{"id":238592,"date":"2009-11-13T00:00:00","date_gmt":"2009-11-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-tirath-singh-lalvani-vs-commissioner-of-income-tax-on-13-november-2009"},"modified":"2017-01-07T04:07:55","modified_gmt":"2017-01-06T22:37:55","slug":"s-tirath-singh-lalvani-vs-commissioner-of-income-tax-on-13-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-tirath-singh-lalvani-vs-commissioner-of-income-tax-on-13-november-2009","title":{"rendered":"S.Tirath Singh Lalvani … vs Commissioner Of Income Tax on 13 November, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
S.Tirath Singh Lalvani … vs Commissioner Of Income Tax on 13 November, 2009<\/div>\n
CWP No.10141 of 2004(O&M)                    1\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA\n                    AT CHANDIGARH\n\n                         CWP No.10141 of 2004(O&M)\n                         Date of Decision 13.11.2009\n\nS.Tirath Singh Lalvani Educational Foundation, Guru Kirpa Complex, 1,\nJalandhar Road, Kapurthala, through Mr.Sanjiv Bawam Trustee.\n\n                                                   ...... Petitioner\n\n                         VERSUS\n\nCommissioner of Income Tax, Jalandhar-II\n                                                   ...... Respondent\n\nCORAM:- HON'BLE MR. JUSTICE M.M.KUMAR\n        HON'BLE MR. JUSTICE JASWANT SINGH\n\nPresent:    Mr.A.M.Punchi, Advocate,\n            for the petitioner.\n\n            Mr.Vivek Sethi, Advocate,\n            for the respondent.\n\n                         *****\n\nM.M.KUMAR, J.\n<\/pre>\n
            The instant petition filed under Article 226 of the Constitution<\/p>\n
by S. Tirath Singh Lalvani Educational Foundation, Kapurthala (for brevity<\/p>\n
“petitioner-Trust”) challenges order dated 30.09.2003 (Annexure P-11),<\/p>\n
passed by the Commissioner of Income Tax, Jalandhar-II, declining the<\/p>\n
request of the petitioner-Trust for exemption under Section 80-G of the<\/p>\n
Income Tax Act, 1961. A further prayer for issuance of direction to the<\/p>\n
respondent to allow registration and exemption to the petitioner-Trust under<\/p>\n
Section 80-G(5)(vi) of the Income Tax Act has also been made.<\/p>\n
            Brief facts of the case, which have lead to the file of the instant<\/p>\n
petition, are that the petitioner-Trust was duly registered under the Societies<\/p>\n
Registration Act, 1860. The certificate of registration dated 28.01.2003 has<\/p>\n
been added with the petition (Annexure P-1). The petitioner-Trust applied
\n CWP No.10141 of 2004(O&M)                     2<\/span><\/p>\n
for exemption under Section 80-G of the Income Tax Act and the<\/p>\n
application was rejected vide impugned order dated 30.09.2003 (Annexure<\/p>\n
P-11). One Mrs.Mohini Bawa was possessed of huge immovable property<\/p>\n
at village Mansoorwal Donna, Jalandhar Road, Kapurthala. Out of her<\/p>\n
desire of creating an Educational Trust solely for charitable purposes to<\/p>\n
impart and provide facilities for education to the public at large, she<\/p>\n
executed an irrevocable deed of Trust on 12.12.2001. She bequeathed all<\/p>\n
her rights and interest in the property comprised in the land which is now<\/p>\n
known as Guru Kirpa Complex, situated at village Mansoorwal Donna,<\/p>\n
Jalandhar Road, Kapurthala. The total area of land is approximately 20<\/p>\n
Kanals and 15 Marlas alongwith the structures erected thereupon. It also<\/p>\n
includes movable properties including Computers and peripherals etc.<\/p>\n
which are fully described in the schedule of property forming part of the<\/p>\n
registered Trust Deed (Annexure P-2) executed for setting up the petitioner-<\/p>\n
Trust.\n<\/p>\n
             The petitioner-Trust has claimed that in pursuance of creation<\/p>\n
and acting in tandem with the objectives of the petitioner-Trust, a Day<\/p>\n
School with the name of “Bawa Lalvani Public School”, an institute known<\/p>\n
as Lalvani Institute of Technology at Kapurthala, were duly established.<\/p>\n
The School is likely to be upgraded to Standard XII and in that regard the<\/p>\n
petitioner-Trust has already submitted an application to the Central Board of<\/p>\n
Secondary Education. The aims and objectives for the creation of the Trust<\/p>\n
are discernible from para 4 of the Trust Deed. It is stipulated that the sole<\/p>\n
object of the petitioner-Trust is to run educational institution, existing solely<\/p>\n
for educational purposes and not for profit motive. In para 7 of the Trust<\/p>\n
Deed, it has further been provided that the power of the trustee is to be
\n CWP No.10141 of 2004(O&M)                     3<\/span><\/p>\n
exercised for the furtherance of the objects of the Trust, which is education.<\/p>\n
In para No.9, it has been clarified that the benefits of the petitioner-Trust<\/p>\n
were not to be restricted to any particular segment of the population on the<\/p>\n
grounds of caste, creed, class or religion.\n<\/p>\n
             There are clauses in the Trust Deed which specifically prohibits<\/p>\n
the diversion of any part of income or property of the Trust directly or<\/p>\n
indirectly by way of dividends, bonus or otherwise by way of profits to the<\/p>\n
Trustees or any person claiming through them. In para 26 of the Deed,<\/p>\n
everything has been put beyond doubt in the event of dissolution of the<\/p>\n
Trust. The assets of the Trust are not to be distributed amongst the Trustees<\/p>\n
but the same are required to be handed over to any other Trust, Society or<\/p>\n
Institution, professing objects similar to those of the petitioner-Trust and<\/p>\n
enjoying exemption under Section 80-G of the Income Tax Act.<\/p>\n
             The petitioner-Trust in terms of its charitable objects had<\/p>\n
submitted application for grant of registration under Section 12-AA of the<\/p>\n
1961 Act to the Commissioner of Income Tax, Jalandhar-II.                The<\/p>\n
Commissioner after considering and satisfying himself that the Trust has<\/p>\n
been created and constituted for charitable purpose and that infact the<\/p>\n
activities of the Trust were commensurate and in consonance with its<\/p>\n
charitable objectives allowed the registration of the petitioner-Trust under<\/p>\n
Section 12-AA (1)(b)(i) of the Income Tax Act. The order dated 28.08.2002<\/p>\n
registering the petitioner-Trust has been placed on record as Annexure P-3.<\/p>\n
Accordingly, the petitioner-Trust has been filing its income tax returns<\/p>\n
claiming exemption under Section 10(23C)(iiiad) and Section 11 of the<\/p>\n
Income Tax Act, which has never been issued any notice under Section 143<\/p>\n
(2) of the Income Tax Act, which in turn implies that the assessment on the
\n CWP No.10141 of 2004(O&M)                   4<\/span><\/p>\n
basis of return filed has been accepted as complete.\n<\/p>\n
            On 18.03.2003, the petitioner made an application to the<\/p>\n
respondents for grant of registration under Section 80-G (5)(vi) of the<\/p>\n
Income Tax Act on the prescribed Form 10-G (Annexure P-4).               The<\/p>\n
respondent sought clarification on certain issue from the petitioner-Trust<\/p>\n
vide letter dated 23.07.2003 (Annexurpe P-5). The petitioner-Trust sought<\/p>\n
time to furnish the required documents.         On 05.08.2003, the books of<\/p>\n
accounts of the petitioner-Trust were produced before the respondent, which<\/p>\n
were duly inspected. The petitioner-Trust pointed out that its expenditure<\/p>\n
has been more than 75% of its collections on setting up the School and the<\/p>\n
Institute of Technology which was in accordance with the objects set out in<\/p>\n
the Trust Deed. Accordingly, the petitioner-Trust requested for grant of<\/p>\n
registration vide its application dated 06.08.2003 (Annexure P-6). Some<\/p>\n
more details were furnished vide letter dated 13.08.2003 (Annexure P-7) to<\/p>\n
enable the respondent to completely satisfy itself with regard to its<\/p>\n
activities. It has also been claimed that to answer the queries raised by the<\/p>\n
respondent, a further communication was sent on 10.09.2003. It has also<\/p>\n
been disclosed that source of funds provide to the petitioner-Trust was by<\/p>\n
way of unimpeachable and doubtless bank entries, explaining the source of<\/p>\n
funds.   The petitioner-Trust pointed out that the finances have been<\/p>\n
provided by the non-resident external account maintained by the Trustees in<\/p>\n
the banks at New Delhi. The expenses incurred on the Trustees and outside<\/p>\n
visitors alongwith the relevant bills were also furnished to the respondent.<\/p>\n
The aforesaid documents reveal that most of the Trustees of the petitioner-<\/p>\n
Trust reside in United Kingdom and also in Hong Kong, who have<\/p>\n
supported the Trust by lending the funds to it. The document produced
\n CWP No.10141 of 2004(O&M)                   5<\/span><\/p>\n
included certificates from the bankers of the petitioner-Trust and copies of<\/p>\n
cheques which were issued to the petitioner -Trust from N.R.E. accounts<\/p>\n
maintained by the Trustees in India. On that basis, it has been claimed that<\/p>\n
there was no scope for having doubted the source of funds from the<\/p>\n
certification of bankers (Annexure P10). The petitioner-Trust has claimed<\/p>\n
that the respondent has wrongly doubted the genuineness of the funds<\/p>\n
contributed to the creation of the Trust and on that basis has rejected its<\/p>\n
application. The operative part of the impugned order dated 30.09.2003<\/p>\n
(Annexure P-11) reads as under:-\n<\/p>\n
            “——- This object is capable of being treated as an<\/p>\n
            independent object and cannot be said to be for charitable<\/p>\n
            purpose. This clause has the effect of permitting the trustees to<\/p>\n
            carry on the activity for profit and give unfettered discretion to<\/p>\n
            the trustees to spend the funds of the trust on the purchase\/sale<\/p>\n
            of immovable property, whether they are charitable or non-<\/p>\n
            charitable. The trustees have the discretion to utilize the funds<\/p>\n
            of the trust for any of the objects, including the non-charitable<\/p>\n
            ones. As these objects themselves are an activity for profit,<\/p>\n
            hence the assessee falls outside the scope of Section 2 (15) of<\/p>\n
            the Act and the benefit of the exemption cannot be allowed.<\/p>\n
            Further, as discussed above, the trust has violated the<\/p>\n
            provisions of Section 13 of the I.T. Act by making expenditure<\/p>\n
            on the stay of the trustees and the other guests in Radisson<\/p>\n
            Hotel, Jalandhar.      These expenses are not for charitable<\/p>\n
            purposes.”<\/p><\/blockquote>\n
\n CWP No.10141 of 2004(O&M)                   6<\/span><\/p>\n
            A perusal of the aforesaid order discloses the following three<\/p>\n
grounds for rejection:-\n<\/p>\n
            Firstly, that the unsecured loans have been received by the<\/p>\n
            petitioner-Trust from the trustees, which are stated to have<\/p>\n
            come from the Bank of America, DCM Building, 16<\/p>\n
            Barakhamba Road, New Delhi and BNP Paribas, Hansalaya, 2nd<\/p>\n
            Floor, Barakhamba Road, New Delhi.          The aforesaid funds<\/p>\n
            have come from outside India and appears to have been<\/p>\n
            contributed by NRI trustees living in U.K. and Hong Kong.<\/p>\n
            The Commissioner, in her orders has noticed that no evidence<\/p>\n
            was furnished to show that these amounts were contributed by<\/p>\n
            NRI trustees from abroad and the money really belonged to<\/p>\n
            them.\n<\/p><\/blockquote>\n
            Secondly, Clause ‘c’ under the heading other incidental<\/p>\n
            objectives of the Trust Deed (Annexure P-2) is capable of being<\/p>\n
            treated as independent and cannot be said to be for charitable or<\/p>\n
            non-charitable.\n<\/p><\/blockquote>\n
            Thirdly the petitioner-Trust has incurred expenses for the stay<\/p>\n
            of its trustee in a hotel at Jalandhar, which violate Section 13 of<\/p>\n
            the Income Tax Act.<\/p><\/blockquote>\n
            In the written statement, filed on behalf of respondent, broad<\/p>\n
factual averments made by the petitioner-Trust in the petition have been<\/p>\n
accepted.   However, it has been explained that the petitioner-Trust had<\/p>\n
spent heavy amount of funds for meeting the luxurious needs of its trustee<\/p>\n
in a luxurious 5 Star Hotel named as Radisson Hotel at Jalandhar which<\/p>\n
