9/25/2015 Apollo Hospital Educational ...

vs Department Of Income Tax on 5 February, 2013

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Cites 18 docs ­ [View All]
Section 11 in The Income­ Tax Act, 1995
Section 12 in The Income­ Tax Act, 1995
Commissioner Of Income­Tax, ... vs Society Of The Sisters Of St. Anne on 26 August, 1983
Commissioner Of Income Tax vs Sheth Manilal Ranchhoddas ... on 26 February, 1992
Section 11(1)(a) in The Income­ Tax Act, 1995

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Income Tax Appellate Tribunal ­ Chennai application of income
Apollo Hospital Educational ... vs Department Of Income Tax on 5 February, capital expenditure
2013 trust property
security deposit
IN THE INCOME TAX APPELLATE TRIBUNAL revised return
"B" BENCH, CHENNAI apollo hospitals
manilal
BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER charitable trusts
AND SHRI V. DURGA RAO, JUDICIAL MEMBER karnatka high court
v high court
p. a. george
george
I.T.A. No. 2090/Mds/2012
ranchhoddas
(Assessment Year : 2008‐09)
abraham

M/s Apollo Hospitals

Educational Trust, The Deputy Director of
No.21, Greams Lane, v. Income Tax (Exemptions ‐ I),
Off Greams Road, Chennai ‐ 600 034.
Chennai ‐ 600 006.

PAN : AAATA 7077 M

(Appellant) (Respondent)

I.T.A. No. 2172/Mds/2012

(Assessment Year : 2008‐09)

M/s Apollo Hospitals Educational

The Deputy Director of Trust,
Income Tax (Exemptions ‐ I), v. No.21, Greams Lane,
Chennai ‐ 600 034. Off Greams Road,
Chennai ‐ 600 006.
(Appellant) (Respondent)

Assessee by : Shri T. Banusekar, CA

Revenue by : Dr. S. Moharana, CIT‐DR

Date of Hearing : 05.02.2013

Date of Pronouncement : 21.02.2013
2 I.T.A. No. 2090/Mds/12
I.T.A. No. 2172/Mds/12

O R D E R

PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER :

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These are appeals filed by the assessee and Revenue respectively, directed against an order dated
22.8.2012 of Commissioner of Income Tax (Appeals)­XII, Chennai.

2. Assessee's appeal is delayed by one day. Assessee has filed a condonation petition. Reasonable
cause has been shown in the said petition. Hence, delay is condoned and appeal of the assessee
admitted.

3. Assessee has raised three issues in its appeal. First one is that capital expenditure incurred out
of borrowed funds was held not to be an application of income. Second is that depreciation was
not considered as application of income. Third one is that excess application of earlier years were
not allowed for set off against income of the impugned assessment year. There is one other
ground which is against levy of interest under Section 234B of Income­tax Act, 1961 (in short 'the
Act'). On the other hand, Revenue in its cross­appeal is aggrieved on the directions of the
CIT(Appeals) to consider investment of ` 4 Crores by way of security with University I.T.A. No.
2172/Mds/12 of Health Sciences, as an application of income. As per the Revenue, fresh evidence
were admitted by the CIT(Appeals) on this issue without granting the Assessing Officer an
opportunity to offer his comments.

4. Facts apropos are that assessee is a Trust registered under Section 12AA of the Act. It had filed
its return for the impugned assessment year admitting NIL income against gross receipts of `
6,82,56,876/­, which was claimed as exempt under Section 11 of the Act. Assessee had claimed
acquisition of fixed assets to be application of income. Nevertheless, assessee during the course of
assessment proceedings withdrew its claim for depreciation on fixed assets.

5. Assessing Officer found that assessee had taken a loan of ` 11,76,70,801/­ from M/s Apollo
Hospitals Enterprises Ltd. and ` 3.27 lakhs from M/s Indian Bank aggregating to `
15,03,70,801/­. As per the Assessing Officer, assessee had claimed as application cost of fixed
assets ` 12,85,43,524/­ purchased during the relevant previous year. Assessing Officer was of the
opinion that the said purchases were only out of the loans mentioned above. According to A.O.,
I.T.A. No. 2172/Mds/12 assessee was required to spend 85% of the income of the Trust for
charitable activities. As per the A.O., spending from loan could not be considered as application
of income.

