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TMI Blog2021 (2) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... distinguishable facts have been brought on record by the Revenue if the year under consideration is different from earlier years, i.e., A.Yrs. 2009-10 to 2011-12 [ 2018 (6) TMI 685 - ITAT DELHI] which have already been decided in favour of the assessee. So, in these circumstances, the Revenue authorities are required to follow the principle of consistency , as has been laid down by Hon ble Supreme Court in the case of Radhasoami Satsang vs. CIT [ 1991 (11) TMI 2 - SUPREME COURT] Consequently, grounds Nos. 1 to 4 are decided in favour of the assessee. Addition being the residual amount of opg. Bal. of infrastructure fund related to earlier years - as submitted amount of infrastructure fund is belonging to state and which was only on capital a/c credited to B/s etc and not belonging to assessee of which assessee is only a custodian - HELD THAT:- As infrastructure fund, development and reserve fund IDRF as per Notification dated 15.01.1998 belongs to State and the assessee-authority is a mere custodian, the same cannot be taxed in its hand. Even otherwise, the same has been utilized for general utility. So, in view of the matter, grounds Nos. 5 to 10 are also decided in favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision of s. 11(4A)of the Act are applicable and so income over expenditure is chargeable to tax once she has held applicability of proviso to s.2(15) as both the mutually exclusive provision. 4. Because, without prejudice to above but only as an alternative, the Id. lower authority erred in not appreciating that assessee had maintained sufficient separate accounts for above activities and further failed to appreciate that even Id. AO himself calculated separate surplus in said activities on the basis of said accounts hence order upholding rejection of exemption u/s 11-12 even after invoking 11(4A) for said activities is illegal. 5. Because, the Id. CIT(A) grossly erred in upholding the addition of ₹ 14.158 cr., being the residual amount of opg. Bal. of infrastructure fund related to earlier years, in as much as expenditure against the current years receipt is even more and authorities below failed to consider the same. 6. Because, in addition to above, the Id. CIT(A) failed to appreciate that amount of infrastructure fund is belonging to state and which was only on capital a/c credited to B/s etc and not belonging to assessee of which assessee is only a cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee u/s. 12A of the Act was denied by the ld. CIT but allowed by the Tribunal. However, the Tribunal s order is lying challenged before the Hon ble High Court and as such no benefit of exemption is allowed to the assessee-authority. Assessee-authority claimed that its prima facie activity, appearing to fall within the ambit of proviso to section 2(15) make it ineligible for claiming exemption u/s. 11 of the Act. However, Assessee Authority claimed that it is not working for profit and there is no correlation between the receipt and expenditure incurred by it in various development activities and since it has no profit, there is no question of taxing the same. Lower Revenue Authority, declining the contention of the assessee, invoked the provisions of section 2(15) of the Act and proceeded to hold that assessee is not entitled for registration u/s. 12A of the Act being engaged in the activities in the nature of trade, commerce or business, inasmuch as one of the dominant activities of the Assessee-Authority is acquisition and sale of immovable property, the receipt of which are in excess of ₹ 25,00,000/-, being the ceiling stipulated in second proviso of section 2(15) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 1386/2016, which is on identical issue. Coordinate Bench of Tribunal by relying upon the decision dated 21.04.2017 rendered by Hon ble Allahabad High Court in the case of CIT vs. Yamuna Expressway Industrial Development Authority and another decision dated 04.01.2018 rendered by coordinate Bench of Tribunal in the case of Moradabad Development Authority vs. ACIT(Exemption) in ITA No. 4631 4632/Del/2017, decided the issue in favour of the assessee by returning following findings : 3. We have heard both the sides and perused the relevant material on record. The Hon bie Jurisdictional High Court in CIT vs. Yamuna Expressway Industrial Development Authority, vide judgment delivered on 21.4.201, has decided similar issue in assessee s favour. The Delhi Bench of the Tribunal in Moradabad Development Authority vs. ACIT (Exemption), vide order dated 4.1.2018 in ITA No. 4631 and 4632/Del/2017, dealt with the case of an Authority working in the same way as the assessee in question and held that the benefit of exemption under section 11 cannot be denied. In reaching this conclusion, the Tribunal considered the relevant judgments on the point and eventually held that the case is cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate that during the year under consideration, expenditure was more than the receipts. This factual position has not been controverted by the ld. DR for the Revenue, but he has supported the order passed by the ld. CIT(A). 13. Undisputedly, the expenditure made by the assessee-authority during the year under consideration was not more than the receipt, as is evident from the income expenditure account for the period ending 31.03.2012, available at page 6 7 of the paper book. Ld. AR for the assessee taken us to para 32 of the order passed by Hon ble High Court of Allahabad available at page No. 141/144 of the paper book, wherein the identical issue has been decided in favour of the assessee by returning following findings : 32. From the record, it also appears that the authority had been maintaining infrastructure development and reserve fund IDRF as per the notification dated 15th January, 1998, the money transferred to this funds is to be utilized for the purpose of project as specified by the committee having constituted by the State Government under the said notification and the same could not be treated to be belonging to the authority or the receipt of taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s incurred by the trust for charitable and religious purposes in the earlier years against the income earned by the trust in the subsequent year will have to be regarded as application of income of the trust for charitable and religious purposes in the subsequent year in which adjustment has been made having regard to the benevolent provisions contained in s. 11 of the Act and that such adjustment will have to be excluded from the income of the trust under s. 11(1 )(a) of the Act. In reaching this conclusion, the Hon ble High Court drew support from the judgment of the Hon ble Gujarat High Court in the case of CIT vs. Shri Plot Swetamber Murti Pujuk Jain Mandal (1995) 211 ITR 293 (Guj). No contrary decision has been brought to our notice by the Id. DR. Respectfully following the precedent, we uphold the impugned order on this issue. Since the issue in controversy has already been decided by coordinate Bench of Tribunal in favour of the assessee in A.Y.2009-10 to 2011-12 on the basis of principle laid down by Hon ble Bombay High Court in the case of CIT vs. Shri Plot Swetamber Murti Pujak Jain Mandal (1995) 211 ITR 293 (Guj) that income derived from the trust property has also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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