COMMISSIONER OF GIFT TAX vs MATHEW MAPPILLIAI

ARIJIT PASAYAT, C. J.

Heard.

At the instance of the Revenue on an application u/s 26(1) of the GT Act, 1958 (in short ''the Act''), the Tribunal, Cochin Bench, has referred the following question for adjudication:"

"Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the assessee is entitled to exemption u/s 5(1)(v) and 5(1)(va) of the GT Act ?"

Factual backdrop as indicated in the statement of case is as follows : A return was filed by the assessee on 30th Dec., 1985, declaring the total value of gift at Rs. 1, 65, 100, and claiming the same to be exempted u/s 5(1) of the Act. Assessee''s case was that on 30th Nov., 1984, 18-3/4 cents of land in Kunapuzha Panchayat, Thiruvalla, was gifted to St. Basil''s Carmalite House. Thiruvalla. The value shown was Rs. 1,65,000. This was half of the property purchased by the assessee along with his brother. The property was purchased jointly by them on 18th June, 1984, for Rs. 3,00,000 and including documentation charges total value came to Rs. 3,40,000. Assessee gifted 50 per cent of the same, as aforesaid. The gift was claimed to be exempted in terms of s. 5(1)(v)/(va). Certain documents were filed in support of the stand that an application had been filed for registration u/s 12A(a) before the CIT, Trivandrum. The assessing officer did not accept the claim of exemption. In appeal, the Commissioner (Appeals) held that the donee was an institution covered u/s 11 of the Income Tax Act, 1961. Normally such institution can be considered to be one to which s. 80G of the Income Tax Act is applicable. Though it was observed that the institution had not obtained necessary certificate, direction was given to grant exemption. The Tribunal upheld the conclusions.

Learned counsel for the Revenue submitted that no factual findings have been recorded about the eligibility and merely because an application for registration has been filed u/s 12A(a) of the Income Tax Act, that cannot be sufficient for the purpose of deduction u/s 5(1)(v) and 5(1)(va). Learned counsel for the assessee submitted that the order passed by the GTO indicated about the registration of the application. There is nothing on record to show that the application was rejected. That being the position, the Commissioner (Appeals) and the Tribunal were justified in their conclusions. .

Sec. 5(1)(v) of the Act contemplates exemption to any institution established or deemed to be established for charitable purpose, to which provisions of s. 80G of the Income Tax Act apply. Sub-s. (va)(i) contemplates gifts to temples, mosques, etc. notified by the Central Government for the purpose of s. 80G(2). The conditions specified in s. 80G are contained in sub-section (va)(i) to (v) of s. 5 of the Act. Deduction in terms of s. 5(1)(v) and 5(1)(va) can only be granted if the gift is made to any institution for charitable purposes, to which the provisions of s. 80G apply. Merely because an application has been filed for exemption as contemplated u/s 12A(1) of the Income Tax Act, that would not be sufficient for getting deduction. These factual aspects have not been examined by the Tribunal. We, therefore, think it proper to remit the matter to the Tribunal to consider the factual aspects. The assessee shall be permitted to place materials in support of his claim of restriction and eligibility in terms of s. 80G of the Income Tax Act. Instead of answering the reference we direct re-examination by the Tribunal in view of non- consideration of factual aspects.

The reference is answered accordingly.