6. Assessee was put on notice, whereupon it replied that Hon'ble Gujarat High Court in the case
of Satya Vijay Patel Hindu Dharamshala Trust v. CIT (86 ITR 683) had held cost of assets
purchased, out of excess income of earlier years and loan obtained during the current year, to be
application of income. Reliance was also placed on the decision of Hon'ble jurisdictional High
Court in the case of CIT v. Kannika Parameswari Devasthanam and Charities (133 ITR 779) for its
submission that expenditure, even if incurred for capital purposes, if it was for objects of the
Trust, would still be exempt.

7. However, Assessing Officer was not impressed. According to him, loan obtained by the assessee
could not be equated with income received from property held under Trust. He, therefore, held
that purchase of asset for ` 12,85,43,524/­ could not be considered as application of income. At
this point, assessee raised an alternative contention that excess of application over income of the
earlier years I.T.A. No. 2172/Mds/12 had to be allowed for set off against income of the current
year. This plea also was not accepted by the Assessing Officer for a reason that it was not made
through a revised return. According to him, a fresh claim could not be entertained in view of the
decision of Hon'ble Apex Court in the case of Goetze (India) Ltd. v. CIT (284 ITR 323). He,
therefore, computed the income of the assessee by taking revenue expenditure alone as
application of income. Shortfall in application was considered as income of the assessee and
taxed accordingly.

8. In its appeal before CIT(Appeals), argument of the assessee was that its income was totally
applied for the objects and at least a part of the capital expenditure was not met out of borrowed
funds. As per the assessee, a sum of ` 4 Crores out of borrowed funds, was used for making a
fixed deposit which was given as security to University of Health Sciences for opening new
colleges. With regard to the disallowance of depreciation, claim of the assessee was that
depreciation on fixed assets had to be considered while working out the application of income, in
view of the decision of Hon'ble jurisdictional High Court in the case of CIT v. Rao Bahadur

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Calavala Cunnan Chetty Charities (135 ITR 485), that of Hon'ble Gujarat High Court in the case
of CIT v. Sheth Manilal Ranchondas (198 ITR 598) I.T.A. No. 2172/Mds/12 and that of Hon'ble
Karnataka High Court in the case of CIT v. Society of the Sisters of St. Anne (146 ITR 28). A
ground was also raised by the assessee with regard to disallowance of claim of set off of excess
expenditure of earlier years.

9. Ld. CIT(Appeals), after considering the submission of the assessee held that ` 4 Crores, out of
borrowed funds of ` 11,76,70,801/­ was straight away used for giving security deposit to
University of Health Sciences. As per ld. CIT(Appeals), such amount was therefore not used for
any capital expenditure. He, therefore, held that the said sum could be considered as application
of income for the impugned assessment year, being not in the nature of capital expenditure. Ld.
CIT(Appeals) further held that once the said sum of ` 4 Crores was excluded from total loan of `
15,03,70,801/­, the balance of loan, which could be considered as deployed for acquiring fixed
assets, was only ` 11,03,70,801/­. Once this sum was deducted from total capital expenditure of `
12,85,43,524/­, as per ld. CIT(Appeals), resultant figure of ` 1,81,72,723/­ would have gone out of
the income of the Trust only and not out of loan. The said amount, as per ld. CIT(Appeals), could
be considered as application of income of relevant previous year and if this sum was aggregated
with the I.T.A. No. 2172/Mds/12 revenue expenditure of ` 4,38,35,499/­ considered by the
Assessing Officer, total application exceeded 85% of the gross receipts. Since on exclusion of ` 4
Crores from the total borrowed funds, its utilization went by 85% of gross receipts as per the ld.
CIT(Appeals), assessee complied with condition set out in Section 11(1)(a). In this view of the
matter, as per the ld. CIT(Appeals), assessee could claim exemption under Sections 11 and 12 of
the Act. Having given a finding that assessee had satisfied conditions set out in Section 11(1), ld.
CIT(Appeals) chose not to decide on the claim of the assessee that excess expenditure of earlier
years had to be brought forward and allowed for set off. Nevertheless, with regard to issue of
depreciation, ld. CIT(Appeals) upheld the view taken by the A.O.

