BHARAT DIAMOND BOURSE, MUMBAI V. ITO (E) WD 1(1), MUMBAI

ITA 5299/MUM/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0317 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 09-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN LD
• Assessee Lawyers: R K SINHA LD
• Keywords: Business income; Charitable institution
• Section: 143(3); 12A; 12AA; 12; 11

Judgement Text

ITA NO 5299/MUM/2015 BHARAT DIAMOND BOURSE ASSESSMENT YEAR 2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.5299/MUM/2015 ( / ASSESSMENT YEAR: 2011-12) BHARAT DIAMOND BOURSE G BLOCK BKC, TOWER H GROUND FLOOR BANDRA(E) MUMBAI 400 051 / VS. INCOME TAX OFFICER(EXEMPTION) WARD 1(1) 5 TH FLOOR, PIRAMAL CHAMBERS LALBAUG PAREL MUMBAI -400 012 ! ./ ./PAN/GIR NO. AAACB-2358-R ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) ASSESSEE BY : R.K.SINHA, LD. AR REVENUE BY : T.A.KHAN, LD. DR / DATE OF HEARING : 09/08/2017 / DATE OF PRONOUNCEMENT : 16/08/2017 ITA NO 5299/MUM/2015 BHARAT DIAMOND BOURSE ASSESSMENT YEAR 2011-12 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2011-12 ASSAILS THE ORDER OF LD. COMMISSIONER OF IN COME TAX (APPEALS)-1 [CIT(A)], MUMBAI DATED 28/09/2015 QUA DENIAL OF BENEFIT U/S 11 & 12 OF THE INCOME TAX ACT, 1961. GROUND NO. 2 R AISED BY THE ASSESSEE HAS BEEN WITHDRAWN DURING PROCEEDINGS BEFO RE US AND HENCE, THE SAME IS DISMISSED IN LIMINE. 2. BRIEFLY STATED, THE ASSESSEE TRUST WAS ASSESSED U/S 143(3) FOR IMPUGNED AY ON 27/03/2014 AT RS.5,13,08,730/- AS AG AINST NIL RETURN FILED BY THE ASSESSEE ON 30/09/2011. THE ASSESSEE H AS BEEN DENIED EXEMPTION U/S 11 IN VIEW OF CANCELLATION OF ITS REG ISTRATION U/S 12A AND ALSO IN VIEW OF THE AMENDMENT TO SECTION 2(15) AND THE SAME IS THE SOLE SUBJECT MATTER OF THIS APPEAL. 3. THE MAJOR ACTIVITY CARRIED ON BY THE ASSESSEE IS TO PROVIDE INFRASTRUCTURE FACILITIES INCLUDING HANDLING, STORA GE AND CLEARANCE OF IMPORT AND EXPORT OF CARGO OF DIAMONDS, PRECIOUS, S EMI-PRECIOUS STONES ETC. 4. DURING ASSESSMENT PROCEEDINGS, IT WAS NOTED THAT THE ASSESSEE TRUSTS REGISTRATION U/S 12A WAS CANCELED BY DIT(E) , MUMBAI VIDE ORDER DATED 27/12/2011 AND THEREFORE THE ASSESSEE WAS NOT ENTITLED FOR EXEMPTION U/S 11. THE LD. AO FURTHER NOTED THAT THE CASE OF THE ASSESSEE WAS HIT BY THE AMENDED PROVISIONS OF SECTI ON 2(15) SINCE THE ASSESSEE FELL UNDER THE CATEGORY OF ADVANCEMENT OF ANY OTHER OBJECT OF ITA NO 5299/MUM/2015 BHARAT DIAMOND BOURSE ASSESSMENT YEAR 2011-12 3 GENERAL