TMI Blog2020 (11) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to keeping and breeding of the cattle, agriculture, use of milk and its various preparations, etc.; to establish other allied institutions like leather work and to recognize and help them in order to make the cow keeping economically viable; to publish study materials, books, periodicals, monthlies etc., in order to publicize the objects of the trust as also to open schools and hostels for imparting education in cow keeping and agriculture having regard to the trust objects. All these were the objects of the general public utility and would squarely fall under section 2 (15) of the Act. Profit making was neither the aim nor object of the Trust. It was not the principal activity. Merely because while carrying out the activities for the purpose of achieving the objects of the Trust, certain incidental surpluses were generated, would not render the activity in the nature of trade, commerce or business. As clarified by the CBDT in its Circular No. 11/2008 dated 19th December 2008 the proviso aims to attract those activities which are truly in the nature of trade, commerce or business but are carried out under the guise of activities in the nature of public utility'. De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner exceeding the limit provided in proviso to section 2(15) ignoring the detailed, discussion made in assessment order. 3. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) is right in directing the AO to allow exemption u/s. 11 of the I.T. Act ignoring the fact that the assesses is doing regular activities of live stock Development Centre where activities of impregnation of Cows and Buffalos are carried out and so the activities are more in the nature of commercial activities. At the most the activities can be considered as charitable activities, in nature of General Public Utility. Then also the proviso to section 2(15) is clearly applicable and the assesses is not entitled for exemption u/s. 11 of the I.T. Act. 4. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) is right in relying on the decision of the Tribunal while deciding the issue of setting aside the order u/s.263 of the I.T. Act in assessee's own case for A.Y. 2012-13 in ITA No. 3769/Mum/2017, after considering the issue in depth and the said decision of Hon'ble Gujrat High Court in the case of Sabarmati Ashram Gaushala Trust, wherein the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 112986745 Rounded Off to 112986740 4. Aggrieved by the order of the, the assessee filed an appeal before the Ld. CIT(A). We find that vide order dated 08.02.2019, the Ld. CIT(A), by following the decision in CIT v. Sri Balaji Samaj Vikas Samiti (91 taxmann.com 26) (Allahabad-High Court); DIT (Exemption) v. Sabarmati Ashram Gaushala Trust (44 taxmann.com 141) (Gujarat High Court) and the order of the Tribunal in assessee s own case for AY 2012-13 in ITA No. 3769/Mum/2017 held that the AO was not justified in holding that the activities of the assessee were in the nature of carrying out business or trade and hence hit by the proviso to section 2(15) of the Act. Thus the Ld. CIT(A) held that the assessee is eligible for exemption u/s 11 12 of the Act. 5. Before us, the Ld. Departmental Representative (DR) relies on the order of the AO. On the other hand, the Ld. counsel for the assessee refers to and relies on (i) ITAT order dated 15.07.2020 for AY 2009-10 in assessee s own case, (ii) ITAT order dated 15.07.2018 for AY 2012-13 in assessee s own case, (iii) the decision in Sabarmati Ashram Gaushala Trust (supra). 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bulls. 2. To produce and to sell the cow milk and its various preparations so as to popularize the use of cow milk and do all other works for the same. 3. To hold and cultivate or get cultivated agricultural lands, to keep grazing lands etc necessary or desirable for cattle keeping and breeding or to rehabilitate and assist Rabaris and Bharwads. 4. To hold and cultivate other land also in order to experiment in the improvement in agriculture and obtain finance support in all the activities of the institution. 5. To make necessary arrangements for getting informatics and scientific knowledge and to do scientific research with regard to keeping and breeding of the cattle, agriculture, use of milk and its various preparations etc and to establish scientific laboratories, libraries, reading rooms relating to the keeping of the cattle, improvement of agriculture etc and recognize or assist such institutions. 6. To establish other allied institutions like leather work etc and to recognize and help them in order to make the cow keeping economically viable successfully. 7. To publish books, periodicals, monthlies, advertisements, pamphlets, statements et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Trust. It was not the principal activity. Merely because while carrying out the activities for the purpose of achieving the objects of the Trust, certain incidental surpluses were generated, would not render the activity in the nature of trade, commerce or business. As clarified by the CBDT in its Circular No. 11/2008 dated 19th December 2008 the proviso aims to attract those activities which are truly in the nature of trade, commerce or business but are carried out under the guise of activities in the nature of public utility'. 13. Delhi High Court in case of Institute of Chartered Accountants of India v. DGIT [2012] 347 ITR 99/[20111.202 Taxman 1/13 taxmann.Com 175 considered these very provisions in the context of activities of the Institute of Chartered Accountants holding that the fundamental or dominant function of the Institute was to exercise overall control and regulate the activities of the members/enrolled chartered accountants and merely because the Institute was holding coaching classes which also generate income, the Court held that proviso to Section 2 (.15) of the Act would not be applicable. It thus held and observed as under:- Section 2 (15 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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