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Income Tax Appellate Tribunal, RAJKOT BENCH, RAJKOT
Before: SHRI MAHAVIR PRASAD & SHRI WASEEM AHMED
आयकर अपीलीय अिधकरण, अहमदाबाद �यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT (CONDUCTED THROUGH E-COURT AT AHMEDABAD) BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER And SHRI WASEEM AHMED, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.102/Rjt/2016 िनधा�रण वष�/Asstt. Year: 2012-2013
Jamnagar Area Development D.C.I.T(Exemptions), Authority, Vs. Circle-2, Dr.Hedgewar Commercial Complex, Ahmedabad. 1st Floor, Opp. Sat Rasta Circle, Near M P Shah College, Jamnagar-361001. PAN: AAALJ0188Q
(Applicant) (Respondent)
Assessee by : Sanjay R Shah, A.R Revenue by : Shri JitendraKumar CIT. DR सुनवाई क� तारीख/Date of Hearing : 14/02/2019 घोषणा क� तारीख /Date of Pronouncement: 22/04/2019 आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:
The captioned appeal has been filed at the instance of the Assessee against the order of the Commissioner of Income Tax (Appeals) – 9, Ahmedabad, [Ld. CIT (A) in short] dated 15/02/2016 arising in the matter of assessment order passed under s. 143(3) of the Income Tax Act, 1961 (here-
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in-after referred to as "the Act") dated 13/03/2015 relevant to the Assessment Year (AY) 2012-2013.
The assessee has raised the following grounds of appeal: The appellant, being dissatisfied with the appellate order dated 15-02-2015 passed by Commissioner of Income Tax (Appeals) - 9, Ahmedabad [hereinafter referred to as CIT(A)], files this appeal on the following grounds which are independent and without prejudice to each other. 1. The order passed by the learned CIT(A) is bad in law as well as on facts. 2. The learned CIT(A) has erred in law as well as on facts in holding that the appellant authority functions with profit motive and its activities are in the nature of trade, commerce or business without appreciating that the appellant authority has been constituted u/s. 5 of the Gujarat Town Planning and Urban Development Act 1973 (GTPUD) with sole objective to carry out the development and town planning schemes. 3. The learned CIT(A) has failed to appreciate that collection of fees, charges or any amount as prescribed under GTPUD Act and rules thereunder cannot be said to the activities in the nature of trade, commerce or business. 4. The learned CIT(A) has failed to appreciate that the activities &. objectives of the appellant authority are to be seen holistically and not each of them on standalone basis. 5. The learned CIT(A) has erred in law as well as on facts in wrongly applying first proviso to Section 2(15) to the appellant's case. 6. The learned CIT(A) has erred in law as well as on facts in contending that the appellant authority is not eligible to claim exemption u/s. 11 of the Act. 7. The learned CIT(A) has erred in law as well as on facts in considering receipts as Development Fund of Rs. 38,95,060/-, Public Contribution of Rs. 15,68,250/-and Services, Amenities Fees of Rs. 3,08,42,086/- & Advance for solid waste and management of Rs. 53,07,250/-, aggregating to Rs. 4,16,12,646/-, as income of the appellant authority and thereby further erred in enhancing the assessment.
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The learned CIT(A) has erred in treating the receipt from Advance for solid waste and management of Rs. 53,07,250/- as income without giving any opportunity to the appellant. 9. Without prejudice to above, the appellant authority should be entitled to and be allowed to accumulate income u/s 11(2) in case amounts considered for enhancement by the CIT(A) are treated as income of the appellant authority. The appellant craves leave to add, alter, amend, delete or withdraw one or more grounds of appeal.
The interconnected issue raised by the assessee in the ground no. 1 to 9 is that the Ld. CIT (A) erred in confirming the AO order by denying the exemption u/s 11 and 12 of the Act by applying the first proviso to section 2(15) and section 13(8) of the Act and further erred in enhancing the addition by Rs. 4,16,12,646/- to the total income of the assessee.
The facts of the case are that the assessee, i.e., Jamnagar Area Development Authority (in short JADA) was incorporated to undertake the preparation of development plans, monitoring control of the development of town planning and supply of water and disposal of sewerage and many other services/activities for the benefit of the public at large. Accordingly, the assessee has been granted registration u/s 12AA of the Act for the activity of “advancement of any other object of general public utility” and claimed the exemption u/s 11 and 12 of the Act.
However, the AO during assessment proceedings for the year under consideration from the Income & Expenditure Account observed that the assessee received various kinds of fees and development charges for carrying out the activities of providing infrastructure facilities. Accordingly, the AO held that the assessee is engaged in the activity which is like Page 3 of 14
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trade/commerce/business. Therefore the AO invoked the 1st and 2nd proviso attached to section 2(15) of the Act and denied the exemption claimed by the assessee amounting to Rs. 4,25,77,240/- and added to the total income of the assessee.
