AUDIT BUREAU OF CIRCULATIONS, MUMBAI V. ADDL DIT (E) RG-II, MUMBAI

ITA 5681/MUM/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5431 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 18-12-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RESPECTIVELY ITA NO M
• Keywords: Depreciation; Charitable institution; Capital expenditure
• Section: 142(1); 12A; 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI G. S. PANNU , AM AND SHRI AMARJIT SINGH , JM I.T.A. NO . 5681 /M/ 20 1 5 & 6393/M/2016 ASSESSMENT YEAR : 2011 - 1 2 & 2012 - 13 M/S. AUDIT BUREAU OF CIRCULATIONS WAKEFIELD HOUSE, SPROTT ROAD, BALLARD ESTATE, MUMBAI. PIN:400001 VS. ADDL. DIRECTOR OF INCOME TAX (EXEMP.), RANGE - 11 MUMBAI ( NOW INCOME TAX OFFICER (EXEMPTION) 1(1) PIRAMAL CHAMB ER, MUMBAI ./ ./ PAN/GIR NO. : AAATA 4100 F (APPELLANT ) .. (RESPONDENT ) DATE OF HEARING : 20 .0 7 .201 8 DATE OF PRONOUNCEMENT : 31 .07 .2018 O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE ABOVE MENTIONED APPEA LS AGAINST THE ORDER DATED 21.10.2015 & 16.09.2016 PASSED BY THE COMMIS S IONER OF INCOME TAX (APPEALS) - 1 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE ASSESSMENT YEAR S 2011 - 12 & 2012 - 13 RESPECTIVELY. ITA NO.5681 /M/201 5 : - ASSESSEE BY: SHRI SUNIL NAHTA (AR) DEPARTMENT BY: SHRI RAJESH KUMAR YADAV (DR) ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 2 2. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 21.10.2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 1, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE ASSESSMENT YEARS 2011 - 12. 3 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) (HEREINAFTER REFERRED AS CIT(A)') ERRED IN CONFIRMING THE ACTION OF THE LD. ASSESSING OFFICER OF DENIAL OF CLAIM FOR E XEMPTION UNDER SECTION II OF THE INCOME TAX ACT, 1961 TO THE APPELLANT BY INVOKING THE PROVISO TO SECTION 2(15) OF THE INCOME TAX ACT, 1961 AND THE REASONS ASSIGNED FOR DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, PROVISIONS O F INCOME TAX ACT, 1961. AND RULES MADE THERE UNDER 1(B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES ERRED IN HOLDING THE APPELLANT ACTIVITY IN THE NATURE OF TRADES COMMERCE OR BUSINESS AND THEREBY ERRED IN HOLDING TH AT THE APPELLANT IS NOT ELIGIBLE FOR CLAIM OF EXEMPTION ULS 11 OF THE INCOME TAX ACT, 1961. 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES ERRED IN HOLDING THAT INTEREST OF RS. 77,91,750 EARNED ON FIXED DEPOSIT WITH S CHEDULE BANKS IS CHARGEABLE TO TAX BEING NOT COVERED BY PRINCIPLES OF MUTUALITY WITHOUT APPRECIATING THE FACT THAT THE APPELLANT HAS ALREADY CONSIDERED THE SAME AS A TAXABLE RECEIPTS AND THE REASONS ASSIGNED FOR DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THEREUNDER. 3 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN NOT ALLOWING CAPITAL EXPENDITURE OF RS. 15000 INCURRED BY THE APPELLAN T AS APPLICATION OF INCOME FOR THE OBJECTS OF THE TRUST AND THE REASONS ASSIGNED FOR NOT DOING SO IS WRONG & CONTRARY TO THE FACTS OF THE CASE, THE PROVISIONS OF THE INCOME TAX ACT, 1961 AND THE RULES MADE THEREUNDER. 4(A) ON THE FACTS AND IN THE CIRCUMSTA NCES OF THE CASE AND IN LAW, THE LEARNED C1T(A) ERRED IN UPHOLDING THE ACTION OF THE LEARNED ASSESSING OFFICER OF TREATING SUBSCRI PTION RECEIVED FROM ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 3 MEMBERS RS. 1,22, 92,183 AND ENTRANCE FEES OF RS. 7,61,075/ - AS INCOME CHARGEABLE TO TAX WITHOUT APPRECIATING THAT THE SAID RECEIPTS ARE EXEMPT FROM INCOME TAX UNDER THE PRINCIPLE OF MUTUALITY AND THE REASONS ASSIGNED FOR DOING SO ARE WRONG AND CONTRARY TO THE FACTS OF THE CASE, PROVISIONS OF THE INCOME TAX ACT, 1961 AND RULES MADE THEREUNDER. 4(B) ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ACTION OF CHARGING TO TAX THE SUBSCRIPTION RECEIVED FROM MEMBERS AND ENTRANCE FEES IS CONTRARY TO THE DECISION OF THE HON'BLE 1TAT IN THE APPELLANT'S AWN CASE IN ITA NO. 285 & 286/BOM/95 FO R A. Y S 1989 - 90 & 1990 - 91. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR MODIFY ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 4 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETUR N OF INCOME FOR THE A.Y. 2011 - 12 ON 28.09 .201 1 ALONG WITH THE INCOME & EXPENDITURE ACCOUNT, BALANCE SHEET AND AUDIT REPORT IN FORM NO. 10B DECLARING TOTAL INCOME AT RS. NIL. THE INSTITUTION WAS REGISTERED AS A CHARITABLE ORGANIZATION WITH DIT (EXEMPTION), MUMBAI U/S 12A VIDE REGISTRATION NO. INS/14619 DATED 11/11/1982. THE ASSESSEE ACCORDINGLY CLAIMED EXEMPTION U/S 11 OF THE I.T. ACT, 1961. THE CASE WAS SELECTED FOR SCRUTINY , THEREFORE, NOTICES U/S 143(2) & 142(1) OF THE ACT ALONG WITH QUESTIONNAIRE WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSING OFFICER WITHDREW THE EXEMPTION U/S 11 OF THE I.T. ACT, 1961 IN PURSUANT TO THE CHANGE IN THE DEFINITION OF SECTION 2(15) OF THE I.T. ACT, 1961. THE ASSESSEE WAS INCORPORATED AS A COMPANY UNDER SECTION 25 FOR THE PURPOSE OF SEC URING ACCURATE CIRCULATION FIGURES AND DATA RELATING TO ALL PERIODICALS AND MEDIA AND SELL ADVERTISING SPACE AND A LSO INFORMATION AS TO THE AREA OF ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 4 DISTRIBUTION OF PERIODICALS SO AS ASSIST THE ADVERTISERS IN ESTIMATING THE VALUE OF ANY PUBLICATION FOR AD VE RTISING PURPOSES. FOR ASCERTAINING THE CIRCULATION FIGURE, THE ASSESSEE CONDUCT ED AN INDEPENDENT AUDIT OF ITS MEMBERS. THE BUREAU GIVES A CERTIFICATE OF CIRCULATION TO ITS MEMBERS ON THE BASIS OF THE AUDIT REPORT. THE ABC CERTIFICATE INDICATES THE ACTUAL NUMBER OF CIRCULATION OF NEWSPAPERS, MAGAZINES, ETC. THIS COPY WAS SAID TO BE PRIN TED AND SUPPLIED TO MEMBERS ON NO PROFIT NO LOSS BASIS. THE ABC CERTIFICATE WAS USED BY MEMBERS AS AUTHENTICATED PROOF OF FIGURES OF CIRCULATION WITH ADVERTISERS AND OTHER AGENCIES. THE PUBLISHER S ALSO USED TO GET THEIR QUOTA OF NEWSPRINT BASED ON THIS CER TIFICATE. IN VIEW OF THE AMENDED PROVISION OF SECTION 2(15) OF THE ACT , T HE NOTICE WAS GIVEN TO THE ASSESSEE AND AFTER GETTING THE REPLY THE ASSESSING OFFICER WAS OF THE VIEW THAT THE BUREAU INDEPENDENT AUDIT OF CIRC ULATION FIGURES ESSENTIALLY ASSIST THE A DVERTISER IN ESTIMATING THE VALUE OF BENEFIT OF ADVERTISEMENT IN A PERIODICALS OR NEWSPAPERS. IT IS THE ADVERTISER OF ADVERTISING AGENCIES THAT BENEFITED FROM CIRCULATION FIGURE . THERE WAS NO UTILITY/BENEFIT TO THE GENERAL PUBLIC. THE ASSESSEE ALSO RECEIVE D THE CONTRIBUTION TO THE TUNE OF RS.1,22,92,183/ - AND ENTRANCE FEES OF RS.7,61,075/ - . THE SAME WAS CONSIDERED AS A COMMERCIAL ACTIVITY IN VIEW OF THE PROVISION U/S 2(15) OF THE ACT. THE SAID CLAIM WAS ALSO DISALLOWED WHEN THE ASSESSEE CLAIMED ON THE BASIS OF THE PRINCIPLE OF MUTUALITY BY TREATING AS SAME A COMMERCIAL IN NATURE. THE DEPRECIATION WAS ALSO DISALLOWED AND THE INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS. 90,78,180/ - . T HE ASSESSEE FILED ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 5 AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX AP PEALS MUMBAI WHO DISMISSED THE APPEAL OF THE ASSESSEE , THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE NO S .1: - 5 . UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED THE DENIAL OF CLAIM FOR EXEMPTION U/S 11OF THE ACT, 1961 BY INVOKING THE PROVISION U/S 2(15) OF THE ACT. THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE ASSESSEE COMPANY WAS INCORPORATED ON 28.04.1948 UNDER THE COMPANIES ACT, 1956 WITH THE NAME AS AUDIT BUREAU CIRCULATIONS LIMITED WITH A DOMINANT OBJECT TO SECURE ACC URATE FIGURES OF CIRCULATION OF NEWSPAPERS AND PERIODICALS PUBLISHED IN THE COUNTRY THROUGH A STANDARD PROCESS OF INDEPENDENT AUDIT TO ASSIST THE ADVERTISERS IN ESTIMATING THE VALUE OF ANY PUBLICATION FOR REACHING CONSUMERS. THE BUREAU GIVES ABC CERTIFICAT E AT FREE OF COST TO MEMBERS AND IN CASE MEMBERS REQUIRES ANY EXTRA COPIES, THE SAME IS PROVIDED ON NOMINAL CHARGE TO RECOVER THE COST OF COPYING. THE BUREAU OBTAINED THE REGISTRATION U/S 12A OF THE I.T. ACT, 1961 ON 11.11.1982 AND THEREAFTER, THE APPELLAN T WAS CONTINUOUSLY CLAIMING THE EXEMPTION U/S 11 OF THE I.T. ACT AND THE EXEMPTION WAS ALLOWED BY INCOME TAX AUTHORITY BUT A FTER THE AMENDMENT OF SECTION 2(15) OF THE ACT , T HE CLAIM OF THE ASSESSEE WAS DECLINED WHEREAS THERE WAS NO CHANGE IN THE OBJECTS OF THE ASSESSE E, THEREFORE, THE FINDING OF THE CIT(A) IS WRONG AGAINST LAW AND FACTS AND IS LIABLE TO BE SET ASIDE. IT ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 6 IS ALSO ARGUED THAT THE CLAIM BY THE ASSESSEE U/S 11 OF THE I.T. ACT, 1961 WAS DECLINED IN THE A.Y. 1989 - 90 &1990 - 91 WHICH WAS ALLOWED BY T HE HONBLE ITAT IN THE ASSESSEES OWN CASE IN ITA. NO.285/BOM/1995 DATED 28.04.1995 AND THE NATURE OF THE WORK OF THE ASSESSEE DID NOT CHANGE TILL DATE BUT THE CLAIM OF THE ASSESSEE HAS WRONGLY BEEN DECLINED , THEREFORE, THE FINDING OF THE CIT(A) IS NOT LIA BLE TO BE SUSTAINABLE IN THE EYES OF LAW. IT IS ARGUED THAT THE CLAUSE 3,4 & 8 OF THE MEMORANDUM OF ASSOCIATION SPEAKS ABOUT OBJECT OF THE ASSESSEE WHICH NOWHERE LEADS THE NATURE OF THE WORK OF ASSESSEE AS COMMERCIAL IN NATURE , THEREFORE, THE FINDING OF THE CIT(A) IS NOT SUSTAINABLE AND THE CLAIM OF THE ASSESSEE IS LIABLE TO BE ALLOWED. IT IS ALSO ARGUED THAT AFTER AMENDMENT OF SECTION 2(15) OF THE ACT , THE CLAIM OF THE MUTUALITY HAS ALSO WRONGLY BEEN DECLINED BY REVENUE WHICH IS ALSO LIABLE TO BE ALLO WED IN THE INTERES T OF JUSTICE . I N SUPPORT OF THE SAID CONTENTION , THE LD. REPRESENTATIVE OF THE ASSESSEE HAS RELIED UPON THE CASES TITLED AS BOMBAY PRESIDENCY GOLF CLUB LTD. VS. D IT (EX.) (23 TAXMANN.COM 319) (MUM ITAT), HIRALAL BHAGWATI VS. CIT (246 ITR 188) (2000) (BOM. HIGH COURT), BAR COUNCIL OF MAHARASHTRA VS. CIT (126 ITR 27) (1980) (BOM. H.C.), SHRI KHOT HINDU STEEL MANDAL VS. CIT (209 ITR 396 (1993) (BOM HIGH COURT), BANGLORE CLUB VS. CIT (29 TAXMANN.COM 29) (2013) (SC) AND CIT VS. WELLINGTON SPOR TS CLUB (302 ITR 279) (2008) (BOM. HIGH COURT) . HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS STRONGLY RELIED UPON THE ORDER ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 7 PASSED BY THE CIT(A) IN QUESTION. WITH DUE REGARDS TO THE CONTENTION RAISED BY THE LD. REPRESEN TATIVE OF THE PARTIES AND PERUSING THE RECORD, WE NOTICED THAT THE CLAIM OF THE ASSESSEE HAS BEEN REJECTED DUE TO THE CHANGE IN DEFINITION OF SECTION 2(15) OF THE I.T. ACT, 1961. THE ASSESSEE C OMPANY WAS INCORPORATED ON 28.04.1948 UNDER COMPAN IES ACT 19 56. THE BUREAU OBTAINED LICENSE U/S 25 OF THE COMPAN IES ACT 1 956 ON 25.11.1988 AND NAME WAS CHANGED TO AUDIT BUREAU CIRCULATIONS. THE COMPANY GOT THE REGISTRATION U/S 12A OF THE I.T. ACT, 1961 ON 11.11.1982. SINCE THEN THE ASSESSEE WAS ALLOWED TO GET THE BENEFIT O F EXEMPTION U/S 11 OF THE I.T. ACT, 1961. THE CLAIM OF THE ASSESSEE FOR EXEMPTION U/S 11 OF THE ACT WAS DECLINED IN THE YEAR OF 1989 - 90 & 1990 - 91 WHICH WAS ALLOWED BY HONBLE ITAT IN APPEAL. IN BRIEF, THE CLAIM OF ASSESSEE WAS ALLOWED TILL THE PRESENT ORDE R WAS PASSED AFTER THE AMENDMENT IN SECTION 2(15) OF THE ACT. BEFORE GOING FURTHER IT IS NECESSARY TO ADVERT THE OBJECT OF THE ASSESSEE S COMPANY ON RECORD . C LAUSE 3 OF THE MEMORANDUM OF ASSOCIATION IS HEREBY REPRODUCED BELOW: - 3. THE OBJECTS FOR WHICH THE ASSOCIATION IS ESTABLISHED ARE: A) TO SECURE ACCURATE CIRCULATION FIGURES AND DATA RELATING TO ALL PERIODICALS AND MEDIA THAT SELL ADVERTISING SPACE AND IN REGARD TO SUCH PUBLICATIONS TO OBTAIN INFORMATION AS TO AREA OF AND FIX STANDARD FORMS AND METHO DS FOR ASCERTAINING THE NET SALES FIGURES AND GENERALLY ALL INFORMATION THAT WILL BE OF ASSISTANCE TO ADVERTISERS IN ESTIMATING THE VALUE OF AN PUBLICATION FOR ADVERTISING PURPOSES AND TO RECORD SUCH INFORMATION AND CIRCULATE IT TO MEMBERS OF THIS ASSOCIAT ION AND, PUBLICATIONS AND THE CIRCULATION OF THEM FOR THE BENEFIT OF MEMBERS OF THIS ASSOCIATION SUCH SERVICE TO BE KNOWN AS THE A.B.C. SERVICE OR BY SUCH OTHER NAME OR ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 8 DESCRIPTION AS THE COUNCIL FL91TTFTN MAY DETERMINE FROM TIME TO TIME. AA)TO SET UP A NE W DIVISION .OF THE BUREAU TO BE KNOWN AS 'NATIONAL READERSHIP STUDIES COUNCIL' IN THE FIELD OF READERSHIP STUDIES FOR CARRYING OUT READERSHIP SURVEYS COVERING ALL MAJOR PUBLICATIONS PUBLISHED IN INDIA, WHETHER OR NOT SUCH PUBLICATIONS ARE AUDITED BY THE BU REAU OR ARE PUBLICATIONS OF BUREAU'S MEMBERS, ARID TO RECORD, COLLECT AND DISTRIBUTE SUCH READERSHIP SURVEYS AND ALL INFORMATION RELATING THERETO TO ALL USERS THEREOF, WHO MAY REQUIRE THE SAME FOR ESTIMATING, THE VALUE OF SUCH PUBLICATIONS PUBLISHED IN IND IA. IRRESPECTIVE OF WHETHER OR NOT SUCH USERS ARE MEMBERS OF THE BUREAU. AAA) THE COMPANY MAY UNDERTAKE CIRCULATION AUDITS, DIGITAL AUDITS OF PUBLICATIONS PRINTED AND PUBLISHED WITHIN INDIA OR OUTSIDE INDIA AS WELL AS MEASUREMENTS OF WEBSITES CARRYING ADVE RTISEMENTS THROUGH ANY ELECTRONIC DEVICE AND DISSEMINATE SUCH INFORMATION TO ALL MEMBERS, B) TO COLLECT AND DISTRIBUTE AMONGST MEMBERS OF THIS ASSOCIATION INFORMATION RELATING TO ALL FORMS AND METHODS OF ADVERTISING. BB) TO SECURE, COLLECT, CIRCULATE AND D ISTRIBUTE INFORMATION RELATING TO ALL OR ANY OF THE MATTERS SPECIFIED IN THE PRECEDING THREE SUB - CLAUSES (A), (AA) AND (B) AMONGST ANY GOVERNMENT IN INDIA OR ABROAD OR ANY STATUTORY AUTHORITY CONSTITUTED BY ANY SUCH GOVERNMENT INTERESTED, DIRECTLY OR INDIR ECTLY IN ADVERTISING, AND AMONGST ASSOCIATIONS, BUREAUX, SOCIETIES, INSTITUTIONS AND FEDERATIONS. WHETHER IN INDIA OR ELSEWHERE AND WHETHER OR NOT MEMBERS OF THIS ASSOCIATION, HAVING OBJECTS SIMILAR TO THOSE OF THIS ASSOCIATION. BBB) TO PROMOTE, JOIN AS ME MBER, ASSOCIATE, OR OTHERWISE HE INTERESTED IN, AND TAKE HOLD AND DISPOSE OF SHARES IN, ANY OTHER COMPANY, ASSOCIATION, BUREAU, SOCIETY, INSTITUTION, FEDERATION OR OTHER ORGANISATION, WHETHER IN INDIA OR ELSEWHERE, HAVING OBJECTS SIMILAR TO THOSE OF THIS A SSOCIATION, OR OTHERWISE IN ANY MANNER CONCERNED WITH ADVERTISING OR CARRYING ON ANY BUSINESS CAPABLE OF BEING CONDUCTED SO AS DIRECTLY OR INDIRECTLY TO BENEFIT THIS ASSOCIATION. C) TO PURCHASE, TAKE ON LEASE OR IN EXCHANGE, HIRE OR OTHERWISE ACQUIRE ANY R EAL OR PERSONAL PROPERLY AND ANY RIGHTS OR PRIVILEGES WHICH THE ASSOCIATION MAY THINK NECESSARY OR CONVENIENT FOR THE PROMOTION OF ITS OBJECTS, AND TO CONSTRUCT, MAINTAIN AND ALTER ANY ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 9 BUILDINGS OR ERECTIONS NECESSARY OR CONVENIENT FOR THE WORK OF THE ASSO CIATION. D) TO SELL, LET, MORTGAGE, DISPOSE OF OR TURN TO ACCOUNT ALL OR ANY OF THE PROPERTY OR ASSETS OF THE ASSOCIATION AS MAY BE THOUGHT EXPEDIENT W ITH A VIEW TO THE PROMOTION OF I TS OBJECTS. E) TO UNDERTAKE AND EXECUTE ANY TRUSTS WHICH MAY LAW - FULLY BE UNDERTAKEN BY THE ASSOCIATION AND MAY BE CONDUCIVE TO ITS OBJECTS. F) TO BORROW OR RAISE MONEY FOR THE PURPOSES 01 THE ASSOCIATION ON SUCH TERMS AND ON SUCH SECURITY AS MAY BE THOUGHT FIT. G) TO INVEST THE MONEYS OF THE ASSOCIATION ROT IMMEDIATELY REQUIRE D FOR ITS PURPOSE IN OR UPON SUCH INVESTMENTS, SECURITIES OR PROPERTY AS MAY BE THOUGHT FIT. H) TO ESTABLISH AND SUPPORT OR AID IN THE ESTABLISHMENT AND SUPPORT OF ANY CHARITABLE OR BENEVOLENT ASSOCIATIONS OR INSTITUTIONS AND TO SUBSCRIBE OR GUARANTEE MONE Y FOR CHARITABLE OR BENEVOLENT PURPOSES IN ANY WAY CONNECTED WITH THE PURPOSES OF THE ASSOCIATION OR CALCULATED TO FURTHER ITS OBJECTS. 1) 10 DO ALL SUCH OTHER THINGS AS ARE INCIDENTAL AS THE ASSOCIATION MAY THINK CONDUCIVE TO THE ATTAINMENT OF THE ABOVE O BJECTS OR ANY OF THEM. J) TO PAY ALL THE EXPENSES CONNECTED WITH THE FORMATION AND INCORPORATION OF THE ASSOCIATION - K) EXCEPT AS OTHERWISE EXPRESSLY STATED TO DO ALL OR ANY OF THE FOREGOING THINGS ANYWHERE. PROVIDED THAT THE ASSOCIATION SHALL NOT SUPPORT WITH IT FUNDS ANY - OBJECT OR ENDEAVOUR TO IMPOSE ON OR PROCURE TO BE OBSERVED BY ITS MEMBERS OR OTHERS, ANY REGULATION, RESTRICTION OR CONDITION WHICH IF AN OBJECT OF THE ASSOCIATION WOULD MAKE IT A TRADE UNION. 6 . HOWEVER, CLAUSE 4, 5A AND 8 IS ALSO NECE SSARY TO BE REPRODUCED ON RECORD FOR READY REFERENCE.: - 4. THE INCOME AND PROPERTY OF THE ASSOCIATION, WHENSOEVER DERIVED, SHALL BE APPLIED SOLELY TOWARDS THE PROMOTION OF THE OBJECTS OF THE ASSOCIATION AS SET FORTH IN THIS MEMORANDUM OF ASSOCIATION AND NO PORTION THEREOF SHALL BE PAID OR TRANSFERRED DIRECTLY OR INDIRECTLY, BY WAY OF DIVIDEND, BONUS OR OTHERWISE HOWSOEVER BY WAY OF PROFIT TO THE MEMBERS OF THE ASSOCIATION. ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 10 PROVIDED THAT NOTHING HEREIN SHALL PREVENT THE PAYMENT, IN GOOD FAITH, OF REASONABLE AND PROPER REMUNERATION TO ANY OFFICER OR SERVANT OF THE ASSOCIATION, OR TO ANY MEMORANDUM OF THE ASSOCIATION IN RETURN FOR ANY SERVICES ACTUALLY RENDERED TO THE ASSOCIATION, NOR PREVENT THE PAYMENT OF INTEREST AT A RATE NOT EXCEEDING 6 PERCENT PER ANNUM ON MONEY LENT OR REASONABLE AND PROPER RENT FOR PREMISES DEMISED OR LET BY ANY MEMBER OF TH E ASSOCIATION; BUT SO THAT NO MEMBER OF THE COUNCIL OF MANAGEMENT OR GOVERNING BODY OF THE ASSOCIATION SHALT BE APPOINTED TO ANY SALARIED OFFICE OF THE ASSOCIATION PAID BY FEES, AND THAT NO REMUNERATION OR OTHER BENEFIT IN MONEY OR MONEYS WORTH SHELL BE G IVEN BY THE ASSOCIATION TO ANY MEMBER OF SUCH COUNCIL OR GOVERNING BODY EXCEPT REPAYMENT OF OUT - OF - POCKET EXPENSES AND INTEREST AT THE RATE AFORESAID ON MONEY LENT OR REASONABLE AND PROPER (ANT FOR PREMISES DEMISED OR LET TO THE ASSOCIATION PROVIDED THAT T HE PROVISION LAST AFORESAID SHALL NOT APPLY TO ANY PAYMENT TO ANY GAS, ELECTRIC LIGHTING, WATER OR CABLE COMPANY OF WHICH A MEMBER OF THE COUNCIL OF MANAGEMENT OR GOVERNING BODY MAY BE A MEMBER, OR ANY OTHER COMPANY IN WHICH SUCH MEMBER SHALL NOT HOLD MORE THAN ONE HUNDREDTH PART OF THE CAPITAL, AND SUCH MEMBER SHALL NOT BE BOUND TO ACCOUNT FOR ANY SHARE OF PROFITS HE MAY RECEIVE IN RESPECT OF ANY SUCH PAYMENT. 5 (A) ONE HALF OF THE MEMBERS FOR THE TIME BEING OF THE COUNCIL OF MANAGEMENT OF THE ASSOCIATION (HEREINAFTER CALLED THE COUNCIL') SHALL CONSIST OF PROPRIETORS OR PUBLISHERS OF NEWSPAPERS OR OTHER PERIODICALS WHICH CARRY ADVERTISING AND WHO ARE MEMBERS OF THE ASSOCIATION OR THEIR REPRESENTATIVES. (B) THE OTHER HALF OF THE MEMBERS FOR THE TIME BEING OF THE COUNCIL, SHALL CONSIST OF AND INCLUDE BOTH (I) MEMBERS OF THE ASSOCIATION WHO ADVERTISE COMMODITIES OR SERVICES IN ANY NEWSPAPER OR PERIODICAL, OR THEIR REPRESENTATIVES AND (II) MEMBERS OF THE ASSOCIATION WHO ARE ADVERTISING AGENTS OR THEIR REPRESENTA TIVES. 6. THE LIABILITY OF THE MEMBERS IS LIMITED. 7. EVERY MEMBER OF THE ASSOCIATION UNDERTAKES TO CONTRIBUTE TO THE ASSETS OF THE ASSOCIATION, IN THE EVENT OF THE SAME BEING WOUND UP DURING THE TIME THAT HE IS A MEMBER, OR WITHIN ONE YEAR AFTERWARDS, FO R PAYMENT OF THE DEBTS AND LIABILITIES OF THE ASSOCIATION CONTRACTED BEFORE THE TIME AT WHICH HE CEASES TO BE A MEMBER, AND OF THE COSTS, CHARGES AND EXPENSES OF UP THE SAME, AND FOR THE ADJUSTMENT OF THE RIGHTS OF THE C ONTRIBUTORIES AMONGST ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 11 THEMSELVES , SU CH AMOUNT AS MAY BE REQUIRED NOT EXCEEDING RUPEES FIFTEENS 8. IF UPON THE WINDING UP OR DISSOLUTION OF THE A SSOCIATION THERE REMAI NS AFTER THE SATISFACTION