attracts the provisions of Section 13 of the Income Tax Act. It is claimed
\n CWP No.10141 of 2004(O&M)                   7<\/span><\/p>\n
that the maxim charity begins at home. That atmosphere of the trustee<\/p>\n
should be exemplary for others whereas in the instant case the funds meant<\/p>\n
for charitable purposes were diverted towards the luxurious stay of the<\/p>\n
trustees. Therefore, no exemption under Section 80-G could be granted and<\/p>\n
even consequential action under Section 12-AA of the Income Tax Act has<\/p>\n
to be initiated. The respondent has also claimed that the sources of funds of<\/p>\n
Rs.2.62 crores reflected in the books of account, which are allegedly<\/p>\n
received from four trustees through N.R.E. bank accounts have not been<\/p>\n
satisfactorily explained. The loan transaction was not free from doubt as the<\/p>\n
petitioner-Trust failed to substantiate that the said loan was remitted by the<\/p>\n
N.R.E. Trustees. No proof was furnished that the loan advanced actually<\/p>\n
belonged to the Trustees of the petitioner-Trust. There are two necessary<\/p>\n
components in such a transaction which are required to be proved namely<\/p>\n
the identity of the creditors and the genuineness of the loan transaction and<\/p>\n
both the components have remained unsubstantiated.\n<\/p>\n
            It appears that the document dated 24.10.2003 (Annexure P12)<\/p>\n
issued by the bank of America alongwith further detail appended as<\/p>\n
Annexure P1 and photo copy of the cheques as well as the document issued<\/p>\n
by BNP Paribas tendered explained with regard to the source of funds, the<\/p>\n
bank account from which the funds have come from alongwith further<\/p>\n
details so these documents were not on record and were duly considered by<\/p>\n
the Commissioner of Income Tax then she passed order dated 30.09.2003<\/p>\n
(AnnexureP11).      It is in the aforesaid facts and circumstances that the<\/p>\n
validity of the impugned order dated 30.09.2003 (Annexure P11) is required<\/p>\n
to be determined.\n<\/p>\n
            Mr.A.M.Punchi has argued that the first ground constituting the
\n CWP No.10141 of 2004(O&M)                   8<\/span><\/p>\n
basis of the impugned order may require a re-look in view of the details,<\/p>\n
which have now been placed on record of this petition in the form of<\/p>\n
information by the Bank of America dated 24.10.2003 (Annexure P12) as<\/p>\n
well as by the BNP Paribas, Hansalaya, 2nd Floor, Barakhamba Road, New<\/p>\n
Delhi (Annexure P12 collectively). According to learned counsel all the<\/p>\n
entries and the source of money has been explained by the aforesaid<\/p>\n
annexures with the details of cheque number, account number and the name<\/p>\n
of the trustee, who is contributing the funds. On the aforesaid basis, learned<\/p>\n
counsel has submitted that the matter required re-consideration at the hands<\/p>\n
of the Commissioner, who has passed the impugned order.<\/p>\n
            In respect of the second ground that there is violation of<\/p>\n
Section 13 of the Income Tax Act, learned counsel has submitted that the<\/p>\n
object given in Clause (c) under the heading either incidental objectives<\/p>\n
cannot be torn out of context and read in isolation. Learned counsel has<\/p>\n
drawn our attention to Clause 4 (e) and (i) under the heading main objects<\/p>\n
and clauses (c), (F) and (1) under the heading other incidental objectives, as<\/p>\n
also Clause 8, Clause 25 and 26 of the Trust Deed.           He has further<\/p>\n
submitted that a conjoint reading of these clauses would show that clause<\/p>\n
(c) which is aimed at sale, mortgage, transfer, exchange etc. or to deal with<\/p>\n
any property or asset belonging to the Trust is only empowering the trustees<\/p>\n
to perform numerous functions for the purposes of advancing the object of<\/p>\n
the petitioner-Trust, which is education. He has pointed out that nor a<\/p>\n
single penny can be utilized or credited either to the Trust or the trustee.<\/p>\n
The assets of the Trust are not to be distributed amongst the trustees but are<\/p>\n
to be handed over to mother Trust\/Society professing similar objects and<\/p>\n
