JUDGMENT

Arijit Pasayat, C.J.

1. Heard.

2. At the instance of the Revenue on an application under Section 26(1) of the Gift-tax Act, 1958 (in short "the Act"), the Income-tax Appellate Tribunal, Cochin Bench (in short "the Tribunal"), 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 under Sections 5(1)(v) and 5(1)(va) of the Gift-tax Act ?"

The factual backdrop as indicated in the statement of case is as follows : A return was filed by the assessee on December 30, 1985, declaring the total value of gift at Rs. 1,65,100 and claiming the same to be exempted under Section 5(1) of the Act. The assessee's case was that on November 30, 1984, 18 3/4 cents of land in Kuttapuzha Panchayat, Thiruvalla, was gifted to St. Basil's Carmalite House, Tiruvalla. 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 June 18, 1984 for Rs. 3,00,000 and including documentation charges the total value came to Rs. 3,40,000. The assessee gifted 50 per cent. of the same, as aforesaid. The gift was claimed to be exempted in terms of Section 5(1)(v)/(va). Certain documents were filed in support of the stand that an application had been filed for registration under Section 12A(a) before the Commissioner of Income-tax, Trivandrum. The Assessing Officer did not accept the claim of exemption. In appeal, the Commissioner of Income-tax (Appeals) (in short "the CIT (A)") held that the donee was an institution covered under Section 11 of the Income-tax Act, 1961 (in short "the Act"). Normally such institution can be considered to be one to which Section 80G of the Income-tax Act is applicable. Though it was observed that the institution had not obtained the necessary certificate, a direction was given to grant exemption. The Tribunal upheld the conclusions.

3. 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 under Section 12A(a) of the Income-tax Act, that cannot be sufficient for the purpose of exemption under Section 5(1)(v) and 5(1)(va).

4. Learned counsel for the assessee submitted that the order passed by the Gift-tax Officer 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 of Income-tax (Appeals) and the Tribunal were justified in their conclusions.

5. Section 5(1)(v) of the Act contemplates exemption to any institution established or deemed to be established for a charitable purpose to which the provisions of Section 80G of the Income-tax Act apply. Sub-section (1)(va)(i) contemplates gifts to temples, mosques, etc., notified by the Central Government for the purposes of Section 80G(2). The conditions specified in Section 80G are contained in Sub-section (1)(va)(i) or (v) of Section 5 of the Act. Exemption in terms of either Section 5(1)(v) or 5(1)(va) can be granted only if the gift is made to any institution for charitable purposes, to which the provisions of Section 80G apply. Merely because an application has been filed for exemption as contemplated under Section 12A(a) 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 registration and eligibility in terms of Section 80G of the Income-tax Act. Instead of answering the reference we direct reexamination by the Tribunal in view of non-consideration of factual aspects.

6. The reference is answered accordingly.