2018 (1) TMI 189 - AT - Income Tax

Exemption u/s 11 eligibility - general public utility - charging subscription as well as consultancy fees on actual - whether the assessee is not involved in any business or commercial activity and the provisions of section 2(15) of the Act is not attracted in the case of the assessee? - Held that - With respect to the fees charged by the assessee naturally, it should be commensurating with the efforts put in by the organization and to defray its cost as well as further capital cost. It is also required to be noted that assessee is engaged in research based activity which is highly cost intensive and requires continuous spending on the innovation and new developments as it is concerning with the education of the society. The Assessee has categorically stated before the ld AO as well as before Ld CIT (A) that it is charging subscription as well as consultancy fees on actual, which fact is not denied. Therefore merely earning the surplus does not result in to the conclusion, that assessee is carrying on its activities, which can be termed as business, trade, or commerce. Furthermore on perusal of the order of the ld CIT (A), we do not concur with the arguments of the ld CIT DR that order is perfunctory and devoid of reasons for the reasons that he has decided the issues relying on the decision of Honorable Delhi high court. According to us, the ld CIT (A) has also given his finding on all the aspects of the issues raised by ld AO. In view of the above facts and respectfully relying on the decision of M/s GS1 India Versus 2013 (10) TMI 19 - DELHI HIGH COURT we find no infirmity in the order of the ld CIT (A), hence we dismiss all the grounds of appeal of revenue.

Issues Involved:
1. Whether the assessee is involved in any business or commercial activity under section 2(15) of the Income Tax Act, 1961.
2. Whether the assessee's activities fall within the scope of 'general public utility' as per section 2(15) of the Income Tax Act, 1961.
3. Whether the assessee is eligible for exemption under section 11 of the Income Tax Act, 1961.

Detailed Analysis:

1. Involvement in Business or Commercial Activity:
The revenue contended that the assessee's activities are of commercial nature, citing consultancy charges and terms in agreements that indicate business activities. The Assessing Officer (AO) rejected the assessee's claim of being a non-profit entity, asserting that the activities were carried out with a profit motive, thus falling under the proviso to section 2(15) of the Act. The AO determined the total income of the assessee for the assessment years 2009-10 and 2010-11, denying the benefit of sections 11 and 12.

The assessee argued that it is a non-profit society under the administrative control of the Ministry of Communication and IT, functioning without any profit motive. The CIT(A) sided with the assessee, holding that it is not engaged in trade, commerce, or business activities and is thus entitled to exemption under section 11.

The Tribunal noted that the assessee is a government-created non-profit society with objectives focused on the development of computer communication and technology for educational and research purposes. The Tribunal emphasized that the agreements and terms cited by the revenue are necessary for ensuring effective and sustainable public services, not indicative of profit-driven activities.

2. Scope of 'General Public Utility':
The revenue argued that the assessee's activities fall within 'general public utility' and involve trade, commerce, or business, thus disqualifying it from being considered charitable under the amended section 2(15) of the Act. The Tribunal referred to the assessee's objectives and activities, including various ICT projects, research initiatives, and educational services, which are aligned with promoting education and research without a profit motive.

The Tribunal cited the Delhi High Court's decision in India Trade Promotion Organization vs. DGIT, which clarified that the dominant objective of an institution must be considered to determine if it is engaged in charitable activities. The Tribunal concluded that the assessee's activities are primarily charitable, aimed at educational and research development, and not driven by profit motives.

3. Eligibility for Exemption under Section 11:
The revenue contended that the assessee's substantial income from subscribers and consultancy services indicated a profit motive, thus disqualifying it from exemption under section 11. The Tribunal, however, found that the assessee's income is used to further its charitable objectives, and any surplus generated is incidental and not indicative of a profit-driven motive.

The Tribunal referred to the Supreme Court's decision in CIT vs. Surat Art Silk Manufacturing Association, which held that an activity does not lose its charitable nature merely because it results in profit, as long as profit-making is not the predominant objective. The Tribunal concluded that the assessee is eligible for exemption under section 11, as its activities are primarily charitable and not driven by profit motives.

Conclusion:
The Tribunal dismissed the revenue's appeals for both assessment years, upholding the CIT(A)'s decision that the assessee is not engaged in business or commercial activities and is entitled to exemption under section 11 of the Income Tax Act, 1961. The Tribunal emphasized that the assessee's activities are aligned with its charitable objectives and not driven by profit motives, thus not falling under the amended provisions of section 2(15).

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