Gujarat Maritime Board, Gandhinagar V. The Dy. Commissioner of Income Tax (Exemptions), Circle-1, Gandhinagar

ITA 88/AHD/2020

AI Insights

The case involves multiple appeals by the Gujarat Maritime Board and the Department of Income Tax concerning the assessment years 2015-16 and 2016-17. The primary issues revolved around the classification of the Board's activities as charitable or business in nature, the applicability of sections 11 and 12 of the Income Tax Act, and the interpretation of section 2(15) related to the advancement of public utility. The Tribunal considered previous judgments and the specific provisions of the Gujarat Maritime Board Act, 1981, along with amendments to the Income Tax Act, to arrive at its decision.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 131443 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: C
• Next Hearing Date: 20-03-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 22-01-2020
• Other Referred Cases: CIT vs. Gujarat Maritime Board, AUDA vs. ACIT, Gujarat Industrial Development Corporation vs. CIT, Fr. Mullers Charitable Institutions vs. CIT, Jamsetji Tata Trust vs. JDIT (E), Gurdayal Berlia Charitable Trust vs. ITO
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Depreciation; Charitable institution; Tax effect; Benefit of exemption; TDS; Set aside
• Section: 12; 28; 2; 260A; 12A; 73; 13; 101

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “C” BENCH Before: Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member Gujarat Maritime Board , Circle-1 , Sagar Bhavan Secto r 1 0A, Opp. Air Force Station, Gandhinagar-382010 PAN: AABC G6676L (Appellant) Vs The DCIT (Exemption), Circle-1 Ah med abad (Resp ondent) Th e ACIT (Exemption), Circle-1 , Ah medabad (Appellant) Vs Gu jarat Maritime Bo ard, Circle-1, Sag ar Bhavan Sector 10A, Opp . Air Force Station, Gandhin agar-382010 PAN: AABCG667 6L (Resp ondent) Asses see b y : Shri S. N. Sopa rkar, Sr. A. R. & Shri Parin Shah, A. R. Revenue by : Shri A. P. Singh, CIT -D. R. & Shri Sa tish Solanki, Sr. D. R. Date of hearing : 21-03 -2 023 Date of pronouncement : 29-03 -2 023 ITA No. 300/Ahd/2019 & 88/Ahd/2020 Assessment Year 2015-16 & 2016-17 ITA No. 171/Ahd/2020 Assessment Year 2016-17 I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 2 आदेश/ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:- These are three appeals filed before us, two of which have been filed by the assessee against the order of ld. CIT(A) for assessment years 2015-16 and 2016-17 dated 25-01-2019 and 04-12-2019 respectively and one appeal has been filed by the Department against the order passed by the ld. CIT(A) for assessment year 2016-17 dated 04-12-2019. 2. Since common issues are involved in all the years under consideration, the appeals are being taken up together. ITA number 300/Ahd/2019: 3. The assessee has taken the following grounds of appeal: “1. Learned CIT (A) has erred in law and on facts in confirming the view taken by AO in holding that the activities carried out by the appellant were in the nature of business and confirmed computation of the excess of income over expenditure of previous year arising out of charitable activity of appellant as Income from business as per the manner prescribed u/s. 11(4) of the Act. Both the lower authorities have not appreciated the fact that the appellant has been granted registration u/s. 12A of the Act qualifying its income exempt from taxation as total expenditure (capital and revenue) incurred by the appellant is for "advancement of the object of general public utility". 2. Learned CIT (A) has erred in law and on facts in confirming the view taken by AO in holding that the appellant is covered by the I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 3 first and the second proviso to Section 2(15) of the Act and hence, provisions of Section 13(8) would be applicable. 3. Learned CIT (A) has erred in law and on facts in upholding the contention of the AO that the activities carried out by the appellant are business in nature and erred further in not granting exemption benefit of 15% of its gross receipts. 4. Learned CIT(A) has erred in law and on facts in upholding Assessing Officer's stance that the appellant has violated section 11(2)(b) r.w.s. 11 (5) of the Act. 5. Learned CIT (A) has erred in law and on facts in not adjudicating specifically on ground no. 8 of the appeal "Learned AO has erred in law and on facts in adding TDS of Rs. 42,89,06,705 being amount rightly deducted from income available for application purposes. The same be deducted now " 6. The appellant craves leave to add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal.” Grounds Numbers 1 to 3: Activities carried out by the assessee are in the nature of business and are governed by the provisions of section 11 (4) of the Act and the first and second proviso to section 2 (15) of the Act 4. The brief facts in relation to this ground of appeal are that the assessee, Gujarat Maritime Board was constituted under the Gujarat Maritime Board Act, 1981 for the purpose of development and maintenance of minor ports in the State of Gujarat. Hence, the activity of the assessee is related with providing of port infrastructure facilities, marine services and other related services, which is in the nature of advancement of “objects of I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 4 general public entity”. The assessee has been granted registration under section 12A(a) of the Act on 15-06-2005. During the course of assessment proceedings, the AO observed that amendment has brought into the definition of “charitable purposes” in section 2(15) of the Act with effect from 01-04-2009, as per which treatment of “advancement of object of general public utility” is separated from other charitable purposes such as relief to poor, education, medical relief etc. and as per the amended provisions, “other objects of public utility” shall not be a charitable purpose if it involves carrying of any activity in the nature of trade, commerce or business of rendering of any services in relation to any trade, commerce or business for cess or fees or any other consideration. Accordingly to the AO, in the instant set of facts, the activities carried out by the assessee are not for “charitable purposes” but are for advancement of any other object of public utility, which have been done against certain consideration. Therefore, since the assessee has done advancement