We summaries below some important decisions taken by Banglore ITAT in the case of Dy Dir of IT (Exempt.), Circle 17(2), Banglore vs Ohio University Christ College, Academy for Management Education [2015(12) TMI 42- ITAT Banglore].
Academy for Management Education whose objects are provision of higher studies, offers MBA courses in Banglore. It has entered into an arrangement with Ohio University, USA, under which Ohio university sends its faculty for teaching Academy’s students in India for which the Academy pays fees to the Ohio University. Tax authorities raised several objections during the assessment.
- Payments made outside India
Payment made to Ohio University, being outside India cannot be considered as application for charitable purposes in India. Tribunal held that even if payments are made outside India, as long as the benefit of those payments is for the charitable purpose in India, it would be treated application in India. It relied on several judgments, including Nasscom v DDIT [130 TTJ 377 (Del)]. It stated that S. 11(1)(a) of the Act clearly shows that the words used are ‘is applied to such purpose in India’. The words are not ‘is applied in India’. The fact that the legislature has put the words “to such purpose” between ‘is applied’ and ‘in India’ shows that the application of the Income need not be in India, but the application of funds should result and should be for the purpose of charitable and religious purpose in India.
- Specific CBDT approval required for application of Income outside India
Tax authorities also had made an argument that the Trust should apply for specific approval if it wanted to apply funds outside India. Although the Tribunal allowed application of income outside India as long as it was for the charitable purposes in India, however it went on to state that specifc exemption from CBDT is ‘..specified only for those trusts that have as its objects, the promotion of international welfare….’ [lesson learnt, all those trusts which aspire to work outside India, please include an appropriate clause in your memorandums, so that you can work outside India as be objects of trust]
- Liabilities not paid within the year are not application
Tax authorities disallowed liabilities debited to Income & Expenditure account as not an application for charitable purposes, since these are merely credit entries. Tribunal disagreed with authorities contention. In their argument they relied on AP High Court’s decision HEH Nizam’s Charitable Trust, quoting ‘……We agree with the Tribunal that it is not correct to equate the word ‘applied’ with the word ‘spent’. If the legislature intended that the amounts should actually be spent, there was nothing preventing it from using that word.…..The Tribunal was right in holding that the actual payment is irrelevant for purposes of finding out whether there has been an application of the funds…’
It further added ‘Even where income has been earmarked and allocated for the purpose of carrying out the objects of the institution, it might be deemed to be applied for that purpose.’ [CIT v Radhaswami Satsang Sabha, CIT v Thanthi Trust]
- Loss on account of foreign exchange fluctuation
Loss on account of foreign exchange fluctuation arises on account of amount to be agreed to be paid in USD to Ohio University. Since the Tribunal already considered such expenditure to be treated as application any related cost on account of the said expenditure also needs to be treated as application. Accordingly loss on account of foreign exchange fluctuation was allowed by Tribunal to be treated as application of income.
- Proper reasons not given for accumulation of Income
Assessing Officer disallowed accumulation of Income as Form 10 did not give specific reasons for accumulation. Trust had stated the purpose of accumulation of income in Form No. 10, as purchase of fixed assets and fulfillment of the objects of the trust. Karnataka High Court in a case [DIT v Envisions (2015)] held that as long as the objects of trust are charitable in character and purposes mentioned in Form No. 10 are for achieving the objects of the Trust, merely because the details about plan of such expenditure has not been given, it would not be sufficient ground to deny the benefit.
It is hoped that the above decision of Banglore Tribunal will be of utility to the SRRF Dialogue members, who may be facing similar situations.
Socio Research & Reform Foundation (NGO)
512 A, Deepshikha, 8 Rajendra Place, New Delhi – 110008