TMI Blog2017 (9) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption u/s 11. Even a single instance is not on the file which may describe this fact that the assessee has been involved in the trade, business and commerce. It is also came into notice that the revenue allowed the claim of the assessee in the earlier years and also allowed the claim of the assessee for the A.Y. 2010-11 u/s 143(3). There is no factual change in the activity of assessee in the current year. Taking into account of all the facts and circumstances of the case, we are of the view that the claim of the assessee has wrongly declined, therefore, the finding of the CIT(A) is wrong and against law and facts and is not liable to be sustainable. - Decided in favour of assessee. - I.T.A. Nos.5059/M/2015 And 71/M/2017 - - - Dated:- 13-9-2017 - SHRI R . C . SHARMA, AM AND SHRI AMARJIT SINGH, JM For The Assessee : Shri Rajesh Sanghvi ( AR ) For The Department : Shri V . Jenardhanan ( DR ) ORDER PER AMARJIT SINGH, JM : The assessee has filed the above mentioned appeals against the different order passed by the Commissioner of Income Tax (Appeals)-1, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crutiny, therefore, notices u/s 143(2) 142(1) of the Act were issued and served upon the assessee. On verification of income and expenditure account for the A.Y. 2011-12. The assessee has received the total receipts to the tune of ₹ 2,67,87,641/- under the various heads which is herby mentioned below.:- Particular Amount ( Rs .) Interest income on saving and fixed deposit 60,88,905 Interest on Income tax refund 1,25,440 Income from club house activities 2,05,73,296 Total Amount 2,67,87,641 4. The assessee received the income from Club House Activities to the tune of ₹ 2,05,73,296/- as mentioned below.:- Particular Amount ( Rs .) Receipt from Members and Guests 81,25,708 Fees from members Guest 1,03,44,491 Compensation from caterers 16,98,000 Locker rent 60,300 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o argued that the same view has been taken by the Hon ble ITAT in the case title as ITO Vs. Chembur Gymkhana (2017) 80 taxmann.com 354 Mumbai Tribunal. It is specifically argued that the while declining the claim of the assessee u/s 11 r.w.s 13(8) of the Act, no transaction of any kind was discussed by the AO which was in nature of trade business and commerce, therefore, the Assessing Officer has wrongly declined the claim of the assessee, hence, the finding of the CIT(A) is liable to be set aside and the claim of the assessee is liable to be allowed. In support of these contention the Ld. representative of the assessee has also relied upon the following law :- 1 . Calcutta Cricket Footbal Club Vs . Ito Exemption In ITA . Nos 466 / Kol / 2016 dated 05 . 08 . 2016 for A . Y . 2011 - 12 2 . Navi Mumbai Gymkhana ITAT Mumbai ITA No . 196 / Mum / 2013 dated 21 . 05 . 2014 for A . Y . 2009 - 10 . 3 . Chembur Gymkhana Mumbai ITAT ITA Nos . 3033 / Mum / 2015 Dated 08 . 03 . 2017 for A . Y . 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Section 2(15) of the Act or not. The said amendment came in existence under finance Act, 2008 by adding a proviso which states that the advancement of any other object of general public utility charitable shall not be a charitable purpose if it involves the carrying on of any activity in the nature of trade, commerce and business or any activity of rendering any service in relation to any trade, commerce and 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 activities unless - (1) such activity is undertaken in the course of actual carrying out of such advancement of any other object of general public utility, and (2) the aggregate receipts from such activity or activities during the previous year, do not exceed twenty per cent of the total receipts, of the trust or institution undertaking such activity or activities, of that previous year 9. On appraisal of the finding of the Assessing Officer, we noticed that the Assessing Officer observed that the income from club house activities to the tune of ₹ 2,05,73,296/- vide which the receipts were from member of guest, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee in the earlier years and also allowed the claim of the assessee for the A.Y. 2010-11 u/s 143(3) of the I.T. Act, 1961.There is no factual change in the activity of assessee in the current year. Taking into account of all the facts and circumstances of the case, we are of the view that the claim of the assessee has wrongly declined, therefore, the finding of the CIT(A) is wrong and against law and facts and is not liable to be sustainable. Accordingly, we set aside the finding of the CIT(A) on these issues and allowed the claim of the assessee. 11. In the result, appeal filed by the assessee is hereby allowed. ITA NO . 71 / M / 2017 :- 12. The assessee has raised the following grounds:- 1 . In the facts circumstances of the case and in law, the Ld . CIT ( A ) has erred in denying the benefit u / s 11 by invoking the first proviso to sec 2 ( 15 ) and by ignoring the relevant circulars and case laws as quoted . 2 . In the facts circumstances of the case and in law, the Ld . CIT ( A ) has erred by not treating sports recreational activities as in the nature of charitable purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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