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TMI Blog2020 (6) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... re not charitable in nature. 2. That on the facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeals) has erred in law and facts in deleting the addition amounting to Rs. 4,93,67,440 ignoring the fact that the expenses of the assessee like light and sound show security service charges, upgradation of Sh. Krishna Museum, expenditure on celebration of Geeta Jayanti, land compensation, etc., are not charitable in nature. 3. That on the facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeals) has erred in law and facts in deleting the addition amounting to Rs. 4,93,67,440 ignoring the fact that the activities of the assessee do not get covered under section 2(15) of the Income-tax Act, 1961. 4. That the appellant craves to leave, add or amend any grounds of appeal on or before the appeal is heard or disposed of." 2. The learned Commissioner of Income-tax-Departmental representative relying on the assessment order has argued that the Assessing Officer having considered the assessee's stated aim being to undertake overall development of Kurukshetra, etc., has proceeded to compare the assessee with the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the view taken by the Commissioner of Income-tax (Appeals) cannot in the circumstances be said to be disputed by the Assessing Officer. In the clarification fixed, it was submitted that this fact has been taken note of by the Commissioner of Income-tax (Appeals) himself while granting relief and this fact has not been assailed by the Revenue. 6. We have heard the rival submissions and perused the material available on record. Before addressing the respective arguments, it is necessary for the sake of completeness to extract the relevant findings of the Assessing Officer on which heavy reliance is being placed by the learned Commissioner of Income-tax-Departmental representative : "2. The assessee-board is a society registered with the Registrar of Societies. Registration under section 12A has been granted to the assessee by the Commissioner of Income-tax-Rohtak on July 17, 1978. The official members of the board are the Governor of Haryana as Chairman, C. M. Haryana and Vice-Chairman, Urban Development Minister, Haryana and 25 others as members. 3. The main aim of the society is to undertake overall development of Kurukshetra including its lands renovation of historic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been receipt of corpus fund of Yog Ashram of Rs. 5,72,006. The expenditure of the amounts have been shown towards 'light and sound show security service charges', upgradation of Sri Krishna Museum, expenditure on celebration of Gita Jayanti, land compensation, etc. 6. The activities narrated above do not percolate to any activity having in basic limbs of section 2(15) of the Income-tax Act, i. e., education, medical relief and relief to the poor. The activity can best be described in residuary limb, i. e., 'advancement of any other activity of general utility'. The activities narrated above if considered in the residuary limbs are restricted by the first proviso where if the gross receipts exceed Rs. 25 lakhs the benefit of section 2(15) are not avail able. In the case of the assessee the total receipts are Rs. 34,38,22,104 and as such the activities cannot be claimed as exempt under the limb of 'advancement of general public utility'. 7. As the decision of Jammu Development Authority by the apex court has settled the issue in favour of the Department. The assessee was given a show-cause notice dated November 1, 2016 asking to justify the charitable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the objects of the society, viz., to provide utmost facilities to pilgrims/tourists coming to Kurukshetra. This fact has been accepted by the Assessing Officer in his order for the assessment year 2016-17 dated December 30, 2018 where the charitable nature of the institution has been accepted. The case of Jammu Development Authority v. CIT relied upon by the Assessing Officer is not relatable to this case as the facts are totally different in both the cases. In that case, the registration under section 12AA of the Income-tax Act was cancelled on the grounds that the assessee was carrying out activities against the spirit of section 2(15) of the Act. In the appellant's case, there has been no issue with the registration under section 12AA of the Act and it is seen that there are no flouting of the provisions of section 2(15) of the Income-tax Act. In view of the facts as stated above, I am the opinion that the denial of exemption under section 11 of the Income-tax Act was not justified. I, therefore, delete the addition made on this account. These grounds of appeal are allowed." 8. In the facts of the present case, it is seen that some of the aims and objects relied upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al fact available on its record, namely, that the registration under section 12AA of the said authority as noticed by the hon'ble Jammu and Kashmir High Court also had stood cancelled. 