9911796707
TMI Blog2025 (3) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of assessee also contained objects other than educational activities. CIT(A) relied on the order of Shree Ahmedabad Lohana Vidyarthi Bhavan [2018 (7) TMI 1084 - ITAT AHMEDABAD] wherein it was held that where providing hostel facility to students is an essential component of education institution and also an aid for attaining educational object, said activity would fall under purview of 'education' as provided u/s 2(15) of the Act. Hon'ble Supreme Court of India in the case of Ahmedabad Urban Development Authority [2022 (11) TMI 255 - SUPREME COURT] held that a charitable organisation cannot be engaged in any trade, commerce or business, or provide services in relation thereto for any consideration unless such commercial activity is incidental to the main object of GPU and is also within the monetary threshold of up to 20% of its total receipts, as prescribed under section 2(15) of the IT Act. To ascertain whether an activity would constitute "trade, commerce or business", the Hon'ble Apex Court clarified that it would depend on the cost at which the services are availed and the price at which they are provided by the institution to its beneficiaries. Based on the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances of the case, Ld. CIT(A) has erred in allowing the exemption under section 10(23C)(vi) of the Income tax Act, 1961 when one of the objectives as per Trust Deed is. "The establisher of the institute Swami Shri Hariprasaddasji is one of the great saints, who has given up his life for social services. His main aim of life is to prepare group of saint and social workers, so the students and saint-gentleman who wants to join this group, their liability should be taken over by the institute." is not solely for the purpose of education and as per details of activities filed by the assessee before Assessing Officer during assessment proceedings it is clear that assessee is also involved in other charitable activities." 2. The brief facts of the case are that the Assessee is a Trust stated to be engaged in carrying out educational activities. The Assessee filed its Return of Income for the A.Y. 2018-19 on 30.10.2018, declaring total income at Nil, after claiming exemption under section 10(23C)(vi) for income of Rs. 17,86,23,269/- during the year. The assessment was completed under section 143(3) read with section 143(3A) and 143(3B) of the Act on 25.03.2021, wherein the total inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hostels separately for other students has to be considered as a separate activity in the nature of business outside the purview of section 10(23C)(vi) of the Act. 6. On the other hand, Ld. Counsel for the assessee submitted that the assessee-trust is carrying on activity of providing education as per its objectives, and it is still holding a valid certificate u/s 10(23C)(vi) of the Act. He also submitted that the trust is also holding Registration Certificate u/s 12A of the Act. He argued that the education activities are charitable activities which includes providing, promotion, propagation, disbursement of knowledge and all such activities which aids or supports such activity. He also submitted that the income earned from the student hostels are spent for or applied for promotion of education which fact was not even disputed by the Assessing Officer. He thus submitted that the rejection of claim for exemption u/s 10(23C)(vi) of the Act is incorrect and appeal of the Revenue is liable to be dismissed. The Ld. AR submitted that the word charitable includes education and providing pre-primary education is also an education and there is no dispute that Assessee Trust is providing e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (girls and boys) during the year under consideration. He also submitted a comparative chart of the fees for providing hostel facilities which are lower than market rates charged by Hotels or commercial establishments, as under:- Rates of Hostel: Assessee Trust Average Rate charged Per Day Per Month (a) For Girls Hostel Rs. 370 Rs. 11,167 (b) Boys Hostel Rs. 430 Rs. 13,000 Rates charged by others : Fountain Grand Rs. 990 Rs. 30,000 Vishram Hotel Rs. 900 Rs. 27,000 Shreenath Hotel Rs. 950 Rs. 28,500 6.2 From the other table it will be noticed that Hostel fees charged by the Assessee Trust is very reasonable and is charitable as compared to charges of Commercial entities. Thus, the Hostel fees received by the Trust being very low, the activities carried on by the Assessee is not commercial and is charitable. Thus, activities are not commercial activities as assumed by the deemed Officer without bringing on record any material to show that fees charged are very high and/or at market rates. The Ld. AR also argued that even if it is considered as activity incidental to or ancillary activity of providing Hostel facilities to students studying in or getting Primary / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en of 6 years and above. Hence the hostellers are different from the pre-primary children. * The assessee submitted that the Assessing Officer has assessed total income of Rs. 6.21 crores being surplus of income and expenditure account which is not in dispute. * It is not in dispute that assessee provides free education to tribal children. It is also not in dispute that the assessee is providing hostel accommodation to the non-students, i.e. the students of other institutes. * Hence, it can be clearly held that the assessee is not providing the facility of education and integrated hostel to their students. * The rates charged by the assessee for girls hostel was Rs. 370/- per day and boys hostel was Rs. 430/- per day. * We find minimum wages in Gujarat in the year 2018-19 was Rs. 329.20 for skilled Rs. 320/- for semi-skilled and Rs. 312/- for the unskilled workers. * Thus, we find that the hostel charged by the assessee from their non-students was more than the minimum wages, which only proves that the assessee is operating hostels to the poor students not on a charitable basis but running hostels on commercial terms. 8.1 We have also gone through the various judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT(A) has also relied on the judgement of Hon'ble Supreme Court in the case of CCIT Vs St Peter's Educational Society (2016) (70 taxmann.com 171)(SC), wherein it was held that where a surplus was made by educational institution which was ploughed back for educational purposes, said institution was to be held to be existed solely for educational purpose and not for purpose of profit. 8.6 We have gone through the recent judgment of the Hon'ble Apex Court in case of ACIT (Exemption) vs. Ahmedabad Urban Development Authority [2022] 144 taxmann.com 78 (SC) on the issue of General Public Utility, Charitable Purpose along with the provisions of Section 10(23C)(vi) of the Act. The said provisions read as under:- (vi) any university or other educational institution existing solely for educational purposes and not for purposes of profit, other than those mentioned in sub-clause (iiiab) or sub-clause (iiiad) and which may be approved by the [Principal Commissioner or Commissioner]; or Sub-clause (iiiab) reads as under:- (iiiab) any university or other educational institution existing solely for educational purposes and not for purposes of profit, and which is wholly or substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commerce or business", the Hon'ble Apex Court clarified that it would depend on the cost at which the services are availed and the price at which they are provided by the institution to its beneficiaries. 8.8 Section 2(15) of the Income-Tax Act defines charitable purpose to include, the advancement of any other object of GPU. The proviso to section 2(15) of the Act provides that such advancement of object of GPU would not be considered charitable, if an institution is engaged in trade, commerce or business, or provides any service relating to trade, commerce or business for which a cess or fee or any other consideration is received. The charitable institutions submitted that even if their proposed activity is not the predominant object of the GPU, any incidental involvement in such activities should be considered favourably. Nevertheless, the Hon'ble Apex Court held that instead of looking at the predominant object, an analysis of the nature of activities undertaken by the charitable organisation must be made to ascertain whether or not they were intrinsically linked to GPU and in order to qualify as a charitable organisation engaged in GPU, such activities should be conducted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e educational institution to record profits and gains of business, which is incidental to the attainment of its objectives. Since the educational institution solely exists for the purpose of education, the activity must be interpreted as related to education and educational activities. The Hon'ble Apex Court observed that activities incidental to providing education could include providing textbooks, hostel, bus facilities for their students, or organising educational camps. However, activities like renting out the premises for external events would not qualify as activities incidental to education. Hence, based on the facts of the case, we hold that :- * Providing education is a charitable activity. * Providing hostel facility to the students of the school providing education is a charitable activity. The provision of hostels to the students in an integrated manner is a charitable activity. * Running hostels for students separately on a commercial basis is a business activity. 8.11 The Hon'ble Apex Court held that where "fee, cess or other consideration" is statutorily fixed or where it represents recoupment of cost or cost with nominal mark up, the activity may not be con ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
