TaxTMI 
TaxTMI 
2024 (7) TMI 1380
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....sessing Officer ["AO"] was erroneous and prejudicial to the interest of the Revenue and framed without making proper enquiries/ verification and application of mind? B. Whether the ITAT was correct in coming to the conclusion that the assessee was undertaking educational activities in terms of Section 2 (15) of the Act?" 2. For the purposes of evaluating the rival submissions which were addressed, we deem it appropriate to notice the following essential facts. The respondent/assessee is a society registered under the Societies Registration Act, 1860 and also holds a registration under Section 12A of the Income Tax Act, 1961 [Act]. It was also accorded recognition under Section 80G (5) of the Act in terms of an order dated 07 March 2008. 3. In Assessment Year [AY] 2014-15, the assessee filed its Return of Income declaring its taxable income to be 'Nil'. The aforesaid Return is stated to have been selected for scrutiny assessment, as a consequence of which a notice came to be issued on 31 August 2015 under Section 143 (2). During the assessment proceedings, the assessee appears to have been called upon to furnish explanations with respect to the broad nature of activit....
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....ents of formal schooling being absent, and its activities, even if construed to be of a GPU, being liable to be viewed as contravening the Proviso to Section 2 (15). It additionally held that the various activities undertaken by the assessee were also concerned with the enhancement of brand value and thus were violative of Section 13 (1) (c) of the Act. 7. Pursuant to the aforesaid, a fresh assessment order came to be framed on 19 December 2019. In terms of this order the AO came to the following principal conclusions: "11. In view of the discussion made above, the following findings are arrived at:- a. The A.O during the assessment proceedings is duty bound to look into the manner of actual conduct of activities towards objects of the trust, as to whether these are actually done as charitable activity or as commercial activity. b. The assessee is actually undertaking commercial contracts of providing consultancy on the projects of its clients. c. The client of the assessee debits amount paid to the assessee as business expenses and claims 100% deduction. In case of donation/grant 100% deductions not allowed. d. The assessee itself bo....
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.... n. Even if the activity of the assessee is considered as charitable under the limb of General Public Utility, it is hit by proviso to section 2 (15) of the Act. Hence it is concluded that:- a. The activities of the assessee do not fall under any limb of charitable purposes as defined under section 2 (15) of the Income Tax Act, 1961. b. The activities of the assessee are commercial services purely in the nature of trade and commerce. c. The case of the assessee is also hit by proviso to section 2 (15), even in case, the activities were taken to be in the nature general public utility. d. The assessee is providing benefit to specified persons, u/s 13(3) of the Act hence it is not eligible for exemption u/s11 and 12 of the Act. Since the assessee is not held eligible for exemption u/s 11 & 12 of the Act, in view of the discussion made above the Income of the assessee is held taxable, treating it as an AOP and also at Maximum Marginal Rate because of infringement of section 13(1) of the income tax Act. Total income as per computation of Income Rs. 4,53,41, 153/- Less: Application of Income Rs. 4, 14,01,899/- Total ....
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....CONSTRUCTION WORKER WELFARE BOARD 348170 38686 3 TATA CONSULTANCY SERVICES LIMITED 195003 19500 4 WORLD VISION INDIA 815130 16302 5 ATC TOWER COMPANY OF INDIA PVT. LTD. 1039075 20782 6 APNE AAP WOMEN WORLD WIDE (TRUST) 46765 4677 7 EFICOR 14000 1400 8 HOPE FOUNDATION 96098 1922 9 NIIT INITIATIVE FOR LEARNING 10697 1071 10 NIIT YUVA JYOTI LIMITED 5947278 190360 11 NIIT LIMITED 444876 44487 12 SAHYOG FOUNDATION 25667 2567 13 VIDYA INTEGRATED DEVELOPMENT FOR YOUTHAND ADULTS 60000 1200 14 ZILA PANCHAYAT 64000 1280 15 JBLIANT BHARTIA FOUNDATION 10000 1000 16 GRAM NIYOJAN KENDRA 73034 1460 17 AIRPORTS AUTHORITY OF INDIA 1058596 21772 18 AEGIS LIMITED 61500 6150 19 CIPLA FOUNDATIONS 991160 99440 20 TATA HOUSING DEVELOPMENT COMPANY LIMITED 263260 5266 21 THE TATA POWER COMPANY LIMITED 4248962.26 388941 22 TATA CONSULTANCY SERVICES LIMITED 719202 31000 xxxx xxxx xxxx 5. A perusal of the records of the case it is seen that the exact....