of object of general public utility in lieu of consideration, it is outside the purview of section 2(15) of the Act. According to the AO held that the assessee’s income is therefore required to be assessed as regular business income and no deduction u/s 11 and 12 of the Act is allowable to the assessee. The AO made the following observations in the assessment order: “6.13. Thus, the submission of the assessee that, the assessee is carrying on the same nature of activity and same nature of income and therefore the income should be computed as per provisions of Section 11 to 13 of the I.T. Act is not acceptable since it is clearly evident that the assessee is engaged in the activity of earning profit from sale of plots/land, charging various fees for rendering services to the general public. The submission of the assessee is not relevant I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 5 since the income earned is business income and the application of the said income is irrelevant in view of the first proviso to section 2(15) of the I.T. Act which is as under:- Provided that the advancement of any other object of general public utility shall not be a charitable 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, irrespective 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 is [twenty Jive lakhs rupees] or less in the previous year;] Therefore, as discussed in preceding paras, it is hereby held that the assessee is not carrying out any charitable activity and is squarely covered by the proviso 1 & 2 of the Section 2(15) of the I.T. Act. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx 6.15. With the introduction of Sec 13(8) of the Act, w.e.f 1/04/2009 (Finance Act 2012), it is clearly evident that the assessee whose case is squarely covered by the proviso to Sec 2(15) shall forfeit all the exemptions that are otherwise available u/s 11 and 12 of the Act. The relevant provisions are as under: "(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 of 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 new sub-section (8) provides that the exemption under section 11 & 12 will not be available to a Trust, in a previous year, in which the First proviso to section 2(15) becomes applicable, for that previous year. I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 6 6.16. Therefore, in the light of the provisions of Sec 13(8) of the Act, the assessee loses all the exemptions claimed u/s 11 & 12 of the Act. It is clear from the plain reading of the said provision that once proviso to Sec 2(15) becomes applicable to the facts of the case, all the exemptions otherwise allowable u/s 11 and 12 are not available to the assessee in that previous year. Therefore, the assessee is not eligible to any of the exemption claimed u/s 11 and 12 of the Act and the deductions as mentioned in para-7 above are disallowed and added back to the total income of the assessee. Penalty proceedings are initiated u/s 271(l)(c) of Income tax Act, 1961 for furnishing inaccurate particulars of income.” 5. In appeal before Ld. CIT(Appeals), he dismissed the appeal of the assessee on ground that on similar issue for assessment year 2014-15, his predecessor Ld. CIT(Appeals) has dismissed the appeal of the assessee. The Ld. CIT(Appeals) made the following observations while dismissing the appeal of the assessee: “4.3 I have carefully considered the facts of the case, observation of the A.O and submission as well as the case laws relied upon by the appellant. On the similar issue for A.Y.2014-15, my predecessor by following the decision of the CIT(A), Gandhinagar for A.Y.2011-12 decided the issue as under:- .......CIT(A), Gandhinagar vide order No.CIT(A) GNR/383/2013-14 dated 7/5/2014 has dealt with the said issue. CIT(A), Gandhinagar has held as follows :- "6.1 I have considered the facts of the case, assessment order including submission of the Appellant and the observation of the AO in the light of the provisions of the Act as applicable for the year under consideration. The effective ground is that the appellant is carrying out port service activity as per provisions of Gujarat Maritime Board Act, 1981, and therefore, it should be treated as I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 7 'charitable body' particularly when the registration under Section 12A is granted. In this connect/on, it is admitted position of law that definition of 'charitable purpose' is narrowed down by the Finance Act, 2008 by inserting first proviso to that section. The relevant extract of the said provision is reproduced hereunder: "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 charitable purpose, if it involves the carrying on of any activity in the nature 1 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, irrespective 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 is twenty- five lakh rupees or less in the previous year" As per the aforesaid amended definition of "charitable, purpose" it is quite clear that an assesses whose main activity is of object of general public utility in the nature of trade, commerce or business by charging cess or fees cannot be regarded as 'charitable body'. 6.2 The aforesaid position of law is confirmed by Central Board of Direct Taxes (CBDT) vide its Circular No. 11 of 2008 dated 19 th December, 2008. In the said circular, CBDT has clarified that the activities in the nature of advancement of any other object of general public utility in the nature of trade, commerce or business, by charging cess or fee shall be excluded from the definition of 'charitable purpose, as provided in Section 2(15) of the Act. Further, CBDT has also directed to verify each fact of the case to arrive at the decision that such activity is not charitable in nature. I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 8 6.3 On careful consideration of details submitted by appellant along with audited accounts and Gujarat Maritime Board Act, 1981, it is observed that the main object of Appellant is to provide port service, which includes port infrastructure facilities and marine services, to the various business houses. None of the objects/activities of the Appellant falls within the-definition of (a) medical, (b) relief to poor; (c)education; and (d) preservation of monuments or places or objects of artistic or historic interest, Meaning thereby, the main object of the Appellant is of the advancement of object of general public utility. Further on perusal of the various schedules of income and expenditure accounts as reproduced by AO at para-5 and 9 of the assessment order, it is undisputed fact that income of Rs. 191,88,05,258 includes income from port infrastructure facilities, marine services, clearing, forwarding and stevedoring, storage rental, equipment rental, 'income from other port services and GoG Administrative charges, which suggests that Appellant is carrying out activity in the nature trade, commerce of business by charging cess or fees. Therefore, in the light of aforesaid Circular of CBDT and provisions of amended Section 2(15), the activity of Appellant does not fall within definition of 'charitable purpose'. 