10. Now before us, learned A.R., strongly assailing the order of CIT(Appeals), submitted that even
if fixed assets were acquired out of loan funds, the cost of acquisition could still be considered as
application of income. According to him, loan funds were not directly used for acquisition of
capital assets. Loan funds had gone out of a common kitty and it was from such common kitty,
payments were made for acquiring capital assets. As per learned A.R., once the amounts had gone
out of a common kitty, it could not be stated that I.T.A. No. 2172/Mds/12 loan funds alone were
used for acquiring capital assets. On the other hand, the presumption that ought be taken is that
assessee's own funds were first used for acquiring capital asset and loan funds were utilized for
meeting the deficiency only. Once the sum of ` 4 Crores used for making security deposit was
excluded, then it was obvious that loan funds were not sufficient to meet the capital expenditure.
At least a sum of ` 1,81,72,723/­ used for acquiring fixed assets came out of the receipts of the
impugned assessment year, and therefore, was a part of application.

11. Continuing his arguments, learned A.R. submitted that whether money which was utilized had
come out of borrowed or own funds was irrelevant. Only relevant question was whether
utilization was for the purpose of objectives of the Trust. None of the authorities below had
disputed this. Acquisition of fixed assets was only for the purpose of Trust. In any case, according
to him, the deficit of earlier years ought have been allowed for set off with current year's income,
if any. For his argument that loan funds utilized for acquiring fixed assets could also be
considered for working out application of income, learned A.R. relied on the decision of Hon'ble
Gujarat High Court in the case of Satya Vijay Patel Hindu Dharamshala Trust I.T.A. No.
2172/Mds/12 (supra). According to him, in the said case, there was an expenditure of ` 61,141.53
for constructing a new Dharmasala, which was met out of an interest­free loan of ` 17,000/­,
surplus income of ` 31,541.26, realization of outstanding loan of ` 8000/­, recovery of some
outstanding rent and a part from cash and bank balance. Despite this, Hon'ble Gujarat High
Court had held that the expenditure incurred in constructing Dharmashala was application for
the purpose of Trust, and had to be considered as part of its utilization. For his contention that
excess of expenditure incurred in earlier years had to be brought forward and income of the Trust
was to be arrived at based on commercial principles, learned A.R. relied on the decision of
Hon'ble jurisdictional High Court in the case of Govindu Naicker Estate v. ADIT (248 ITR 368)
and that of Hon'ble Delhi High Court in the case of DIT v. Raghuvanshi Charitable Trust & Others
(2010) 44 DTR 223. Reliance was also placed in this regard on the decision of Hon'ble Gujarat

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High Court in the case of CIT v. Shri Plot Swetamber Murti Pujak Jain Mandal (211 ITR 293) and
that of Hon'ble Rajasthan High Court in the case of CIT v. Maharana of Mewar Charitable
Foundation (164 ITR 439).

I.T.A. No. 2172/Mds/12

12. Adverting to the claim of depreciation, learned A.R. submitted that depreciation was a part of
utilization and had to be considered while computing the application of income of the Trust.
According to him, this was the view taken by Hon'ble Punjab & Haryana High Court in the case of
CIT v. Market Committee, Pipli (330 ITR 16), Hon'ble Delhi High Court in the case of DIT v.
Vishwa Jagriti Mission in ITA No.140/2012 dated 29th March, 2012, Hon'ble Karnataka High
Court in the case of CIT v. Society of the Sisters of St. Anne (146 ITR

28), Hon'ble Calcutta High Court in the case of CIT v. Bhoruka Public Welfare Trust (240 ITR
513) and by Hon'ble Gujarat High Court in the case of CIT v. Sheth Manilal Ranchhoddas
Bishram Bhavan Trust (198 ITR 598).

