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TMI Blog2018 (7) TMI 2313X X X X Extracts X X X X X X X X Extracts X X X X ..... 6/PUN/2016 A.Y. 2009-10 2. Ground raised by the Revenue for is extracted below : "1. Whether in the facts and in the circumstances of the case and in law, the Ld.CIT(A) was right in allowing the benefit of exemption u/s.11 of the Act when the assessee is carrying out activities which are commercial in nature resulting in huge surplus and thus hit by the proviso to section 2(15) introduced w.e.f. 01-04-2009 ?." 3. Briefly stated relevant facts includes that the assessee is an AOP (Trust) registered under section 25 of the Companies Act, 1956. Assessee filed the return of income on 23-09-2009 declaring total income of Rs.Nil after claiming exemption u/s.11 of the I.T. Act, 1961. On examination of various receipts of the Trust, AO opined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption claimed by the assessee u/s.11 of the I.T. Act. 4. Similarly, for the A.Y. 2012-13, the AO determined the total income of the assessee at Rs.3,04,41,220/- and denied the exemption u/s.11 of the I.T. Act. 5. In the First Appellate proceedings, regarding the validity of reopening of the assessment, the CIT(A) held the reopening of the assessment u/s.147/148 of the Act is valid. Regarding the exemption u/s.11 of the I.T. Act, the CIT(A) after considering the submissions of the assessee, finding of the AO and the section 2(15) of the Act after amendment by the Finance Act, 2010 (w.e.f. 01-04-2009) held that the assessee is not hit by provisions of section 2(15) of the Act. The activities of the assessee are incidental to the main objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals for A.Yrs. 2010-11 & 2011-12, the appeals filed by the Revenue for the A.Yrs. 2009-10 & 2012-13 should also be dismissed following the similar reasoning. 8. Ld. DR for the Revenue relied on the orders of the AO. 9. We heard both the sides and perused the orders of the Revenue. The only issue to be decided in these appeals is allowing of exemption u/s.11 of the Act. In this connection, we have gone through the decision of the Tribunal in the assessee's own case for the A.Yrs. 2010-11 and 2011-12 and find that there is no change in the facts. As mentioned by the Ld. Counsel for the assessee, we find this issue is a covered case in favour of the assessee and against the Revenue. For the sake of completeness, we proceed to extract the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause a fee or some other consideration is collected or received by an institution, it would not lose its character of having been established for a charitable purpose. It is also important to note that we must examine as to what is the dominant activity of the institution in question. If the dominant activity of the institution was not business, trade or commerce, then any such incidental or ancillary activity would also not fall within the categories of trade, commerce or business. It is clear from the facts of the present case that the driving force is not the desire to earn profits but, the object of promoting trade and commerce not for itself, but for the nation both within India and outside India. Clearly, this is a charitable purpose, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If activities in nature of trade, commerce or business which are masked as 'charitable purpose'. If there is any surplus generated at end of year, that by itself would not be sole consideration for judging whether any activity is trade, commerce or business, particularly if generating 'surplus's is wholly incidental to principal activities of trust; which is otherwise for general public activity, and therefore, of charitable nature." 8. We find that Ld.CIT(A) while deciding the issue has given a finding that the activities undertaken by the assessee seen with reference to the dominant activity of the Trust shows that it has been carried out for the advancement of the dominant object of the Trust and the fees generation is only incidental ..... X X X X Extracts X X X X X X X X Extracts X X X X
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