The aggrieved assessee preferred an appeal before the Ld. CIT (A). The assessee before the Ld. CIT (A) submitted that merely charging fees for the above-said activity does not mean that it is like trade, commerce or business.
6.1 The object of the assessee is not to earn profit but to advance the object of general public utility and accordingly, the 1st and 2nd proviso attached to section 2(15) cannot be applied to it.
6.2 The assessee further submitted that the JADA had been constituted under the provision of Gujarat Town Planning and Urban Development Act, 1976 (in short GTPUD Act, 1976) which was wholly owned and controlled by the State Government of Gujarat for planning, coordinating and rapid development of areas. It also carried out work for construction of roads, sewerage, parks, playgrounds, health, and cultural institution, etc. for the benefits of the public at large. As such it had no intention to earn profit but to recover the cost by charging the fees.
6.3 The assessee in addition to the above submits and justifies its receipt and its nature before the Ld. CIT (A) as detailed under:
“5.3 JADA has submitted details of receipts and their nature during tne course of appellate proceedings, which are as follows:
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Particulars Head of Account Amount (Rs.)
Urban Poor It represents grants / contributions received from the Government of Housing Scheme Gujarat towards construction of housing project viz. Awash Colony. The 2,33,08,6947- corresponding capital expenditure incurred by the appellant is debited in the balance sheet under the head Capital Expenditure as Urban Poor Housing Scheme Project TPS's It represents grants / contributions received from the Government of Gujarat towards various Town Planning Schemes sanctioned from time to Infrastructure Fund time. The corresponding capital expenditure incurred by the appellant is 4,65,26,3137- debited in the balance sheet under the head Capital Expenditure as T. P. SchemeJ3A & 3B) & Road Project Sardar Patel. It represents grants /contributions received from the Government of Bhavan Project Gujarat towards construction of project office for Government use. The 46,42,1857- corresponding capital expenditure incurred by the appellant is debited in the balance sheet under the head Capital Expenditure as Sardar Pate! Bhavan Project (Face - 1| It represents amount received from bidders in auction of plots Premium Fee 2,09,29,3567- It represents grants / contributions received from the Government of Infrastructure Fund Gujarat towards Drinking Water and Drainage Projects. The corresponding 1,51,67,9127- capital expenditure incurred by the appellant is debited in the balance sheet under the head Capital Expenditure as Sardar Patel Bhavan Project (Face - 1) Granfs from It represents common account wherein grants from the Government Government of towards various capital projects is accounted for which is subsequently Gujarat transferred to respective project account on completion of project. Current Liabilities It includes various securities deposits of the contractors for various project related work assigned to them. It further includes sundry creditors for expenses and statutory liabilities outstanding at the year end.
Sardar Patel JADA has constructed Sardar Patel SmarakBhavan Project which was SmarakBhavan started during 199C and it was completed in 1993. JADA has also Project (Face-1) constructed one building which is known as JADA Building near Sat Rasta, 46,42,1857- Jamnagar which is partly used by JADA itself for its main administrative office and remaining portion of the building is sold out & used by other Government bodies like L/C, Central Excise Department etc. Other Loan It is liability towards interest payable on loan granted by the Government to JADA. 1,96,41,3637-
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Advance of FSI & It represents amount received for providing FSI rights in Sardar Patel Bhavan Project constructed by JADA. SPB Plot 16,44,4257- Advance of TP This is amount has been received towards the sale of plot covered under plot 33,87,75,387 TP scheme. However, amount shown as liability due to registration of documents are pending because of court cases are pending for disputes.
It represents amount received as advance (being 10%) of the total Advance of Premium Fees on sale / lease of plot as per stipulated clause contained Premium Fee 67,08,4407- in the tender which is adjusted / refunded on final execution of sale agreement. The other account viz. premium fees accordingly represent balance 90% of the total price of sale/lease of plot
Advance for Solid The year 2007 was declared as Nirmal Gujarat 2007 by the State waste Government and in order to maintain cleanliness of public places and to Management ensure better healthy lives, this grant / fund was given by the State Project Government to JADA for purchase & maintenance of equipment’s required 53,07,2507- for such Solid Waste Management Program which was part of said Nirmal Gujarat 2007. Service and JADA receives service and amenities fees from the applicants for which Amenities JADA is obliged to provide various services relating to construction of 3,08,42,0867- road, light, drainage etc. in a particular area / under the TP scheme and therefore this amount is recognized and accounted for as liability in the books of account. During the year 2003-04, JADA had given a loan of Rs. 1 Crore to Jamnagar Jamnagar Municipal Corporation (JMC) which was repayable in Municipal Corporation installments of Rs. 20 Lacs. 60,00,000/- Later on, certain projects were undertaken by JADA & JMC jointly for which cost was incurred by JMC and as such JMC has adjusted balance amount of loan (Rs. 60 Lacs) against amount receivable from JADA towards jointly owned projects. However, JADA has yet not accepted the claim of JMC and as such loan is still shown as receivable by JADA in its books in the name of JMC. JMC Project As per agreement with Jamnagar Municipal Corporation, amount has been Advance given for providing drinking water and developing infrastructure to the area 1,91,07,641 falling outside the limit of Jamnagar Municipal Corporation. A copy of Resolution are attached herewith. Copy of DCR Attached herewith.
