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8490/M/10 & 1880/M/12 Prabodhan Prakashan vs. ITO(E) The respective cases

2.1 The assessee, registered as a public charitable trust under the Bombay Public Trust Act, 1950 since some time in 1988, is carrying on its activities since January, 1989. It is also registered with the Director of the Income Tax (Exemptions) u/s.12A of the Act. The activity being carried out by the Trust is the publishing of a Daily by the name 'Dainik Saamana'. Over time though, other than this publication, a daily by the name 'Dopahar ka Saamana' and weekly 'Marmik', were also added. The assessee claims that its publishing activity is in national interest and, therefore, must be considered as toward a charitable object inasmuch as the entire activity of publication is an activity intended for the objects of the trust (listed as under) which are charitable in nature:

"40. For the above reasons, we hold that the object of running Dainik Saamana was a charitable purpose. The Department has not brought out any objection to any other objects of the trust, though they have been referred to and, therefore, we hold that the objects of the trust, as a whole, were for charitable purpose within the meaning of s.2(15) of the Act."

In order to decide the issue, we refer to para 41 of the Tribunal's order, which has laid down the test for determining the application of income for charitable purpose as under:

8490/M/10 & 1880/M/12 Prabodhan Prakashan vs. ITO(E) '9. We have heard both the sides and considered the facts and materials on record including the case laws relied upon by the parties. May be it is true that the Tribunal in its earlier order cited supra has given a finding that the running of newpaper Dainik Samna was for charitable purpose within the meaning of section 2(15) as it stood from 01.04.1984. However, in view of the latest decision of the Honorable Supreme Court reported in 247 ITR 785 (SC), what is to be seen is, whether the income of the newspaper has been utilized for the purpose of the trust, even though, the objects may be charitable and this aspect of the matter, as rightly been contended by the learned Departmental Representative, were not put to test either by the assessing officer or by the Commissioner of Income Tax (appeals). In view of this, we are inclined to restore the matter back to the file of the assessing officer with a direction to record a finding as to whether the income from the newspaper has been utilized for the objects of the trust during the relevant assessment years and if so to follow the decision of Honorable Supreme Court (cited supra) if the income is so utilized and otherwise to decide according to law. Thus, these appeals of the assessee are allowed for statistical purpose only.' [emphasizing by underlying, ours] 3.3 Each of the foregoing orders by the tribunal; this being the second round before it for some years, with the said orders also bearing cross reference to each other, have been carefully perused by us. This is, in fact, incumbent as these orders have attained finality inasmuch as they have not been challenged, or successfully so, by either party. Reading the same in conjunction, being also required to be read in harmony, we observe no inconsistency; rather, a consistency and conformity in all the four orders by the tribunal, referred to above, which have come to our notice. In other words, the findings are clear and binding. In fact, the same would apply even for the years before us not covered thereby, i.e., A.Ys. 2007-08 and 2008-09, unless of course the assessee is able to show as to how the same are not applicable for those years. In fact, no material has been brought on record to disturb and/or controvert the findings by the authorities below for all the years, which are also consistent with each other, pursuant to the orders by the tribunal.

Conclusion

6. Given the orders by the tribunal in the assessee's own case for some of the years under appeal, which have become final, as well as reliance thereon for other years, all that the assessee was required to exhibit in the set aside (or otherwise) assessment proceedings was of the publication business as being incidental to the attainment of its other objects, i.e., as a fact, toward satisfaction of the requirement of the law u/ss. 11(4) and 11(4A), for the said business to be considered as property held under trust. That the said business does not by itself constitute a charitable object or purpose is no longer res integra in view of the findings by the tribunal in its own case as well as the law as explained in Ideal Publications Trust (supra). The same, in fact, is the admitted position;