OF ALL AS DEBTS AND LIABILITIES ANY PROPERTY WHATSOEVER, THE SAME SHALL NOT BE PAID TO OR DISTRIBUTE D AMONG THE MEMBERS OF THE ASSOCIATION, BUT SHALL BE GIVEN OR TRANSFERRED TO SOME OTHER INSTITUTION OR INSTITUTIONS HAVING OBJECTS SIMILAR TO THE OBJECTS OF THE ASSOCIATION, AND WHICH SHALL PROHIBIT THE DISTRIBUTION OF ITS OR THEIR INCOME AND PROPERTY AMON G ITS OR THEIR MEMBERS TO AN EXTENT AT LEAST AS GREAT AS IS IMPOSED ON THE ASSOCIATION UNDER OR BY VIRTUE OF CLAUSE 4 HEREOF, SUCH INSTITUTION OR INSTITUTIONS TO BE DETER - MINED BY THE MEMORANDUM OF THE ASSOCIATION AT OR BEFORE THE TIME OF DISSOLUTION, OR I N DEFAULT THEREOF BY THE HIGH COURT OF BOMBAY AND IF AND SO FAR AS EFFECT CANNOT BE GIVEN TO SUCH PROVISION THEN TO SOME CHARITABLE OBJECT. 7 . THE OBJECTS OF THE ASSESSEE NOWHERE CHANGED HOWEVER AFTER THE AMENDMENT THE PROVISION US/ 2(15) OF THE ACT T HE CLAIM OF THE ASSESSEE U/S 11 OF THE ACT WAS DECLINED . THE AMENDED PROVISION U/S 2(15) IS HEREBY REPRODUCED BELOW.: - 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 ARTISTIC OR HISTORIC INTEREST, AND THE ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUBLIC UTILITY. PROVIDED THAT THE ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUBLIC UTILITY SHALL NOT BE A CH ARITABLE PURPOSE, IF IT INVOLVES THE CARRYING ON OF ANY ACTIVITY IN THE NATURE 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 CONSIDERATION, IRRESPECTIV E OF THE NATURE OF USE OR APPLICATION, OR RETENTION, OF THE INCOME FROM SUCH ACTIVITY: PROVIDED FURTHER THAT THE FIRST PROVISO SHALL NOT APPLY IF THE AGGREGATE VALUE OF THE RECEIPTS FROM THE ACTIVITIES REFERRED TO THEREIN IN (TWENTY FIVE LAKH RUPEES) OR LE SS IN THE PREVIOUS YEAR. ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 12 8 . NO DOUBT, IT IS REQUIRED TO BE SEEN WHETHER THE OBJECT OF THE ASSESSEE FA LLS WITHIN THE PURVIEW OF SECTION 2(15) OF THE ACT OR NOT. THERE IS NO CHANGE OF THE O BJECT OF THE ASSESSEE . T HE MAIN OBJECT OF THE ASSESSEE IS THAT THE ASSESSEE HAS TO SECURE ACCURATE CIRCULATION FIGURE AND DATA RELATING TO ALL PERIODICALS AND MEDIA THAT SELL ADVERTISING SPACE AN D IN REGARD TO SUCH PUBLICATION TO OBTAIN INFORMATION AS TO AREA OF DISTRIBUTION AND FIX STANDARD FORMS AND METHOD OF ASCERTAIN ING THE CIRCULATION FIGURES. BUREAU ALSO RECORDS INFORMATION AND CIRCULATE IT TO THE MEMBER S WHICH CONSIST OF PUBLISHER OF NEWSPAPER/ MAGAZINES ADVERTISING AND MEDIA AGENCIES ADVERTISERS AND GOVERNMENT PUBLICITY DEPARTMENT. IT ALSO DISTRIBUTE INFORMATION R ELATING TO AFORESAID MATTERS TO THE GOVERNMENT AND OTHER ASSOCIATION HAVING OBJECTS AND SIMILAR TO THOSE OF THIS ASSOCIATIONS. THE BUREAU CERTIFIES CIRCULATION FIGURES OF MEMBERS PUBLICATION BASED AND ON COMPREHENSIVE AUDIT BY THE AUDITOR FROM A PA N E L OF A PPROVED AUDITORS. THIS IS ONE OF THE MAIN ACTIVITY OF THE ASSESSEE COMPANY . HOW THE OBJECT S BEC AME COMMERCIAL IN NATURE IS NOT UNDERSTANDABLE. THE OBJECT S OF THE COMPANY ARE FOR THE ULTIMATE BENEFIT OF THE PUBLIC , BUT IN WHAT CIRCUMSTANCES THE OBJECT S OF THE ASSESSEE BECO ME C OMMERCIAL IN NATURE , IS NOT SUBSTANTIATED BY THE REVENUE IN FACT, E VEN A SINGLE TRANSACTION OF TRADE OR COMMERCIAL OR BUSINESS HAS NOT BEEN REFERRED TO BY THE REVENUE . T HERE WAS NO CHA NGE IN THE ACTIVITY OF THE ASSESSEE SINCE PAST YEARS, AND THEREFORE, THE AMENDMENT BY INSERTION OF THE PROVISO U/S 2(15) OF THE ACT WOULD NOT MAKE THE ACTIVITY OF T HE ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 13 ASSESSEE AS TRADE , BUSINESS AND COMMERCE IN NATURE SPECIFICALLY IN THE CIRCUMSTANCES WHEN THERE IS NO T A SINGLE INS TANCE O F ANY BUSINESS ON RECORD. THE DOMINANT PURPOSE IF ANY IS CHARITABLE AND INCIDENTAL ACTIVITIES ARE NOT REQUIRED TO BE TREATED AS BUSINESS IN NATURE . IN THIS REGARD, WE ALSO FIND IN SUPPORT OF LAW SETTLED IN BOMBAY PRESIDENCY GOLF CLUB LTD. VS. DIT (EX.) (23 TAXMANN.COM 319) (MUM ITAT) , INDIAN CHAMBER OF COMMERCE VS. ITO (ITA NO. 1491 & 1284/KOL/2012 (KOL. ITAT), BAR COUNCIL OF MAHARASHTRA VS. CIT(126 ITR 27) (1980) (BOM.HC) AND HIRALAL BHAGWATI VS. CIT(246 ITR 188) (2000) . SO FAR AS THE CLA IM IN CONNECTION WITH MEMBERS CONTRIBUTION AND ENTRANCE FEES ARE CONCERNED , THE SAME IS NOT LIABLE TO BE CHARGEABLE TO TAX IN VIEW OF THE LAW SETTLED IN CIT VS. WELLINGTON SPORTS CLUB ETC. FURTHER, WE NOTICED THAT THE CLAIM OF THE ASSESSEE U/S 11 OF THE I.T. ACT, 1961 WAS DECLINED IN THE YEAR OF 1989 - 90 & 1990 - 91 BY REVENUE WHICH WAS ALLOWED BY THE ITAT IN THE ASSESSEES OWN CASE. SINCE THEN TH ERE WAS NO CHANGE IN THE OBJECTS OF THE ASSESSEE TILL DATE. MERELY CAME INTO EXISTENCE OF PROVISION OF SECTION 2( 25) OF THE ACT NOWHERE MAKE S THE OBJECT OF THE ASSESSEE COMMERCIAL IN NATURE. INSTANCES OF BUSINESS AND PROFESSION ARE ALSO NOT ON RECORD. TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW T HAT THE CIT(A) HAS WRONGLY DENIE D THE CLAIM OF THE ASSESSEE U/S 11 OF THE ACT WHICH IS LIABLE TO BE ALLOWED IN THE INTEREST OF JU STICE. ACCORDINGLY, WE ORDER , T H E ISSUE NO. 1 AND 4 ARE DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 14 ISSUE NO.2 : - 9 . SO FAR AS THE CLAIM OF THE ASSESSEE I N CONNECTION WITH THE INTEREST ON DEPOSIT ARE CONCERNED, WE ARE OF THE VIEW THAT THE SAID INCOME DOESNT FALLS WITHIN THE PRINCIPLE OF MUTUALITY WHICH IS NOT LIABLE TO BE ALLOWABLE IN VIEW OF THE LAW SETTLED BANGALORE CLUB VS. CIT (2013) 212 TAXM AN 566(SC) CIVIL APPEAL NO. 124 & 125 OF 2007 DATED 14.01.2013. HOWEVER, THE APPELLANT STATED THAT THE SAID INTEREST INCOME HAS ALREADY BEEN OFFERED TO TAX IN THE RETURN OF INCOME FOR THE A.Y.2011.12. ISSUE NO.3 : - 10 . ISSUE NO. 3 IS IN CONNECTION WITH THE CONFIRMATION OF THE DISALLOWANCE OF CAPITAL EXPENDITURE OF RS.15,000/ - INCURRED BY THE APPELLANT AS APPLICATION OF INCOME FOR THE OBJECTS OF THE TRUST. THE ASSESSEE RAISED THE EXEMPTION U/S 11 OF THE ACT AND ALSO CLAI MED THE CAPITAL EXPENDITURE INCURRED FOR FIX ASSETS TO THE TUNE OF RS.15,000/ - . AO DISALLOWED THE SAME ON THE GROUND OF CLAIM OF DEPRECIATION ON THE SAID AMOUNT. THERE IS NO CLAIM OF DEPRECIATION. SINCE THERE IS NO PLAUSIBLE REASON ON RECORD TO DECLINE THE CLAIM OF TH E ASSESSEE, T HEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A) ON THIS ISSUE AND RESTORED THIS ISSUE BEFORE THE AO TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENU E. ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 15 IN RESULT, APPEAL FILED BY THE ASSESSEE I S HEREBY ORDERED TO BE PARTLY ALLOWED . I TA NO.6393 /M/201 6 ; - 11 . THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 16.09.2016 PASSED BY THE COMMISSIONER OF INCOME TAX (A) - 1, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVAN T TO THE ASSESSMENT YEAR 2012 - 13 . 12 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. 1(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) (HEREINAFTER REFERRED AS 'CIT(A)'T ERRED IN CONFIRMING THE ACTION OF THE LD. ASSESSING OFFICER OF DENIAL OF CLAIM FOR EXEMPTION UNDER SECTION 11 OF THE INCOME TAX ACT, 1961 AND THE REASONS ASSIGNED FOR DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUM STANCES OI THE CASE, PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THERE UNDER. 1(B) (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) (HEREINAFTER REFERRED AS 'CIT(A)') ERRED IN CONFIRM ING THE ACTION OF THE LD. ASSESSING OFFICER OF DENIAL OF CLAIM FOR EXEMPTION UNDER SECTION 11 OF THE INCOME TAX ACT, 1961 TO THE APPELLANT 'BY INVOKING THE PROVISO TO SECTION 2(15) OF THE INCOME TAX ACT, 1961 AND THE REASONS ASSIGNED FOR DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THERE UNDER. (II)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES FAILED TO APPRECIATE THAT, THE AMENDED PROVISIO NS OF SECTION 2(15) DC NOT CHANGE THE CHARACTER OR EXEMPT STATUS OF THE ASSESSEE. 