TaxTMI 
TaxTMI 
2020 (6) TMI 525
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....t receipt and lease receipt of commercial land are not charitable in nature. 2. That on the facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeals) has erred in law and facts in deleting the addition amounting to Rs. 4,93,67,440 ignoring the fact that the expenses of the assessee like light and sound show security service charges, upgradation of Sh. Krishna Museum, expenditure on celebration of Geeta Jayanti, land compensation, etc., are not charitable in nature. 3. That on the facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeals) has erred in law and facts in deleting the addition amounting to Rs. 4,93,67,440 ignoring the fact that the activities of the assessee do not get covered under section 2(15) of the Income-tax Act, 1961. 4. That the appellant craves to leave, add or amend any grounds of appeal on or before the appeal is heard or disposed of." 2. The learned Commissioner of Income-tax-Departmental representative relying on the assessment order has argued that the Assessing Officer having considered the assessee's stated aim being to undertake overall development of ....
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....n the very same set of facts and circumstances has allowed relief. Accordingly, it was his submission that the view taken by the Commissioner of Income-tax (Appeals) cannot in the circumstances be said to be disputed by the Assessing Officer. In the clarification fixed, it was submitted that this fact has been taken note of by the Commissioner of Income-tax (Appeals) himself while granting relief and this fact has not been assailed by the Revenue. 6. We have heard the rival submissions and perused the material available on record. Before addressing the respective arguments, it is necessary for the sake of completeness to extract the relevant findings of the Assessing Officer on which heavy reliance is being placed by the learned Commissioner of Income-tax-Departmental representative : "2. The assessee-board is a society registered with the Registrar of Societies. Registration under section 12A has been granted to the assessee by the Commissioner of Income-tax-Rohtak on July 17, 1978. The official members of the board are the Governor of Haryana as Chairman, C. M. Haryana and Vice-Chairman, Urban Development Minister, Haryana and 25 others as members. 3. The mai....
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.... The grants in aid have been received from the Government of Haryana for the purpose of implementation of various schemes. There has been receipt of corpus fund of Yog Ashram of Rs. 5,72,006. The expenditure of the amounts have been shown towards 'light and sound show security service charges', upgradation of Sri Krishna Museum, expenditure on celebration of Gita Jayanti, land compensation, etc. 6. The activities narrated above do not percolate to any activity having in basic limbs of section 2(15) of the Income-tax Act, i. e., education, medical relief and relief to the poor. The activity can best be described in residuary limb, i. e., 'advancement of any other activity of general utility'. The activities narrated above if considered in the residuary limbs are restricted by the first proviso where if the gross receipts exceed Rs. 25 lakhs the benefit of section 2(15) are not avail able. In the case of the assessee the total receipts are Rs. 34,38,22,104 and as such the activities cannot be claimed as exempt under the limb of 'advancement of general public utility'. 7. As the decision of Jammu Development Authority by the apex court has set....
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....ociety has been as per the provisions of section 11(5) of the Income-tax Act. The light and sound show for which expansion of funds have taken place is as per the tenets laid down in the objects of the society, viz., to provide utmost facilities to pilgrims/tourists coming to Kurukshetra. This fact has been accepted by the Assessing Officer in his order for the assessment year 2016-17 dated December 30, 2018 where the charitable nature of the institution has been accepted. The case of Jammu Development Authority v. CIT relied upon by the Assessing Officer is not relatable to this case as the facts are totally different in both the cases. In that case, the registration under section 12AA of the Income-tax Act was cancelled on the grounds that the assessee was carrying out activities against the spirit of section 2(15) of the Act. In the appellant's case, there has been no issue with the registration under section 12AA of the Act and it is seen that there are no flouting of the provisions of section 2(15) of the Income-tax Act. In view of the facts as stated above, I am the opinion that the denial of exemption under section 11 of the Income-tax Act was not justi....
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....d as in the facts of the said case, there were consistent findings of the courts and tribunal that there was no element of charity in the activities of the Jammu Development authority. This finding of fact was further supported by the primary and material fact available on its record, namely, that the registration under section 12AA of the said authority as noticed by the hon'ble Jammu and Kashmir High Court also had stood cancelled. 9.1 In the facts of the present case, registration under section 12A stands and no material has been referred to before us even to suggest that there were any proceedings pending its cancellation. Thus, the submission that the special leave petition filed by the said authority had been dismissed by the apex court, we hold has no material bearing whatsoever on the facts of the present case. In the facts of the present case, for the Revenue to rely on the said decision, it must be established that the present assessee on facts can be said to be engaged in the activities akin to a "real estate builder" with no element of charity. There are no facts referred to for such a conclusion. Further, at least some fact or evidence necessarily should b....
