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TMI Blog2022 (3) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... y as five common grounds of appeal in all the three appeals. But, in gist, the assessee agitates denial of exemption under section 11 of the I.T. Act, 1961 by applying the provisions of section 2(15) of the I.T. Act, 1961 and in the alternative, if at all the assessee trust is held as a mutual concern, the income computed by the assessing officer and confirmed by the Ld. CIT(A) is not in accordance with law, arbitrary and without understanding the principle of mutuality. 3. Since facts and circumstances in all the appeals are identical, ITA No.6160/Mum/2019 is treated as the lead case. 4. Facts in brief : Assessee is claimed to be a trust carrying on activities of providing swimming pool facilities for aquatic events and training and faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration etc. which are hit by proviso to Sec.2(15) of the Act. The Ld.AR further contended that its registration u/s 12A of the Act has been restored and since it was granted exemption u/s 11 of the Act by the order of Hon'ble ITAT in their own case for A.Ys. 2000-01 & 2001-02, such exemption u/s 11 of the Act should be granted to it for the year under consideration as well. Further, for the A.Yrs, 2000-01 & 2001-02, the exemption u/s 11 was granted to it as in those years the proviso to sec.2(15) as is applicable to the year under consideration was not there in the statute. When such proviso is applicable for the year under consideration, the same has to be taken into view and the facts of the assessee's case are required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not entitled for exemption under section 11 of the Act as the assessee is indulging in having permit room bar and restaurant for catering and soft drinks. The Ld.DR relied upon the following decisions: 1. Murasoli Trust vs ADIT (Exemptions IV), Chennai (2016) 65 taxmann.com 186 (Chennai-Trib) 2. Circular No.11/2008 dated 19/12/2008 3. Rajah Sir Annamalai Chettiar Foundation vs Chief CIT (2020) 116 taxmann.com 128 (Madras) For the proposition that if assessee is engaged in any activity in the nature of trade, commerce or business or renders any service in relation to trade, commerce or business, it would not be entitled to claim that its object is charitable purpose. 9. We have considered rival submissions and perused materials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. 10. We have considered rival submissions and perused the material on record. We have also applied our mind to the decisions relied upon. Before adverting to the issue in hand, it would be imperative for us to have a look at the object of the assessee trust. It reads - "3. AIMS & OBJECTS: The aims and objects of the Association shall be to promote and develop sports. Cultural and social activities and also provide Health/ Sports education in Navi Mumbai. With a view to achieve the said objectives the Association shall work to :- a. Provide facilities for indoor and outdoor games, Swimming pool and Recreation activities. b. Provide facilities for Physical activities, c. Organize Cultural programmes. d. Organize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acility of permit room, which, according to him, cannot be considered to be for charitable purpose. Therefore, applying the Proviso to section 2(15), the assessing officer held that the activity of providing bar room cannot be considered to be objects of general public utility. We find that the Special Bench of the Tribunal in Breach Candy Swimming Bath Trust v/s ITO, concluded that except the income derived from the activity of providing facilities for playing Cards at stake, all other income from Swimming Pool and other sport activities, Bar and Restaurants, etc., will be from the activities of carrying out the object of general public utility, hence, entitled to exemption under section 11 of the Act. (emphasis supplied by us) 11. The Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g found so, now the question remains whether providing of permit room would constitute 'objects of general public utility'. Here we find that the Special Bench of the Tribunal in the case of Breach Candy Swimming Bath Trust v/s ITO, concluded that except the income derived from the activity of providing facilities for playing Cards at stake, all other income from Swimming Pool and other sport activities, Bar and Restaurants, etc., will be from the activities of carrying out the object of general public utility, hence, entitled to exemption under section 11 of the Act. Hence, respectfully following the ratio of decision of the Special Bench of the Tribunal in the case of Breach Candy Swimming Bath Trust v/s ITO, we hold that the income deriv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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