9911796707
TMI Blog2019 (3) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (hereinafter referred as to "The Act") for the Assessment Year 2012-13 with the following grounds: 1. "Whether on the facts and in the circumstances of the case is the Ld CIT(A) justified in allowing the benefit of exemptions u/s 11 ignoring the fact that the assessee is involved in widespread commercial activities in nature of business. 2. Whether on the facts and in the circumstances of the case is the Ld CIT(A) justified in allowing the set off of carry forward losses of earlier years against the income of current year in spite of the fact that there is no express provision in law allowing the same. 3. On the facts and circumstances of the case, the ld CIT(A) ought to have upheld the order of the Assessing Officer. 4. It is, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consideration the nature of trade of business of the assessee. The justification so furnished by the assessee was not accepted by the Learned AO and ultimately the AO held that the object of the assessee for relief of the poor but activities are rendered for advancement of other object of general public utility for which the assessee is receiving sales consideration. The activities of the assessee were no longer charitable. The surplus income over expenditure to the tune of Rs. 1,64,76,190/- has therefore been treated as business income. The Learned AO has further not granted the set off of unabsorbed depreciation on the ground that this loss was not a business loss but deficit of earlier years when provisions of Section 11 was applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . While deciding the appeal, the ld.CIT(A) held that since facts of the present case were exactly similar to the assessee's case decided by the CIT(A) in para 5.14 . The ld.AR relied on the order of the co-ordinate Bench of the Tribunal in assessee's own case, and on similar grounds, the ITAT held that we have given a thoughtful consideration to the orders of the authorities below. The undisputed fact is that the facts of the assessee trust are similar to the facts of Sabarmati Ashram Gaushala Trust, and in its order Hon'ble High Court's decisions have been discussed and the same is as under: "We are wholly in agreement with the view of the Tribunal. The objects of the Trust clearly establish that the same was for general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 11/2008 dated 19th December 2008 the proviso aims to attract those activities which are truly in the regarded as business even when profit motive cannot be established/proved. In such cases, there should be evidence and material to show that the activity has continued on sound and recognized business principles, and pursued with reasonable continuity. There should be facts and other circumstances which justify and show that the activity undertaken is in fact in the nature of business. The test as prescribed in Raipur Manufacturing Company [1967] 19 STC 1 (SC) and Soi Publication fund [2002] 258 ITR 70 (SC); {2002} 126 STC 288 (SC) can be applied. The six indicia stipulated in Lord fisher [1981] STC 238 are also relevant. Each case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier years it has not claimed deduction of capital expenditure but had claimed only depreciation accordingly there is no double deduction. It is submitted it be so held now. 3.2 The Assessing officer erred in not appreciating the settled legal position that the unabsorbed depreciation can be set off against any income. It is submitted it be so held now. 4. The Assessing officer has erred in computing tax on the total income determined by him at flat rate of 30% in place of correct slab rate as applicable to an Association of Persons (AOP). It is submitted it be so held now. 6. The Assessing officer has erred in charging interest under section 234B of the Act & has erred in withdrawing interest under section 244A." 6. We have gone t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he earlier judgment in case of this very assessee and relying upon the judgment of Division Bench of this Court in case of Director of Income Tax (Exemption) v. Sabarmati Ashram Gaushala Trust reported in [2014] 362 ITR 539 (Guj), rejected the Revenue's appeal. 5. In case of Sabarmati Ashram Gaushala Trust (supra), under somewhat similar background, this Court had observed as under: "11. We are wholly in agreement with the view of the Tribunal. The objects of the Trust clearly establish that the same was for general public utility and where for charitable purposes. The main objectives of the trust are to breed the cattle and endeavour to improve the quality of the cows and oxen in view of the need of good oxen as India is prominen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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