the appellant's case. ii. Appellant submitted that in preceding years no such addition was made and hence consistency should have been maintained by A.O. In this regard it is mentioned that, in the case of M. M. Ipoh & Ors vs. CIT(SC) 67 ITR 106 Hon'ble Apex court has observed that res judicata is not applicable as each assessment year is a separate proceeding. Similar observations were made by Hon'ble Supreme Court in the case of New jehangir Vakil Mills Co Ltd Vs CIT(SC) 49 ITR 137, and Bharat Sanchar Nigam Ltd & Anr. Vs Union of India 5 ITA No. 3245/Mum/2017 (A.Y. 2012-13) Akhil Bharatiya Gandharva Mahavidyalaya Mandal vs. ITO(E) & Ors (SC) 282 ITK 273. Further in the case of CIT Vs Seshasayee Industries Ltd. (Madras) 242 2TR 691, it was held by the Hon'ble Madras High Court that the fact that if claim was not questioned in earlier years does not entitle the assessee to contend that the law would not be applied during the course of assessment year. Further, in the case under consideration, legal issue as regards the nature of receipt being capital or revenue has arisen. It has been held by Hon'ble courts that where legal issue arises, the principle of resjudicata does not apply. In the case of Oswal Agro Mills [313 ITR 24], the Hon'ble Supreme Court has held that where question of law is involved, the rule of consistency will not prevail. Similar observations were made by Hon'ble apex court in 313 ITR 363; 307 ITR 338; 3OO ITR 336. Further, in the case of British Paints [1GS ITR 44], the Hon'ble Supreme Court has held that there cannot be estoppel against the law. Similar view was held in the cases of Luchi Ram Puranmal [177 CTR 640 (MP)]; Foss Electric 263 ITR 125] and Distributors of Baroda [118 ITR 243]. The Hon'ble Delhi High Court in CWT vs. Meattles (p) Ltd. 156 ITR 569 has held that the revenue authorities cannot be stopped from taking a view of statutory provisions in the later year. Contention of the appellant is therefore not acceptable.
7. Against the above order, the assessee is in appeal before the ITAT.
8. I have heard both the counsel and perused the records. Learned counsel of the assessee reiterated the submissions made before the learned CIT-A. He inter alia submitted that since 1946, the assessee is following the system. Life membership fee has never been brought to tax as revenue receipt earlier. Hence, the learned counsel referred to the Hon'ble Apex Court decision and Hon'ble jurisdictional High Court decision, wherein it was held that due regard to be given to the maintenance of uniformity. He further referred to couple of ITAT decision in favour of treating life membership fee as capital receipt. Ld. Counsel referred to the following case laws:
1. Radhasoami Satsang v. CIT [1992] 193 ITR 321 (SC)
2. CIT vs. Gopal Purohit in ITA No.1121 of 2009 dated 6.1.2010 6 ITA No. 3245/Mum/2017 (A.Y. 2012-13) Akhil Bharatiya Gandharva Mahavidyalaya Mandal vs. ITO(E)
3. Indian Society of Anaesthesiologists vs. ITO [2014] 47 taxmann.com 183 (Chennai - Trib.)
4. Janata Trust vs. ITO [1986] 16 ITD 147 (Bom)
9. Per Contra, the learned Departmental Representative (DR) submitted that the authorities below have decided the issue against the assessee by referring to and following a Hon'ble jurisdictional High Court decision which is germane. He submitted that it is settled law that not following an Hon'ble jurisdictional High Court decision results in mistake apparent from record. Hence, the ld. DR submitted that since the decision has been made on the basis of Hon'ble jurisdictional High Court decision, the same needs to be affirmed. Furthermore, the ld. DR submitted that the Hon'ble Apex Court has held that an error should not be perpetuated.
