2017 (4) TMI 175 - AT - Income Tax

Appellate Tribunal Upholds Exemption for Non-Profit Society

The Appellate Tribunal upheld the decision of the Commissioner of Income-tax (Appeals) to grant exemption under section 11 to the assessee society for the ... Exemption u/s 11 - non charitable activity - Held that:- The assessee is a society created to take over the state resource center for adult education from Andhra Mahila Sabha on a mutually agreed terms and to run it with the assistance of the Govt. of India. Mere buying and selling may not be considered as commercial activity with the presence of some profit, which may be for the purpose meeting certain incidental expenditure in the society. In the given case, assessee has purchased some books and distributed the same as per the directions of Govt. of AP to Anganwadis with a minimum profit of 5% which also fixed in consultation with the State Govt. This 5% margin will be utilized to meet the expenditure in State Resource Centre (SRC) which was taken over by the assessee. As per the income and expenditure statement extracted by the AO, profit earned by the assessee is about 3% which may be applied by the society for the mandate under the National Literacy Mission to undertake the task of procurement and supply of teaching material. Therefore, one cannot jump into conclusion merely because there is buying and selling activity. Whether it is in the nature of commercial activity or not has to be determined. It can be termed as commercial activity when it is carried out with the intention of making only profit. When there is no presence of motive to make profit, it cannot be considered as commercial activity. In the given case, rates and profit margin is determined with the consultation of State Govt. and the assessee has no role to play in determining the profit margin in the above transaction. Hence, it clearly shows that presence of profit, which also fixed by the State Govt., does not mean that the assessee is carrying on commercial activity. Moreover, whatever profit generated by the assessee are applied for the mandate under National Literacy Mission or to run/meet the administrative expenses of the society. Thus assessee is not carrying any commercial activity and the provisions of section 2(15) will not apply to the case of the assessee. Accordingly, we uphold the order of the CIT(A) in directing the AO to allow exemption u/s 11 - Decided in favour of assessee Issues:1. Whether the activities of the assessee society constitute commercial activity under section 2(15) of the Income-tax ActRs.2. Whether the assessee is entitled to exemption under section 11 of the Act for the assessment year 2010-11Rs.Analysis:Issue 1:The Assessing Officer (AO) contended that the aims and objectives of the assessee society, involving the sale of books, fall under the advancement of any other object of general public utility as per section 2(15) of the Act. The AO observed that the society engaged in buying and selling books, which he considered commercial activity, exceeding the threshold of Rs. 10 lakhs. The AO denied the exemption claimed under section 11 by the assessee, emphasizing that a charitable institution should provide services for charitable purposes free of cost. The AO brought the income from the sale of books to tax based on this interpretation.Issue 2:The assessee appealed before the Commissioner of Income-tax (Appeals) [CIT(A)], citing a similar favorable decision in the previous year. The CIT(A) in the earlier year had allowed the appeal of the assessee, highlighting that the profit earned from the sale of books was used for specific purposes mandated by the government, not for commercial gain. The CIT(A) held that the activities did not amount to commercial activity under section 2(15) and granted exemption under section 11 to the assessee.Upon considering the submissions and material facts, the Appellate Tribunal found that the society was established to distribute books to Anganwadis under government direction. The Tribunal noted that the profit margin was fixed in consultation with the State Government and was utilized for specific purposes as mandated by the government. The Tribunal emphasized that the absence of a profit motive for personal gain indicated that the activities were not commercial in nature. The Tribunal upheld the CIT(A)'s decision to grant exemption under section 11 to the assessee, concluding that the society was not engaged in commercial activity. The revenue's appeal was dismissed, affirming the exemption granted to the assessee for the assessment year 2010-11.