9.1 In the facts of the present case, registration under section 12A stands and no material has been referred to before us even to suggest that there were any proceedings pending its cancellation. Thus, the submission that the special leave petition filed by the said authority had been dismissed by the apex court, we hold has no material bearing whatsoever on the facts of the present case. In the facts of the present case, for the Revenue to rely on the said decision, it must be established that the present assessee on facts can be said to be engaged in the activities akin to a "real estate builder" with no element of charity. There are no facts referred to for such a conclusion. Further, at least some fact or evidence necessarily should be available on record to show that at least the process of cancel ling, etc., the registration under section 12AA has started. The submissions, arguments and facts to the said effect are missing. Without caring to establish a parimateria on these material fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our notice by the Revenue. On the contrary, we find that there was no similarity of activity with M/s. Jammu Development Authority, namely, developmental activities like that of a real estate builder, etc. Thus, the reliance placed thereon by the Revenue has to be discarded. 11. Addressing the next specific grievance addressed by way of ground No. 2 in the present appeal that the expenses incurred for light and sound show, upgrading of Kishna Museum, etc. has been considered to be a commercial activity by the Assessing Officer. It is necessary to set out the specific finding of the Commissioner of Income-tax (Appeals) challenged by the Revenue. The Commissioner of Income-tax (Appeals) has held "The light and sound show for which expansion of funds have taken place is as per the tenets laid down in the objects of the society, viz., to provide utmost facilities to pilgrims/tourists coming to Kurukshetra. This fact has been accepted by the Assessing Officer in his order for the assessment year 2016-17 dated December 30, 2018 where the charitable nature of the institution has been accepted". 11.1 In order to address the issue, the facts as available on record need to be addressed. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of these specific facts, we had required the Revenue to show where is the alleged commercial activity. The learned Commissioner of Income-tax-Depart mental representative in the absence of any such evidence on record or material referred to by the Assessing Officer relied upon the assessment order. We further notice that the assessee in its submissions extracted at pages 5 and 6 of the impugned order before the Commissioner of Income- tax (Appeals) has stated that the assessee-society is exhibiting the philosophy of Gita given by Lord Krishna through a light and sound show at the birth place of Gita at "Jyotisar". Apart from these facts, it is seen that the following supplemental submissions have been extracted by the Commissioner of Income-tax (Appeals) which are reproduced hereunder from the impugned order for the sake of completeness : "Additional submissions on July 12, 2018. In continuation of our previous submission, we submit the following information as desired by your honour : (1) Copy of objects for which the appellant-assessee-board is established : The assessee-board was established on the 1st day of August, 1968 by the Former Prime Minister of India Bhara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance of museum, etc., can be said to arise from the activities of the assessee which can be said to be covered under section 2(15) of the Income-tax Act. For the purposes of determining the claims and the counter-claims of the parties in the present proceedings, it is necessary to first extract the relevant provision : "2.15 'charitable purpose' includes relief of the poor, education (yoga) medical relief, (preservation of environment (including watersheds, forests and wildlife) and preservation of monuments or places or objects of artistic or historic interest, and the advancement of any other object of general public utility : Provided that the advancement of any other object of general public utility shall not be a charitable purpose, if it involves the carrying on of 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, unless- (i) such activity is undertaken in the course of actual carrying out of such advancement of any other o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been referred to either by the Assessing Officer or by the learned Commissioner of Income-tax- Departmental representative to show that it can be said to be motivated by any profit motive. He has also concluded that there is no comparison with bodies like HUDA, PUDA, etc., which finding also we find ourselves in agreement for the reasons brought out hereinabove and to be elaborated hereinafter. 