2017 (11) TMI 1798

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....e the ld.CIT(A) is justified in allowing the assessee's appeal negating the finding of the AO denying the benefits of section 11(1)(a) of the I.T. Act in view of proviso 1&2 inserted to section (15) of the I.T.Act and deleting additions made of Rs.Rs.92,01,510/- 2. On the facts and circumstance the case, the ld.CIT(A) ought to have upheld the order of the Assessing Officer. 2. Facts of the case are that the assessee filed its return of income on 30.9.2011 declaring total income at Rs.NIL. Case was selected for scrutiny assessment under section 143(3) of the Act was framed on 27.3.2014 declaring income at Rs. 92,01,510/- after denying claim under section 11 of the Act. Assessee objected to the denial of exemption under section 11....

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....rs of the authorities below. The undisputed fact is that the facts of the assessee trust are similar to the facts of Sabarmati Ashram Gaushala Trust, and in its order Hon'ble High Court's decisions have been discussed and the same is as under: "We are wholly in agreement with the view of the Tribunal. The objects of the Trust clearly establish that the same was for general public utility and where for charitable purposes. The main objectives of the trust are-to breed the cattle and endeavour to improve the quality of the cows and oxen in view of the need of good oxen as India is prominent agricultural country, to produce and sale the cow milk; to hold and cultivate agricultural lands; to keep grazing lands for cattle keeping and br....

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.... There should be facts and other circumstances which justify and show that the activity undertaken is in fact in the nature of business. The test as prescribed in Raipur Manufacturing Company [1967] 19 STC 1 (SC) and Soi Publication fund [20Q2] 258 ITR 70 (SC); {2002} 126 STC 288 (SC} can be applied. The six indicia stipulated in Lord fisher [1981] STC 238 are also relevant. Each case, therefore, has to be examined on its own facts. In view of the aforesaid enunciation, the real issue and question is tht whether the petitioner-Institute pursues the activity of business, trade or commerce. To our mind, the respondent while dealing with the said question has not applied their mind to the legal principles enunciated above and have taken a rath....

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....so held now. 4. The Assessing officer has erred in computing tax on the total income determined by him at flat rate of 30% in place of correct slab rate as applicable to an Association of Persons (AOP). It is submitted it be so held now. 6. The Assessing officer has erred in charging interest under section 234B of the Act & has erred in withdrawing interest under section 244A." 6. We have gone through relevant material. In connected appeal, ITA No.2496/Ahd/2015 we have given relief to the assessee and dismissed the appeal of the department. The ld.AR cited an order of this co-ordinate Bench in assesse's own case in ITA NO.2016/Ahd/201 and CO No.260/Ahd/2014, Asstt.Year 2010-11. It was held by the co-ordinate Bench that ....