The Judgments In Fifth Generation Education Society v. Income Tax Appeal Is Dismissed

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 27TH DAY OF OCTOBER 2014/5TH KARTHIKA, 1936 ITA.No. 194 of 2014 --------------------------- AGAINST THE ORDER IN ITA 134/2014 of I.T.A.TRIBUNAL,COCHIN BENCH DATED 27-06-2014 APPELLANT/ASSESSEE: M/S.TRAVANCORE EDUCATION SOCIETY REGISTERED OFFICE AT KALLAMBALAM POST THIRUVANANTHAPURAM - 695 605. (REPRESENTED BY ITS PRESIDENT A. SAINULABDEEN S/O. ABDUL MAJEED, PRESIDENT M/S. TRAVANCORE EDUCATION SOCIETY, KALLAMBALAM POST THIRUVANANTHAPURAM - 695 605) BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENT/REVENUE: THE COMMISSIONER OF INCOME TAX (CENTRAL), COCHIN OFFICE OF THE COMMISSIONER OF INCOME TAX (CENTRAL) INCOME TAX DEPARTMENT, GOVERNMNET OF INDIA, 5TH FLOOR KANDAMKULATHY TOWERS, M.G. ROAD, ERNAKULAM -682 011. R BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 27-10-2014, THECOURT ON THE SAME DAY DELIVERED THE FOLLOWING: ITA.No. 194 of 2014 APPENDIX PETITIONER'S EXHIBITS: ANNEXURE : A1 TRUE COPY OF THE APPLICATION FILED BY THE APPELLANTUNDER SECTION 12AA OF THE INCOME TAX ACT, 1961. ANNEXURE A2: TRUE COPY OF THE ORDER DATED 28.6.2012 PASSED BY THERESPONDENT. ANNEXURE A3: TRUE COPY OF THE MEMORANDUM OF APPEAL INI.T.A.NO.134 OF 2014 BEFORE THE INCOME TAX APPELLATE TRIBUNAL,COCHIN BENCH, COCHIN ALONG WITH THE AFFIDAVITS. ANNEXURE A4: TRUE COPY OF THE ORDER DATED 27.6.2014 IN I.T.A.NO.134 /COCH/2014 BEFORE THE INCOME TAX APPELLATE TRIBUAL, COCHIN BENCH,COCHIN. // TRUE COPY // P.A. TO JUDGE ANTONY DOMINIC & ANIL K. NARENDRAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - I.T.A.No.194 OF 2014 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of October, 2014 JUDGMENT Antony Dominic, J. This appeal is filed against the order passed by the Income TaxAppellate Tribunal, Cochin Bench in I.T.A.No.134 of 2014 which wasfiled by the appellant herein against the order passed by theCommissioner rejecting their application for registration underSection 12AA of the Income Tax Act, 1961. 2. We heard the counsel for the appellant and the learnedStanding Counsel appearing for the respondent. 3. The appellant is a society registered under the Travancore - Cochin Literary, Science and Charitable Trust Act, 1955. The societyhas established an engineering college by name “TravancoreEngineering College”. During a search operation in the office of theappellant, several incriminating materials were found whichdisclosed the receipt of capitation fee for admission of students. Itwas collected by the trust in addition to the fee prescribed. The fact that capitation fee was being collected was admitted by the Treasurer ofthe Trust Shri.Shajahan and the Secretary of the trust Shri.Sainulabdeenin the statements given by them. These facts revealed that the object ofthe trust was not charitable and it was therefore that the registrationunder Section 12AA of the Act was rejected. 4. The facts being as above, we are fully in agreement with theTribunal that on materials it was evident that the trust was not carryingon any charitable activities entitling it for registration under Section12AA of the Act. that capitation fee was being collected was admitted by the Treasurer ofthe Trust Shri.Shajahan and the Secretary of the trust Shri.Sainulabdeenin the statements given by them. These facts revealed that the object ofthe trust was not charitable and it was therefore that the registrationunder Section 12AA of the Act was rejected. 4. The facts being as above, we are fully in agreement with theTribunal that on materials it was evident that the trust was not carryingon any charitable activities entitling it for registration under Section12AA of the Act. 5. In this appeal, the appellant has produced Annexures A5 andA6, affidavits filed before the Commissioner of Income Tax (Appeals)and before the Income Tax Appellate Tribunal, which show that theendeavor made therein is mainly to retract from the statements given bythem. In so far as affidavit filed before the Commissioner of Income TaxAppeals is concerned, that appeal arising out of assessment order is stillpending. The other affidavit filed before the Tribunal shows that for thefirst time before the Tribunal such an attempt was made. Having regardto the fact the affidavit only contained unsubstantiated claims madetherein, we do not think that this affidavit would improve the case of theappellant. 6. The learned counsel for the appellant also placed reliance on the judgments in Fifth Generation Education Society v. CommissionerIncome Tax [185 ITR 635],New Life In Christ Evangelistic Association v.Commissioner of Income Tax and Another [246 ITR 532]to contend thatwhen application is made under Section 12AA, the Commissioner is notrequired to examine the application of income of a trust. In our view,this principle has no application to the facts of the case. The rejection ofthe application made by the petitioner, as we have already noted, wasfor the reason that they were collecting capitation fee for admission andnot on the ground that the funds of the trust were not applied forcharitable purpose. For all these reasons, we do not find any merit inthis appeal. Income Tax Appeal is dismissed. ANTONY DOMINIC, Judge ANIL K. NARENDRAN,Judge