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TMI Blog2024 (8) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... ct other than of a religious or charitable nature, the exemption under section 4(3)(i) of the 1922 Act is not available to assessee. If the primary or dominant purpose of a trust is charitable, another object which by itself may not be charitable but which is merely ancillary or incidental to the primary or dominant purpose would not prevent the trust from being a valid charity. The court also held that where in a trust deed providing for many charitable objects, the trustees were authorised to open and maintain commercial institutions where work at living wages could be provided to the poor and to contribute to commercial, technical or industrial concerns, institutions, associations or bodies imparting any type of training or providing emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner Mr. Suresh Kumar for Respondents ORDER P. C. : 1. Petitioner is a charitable institution registered under the Bombay Public Trusts Act 1950. Petitioner is also registered under Section 12AA of the Income Tax Act, 1961 (the Act) and enjoys exemption under Section 11 of the Act. The matter relates to AY-2007-08. Petitioner is challenging a notice dated 28th March 2014 issued under Section 148 of the Act. The reason for reopening states, (a) that on perusal of return of income, it is noticed that petitioner is engaged in commercial activity having earned income of Rs.1,83,99,069/- from commercial activities; (b) the receipt of this sum indicates that petitioner s activities are commercial in nature and cannot be considered under the he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 143(3) of the Act and the sanction being accorded relying on that statement, also indicates non application of mind by the sanctioning authority as well. These points also have been raised in the objections filed. It will be apposite to refer to paragraph 13 of the judgment of this court in Jainam Investments Vs. ACIT Ors. 2021 (323) CTR Bom-25. 13. It is also trite that the Assessing Officer cannot reopen an assessment even within a period of four years merely on the basis of a change of opinion. The Assessing Officer has no power to review an assessment which has been concluded. Certainly where he has tangible material to come to the conclusion that there is an escapement of income from assessment, the power to reopen can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner recorded on 18th October 2014 under Section 131 of the Act, the representative has disclosed about the unsecured loans taken by petitioner from Shri Rajesh Jain and Shri Manish Jain (the sons of Shri Bhanwarlal Jain). 3. In the order disposing the objections passed on 12th February 2015, which is also impugned in this petition, the AO repeats the mistake that the order in Yogiraj Charity Trust (supra) was passed by the Delhi High Court and not the Apex Court. In the affidavit in reply, of course, it is stated that Yogiraj Charity Trust (supra) relied upon, was passed by the Apex Court. The AO also does not deal with the objections raised by petitioner on the ground of no order having been passed under Section 143(3) of the Act. The AO h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the trustees to spend the whole of the trust fund on any of the non-charitable objects of the trust, then income of the trust was not exempted from tax under the said Act. There is not even an allegation that uncontrolled discretion or authority to open or maintain commercial institution was in the object of petitioner. There is not even a finding to that effect. Just because there are certain receipts received by petitioner while conducting its charitable activities, would not make those receipts whatever may be the quantum, to be income from commercial activities. 4. Therefore, there has to be a tangible material to come to the conclusion that there is an escapement of income from assessment to exercise the power to reopen. But if the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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