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TMI Blog2019 (11) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Whilst exercising the power of review, this Court cannot be oblivious of the provisions contained in Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 and that, the limits within which this Courts can exercise the power of review have been well settled in a catena of decisions. Review petition dismissed. - RP.No.241 OF 2015 IN ITA. 131/2014 - - - Dated:- 5-11-2019 - THE HONOURABLE MR.JUSTICE V. CHITAMBARESH And THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FOR THE PETITIONER : SRI.T.M.SREEDHARAN (SR.) SRI.V.P.NARAYANAN FOR THE RESPONDENT : SRI.JOSE JOSEPH ORDER Anil K.Narendran, J. This review petition is one filed by the GCDA Employees' Pension Fund Trust (for brevity, 'the assessee trust'), under Order XLVII of Rule 1 of the Code of Civil Procedure, 1908, seeking review of the judgment of this Court dated 08.10.2014 in ITA No.131 of 2014. 2. Heard the learned Senior counsel for the petitioner and also the learned Standing Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity. In paragraph 5 of Annexure D order, the Tribunal noticed that, it is not in dispute that the assessee trust was established by the GCDA, a statutory authority established under a State enactment, for providing pension to its employees, who retired from service. It is well settled principles of law that pension is not a charity. The Government is not doing any charity by paying pension to the retired employees. Payment of pension is nothing but a deferred payment of salary for the work done by the employees. 6. The Tribunal in Annexure D order opined that the fund/trust established by the GCDA for paying pension to its employees, who retired from service cannot be a charitable activity. Instead of paying pension directly to the employees who retired from service, the assessee trust has been established for paying pension. Therefore, the character of payment remains the same. Pension is paid due to the statutory obligation as per the service rules. Hence, it cannot be construed as a public utility as contended by the assessee trust. In view of the above, the Tribunal by Annexure D order rejected the appeal, holding that the assessee trust is not entitled for a registr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r registration depends upon the object of each of those trusts. The objects of those trusts are not before this Court. In such circumstances, the said list cannot be relied on. Therefore, in the judgment sought to be reviewed, this Court found no reason to disagree with the view taken by the Income Tax Appellate Tribunal in Annexure D order. 10. In the review petition, it is contended that, the employees are not making any contributions towards Pension Fund and the entire amount towards Pension Fund is contributed by the GCDA. However, in the judgment sought to be reviewed, this Court proceeded on the assumption that the employees of the GCDA are contributing and from out of that contribution, the employees and their dependants are getting pension. The above erroneous finding has resulted in the dismissal of ITA No.131 of 2014, which would constitute a mistake apparent from the record, coming within the purview of review jurisdiction under Order XLVII of Rule 1 of the Code of Civil Procedure, 1908. 11. The learned Senior Counsel for the assessee trust would reiterate that, even if the distribution of pension is to the employees of the GCDA, that activity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, 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. As per the second proviso to clause (15) of Section 2, the first proviso shall not apply if the aggregate value of the receipts from the activities referred to therein is twenty-five lakh rupees or less in the previous year. 15. The first and second provisos to clause (15) of Section 2 of the Income Tax Act was substituted by the Finance Act, 2015 with effect from 01.04.2016. After the amendment, the proviso to clause (15) of Section 2 provides 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 othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount, having regard to service and other allied matters, that it may be necessary for the authority to pass an order to that effect, but the right to receive pension flows to the Government servant not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh [(1976) 2 SCC 1]. 19. Payment of pension to the retired employees of the GCDA, in discharge of the statutory obligation under Part III of the Kerala Service Rules, is not a charity or bounty nor is it a conditional payment solely dependent on the sweet will of the GCDA. Therefore, the question whether the contribution towards Pension Fund is made by the employees or by the employer, i.e., the GCDA, has no relevance while considering an application for registration under Section 12AA of the Income-tax Act, subject to the conditions in Section 12A, read wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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