6.4 The Appellant has relied on the decision Himachal Pradesh Environment Protection and Pollution Control Board v/s CIT 9 ITR (Trib) 604 [2011]. However, the facts of the said case are different from the facts of the Appellant's case as much as in that case the main object of the assessee was preservation of environment which is a fourth limb of definition of 'charitable purpose' inserted by the Finance (No. 2) Act, 2009, w.e.f. 1-4-2009 whereas in the present case of the Appellant the main object is of the advancement of other object of general public utility, as discussed elaborately herein above. As already discussed above, in the case of first four limbs of definition of charitable purpose, first proviso to Section 2(15) shall not be attracted, and therefore in the light of the said provision Hon'ble I.T.A.T. has decided the issue in favour of assessee in the case of I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 9 Himachal Pradesh Environment Protection & Pollution Control Board. 6.5 The Appellant has also relied on the decision of Delhi High Court in the case of ICAI (347 ITR 99), the main object of assessee was of imparting education. The coaching classes and other diploma courses conducted by the assessee were held to be ancillary and incidental to the main object of providing main activity of providing education of chartered accountancy course. In that perspective, the Hon'ble High Court has decided the case in favour of ICAI. However, in the lights of the fact that the Appellant is carrying out advancement of other object of public utility in the name of trade, commerce or business by charging cess/fee, ratio of the said decision cannot be applied in the present case. 6.6 Further Appellant has relied on the decision of Hon'ble Ahmedabad I.T.A.T. in the case of Sabarmati Ashram Gaushala Trust (supra). In that case, the main object of the Trust was of relief to poor i.e. one of the first four limbs of- definition of 'charitable purpose'. Therefore, the Hon'ble I.T.A.T. has decided the issue in favour of the assessee. Further, it is pertinent to note that the Hon'ble I.T.A.T. has categorically mentioned that the this decision is delivered in peculiar facts and circumstances of the case, and shall not be taken as a precedent for charitable trusts doing business or trade under the garb of char/table activities. In view of these facts that the Appellant is carrying out activities in the nature of trade, commerce or business, as aforesaid, this decision is not applicable in its case. 6.7 In view of the aforesaid legal position, I am of the considered opinion that the activity of the Appellant is in the nature of advancement of other object of general public utility in the nature of trade commerce and business by charging fees and therefore is not in the nature of 'charitable purpose' as defined in Section 2(15) of the Act. I also rely on the decision of Hon'ble Andhra Pradesh High Court in case of Andhra Pradesh State Seeds Certification Agency v/s CCIT 212 Taxman 493 [2013] wherein petitioner was registered under Andhra Pradesh Public Societies Registration Act and was carrying on functions of certification agency under Seeds Act, 1966 and the Hon'ble High Court has held that as the assessee was I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 10 rendering its services directly to clients/agents who were engaged in trading of certified seeds with profit motive hence activities were not for 'advancement '-of any other object of general public utility and hence not charitable in view of first proviso to Section 2(15) of the Act. In the present case of the Appellant, it is admitted position that there is a huge reserve & surplus and also Appellant earned substantial profit in the year under consideration and therefore, profit motive of the Appellant is clear. Therefore, it is quite dear that the Appellant is engaged in trade, commerce or business and hit by first proviso to Section 2(15). 7. The Appellant has contended that as it is granted registration under Section 12A of the Act (which is in effect in the year under consideration), the deduction under Section 11 cannot be denied in view of the fact that it is carrying out activities as per its objects as enumerated in Gujarat Maritime Board Act, 1981. In this connection, it is pertinent to note the provision of sub-section (8) of Section 13 which reads as under: Section 13: Section 11 not to apply in certain cases. "13. (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 of 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. As I have already decided the issue against the appellant with respect to applicability of first proviso to Section 2(15) of the Act, as per provision referred herein above i.e. Section 13(8), the provision of section 11 is not applicable and no exemption can be granted under Section 11. On holistic consideration of the facts discussed herein above, the AO was correct in computing total income treating the Appellant's activity as business income and denying benefits available under Section 11 of the Act. Thus, all the 5 grounds of appeal herein above are dismissed. " 5.3 Respectfully agreeing with the decision taken by the CIT(A) for A.Y.2011-12, I am of the considered opinion that the appellant is covered by the first and second proviso to section 2(15) and hence I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 11 sec. 13(8) would be applicable to the appellant. Accordingly, the appellant cannot get the benefit of sec.11 & 12 of the Act. The appellant will also not be eligible for accumulation @ 15% u/s ll(l)(a) of the Act. As the appellant is being treated as AOP and taxed as per the provisions of section 28 to 44 of the Act, the appellant cannot claim expenditure on fixed assets as application of income. As far as ground no. 3 is concerned, the income of the appellant would be computed as per the provisions of section 28 to 44 of the Act. Accordingly, appellant would eligible to claim depreciation on the block of assets. The AO is directed to calculate the'same and allow the depreciation. The quantum spent on fixed asset would be capitalized. Accordingly, the ground of appeal Nos. 1, 2 & 3, are hereby dismissed. " 4.4 Since the ground.nos.1 to 2 of appeal and the submission^ made thereon are very much identical to those raised in the appeal for the A.Y.2013-14 which have been covered by the decision of my predecessor for A.Y.2013-14 who followed the decision of the CIT(A), Gandhinagar for A.Y.2011-12. Therefore, following the findings in respect of these identical grounds raised through appeals for A.Ys.2011-12 and 2013-14, the ground nos.1 & 2 are dismissed.” 