TMI Blog2014 (1) TMI 1812X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. 80G w.e.f. 02-11-2011.- Decided in favor of assessee. - ITA No. 1562/PN/2012 - - - Dated:- 27-1-2014 - SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER Appellant By: Shri Pramod S. Shingte Respondent By: Smt. M.S. Verma ORDER PER R.S. PADVEKAR, JM:- This appeal is filed by the assessee challenging the impugned order passed by the Ld. CIT-II, Pune dated 17-05-2012 u/s. 80G(5)(vi) of the Income-tax Act r.w. Rule 11AA of the Income-tax Rules. The assessee has taken following ground in the appeal: On the facts and in circumstances of the case and in law the lower authorities have gravely erred in rejecting the application in Form 10G for renewal of exemption for donations under section 80G by disregarding the explanation offered by the assessee in this regard . 2. The assessee filed the application to the Ld. CIT for granting the approval u/s. 80G of the Income-tax Act. The assessee had been earlier granted approval u/s. 80G vide an order dated 23-08-2005 and the said approval was valid from 23-06-2004 to 31-03-2007. As observed by the Ld. CIT after 31-03-2007, the assessee society had not made any other application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e commercial in nature. Because the statements gave sufficient indication that these are the same receipts which had been subjected to TDS under sections 194C 194J. The same also exceeded Rs. Twenty-Five lakhs each during the years ended 31/3/2010 31/3/2011. iii) In view of the foregoing, it also appeared that the assessee was engaged, during the relevant years,in the nature of activities referred to in the first proviso to section 2(15) of the Income tax Act, 1961. The said proviso, which came into effect from 1/4/2009 and which applies to advancement of any other object of general public utility provides as under: Provided that the advancement of any other object of general public utility shall not be a charitable purpose, if it involves the carrying on any activity in the nature of trade, commerce or business, or any activity of rendering any service in relation to any trade, commerce or business for a cess or fee or any other consideration, irrespective of the nature of use or application , or retention, of the income from such activity. The applicant's case appeared to be adversely hit by the aforesaid proviso. iv) It was also seen from the statement of account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant spent certain amounts on foreign travels. These travels were mainly undertaken for participating in adverture-sport event in South Africa. Considering the nature of the applicant's activity, participation in the above event in South Africa directly helped the applicant in organizing and conducting popular sport events back in Pune. Hence, the impugned expenses could not be considered as un-related to the charitable activity undertaken by the applicant in India. 4. It appears that the assessee made the rectification of the procedure defects which has been pointed out by the Ld. CIT in Para No. 5.1 and he has held that as the assessee has rectified the defects on 20- 04-2012 by filing the application in Form No. 10G hence, the same has to be treated as filed on the said date only. The Ld. CIT rejected the assessee s application by giving the following reasons: ii) As already noted, the applicant has not furnished details in respect of the Enduro Camp receipts and expenses. However, it is clear from the TDS certificates and from the written submissions made in the course of present proceedings that substantial amounts had been received during the F.Ys. 2009-10 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s claim that it is pursuing education, and, hence the proviso of sec. 2(15) would not apply. iv) Coming to interest on Fixed Deposits and the applicant's action in not routing such interest for the A.Y.2011-12 through/the Income 85 Expenditure account, in its submission the applicant has impliedly accepted that this was not correct. However, it is not necessary to dwell on this matter any further because the applicant is being refused approval under sec. 80G on reference to the proviso to sec. 2(15). v) Coming to the foreign trip expenses, the applicant's submissions have been noted. In the absence of complete details, it is not possible as of now to hold whether or not the said expenses would be hit by the provisions of clause (c)(ii) of sub section (1) of section 11. However, if the impugned expenses thus got adversely hit, the same would at the most have a bearing on the computation of the income applied by the assessee to charitable purposes and not on its eligibility for approval u/s 80G per se . Hence, this issue is not pursued for the purpose of the present proceedings . Now the assessee has challenged the same before us. 5. We have heard the parties. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f its objects on September 17, 1999, and after the insertion of clause (vi) with effect from October 1, 1991, the Commissioner was not justified in holding that either fresh registration under section 12A(a) of the Act was required or the memorandum should have been amended as per the procedure laid down in section 92 of the Code of Civil Procedure. In Radhasoami Satsang v. CIT [1992] 193 ITR 321 their Lordships of the Supreme Court, inter alia, observed that though strictly speaking, res judicata does not apply to income-tax proceedings, where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be, at all, appropriate to allow the position to be changed in a subsequent year. We feel that these observations are quite apposite in the present case. The ratio of the decision of the apex court in Nizam's case [2000] 243 ITR 676 is not attracted in this case. 17. As regards the question whether the petitioner's income would be liable to be included in its total income under the provisions of sections 11 and 12 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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