Appeal details
Counselvise Citation
360719914 RSA 2013
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 1 month(s) 17 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
25-06-2015
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
B
Next Hearing Date
18-02-2015
Assessment Year
2009-2010
Appeal Filed On
08-05-2013
Judgement Text
, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.3607/MUM/2013 ASSESSMENT YEAR: 2009-10 ITO(EXEMPTION)-I(1), R. NO.505, PIRAMAL CHAMBERS, LAL BAUG, PAREL, MUMBAI-400012 / VS. THE BOMBAY ANDHRA MAHASABH & GYMKHANA, PLOT NO.-10C, LAKHAMSI NAPOO ROAD, DADAR (EAST), MUMBAI-400014 ( / REVENUE) ( !' # /ASSESSEE) P.A. NO. AAA TT3448B / REVENUE BY SHRI JEETENDRA KUMAR-DR !' # / ASSESSEE BY MS. NEHA PARANJAPE $ % & # ' / DATE OF HEARING : 25/06/2015 & # ' / DATE OF ORDER: 30/06/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 28/02/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED PERTAINS TO HOLDING THAT ACT IVITY OF PROVIDING FUNCTION HALL FOR CARRYING OUT CULTURAL A ND SOCIAL FUNCTION TO THE GENERAL PUBLIC ON A PRESCRIBED FEE AND/OR THE BOMBAY ANDHRA MAHASABHA & GYMKHANA ITA NO.3607/MUM/2013 2 DONATION IS NOT A BUSINESS ACTIVITY AS INCOME FROM THE ACTIVITY IS APPLIED TOWARDS THE OBJECT OF THE TRUST . 2. DURING HEARING OF THIS APPEAL, THE LD.DR, SHRI JEETENDRA KUMAR, CONTENDED THAT THE LD. COMMISSIONE R OF INCOME TAX (APPEALS) WITHOUT APPRECIATING PROVISO T O SECTION 2(15) OF THE ACT, DECIDED THE APPEAL IN FAV OUR OF THE ASSESSEE IGNORING THE FACTS AND THUS HE DEFENDED TH E CONCLUSION DRAWN IN THE IMPUGNED ORDER. ON THE OTHE R HAND, THE LD. COUNSEL FOR THE ASSESSEE, MS. NEHA PA RANJAPE, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE TRUST IS REGISTERED AS A CHAR ITABLE ORGANIZATION BY THE LD. DIT(E) U/S 12A OF THE ACT, VIDE ORDER DATED 29 TH MARCH, 1996. THE ASSESSEE IS ALSO REGISTERED WITH THE CHARITY COMMISSIONER, MUMBAI. THE ASSESSE E DECLARED NIL INCOME ITS RETURN FILED ON 30 TH SEPTEMBER, 2009. ON PERUSAL OF THE RETURN, IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE CLAIMED EXEMPTI ON U/S 11 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT ). THE ASSESSEE DECLARED INCOME OF RS.4.97 LAKHS AS OTHER INCOME AND RS.38.52 LAKH THROUGH DONATION. THE ASSESSING OFFICER WAS OF THE VIEW THAT SUCH INCOME IS IN THE NATURE OF TRADE, COMMERCE OR BUSINESS, THUS, HE OPINED THAT I N VIEW OF AMENDED SECTION (2)(15) OF THE ACT, THE ACTIVITI ES OF THE ASSESSEE ARE MONEY MAKING AND THE ACTIVITIES ARE NO T FOR THE BOMBAY ANDHRA MAHASABHA & GYMKHANA ITA NO.3607/MUM/2013 3 CHARITABLE PURPOSES, CONSEQUENTLY, IT WAS HELD THAT THE ASSESSEE IS NOT ENTITLE FOR EXEMPTION U/S 11 OF THE ACT. 2.2. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INC OME TAX (APPEALS), THE OBJECTS OF THE ASSESSEE FACTS WE RE EXAMINED ALONG WITH VARIOUS DECISIONS AND FINALLY I T WAS CONCLUDED THAT THE CLAIM OF THE ASSESSEE IS WITHIN THE AMBIT OF THE LAW. IT WAS DECIDED IN FAVOUR OF THE ASSESSEE. THE REVENUE IS AGGRIEVED AND IS IN APPEAL BEFORE TH IS TRIBUNAL. 2.3. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, WE FIND THAT, AS HAS BE EN REPRODUCED AT PAGE 3 ONWARDS OF THE IMPUGNED ORDER, THE OBJECTS OF THE ASSESSEE TRUST ARE PRIMARILY OF CHAR ITABLE IN NATURE. TO ACHIEVE ITS OBJECT, THE ASSESSEE IS TO C OLLECT SUBSCRIPTIONS FROM ITS MEMBERS AND ALSO TO ACCEPT DONATIONS. BROADLY, THE LD. ASSESSING OFFICER DENIE D THE CLAMED EXEMPTION ON THE PLEA THAT THE ACTIVITIES OF THE ASSESSEE ARE OF COMMERCIAL IN NATURE. WE FEEL THAT THE ASSESSING OFFICER BROADLY IS INFLUENCED BY THE AMOU NTS OF DONATIONS RECEIVED BY THE ASSESSEE. WE ARE IN AGRE EMENT WITH THE ASSESSING OFFICER ONLY TO THE EXTENT THAT THE ACTIVITIES OF THE ASSESSEE SHOULD NOT BE ON COMMERC IAL LINES BUT AT THE SAME TIME THE DONATIONS/RECEIPTS ARE NOT ABNORMALLY HIGH SO AS TO SUSPECT THE INTENTION OF T HE THE BOMBAY ANDHRA MAHASABHA & GYMKHANA ITA NO.3607/MUM/2013 4 ASSESSEE. UNLESS AND UNTIL, THE RECEIPTS ARE ABNOR MALLY HIGH AND THE SAME ARE NOT EXPANDED EITHER FOR THE EXPANSION OF THE ASSESSEE TRUST OR FOR THE OBJECTS FOR WHICH SUCH TRUST IS CREATED, DENIAL OF EXEMPTION IS NOT J USTIFIED. OUR VIEW IS SUPPORTED BY THE DECISION IN CIT VS SMY UKTHA GOWDA SARASWATHA SABH 245 ITR 242 (MAD.), CIT VS ANDHRA CHAMBER OF COMMERCE 130 ITR 184 (SC), WHEREI N, IT WAS HELD THAT IT WAS ONLY WHERE THE PREDOMINANT OBJECT AND THE PURPOSE OF ACTIVITY CARRIED ON WAS FOR CHAR ITABLE PURPOSES THEN THE ASSESSEE CANNOT BE DENIED EXEMPTI ON. WE AFFIRM THE STAND OF THE LD. COMMISSIONER OF INCO ME TAX (APPEALS), MORE SPECIFICALLY, WHEN THE ASSESSING OF FICER HAS NOT BROUGHT ON RECORD ANY EVIDENCE SUGGESTING THAT THE ACTIVITIES CARRIED OUT BY THE ASSESSEE ARE COMMERCI AL IN NATURE AND CONTRARY TO THE OBJECTS OF THE ASSESSEE TRUST. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 25/06/2015. SD/ - (RAJENDRA) SD/ - (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER $ % MUMBAI; ( DATED : 30/06/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. THE BOMBAY ANDHRA MAHASABHA & GYMKHANA ITA NO.3607/MUM/2013 5 3. 0 0 $ 1# ( *+ ) / THE CIT, MUMBAI. P. 0 0 $ 1# / CIT(A)- , MUMBAI 5. 34 .# , 0 *+' * 5 , $ % / DR, ITAT, MUMBAI 6. 6! 7% / GUARD FILE. / BY ORDER, /3+# .# //TRUE COPY// / (DY./ASSTT. REGISTRAR) , $ % / ITAT, MUMBAI
