9911796707
TMI Blog2024 (9) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... 43(3) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') relating to the Assessment Years 2016-17 & 2017-18. Since common issue is involved in both the appeals the same are disposed of by this common order. 2. The Registry has noted that there is delay of 285 days in filing the above appeal. It is explained by the Department since the Appellate order dated 28-02-2023 was received by the Assessing Officer in ITBA Portal, the same was not noticed by the A.O., since he was occupied with the time barring assessment and also due to oversight, heavy work load and shortage of staffs. Thus prayed to condone the delay of 285 days in filing the above appeals by the Revenue. Ld. A.R. appearing for the assessee has no serious objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 154,78,45,826/- and demanded tax of Rs. 67,85,54,440/-. 4. Aggrieved against the assessment order, the assessee filed an appeal before Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi. The Ld. CIT(A) vide his impugned order, following Gujarat High Court judgment in assessee's own case held that the assessee cannot be considered to cover by the proviso to section 2(15) of the Act which was been confirmed by the Hon'ble Supreme Court Judgment in Civil Appeal No. 21762 of 2017 in assessee's own case of ACIT (Exemptions) Vs. Ahmedabad Urban Development Authority and Ors. dated 19-10-2022 reported in 449 ITR 1 (SC) which has settled the issue by dismissing the Revenue's appeal vide Para 253 of the judgment as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services in relation thereto. It is only when the charges are markedly or significantly above the cost incurred by the assessee in question, that they would fall within the mischief of "cess, or fee, or any other consideration" towards "trade, commerce or business". In this regard, the Court has clarified through illustrations what kind of services or goods provided on cost or nominal basis would normally be excluded from the mischief of trade, commerce, or business, in the body of the judgment A.4. Section 11(4A) must be interpreted harmoniously with Section 2(15), with which there is no conflict. Carrying out activity in the nature of trade, commerce or business, or service in relation to such activities, should be conducted in the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to apply their minds and scrutinize the records, to determine if, and to what extent, the consideration or amounts charged are significantly higher than the cost and a nominal mark-up. If such is the case, then the receipts would indicate that the activities are in fact in the nature of "trade, commerce or business" and as a result, would have to comply with the quantified limit (as amended from time to time) in the proviso to Section 2(15) of the IT Act B.3. In clause (b) of Section 10(46) of the IT Act "commercial" has the same meaning as "trade, commerce, business in Section 2(15) of the IT Act. Therefore, sums charged by such notified body, authority, Board, Trust or Commission (by whatever name called) will require similar considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India regarding significantly high mark-up in the case of ACIT vs Ahmedabad Urban Development Authority dated 19.10.2022 reported in [2022] 143 taxmann.com 278 (SC) ACIT(E) -Vs- AUDA dated 03.11.2022 in MA no.1849 of 2022 ? " 6. Ld. CIT D.R. appearing for the Revenue submitted that the Ld CIT(A) ignoring the guidelines laid down by Hon'ble Supreme Court of India regarding significantly high mark-up in the MA No.1849 of 2022 dated 03.11.2022 filed by the Revenue in the case of ACIT vs AUDA. 7. Per contra Ld. Counsel submitted that the assessee's activities are for General Public Utility in the nature of charitable nature and eligible for exemption u/s. 11 & 12 of the Act, which was confirmed by the Hon'ble Gujarat High Court and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the conclusions recorded in Para 253(A), (B), (C), (D) and (E) would disclose that this court consciously recorded its findings, with the intent of finally deciding the issues, for various organizations- i.e. in relation to the assessment years in question, whereas in Para 253 (F), the court remitted the matter for examination and orders by the assessing officer. Similarly, the conclusion in Para 253 G was conclusive with respect to the claim of private trusts, the appeals were dismissed. These conclusions are accurately reflected in the final, operative directions in Para 254. In Para 254 (i) to (iv), the conclusions recorded are against the revenue. However, in Para 254 (v), (vi), (vii) and (vii), the conclusions, are in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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