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.... preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received. The word "education" has not been used in that wide and extended sense, according to which every acquisition of further knowledge constitutes education. According to this wide and extended sense, travelling is education, because as a result of travelling you acquire fresh knowledge. Likewise, if you read newspapers and magazines, see pictures, visit art galleries, museums and zoos, you thereby add to your knowledge. Again, when you grow up and have dealings with other people, some of whom are not straight, you learn by experience and thus add to your knowledge of the ways of the world. If you are not careful, your wallet is liable to be stolen or you are liable to be cheated by some unscrupulous person. The thief who removes your wallet and the swindler who cheats you teach you a lesson and in the process make you wiser though poorer. If you visit a night club, you get acquainted with and add to your knowledge about some of the not much revealed realities and mysteries of life. All this in a way is education in the great school of life. But that is not the sen....
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....lub, you get acquainted with and add to your knowledge about some of the not much revealed realities and mysteries of life. All this in a way is education in the great school of life. But that is not the sense in which the word "education" is used in clause (15) of Section 2. What education connotes in that clause is the process of training and developing the knowledge, skill, mind and character of students by formal schooling." Thus, education i.e. imparting formal scholastic learning, is what the IT Act provides for under the head of "charitable" purposes, under Section 2 (15)." 13. Refuting the aforenoted contentions, Mr. Vohra, learned senior counsel appearing for the respondent/assessee, submitted that the AO upon due examination of the activities undertaken by the assessee, had come to the definitive conclusion that the same fell within the scope of Section 2 (15). It was submitted that during Financial Year [FY] 2013-14, the assessee had conducted various training programs for underprivileged youth spread across various streams such as Information Technology [IT], English, Soft skills, BPO, Retail, Banking and Service sectors. It was submitted that the training i....
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....cademics and professionals engaged in IT and related fields to share experiences and to strengthen institution- industry linkages; 3. To cooperate with, and seek cooperation from Universities, Research Institutions and industry in Delhi for strengthening and modernizing the curricula, teaching methods and student assessment procedures in IT education and training. To play a catalytic role in promoting, popularizing and expanding IT education and training at all levels of education in the country and to commission studies and research on the status of IT education and training in the country from time to time and to identify new initiatives required to be taken;" 17. Of equal significance are the particulars which have been set out and appear at Volume II, page no. 323 of our record and which carry details of the application of income that accrued to the assessee, and which was used solely for the purposes of imparting education. Mr. Vohra also underlined the fact that various courses which were conducted by the assessee were duly certified by the National Skill Development Council [NSDC], among other globally recognized institutions. 18. Our attention was specificall....
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....udents is taken on a regular basis and a proper track record of the same is maintained by NF. In case, the students do not have the required attendance, they are not provided completion certificates for the course and in order to avail certificate of completion of training, students have to attend the course afresh. 3 Examination in respect of the courses provided [Reply to Query No. 4(d)]: 3.1 After the completion of a specified course, a proper assessment of the students is taken. Examination is conducted and the performance of each student is evaluated. The successful students are issued certificates mentioning the grade scored by the students in the examination which is calculated on the basis of marks scored by the said students in the examination conducted by the assessee. The said certificates also contains the logo of the organization from where the course is approved. The Sample certificates are attached at 'Annexure C'. 4 Recognitions provided to the courses provided by the Assessee [Reply to Query No. 4(e)]: 4.1 The students who enroll with the centres operated by NF are given education as per educational courses duly developed....