13. Per contra, learned D.R. submitted that insofar as depreciation claim was concerned, Hon'ble
Kerala High Court in the case of Lissie Medical Institutions v. CIT (2012) 24 Taxmann 9 had held
that once expenditure on acquisition of assets were considered as application of income,
depreciation thereon could not again be considered as application for charitable purposes.
Further, according to him, assessee had itself withdrawn the claim of depreciation before the
Assessing Officer and could not now turn back. Learned D.R. further I.T.A. No. 2172/Mds/12
submitted that loan amounts were directly used for acquiring fixed assets and therefore, could
not be considered as utilization of income for the relevant previous year.

14. In support of Revenue's cross­appeal, learned D.R. submitted that ld. CIT(Appeals) had
accepted the treatment of ` 4 Crores utilized for placing security deposit, as application of
income, considering fresh evidence without putting it to the Assessing Officer. Assessee had not
placed such evidence before the Assessing Officer at all. Further, according to him, CIT(Appeals)
fell in error when he considered such outgo to be Revenue in nature, when admittedly it was only
a fixed deposit given as security. In any case, according to him, once assessee had expended large
sums out of loans taken, that too for acquiring fixed assets, the same amounts could not again be
considered as application of income of the assessee. Reliance was placed on Circular No.100
dated 24th January, 1973 of CBDT which, according to him, considered repayment of loans as
application of income. If repayment of loan were application of income, then, according to him,
deployment of loan also could not be taken as application of income. As for the claim of assessee
that earlier year's excess expenditure ought have been allowed for setting I.T.A. No. 2172/Mds/12
off, learned D.R. submitted that no revised return was filed by the assessee and Assessing Officer
could not give such a relief without a revised return.

15. We have perused the orders and heard the rival submissions. Issues in this appeal are ­

(i) Whether loan taken was utilized for acquiring fixed assets and if so, utilized could it
still be considered as application of income of the assessee?

(ii) Whether sum of ` 4 Crores placed by the assessee as security with M/s University
of Health Sciences can be not considered as capital outgo and if it is not a capital
outgo, whether it can be considered as application of income.

(iii) Whether claim of depreciation can be considered as application of income.

(iv) Whether in computing the income of a charitable Trust, set off of excess
expenditure of earlier years could be given even where there is no such claim in the
return.

Taking up the first question, without doubt, assessee had loans of ` 15,03,70,801/­ raised during
the relevant previous year. As per Assessing Officer, assessee had also acquired fixed assets of `
12,85,43,524/­ out of the above. Fixed assets schedule filed by the assessee along with its
statement of total income, copy of which has been filed before us by learned A.R., clearly reflects
acquisition of its I.T.A. No. 2172/Mds/12 assets to the tune of ` 12,85,43,524/­. Claim of the

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assessee is that loan raised had gone into a common kitty and therefore, cost of acquisition of
assets had gone out of common kitty. In other words, according to assessee, once the payments
were made out of common kitty, it could only be considered as utilization of income. Gross
receipts of the assessee for the relevant previous year came to ` 6,82,56,876/­. Assessing Officer
had started his computation therefrom. The whole of sum of gross receipts were fees and
collections. Assessee had also started its computation from the sum of ` 6,82,56,876/­. However,
assessee considered the sum of ` 12,85,43,524/­ used for acquiring fixed assets, as a part of
utilization of the above receipts, whereas, the A.O. did not accept this contention. Requirement
for claiming exemption under Sections 11 and 12, is specified under Section 11(1)(a), which is
reproduced hereunder:­

"11 (1) Subject to the provisions of sections 60 to 63, the following income shall not be
included in the total income of the previous year of the person in receipt of the
income­

(a) Income derived from property held under trust wholly for charitable or religious
purposes, to the extent to which such income is applied to such purposes in India;
and, where any such income is accumulated or set apart for application I.T.A. No.
2172/Mds/12 to such purposes in India, to the extent to which the income so
accumulated or set apart is not in excess of fifteen per cent of the income from such
property;"