14. In order to address the expenditure accepted by the Commissioner of Income-tax (Appeals) and upheld by us in the facts of an assessee maintaining a Krishna Museum and having a light and sound show exhibiting the philosophy of Gita at its birth place "Jyoti Sar" it needs to be addressed what Kurukshetra stands for. There may be multiple narratives on the belief whether any actual war called the Mahabharat was fought or is it a reference to a constant battle of good and bad waging in each one of us since times immemorial. However, the fact that Gita was expounded on the battle field of Kurukshetra on the verge of Mahabharat by Sri Krishna is a subject or rather a fact on which the belief is based is not itself in dispute. Kurukshetra has its name in the hall of fame solely and only due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civilisation, the preserving of the cultural heritage, however, cannot be ignored. The fact that the mythical river Saraswati having its temple supposedly at the ancient site of Pehowa again is a belief which is central to the core cultural heritage. Efforts to preserve it come within the 48 kilometres radius. Its importance cannot be overemphasised as apart from a religious spot like other religious sites it has been maintaining a genealogical records of the families visiting this place over a period of times of birth, death, etc. These are some of the written records which may still be available with some families at Pehowa which again is a cultural heritage. The importance of their preservation and maintenance cannot be allowed to be toyed with. 15. At this stage, it would be apposite to refer to certain constitutional provisions especially keeping in mind the fact that Government's funds are also involved. It is well-settled that all Acts of State and the Union of India are deemed to be in conformity with the constitutional mandate of the country as the Constitution of India is the supreme law of the land. Reference may be made to the Directive Principles of State Policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ually summarised by Sri Krishna at this place is well known and accepted. The temples, monuments, trees, stone, the space, etc., in memory and recognition of and the building of the mythology, the legends, the folklore, the festivals, the songs, bhajans, the music, the dance forms etc. around this event are the cultural heritage of this nation centered in this place constitute and form the vanishing tangible and intangible cultural heritage cannot be denied. The fact that there are doubters and nay sayers on the very existence and relevance of the discourse does not detract from the fact that there is a whole body of cultural, heritage, philosophy and ideas resonated and birthed from this place. Sri Krishna a god to some of us is also a supreme yogi, a philosopher and definitely an enlightened mind to all of us. He has delivered the famous discourse at this place and this is the reason and the only reason for the importance and relevance of Kurukshetra. Consequently an informative dissemination of his life time and philosophy cannot be dismissed as commercial activity. The dissemination of information through light and sound available even to the illiterate cannot be whimsically an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sciously avoided perpetuating either their name or lineage as culturally they have always aspired to attain control over ones own mind, body, thought and soul and negate the ego and the name itself. The fact that external civilisations engaged with part of the population engaged in business and administration was ignorant of the passion of the highest achievers who were engaged in their solitary journeys to negate the ego by yog, medication and dhyan were not noticed by the rapacious and the greedy, the history with a lack of victorious symbols of achievement despite the evidence of well planned ancient sites discovered by archeologists is evident of this fact. These cultural aspirations admittedly do not have many physical symbols around which the philosophies, the culture and the ideas and heritage revolved. Thus, preservation of the vanishing and the few remaining relics of the tangible and intangible cultural heritage cannot be treated to be a commercial exercise without even a scrap of evidence. 17. It would not be out of context to quote Koenraad Elst who has as per the information available in the public domain addressing the queries posed to him on the advice which he woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losophy of tolerance, live and let live ; giving back to the society, avoid violence till the ninth degree of tolerance so as to live not in the body but in the spirit beyond the mind. It is not the purpose of the present order to delve deeply in this esoteric and metaphysical topic or deliberate upon the possible ways of holographic visualisation of self-mind and ego within one's own consciousness, the purpose is only to highlight that the cultural heritage of the civilisation needs a protection and recognition keeping in mind the aforesaid constitutional provisions and the need for preserving the tangible and intangible cultural heritage revolving around this area which the society aims to preserve and maintain. It may also be mentioned that the need, importance and necessity to maintain, preserve and protect the cultural heritage it is well recognised even under international conventions that cultural policies are a part of development. India is a signatory to the international conventions which acknowledges the need