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TMI Blog2018 (2) TMI 1875X X X X Extracts X X X X X X X X Extracts X X X X ..... section 2(15) of the Act since the said proviso only seeks to exclude institutions which are carrying on regular business - Decided in favour of assessee. - ITA No. 3250/MUM/2016 - - - Dated:- 26-2-2018 - SHRI SAKTIJIT DEY ( JUDICIAL MEMBER ) AND SHRI N.K. PRADHAN ( ACCOUNTANT MEMBER ) Assessee by : Mr. Shailesh S. Shah, AR Revenue by : Mr. Rajesh Kumar Yadav, DR ORDER PER N.K. PRADHAN, AM This is an appeal filed by the assessee. The relevant assessment year is 2011-12. The appeal is directed against the order of the Commissioner of Income Tax (Appeals)-1, Mumbai and arises out of the assessment completed u/s 143(3) of the Income Tax Act 1961, (the Act ). 2. Briefly stated, the facts of the case are that the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITAT C Bench Mumbai in assessee s own case for the AY 2010-11 (ITA No. 6282/Mum/2014) has allowed the appeal filed by the assessee holding that: 5.10 In view of the legal position explained in the aforesaid judgments, it can be safely deduced that in the context of the application of the proviso to section 2(15) of the Act, what is critical is to examine as to whether the assessee Trust has been established for charitable purpose or not; and, the fact that it earns some income, by itself, would not be fatal and conclusive to determine that the assessee Trust is not established for charitable purpose. In other words, the existence or otherwise of the profit motive in the activities carried out by the assessee Trust would be crucial to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee Trust is not to carry on trade, commerce or business, but the only point made is that certain fee/charges have been levied for activities rendered to the beneficiaries, and therefore, it should be seen as trade, commerce or business . As we have seen earlier, mere action of charging fee for services, by itself, would not justify invoking of the proviso to section 2(15) of the Act unless it is established that the purpose and object is profit motive. Considering the entirety of circumstances we are unable to find any credible reasoning taken by the Revenue to say that the purpose and object of the assessee Trust falls within the meaning of expression trade, commerce or business used in the proviso to section 2(15) of the Act. In fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso only seeks to exclude institutions which are carrying on regular business, as inferred by us following the legal position explained by the Hon ble Delhi High Court in the cases referred herein above. 5.12 In conclusion, we therefore, set-aside the order of the CIT(A) and direct the Assessing Officer to allow the claim of the assessee for exemption under section 11 12 of the Act. 6. To sum up, the order of the assessment year 2010-11 followed by the Ld. CIT(A), has now been set aside by the Tribunal in the above case. The AO has been directed to allow the claim of the assessee for exemption under section 11 12 of the Act. Facts being identical, we follow the above order of the Co-ordinate Bench and allow the appeal filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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