6. The assessee is in appeal before us against the aforesaid order passed by Ld. CIT(Appeals) dismissing the appeal of the assessee on this issue. Before us, the counsel for the assessee submitted that the issue has now been decided in favour of the assessee by Ahmedabad ITAT in assessee’s own case for assessment year 2014-15 in ITA number 2526/Ahd/2017 vide order dated 01-06-2020 and the said order has also been confirmed by the Gujarat High Court in Tax Appeal number 26 of 2021. Further, the assessee’s case is also covered in favour in view of the decision of the honourable Supreme Court in the case of AUDA 449 ITR 1 (SC). In response, DR relied upon observations made by the Ld. CIT(Appeals) and AO in their respective orders. I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 12 7. We have heard the rival contentions and perused the material on record. We observe that the issue has been declared in favour of the assessee in the immediately preceding assessment year AY 2014-15 by Ahmedabad ITAT in assessee’s own case for assessment year 2014-15 in ITA number 2526/Ahd/2017 vide order dated 01-06-2020. In the aforesaid decision, the ITAT made the following observations: “12. We have heard the rival contentions of both the parties and perused the materials available on record before us. At the outset we note that the issue raised by the assessee in the present appeal has already been decided by this tribunal in favour of the assessee in its own case as contended by the learned AR for the assessee. The relevant extract of the order is reproduced below: 7. We have heard both the sides and perused the material on record. The assessee Gujarat Maritime Board is constituted under the provision of Gujarat Maritime Board, 1981 and established u/s. 3 of the act for the purpose of administering, controlling and managing minor ports in the State of Gujarat. As per section 4 of the act, the Board shall constitute of such member of board not being less than 5 and not more than 12 who shall be appointed by the State Government as mentioned in the section 4 of Gujarat Maritime Board Act, 1981. Section 73 for the Gujarat Maritime Act, 1981 state that all money received by it shall be credited to a fund called the general account of the miner ports and section 74 of the act state that amount credited to the general account u/s. 73 shall be applied by the board in payment of charges as specified in section 74 of the act. Under the Gujarat Maritime Board Act, 1981 rules and regulations has been established for the establishment of Gujarat Maritime Board, staff of the board, property and contract works and services to be provided at miner ports by the board, imposition and recovery of rates at ports, borrowing power of board, revenue expenditure, supervision and control I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 13 of state government, penalties, miscellanous etc. After perusal of the various provisions of the Gujarat Maritime Board Act, 1981, it is observed that management and control of the assessee trust was with the state government and there was no profit motive which is categorically clear from the provision of section 73, 74 and 75 of the Gujarat Maritime Board Act, 1981. We have also gone through the judicial pronouncements referred by the ld. counsel on the issue in the appeal. In the case of the assessee itself, the Co-ordinate Bench of the ITAT vide ITA No. 2933/Ahd/2009 for assessment year 2003-04 adjudicated on 27th April, 2016 held that assessee is a charitable trust engaged in the advancement of any other object of general public utility enumerated in section 2(15) of the Income Tax act, is not business undertaking. The relevant part of the decision of the Co-ordinate Bench of the above referred case is reproduced as under:- "7.5 From going through the above decision of the Co- ordinate Bench which is relied on the decision of Hon'ble Apex Court, that too in assessee's own case, i.e., CIT vs. Gujarat Maritime Board, reported in (2007) 295 ITR 561 (SC), wherein the Hon'ble Apex Court has observed that the appellant is established for the predominant purposes of development of minor ports within the State of Gujarat, the management and control of the Board is essentially with the State Government and there is no profit motive, as indicated by the provisions of section 73, 74 and 75 of the 1981 Act. The income earned by the Board is deployed for the development of minor ports in the State of Gujarat and therefore, they are entitled to be registered as charitable trust u/s 12A of the Income-tax Act, 1961. Therefore, respectfully following the decision of Hon'ble Apex Court and the Co-ordinate Bench, Ahmedabad (supra) in assessee's own case, we are inclined to believe that the assessee is a charitable trust carrying on activity of advancement of public utility without any profit motive and is required to be assessed as per the provisions of Section 11(1) of the Income-tax I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 14 Act, 1961. Accordingly, this ground of the assessee is allowed." We have also gone through the decision of Co-ordinate Bench of the ITAT in the case of assessee itself vide ITA No. 36/Ahd/2011 pronounced on 28th Jan, 2012 wherein the issue was decided in favour of the assessee. The relevant part of decision is reproduced as under:- "4. Having heard the submissions of both the sides, the provisions of section 12AA(3) prescribes that once a trust or an institution has been granted registration u/s. 2AA(3) and subsequently if the Commissioner finds that one of the condition, viz. the activity of the trust is not genuine or that the activity of trust not been carried out, then the Commissioner has power to cancel the registration granted u/s. 2AA(l) of IT Act. In the above cited decision of Ahmedabad Urban Development(supra), it was held that when under the Act a specific provision for cancellation of registration is prescribed and the cancellation is possible under specific condition then fulfillment of those conditions are necessary for invoking the jurisdiction u/s. 2AA(3). In the present case the reason for cancellation for registration was that the definition of charitable purpose u/s. 2(15) has been amended therefore the assessee has not carried out the activity as per the definition of "charitable purposes". This very issue has already been dealt with by the Respected Benches, therefore respectfully following these decisions we hereby reverse the view taken by the ld. Commissioner and direct not to cancel the registration u/s. 21AA(3) of the I. T. Act. Grounds raised by the assessee are hereby allowed." We have also gone through the decision of Hon'ble Gujarat High Court Vide 83 taxman.com 366 (Guj) CIT vs. Gujarat Industrial Development Corporation dated 28th June, 2017 wherein after following decision of Ahmedabad Urban Development Authority vide 83 taxman.com 78 it is held that I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 15 claim of fees or cess is incidental to the object and purpose of the act and even the case would not fall under the second part of proviso to section 2(15) of the act. It is further held that as the activities of the assessee is for advancement of any other object of general public utilities, the same can be of or charitable purpose and therefore the asssessee corporation shall be entitled to exemption u/s. 11 of the act. In the case of the Ahmedabad Urban Development Authority vs. ACIT(E) 92017) 83 taxman.com 78, the Division Bench of the Hon'ble Jurisdictional High Court has held that the activity carried by the Ahmedabad Urban Development Authority cannot be said to be for commercial purpose and proviso to section 2(15) of the I.T. Ac shall not be applicable and that the said Ahmedabad Urban Development Authority shall be entitled to exemption u/s. 11 of the act. The Division Bench of the Hon'ble Gujarat High Court has also observed that merely because AUDA is charging fees and/or cess, the activities cannot be said to be in the nature of trade, commerce or business and consequently held that the proviso to section 2(15) of the act shall not be applicable and therefore the assessee is entitled to exemption u/s. 11 of the act. At para 27 of the decision of Hon'ble Gujarat High Court in the case of CIT vs. Gujarat Industrial Development Corporation, it is also held that the charitable activities require operational/running expenses as well as capital expenses to be able to sustain and continue in long run and the petitioner has to be substantially self sustaining in long term and should not depend upon Government. In other words, tax payers should not subsidize the said activities which nevertheless are charitable. In the concluding para in the case of Gujarat Industrial Development Corporation 83 taxman 363 (Guj) Hon'ble Gujarat High Court has adjudicated the issue in favour of the assessee wherein it is held as under:- "17. Applying the aforesaid decision to the facts of the case on hand and the objects and purpose for which the assessee-Corporation is established and constituted under the provisions of the Gujarat Industrial Development Act, 1962 and collection of fees or cess is incidental to the object and purpose of the Act, and even I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 16 the case would not fall under the second part of proviso to Section 2 [15] of the IT Act. As the activities of the assessee is for advancement of any other object of general public utility, the same can be for "charitable purpose" and therefore, the assessee Corporation shall be entitled to exemption under Section 11 of the Act. No error has been committed by the learned Tribunal in holding so. We are in complete agreement with the view taken by the learned Tribunal." In the light of the above facts and findings, it is clear that the activities carried out by the assessee is for advancement of any other object of general public utility without any intention of the profit motive after considering the provision of the Gujarat Maritime Board Act, 1981 and fact of the case, it cannot be said that the activities carried out by the assessee are in the nature of trade commerce or business. It is observed that predominant object of the assessee is to administer control on miner ports in the State of Gujarat and there is no profit motive as demonstrated by the provision of section 73, 74 and 75 of the Gujarat Maritime Board Act, 1981. The Gujarat Maritime Board is under legal obligation to apply the income which arises directly and substantially from the business held under trust for the development of minor ports in the state of Gujarat. Further after following the decision of Hon'ble Gujarat High Court in the case of AUDA and GIDC, the fees collected by the assessee is incidental to the object and purpose of attainment of the main object for development of mining ports as enumerated in the provision of the Gujarat Maritime Board Act, 1981,therefore, we consider that activity of the assessee is for advancement of any other object of general public utility and not hit by the proviso to section 2(15) of the act, therefore, the assessee is entitled for exemption u/s. 11 of the act. Therefore, this ground of appeal of the assessee is allowed. In view of the above we find that the issue involved has already been decided by this tribunal in the own case of the assessee in its favour. Accordingly we set aside the finding of the learned CIT(A) and direct the AO to allow the benefit of the exemption to the I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 17 assessee under section 11 and 12 of the Act. Hence the ground of appeal of the assessee is allowed.” 