also enjoying exemption under Section 80-G of the Income Tax Act. The
\n CWP No.10141 of 2004(O&M)                      9<\/span><\/p>\n
submission made by the learned counsel is that there cannot be any<\/p>\n
possibility under the Trust Deed to appropriate the asset of the Trust for the<\/p>\n
personal use of the trustees and, therefore, the reading of Clause (c) of the<\/p>\n
Trust Deed by the Commissioner in isolation has lead to a conclusion which<\/p>\n
in fact has has not been contemplated by the Trust Deed. An extreme<\/p>\n
situation has been taken care of by Clause 26 of the Trust Deed which<\/p>\n
provides that in case of winding up or dissolution of the petitioner-Trust—-<\/p>\n
His last submission with regard to violation of Section13 of the Act is that<\/p>\n
whenever some trustees who have contributed huge amount of loan visit the<\/p>\n
country from abroad then the arrangement of their stay are made in a hotel<\/p>\n
befitting to their status and it cannot be said that the expenses have been<\/p>\n
made for the benefit of the trustee in the sense that they have been unduly<\/p>\n
showered with luxuries or external expenses have been incurred on them for<\/p>\n
their private visits. It is only to facilitate their visit to the country so as to<\/p>\n
enable them to attend the meeting of the Trust.\n<\/p>\n
             Mr.Vivek Sethi, learned counsel for the respondent has made<\/p>\n
an attempt to furnish legal justification of the impugned order. However, he<\/p>\n
has not been able to propose the primary submission made by learned<\/p>\n
counsel for the petitioner-Trust which is to the effect that the matter requires<\/p>\n
re-look as the various documents produced by the petitioner-Trust<\/p>\n
collectively attached as Annexure P12 after passing of the impugned order<\/p>\n
have not been considered by the Commissioner.\n<\/p>\n
             Having heard learned counsel for the parties and perusing the<\/p>\n
paper book with their able assistance, we are of the view that the prayer<\/p>\n
made by the learned counsel for the petitioner deserves to be accepted<\/p>\n
which would meet the end of justice if the matter is remitted back on the file
\n CWP No.10141 of 2004(O&M)                   10<\/span><\/p>\n
of the Commissioner of Income Tax, Jalandhar-II for decision afresh after<\/p>\n
taking into account the documents attached as Annexure P12 (collectively).<\/p>\n
               Accordingly the impugned order dated 30.09.2003 is set aside.<\/p>\n
The commission`er, Income Tax, Jalandhar-II is directed to reconsider the<\/p>\n
whole issue in the light of the documents placed on record of this petition<\/p>\n
alongwith any other document which may be produced by the petitioner-<\/p>\n
Trust at the time of hearing.         The parties may appear before the<\/p>\n
Commissioner, Income Tax, Jalandhar-II within four weeks of the receipt of<\/p>\n
copy of this order and the Commissioner may then proceed to determine the<\/p>\n
question afresh in accordance with law by passing a speaking order. It shall<\/p>\n
be appreciated if all the documents placed on record of this case are taken<\/p>\n
into consideration alongwith any other document which may be placed on<\/p>\n
record by the petitioner-Trust. Any observation made in this order shall not<\/p>\n
be construed as an expression of opinion on the merits of the case and the<\/p>\n
Commissioner shall proceed on merit without being influenced by any such<\/p>\n
observation.\n<\/p>\n<\/p>\n
                                                        (M.M.KUMAR)
\n                                                           JUDGE<\/p>\n
                                                     (JASWANT SINGH)
\n                                                          JUDGE
\n13.11.2009
\nmamta-II 7\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court S.Tirath Singh Lalvani … vs Commissioner Of Income Tax on 13 November, 2009 CWP No.10141 of 2004(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.10141 of 2004(O&M) Date of Decision 13.11.2009 S.Tirath Singh Lalvani Educational Foundation, Guru Kirpa Complex, 1, Jalandhar Road, Kapurthala, through Mr.Sanjiv Bawam Trustee. 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