TaxTMI 
TaxTMI 
2011 (6) TMI 391
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....o be the running of 'Vellore Engineering College'. The institution became a 'Deemed University' in the year 2001. Although, the income of the Trust was exempt under section 10(22), the Trust submitted in its "statement of facts" that it had been filing Income-tax returns, along with audited accounts from assessment year 1990-91, inspite of no legal obligation to file returns under section 139 as it existed at that time. 3. It is stated that the Trust was also approved under section 80G from its inception. It is further stated that, questions were raised about the eligibility of the Trust for exemption under section 10(22) on the ground that it was "running for profit" and its eligibility for renewal of approval under section 80G by the following authorities: 19-2-1994 - 2nd Income-tax Officer, Vellore 12-1-1998 - Director of Income-tax (Exemptions) 18-9-1998 - Commissioner of Income-tax During the assessments under section 143(3) for assessment year 2003-04 - ADIT (Exemptions) - 24-3-2006 2004-05 - ADIT (Exemptions) - 1-12-2006 2005-06 - ADIT (Exemptions) - 31-5-2007 4. It is finally stated that after the enquiries and ....
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....voluntary contribution towards corpus fund and prove that donations were, in fact and substance, only capitation fees collected in violation of the laws of the state. 4. The appellant has been charging very high fees from students and making various recoveries much above its costs of operation as is evident from huge surpluses in the income and expenditure account year after year. 5. Donation is a voluntary payment without quid pro quo. Statements recorded during the search clearly establish that the appellant was collecting capitation fees for offering admissions and is also refunding it in certain cases clearly showing that the amount collected was not a voluntary donation. 6. The corpus donations were admittedly received from 123 parties out of which Rs. 68,36,000 was received in cash and Rs. 58,14,000 by cheque/draft. 7. In the light of the findings as a result of search, onus rests on the appellant to prove that the persons mentioned as donors remitted to the institution on their own volition and without expectation of anything in return. 8. Corpus donations of Rs. 1,2....
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....ission procedures given by the appellant clearly show that the appellant did not have much discretion in making the admissions so that it could collect capitation fees for the admissions 18. The burden is on the appellant to show that he is eligible for exemption under section 11. The appellant has discharged its burden by establishing that it is engaged in running an engineering college, which has not been disputed in the assessment order. It is the contention of the Assessing Officer that the education imparted by the appellant through the engineering college is done as business and should not be considered as education as defined in section 2(15). However, this contention of the Assessing Officer is not supported by any evidence. I, therefore, hold that the appellant is eligible for exemption under section 11. 19. ....... Even if the corpus fund donations are not treated as genuine, they would still be income derived from property held in Trust and hence, eligible for exemption under section 11 subject to .....". 8. Aggrieved, the revenue is in appeal before us by raising following grounds: "1a. On the facts and in the circumstances of the cas....
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....Mahesh, CA, advanced arguments both on facts and law justifying the allowance of exemption under section 11 and has also filed 4 volumes of a paper book running to 766 pages, mainly containing copies of various decisions relied on by him, apart from written submissions. A separate paper book of 71 pages styled "statement of facts", enclosing copies of Trust Deed, history of past assessments, enquiries etc., has also been filed. On the issue of the institution being run as a business, charging high fees, collecting Donations (capitation fees) and earning large surpluses, the ld.AR amplified the reasons as to why, during the year relevant to assessment year 2001-02, the assessee had very little discretion in the matter of admissions and therefore, could not have collected donations as quid pro quo for admissions. He submitted that the assessee's engineering college was regulated and controlled by AICTE and DOTE during the year in all the following matters: i. The engineering courses that may be conducted; ii. Number of students that can be admitted for each course; iii. Prescribing eligibility criteria and enforcing that the criter....
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....) foreign students were admitted on being sponsored by Educational Consultants India Limited, Noida (Govt. of India Enterprise) and only 15 (3 per cent) NRI students were admitted as against the 5 per cent discretionary NRI admission available to the assessee. The ld.AR therefore submitted that as the assessee had very little discretion in the matter of admissions, the allegations of the department of profiteering and collection of capitation fees for admissions stand negated and therefore, the grant of exemption under section 11 by the ld. CIT(A) has to be sustained. Finally, he referred to a chart placed at pages No. 67 and 68 of the "statement of facts" to establish that there is absolutely no correlation whatsoever between the percentage of growth in corpus fund donations received and percentage of growth in admissions from its inception in assessment year 1985-86 to assessment year 2001-02. 13. We have considered the rival submissions and have carefully considered the material available on record, including the paper books filed by the assessee-trust. On perusing the aforesaid documents at length, we find substantial force in the submissions by the assessee. Apparently, the....
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....of education and health. One of the ways is what is popularly called as "Public private partnership" in which the State's function is outsourced to the private sector. While doing this, the Government had to take into account the fact that, while its ability to raise resources by tax and borrowings was unlimited, at least in theory, the resources of the private sector were limited. The State had faced one more difference between the motivation for investments by the State and the Private Sector; i.e., while the State can look at the aforesaid services as a mere "Cost Centre" the "Private Sector" neither can, nor be expected, to look at these functions as a cost centre. Hence, the Government devised ways by which the revenues of such private sector unaided educational institutions could be augmented so as to provide adequate revenues to recoup the investment, provide reasonable return on investment and to provide adequate surpluses to facilitate expansion and modernization. The three tier fee structure prescribed by the Government for different categories of students is a means to achieve the above objective. 14. The reason for presenting and analyzing the macro view on the subje....
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....s educational activity will not affect its eligibility for being considered as a charitable trust entitled to exemption under section 11. Similarly, the assessee's submission that it could not have obtained donations through coercion as alleged by the revenue also deserves to be accepted, as we find from the admission regulations of AICTE that there were only two defined areas of discretion in the matter of admission viz. 5 per cent of the sanctioned seats for NRIs and filling up of 'lapsed seats'. We find from the break up of admissions given that, out of the 5 per cent only 3 per cent of seats were allotted to NRIs and further that out of the total corpus fund donation of Rs. 1,26,50,000 there was no donation received from outside India. Hence, the discretion available in this regard could not have led to collection of the aforesaid donations. The letter along with list of students admitted with the date of admission of students reveal that the last student admitted was on 25-10-2000 as per the direction of the University of Madras, copy of which has also been filed. As there was no 'lapsed seat' which could be filled at the discretion of the assessee no donations could have been....
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.... under section 12AA(3) only with effect from assessment year 2004-05, as, even according to the DDI and the CIT, the alleged letters from parents relate only to 2004 and subsequent years. As regards the statements by Sri V. Sankar son of Managing Trustee and Sri R. Vijayakumar, Secretary to the Pro-Chancellor, it is submitted that these statements were obtained under duress and by coercion at the time of search and were retracted. It was submitted that Sri V. Sankar was neither a Trustee nor a Pro-Chancellor or holding any other position in the Trust during the year relevant to assessment year 2001-02 and that Sri R. Vijayakumar became an employee of Vellore Institute of Technology only on 2-8-2004. The ld.AR would therefore contend that the above retracted statements relied on by the department, which were obtained from persons who had absolutely no position in the organization of the assessee during the relevant year and who therefore could not have been privy to any information or knowledge of the assessee's affairs during the relevant year, cannot be relied upon to deny the exemption under section 11. As it has been held in Asstt. CIT v. Anoop Kumar [2005] 94 TTJ 288/147 Taxman....
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....the revenue is importing the language of section 10(22) (deleted on 1-4-1999) that the educational institution should "exist solely for education purposes and not for purposes of profit" into section 11 which has no such conditions and therefore, the generation of 'surplus' within the frame work of regulations of the competent authorities cannot be construed as a 'business' activity or 'profiteering' so as to deny exemption under section 11. b. When the CIT, highest functionary of the revenue had himself examined the very same aspect on 18-9-1998 (copy of this letter is filed in page 35 of Volume I of Paper book) and concluded in favour of the assessee, no new facts or circumstances have been brought on record for the year relating to 2001-02 a/y to change the Commissioner of Income-tax's view in 1998. c. Eleemosynary and altruism are irrelevant for claiming exemption under section 11 - relying on the commentary in the law and practice of Income-tax in Kanga and Palkhiwala and the cases cited therein (page 392). d. CBDT Circular F. No. 194/16-17-IT(AI) reproduced in 212 ITR 462 (Ker.) - "The question for consideration is whether an....
