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2017 Supreme(Guj) 895

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
M.R. Shah and B.N. Karia, JJ.
Ahmedabad Urban Development Authority - Appellant
Vs.
Assistant Commissioner of Income Tax (Exemption) - Respondent
Tax Appeal Nos. 423, 424 to 425 of 2016, Civil Application (OJ) No. 211 of 2016, Civil Application (OJ) No. 213 of 2016
Decided On : 02-05-2017

Advocates Appeared:
For the Appellant :S.N. Soparkar, Ld. Sr. Adv. and B.S. Soparkar, Advocate.
For the Respondents:Mansih R. Bhatt, Ld. Sr. Adv. and Mauna M. Bhatt, Advocate.

Headnote:

Income-tax Act, 1961 – Section 2(15) – Assessment – Income-tax Appellate Tribunal has erred in law and on facts in holding that the activity of the appellant was in the nature of trade, commerce or business and hence it cannot be regarded as activity for charitable purpose in view of the proviso to section 2(15) of the Income-tax Act, 1961 Whether the Income-tax Appellate Tribunal has erred in law and on facts in disallowing the claim of exemption of the appellant under section 11 of the Income-tax Act, 1961, and assessing the income of the appellant under sections 28 to 44 of the Income-tax Act, 1961? Held, Activity of a trust would be excluded from the term charitable purpose if it is engaged in any activity in the nature of trade, commerce or business or renders any service in relation to trade, commerce or business for a cess, fee and/or any other consideration. It is not aimed at excluding the genuine charitable trusts of general public utility but is aimed at excluding activities in the nature of trade, commerce or business which are masked as charitable purpose – Object and purpose for which the assessee is established/constituted under the provisions of the Gujarat Town Planning Act and collection of fees and cess is incidental to the object and purpose of the Act, even the case would not fall under second part of proviso to Section 2(15) of the Act – Tribunal has committed a grave error in holding the activities of the assessee in the nature of trade, commerce or business and consequently holding that the proviso to Section 2(15) of the Act shall be applicable and therefore, the assessee is not entitled to exemption under Section 11 of the Act. For the reasons stated above, it is held that the proviso to Section 2(15) of the Act shall not be applicable so far as assessee-AUDA is concerned and as the activities of the assessee can be said to be providing general public utility services, the assessee is entitled to exemption under Section 11 of the Act. Both the questions are therefore, answered in favour of the assessee and against the revenue – Appeals allowed

JUDGMENT :

M.R. Shah, J.

1. As common question of law and facts arise in this group of appeals and as such with respect to same assessee-Ahmedabad Urban Development Authority (hereinafter referred to as "AUDA") and arising out of the impugned common judgment and order passed by the learned Income Tax Appellate Tribunal (hereinafter referred to as the "ITAT") with respect to different assessment years, all these appeals are decided and disposed of together by this common judgment and order.

2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned ITAT passed in ITA No. 712/AHD/2013 for AY 2009-10, by which, learned ITAT has held that the activities of appellant-assessee cannot be said to be for "charitable purpose" within the definition of Section 2(15) of the Income Tax Act and therefore, not entitled to deduction claimed under Section 11 of the Income Tax Act, the assessee has preferred the present Tax Appeal No. 423 of 2016 to consider the following questions of law.

"(1) Whether the Income-tax Appellate Tribunal has erred in law and on facts in holding that the activity of the appellant was in the nature of trade, commerce or business and hence it cannot be regarded as activity for charitable purpose in view of the proviso to section 2(15) of the Income-tax Act, 1961?

(2) Whether the Income-tax Appellate Tribunal has erred in law and on facts in disallowing the claim of exemption of the appellant under section 11 of the Income-tax Act, 1961, and assessing the income of the appellant under sections 28 to 44 of the Income-tax Act, 1961?"

2.1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned ITAT passed in ITA No. 647/AHD/2014 for AY 2010-11, by which, learned ITAT has held that the activities of the appellant-assessee cannot be said to be for "charitable purpose" within the definition of Section 2(15) of the Income Tax Act and therefore, not entitled to deduction claimed under Section 11 of the Income Tax Act, the assessee has preferred the present Tax Appeal No. 424 of 2016 to consider the following question of law.

"(1) Whether the Income-tax Appellate Tribunal has erred in law and on facts in holding that the activity of the appellant was in the nature of trade, commerce or business and hence it cannot be regarded as activity for charitable purpose in view of the proviso to section 2(15) of the Income-tax Act, 1961?

(2) Whether the Income-tax Appellate Tribunal has erred in law and on facts in disallowing the claim of exemption of the appellant under section 11 of the Income-tax Act, 1961, and assessing the income of the appellant under sections 28 to 44 of the Income-tax Act, 1961?"

2.2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned ITAT passed in ITA No. 2335/AHD/2015 for AY 2011-12, by which, learned ITAT has held that the activities of appellant-assessee cannot be said to be for "charitable purpose" within the definition of Section 2(15) of the Income Tax Act and therefore, not entitled to deduction claimed under Section 11 of the Income Tax Act, the assessee has preferred the present Tax Appeal No. 425 of 2016 to consider the following question of law.

"(1) Whether the Income-tax Appellate Tribunal has erred in law and on facts in holding that the activity of the appellant was in the nature of trade, commerce or business and hence it cannot be regarded as activity for charitable purpose in view of the proviso to section 2(15) of the Income-tax Act, 1961?

(2) Whether the Income-tax Appellate Tribunal has erred in law and on facts in disallowing the claim of exemption of the appellant under section 11 of the Income-tax Act, 1961, and assessing the income of the appellant under sections 28 to 44 of the Income-tax Act, 1961?"

3. The facts leading to the present appeals in nutshell are as under;

3.1. That the assessee AUDA is constituted as Urban Development Authority, constituted by the State Government





























































































































































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