OCR para Sales of form 3.3 reference/or License Fee 9.1 Hoarding Board fee 9.1 head wise Application fee 9.1 income Scrutiny fee 3.2 Zoning Certificate 32
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6.4 The assessee during appellate proceedings on 05/02/2016 further submitted as under:- "During the year under appeal, the appellant has credited and shown the following receipts on the liability side of its balance sheet. (i) Development Fund - Rs. 38,95,0607-(ii) Public Contribution - Rs. 15,68,2507-(iii) Service and Amenities Fees - Rs. 3,08,42,0867-
6.5 The assessee further submits the details of Advances in relation to carrying out the works which are as under: (i) Development Fund-Rs.38,95,060/- (ii) Public Contribution-Rs.15,68,250/- (iii) Service and Amenities Fees-Rs.3,08,42,086/- JADA receives fees at the prescribed rates from the applicants for (i) carrying out development work. JADA has received the amount of Rs. 15,68,250/- from Vibhapar Gram (ii) Panchayat towards construction of road. JADA receives service and amenities fees from the applicants for (iii) permission granted to carry out development work for execution of works in connection with supply of water, disposal of sewerage and provision of other services and amenities in a particular area / under the TP scheme.
Since the aforesaid amounts are not in the nature of income at the time of receipt and they are to be apportioned against expenditure wherever it is incurred for the said amounts and to be adjusted against the net amount to be paid by the applicant in the town planning scheme and therefore the same is recognized and accounted for as liability in the books of account.
The Ld. CIT (A) after considering the submission observed that the assessee merely constituted under the GTPUD Act, 1976 cannot enjoy the
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blanket exemption, and therefore it cannot be concluded that the proviso of section 2(15) do not apply to it.
7.1 The Ld. CIT (A) further observed that the provisions of section 13(8) as amended by Finance Act, 2012 are also applicable to it and accordingly denied the exemption claimed u/s 11 and 12 of the Act.
7.2 The Ld. CIT (A) after considering the facts of the case held that the functions performed by the assessee are carrying out with the profit motive. As such the activities are in the nature of trade, commerce or business.
7.3 However, Ld. CIT (A) was of the view that the expenditure incurred in connection with the income above needs to be reduced while determining the taxable income of the assessee. In view of the above, the Ld. CIT (A) confirmed the addition made by the AO for Rs. 4,25,77,240/- after allowing the capital expenditure of Rs. 70,33,105/- which comes out to Rs. 3,55,44,135/- only.
7.4 Further, the Ld. CIT (A) considered the revised statement of income filed by the assessee and found certain receipts which were not shown in the income & expenditure account. The details of such receipts stand as under: i. Development fund Rs.38,95,060/-, ii. Public contribution Rs. 15,68,250/-, iii. Receipts of services and amenities fee Rs. 3,08,42,086/- and iv. Advance receipt for solid waste management project Rs. 53,07,250/- 7.5 The Ld. CIT (A) was of the view that such receipt is liable to be included in the total income of the assessee as it represents the income of it.
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Accordingly the Ld. CIT (A) further enhanced the receipts of the assessee by Rs. 4,16,12,646/- as discussed above.
7.6 Hence the revised total income of the assessee had been determined at Rs. 7,71,56,781/- (Rs.4,16,12,646 + Rs. 3,55,44,135).
Being aggrieved by the order of the learned CIT (A), the assessee is in appeal before us.
The learned AR before us filed a paper book running from pages 1 to 80 and submitted that the impugned issue is covered by the judgment of Hon’ble Gujarat High Court in the case of Ahmedabad Urban Development Authority v/s ACIT reported in 83 taxmann.com 78.
On the contrary, the learned DR before us vehemently supported the order of the authorities below.
