2017 (11) TMI 1707

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....Act, 1961 (hereinafter referred to as "the Act") dated 25/03/2015 and dated 28/03/2016 relevant to Assessment Years (AYs) 2012-13 & 2013-14 respectively. 2. In both the cross-appeals, the facts and question for determination are broadly similar. Therefore, the Assessment Year 2012-03 is taken as a lead year for the sake of convenience. ITA No.2700/Ahd/2016 - AY 2012-13 - Assessee's appeal 3. The grounds of appeal raised by the assessee read as under:- 1. On the facts and in the circumstances of the case, the learned CIT(A) erred in rejecting the appellant's ground of appeal that, for all practical purposes, it is an agent of the State Government of Gujarat and, therefore, by virtue of the provisions contained in Article....

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....remium is in the nature of capital receipt. 5.2 On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the finding of the Assessing Officer that the advance premium received during the year on long term lease of land is appellant's income chargeable to tax in the present assessment year. 5.3 On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the finding of the Assessing Officer that, even if such advance premium is assumed to the assessee's income, the same arises from leasing of land for a period of 99 years and accordingly such premium receipts are required to be proportionately spread over the period of 99 years for the purposes of computa....

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....he learned CIT(A) erred in dismissing as infructuous the following grounds of appeal raised by the appellant before the learned CIT(A): "12.1 On the facts and in the circumstances of the Appellant's case, if the income of the Appellant is treated as business income then brought forward deficit of earlier years i.e. upto A.Y. 2008-09 should be allowed to be set off against such business income of current year and subsequent years. 12.2 On the facts and in the circumstances of the Appellant's case, the deficit of earlier years i.e. excess of expenditure (including capital expenditure) over income, should be allowed to be carried forward and set off against the income of the current year and subsequent years, if any, ....

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....4,363/- made by the A.O. on account of premium of land and shades. II. Whether on the facts and in the circumstances of the case is the Ld.CIT(A) justified in directing the A.O. to tax the lease premium at the rate of 40%. 5. The Ld.Counsel for the assessee Mr.S.N.Soparkar at the outset submitted that predominant ground which requires adjudication at this stage is ground No.3 of the assessee's appeal. The Ld.Counsel submitted that the AO held for this year as well as in the earlier year that activities carried out by the assessee-company are in the nature of 'advancement of other general public utility' in the nature of trade/commerce/business and therefore the activities carried out by the assessee cannot be reckoned as attributable to ....

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....ted that the aforesaid order of the Tribunal has also been affirmed by the Hon'ble Jurisdictional High Court in the case of CIT vs. Gujarat Industrial Development Corporation (2017) 80 taxmann.com 366 (Guj.). The Ld.Counsel accordingly submitted that the consequential assessment can be carried out afresh after deeming the activities of the assessee to be of charitable purpose. It was submitted that for assessment purpose, the assessment order can be fairly set aside in the light of the order of the Coordinate Bench of ITAT and judgement of Hon'ble Jurisdictional High Court (supra). On this note, the Ld.Counsel concluded his arguments. 6. The Ld.DR for the revenue, on the other hand, relied upon the orders of the AO and submitted that wit....

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....tivities carried out by assessee were either in nature of trade, commerce or business, for a Cess or Fee or any other consideration so as to attract proviso to section 2(15) and same could be said to be for charitable purpose and, consequently, assessee was entitled to exemption under section 11 - Held, yes [Paras 15 and 17] [In favour of assessee]." 8. The Hon'ble Jurisdictional High Court in essence upheld that assessee was not involved in the activities in the spirit of commercial accommodation and therefore falls within the ambit of definition of 'charitable purpose' contemplated under s.2(15) of the Act. In view of the foregoing, we find that the relief sought by the assessee to the extent that the activities carried on by the asses....