PUBLIC UTILITY AND THE ASSESSEE WAS ENGAGED IN COMMERCIAL ACTIVITY FOR FEES WHICH WELL EXCEEDED THE THRESHOLD LIMIT OF RS.25 LACS. THE ASSESSEE ALSO CONTENDED THAT THE PRINCIPLES OF MUTUALITY WERE APPLICABLE, HOWEVER THE SAME, IN THE OPINION OF LD. AO, WERE NOT FULFILLED AS PER THE DECISION OF APEX COURT RENDERED IN BANGALORE CLUB VS. CIT [CIVIL APPEAL NO. 124 OF 2007 ORDER DATED 14/01/201 3]. ALL THESE FACTORS RESULTED INTO DENIAL OF EXEMPTION TO ASSESSEE U/S 1 1 AND CONSEQUENTLY THE BUSINESS INCOME WAS DETERMINED AT RS.513.08 LACS AGAINST WHICH THE SET-OFF OF LOSS UNDER THE HEAD INCOME FROM OTHER SOURCES WAS NOT AVAILABLE TO THE ASSESSEE. 5. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITHO UT ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 28/09/2 015 WHERE THE LD. CIT(A) CONFIRMED THE STAND OF LD. AO BY FOLLOWING I TS PREDECESSORS ORDER IN ASSESSEES OWN CASE FOR IMMEDIATELY PRECED ING AY. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 6. THE LD. REPRESENTATIVE FOR ASSESSEE DREW OUR ATT ENTION TO THE FACT THAT THE ASSESSEE SUFFERED SIMILAR DISALLOWANCES IN PRECEDING AY WHICH WAS CONTESTED UP-TO THE LEVEL OF THIS TRIBUNAL VIDE ITA NOS.884/MUM/2012 & OTHERS VIDE ORDER DATED 30/03/2017 WHERE THE APPEAL OF THE ASSESSEE HAS PARTLY BEEN ALLOWED AND THE MATTER HAS BEEN RESTORE BACK TO THE FILE OF LD. AO WITH CERTAIN DIR ECTIONS. THE LD. AR PLEADED FOR SIMILAR DIRECTIONS AGAINST WHICH NO SER IOUS OBJECTIONS WERE RAISED BY LD. DR. ITA NO 5299/MUM/2015 BHARAT DIAMOND BOURSE ASSESSMENT YEAR 2011-12 4 7. HEARD & PERUSED THE CITED ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE. WE CONCUR WITH THE SUBMISSIONS OF LD. AR SINC E THE TRIBUNAL HAS ADJUDICATED THE MATTER AS FOLLOWS:- 7. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD INCLUDING CASE LAWS RELIED UPON BY RIVAL PARTIES. T HE MAIN OBJECTS OF THE ASSESSEE AS CONTENDED BY THE ASSESSEE ARE AS UNDER: (E) TO ESTABLISH A BOURSE FOR THE PROMOTION OF EXPO RTS OF GEM &JEWELLERY FROM INDIA AND TO PROVIDE FOR THIS PURPOSE INFRASTR UCTURE AND OTHER FACILITIES IN INDIA FOR INDIAN AND OVERSEAS BUYERS AND SELLERS OF GEM AND JEWELLERY. (F) TO ESTABLISH AND PROMOTE EFFECTIVE LIAISON BETW EEN THE GEM AND JEWELLERY TRADE AND INDUSTRY IN INDIA AND ABROAD. (G) TO PROMOTE , ADVANCE , PROTECT AND DEVELOP TRAD E, COMMERCE AND INDUSTRY IN INDIA RELATING TO GEM & JEWELLERY INCLUDING CUTT ING, POLISHING AND PROCESSING. (H) TO DEVELOP INDIA AS MODERN AND SOPHISTICATED GE M & JEWELLERY MARKET IN THE WORLD BY ESTABLISHING AND MAINTAIN AN INTERNATI ONAL TRADING CENTER IN INDIA ALL THOSE ENGAGED AS MANUFACTURERS , TRADERS, EXPOR TERS, IMPORTERS, BROKERS AND COMMISSION AGENTS IN THE GEM & JEWELLERY TRADE AND INDUSTRY. THE ASSESSEE HAD ALSO SUBMITTED THAT THE MAJOR ACTI VITY CARRIED ON BY THE ASSESSEE IS TO PROVIDE INFRASTRUCTURE FACILITIES INCLUDING H ANDLING, STORAGE AND CLEARANCE OF IMPORT AND EXPORT CARGO OF DIAMONDS, PRECIOUS , SEM I-PRECIOUS STONES ETC. THE ASSESSEE SUBMITTED THAT IT ENTERED INTO AN AGREEMEN T WITH MMTC BY WHICH IT WAS AGREED BY MMTC TO FUNCTION AS CUSTODIAN AT THE OFFI CE OF THE ASSESSEE WHERE INFRASTRUCTURE FACILITIES INCLUDING HANDLING, STORA GE AND TRANSPORTATION OF IMPORT AND EXPORT CARGO OF DIAMONDS, PRECIOUS AND SEMIPRECIOUS STONES ARE PROVIDED TO GEM AND JEWELLERY TRADERS AND MEMBERS OF THE ASSESSEE. THE SERVICES RENDERED BY THE ASSESSEE, THUS, AS CONTENDED BY THE ASSESSEE WERE A S UNDER: (1) PROVISION OF RENT FREE ACCOMMODATION FOR HOUSIN G AND CUSTOMS CLEARANCE CENTRE AS WELL AS THE CUSTODIAN'S OFFICE. (2) MAINTENANCE OF STRONG ROOM AT THE DPCCC AS WELL AS AT THE SAHAR INTERNATIONAL AIR-CARGO COMPLEX. (3) PROVISION OF SECURITY AND TO AND FRO TRANSPORTA TION OF EXPORT AND IMPORT PARCELS BETWEEN DPCCC AND SAHAR INTERNATIONAL AIR C ARGO COMPLEX ON EVERY WORKING DAY. (4) DEPOSITING OF AIRWAYS BILLS WITH RESPECTIVE AIR LINE OFFICES. (5) COLLECTION AND DISTRIBUTION OF EP COPIES OF SHI PPING BILLS. (6) PROVIDING EXPORT/IMPORT STATISTICS ON WEBSITE O F THE ASSESSEE ON REGULAR BASIS. IT WAS STATED THAT THE ABOVE ARRANGEMENT WAS ON COS T RECOVERY BASIS. THESE SERVICES WERE RENDERED BY ASSESSEE TO GEM AND JEWEL LERY TRADERS ONLY. THE SERVICES RENDERED BY THE ASSESSEE WERE HELD TO BE C HARITABLE ACTIVITIES BY HON'BLE APEX COURT IN ASSESSEE'S OWN CASE IN DIT V. BHARAT DIAMOND BOURSE (2003) 259 ITA NO 5299/MUM/2015 BHARAT DIAMOND BOURSE ASSESSMENT YEAR 2011-12 5 ITR 280(SC) VIDE ORDERS DATED 16.12.2002, WHEREIN T HE HON'BLE APEX COURT CONSIDERED THE PRE-AMENDED PROVISIONS OF SECTION 2( 15) OF 1961 ACT. SECTION 2(15) OF 1961 ACT WAS AMENDED BY FINANCE ACT, 2008 AND FI NANCE ACT, 2010 W.E.F. 01-04- 2009. THE RELEVANT EXTRACTS OF PROVISIONS OF SECTIO N 2(15) OF 1961 ACT ARE REPRODUCED HEREUNDER: 'SECTION 2(15) [ (15) 'CHARITABLE PURPOSE' INCLUDES RELIEF OF THE POOR, EDUCATION, MEDICAL RELIEF, [PRESERVATION OF ENVIRONMENT (INCLUDING WATERSHEDS, FORESTS AND WILDLIFE) AND PRESERVATION OF MONUMENTS OR PLACES OR OBJECTS OF A RTISTIC OR HISTORIC INTEREST,] AND THE ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUBL IC UTILITY: PROVIDED THAT THE ADVANCEMENT OF ANY OTHER OBJECT OF GENERA L PUBLIC UTILITY SHALL NOT BE A CHARITABLE PURPOSE, IF IT INVOLVES THE CARRYIN G ON OF ANY ACTIVITY IN THE NATURE OF TRADE, COMMERCE OR BUSINESS, OR ANY ACTIVITY OF REN DERING ANY SERVICE IN RELATION TO ANY TRADE, COMMERCE OR BUSINESS, FOR A CESS OR FEE OR ANY OTHER CONSIDERATION, IRRESPECTIVE OF THE NATURE OF USE OR APPLICATION, O R RETENTION, OF THE INCOME FROM SUCH ACTIVITY: ] [PROVIDED FURTHER THAT THE FIRST PROVISO SHALL NOT APPLY IF THE AGGR EGATE VALUE OF THE RECEIPTS FROM THE ACTIVITIES REFERRED TO THEREIN IS TEN LAKH RUPEES OR LESS IN THE PREVIOUS YEAR,]' THERE WERE ALSO FURTHER AMENDMENTS IN SECTION 2(15) OF 1961 ACT BY FINANCE ACT, 2011 AND FINANCE ACT, 2015. THE ASSESSEE'S ACTIVITI ES ARE PREDOMINANTLY IN THE NATURE OF ADVANCEMENT OF OBJECTS OF GENERAL PUBLIC UTILITY WHICH ACTIVITIES APPEARS PRIMA-FACIE TO BE CONNECTED TO TRADE, COMMERCE OR B USINESS, OR AN ACTIVITY OF RENDERING ANY SERVICE IN RELATION TO TRADE, COMMERC E OR BUSINESS OF GEM, DIAMOND AND JEWELLERY BUSINESS AND ALSO THE ASSESSEE TURNOV ER IS EXCEEDING THE MAXIMUM THRESHOLD LIMIT FOR AVAILING EXEMPTION. HOWEVER, TH ERE IS A NEED FOR AO TO EVALUATE THE ACTIVITIES OF THE ASSESSEE IN CONTEXT OF AMENDE D DEFINITION OF SECTION 2(15) OF 1961 ACT AT THE STAGE OF FRAMING ASSESSMENT. SO FAR SO GOOD, THE PROVISIONS OF SECTION 12AA(3) OF 1961 ACT AS IT STOOD NOW EMPOWER S LEARNED PRINCIPAL COMMISSIONER OR COMMISSIONER TO CANCEL THE REGISTRA TION U/S 12AA OF 1961 ACT ON EITHER OF THE TWO GROUNDS NAMELY THE ACTIVITIES OF SUCH TRUST OR INSTITUTION ARE NOT GENUINE OR ARE NOT BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECTS OF THE TRUST OR INSTITUTION. SECTION 12AA(3) OF 1961 ACT IS REPRODU CED HEREUNDER :- '[(3) WHERE A TRUST OR AN INSTITUTION HAS BEEN GRAN TED REGISTRATION UNDER CLAUSE (B) OF SUB-SECTION (1) [OR HAS OBTAINED REGI STRATION AT ANY TIME UNDER SECTION 12A [AS IT STOOD BEFORE ITS AMENDMENT BY TH E FINANCE (NO. 2) ACT, 1996 (33 OF 1996)11 AND SUBSEQUENTLY THE [PRINCIPAL COMMISSIONER OR] COMMISSIONER IS SATISFIED THAT THE ACTIVITIES OF SU CH TRUST OR INSTITUTION ARE NOT GENUINE OR ARE NOT BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECTS OF THE TRUST OR INSTITUTION, AS THE CASE MAY BE, HE SHALL PASS AN ORDER IN WRITING CANCELLING THE REGISTRATION OF SUCH TRUST OR INSTIT UTION: ITA NO 5299/MUM/2015 BHARAT DIAMOND BOURSE ASSESSMENT YEAR 2011-12 6 PROVIDED THAT NO ORDER UNDER THIS SUB-SECTION SHALL BE PASS ED UNLESS SUCH TRUST OR INSTITUTION HAS BEEN GIVEN A REASONABLE OP PORTUNITY OF BEING HEARD.] THE COURTS HAVE TAKEN A CONSISTENT VIEW THAT LEARNE D PRINCIPAL COMMISSIONER OR COMMISSIONER SHALL HAVE POWER TO CANCEL THE REGISTR ATION ONLY ON FULFILLMENT OF EITHER OF THE CONDITIONS AS STIPULATED BY PROVISIONS OF SE CTION 12AA(3) OF 1961 ACT THAT THE ACTIVITIES OF SUCH TRUST OR INSTITUTION ARE NOT GEN UINE OR ARE NOT BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECTS OF THE TRUST OR INSTITU TION. THUS, THE LEARNED PRINCIPAL COMMISSIONER OR COMMISSIONER CAN CANCEL THE REGISTR ATION ON FULFILLMENT OF THE EITHER OF THE ABOVE TWO CONDITIONS WHILE IN THE INS TANT CASE THE SUCH CONDITIONS ARE NOT BEING SHOWN TO HAVE BEEN FULFILLED. THERE IS AL SO NO CHANGE IN NATURE OF ACTIVITIES OF THE ASSESSEE AS COMPARED TO IMMEDIATELY PRECEDIN G YEAR AS REVENUE COULD NOT BROUGHT ON RECORD ANY SUCH FINDINGS. THE DECISIONS OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF DIT(E) V. MAHARASHTRA HOUSING AND AR EA DEVELOPMENT AUTHORITY(SUPRA) AND DIT(E) V. KHAR GYMKHANA(SUPRA) HAVE TAKEN THE SIMILAR VIEW AND SAID DECISION'S OF JURISDICTIONAL HIGH COURT AR E BINDING ON US. BOTH THE ABOVE DECISIONS PERTAINED TO ASSESSMENT YEAR 200910 WHERE IN THE AMENDMENTS TO THE PROVISIONS OF SECTION 2(15) OF 1961 ACT IS BROUGHT W.E.F. ASSESSMENT YEAR 2009-10. IN THE INSTANT APPEAL , WE ARE ALSO CONCERNED WITH ASSESSMENT YEAR 2009-10 . THE LEARNED DIT(E) HAS CANCELLED THE REGISTRATION OF TH E ASSESSEE U/S 12AA OF 1961 ACT DUE TO AMENDED PROVISIONS OF SECTION 2(15) OF 1961 ACT WHICH WERE AMENDED BY FINANCE ACT, 2008 AND FINANCE ACT, 2010 W.E.F. 01-0 4-2009 AND NOT ON THE GROUNDS AS SPECIFIED IN SECTION 12AA(3) OF 1961 ACT. THE HO N'BLE BOMBAY HIGH COURT WHILE ADJUDICATING THE CASE OF DIT(E) V. MAHARASHTRA HOUS ING AND AREA DEVELOPMENT AUTHORITY(SUPRA) HAS DULY TAKEN NOTE OF AMRITSAR-TR IBUNAL TAKING CONTRARIAN VIEW ON THIS ISSUE IN JAMMU DEVELOPMENT AUTHORITY(SUPRA) CA SE. THUS, IN OUR CONSIDERED VIEW THE REGISTRATION U/S 12AA OF 1961 ACT OF THE A SSESSEE CANNOT BE CANCELLED BY LEARNED DIT(E) AND THE SAME IS HEREBY RESTORED WITH EFFECT FROM THE DATE IT WAS CANCELLED BY LEARNED DIT(E) VIDE IMPUGNED ORDER OF LEARNED DIT(E) WHICH IS UNDER CHALLENGE BEFORE US. WE WOULD LIKE TO CLARIFY THAT DUE TO AMENDED PROVISIONS OF SECTION 2(15) OF 1961 ACT, THE ASSESSEE SHALL NOT B E ENTITLED TO CLAIM TAX EXEMPTIONS U/S 11 AND 12 OF 1961 ACT IF THE ACTIVITIES OF THE ASSESSEE ARE FOUND BY THE AO DURING THE ASSESSMENT PROCEEDINGS TO BE HIT BY THE AMENDED PROVISIONS OF SECTION 2(15) OF 1961 ACT. THE AO SHALL DURING THE COURSE O F ASSESSMENT , RECORD FINDING AS TO WHETHER THE ACTIVITIES OF THE ASSESSEE ALTHOUGH BEING IN THE NATURE OF ACTIVITIES OF ADVANCEMENT OF OBJECTS OF PUBLIC UTILITY FALLS WITH IN FOUR CORNER OF TRADE, COMMERCE OR BUSINESS , OR ANY ACTIVITY OF RENDERING ANY SERVICE IN RELATION TO ANY TRADE, COMMERCE OR BUSINESS, FOR A CESS OR FEE OR ANY OTHER CONSIDE RATION, IRRESPECTIVE OF THE NATURE OF USE OR APPLICATION, OR RETENTION, OF THE INCOME FRO M SUCH ACTIVITY AS MANDATED U/S 2(15) OF THE ACT OR NOT UNINFLUENCED BY OUR PRIMA-F ACIE FINDING AS RECORDED EARLIER IN THIS ORDER THERE IS A SPECIFIC PROVISION INSERTED B Y FINANCE ACT, 2012 W.E.F. 01-4- 2009 VIDE SUB-SECTION 8 TO SECTION 13 OF 1961 ACT T O THAT EFFECT WHICH IS REPRODUCED HEREUNDER: '[SECTION 11 NOT TO APPLY IN CERTAIN CASES. (1) TO (7) *** ITA NO 5299/MUM/2015 BHARAT DIAMOND BOURSE ASSESSMENT YEAR 2011-12 7 [(8) NOTHING CONTAINED IN SECTION 11 OR SECTION 12 SHALL OPERATE SO AS TO EXCLUDE ANY INCOME FROM THE TOTAL INCOME OF THE PREVIOUS YEAR O F THE PERSON IN RECEIPT THEREOF IF THE PROVISIONS OF THE FIRST PROVISO* TO CLAUSE (15) OF SECTION 2 BECOME APPLICABLE IN THE CASE OF SUCH PERSON IN THE SAID PREVIOUS YEAR.] ' THE AO SHALL DURING THE COURSE OF ASSESSMENT VERIFY AND DETERMINE THE ACTIVITIES OF THE ASSESSEE THAT ARE HIT BY AMENDED DEFINITION OF SECTION 2(15) OF 1961 ACT AND ACCORDINGLY TAX-EXEMPTIONS SHALL BE DENIED ON SUCH ACTIVITIES. WITH THE ABOVE STATED CONDITIONS, THE REGISTRATION OF THE ASSESSEE U/S 12 AA OF 1961 ACT IS RESTORED. WE ORDER ACCORDINGLY. 8. IN THE RESULT APPEAL OF THE ASSESSEE IN ITA NO. 884/MUM/2012 FOR ASSESSMENT YEAR 2009-10 IS PARTLY ALLOWED AS INDICATED ABOVE. 