10. I have carefully considered the submissions and perused the records. I find that the facts of this case indicate that the assessee has been capitalizing the life membership fee receipt since beginning and it has been so accepted by the Revenue earlier. In the present assessment year, the A.O. has invoked a decision of Hon'ble jurisdictional High Court in the case of WIAA Club vs. CIT [1979] 2 taxman 57 (Bom). In this regard, I may gainfully refer to the decision of Hon'ble jurisdictional High Court in this case as under:
"it would be seen that the lump sum payment of Rs.2,500/- in the case of life membership has two elements in it. A part is entrance fee and the other part is consolidated commuted payment in lieu of annual subscriptions. The element of entrance fee which in this case has to be computed at Rs.500 to maintain parity with ordinary members, is a return for vesting a right of membership and is clearly in the nature of a capital receipt. The other element of life membership, 7 ITA No. 3245/Mum/2017 (A.Y. 2012-13) Akhil Bharatiya Gandharva Mahavidyalaya Mandal vs. ITO(E) amounting to Rs.2,000 in each case, is the consolidation of a revenue receipt, and is taxable as income".
11. A reading of the above makes it clear that the lump sum payment was dissected into two parts. One being entrance fee and other part commuted payment in liew of annual subscriptions. It was expounded that the element of entrance fee was to maintain parity with ordinary members, and the same was of return for investing the right of membership and hence it was the capital receipt, the other element was the consolidation of the revenue receipt and hence taxable. From this it follows that treatment of life membership fee depends upon its objective/attribution.
12. Now I examine the present case on the touchstone of above said case law. I find that the assessee has made submissions before the learned CIT(A) that part of life membership fee is attributed towards subscription of magazine, which is otherwise charged to normal members. In such circumstances, in my considered opinion, prima facie the entire life membership fee in this case cannot be attributed to revenue receipt. However, the necessary facts towards objective/attribution of the life membership fee need to be brought on record. Hence, I deem it appropriate to remit the issue to the file of the assessing officer. The assessing officer is directed to obtain the necessary information regarding the objective/ attribution of life membership fee and, thereafter, decide as per the above case law from jurisdictional High Court.
13. I find that the reliance of the learned counsel of the assessee on the proposition of uniformity and a couple of tribunal decisions do not support the case of the 8 ITA No. 3245/Mum/2017 (A.Y. 2012-13) Akhil Bharatiya Gandharva Mahavidyalaya Mandal vs. ITO(E) assessee. As in this case, the decision is being made by following the Hon'ble jurisdictional High Court decision which is clearly binding on all subordinate courts and tribunal's. As held by the Hon'ble Apex Court in the case of Saurashtra Kucth not following the Hon'ble jurisdictional High Court decision results in an order suffering from an mistake apparent from record. In these circumstances, I do not find the submissions of the learned counsel of the assessee regarding following the earlier orders sustainable.
14. Accordingly, the issue raised is remitted to the file of the assessing officer. The assessing officer is directed to obtain necessary information and, thereafter, decide as per exposition from the Hon'ble jurisdictional High Court referred here-in-above. Needless to add, the assessee should be granted adequate opportunity of being heard.
15. In the result, this appeal by the assessee stands allowed for statistical purposes.
प रणामतः नधा रती क अपील सां यक य उ दे य के लए क जाती है ।
Order pronounced in the open court on 05/09/2017 Sd/-
(Shamim Yahya) लेखा सद य / Accountant Member मुंबई Mumbai; दनांक Dated : 05.09.2017 व. न.स./Roshani, Sr. PS 9 ITA No. 3245/Mum/2017 (A.Y. 2012-13) Akhil Bharatiya Gandharva Mahavidyalaya Mandal vs. ITO(E) आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent
3. आयकर आयु त(अपील) / The CIT(A)
4. आयकर आयु त / CIT - concerned
5. वभागीय त न ध, आयकर अपील य अ धकरण, मुंबई / DR, ITAT, Mumbai
6. गाड फाईल / Guard File आदे शानुसार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मंब ु ई / ITAT, Mumbai