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....said approved Educational I vocational Courses in Government Schools, Community Schools and Schools/Centres operated by various other NGOs. Please see the sample approval letters received from various government schools in this regard at 'Annexure G'. All the activities stated above which are carried by NF in its own center is also being carried at these Government schools, Community Schools and Schools/Centres operated by various other NGOs. NF even trains the teachers and faculties of such schools to enable these institutions to conduct these educational courses on their own. 4.6 Other ways of NF to provide the students education is through various digital literacy initiatives like Hole-in-the-wall education project. The said project is to educate children of age group 6 to 12 years belonging to slum and backward areas of the country, who do not have access to the computers and its applications. In this project, Computer learning stations are installed at various locations like schools, slum, etc. where children can use these computer learning stations and improve their understating of subjects like Science, IT, English, GK and Mathematics. 4.7 ....
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....ll-considered decision. Thanking You Yours faithfully, For NIIT Foundation (formerly known as NIIT Education Society) xxxx xxxx xxxx To, December 19th, 2019 Income Tax Officer, Ward Exemptions 2(4), 24th Floor, Room No. 2409, E-2 Block, Civic Centre, New Delhi-110002. Dear Sir, Re.: M/s. NIIT Foundation ("We or Assessee or NF") (formerly known as NIIT Education Society) Assessment Year: 2014-15 Reply to notice u/s. 142(1) of the Income Tax Act, 1961 ("the Act") issued pursuant to order passed u/s. 263 of the Act. We are in receipt of notices issued under section 142(1) of the Income Tax Act, 1961 ("the Act") dated October14, 2019 and November 21, 2019 for assessment year 2014-15 in respect of the proceedings pursuant to the order dated 26.03.2019 passed by the Commissioner of Income Tax (Exemptions) ("the CIT (E)") u/s. 263 of the Act. In response to the said notice, we have filed the part replies vide letters dated 23th November 2019 and 13th December 2019. In continuation to the earlier replies filed by us, we humbly submit as under: ....
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....e copy of said registration at Page 26 of PB. 1.6 NF's Activities: 1.7 Conducting various approved Educational / vocational Courses in NF's education / development centers: 1.8 In pursuance of the aforesaid objects, we have been primarily operating various educational development centers in rural areas and slum / economically backward pockets of semi urban and urban areas across India, so as to impart education to the students belonging to the under privileged / economically backward strata of the society with an objective to develop their skill so that their employability can increase. In the said education / development centers, we conduct various educational courses in the field of IT and other communication and vocational courses such as IT, English, Soft skills, BPO, Banking Sector, Accounting Skills, Personality development etc. duly developed and/or approved by government authorities and/or globally recognized institutions for the poor and physically and mentally challenged students at either free of cost or at heavily subsidized rate. NF also assists its student in getting job placement after completing certified educational cours....
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.... from NF these students have been able to get better employment opportunity. It is submitted that these centers were duly approved by National Skill Development Corporation ("NSDC") to conduct various approved educational courses approved by NSDC. NSDC is an Indian not-for-profit company set up to address the need for providing skilled manpower across various industry sectors. It was founded in 2009 by the Ministry of Finance, and is currently under the Ministry of Skill Development and Entrepreneurship, Government of India. The fact that the said centers were approved from NSDC is evident from the screen shots of the NSDC website. The same has already been submitted vide submissions dated 13th December 2019 at Annexure F. Further, as could be observed therefrom, the details of the said centers like address of centers, the date of approval of said centers is duly mentioned therein. 1.11 Educational Courses offered at the aforesaid Centres are developed and/or by the government authorities (NSDC) and/or other institution: 1.12 The students who enroll with the centers operated by NF are given education as per educational courses duly developed and/or approv....
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....n same manner as that of any course/class conducted by any other Educational institute: 1.15 NF conducts educational courses in the same manner as any course/class conducted by any other Educational institute. 1.16 Classes are conducted as per fixed curriculum: - As stated above, classes conducted by NF are based on the fixed curriculum duly recognized by these government authorities and/or globally recognized institutions. NF have a complete session plan for every defined course in which it has been defined what all needs to be covered in each session; 1.17 Courses are conducted and completed within a fixed duration: NF conducts and completes these courses in its centers within a fixed duration which is decided on the basis of content of each educational courses and on recommendations of institutions that has developed these courses; 1.18 Students have to compulsory attend classes and the students who do not have proper attendance are not allowed to take examination: The students have to compulsory attend classes. The attendance of the students is taken on a regular basis and a proper track record of the same is maintained by NF. The students wh....
