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TMI Blog2014 (11) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 of the assessee relying on the decision of the Hon,ble Bombay High Court for A.Y. 2003-04 and decision of the Hon'ble Tribunal for A.Yrs. 1998-99 to 2003-04 and 2006- 07 in assessee's own case when the activities of assessee are mutual and do not fall within the definition of (I charitable purpose" as per Section 2(15) of the Income tax Act, 1961. 2. That on the fact and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the claim of the assessee for set off and carry forward of deficit of earlier years, ignoring the fact that there was no express provision in the IT Act, 1961 permitting allowance of such claim. 3. The Appellant prays that, to the extent of above grounds, the order of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / established for charitable purpose within the meaning of provisions under section 2(15). Thus, it was held to be mutual concern and income was taxed accordingly. He also noted that in the assessment year 2000-01, the Tribunal has held that it is not a mutual concern rather it is a charitable organisation entitled for exemption under section 11. In this year again, the Assessing Officer required the assessee to provide the details of facilities which were open for general public and examining the case mostly from the angle of as mutual concern. He further noted that the assessee is also having income from hiring of terrace, parking space, banquette halls and rooms and also income from royalty received from contractor's running the restaur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is a chartable institution whose income is liable to be computed under section 11. 4. Before us, the learned Departmental Representative relied upon the order of the Assessing Officer, whereas the learned counsel relied upon the order of the learned Commissioner (Appeals) and also the decision of the Tribunal in assessee's own case for the earlier years and specifically for the assessment year 2006-07 and order of the Hon'ble Jurisdictional High Court in in assessee's case now reported in 347 ITR 338 (Bom.) 5. We have heard the rival contentions and perused the material available on record. It is an undisputed fact that the assessee has been recognised as a charitable institution looking to its objects and certificate under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the assessee submitted that on identical set of facts, this issue has been decided by the Tribunal in assessee's own case for AY 2000-01 in ITA No. 1491/Mum/2004 vide order dated 18.07.2008. The Id. Counsel has filed the copy of the order of the Tribunal, which is placed on record. On perusal of the order of Tribunal in assessee's own case, there should not be controversy in respect of the fact that the same issue has been decided by the Tribunal by holding that exemption to the assessee cannot be denied u/s 11 of the Act. The operative part of the Tribunal order i.e. para no. 17, reads as under:- 17. The decision in the case of Shree Kandivali Vyayam Mandir in ITA No. 331/Mum/200!5 on similar facts in which one of us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the return of the income being filed, passed an order of assessment under Section 143(3) but denied the exemption claimed under Section 11. Subsequently, the assessment was reopened since there was a mistake in calculations and while completing the reassessment the Assessing Officer treated the Assessee as a mutual concern and denied an exemption under Section 11. In Appeal, the Commissioner (Appeals) came to the conclusion that the promotion of sports and games fell within the purview of Section 2(15) since it constituted an advancement of any other object of general pubic utility. The Commissioner (Appeals) noted that the Assessing Officer rejected the claim of the Assessee merely on the ground that the facilities for the promotion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer did not have an occasion to consider the application of the funds with reference to provisions of Section 11, since he had come to the conclusion that the Assessee does not fulfill the charitable purpose as defined in Section 2(15). 4. As regards question (a), we remit the proceedings back to the Assessing Officer to determine whether the requirements of Section 11 have been duly fulfilled as regards the application of the funds. The Assessing Officer shall carry out the exercise expeditiously. So far as question (b) is concerned, we hold that the Assessee is a Charitable Institution. Consequently, questions (c), (d) and (e) do not arise. 5. The Appeal shall accordingly stand disposed of. There shall be no order as to costs." ..... X X X X Extracts X X X X X X X X Extracts X X X X
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