16. Income derived from property held under trust is exempt only to the extent it is applied for
the avowed purposes or set apart for such purposes within a limit of 15% of such income. It is very
clear from the above that if the income derived from property held under trust is to be exempt or
is not to be included in the total income, then such income has to be applied for the purposes of
the trust. Loan raised from a bank or any person for that matter, is never income derived from the
property held under trust. Utilization of such loan will also be not an application of income
derived from property held under trust. Utilization of loan will be application of loan raised and
not application of income of the trust. It might be true that loan of ` 15,03,70,801/­ raised had
gone into a common kitty. But, the fact remains that out of the sums in the common kitty, atleast
` 15,03,70,801/­ were loans and not income derived from property held under trust. As long as
common kitty contained loans, sums utilized from such common kitty, at least to the extent of the
loan, will be utilization of such loans, unless there remained substantial surplus in such common
kitty. Contention of the assessee that once loan had gone into common I.T.A. No. 2172/Mds/12
kitty, a presumption has to be taken that money expended for acquiring capital asset had first
gone out of own funds and then out of loan funds, cannot be accepted. This is for a reason that
there is no such demarcation possible once the amounts are in a common fund. There is no case
for the assessee that the loans remained intact without utilization at the end of the relevant
previous year. The loans were indeed used during the relevant previous year. Balance sheet of the
assessee shows a bank balance of ` 1,80,56,480/­ and cash­ in­hand of ` 2,83,232/­ only. Even
presuming that whole of such balances represented loans, still a substantial part of the loans
stood expended during the relevant previous year.

17. Now taking a look at Circular No.100 dated 24th January, 1973 of CBDT, it reads as under:­

"Sec.11 of the I.T. Act requires 100 per cent of the income of a charitable and religious
trust to be applied for religious and charitable purposes to be entitled to the
exemption under the said section. Two questions have been considered regarding the
application of income:

(i) Where a trust incurs a debt for the purposes of the trust, whether the repayment of
the debt would amount to an application of the income for the purposes of the trust?
and

(ii) Whether loans advanced by an educational trust to students for higher studies
would be treated as application of income for charitable purposes?

I.T.A. No. 2172/Mds/12

2. Board has decided that repayment of the loan originally taken to fulfill one of the

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objects of the trust will amount to an application of the income for charitable and
religious purposes. As regards the loans advanced for higher studies, if the only object
of the trust is to give interest­bearing loans for higher studies, it will amount to
carrying on of money­lending business. If, however, the object of the trust is
advancement of education and granting of scholarship loans as only one of the
activities carried on for the fulfilment of the objectives of the trust, granting of loans,
even interest­bearing, will amount to application of income for charitable purposes. As
and when the loan is returned to the trust, it will be treated as income of that year."

The circular clearly stated that repayment of loan can be considered as utilization for application
for religious and charitable purposes. Hence, if we allow the loan amount utilized for acquiring
fixed assets also as utilization of income derived from property held under Trust, then the result
will be double allowance of the same amount. First, when the loan is utilized for acquiring the
capital asset and second, when the loan itself is repaid. This will give rise to piquant situation,
whereby same amount is considered as utilized twice, and such an illogical interpretation, in our
opinion, cannot be given.

18. Now, we have to consider the argument of the assessee that out of the loans of `
15,03,70,801/­, a sum of ` 4 Crores was directly used for placing deposits offered as security with
University of Health I.T.A. No. 2172/Mds/12 Sciences. If that be so, without doubt, said sum of `
4 Crores was not used in acquisition of fixed assets of ` 12,85,43,524/­. The sum, if it was placed
deposit with the said University of Health Sciences for the purpose of starting new colleges, then
of course, there is some strength in the argument of the assessee that it was only an application of
income and did not result in acquisition of any fixed assets. However, we find merit in the
contention of learned D.R. that evidence produced by the assessee before CIT(Appeals) in this
regard was never before the Assessing Officer.

19. Coming to the decision of Hon'ble Gujarat High Court in the case of Satya Vijay Patel Hindu
Dharmashala Trust (supra), whole of the surplus income of the Trust was used for construction of
Dharmashala and it was because of this reason that their Lordship held, utilization of loans
borrowed also as application of income derived from property held under trust.

