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TMI Blog2014 (3) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... aking" but being no excess income was found utilized other than for the purposes of the object of the trust; hence, out of the ambits of the provision of section 11(4) of the IT Act - the final result of the appeal was not against the assessee – thus, the Misc. Application appears to be not based upon a sound footing - the petition has been moved merely under an apprehension. Power of review – Mistake apparent on record – Held that:- The Tribunal has considered facts of the case at length as well as the applicable case law – thus, there was no apparent mistake on record – in COMMISSIONER OF INCOME-TAX Versus KAMAL BHAI ISMAILJI [2005 (4) TMI 6 - ALLAHABAD HIGH COURT] it has been held that the Tribunal has no power to review its order - t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no necessity to exhaustibly deal with this definition and we are bound to accept that the assessee can be said to be an undertaking which has carried out an adventure in the nature of trade. Purchase of land and sale of land being the primary activity of this organization can be said to be a business activity but merely by holding that the undertaking is a business undertaking whether the profits arising therefrom can be subjected to tax by invoking section 11(4) of the IT Act?. This section says that in respect of such an undertaking where a claim is made that the income arising therefrom not to be included in the total income, then this section must not be applied. This section can be applied where the Assessing Officer invokes th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1970 (SC). The appellant has in support of its claim in Ground No.1, also placed reliance on the judgment in case of Shri Ramtanu Co-operative Housing Society (supra) and has also submitted the copy thereof during the course of hearing of appeal. It may kindly be noted that the Hon'ble Supreme Court while deciding the judgment in case of the appellant (227 ITR 414 (SC) (supra) as the provisions of the Maharashtra Industrial Development Act, 1961, are almost analogous to the Gujarat Industrial Development Act, 1962. 2.1 Learned AR has also clarified that the reason for filing of this Misc. Application is the amendment in Section 2(15) took place and a proviso is inserted which says that the advancement of any other object of gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the ambits of the definitions of Section 2(15) of the IT Act, but such an organization as well can be engaged in business activity in view of Section 11(4) of IT Act (refer page 12 of ITAT order). For the year under consideration a finding was given at page 25 that the objects of the assessee were very much covered under the definition of Section 2(15) of IT Act. Therefore, at this stage, merely on an apprehension this Misc. Application has been moved which is unfounded; hence, deserves to be rejected. 3.1 Learned DR has further argued that an another decision of the Hon'ble Supreme Court pronounced in the case of Adityapur Industrial Area Development Authority Vs. Union of India, (2006) 153 taxman 107 (SC), (referred at page 21 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court in the case of Sri Ramtanu CHS was not considered, the following are submitted: The said decision of Sri Ramtanu CHS was rendered in the context of land acquisition proceedings. In para 9, the Hon'ble Tribunal has specially referred to the decision of Hon'ble Supreme Court in the case of Adityapur Industrial Area Development Authority v. Union of India [2006] 153 Taxmann 107. Thereafter the Hon'ble Tribunal has given a finding that the income of the assessee is subject to tax under Income-tax Act and do not fall under the exempted clauses of Article 289(1) of Indian Constitution. C.3. The decision of Sri Ramtanu CHS was specifically cited in para 16 of the order of the Hon'ble Supreme Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e discussing the provisions of Section 11(4) of IT Act, it was necessary to consider the activity of the undertaking, because this Section says, quote for the purposes of this section property held under trust includes a business undertaking so held, and where a claim is made that the income of any such undertaking shall not be included in the total in come of the persons in receipt thereof, the [Assessing] Officer shall have power to determine the income of such undertaking in accordance with the provisions of this Act relating to assessment; and where any income so determined is in excess of the income as shown in the accounts of the undertaking, such excess shall be deemed to be applied to purposes other than charitable or religious p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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