ITO (E), New Delhi v. Dharamshila Cance Faoundation and Research Centre,, New Delhi

ITA 4684/DEL/2009 | 2006-2007
Pronouncement Date: 19-02-2010 | Result: Dismissed

Appeal Details

RSA Number 468420114 RSA 2009
Bench Delhi
Appeal Number ITA 4684/DEL/2009
Duration Of Justice 2 month(s) 8 day(s)
Appellant ITO (E), New Delhi
Respondent Dharamshila Cance Faoundation and Research Centre,, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 19-02-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 19-02-2010
Date Of Final Hearing 11-02-2010
Next Hearing Date 11-02-2010
Assessment Year 2006-2007
Appeal Filed On 11-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : B NEW DELHI BEFORE SHRI RAJPAL YADAV JUDICIAL MEMEBR AND SHRI R.C. SHARMA ACCOUNTANT MEMBER I.T.A NO. 4684/DEL/09 ASSESSMENT YEAR 2006-07 INCOME TAX OFFICER (E) TRUST WARD-III LAXMI NAGAR DISTT. CENTRE DELHI. VS. DHARAMSHILA CANCER FOUNDATION AND RESEARCH CENTRE VASUNDHARA ENCLAVE NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANISH GUPTA SR. DR RESPONDENT BY : SHRI SANJEEV JAIN CA ORDER PER RAJPAL YADAV JM: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF LD. CIT(A) DATED 30 TH SEPTEMBER 2009 PASSED FOR ASSTT. YEAR 2006-07. TH E GROUNDS OF APPEAL TAKEN BY THE REVENUE ARE NOT IN C ONSONANCE WITH RULE 8 OF ITAT RULES. THEY ARE DESCRIPTIVE AND ARGUMENTA TIVE IN NATURE. IN BRIEF THE SOLITARY GRIEVANCE OF THE REVENUE IS THAT LD. CIT(A) HAS ERRED IN DIRECTING THE AO TO ALLOW BENEFITS OF SECTION 11 & 12 OF THE INCOME TAX ACT. 2. LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET SUBMITTED THAT ON THE BASIS OF THE GROUNDS MENTIONED BY THE REVENUE I N GROUND NO. 2 4 THE BENEFIT OF SECTION 11 & 12 WAS DISALLOWED TO TH E ASSESSEE IN ASSTT. ITA NO. 4684/DEL/09 ASSTT. YEAR 2006-07 2 YEAR 2002-03.LD. CIT (A) HAS EXAMINED THIS ISSUE AN D ALLOWED THE BENEFIT TO THE ASSESSEE. APPEAL OF THE DEPARTMENT W AS DISMISSED BY THE TRIBUNAL AND THEREAFTER ORDER OF THE TRIBUNAL HAS B EEN UPHELD BY THE HONBLE HIGH COURT IN ITA NO. 1416/2009. THE JUDGME NT HAS BEEN DELIVERED BY THE HONBLE HIGH COURT ON 11 TH JANUARY 2010. THE HONBLE COURT WHILE UPHOLDING THE FINDING OF THE TRIBUNAL B EING THE FINDING OF FACT HAS NOTICED THE RELEVANT FINDING IN PARAGRAPH 2 OF THE JUDGMENT. THUS ACCORDING TO THE LD. COUNSEL FOR THE ASSESSEE THE I SSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE . LD. DR WAS UNAB LE TO CONTROVERT THE CONTENTION OF LD. COUNSEL FOR THE ASSESSEE. 3. WE HAVE GONE THROUGH THE RECORD AND FIND THAT TH ERE IS NO DISPARITY ON FACTS. LD. AO HAS ASSIGNED SIMILAR REASON I.E CH ARGES MADE BY THE ASSESSEE FOR INDOOR PATIENTS AT PAR WITH COMMERCIAL ACTIVITY NO TREATMENT TO POORS ETC. ALL THESE FACTORS HAVE BEEN CONSIDERED BY THE TRIBUNAL IN ASSTT. YEAR 2002-03. THIS ORDER OF THE TRIBUNAL HAS BEEN FOLLOWED IN THE SUBSEQUENT ASST. YEARS 2004-05 AND 2005-06. THE HONBLE HIGH COURT HAS ALSO UPHELD THE FINDING OF T RIBUNAL BY SPECIFICALLY TAKING COGNIZANCE OF THE FINDING OF THE FACT RECORD ED BY THE TRIBUNAL IN PARAGRAPH 5 OF THE ORDER IN ASSTT. YEAR 2002-03. TH IS FINDING READ AS UNDER :- ITA NO. 4684/DEL/09 ASSTT. YEAR 2006-07 3 5. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS A ND GONE THROUGH THE RECORD CAREFULLY. THE ASSESSEES SOCIE TY CAME INTO EXISTENCE IN 1990. IT WAS GRANTED REGISTRATION U/S 12A OF THE ACT. REGISTRATION U/S 80G HAS ALSO BEEN GRANTED TO THE A SSESSEE. IT IS ENJOYING STATUS OF A SCIENTIFIC RESEARCH CENTRE WIT HIN THE MEANING OF SECTION 35(1)(II) OF THE ACT. IN EARLIER AS WEL L AS SUBSEQUENT ASSTT. YEARS BENEFIT OF SECTION 11 AND 12 WERE GRAN TED TO THE ASSESSEE. IN THE PRESENT YEAR SUCH BENEFIT HAS BE EN DENIED TO THE ASSESSEE BY THE AO MERELY BY DRAWING ADVERSE IN FERENCE ON TWO COUNTS NAMELY THE HOSPITAL CHARGES WERE ON THE HIGHER SIDE AND WERE COMPARABLE ON HOSPITAL RUN ON COMMERCIAL B ASIS. FREE AND SUBSIDIZED TREATMENT WAS GIVEN ONLY TO THE DOCT ORS RELATIVES/FRIENDS OF THE DOCTORS AND THE EMPLOYEES. IN ORDER TO CONCEIVE THESE FACTS AO HAS TAKEN INTO CONSIDERATIO N THE CHARGES FOR PROVIDING VARIOUS SERVICES BY THE ASSES SEE NAMELY ROOM RENT ARID VACCINATION CHARGES. WITH THE ASSI STANCE OF LD. REPRESENTATIVE WE HAVE GONE THROUGH THE RECORD CARE FULLY ASSESSEE HAS DEMONSTRATED ON THE RECORD THAT ITS CH ARGES WERE IN THE LINE OF OTHER HOSPITALS WHO ARE ENJOYING THE BE NEFIT OF SECTION 11 & 12. AS FAR AS THE ALLEGATION OF THE AO THAT FR EE AND SUBSIDIZED SERVICES WERE PROVIDED TO THE RELATIVES OF THE DOCTORS / EMPLOYEES AND TO THE DOCTORS AND EMPLOYEES THEMSELV ES IS CONCERNED WE HAVE PERUSED THAT LIST AVAILABLE ON PA GE 83 - 96. IN THIS LIST NAME OF 443 INDOOR PATIENTS ARE AVAILA BLE. THE PATIENTS HAVE CAME FROM FAR FLUNG AREAS ALSO FROM UTTAR PRAD ESH PUNJAB HARYANA AND HIMACHAL PRADESH. FROM THE LIST IT IS NOT DISCERNABLE AS TO HOW LD. AO HAS CONSIDERED THEM AS EMPLOYEES O R RELATIVES OF EMPLOYEES. WE COULD UNDERSTOOD THE STAND OF AO I F HE WOULD HAVE MAKE OUT A CASE THAT ASSESSEE IS APPLYING ITS INCOME FOR ANY OTHER PURPOSE THAN THE CHARITABLE PURPOSE. AS R IGHTLY OBSERVED BY THE LD. CIT (A) THAT PROFITABILITY IS N OT THE SOLE CRITERIA TO JUDGE THE CHARITABLE NATURE OF A SOCIETY. IN A C HARITABLE ACTIVITY INCIDENT OF PROFIT CAN BE THERE BUT THAT W OULD NOT GOAD ANY QUASI JUDICIAL AUTHORITY TO SAY THAT SOCIETY CE ASES TO BE A CHARITABLE SOCIETY. THE AO FAIL TO POINT OUT ANY DE FECTS IN THE OBJECTS OF SOCIETY OR IN THE MEANS OF ACHIEVING THO SE OBJECTS. HIS ONLY AREA OF GRIEVANCE IS THAT INCOME IS RESULTING TO THE SOCIETY BY CARRYING OUT SUCH ACTIVITY. BUT AGAIN HE FAIL TO TA KE INTO CONSIDERATION THAT SUCH INCOME WAS ONLY APPLIED FOR THE PURPOSE OF CHARITY. THE AO ALSO POINTED OUT THAT ASSESSEE H AS ENTERED INTO CONTRACTS WITH THE DOCTORS IN SUCH A WAY THAT THE H OSPITAL SHOULD ITA NO. 4684/DEL/09 ASSTT. YEAR 2006-07 4 NOT SUFFER ANY LOSS. IN OUR OPINION FROM THOSE CONT RACTS NOTHING ADVERSE CAN BE DRAWN AGAINST THE ASSESSEE BECAUSE I N ORDER TO PROVIDE BEST FACILITIES ASSESSEE IS SUPPOSED TO KEE P BEST DOCTORS ON ITS PANELS. SIMILARLY IT HAS TO SEE THAT HOSPITA L SHOULD ABLE TO RUN ITS ACTIVITY. IF IT STARTS LOOSING THE RESOURCES TH EN ITS EXISTENCE WOULD BE IN DARK. THEREFORE TAKING INTO CONSIDERATION ALL THE MATERIAL ON RECORD AND THE FINDING RECORDED BY THE CIT (A) ( MAINLY EXTRACTED SUPRA) WE DO NOT FIND ANY ERROR IN THE OR DER OF LD. FIRST APPELLATE AUTHORITY. 4. IN VIEW OF THE ABOVE FINDING WE DO NOT SEE ANY R EASON TO INTERFERE IN THE ORDER OF LD. CIT(A). THE APPEAL OF THE REV ENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19.2.2010. [R.C. SHARMA] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER VEENA DATED: COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT