TMI Blog2018 (4) TMI 1576X X X X Extracts X X X X X X X X Extracts X X X X ..... ial benefits, we find that the case is squarely covered in favour of the assessee by order of the ITAT in assessee’s own case [2017 (11) TMI 1370 - ITAT DELHI] for assessment year 2012-13 wherein a similar direction by the Ld. CIT (A) was upheld by the coordinate bench of this Tribunal. - Benefit of exemption allowed - Decided against the revenue. - ITA Nos. 4996, 4997/Del/2014, CO No. 103/Del/2015 (In Appeal No. 4996/Del/14 - - - Dated:- 27-4-2018 - SHRI G.D. AGRAWAL, HON BLE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER Assessee by: Shri S.R. Senapati, Sr. DR Department by : Shri K. Sampath, Advocate Shri Raj Kumar, Advocate O R D E R PER BENCH: ITA No. 4996/Del/2014 has been preferred by the Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round Nos. 3 and 4 in ITA No. 4996/Del/2014 and ground Nos. 3,4,5,6 and ITA No. 4997/Del/2014 have been incorrectly raised by the department as these grounds were not the subject matter of appeal/s by the assessee before the Ld. CIT (A). It was submitted that these grounds were not arising out of the impugned orders and hence they were liable to be dismissed as being infructuous. 4. The Ld. Sr. DR vehemently supported the order/s of assessment and pointed out that the AO had correctly applied the relevant provisions of the Act in terms of the facts of the case. It was argued that there was huge generation of surplus year after year which proved beyond doubt that the activities of the Association were commercial and not charitable in natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rammes and also provided hostel services. 5.1 It is undisputed that the assessee has been enjoying exemption u/s 11 of the Act for many years and in some assessment years when the exemption was denied by the lower authorities, the matter travelled up to the ITAT and the ITAT also returned a finding in favour of the assessee e.g. in assessment years 1988-89, 1990-91, 1991-92, 2010-11, 2011-12 and 2012- 13. It is seen, during both the years under consideration, the AO has denied exemption mainly on the ground that the assessee is having surplus and is also involved in commercial activities like operating hostels. The AO has noted that post amendment to section 2 (15) of the Act, a charitable trust, with the object of general public utility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012-13. Although, the department has argued vehemently against the action of the Ld. CIT (A) in directing the allowance of exemption, no material evidence distinguishing the facts from the earlier years or any factual or legal infirmity in the order of the Ld. CIT (A) could be pointed out before us. Para 26-27 of the ITAT s order for assessment year 2012-13 in ITA No. 4983/Del/2015 are relevant and the same are being reproduced for a ready reference :- 26. We notice that in the past similar objections have been taken in assessment by the respective Assessing Officers. In AY 1989-90 the Tribunal in the assessee's own case dismissed the departmental ground of appeal where it was alleged that the CIT (A) had erred in holding that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charitable pursuits is inexceptionable. This has been so held by the apex court in Thiagarajar Charities vs. Addl CIT (1997) 225 ITR 1010 (SC). 27. Further the Hon'ble Delhi High Court has ruled that the expression charitable purpose as defined in Section 2(15) of the Act could not be construed literally and in absolute terms. The expression would take its colour and had to be considered in the context of Section 10(23C)(iv) of the Act. The court held that if in terms of the dominant and primary objectives of the Institution there was no desire to gain profits and the object was to promote trade and commerce not for itself but for the nation was to be construed as a charitable purpose. Thus, on a careful consideration of the entir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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