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TMI Blog2016 (5) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee is to earn profit by engaging itself in business or commercial activity and it is not a charitable institution. - Decided in favour of assessee for statistical purposes. - ITA No. 4762/Mum./2013 - - - Dated:- 29-4-2016 - Shri Saktijit Dey, Judicial Member And Shri Rajesh Kumar, Accountant Member For the Petitioner : Shri Karthik Natarajan For the Respondent : Shri Rajesh Ojha ORDER Per Saktijit Dey, J. M. Instant appeal by the assessee is directed against the order dated 5th March 2013, passed by the learned Commissioner (Appeals) 1, Mumbai, for the assessment year 2010 11. 2. The basic grievance of the assessee in the aforesaid appeal pertains to disallowance of claim of exemption under section 11 of the Income Tax Act, 1961 (for short the Act ). 3. Brief facts are, the assessee trust claiming to be engaged in educational activity, is registered under section 12AA of the Act. For the assessment year under dispute, the assessee filed its return of income on 29th September 2009, declaring total income of ` nil after claiming exemption under section 11 of the Act. In the course of assessment proceedings, the Assessing Officer noticing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 11 of the Act and accordingly completed the assessment. Being aggrieved of the assessment order so passed, the assessee preferred appeal before the learned Commissioner (Appeals). 4. In the course of hearing before the first appellate authority, though, the assessee challenged the findings of the Assessing Officer by making elaborate submissions being supported by documentary evidences, but the learned Commissioner (Appeals) rejecting the submissions of the assessee confirmed the order of the Assessing Officer rejecting the assessee s claim of exemption under section 11 of the Act. 5. Learned Authorised Representative, reiterating the stand taken before the Departmental Authorities submitted, the assessee a charitable institution is primarily engaged in the activity of imparting education. Referring to the objects of the trust, the learned Authorised Representative submitted, the trust was created with the same object in the year 1977 and the learned Commissioner having been satisfied with the object of the trust had granted registration under section 12A of the Act. The Learned Authorised Representative submitted, right from grant of registration under section 12A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was submitted by the learned Authorised Representative that assessee is basically engaged in imparting education, hence, the proviso to section 2(15) will not apply. In support of such contention, learned Authorised Representative relied upon a number of decisions as submitted in a compilation. 6. Learned Departmental Representative on the other hand relying upon the order of the learned Commissioner (Appeals) submitted, assessee having been engaged in commercial activity is not eligible for exemption under section 11 of the Act. 7. We have considered the submissions of the parties as well as the decisions relied upon by the learned Authorised Representative and also perused the material available on record. Undisputedly, the assessee trust came into existence in the year 1997 with certain objects. The learned Commissioner after verifying the objects of the assessee being satisfied that it has been created for charitable purpose granted registration under section 12A of the Act. It is also not disputed that since obtaining registration under section 12A, the assessee had been claiming exemption under section 11 of the Act and which has also been granted to the assessee by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is not charitable but earning profit. 8. Moreover, the primary and fundamental issue which arises for consideration is whether the proviso to section 2(15) would at all be applicable to the assessee. It is the contention of the assessee that it is engaged in educational activity. To demonstrate such fact, the learned Authorised Representative has relied upon a number of documentary evidences, a part of which was sought to be produced by way of additional evidence. On a perusal of the approval granted by the Director General of Shipping, it appears that assessee has been permitted to conduct some courses of maritime engineering as well as training program for which it also conducts examination and issues certificates. It is also the contention of the assessee that it has created infrastructure facilities for imparting education by employing faculty members, hostel facilities, etc. The assessee has also submitted by way of additional evidence syllabus for the courses claimed to have been conducted by it. On a perusal of the assessment order as well as order of the first appellate authority, one gets an impression while coming to their respective conclusion that assessee is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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