7.1 Further, we observe that appeal by the Department against the aforesaid order has been dismissed by the Gujarat High Court in favour of the assessee. The relevant extracts of the decision of the Gujarat High Court in the assessee’s own case in Tax Appeal Number 26 of 2021 vide order dated 20-01-2021 is reproduced below for reference: “1. This tax appeal under Section 260A of the Income Tax Act, 1961 (for short “the Act, 1961) is at the instant of the Revenue and is directed against the order passed by the Income Tax Appellate Tribunal “A” Bench, Ahmedabad dated 01-06-2020 in the ITA No. 2526/Ahd2017 for the A.Y. 2014-15. The Revenue has proposed the following three questions of law for the consideration of this Court’ “(A) Whether on the facts and in the circumstances of the case and in law, the Appellate Tribunal is justified in negating the findings of the CIT(A) as well as the Assessing Officer denying the benefits of section 11 and 12 of the Act by invoking proviso to Section 2(15) r.w.s. 13(8) of the Act? (B) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in allowing the accumulation of 15% of Rs. 93,59,17,865/- without appreciating the fact that once the provision of Section 2(15) r.w.s. 13(8) is applicable, the assessee forfeits all the exemptions under Section 11 and 12 of the Act? (C) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in deleing the deduction in the fixed assets of Rs. 145,96,81,521/- without appreciating the fact that once the provision of Section 2(15) r.w.s. 13(8) is applicable, the assessee forfeits all the exemptions under Section 11 and 12 of the Act? I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 18 2. We have heard Ms. Mauna Bhatt, the learned senior standing counsel appealing for the Revenue and Mr. G.H. Virk, the learned counsel appearing for the respondent-assessee. 3. All the three questions, referred to above, as proposed by the Revenue are no longer re integra in view of the judgment of this High Court rendered in Tax Appeal No. 157 of 2020 and allied appeals, decided on 20 th September, 2020. 4. In view of the aforesaid, this tax appeal fails and is hereby dismissed.” 7.2 Respectfully following the order of the Ahmedabad ITAT and Gujarat High Court in assessee’s own case for assessment year 2014-15, ground Numbers 1 to 3 of assessee’s appeal are allowed. 8. In the result, ground Numbers 1 to 3 of the assessee’s appeal are allowed. Ground number 4: Ld. CIT(Appeals) erred in holding that the assessee has violated section 11(2)(b) r.w.s. 11(5) of the Act 9. The brief facts in relation to this ground of appeal are that during the course of assessment proceedings, the AO observed that the investments were made by the assessee in number companies which did not comply with the provisions of section 11(5) of the Act as these companies were not “public sector companies” as defined in section 2(36A) of the Act. The AO held that shareholding patterns of various companies in which the assessee has invested its funds revealed that some companies including GACL, GSFC Baroda, GCPTCL Gandhinagar and Gujarat State Petronet Ltd had ceased to I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 19 be “public sector companies” much before 31-12-2013 based on their shareholding pattern. The AO further observed that CIT (Appeals)-9, Ahmedabad has held in assessee’s own case for assessment years 2012-13 and 2013-14 that the assessee had violated the provisions of section 11(5) of the Act and that the provisions of section 13(1)(d) of the Act were applicable. Accordingly, the AO held that in view of the above facts, the assessee had clearly committed default complying with the provisions of section 11(5) of the Act, and therefore the AO held that the provisions of section 13(1)(d) of the Act were applicable to the assessee and hence the exemption claimed by the assessee under section 11 and 12 of the Act are not applicable as per the provisions of section 13(1) of the Act and the benefit of section 11 and 12 is not available to the assessee trust. 10. In appeal, Ld. CIT(Appeals) dismissed the appeal of the assessee with the following observations: “9.4 Thus it can be seen from the order for AY 2013-14 that at para 7.6.4, my predecessor has adjudicated as to whether the investments made by the appellant are in the realm of section 11(5)(vii) or not ? During the year under consideration i.e. AY 2015-16 there has been no change in the investments made by the appellant except in the case of GACL, Baroda. During AY 2013-14, the investment of appellant in GACL was Rs.9,06,29,500/- whereas during the year under consideration the investment in GACL stands at Rs. 24,11,83,751/-. As it has already been held that GACL, Baroda is not a Public Sector Company in terms of section 617 of the Companies Act 1956, thus conclusions drawn at in AY 2013-14 are applicable to AY 2015-16 as well. Appellant has violated of section 11(2)(b) r.w.s 11(5) resulting into violation of section 13(1)(d) of the Act. Thus ground no.8 is hereby dismissed.” I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 20 11. The assessee is in appeal before us against the aforesaid Issue confirmed by Ld. CIT(Appeals). The primary contention of the counsel for the assessee before us is that on the ground that in case there is violation of provisions of section 11(5) of the Act on the ground that investments were made by the assessee in companies which were not “public sector companies” as defined in section 2(36A) of the Act, this would not disentitle the assessee the complete benefit of section 11 and 12 of the Act as per the provisions of section 13(1) of the Act and the disallowance of benefit should be on that part of the income which has forfeited investments in terms of section 11(5) of the Act and benefit of section 11 & 12 cannot be denied on the entire income of the assessee trust. In response, DR relied upon the observations made by the Ld. CIT(Appeals) and AO in their respective orders. 12. We have heard the rival contentions and perused the material on record. Section 13(1)(d) provides that exemption from tax to charitable or religious trust / institution will be forfeited if any funds of the trust / institution are invested or deposited, otherwise than in any one or more of the forms or modes specified therein. We observe that the Karnataka High Court, in the case of CIT Vs Fr. Mullers Charitable Institutions [2014] 363 ITR 230 (Karn) held that perusal of section 13(1)(d) of the Act makes it clear that it is only the income from such investment or deposit, which has been made in violation of section 11(5) of the Act, that is liable to be taxed and violation of section 13(1)(d) does not result in denial of exemption under section 11 to the total income of the assessee trust. The aforesaid judgement of Karnataka High Court is based on the judgement of Bombay I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 21 High Court, in the case of DIT(E) Vs. Sheth Mafatlal Gagalbhai Foundation Trust [2001] 249 ITR 533 (Bom). In the case of Jamsetji Tata Trust Vs JDIT (E) [2014] 101 DTR (Trib) 305 (Mum), it was held that violation of section 13(1)(d) deprives exemption only to the income from investments not permitted under section 11(5) and not to the entire income of the trust, if the other income of the trust, otherwise fulfils the condition for exemption. Therefore, the exemption under section 11 would still be available to the assessee in respect of income, to the extent the same is derived in conformity to section 11 and applied during the year for the purposes of the trust. In the case of Gurdayal Berlia Charitable Trust Vs ITO [1990] 34 ITD 489 (Bom), it was held that non-fulfilment of the condition of investment under section 11(5) cannot deprive the trust of exemption of its other income, which has already been granted to it in the earlier years. The non-fulfilment of the condition under section 11(5) would only make a portion of the relevant income as specified under section 164(1), liable to tax. The jurisdictional Gujarat High Court in the case of CIT v S.P. Memorial Trust in Tax Appeal number 187 of 2005 vide order dated 13-11-2004. also allowed this issue in favour of the assessee. While passing the order, Gujarat High Court observed as under: “5. Having heard learned advocates for the parties we are of the opinion that the Tribunal was justified in upholding the order passed by CIT(A). The CIT(A) has very clearly observed that the provisions of Section 11(l)(a) are very clear and provide that the income derived from the property held under trust shall not be included in the income to the extent it is applied for the charitable or religious purposes (expenses incurred during the year) or accumulated/set apart to be applied for that purpose in I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 22 future out of 75% to which the restriction u/s 11(5) applies. The Tribunal has relied upon its own decision on a similar issue rendered in ITA No. 644 to 646/Rjt/2003 dated 22.12.2003. We are in complete agreement with the reasonings adopted by the CIT(A) as well as Tribunal. 6. Even otherwise, the law on the subject is also well settled. In the case of Fr. Mullers Charitable Institutions (supra) the Karnataka High Court has held that a perusal of section 13(l)(d) of the Income-tax Act, 1961 makes it clear that it is only the income from such investment or deposit which has been made in violation of section 11(5) of the Act that is liable to be taxed and violation under section 13(l)(d) does not result in denial of exemption under section 11 to the total income of the assessee and that where the whole or part of the relevant income is not exempted under section 11 by virtue of violation of section 13(l)(d) of the Act, tax shall be levied on the relevant income or part of the relevant income at the maximum marginal rate. Therefore, we do not see any reason in interfering with the impugned orders. 7. In the premises aforesaid, question raised in the present appeals is answered in favour of assessee and against the revenue. Appeals stand dismissed accordingly.” 12.1 In view of the aforesaid legal precedents, in our considered view, only the relevant income falling within the mischief of section 13(1)(d) of the Act will lose the benefit of exemption under section 11 and 12 of the Act and the balance of the total income of the trust will remain eligible for the benefit of exemption under section 11 of the Act. In other words, violation of section 13(1)(d) cannot lead to denial of exemption under section 11 and 12 of the Act, to the total income of the trust. I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 23 13. In the result, ground number 4 of the assessee’s appeal is allowed Ground number 5: addition of TDS of 42.89 crores being outrightly deducted from income available for application purposes 14. The limited issue for consideration with respect to this ground of appeal is that whether the amount deducted as TDS should also be considered for the purpose of application of income. In the assessment proceedings, the AO held that TDS is deemed to be income received as per section 198 of the Act. The AO held that the assessee has claimed deduction of TDS in computation of income, which is not allowable. Accordingly, the AO added the sum of 42.89 crores as income of the assessee. 15. In appeal before Ld. CIT(Appeals), he omitted to adjudicate on this issue. 16. In appeal before us, counsel for the assessee submitted that the issue is covered in favour of the assessee by several decisions of the High Courts on similar facts. In response, the DR relied upon the observations made by the AO in the assessment order. 17. We have heard the rival contentions and perused the material on record. In the case of CIT v. Ganga Charity Trust Fund29 taxman 413 (Guj), the Gujarat High Court held that payment of income-tax by assessee, a charitable trust, was a charge on income or outgoing which ought to be deducted before determining surplus income for purpose of application I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 24 under section 11(1)(a) of the Act. Again, in the case of CIT v. Jayashree Charity Trust159 ITR 280 (Calcutta), the High Court held that where net dividend received by assessee after deduction of tax at source was spent for charitable purposes, assessee was entitled to benefit of exemption on that portion of income which had been taken away by deduction of tax at source even though that amount had not been spent or accumulated for purposes of charity. 17.1 In view of the aforesaid decisions, in our considered view, AO has erred in law in adding TDS amount of 42.89 crores being the amount deducted from income available for application purposes. 