1(C) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWE R AUTHORITIES ERRED IN HOLDING THAT THE MEMBERSH IP SUBSCRIPTION AND ENTRANCE FEES ARE TAINTED WITH COMMERCIALITY AND ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 16 BEYOND THE SCOPE OF MUTUALITY AND THEREB Y ERRED IN DENYING THE APPELLANT'S CLAIM FOR EXEMPTION U/S 11 OF THE INCOME TA X ACT, 1961, AND THE REASONS ASSIGNED FOR DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THERE UNDER. I (D) (I) ON THE FACTS AND III THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ACTION OF LOWER AUTHORITIES IN HOLDING THE APPELLANT ACTIVITY IN THE NATURE OF TRADE, COMMERCE OR BUS INESS AND THEREBY IN HOLDING THAT THE APP ELLANT IS NOT ELIGIBLE FOR CLAIM OF EXEMPTION U/S 11 OF THE INCOME TAX ACT, 1961 WHICH IS CONTRARY TO THE DECISION OF THE HON'BLE ITAT IN THE APPELLANT'S OWN CASE IN ITA NO. 285 & 2861BOM195 FOR A.Y'S 1989 - 90 & 1990 - 91 - (II) THAT THE ORDER OF THE ASSESSING OFFICER IS LEGALLY UNSUSTAINABLE AS UNDER SECTION 13(8) READ WITH SECTION 2(15), THE ASSESSING OFFICER CANNOT CHALLENGE THE PRIMARY ACTIVITIES OF THE ASSESSEE BASED ON WHICH THE CHARITABLE STATUS WAS GRANTED AND RE AFFIRMED BY THE HON'BLE ITAT IN THE APPELLANT'S OWN CASE IN ITA NO. 285 &. 286/BOM/95 FOR AX'S 1989 - 9O & 1990 - 91. 1(E) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND, IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ACTION OF THE LD. ASSESSING OFF ICER OF DENIAL OF CLAIM FOR EXEMPTION UNDER SECTION 1 1 OF THE INCOME TAX ACT, 1961 TO THE APPELLANT BY INVOKING THE P ROVISIONS OF SECTION 13(1 )(C)(II) &. 13(2)(G) R.W.S. I 3(3)(CC) OF THE INCOME TAX ACT, 1961 AND THE REASONS ASSIGNED FOR DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, PROVISIONS OF INCOME TAX ACT, 1961 AND RULES MADE THERE UNDER. 2(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN UPHOLDING THE ACTION OF THE LEARNED ASSE SSING OFFICER OF TREATING SUBSCRIPTION RECEIVED MEMBERS RS. 1,45,12,844 AND ENTRANCE FEES OF RS. 1,58,750/ - AS INCOME CHARGEABLE TO TAX WITHOUT APPRECIATING THAT THE SAID RECEIPTS ARE EXEMPT FROM INCOME TAX UNDER THE PRINCIPLE OF MUTUALITY AND THE REASONS ASSIGNED FOR DOING SO ARE WRONG AND CONTRARY TO THE FACTS OF THE CASE, PROVISIONS OF THE 1ICONIE.TAX ACT, 1961 AND RULES MADE. THEREUNDER. 2(B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ACTION OF LOWER AUTHORITIES IN CHARGING TO TAX THE SUBSCRIPTION RECEIVED FROM MEMBERS AND ENTRANCE FEES IS CONTRA RY TO THE DECISION OF THE HONBLE ITAT IN THE APPELLANT'S OWN CASE IN ITA NO. 285 & 286/BOM/95 FOR AX'S 1989 - 90 &. 1990 - 91. ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 17 THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR MODIFY, AL L OR ANY OF THE ABOVE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 13 . THE FACTS OF THE PRESEN T CASE ARE THAT QUITE SIMILAR TO THE FACTS OF THE CASE AS NARRATED IN TH E ABOVE MENTIONED APPEAL BEARING NO . 5681 /M/201 5 , T HEREFORE, THERE IS NO NEED TO REPEAT THE SAME , HOWEVER, THE FIGURE IS DIFFERENT. ISSUE NO.1 & 2 : - 14 . THESE ISSUES HAVE ALREADY BEING DISCUSSED AND DECIDED BY US WHILE DECIDING THE ISSUES NO. 1 AND 4 IN ITA. NO. 5681/M/2015 . THEREFORE, THE SAID ISSUES ARE BEING DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE ON SIMILAR LINES . 15 . IN THE RESULT , THE APPEALS FILED BY THE ASSESSEE IS HER E BY PARTLY ALLOWED . ORDER P RONOUNCED IN THE OPEN COURT ON 31 .0 7 . 2018 . SD/ - SD/ - ( G. S. PANNU ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 31. 07 . 2018 . V.P. SINGH / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - ITA. NO. 6393/M/16&5681/M/15 A.YS. 2012 - 13& 2011 - 12 18 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI