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2021 (3) TMI 1025 - HC - Income TaxAssessment of trust - 'Pharmacy' income as income of charitable trust - pharmacy income treated as business income by the Assessing Officer as well as the Commissioner as the assessee does not maintain separate books of accounts - HELD THAT:- From perusal of the provision of Section 11(4A) Sub-section (1) or sub-section (2) or sub-section (3) or sub-section (3A), it is evident that in order to claim benefit of the aforesaid provision, the assessee is required to comply with the twin conditions namely any Institution or Trust being profits and gains of business, unless such income is incidental to the attainment of the objective of the trust and maintenance of separate books of accounts by such Trust or Institution in respect of such business. From perusal of the order passed by the Tribunal, it is evident that the Tribunal has not recorded any reasons whether or not the assessee has complied with the twin conditions mentioned in sub-section 4A of Section 11. The order passed by the Tribunal is cryptic and suffers from the vice of non-application of mind. Therefore, the finding of the Tribunal insofar as it pertains to the first substantial question of law cannot be sustained. Accordingly, the order of the Tribunal dated 13.07.2016 insofar as it records the finding with regard to the first substantial question of law is hereby quashed. Therefore, it is not necessary to answer the same. The matter is remitted to the Tribunal for recording the finding on the aforesaid substantial question of law bearing in mind the mandate contained in Section 11(4A) of the Act. 15% for accumulation on gross receipts instead of net receipts - nature of receipts in the case of assessee - HELD THAT:- Assessee submitted that the second substantial question of law is no longer res integra and has already been answered against the revenue in 'COMMISSIONER OF INCOME-TAX Vs. RAJASTHAN AND GUJARATI CHARITABLE FOUNDATION' [2017 (12) TMI 1067 - SUPREME COURT] and another decision of Supreme Court in 'COMMISSIONER OF INCOME-TAX Vs. PROGRAMME FOR COMMUNITY ORGANISATION' [2000 (11) TMI 4 - SUPREME COURT]. The aforesaid submission could not be disputed by the learned counsel for the revenue. Substantial question of law No.2 decided in favour of the assessee.
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