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TMI Blog2024 (9) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... w declared in the judgment, having regard to the facts of each such assessment year. Since Revenue s appeals [in the case of AUDA, SUDA, etc] are dismissed by the Hon ble Supreme Court for the earlier asst. years, they are to be treated as Final. However for the present AY 2016-17 2017-18, we set aside the issue file of AO to consider the same in accordance with law as enumerated by the Hon ble Supreme Court. Appeals filed by the Revenue are hereby allowed for statistical purpose. - Shri T.R. Senthil Kumar, Judicial Member And Shri Makarand Vasant Mahadeokar, Accountant Member For the Assessee : Shri Rasesh Shah, A.R. For the Revenue : Dr. Darsi Suman Ratnam, CIT-DR ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:- These two appeals are filed by the Assessee as against appellate order dated 28.02.2023 passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, (in short referred to as CIT(A) ), arising out of the assessment order passed under section 143(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over 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: 253. In view of the foregoing discussion and analysis, the following conclusions are recorded regarding the interpretation of the changed definition of charitable purpose (w.e.f. 01.04.2009), as well as the later amendments, and other related provisions of the IT Act. General test under Section 2(15) A.1. It is clarified that an assessee advancing general public utility cannot engage itself in any trade, commerce or business, or provide service in relation thereto for any consideration ( cess, or fee, or any other consideration ). A.2. However, in the course of achieving the object of general public utility, the concerned trust, society, or other such organization, can carry on trade, commerce or business or provide services in relation thereto for consideration, provided that (1) the activities of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resemble trade, commercial, or business activities. However, since their objects are essential for advancement of public purposes functions (and are accordingly restrained by way of statutory provisions), such receipts are prima facie to be excluded from the mischief of business or commercial receipts. This is in line with the larger bench judgments of this court in Ramtanu Cooperative Housing Society and NDMC (supra). B.2. However, at the same time, in every case, the assessing authorities would have 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue becomes infructuous and academic. Hence the same does not require any adjudication and liable to be dismissed. 8. We have perused the materials available on record and the judgments passed by the Hon ble Supreme Court and the High Court of Gujarat respectfully following the same, we hold that the activities of the assessee for advancement of any other object of General Public Utility for charitable purpose and therefore the assessee corporation shall be entitled to exemption u/s. 11 of the Act. It is further clarified by the Hon ble Supreme Court in the very same case of ACIT vs. AUDA reported in [2022] 144 taxmann.com 78 (SC) wherein it has been clearly held that the Revenues Appeals are dismissed as far as statutory Corporations/Boards observing as follows: .3. It was urged on behalf of the revenue, that the clarification it seeks is necessary, because in Para 253H and in Para 254, it has been precluded from examining the facts and assessing the concerned assessment years, in relation to the assesses in these appeals. It was urged that the conclusions recorded in the judgment and those in the said two paragraphs, preclude it from dealing with the assessments of parties be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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