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....blishing identical facts has been brought on record by the Assessing Officer and even in the present appeal, no fact or instance supporting the claim of near similarity of facts with either Jammu Development Board, etc., or HUDA, PUDA, etc., has been brought to our notice by the Revenue. On the contrary, we find that there was no similarity of activity with M/s. Jammu Development Authority, namely, developmental activities like that of a real estate builder, etc. Thus, the reliance placed thereon by the Revenue has to be discarded. 11. Addressing the next specific grievance addressed by way of ground No. 2 in the present appeal that the expenses incurred for light and sound show, upgrading of Kishna Museum, etc. has been considered to be a commercial activity by the Assessing Officer. It is necessary to set out the specific finding of the Commissioner of Income-tax (Appeals) challenged by the Revenue. The Commissioner of Income-tax (Appeals) has held "The light and sound show for which expansion of funds have taken place is as per the tenets laid down in the objects of the society, viz., to provide utmost facilities to pilgrims/tourists coming to Kurukshetra. This fact has been ....
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....aritable activities. Thus, it is seen that the argument that it was a commercial activity stands demolished by the facts as the assessee-society is mainly dependent on Government for its activities and there is a very meagre amount of collection on account of donations, etc. In view of these specific facts, we had required the Revenue to show where is the alleged commercial activity. The learned Commissioner of Income-tax-Depart mental representative in the absence of any such evidence on record or material referred to by the Assessing Officer relied upon the assessment order. We further notice that the assessee in its submissions extracted at pages 5 and 6 of the impugned order before the Commissioner of Income- tax (Appeals) has stated that the assessee-society is exhibiting the philosophy of Gita given by Lord Krishna through a light and sound show at the birth place of Gita at "Jyotisar". Apart from these facts, it is seen that the following supplemental submissions have been extracted by the Commissioner of Income-tax (Appeals) which are reproduced hereunder from the impugned order for the sake of completeness : "Additional submissions on July 12, 2018. In co....
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....ve, your honour is requested to pass an appropriate order granting relief to my client." 12. On a consideration of the above facts in terms of the ground raised, we find that the issue which falls for our consideration is whether the expenses incurred and the receipts received by the assessee specifically from the light and sound show and maintenance of museum, etc., can be said to arise from the activities of the assessee which can be said to be covered under section 2(15) of the Income-tax Act. For the purposes of determining the claims and the counter-claims of the parties in the present proceedings, it is necessary to first extract the relevant provision : "2.15 'charitable purpose' includes relief of the poor, education (yoga) 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 of general public utility : Provided that the advancement of any other object of general public utility shall not be a charitable purpose, if it involves the carrying on of any activity in the nature of trade, comm....
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....m Sarovar every year ; (iv) to maintain and operate Krishna Museum at Kurukshetra. When these facts are taken into consideration with the finding arrived at in the impugned order, it is seen that the Commissioner of Income-tax has come to the conclusion that there is no commercial element involved. The said conclusion, we find cannot be faulted with as no event or activity has been referred to either by the Assessing Officer or by the learned Commissioner of Income-tax- Departmental representative to show that it can be said to be motivated by any profit motive. He has also concluded that there is no comparison with bodies like HUDA, PUDA, etc., which finding also we find ourselves in agreement for the reasons brought out hereinabove and to be elaborated hereinafter. 14. In order to address the expenditure accepted by the Commissioner of Income-tax (Appeals) and upheld by us in the facts of an assessee maintaining a Krishna Museum and having a light and sound show exhibiting the philosophy of Gita at its birth place "Jyoti Sar" it needs to be addressed what Kurukshetra stands for. There may be multiple narratives on the belief whether any actual war called the Mahabharat was fou....
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....are some relics, temples, trees, water bodies keeping the messages and the life events and the philosophy around these events alive which in fact is the vanishing cultural heritage of the civilisation cannot be shied away. It is not the purpose of the present proceedings to debate whether there was a movement to the Indus valley civilisation or movement away from the Indus Valley civilisation, the preserving of the cultural heritage, however, cannot be ignored. The fact that the mythical river Saraswati having its temple supposedly at the ancient site of Pehowa again is a belief which is central to the core cultural heritage. Efforts to preserve it come within the 48 kilometres radius. Its importance cannot be overemphasised as apart from a religious spot like other religious sites it has been maintaining a genealogical records of the families visiting this place over a period of times of birth, death, etc. These are some of the written records which may still be available with some families at Pehowa which again is a cultural heritage. The importance of their preservation and maintenance cannot be allowed to be toyed with. 15. At this stage, it would be apposite to refer to cer....
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....Policy. The fact that the Constitution of India is the supreme law of the land and that all provisions of all Acts, Rules and Regulations are presumed to be in conformity with it is not open to debate. The fact that the area of Kurukshetra owes its importance to the philosophy of the Bhagwad Gita encapsulating the teachings and message of the Ved, the Upnishads and the Purans contextually summarised by Sri Krishna at this place is well known and accepted. The temples, monuments, trees, stone, the space, etc., in memory and recognition of and the building of the mythology, the legends, the folklore, the festivals, the songs, bhajans, the music, the dance forms etc. around this event are the cultural heritage of this nation centered in this place constitute and form the vanishing tangible and intangible cultural heritage cannot be denied. The fact that there are doubters and nay sayers on the very existence and relevance of the discourse does not detract from the fact that there is a whole body of cultural, heritage, philosophy and ideas resonated and birthed from this place. Sri Krishna a god to some of us is also a supreme yogi, a philosopher and definitely an enlightened mind to a....
