TMI Blog2014 (1) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... de for fresh adjudication to decide the issue on the question of applicability of proviso to Section 2(15) of the Act. - I.T.A. No. 3290/Mum/2013 - - - Dated:- 27-11-2013 - Shri Vijay Pal Rao, JM And Shri N. K. Billaiya, AM,JJ. For the Petitioner : Shri A. H. Dalal For the Respondent : Shri Pitamber Das ORDER Per : Vijay Pal Rao, JM This appeal by the assessee is directed against the order dated 01.02.2013 of Commissioner of Income Tax(Appeals) for the assessment year 2009-10. 2. The assessee has raised the following grounds in this appeal: 1. i) The learned Chief Commissioner of Income Tax (Appeals) erred in upholding the order of the Assessing Officer in taxing the income of the appellant @ Rs. 68,45,200/- on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer has held that the activities of the assessee from which it derived income from sale of liquor, canteen compensation, daily card games and guest fees are in the nature of trade, commerce and business. Accordingly, the Assessing Officer held that the activity of the assessee are hit by the proviso to Section 2(15) of the Income Tax Act coupled with the withdrawal of the registration/exemption u/s 12A by the DIT(E). The A.O brought to tax the entire income of the assessee. On appeal, the CIT(A) has confirmed the action of the A.O by taking note of the fact that the exemption u/s 11 is contingent upon the grant of registration u/s 12A and once the registration is withdrawn the assessee no longer would be eligible for the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, the Ld. A.R has submitted that the assessee s status of charitable trust has been restored by the Tribunal and therefore the exemption u/s 11 cannot be denied to the assessee when the assessee is using the entire income for the purpose of advancement of the objects of the trust. In support of his contention he has relied upon the decision of Special Bench of this Tribunal in case of Breach Candy Swimming Bath Trust Vs ITO and submitted that the Special Bench has held that running a bar and restaurant is a property held under the trust for a charitable object within the meaning of Section 11(4) and not affected by Section 11(4A) of Income Tax Act. Therefore, it was held that the assessee trust is entitled to the exemption u/s 11. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 2(15) of the Income Tax Act. On appeal, the CIT(A) has decided the issue in para 4.4 of the impugned order as under: 4.4 I have carefully considered the submissions of the appellant, assessment order and facts of the case. The exemption u/s 11 is contingent upon the grant of registration u/s 12A. Once the registration is withdrawn the assessee no longer would be eligible for the exemption. Since, the exemption itself was withdrawn retrospectively w.e.f. A.Y. 2009-10 the question of granting exemption does not arise. In view of this, the A.O s action cannot be faulted. As regards the issue of DIT s power to withdraw retrospectively it is seen that the Hon ble Bombay High Court in the case of Sinhagad Technical Education Society Vs CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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