Itxa/1097/2013 Of The Director Of Income Tax ( Exemption) v. G.k. R. Charities

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (LOD) NO.2060 OF 2012 Director of Income Tax (Exemption), Mumbai ..Appellant. V/s. M/s. G.K.R. Charities ..Respondent. Mr. A.R. Malhotra for the appellant. Dr. K. Shivram with Rahul Hakani i/b. Paras Savla for the respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATED : 8TH MARCH, 2013 P.C. :- 1.In this appeal by the revenue for the assessment year 2007-08, following reframed questions of law have been raised for our consideration :- a)Whether on the facts and in the circumstances of the case and in law, the Tribunal is justified in allowing the claim of the assessee for exemption u/s.11 of the Act ignoring the fact that the assessee failed to get the permission of the Charity law, the Tribunal is justified in allowing the claim of the assessee for exemption u/s.11 of the Act ignoring the fact that the assessee failed to get the permission of the Charity Commissioner to raise loans for the trust in violation of provisions of section 36(3) of the Bombay Public trust Act without considering the decision of the Bombay High Court in CIT V/s. Prithvi Trust reported in 124 ITR 48 ? b)Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in law in ignoring the stand of the revenue that allowance of depreciation on the assets, the cost of which has already been allowed as a deduction on account of application of income, would amount to double deduction which is legally not permissible in view of the judgment of the Supreme Court in the case of Escorts Ltd. V/s. union of india 199 ITR 443 ?law, the Tribunal was correct in law in ignoring the stand of the revenue that allowance of depreciation on the assets, the cost of which has already been allowed as a deduction on account of application of income, would amount to double deduction which is legally not permissible in view of the judgment of the Supreme Court in the case of Escorts Ltd. V/s. union of india 199 ITR 443 ? c)Whether on the facts and in the circumstances of the case and in law, the Tribunal is right in directing the A.O. to allow repayment of loan amounting to Rs.2,91,57,058/- as application of income when the cost of the assets, for which the loan was taken, had already been alowed as application of income and further allowance of repayment of loan as application of income would result in double deduction for the same outgoing which is against the principles laid down in the judgment of the Supreme Court in the case of Escorts Ltd. V/s. union of india 199 ITR 443 ?law, the Tribunal is right in directing the A.O. to allow repayment of loan amounting to Rs.2,91,57,058/- as application of income when the cost of the assets, for which the loan was taken, had already been alowed as application of income and further allowance of repayment of loan as application of income would result in double deduction for the same outgoing which is against the principles laid down in the judgment of the Supreme Court in the case of Escorts Ltd. V/s. union of india 199 ITR 443 ? 2.So far as question (a) is concerned, the relevant facts are that the respondent-assessee is engaged in the charitable activities and has been granted registration under Section 12A of the Income Tax Act, 1961 (the Act). The revenue seeks to deny the benefit of 2.So far as question (a) is concerned, the relevant facts are that the respondent-assessee is engaged in the charitable activities and has been granted registration under Section 12A of the Income Tax Act, 1961 (the Act). The revenue seeks to deny the benefit of exemption under Section 11 of the Act inter alia by disallowing the repayment of the interest free unsecured loan taken from the managing trustees in earlier years without obtaining prior approval from the Charity Commissioner under the Bombay Public Trust Act, 1950 (the Trust Act). On appeal, the CIT(A) following the ITAT's decision in the case of ITO V/s. Bombay Stock Exchange dated 22[nd] August, 2006 allowed the claim of the assessee for exemption under Section 11 of the Act. On further appeal filed by the revenue, the ITAT while upholding the order of CIT(A) held that once the registration has been granted under Section 12AA of the Act, the exemption under Section 11 cannot be withdrawn unless there is violation of provisions of Section 13 of the Act or the registration under Section 12AA(3) of the Act is cancelled. The Tribunal held that the decision of this Court in the matter of CIT V/s. Prithvi Trust reported in 124 ITR 488 is distinguishable on facts as the Trust in that case was carrying out profit making activity without any authorisation in the Trust Deed. In this case, there is no bar in the Trust Deed to take unsecured loans. The breach, if any, is in failing to comply with the provisions of the Trust Act in an earlier year. Moreover, it is not in dispuse that the unsecured loans taken in earlier years were duly reflected in the books maintained by the assessee and though prior approval was not obtained, the assessee had, in fact, subsequently applied for approval from the itxal-2060-12 Charity Commissioner and the Charity Commissioner has neither granted approval nor initiated any proceedings under the Trust Act for the alleged violation of obtaining unsecured loan without prior permission. In these circumstances, we see no reason to entertain question (a) as proposed by the revenue. 3.So far questions (b) & (c) are concerned, counsel for the parties agree that the issue arising herein are covered by the decision of this Court in the matter of CIT V/s. Institute of Banking Personal Selection reported in [2003] 264 ITR 110 (Bom.) in favour of the assessee and against the revenue. In these circumstances, we do not see any reason to entertain questions (b) & (c). 4.Accordingly, the appeal is dismissed with no order as to costs. (M.S. SANKLECHA, J.) (J.P. DEVADHAR, J.)