TMI Blog2019 (3) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the Revenue along with a cross objection by the assessee is against the order dated 13.01.2017 passed by the Commissioner of Income Tax (Appeals)-9, Ahmedabad arising out of the order dated 27.03.2015 passed under section 143(3) of the Income Tax Act, 1961 (hereinafter referred as to The Act ) for the Assessment Year 2012-13 with the following grounds: 1. Whether on the facts and in the circumstances of the case is the Ld CIT(A) justified in allowing the benefit of exemptions u/s 11 ignoring the fact that the assessee is involved in widespread commercial activities in nature of business. 2. Whether on the facts and in the circumstances of the case is the Ld CIT(A) justified in allowing the set off of carry forward losses of earlier years against the income of current year in spite of the fact that there is no express provision in law allowing the same. 3. On the facts and circumstances of the case, the ld CIT(A) ought to have upheld the order of the Assessing Officer. 4. It is, therefore, prayed that the order of the ld CIT(A) may be set aside and that of the AO be restored. 2. The assessee, a trust registered u/s 12AA of the Act vide registration N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come of the current year was also allowed by the Learned CIT(A) relying on the order passed by the Hon ble Jurisdictional High Court in the case of CIT-vs-Sheth Manilal Ranchhoddas Vishram Bhavan Trust 198 ITR 598 (Guj). Hence, the appeal filed by the Revenue is before us. 3. At the time of hearing of the instant appeal the Learned Advocate appearing for the assessee submitted before us that the issue involved in this matter is squarely covered by the assessee s own case for A.Y. 2011-12 passed in ITA No.2496/Ahd/2015 with CO No.184/Ahd/2015 which was subsequently upheld by the Jurisdictional High Court in Tax Appeal No.522 of 2018 in favour of the assessee copies whereof have been placed on record before us. The Learned DR however fail to controvert such contentions made by the Learned AR. 4. Heard the respective parties perused the relevant materials available on record including the judgment relied upon by the Learned AR passed in assessee s own case. It appears that the issue involved in this particular case is similar to that of the issue decided in ITA No. 2496/Ahd/2015 with CO No.184/ahd/2015 for Asst. Year 2011-12 relevant portion whereof is as follows: 3. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be established/proved. In such cases, there should be evidence and material to show that the activity has continued on sound and recognized business principles, and pursued with reasonable continuity. There should be facts and other circumstances which justify and show that the activity undertaken is in fact in the nature of business. The test as prescribed in Raipur Manufacturing Company [1967] 19 STC 1 (SC) and Soi Publication fund [2002] 258 ITR 70 (SC); {2002} 126 STC 288 (SC) can be applied. The six indicia stipulated in Lord fisher [1981] STC 238 are also relevant. Each case, therefore, has to be examined on its own facts. In view of the aforesaid enunciation, the real issue and question is tht whether the petitioner-Institute pursues the activity of business, trade or commerce. To our mind, the respondent while dealing with the said question has not applied their mind to the legal principles enunciated above and have taken a rather narrow and myopic view by holding that the petitioner-Institute is holding coaching classes and that this amounts to business. In the result, we do not find that the Tribunal has committed any error and the Tax Appeal is therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as ground no.4 is concerned, the same has become infructous and as far as charging of interest under section 234B of the Act and withdrawing interest under section 244A , it needs not to be adjudicated because the same is consequential. 7. In the result, the appeal of the Revenue is dismissed and CO of the assessee is partly allowed. The appeal preferred by the Revenue against such order dated 09.11.2017 passed by the Hon ble Tribunal before the Hon ble Gujarat High Court was also rejected by its order dated 11.06.2018 relevant portion is as follows: 4. The assessee carried the matter in appeal. Commissioner of Income Tax(Appeals) allowedthe assessee's appeal, upon which, the Revenue appro ched The Tribunal. The Tribunal by the impugned judgment, referring to the earlier judgment in case of this very assessee and relying upon the judgment of Division Bench of this Court in case of Director of Income Tax (Exemption) v. Sabarmati Ashram Gaushala Trust reported in [2014] 362 ITR 539 (Guj), rejected the Revenue's appeal. 5. In case of Sabarmati Ashram Gaushala Trust (supra), under somewhat similar background, this Court had observed as under: 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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