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....- 5 member bench "... Not involving any activity for profit - meaning and scope ..." "... So long as the purpose does not involve the carrying on of any activity for profit, the requirement of the definition would be - it is immaterial how the monies for achieving or implementing such purpose are found, whether by carrying on an activity for profit or not ..." CIT v. Indian Institute of Computer Technology [2000] 244 ITR 371/112 Taxman 333 (Ker.) Birla Vidhya Vihar Trust v. CIT [1982] 136 ITR 445/[1981] 7 Taxman 391 (Cal.) "... Educational Institution condition precedent - must exist solely for educational purposes and not for purposes of profit - position to be determined with reference to cumulative effect of all relevant facts ..." "... Neither the fortuitous factor of having a large surplus in any particular year nor the solitary fact of diverting some of the income to objects charitable but not educational would be decisive of the matter ..." "... a solitary instance of application of income from the schools for non-educational purposes in a prior year was not very material. The fact that the assessee trust had objects other than educational objects was al....
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.... section 11 does not impose any such condition. If the incidence of profit is not an impediment for allowing exemption under section 10(22), as decided by the above line of cases and CBDT Circular, we fail to see the revenue's claim that the surplus would militate the assessee's claim for exemption under section 11. We therefore, hold that the incidence of surplus during the course of activity of running the educational institution would not be a ground to state that the assessee is carrying on a business activity so as to forfeit exemption under section 11. II. Application of Doctrine of Legitimate expectation. - That, the assessee is entitled to consistency in assessment of income from the same activity over different years, especially when the department has failed to bring on record any facts or circumstances relating to 2001-02 a/y, when the revenue had been holding the assessee, as a charitable institution from its inception in 1984 up to 2000, as decided, in the following cases: Radhasoami Satsang v. CIT [1992] 193 ITR 321/60 Taxman 248 (SC) Berger Paints India Ltd. v. CIT [2004] 266 ITR 99/135 Taxman 586 (SC) Union of India v. Satish Panalal Shah [2001] 249 ITR ....
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....R 480/191 Taxman 238 (Kar.) "... so long as a trust has education as one of its objects which is one of enumerated heads which qualifies and comes within scope of charitable purpose as enumerated in section 2(15), it has to be accepted that trust is having a charitable purpose as its object and may qualify for claiming exemption in terms of section 11 ...." Gaur Brahmin Vidya Pracharini Sabha v. CIT [2009] 304 SOT 371 (Delhi) "... Imparting of education is a charitable purpose as defined in section 2(15), irrespective of the fact that the assessee charges fee for imparting education - there is no condition that to become a charitable purpose, education should be imparted free ..." ITO v. Kaushalya Medical Foundation [2009] 31 SOT 119 (Mum.) Asstt. CIT v. Graphic Era Educational Society [2008] 26 SOT 22 (Delhi) "... Assessee institution is duly recognized by HNB Garhwal University and strictly follows all University regulations with regard to admission, charging of fees and course curriculum and has on its governing body nominees of State Government, HNB University and AICTE functioning under Human Resource Ministry, and thus, in fact, Government managed - Therefor....
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.... by it. No doubt the assessee became a 'Deemed University' only from the following year. However, we are noticing this decision only for the purpose of reinforcing our finding that assessee was only engaged in the activity of education, which, per se, is a charitable purpose under section 2(15). 30. As regards 'Education is not business', it was submitted before us, again, in our opinion rightly so, that 'education' can never be a business and that it was so held by the Apex Court in the 5 Judges Bench in Unnikrishnan J.P. v. State of Andhra Pradesh AIR 1993 SC 2178 that "imparting education cannot be trade, business or profession .... it may perhaps fall under the category of occupation ...". The above ratio that "education is an 'occupation'" was reaffirmed in the 11 Judges Bench of the Apex Court in T.M.A. Pai Foundation v. State of Karnataka [2002] 8 SCC 481. 31. In the light of the categorical decisions of the Constitution Bench of the Apex Court aforesaid, the revenue's attempt to categorize the educational institution as a business has to be rejected and the assessment of its surplus as Business income was rightly set aside by the ld. CIT(A). As we have held, following....
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....of the revenue that income has not been 'applied' for charitable purposes. We have held above that 'education' per se is a charitable purpose. The assessee's only source of income is the surplus arising from operating the educational institution, which is 'income derived from property held for charitable purposes'. 37. In the light of the aforesaid decisions of the Apex Court, we have no hesitation in holding that as more than 75 per cent of the income from property held for charitable purposes has been applied by the assessee for the educational institution of Vellore Engineering College, its entire income (regardless of the manner in which it was derived or head under which it is computed) is exempt under section 11. 38. The ld.AR has made an alternate submission, after being careful to state that he was not admitting or conceding the contention of the revenue that, even if the activity of education carried on by the assessee is treated as 'business' as it resulted in surpluses, its income would still be exempt under section 11(4A), which has been substantially liberalized from 1-4-1992. It was submitted before us that, as per the liberalized section 11(4A) a trust carrying....
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....ness from a property held in trust by the assessee is utilized towards the attainment of the objectives - held that it is irrelevant if the business is run on a commercial expediency with a profit motive..." "... We are of the view that when a business income is used towards the achievement of the object of the trust it would amount to incidental to the achievement of the object of the trust notwithstanding the profit and gain involved therein..." CIT v. Janakiammal Ayyandar Trust [2005] 277 ITR 274 (Mad.) "... Charitable purposes - charitable trust - exemption - businesses - effect of sub-section (4A) of section 11 - income of business applied for purposes of trust - income entitled to exemption - Income-tax Act, 1961 section 11(4A) ..." "...Effect of Supreme Court decision in Asstt. CIT v. Thanthi Trust [2001] 247 ITR 785 ..." "... Supreme Court observed the scope of sub-section (4A) of section 11 of the Income-tax, as amended in 1992, is more beneficial to a trust or institution than the scope of the sub-section before the amendment. As it stands amended in 1992, all that is required for the business income of a trust or institution to be exempt from tax is that t....
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....y of Rangaraya Medical College v. ITO [1979] 117 ITR 284 (AP) "... Merely because certain surplus arose from society's operations, it cannot be held that the institution was run for purpose of profit so long as no person or individual was entitled to any portion of the profit and the said profit was utilized for the purpose and for the promotion of the objects of the institution ..." CIT v. Kshatriya Girl Schools Managing Board [2000] 245 ITR 170/[1998] 101 Taxman 555 (Mad.) Shanthi Devi Progressive Education Society v. Asstt. DIT [1999] 68 ITD 1 (Delhi) (TM) "... Assessment year 1993-94 - Assessee society, running two schools, was granted exemption under section 10(22) till assessment year 1992-93 - exemption was denied for assessment year 1993-94 on ground that it was collecting admission fee, donation and loans and thus had been a society for profit and not solely for educational purpose - whether since assessee had been doing these activities right from beginning and same was within powers given in memorandum, there was no reason to object to such collections - Held, yes - since revenue could not point out any case where any part of profit/income was diverted for pu....
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.... "...Fact that the assessee is earning surplus consistently in each year is not proof per se of a profit motive - memorandum of association of assessee prohibits distribution of profits to its members by way of dividends - that could not be permitted to be changed in absence of any strong factual or legal grounds ..." "If the profits or income of trade or business is devoted towards charitable purpose and no part thereof is distributed among the members as dividends or bonus, then that trade or business is a means to an end. It is charity" "The essential test of a charitable purpose is the destination of profits" if the profits continue to feed the charity, the mere occurrence of profits would not detract from the charitable nature of the enterprise" CBDT circular No. 642 dated 15-12-2002 also reinforces the assessee's submission in the following words: "..... it is clarified .... with effect from 1st April 1992, profits and gains of business in the case of a trust or institution will not be liable to tax if the business is incidental to the attainment of the objectives of the trust or institution." 40. In the light of the aforesaid circular conceding the position ....
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....y of his appointment order filed. He was transferred to be Secretary to the Pro-Chancellor only on 9-6-2006, as per copy of office order filed. It is claimed that the statements from the aforesaid 2 persons were obtained under duress and by coercion and have been retracted. Be that as it may, the fact remains that neither Sri V. Sankar nor Sri R. Vijayakumar were either employed or occupying any official position in the Trust during the year relevant to assessment year 2001-02 and therefore, their statements have no evidentiary value for assessment year 2001-02 and are therefore, disregarded. 44. The assessee further claimed in its written submission that neither before nor after the Tamil Nadu Educational Institutions (Prohibition of collection of capitation fee) Act, 1992 and till the date of hearing, the assessee has ever been complained against or issued any notice for violation of the said Act. In the absence of any such accusation either in the assessment order or rebuttal by the ld.DR, we are inclined to accept the statement, especially since the assessee's reputation of an institution of renown is well known and accepted in many parts of the country. Assessee's submissio....
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....nbsp; (Pune) 706 Governing Body of Rangaraya Medical College case (supra) Ramarao Adik Education Society v. CIT [IT Appeal No. 5742 (Mum.) of 2007, dated 11-2-2008] Padanilam Welfare Trust v. Dy. CIT [I.T. Appeal No. 444 (Mad.) of 2010, dated 24-12-2010]. 47. The alternate submission of the ld. AR, again wearing the hat of caution by stating that without admitting or conceding that, even if the corpus donations received are in deed capitation fees, as more than 75 per cent of that amount has also been applied for charitable purposes, the said donations would still be exempt under section 11 (1)(a). As we have already held that the corpus fund donations received cannot be treated as capitation fees and as the factual matrix of the details are not available, we refrain from expressing our decision on this issue. The ld. AR then advanced an interesting argument on the interpretation of 'voluntary' by relying on the decision in CIT v. Bengal Mills and Steamers Presbyterian Association [1983] 140 ITR 586/[1981] 7 Taxman 78 (Cal.) that, in the absence of a legal right to collect donations by the assessee and an enforceable obligation to pay the donations against the donor, al....
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....d by the Income-tax Act. We will therefore, have to adopt the plain English meaning of these words some of which are: Contribution Law Definition 1. The right of a debtor who has paid the entirety of a debt owed by her and others to recover the others Â' proportionate share of the debt. 2. The right of a joint tortfeasor who has paid more than her proportionate share of a judgment to recover the amount in excess of her share from the other tortfeasors. 3. The right of a joint tortfeasor to demand that the other tortfeasors supply their proportionate share of what is required to compensate the injured party. 4. A payment made by a co-debtor or joint tortfeasor of her proportionate share of what is due. See also indemnity. Webster's New World Law Dictionary Copyright circle 2010 by Wiley Publishing, Inc., Hoboken, New Jersey. Used by arrangement with John Wiley & Sons, Inc Donation, contracts. The act by which the owner of a thing, voluntarily transfers the title and possession of the same, from himself to another person, without any consideration; a gift.(q.v.) A donation is nev....
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....from one's own free will. Voluntary implies the operation of unforced choice: "Ignorance, when it is voluntary, is criminal" (Samuel Johnson). Intentional applies to something undertaken to further a plan or realize an aim: "I will abstain from all intentional wrongdoing and harm" (Hippocratic Oath). Deliberate stresses premeditation and full awareness of the character and consequences of one's acts: taking deliberate and decisive action. Wilful implies deliberate, headstrong persistence in a self-determined course of action: a wilful waste of time. Willing suggests ready or cheerful acquiescence in the proposals or requirements of another: "The first requisite of a good citizen ... is that he shall be able and willing to pull his weight" (Theodore Roosevelt). The American Heritage(r) Dictionary of the English Language, Fourth Edition copyright (c)2000 by Houghton Mifflin Company. Updated in 2009. Published by Houghton Mifflin Company. All rights reserved. 52. When we read sections 2(24)(iia), 11(1)(d) and 12(1) using the phrase "'voluntary' contribution" in the light of the plain English meanings of the aforesaid terms, the wisdom of the legislature in qualifying th....
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....come in or that enough had already been secured. The essence therefore, of a windfall or voluntary contribution as opposed to income is that it is unexpected. The characteristic of income is that it is a periodical monetary return coming in with regularity or at least expected regularity. So, voluntary contributions per se are not dealt with by section 12(1) of the Act. They need not be, in order to stand outside the field of taxation, because, they are windfalls and hence the very antithesis of income and, therefore, there is no need to exempt them or to exclude them from the total income. They stay out on account of their innate character as non-income. What section 12(1) meant before its amendment in 1972 was that while voluntary contributions are non-income, even what is undoubtedly income of charities, is not to be charged to tax, if the source of such income is traceable to voluntary contributions. To put it differently, Parliament was extremely charitable to charities. That was the liberality of section 12(1) of the Act, as it stood prior to 1-4-1973, that voluntary contributions are non-income and even income derived from such contributions are exempt from tax in certain ci....
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....or charitable purposes and was actually expended for charitable purposes. It was held that "... the surcharge was not a part of the price for admission but was a payment made for the specific purpose of being applied to local charities. ... the only requisites which must be satisfied are that there should be "purposes independent of the donee to which the subject matter of the gift is required to be applied and an obligation on the donee to satisfy those purposes" 58. Applying the ratio of this decision, it was submitted that even assuming, without admitting that the corpus donations were received at the time of admission, the fact that it was received with a specific written direction from the donor that the donation was towards the corpus fund of the trust followed up by the factum of actual application of the donation for the capital purposes of the trust would, by virtue of the ratio of the said judgment would take the corpus donations received outside the ambit of income being a capital receipt. As this attractive argument is fortified by the aforesaid decision of the Apex Court, we accept the same and hold that, even on this score, the corpus donation received cannot....
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....Officer has exceeded his jurisdiction in saying that the assessee is not entitled to exemption under section 11. He can say so, only when the income is not applied for the stated purpose, but not otherwise ..." ITO v. Trilok Tirath Vidyavati Chuttani Charitable Trust [2004] 90 ITD 569 (Chd.) "...When once the character of the institution being charitable is accepted by the Commissioner at the time of granting registration, the Assessing Officer cannot question the charitable character of the institution at the time of completing the assessment and the assessee cannot be denied exemption in respect of income on the ground that it is not a charitable institution ..." Calicut Islamic Cultural Society v. Asstt. CIT [2009] 28 SOT 148 (Coch.) "... Once the registration is granted to the assessee by the Commissioner of Income-tax, Assessing Officer cannot go into probing the objects and the purposes of the trust or institution and that is within the exclusive domain and jurisdiction of the Commissioner of Income-tax. What Assessing Officer can do that he can at the most investigate the matter within the four corners of section 13. In this case the Assessing Officer has gone wi....
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....n on levy of tax at maximum margin rate, levy of surcharge and levy of interest under sections 234A and 234B become academic and therefore, infructuous. 65. As regards the issue on the validity of reassessment is concerned, we find that although the return was filed under section 139(4) on 21-11-2002 claiming refund of TDS of Rs. 10150, no assessment order was passed nor an intimation issued under section 143(1). Although the assessment order claims that the return was processed under section 143(1) by the ADIT - III (Exemptions) in para 10.1, page 5 of the order, the date of 'processing' is not specified in the order. Thus, assessee's claim that the original return filed on 21-11-2002 was not acted upon, especially as the refund of Rs. 10150 claimed was not issued, appears to be acceptable. The ld.AR has relied upon the following cases to contend that when the return filed under section 139 is not acted upon under either section 143(1) or section 143(3), the Assessing Officer is precluded from resorting to reassessment proceedings under section 147. Trustees of H.E.H., the Nizam Supplemental Family Trust v. CIT [2000] 242 ITR 381/109 Taxman 193 (SC) State of Assam v. Deva....