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....al heritage of national importance cannot be over emphasised. Its absence becomes more noticeable where unlike other civilisations which celebrated victory by building monuments, gates, mausoleum, arches etc. this civilisation did not build any monuments in personal honour. The so called highest achievers as role models of this civilisation be they kings, philosophers or thinkers consciously avoided perpetuating either their name or lineage as culturally they have always aspired to attain control over ones own mind, body, thought and soul and negate the ego and the name itself. The fact that external civilisations engaged with part of the population engaged in business and administration was ignorant of the passion of the highest achievers who were engaged in their solitary journeys to negate the ego by yog, medication and dhyan were not noticed by the rapacious and the greedy, the history with a lack of victorious symbols of achievement despite the evidence of well planned ancient sites discovered by archeologists is evident of this fact. These cultural aspirations admittedly do not have many physical symbols around which the philosophies, the culture and the ideas and heritage re....
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....nce enshrined in the cultural heritage of the country has to be understood in the context where the people were exhorted to and were also capable of understanding that it was possible and they were capable in this life itself of rising above the material excesses and gains and achieve the godly qualities of grace, forgiveness, magnanimity and desire societal welfare avoiding violence. The philosophy of tolerance, live and let live ; giving back to the society, avoid violence till the ninth degree of tolerance so as to live not in the body but in the spirit beyond the mind. It is not the purpose of the present order to delve deeply in this esoteric and metaphysical topic or deliberate upon the possible ways of holographic visualisation of self-mind and ego within one's own consciousness, the purpose is only to highlight that the cultural heritage of the civilisation needs a protection and recognition keeping in mind the aforesaid constitutional provisions and the need for preserving the tangible and intangible cultural heritage revolving around this area which the society aims to preserve and maintain. It may also be mentioned that the need, importance and necessity to maintain,....
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....ble and immovable cultural heritage. As noticed, cultural policies as a part of development stands recognised even under International Conventions. Considering the constitutional mandate enshrined in the Directive Principles of State Policy and the fundamental duties for the citizens under the umbrella of which the cultural heritage is sought to be preserved. Disseminating information and educating through the light and sound show to the curious and the interested person irrespective of religion, caste, culture, creed, colour, gender, nationality cannot be irresponsibly termed as a mere commercial activity without an iota of evidence. The need for preserving and maintaining cultural pride cannot be overemphasised as observed earlier also especially where the presentation of this civilisation has been only through the prism of constant and the mischievous criticism bringing on the table for discussion only the caste atrocities, sati or child marriages which no doubt have been the malaise of the civilisation and these events necessarily call for us to hang our heads in shame but also need to be considered in the backdrop of what was then happening in the rest of the world. Events mus....
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....f context ignoring the history of the rise and fall of the civilisation in the context of the global trends continuously belittles the achievements of the Indian diaspora who have demonstrated their mettle in different fields the developed nations. The abiding resonance and power of this philosophy has been oft referred to not only by the Great Indian minds like Mahatama Gandhi, father of the nation but also other equally well respected Indian minds like Adi Shank racharya, Swami Vivekanand, Rabindra Nath Tagore amongst others. The enlightened international diaspora equally well acknowledges the relevance and magnificence of this philosophy. Whereas whether Albert Einstien acknowledged this magnificent text of achieving excellence in human spirit, on this the jury may be well divided but other equally famous and well recognised scientists, historians, philosophers, artists, thinkers have acknowledged its magnificent is not in dispute. Reference may be made to J. Robert Oppenheimer, Henry David Thoreau, T. S. Eliot, Sunita Williams, Philip Glass, Annie Besant, Ralph Waldo Emerson, Herman Hesse, Carl Jung, Alduos Alldous Huxley, Rudolph Steiner, etc., etc., and the list can go on. Th....
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....und show or by maintaining a museum cannot by any stretch of imagination by considered to be a commercial venture. The fact that this is a holy place for a Hindu pilgrim open to the world at large cannot be so construed so as to be understood purely in the religious context shorn of the tangible and the intangible cultural context in which it exists. 18. To our understanding, no texts be cited to highlight the universal educational relevance of museums as contributors to the education of the young and the old, the student or the teacher, the trader or the artist. The museum inform the diaspora who cares to visit it not only about the times, the values, the life styles and the culture of the specific times but also gives a perspective of the contemporary relevance ; status and standing of the other cultures of those times. Mere charging of fees from visitor or receipt of State funds for their upkeep, etc., does not transform the character of a museum to be a commercial venture. The museums in fact are akin if not bigger and larger temples of learning, than the best of universities and colleges. The reach of the colleges and the universities is limited to imparting knowledge only ....