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TMI Blog2019 (10) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts of the case. 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law in allowing the exemption u/s. 11(1) of the Act and treating the assessee as charitable institution as activities of the assessee do not fall under education, medical relief and environment but falls under the last limb of proviso to section 2(15) of the Act i.e. advancement of any other objet of general public utility. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in ignoring the fact that though the objects of the assessee may seem to be charitable but activities carried out by the society which yielded income to the society are commercial in nature. 3. The appellant crave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended provisions of section 2(15) of the Act and the assessment be done accordingly. In response to the same, the AR of the assessee filed its reply dated 19.02.2014 by elaborating that activity of the society is charitable and not for profit and nor for commercial and for the assessment year 1973-74, 1981-82 to 82-83, 1983-84, 1974-75 to 1979-80, the ITAT has accepted the contention of the assessee as well as Department has also accepted the same activity of the assessee as charitable not for profit or commercial, which has attained the finality. But the AO has applied the last limb of section 2(15) of the Act i.e. 'advancement of any other objet of general public utility'. In view of the amendment in the provisions of section 2(15) w.e.f. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawn by the Department and the assessee was granted the exemption u/s. 11(1) of the Act for assessment years 1991-92, 1992-93. Ld. CIT(A) has also respectfully following the order allowed the exemption u/s. 11(1) for the AY 2009-10 as well as various decisions rendered by the Hon'ble Supreme Court of India as well as Hon'ble Jurisdictional High Court decision in the recent case of Hon'ble Delhi High Court in the case of India Trade Promotion Orgazniation vs. DGIT(E) 53 Taxmann.com 404 (Delhi) 2015 in which the Hon'ble Jurisdcitional High Court has held that mere receipt of fee or charge cannot be said that the assessee is involved in any trade, commerce or business and accordingly allowed the relief to the assessee and allowed the appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove the same, he draw our attention towards page no. 66 of the Paper Book (PB) which is a copy of registration granted u/s. 12A at PB-66 and copy of Notification u/s. 80G of the Act at page 68-69 of the PB. He stated that the assessee is engaged in charitable activities on an India wide basis and running urban/rural/slum development centres, balwaris, primary / senior schools, centres, health centres, working women's hostel, old age centres etc. and selling of a newspaper namely, 'the Samaja' in the State of Orissa. He has also stated that the provision of section 2(15) of the Act inserted w.e.f. 01.04.2009 is that the "advancement of any other object of general public utility" would no longer be considered as a charitable purpose if it in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advancement of the country. It wa further submitted that it is a well settled principle that merely because a fee or some other consideration is collected or received by the assessee, it would not lose its character of having been established for a chartiable pruposes and in this behalf he relied upon various cases including the ITPO vs. DGIT( Exemptions) 53 taxmann.com 404 (Delhi) - Hon'ble Delhi High Court. It was further submitted that prior to the insertion of proviso to section 2(15) by Finance Act, 2008, the assessee was duly allowd the exemption claimed by it under section 11 of the Act. The return income of the assessee was duly and consistently accepted for the prior assessment years 2002-03 to 2004-05 and 2006-07 to 2009-10. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitution of India but the Hon'ble High Court has read down the strict and literal interpretation of the Proviso of setion 2(15) and has held that mere receipt of fee or charge cannot be said that the assessee is involved in any trade, commerce or business and has accordingly allowed the relief to the aforesaid case. After considering all the facts and circumstances of the case, we are of the considered view that the assessee is a charitable and non-profit institution and also found that assessee is not involved i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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