9. WE SHALL NOW TAKE APPEAL IN ITA NO. 3004/MUM/201 3 FOR ASSESSMENT YEAR 2009- 10 AND ITA NO. 3127/MUM/2015 FOR ASSESSMENT YEAR 20 10-11, BOTH BEING FILED BY THE ASSESSEE. IT IS AGREED BY BOTH THE RIVAL PARTIE S THAT THE AFORE-SAID APPEALS ARE CONSEQUENTIAL IN NATURE TO APPEAL IN ITA NO. 884/MU M/2012 FOR ASSESSMENT YEAR 2009-10, AS IN BOTH THE ASSESSMENT YEARS THE TAX EX EMPTION WAS DENIED BY THE AUTHORITIES BELOW ON THE GROUNDS THAT REGISTRATION OF THE ASSESSEE U/S 12AA OF 1961 ACT STOOD CANCELLED BY LEARNED DIT(E) AND HENCE THE ASSESSEE WAS NOT ENTITLED TO TAX-EXEMPTIONS U/S 11 OF 1961 ACT. BUT, SINCE WE HA VE RESTORED THE REGISTRATION OF THE ASSESSEE U/S 12AA OF 1961 ACT WHILE ADJUDICATIN G THE APPEAL IN ITA NO. 884/MUM/2012 AS SPECIFIED IN THE SAID ORDER, THESE TWO APPEALS BECOME CONSEQUENTIAL IN NATURE TO OUR ORDER IN ITA NO 884/ MUM/2012, AND THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND THE ISSUES ARE RESTORED BACK TO THE FILE OF THE AO TO BE ADJUDICATED ON MERITS IN THE LIGHT OF OUR ORD ER IN ITA NO. 884/MUM/2012. WE WOULD LIKE TO CLARIFY THAT WE HAVE KEPT QUESTION OF APPLICABILITY OF MUTUALITY RAISED BY THE ASSESSEE AS AN ALTERNATE GROUND OPEN AND THE SA ME IS NOT ADJUDICATED BY US. THE ASSESSEE IS GIVEN LIBERTY TO RAISE THE SAID GRO UND OF APPLICABILITY OF MUTUALITY TO THE ASSESSEE KEEPING IN VIEW FACTS AND CIRCUMSTANCE S OF THE CASE BEFORE THE AO. WE ORDER ACCORDINGLY. 10. IN THE RESULT APPEAL OF THE ASSESSEE IN ITA NO. 3004/MUM/2013 FOR ASSESSMENT YEAR 2009-10 AND ASSESSEE'S APPEAL IN ITA NO. 3127/ MUM/2015 FOR ASSESSMENT YEAR 2010-11 IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. WE FIND THAT THE TRIBUNAL, AFTER ELABORATE DISCUSSI ON, RESTORED THE REGISTRATION U/S 12AA AND SET ASIDE THE MATTER BACK TO THE FILE OF LD. AO FOR ADJUDICATION ON MERITS. THEREFORE, RESPECTFULLY FOLLOWING THE SAME, TAKING THE SAME STAND, WE ALSO RESTORE THE MATTER B ACK TO THE FILE OF LD. AO FOR FRESH ADJUDICATION ON MERITS AFTER CONSIDERI NG THE ACTIVITIES OF THE ITA NO 5299/MUM/2015 BHARAT DIAMOND BOURSE ASSESSMENT YEAR 2011-12 8 ASSESSEE THAT ARE HIT BY THE AMENDED DEFINITION OF SECTION 2(15) AFTER AFFORDING ADEQUATE OPPORTUNITY TO ASSESSEE. AS ALRE ADY CLARIFIED BY THE TRIBUNAL, THE QUESTION OF APPLICABILITY OF MUTUALIT Y RAISED BY THE ASSESSEE AS AN ALTERNATE GROUND IS KEPT OPEN. 8. RESULTANTLY, THE ASSESSEES APPEAL STANDS ALLOWE D FOR STATISTICAL PURPOSES IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH AUGUST, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 16 . 08.2017 SR.PS:- THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. , ( ) / THE CIT(A) 4. , / CIT CONCERNED 5. $'. , . , / DR, ITAT, MUMBAI 6. / / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI