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TMI Blog2016 (6) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... not involved in any trade, commerce or business. - Decided in favour of assessee. - I.T.A. No. 5407/DEL/2015 - - - Dated:- 2-6-2016 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER For The Department : Sh.S.R. Senapathi, Sr. DR For The Assessee : Sh . Ved Jain, Adv. and Sh. Ashish ORDER PER H.S. SIDHU : JM This Appeal filed by the Revenue is directed against the order passed by the Ld. Commissioner of Income Tax (Exemption), New Delhi for the assessment year 2011-12. 2. The grounds raised in the Revenue s Appeal read as under:- 1. That on the facts and circumstances of the case and in law, the ld. CIT(A) has erred in holding that the activities of the assessee are charitable in n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se with the AO and also produced books of accounts which has been seen on test check basis. Thereafter, the AO vide his order dated 25.03.2014 passed u/s. 143(3) of the I.T. Act, 1961 has assessed total income of the assessee at ₹ 2,53,59,589/- by treating it as entire surplus as per Income Expenditure Account which was taxed under section 13(8) of the Act and not allowed any benefit of Section 11 12 of the Act. 4. Aggrieved with the aforesaid order of the AO, the assessee filed appeal before the Ld. CIT(E) who vide impugned order dated 03.06.2015 has allowed the appeal of the assessee and held that apparently the assessee is not involved in any trade, commerce or business and as such the mischief of Proviso of Section 2(15) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee that the mischief of Proviso of section 2(15) is not apparently applicable as the assessee is not involved in any trade, commerce or business and as such there is no proper justification for denying the exemption u/s. 11(1). There is also merit in the submissions of the assessee that mere receipt of fees and charges etc. does not mean that the assessee is involved in any trade, commerce or business etc. 4.6 Recently the Hon ble High Court in the case of India Trade Promotion Organisation vs. DGIT(E), 53 Taxmann.com 404 (Delhi) 2015 (order dated 22.1.2015_ has upheld the constitution validity of the proviso of section 2(15) which was under challenge being discriminatory in view of the Article 14 (Equality before law) of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order dated 16.5.2014 in ITA No. 907/Del/2013. There was apparently no scrutiny assessment during the AY 2010-11 and as such the return of the assessee claiming the exemption u/s. 11(1) was allowed u/s. 143(1) of the Act. The AO has similarly denied the exemption u/s. 11(1) during the present AY i.e. 2011-12 and similarly, Ld. CIT(E) has allowed the exemption to the assessee and held that the assessee is actually a charitable institution and is working in the field of education and the case of the assessee is also covered by the order of the Tribunal for the AY 2009-10. We find considerable cogency in the finding of the Ld. CIT(E) in reversing the action of the AO by relying on the judgment of the Tribunal in assessee s own case for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding that they are no more educational activities as regular classes are not held. AO's objections have been listed above. Hon'ble Delhi High court in the case of Council for Indian schools certificate examination has squarely held that assessee though being only in conducting examinations is still to be regarded as educational institution. 5.2. Hon'ble Supreme court in Assam Book Production case (supra) held that board though being only in the publication of books falls within the meaning of educational institution. It is not necessary to hold regular classes to be regarded as an educational institution. Hon'ble Supreme Court in American Hotels and lodging association case (supra) has squarely held that publication o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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