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....nglish, GK and Mathematics. 1.25 Awards and Recognitions received by NF for its contribution in the field of education and charitable activities done by it: 1.26 The list of some of the Awards received by NF recognizing its contribution in the field of education and charitable activities done by it over the years is already submitted by the assessee vide submission dated 13th December 2019. Further, the copies of said awards were provided at Annexure H of the said letter. Also, the list of some of the articles published in Newspaper and electronic media recognizing NF's contribution in the field of education and charitable activities done by it over the years are already submitted before Your Goodself vide submissions dated 13th December 2019 at Annexure I. 1.27 Donations and amount received from various Sponsors: 1.28 As stated above, NF is providing aforesaid educational courses at either free of cost or at heavily subsidized rate at its Centers. Therefore, the amount of tuition fees received is not adequate to fund the aforesaid charitable activity of NF. The aforesaid charitable activities are funded by donations received from various per....
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....nly considering the aforesaid decision but also considering the approvals/recognition of sector specific competent Authority like DGCA at the national level and IATA at the global level who are presumed to have given their giving approvals as per industry standard requirements by way of their Agreements/approvals etc on a year to year basis after due care and diligence, considering the adherence of standards and requirements to be met in the industry specific skill/qualification requirements." (Emphasis Supplied) 2.3 It is submitted that as the courses have been approved by the regulatory body (NSDC) and other globally recognized institutions, the activity conducted by the Assessee ought to be regarded as being in the nature of 'education'. 3. WITHOUT PREJUDICE, THERE IS NO REQUIREMENT THAT THE COURSES CONDUCTED BY NF SHOULD BE AFFILIATED TO ANY REGULATORY BODY: 3.1 Besides, it is submitted that for the purpose of being 'education', it is not mandatory that the courses provided should be affiliated with any regulatory body. 3.2 In this regard, attention is drawn to the decision of the Hon'ble Supreme Court in the case....
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....m any coaching or training institute preparing the students for appearing in any examination for obtaining a formal degree by a formally recognized institution. The prescribed authority, therefore, held that the petitioner was not entitled to be characterized as an 'educational institution' within the meaning of section 10 (23C) (vi). The Hon'ble Delhi High Court after relying on the ratio laid down by the Apex Court in Sole Trustee, Lok Shikshan Trust (Supra) held that in order to qualify as 'education', it is not required that courses offered should be recognised by any university or Board. The relevant extract of the said decision is as under: "It is true that the petitioner is not affiliated to any university in India and is not recognized by any statutory body having anything to do with education. It is also a fact that the petitioner does not have a syllabus of its own and it awards grade certificates to the students depending upon their proficiency as declared by the Trinity College. London and the Associated Board of Royal School of Music, London on the basis of the examinations conducted by them. The question before us is whether the reasons gi....
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....ccordingly submitted that the activity conducted by us falls within the meaning of education as explained by the Hon'ble Supreme Court, as per which the main criteria is that there should be systematic schooling and training of the young blood to make them fit for the work of life. xxxx xxxx xxxx 3.11 In view of the foregoing decision, it is humbly submitted that the activity conducted by us qualifies as 'education' and accordingly, we are eligible to claim exemption u/s. 11 of the Act. 3.12 We accordingly humbly submit that we ought to be regarded as being engaged in the activity of imparting education to poor and accordingly, we are eligible for exemption u/s. 11 of the Act and our receipts cannot be regarded as business receipt. 4. REPLY AS TO WHY THE ACTIVITIES OF NF SHOULD NOT BE TREATED AS GENERAL PURPOSE UTILITY INSTEAD OF EDUCATION AND PROVISO TO SECTION 2 (15) OF THE ACT SHOULD NOT APPLY (QUERY NO. 3(ii)] 4.1 In this regard, as submitted above, it is reiterated that the activity carried out by the Assessee is in the nature of education. Without prejudice to the same, even if the activity is not regarded as education ....