20. Coming to the question whether depreciation can be allowed as application of income derived
from property held under Trust, we are of the opinion that decisions of various High Courts,
namely, that of Hon'ble Punjab & Haryana High Court in the case of Market I.T.A. No.
2172/Mds/12 Committee, Pipli (supra), that of Hon'ble Karnataka High Court in the case of
Society of the Sisters of St. Anne (supra), that of Hon'ble Calcutta High Court in the case of
Bhoruka Public Welfare Trust (supra) and that of Sheth Manilal Ranchhoddas Bishram Bhavan
Trust (supra), are all in favour of the assessee. In these decisions, it was held that while
computing the income of the Trust, commercial principle had to be followed and depreciation
had to be allowed. No doubt, Hon'ble Kerala High Court has taken different view in the case of
Lissie Medical Institutions (supra). Nevertheless, till such time, Hon'ble jurisdictional High Court
has given its mind on the issue, assessee will be free to press its claim and we will have to follow
those decisions in favour of assessee. Therefore, depreciation has to be considered as an
application of income derived from property held under Trust. However, we hasten to add that all
the above decisions require working out income of a Trust based on commercial principles, and
this obviously imply that loans taken by an assessee cannot be considered as expenditure
incurred in a revenue field, especially when such loans were utilized for acquiring fixed assets.

21. As to the claim of the assessee that excess expenditure of earlier years had to be allowed for
carry forward and set off, we are of I.T.A. No. 2172/Mds/12 the opinion that the decision of
Hon'ble Gujarat High Court in the case of Sheth Manilal Ranchhoddas Bishram Bhavan Trust
(supra) is clearly in its favour. It was held by their Lordship that a Trust was entitled to set off the
amount of excess application of income of prior years against deficiency of current year. The same
view was taken by their Lordship in the case of Govindu Naicker Estate (supra) also. No doubt,
assessee did not make such a claim before Assessing Officer in the return of income. However, in
our opinion, Assessing Officer was duty bound to consider such a claim even without a revised
return for the simple reason that assessee had no occasion to make such a claim in the original
return, since it was under a bonafide impression that its income would be exempt under Sections

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11 and 12 of the Act, even without such a set off. In other words, in computation of assessee, there
was no surplus left for effecting a set off. As held by Hon'ble Apex Court in Goetze (India) Ltd.
(supra), appellate authorities are having the power to consider such a claim even if it was raised
before it for the first time. Therefore, we are of the opinion that the claim of the assessee ought
have been entertained if such claim was found factually correct.

I.T.A. No. 2172/Mds/12

22. Based on the above discussion, we answer the questions raised as under:­

(i) Loans used for the purpose of acquiring fixed assets cannot be considered as
income derived from property held under Trust applied for the purpose of Trust.

(ii) Loan amounts directly used for placing deposit as security with University of
Health Sciences, cannot be considered as expended for acquiring fixed assets, but will
have to be considered as applied for the purpose of Trust. However, this requires
verification by the A.O.

(iii) Depreciation claimed by the assessee had to be allowed while computing income
derived from property applied for the purpose of Trust.

(iv) Assessee was entitled to claim carry forward of excess expenditure, if it was so
determined for earlier years, for setting of against the income of the impugned
assessment year.

23. Before parting with we will be failing in our duty if we do not point out something which is
pregnant in the Income And Expenditure Account filed by the assessee. None of the expenditure
claimed has any element of charity at all. Assessee was collecting fees from students, such
collections coming to ` 6,82,56,876/­, and running a nursing school which resulted in a surplus
income. In our opinion, there was no charity in such activities. Nevertheless, all the lower
authorities accepted the claim of the assessee that expenditure I.T.A. No. 2172/Mds/12 incurred
was for charitable purpose and it was eligible for exemption under Sections 11 and 12 of the Act,
leaving us with no lee­way to decide on this aspect.

24. With above observation, we set aside the orders of authorities below and remit the issues back
to the file of A.O. for consideration afresh in accordance with law and based on the answers given
by us to the questions raised in this appeal.

22. In the result, appeal of the assessee is partly allowed, whereas, that of the Revenue is allowed
for statistical purposes. Order was pronounced in the Court on Thursday, the 21st of February,
2013, at Chennai.

sd/‐ sd/‐
(V.Durga Rao) (Abraham P. George)
Judicial Member Accountant Member

Chennai,
Dated the 21st February, 2013.

Kri.

Copy to: Assessee/Assessing Officer/CIT(A)‐XII, Chennai‐34/

DIT(E), Chennai/D.R./Guard file

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