to implement its key components of development strategy through Government agencies. Reference may be made to the United Nation's conference on "human devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the curious and the interested person irrespective of religion, caste, culture, creed, colour, gender, nationality cannot be irresponsibly termed as a mere commercial activity without an iota of evidence. The need for preserving and maintaining cultural pride cannot be overemphasised as observed earlier also especially where the presentation of this civilisation has been only through the prism of constant and the mischievous criticism bringing on the table for discussion only the caste atrocities, sati or child marriages which no doubt have been the malaise of the civilisation and these events necessarily call for us to hang our heads in shame but also need to be considered in the backdrop of what was then happening in the rest of the world. Events must be understood in the context of the times. Women as a gender were oppressed and witch hunting, burning at the stake and other practices of torture were accepted within those civilisations and religions of those times. These practices of witch hunting and mal treatment of the marginalised, the weak and the women were duly sanctioned as permissible religious tools of oppression in most of the other civilisations of the world and were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Indian minds like Adi Shank racharya, Swami Vivekanand, Rabindra Nath Tagore amongst others. The enlightened international diaspora equally well acknowledges the relevance and magnificence of this philosophy. Whereas whether Albert Einstien acknowledged this magnificent text of achieving excellence in human spirit, on this the jury may be well divided but other equally famous and well recognised scientists, historians, philosophers, artists, thinkers have acknowledged its magnificent is not in dispute. Reference may be made to J. Robert Oppenheimer, Henry David Thoreau, T. S. Eliot, Sunita Williams, Philip Glass, Annie Besant, Ralph Waldo Emerson, Herman Hesse, Carl Jung, Alduos Alldous Huxley, Rudolph Steiner, etc., etc., and the list can go on. The abiding principles of right and wrong thought, action and deeds were explained on this terra ferma to Arjun who after having prepared for this battle baulked on the battlefield and expressed his extreme revulsion and shame in being involved in this immoral war. The discourse has stood the test of time as it involves the highest principles of management as applicable to an individual, organisation or State. It is on this terra ferma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevance of museums as contributors to the education of the young and the old, the student or the teacher, the trader or the artist. The museum inform the diaspora who cares to visit it not only about the times, the values, the life styles and the culture of the specific times but also gives a perspective of the contemporary relevance ; status and standing of the other cultures of those times. Mere charging of fees from visitor or receipt of State funds for their upkeep, etc., does not transform the character of a museum to be a commercial venture. The museums in fact are akin if not bigger and larger temples of learning, than the best of universities and colleges. The reach of the colleges and the universities is limited to imparting knowledge only to the admitted literate and qualified unlike museums which impart knowledge to the world at large regardless of his literate skills or qualifications. 19. Similarly, we find dissemination of information, knowledge, awareness of the philosophy of Gita through a light and sound show also cannot be treated to be a commercial exercise in the manner carried out by the assessee. Knowledge and information imparted to the world at large rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove which is a life long educational exercise cannot be dismissed as a commercial venture without any evidence. 20. In view of the aforesaid facts, circumstances and reasons as set out hereinabove on a consideration of the peculiar facts and circumstances of the case in the light of the Constitutional provisions, the International Conventions to which Indian is a signatory in the context of the activities found discussed in the respective orders along with the contextual background wherein the assessee functions, we hold that the assessee has been formed for the objects falling within the four corners of the main clause of section 2(15) of the Act. We have seen that the activities undertaken by the assessee were unlike those undertaken by M/s. Jammu Development Authority. This issue, we have addressed at length in the earlier part of this order. The activities undertaken by the present assessee like light and sound show, present security service charges for preserving and maintaining/upgradation and maintenance of Krishna Museum expenditure of celebration of Geeta Jayanti, etc., are all relatable activities commensurate with its aims and objects involving no activity in the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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