2021 (12) TMI 1125 - AT - Income Tax

Exemption u/s 11 - As per AO activities carried out by the assessee company are in the nature of advancement of other general public utility in the nature of trade/commerce/business and therefore, the activities carried out by the assessee cannot be reckoned as attributable to charitable purpose within the meaning to Section 2(15) - HELD THAT - The Coordinate Bench in assessee s own case for A.Y. 2009-10 to 2011-12 held that the assessee company cannot be said to be conducting affairs solely on commercial lines with a motive to earn profit and consequently proviso to Section 2(15) of the Act does not trigger in the case of the assessee. Such view of the Coordinate Bench has been ultimately affirmed by the Hon ble Jurisdictional High Court in the case of CIT vs. Gujarat Industrial Development Corporation 2017 (7) TMI 811 - GUJARAT HIGH COURT - as assessee was not involved in the activities in the spirit of commercial accommodation and therefore falls within the ambit of definition of charitable purpose contemplated under s.2(15) of the Act. In view ofthe foregoing, we find that the relief sought by the assessee to the extent that the activities carried on by the assessee should be recognized to be of charitable nature requires to be endorsed. - Decided in favour of assessee. Addition on account of deemed rent - deemed rent from various fact/unoccupied plots/shade added to the total income of the assessee - HELD THAT - Considering the entire aspect of the matter we find that when the appellant has an exempt entity Chapter-3 of the matter would be applicable in its case and not the provision of Chapter-4 of the Act. Therefore, the addition of deemed rent would fall under the head income from house property under Chapter-4 of the Act and therefore, the addition is not sustainable. Considering this aspect the order passed by the Ld. CIT(A) in deleting addition in our considered view is just and proper and so as to warrant interference. Depreciation as per normal commercial principles and rule of accountancy - AO is required to re-examine the issue afresh in accordance with law considering the assessee as a Charitable Institution.

Issues Involved:
1. Applicability of Article 289 of the Constitution of India.
2. Classification of lease income as revenue receipt.
3. Claim of expenditure on capital assets and depreciation.
4. Treatment of receipts as income/revenue receipts.
5. Violation of Section 11(5) and applicability of Section 13(1)(d) of the Income Tax Act.
6. Applicability of Section 2(15) and entitlement to exemption under Sections 11 & 12.
7. Addition of deemed rent income.
8. Allowance of operational expenses.
9. Allowance of depreciation under Section 11(6).

Detailed Analysis:

1. Applicability of Article 289 of the Constitution of India:
The assessee argued that being an agent of the State Government of Gujarat, it should not be subjected to tax under the Income Tax Act by virtue of Article 289. However, this ground was dismissed as not pressed by the assessee for A.Y. 2015-16.

2. Classification of Lease Income as Revenue Receipt:
The assessee contended that receipts from premium on land given on lease should not be considered as recurring and operational receipts. The Tribunal referred to the assessee's own case in previous years and directed the AO to re-examine the issue in light of the Coordinate Bench's and Jurisdictional High Court's decisions, which upheld that the activities of the assessee were charitable and not commercial.

3. Claim of Expenditure on Capital Assets and Depreciation:
The Tribunal directed the AO to allow capital expenditure and depreciation as an application of income, subject to verification. This was based on the premise that the assessee is to be treated as an exempt entity engaged in charitable activities.

4. Treatment of Receipts as Income/Revenue Receipts:
Since the Tribunal upheld that the assessee's activities are for charitable purposes and not commercial, the treatment of receipts as income/revenue receipts was considered academic and not further deliberated.

5. Violation of Section 11(5) and Applicability of Section 13(1)(d):
The Tribunal addressed the issue of investment in Gujarat Alkalies & Chemicals Ltd and GLFL, which allegedly violated Section 11(5), thereby attracting Section 13(1)(d). The Tribunal referred to the Jurisdictional High Court's decision in Orpat Charitable Trust and directed the AO to re-examine the issue in light of this precedent.

6. Applicability of Section 2(15) and Entitlement to Exemption under Sections 11 & 12:
The Tribunal consistently held that the assessee's activities do not attract the proviso to Section 2(15) as they are not in the nature of trade, commerce, or business. Consequently, the assessee was entitled to exemption under Sections 11 & 12. This position was affirmed by the Jurisdictional High Court in the case of CIT vs. Gujarat Industrial Development Corporation.

7. Addition of Deemed Rent Income:
The AO added deemed rent income for vacant plots, which was contested by the assessee. The Tribunal upheld the CIT(A)'s deletion of this addition, stating that as an exempt entity, the provisions of Chapter 4 of the Act (which includes Section 23 on deemed rent) do not apply to the assessee.

8. Allowance of Operational Expenses:
The Tribunal directed the AO to allow operational expenses at 60% of the total premium received on land/shades, as previously decided in the assessee's own case for earlier assessment years.

9. Allowance of Depreciation under Section 11(6):
For A.Y. 2015-16, the Tribunal directed the AO to re-examine the allowance of depreciation in light of the newly inserted amendment in Section 11(6), considering the assessee as a charitable institution.

Conclusion:
The Tribunal's orders were largely in favor of the assessee, directing the AO to re-examine various issues in light of previous rulings and the Jurisdictional High Court's decisions, thereby affirming the charitable nature of the assessee's activities and entitlement to exemptions under the Income Tax Act. The appeals by the Revenue were dismissed, and the assessee's appeals were partly allowed.

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