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....lhi High Court in India Trade Promotion Organization vs. DIT(E) (371 ITR 333) where, in the context of section 2 (15), it is held that where the dominant objective of the assessee was charitable, then merely because a fee is charged would not make the activity as trade, commerce or business. The relevant extract of the decision is reproduced below: xxxx xxxx xxxx 4.7 In view of the foregoing, it is humbly submitted that the activity carried out by us cannot, by any stretch of imagination, be regarded as being a business and accordingly, the proviso to section 2 (15) is not applicable to us. 4.8 MERELY BECAUSE A RECEIPT IS CHARGEABLE TO SERVICE TAX OR TDS IS DEDUCTED THEREFROM DOES NOT MAKE IT A BUSINESS RECEIPT. 4.9 Further, it is submitted that when the inherent nature of the activity itself is not business, merely because service tax has been charged by the assessee or TDS has been deducted by the payer in compliance with the specific laws, the nature of the receipts would not become business receipts. It is submitted that these cannot be the factors in determining the nature of any receipt. 4.10 As regards levy of service tax, it is s....
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....ivity undertaken by us or its taxability. 4.14 Accordingly, it is submitted that no adverse view can be formed on the ground that the payer has deducted tax at source under section 194J before remitting the aforesaid payments to us. The payer, in its wisdom, has deducted TDS u/s. 194J, but that does not mean that it makes the activity undertaken by us as a business activity. Besides, Section 194J covers certain payments, which may or may not be a receipt from business activity. For eg. TDS on remuneration or fees or commission paid to director of the company. 4.15 In this regard, reliance is placed on the decision of the Delhi bench of the Tribunal in the case of Heart Care Management v. DIT (Exemption) (52 SOT 277), wherein it was observed as under: "5.2. Coming to the issue about some of the donors being pharmaceutical companies and having deducted TDS. In our view while accepting donation, a donee has limitations and if the donor offers the donation in cash kind or in a manner which it thinks legal, generally the donee would not refuse the donation. This is so because TDS can be claimed by trust towards the tax paid. It has not been disputed that for t....
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.... not be regarded as business receipt and why exemption u/s. 11 should be allowed. If you still decide otherwise, the Assessee humbly requests to issue a show cause notice, so that the Assessee can further provide its reply thereof. The assessee further requests Your Goodself Honour to kindly grant the assessee adequate reasonable time to provide further submissions/ clarifications along with the necessary documentary evidences in the matter, in case Your Goodself Honour decides otherwise. Thanking You, Yours faithfully, For NIIT Foundation Authorised Signatory" 19. Insofar as the funds received from corporates and private entities are concerned, it was the submission of the respondent/assessee that they were essentially donations which were utilized solely for the purposes of undertaking educational activities. The aforesaid details, which appear at Volume II, page no. 494 of our record are reproduced hereinbelow: - Details of TDS - as per Form 26 AS Income Amt_Rs. TDS Amt_Rs. Tuition Fees 412,170 39,966 Educational Services 24,396,361 1,029,000 Interest Income 10,697 1,071 Total 24,819,228 1,070,037 Details of....
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....page no. 863 of our record, the approval from the Government of the National Capital Territory for running and implementing IT fundamental school programs in government schools appears at Volume II, page no. 898. 22. In view of the above, it was Mr. Vohra's contention that the activities undertaken by the respondent/assessee clearly fall within the broad principles which came to be propounded by the Supreme Court in Lok Shikshana Trust. It was the submission of learned senior counsel that the Tribunal has thus correctly come to the conclusion that the activities undertaken by the assessee would fall within the sweep of the expression 'education' as appearing in Section 2 (15). 23. Having noticed the rival contentions, we deem it appropriate to notice some of the salient findings on facts which came to be rendered by the Tribunal. In paragraph 20 of the order impugned before us, the Tribunal noticed in some detail the gamut of activities which are undertaken by the respondent/assessee. The same is reproduced hereinbelow: - "20. We have carefully considered the rival contention and perused the orders the lower authorities. In the case of the assessee, assessment under ....
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.... in respect of fees charged, the assessee is imparting educational services to the economically weaker section of students and other physically and mentally challenged, for students wherein the educational services are rendered either free or heavily subsidized, discounted. Assessee offers highly subsidized training to underprivileged youth. A very small part of the training courses charges fees to the students. This builds commitment to the students to complete the training course and they do not dropout. Anything free is not valued so students are encouraged to pay small fees. For those students who cannot prototypes with the intent to build scalable and sustainable models. At the same time assessee is also continuing to expand the areas of impact as they collaborate with the corporate social responsibility in the corporate sector, NGOs and funding organizations. The main objects of the assessee were also explained by submitting the copy of the memorandum of Association and a subsequent amendment. Assessee also supported its activity narrated by the assessee by producing before him the various bank accounts as well as the details of donation. After examination of all these inform....
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....ng so, is that the income and expenditure account of the assessee has shown that assessee has received the tuition fee income of Rs.10666236 and the AO has failed to examine whether the activities carried out by the assessee in the absence of affiliation with any regulatory body and adherence to the criteria for formal education laid down by the honourable Supreme Court in case of Sole Trustee, Lok shiskhsan Sansthan case does not qualify as education. It was further alleged that the assessee has received fees for training students, which is in the nature of trade, commerce or business, and accordingly the surplus from these activities should be brought to tax. The learned CIT exemption was also guided by the fact that the receipt from different corporate houses has been subjected to tax deduction at source under section 194J and therefore the nature of these receipts are commercial in nature. Further it was also point of concern for CIT exemption that the turnover from services reported to the service tax authorities amounted to Rs. 38665028 and assessee has also paid service tax on the fees etc received from the students making it a further strong case for invoking the proviso to....
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....he fixed curriculum, which is duly recognized by these government authorities or may be recognized by other globally recognized institutions. The complete session plan for every course is covered. Therefore it is in a planned manner. The attendance of the students is also compulsory to allow them to take further examination. The necessary certificates to the successful candidates are also issued. The fees charged by the assessee to the various students are compared to the market rate are very low, the deserving student are granted concession or subsidy. The assessee has also conducted various approved educational and vocational courses in government schools, community schools and centers operated by other NGOs. The digital literacy Mission trainings are also provided to the children. The work of the assessee has been accredited by various organizations by awarding recognition and awards. Assessee has also shown various newspaper reports, which clearly shows that assessee, is providing education. Merely because of in certain projects there is a deficit, which deficit is reimbursed by the several corporate entities by spending out of their corporate social responsibility funding to t....
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....isions of section 2 (15) of the act. Thereafter, the learned assessing officer has granted assessee the benefit of being an educational Institute. It is not required for the assessing officer to examine how the payer of an income has dealt with receipt of an income in the hands of the assessee. This cannot be a general law but in the specific facts of the case where the payment made by the parties are subjected to tax deduction at source under section 194J of the income tax act cannot go against the assessee. The learned CIT - exemption has not in substance held that any due enquiry which should have been made by the assessing officer has not been made by him. Perhaps at the level of enquiry and the manner of enquiry may be different because of change in perception. However, that does not make the order erroneous." 27. It is thus apparent that the Tribunal came to the firm conclusion that the activities undertaken by the respondent/assessee were systematic and proceeded along well-defined lines based on curated courses all of which were designed to skill and educate the students who had been enrolled. On facts, the assessee was also able to establish beyond a measure of doubt th....
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.... with training and developing knowledge, skill, mind and character by formal schooling. These tests, in our considered opinion, were clearly met by the assessee. 30. We also find merit in the Tribunal's conclusion that the mode and manner in which education is imparted would be a concept which would have to necessarily be evaluated bearing in mind the march of technology and the myriad modes of imparting instruction which now exist and have enabled institutions to overcome barriers of distance and time. Imparting of education through a virtual mode or by the adoption of new technologies would not detract from the said activity, otherwise fulfilling the requirements of structured education. The test, as propounded by Lok Shikshana Trust, essentially requires us to evaluate whether a formal and systematic process of imparting education had been adhered to. We thus approve and affirm the following observations as they appear in the order of the Tribunal: - "30. Before parting, we would like to put on record that, at the time of dictation, whole world is experiencing 'new normal' in all spheres of activities. Education is no exception. Naturally, classrooms have no bricks a....