18. In the result, ground number 5 of the assessee’s appeal is allowed. Assessee’s appeal in ITA number 88/Ahd/2020for assessment year 2016- 17 19. The assessee has taken the following grounds of appeal: “1. Ld. CIT(A) erred in law and on facts in confirming addition of Rs. 45,32,39,598 being Tax deducted at source being amount rightly deducted by appellant from the income available for purposes of application. Tax Effect Rs. 15,68,20,901/- 2. Ld. CIT(A) erred in law and on facts in wrongly interpreting applicability of section 13(l)(d) of the Act by observing that I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 25 investment in various public sector corporations is in violation of provisions of section 11(5) of the Act. N. A. being Technical Ground 3. Ld. CIT(A) erred in law and on facts in directing AO to allow TDS credit of Rs. 45,31,14,864/- if it appears in 26AS statement in relation to receipts credited Profit & Loss Account ignoring fact the appellant is a State Government entity -Local Authority and C&AG of India has not disputed such issue with regard to mismatch of TDS and corresponding income and accordingly Ld. CIT(A) ought to have allowed the same without sending the issue for verification. IT be so held no. Tax Effect Rs. 45,31,14,864/- 4. The appellant craves leave to add, amend, I alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal. TOTAL TAX EFFECT Rs. 60,99,35,765/-” Ground number 1 of assessee’s appeal: addition of 45.32 crores being TDS deducted by assessee from the income available for purpose of application 20. Before us, the counsel for the assessee submitted that ground number 1 of assessee’s appeal for assessment year 2016-17 is the same as ground number 5 of assessee’s appeal for assessment year 2015-16. Since, we have I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 26 adjudicated ground number 5 of the assessee’s appeal for assessment year 2015-16 in favour of the assessee, accordingly, ground number 1 of the assessee’s appeal for assessment year 2016-17 is also allowed accordingly. 21. In the result, ground number 1 of assessee’s appeal is allowed for assessment year 2016-17. Ground number 2: Ld. CIT(Appeals) erred in holding that the assessee has violated section 11(2)(b) r.w.s. 11(5) of the Act 22. The counsel for the assessee submitted that ground number 2 of the assessee’s appeal for assessment year 2016-17 is identical to ground number 4 of the assessee’s appeal for assessment year 2015-16. Accordingly, since we have allowed ground number 4 of the assessee’s appeal for assessment year 2015-16, we are accordingly, allowing ground number 2 of the assessee’s appeal for assessment year 2016-17. 23. In the result, ground number 2 of the assessee’s appeal is allowed for assessment year 2016-17. Ground number 3: non-grant of TDS credit amounting to 45.31 crores 24. Before us, the counsel for the assessee submitted that he shall not be pressing for ground number 3 for assessment year 2016-17. Accordingly, ground number 3 of the assessee’s appeal is being dismissed as not pressed. I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 27 25. In the result, ground number 3 of the assessee’s appeal for assessment year 2016-17 is being dismissed. Department appeal in ITA number 171/Ahd/2020 for assessment year 2016-17 26. The Department has taken the following grounds of appeal: “1. Whether, on the facts and in the circumstances of the case, the Ld. Commissioner of Income Tax (Appeals) is justified in allowing the assessee's appeal, negating the finding of the Assessing officer denying the benefits of section 11 and 12 of the Act by invoking proviso to section 2(15) of the Act? 2. Whether on the facts and in the circumstances of the case, the Ld. Commissioner of Income Tax (Appeals) is justified in allowing the accumulation of 15% without appreciating the fact that once the provisions of section 2(15) is applicable to the assessee, the assessee forfeits all the exemptions u/s. 11 and 12 of the Act in view of provisions of section 13(8) of the Act? 3. Whether, on the facts and in the circumstances of the case, the Ld. Commissioner of Income Tax (Appeals) is right in allowing depreciation on assets, full cost of which was already allowed as application in earlier years. The ratio of decision of the Supreme Court in Rajasthan and Gujarati Charitable Foundation is not applicable in the present case as in that case exemption under section 11 and 12 was available to the assessee, whereas in the present case, the exemption under section 11 and 12 is not available to the assessee as per the stand of the department. Therefore an AOP cannot be granted benefit of both depreciation and capital expenditure in accordance with normal business provisions of the Act. I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 28 4. Whether, on the facts and in the circumstances of the case, the Ld. Commissioner of Income Tax (Appeals) is right in allowing the claim of depreciation to the assessee by ignoring the fact that allowance of depreciation on the fixed assets, acquisition of which has been allowed as application of income in earlier years, will tantamount to double deduction particularly when benefit of section 11 & 12 has not been allowed and proviso to section 2(15) has been held to be applicable?” 27. We observe that ground Number 1 of Department’s appeal are identical to ground Numbers 1 of the assessee’s appeal for assessment year 2015-16. Accordingly, in light of our observations made for assessment year 2015-16 with respect to this ground of appeal, ground number 1 of the Department’s appeal is dismissed for assessment year 2016-17. Ground number 2 of the Department’s appeal being consequential to ground number 1 is also hereby dismissed. 28. In the result, ground Numbers 1 and 2 of Department’s appeal are dismissed for assessment year 2016-17. Ground number 3 and 4 of Department’s appeal: 29. Before us, the counsel for the assessee submitted that in view of amendment to section 11(6) of the Act by Finance act, 2015 with effect from 01-04-2015, this issue may be decided against assessee. 30. In view of the above, ground number 3 and 4 of the Department’s appeal are allowed. I.T.A Nos. 300/Ahd/2019, 88 & 171/Ahd/2020 A.Y. 2015-16 & 2016-17 Page No. Gujarat Maritime Board vs. DCIT & ACIT vs. Gujarat Maritime Board 29 31. In the result, the appeal of the Department is partly allowed. 32. In the combined result, the appeals of the assessee are partly allowed for assessment years 2015-16 and 2016-17 and the appeal of the Department is also partly allowed for assessment year 2016-17. Order pronounced in the open court on 29-03-2023 Sd/- Sd/- (WASEEM AHMED) (SIDDHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 29/03/2023 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/ आदेश से, उप/सहायक पंजीकार आयकर अपील य अ धकरण, अहमदाबाद