Ita/256/2013 Of Sacred Heart Convent v. Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940 I.T.A.No.256 of 2013 ------------------------------ AGAINST THE ORDER IN I.T.A.No.4/COCH/2012 DATED 05-05-2013 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, KOCHI. --------------------------------------- APPELLANT(S)/ RESPONDENT:- ----------------------------------------------- SACRED HEART CONVENT, KURUPPAMOZHY, CHATHANTHARA P.O., PATHANAMTHITTA - 686 510, REPRESENTED BY ITS LOCAL SUPERIOR SR. LISSY MATHEWS. BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATHSRI.P.BENNY THOMASSRI.K.JOHN MATHAISRI.KURYAN THOMAS RESPONDENT(S)/ APPELLANT:- ------------------------------------------------- COMMISSIONER OF INCOME TAX, PUBLIC LIBRARY BUILDINGS, SASTRI ROAD, KOTTAYAM - 686 001. BY SENIOR COUNSEL FOR GOVERNMENT OF INDIA (TAXES) SRI.P.K.R.MENON &STANDING COUNSEL FOR GOVERNMENT OF INDIA (TAXES) SRI.JOSE JOSEPH. THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 06-07-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- I.T.A.NO.256 OF 2013 APPENDIX APPELLANT'S ANNEXURES:- --------------------------------------------- ANNEXURE-A TRUE COPY OF THE RELEVANT PROVISIONS OF THE CODE OF CANNONS OF EASTERN CHURCHES.CANNONS OF EASTERN CHURCHES. ANNEXURE-B TRUE COPY OF THE RELEVANT PORTION OF THE CONSTITUTION OFTHE CONSTITUTION OF SACRED HEART CONGREGATION.THE CONSTITUTION OF SACRED HEART CONGREGATION. ANNEXURE-C TRUE COPY OF THE CONSENT DATED 23.05.1994 ISSUED BY THE EPARCHIAL CURIA.EPARCHIAL CURIA. ANNEXURE-D TRUE COPY OF THE LETTER CONTAINING PERMISSION DT.17.02.1994,ISSUED BY SUPERIOR GENERAL OF SACRED HEART CONGREGATION.ISSUED BY SUPERIOR GENERAL OF SACRED HEART CONGREGATION. ANNEXURE-E TRUE COPY OF THE LETTER FILED BY THE APPELLANT BEFORE THE RESPONDENT, WHILE SUBMITTING THE APPLICATION DTD. 26.02.2011.RESPONDENT, WHILE SUBMITTING THE APPLICATION DTD. 26.02.2011. ANNEXURE-F TRUE COPY OF THE APPLICATION IN FORM 10A DATED 26.02.2011 ALONG WITH THE NOTES ON ACTIVITIES SUBMITTED BY THE APPELLANT BEFORE THE RESPONDENT.ALONG WITH THE NOTES ON ACTIVITIES SUBMITTED BY THE APPELLANT BEFORE THE RESPONDENT. ANNEXURE-G TRUE COPY OF THE LETTER ISSUED TO THE APPELLANT BY THE INCOME TAX OFFICER, WARD-1, THIRUVALLA DATED 04.04.2011.INCOME TAX OFFICER, WARD-1, THIRUVALLA DATED 04.04.2011. ANNEXURE-H TRUE COPY OF THE LETTER DATED 19.04.2011 SUBMITTED BY THE APPELLANT BEFORE THE INCOME TAX OFFICER, THIRUVALLA.APPELLANT BEFORE THE INCOME TAX OFFICER, THIRUVALLA. ANNEXURE-ITRUE COPY OF THE LETTER DATED 24.08.2011 RECEIVED BY THE APPELLANT FROM THE OFFICE OF THE CIT.APPELLANT FROM THE OFFICE OF THE CIT. ANNEXURE-J TRUE COPY OF THE WRITTEN SUBMISSION DATED 01.09.2011 FILED BYTHE APPELLANT BEFORE THE RESPONDENT.THE APPELLANT BEFORE THE RESPONDENT. ANNEXURE-K TRUE COPY OF THE ORDER DATED 25.10.2011 ISSUED BY THE RESPONDENT TO THE APPELLANT.RESPONDENT TO THE APPELLANT. ANNEXURE-L TRUE COPY OF THE GROUNDS OF APPEAL IN THE APPEAL FILED BYTHE APPELLANT BEFORE THE INCOME TAX APPELLATE TRIBUNAL (ITAT).THE APPELLANT BEFORE THE INCOME TAX APPELLATE TRIBUNAL (ITAT). ANNEXURE-M TRUE COPY OF THE INDEX TO THE PAPER BOOK. ANNEXURE-N TRUE COPY OF THE ORDER DATED 24.12.2009 OF THE INCOME TAXAPPELLATE TRIBUNAL, COCHIN BENCH IN ITA.NO.279/COCH/2009AND CONNECTED CASES.APPELLATE TRIBUNAL, COCHIN BENCH IN ITA.NO.279/COCH/2009AND CONNECTED CASES. ANNEXURE-O DETAILS OF THE REGISTRATION CERTIFICATES GRANTED TO 15 OTHER CONVENTS OF THE SACRED HEART CONGREGATION AND SAMPLE COPIES OF THE CERTIFICATES.15 OTHER CONVENTS OF THE SACRED HEART CONGREGATION AND SAMPLE COPIES OF THE CERTIFICATES. ANNEXURE-P TRUE COPY OF THE ORDER DATED 05.04.2013 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH.INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH. ANNEXURE-M TRUE COPY OF THE INDEX TO THE PAPER BOOK. ANNEXURE-N TRUE COPY OF THE ORDER DATED 24.12.2009 OF THE INCOME TAXAPPELLATE TRIBUNAL, COCHIN BENCH IN ITA.NO.279/COCH/2009AND CONNECTED CASES.APPELLATE TRIBUNAL, COCHIN BENCH IN ITA.NO.279/COCH/2009AND CONNECTED CASES. ANNEXURE-O DETAILS OF THE REGISTRATION CERTIFICATES GRANTED TO 15 OTHER CONVENTS OF THE SACRED HEART CONGREGATION AND SAMPLE COPIES OF THE CERTIFICATES.15 OTHER CONVENTS OF THE SACRED HEART CONGREGATION AND SAMPLE COPIES OF THE CERTIFICATES. ANNEXURE-P TRUE COPY OF THE ORDER DATED 05.04.2013 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH.INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH. RESPONDENT'S ANNEXURES:- ---------------------------------------------- NIL. K. Vinod Chandran & Ashok Menon, JJ. ------------------------------------------------------- I.T.A.No.256 of 2013 ------------------------------------------------------- Dated, this the 06[th] day of July, 2018JUDGMENT Vinod Chandran, J: The assessee is in appeal from the order of the Tribunalat Annexure-P. The assessee admittedly is a Convent, which is underthe Generalate of the Sacred Heart Congregation of the Syro MalabarChurch. The constitution of the Generalate speaks of a specifichierarchy with the Generalate as the apex body, Provinces below theGeneralate and then the Region and the last unit being the Convents,called the “House”. The appellant is a 'House' coming within theconstitution of the Generalate. The appellant applied for a registrationunder Section 12A of the Income Tax Act, 1961 [for brevity “IT Act”].The same was declined by Annexure-K order. The Commissioner ofIncome Tax, who considered the application, directed the Income TaxOfficer, Ward 1, Thiruvalla to conduct an enquiry. The Income TaxOfficer in his report dated 09.06.2011 stated that the applicant is not aseparate entity, but one of the Convents under the Generalate. TheIncome Tax Officer did not recommend the registration under Section12A, which was accepted by the Commissioner. - 2 - 2. The appellant was before the Tribunal, which rejected the claim as per Annexure-P. The appellant also relied onAnnexure-N wherein a batch of appeals with respect to variousHouses, under different Congregations, who have applied forregistration; which were declined on the ground that there were nowritten instrument or constitution. The Tribunal directed freshconsideration of the same. 3. In the present case, the Commissioner does not speakof absence of a written constitution. The appellant also asserts thatthe constitution of the Generalate regulates the Houses also, whichcome under the Generalate. The Tribunal also found that theappellant comes under the exclusive control of the Generalatethrough the hierarchies as disclosed from the constitution and therecould be no separate registration granted to the Convent. 4. With the available materials, we are inclined to say thatthe orders of the Commissioner and the Tribunal are correct.However, we feel that there could be materials examined as towhether the appellant is a separate entity who is entitled to holdproperty for themselves and who has absolute control in its affairswithout interference from the Generalate. A more comprehensive enquiry and reading of the constitution would be required. We are ofthe opinion that since such facts are involved, there should be aremand to the Commissioner, who shall direct the Income Tax Officerto conduct a comprehensive enquiry and after looking at theconstitution also, decide the issue as to whether there could be, asclaimed by the appellant, status of a separate entity as distinguishedand distanced from the Generalate. To enable such consideration,the orders impugned are set aside. The appeal is allowed, remanding the matter as indicatedabove. Parties are left to suffer their respective costs. vku/- Sd/-K.Vinod ChandranJudge Sd/- Ashok MenonJudge [ true copy ]