We have heard the rival contentions and perused the materials available on record. There is no dispute that the jurisdictional High Court in the identical facts and circumstances in the case of Ahmedabad Urban Development Authority (supra) has decided the issue in favor of the assessee. The relevant extract of the judgment is extracted below: “13. Applying the aforesaid decisions to the facts of the case on hand and with respect to the activities of the AUDA - Ahmedabad Urban Development Authority under the provisions of the Gujarat Town Planning Act by no stretch of imagination, it can be said that the activities of the assessee (AUDA) can be said to be in the nature of trade, commerce or business and/or its object and purpose is profiteering. Merely because under the statutory provisions and to meet with the expenditure of Town Planning Scheme and/or providing various services under the Town Planning Scheme, such as road, drainage, electricity, water supply etc. if the assessee is permitted to sale the plots (land) to the extent of 15% of the total area under the Town Planning Scheme and while selling the said plots they are sold by Page 9 of 14
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holding the public auction, it cannot be said that activities of the assessee is profiteering, to be in the nature of trade, commerce and business. 13.1 In the case of Lucknow Development Authority, Gomti Nagar (supra), it is held by the Allahabad High Court that the activities of the authority cannot be said to be in the nature of trade, commerce or business and/or profiteering and therefore, proviso to Section 2(15) of the Act shall not be applicable. 13.2 Similar, view has been expressed by the Rajasthan High Court in the case of Commissioner of Income Tax-I, Jodhpur vs. Jodhpur Development Authority, Jodhpur -Tax Appeal No. 63 of 2012 decided on 5.7.2016. 14. Considering the aforesaid facts and circumstances and more particularly, considering the fact that the assessee is a statutory body - Urban Development Authority constituted under the provisions of the Act, constituted to carry out the object and purpose of Town Planning Act and collects regulatory fees for the object of the Acts; no services are rendered to any particular trade, commerce or business; whatever the income is earned/received by the assessee even while selling the plots (to the extent of 15% of the total area covered under the Town Planning Scheme) is required to be used only for the purpose to carry out the object and purpose of Town Planning Act and to meet with expenditure while providing general utility service to the public such as electricity, road, drainage, water etc. and even the entire control is with State Government and even accounts are also subjected to audit and there is no element of profiteering at all, the activities of the assessee cannot be said to be in the nature of trade, commerce and business and therefore, proviso to Section 2(15)of the Act shall not be applicable so far as assessee is concerned and therefore, the assessee is entitled to exemption under Section 11 of the Income Tax Act. Therefore, the question no.1 is to be held in favour of the assessee and against the revenue. 15. Now, so far as another question which is posed for the consideration of this Court i.e. whether while collecting the cess or fees, activities of the assessee can be said to be rendering any services in relation to any trade, commerce or business is concerned, for the reasons stated above, merely because the assessee is collecting cess or fees which is regulatory in nature, the proviso to Section 2(15)of the Act shall not be applicable. As observed herein above neither there is element of profiteering nor the same can be said to be in the nature of trade, commerce or business. At this stage, decision of the Division Bench of this Court in the case of Sabarmati Ashram Gaushala Trust (supra) is required to be referred to. In the case before the Division Bench, the assessee Trust-Sabarmati Ashram Gaushala Trust was engaged in the activity of breeding milk cattle; to improve the quality of cows and oxen and other related activities. The Assessing Officer denied the exemption to the trust under Section 11 of the Act on the ground that considerable income was generated from the activities of milk production and sale and therefore, considering the proviso to Section 2(15) of the Act, the said Trust- assessee was denied the exemption under Section 11 of the Act. While holding that the activities of the assessee trust still can be said to be for charitable purpose within the meaning of Section 2(15) of the Act and same cannot be said to be in the nature of trade, commerce or business for which proviso to Section 2(15) of the Act is required to be applied. In paras 6, 7, 8 and 12, it is observed and held as under: Page 10 of 14
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"6. The legal controversy in the present Tax Appeal centers around the first proviso. In the plain terms, the proviso provides for exclusion from the main object of the definition of the term Charitable purposes and applies only to cases of advancement of any other of general general public utility. If the conditions provided under the proviso are satisfied, any entity, even if involved in advancement of any other object of general public utility by virtue to proviso, would be excluded from the definition of charitable trust. However, for the application of the proviso, what is necessary is that the entity should be involved in carrying on activities in the nature of trade, commerce or business, or any activity of rendering services in relation to any trade, commerce or business, for a cess or fee or any other consideration. In such a situation, the nature, use or application, or retention of income from such activities would not be relevant. Under the circumstances, the important elements of application of proviso are that the entity should be involved in carrying on the activities of any trade, commerce or business or any activities of rendering service in relation to any trade, commerce or business, for a cess or fee or any other consideration. Such statutory amendment was explained by the Finance Ministers speech in the Parliament. Relevant portion of which reads as under : I once again assure the House that genuine charitable organizations will not in any way be affected. The CBDT will, following the usual practice, issue an explanatory circular containing guidelines for determining whether any entity is carrying on any activity in the nature of trade, commerce or business or any activity of rendering any service in relation to any trade, commerce or business. Whether the purpose is a charitable purpose will depend on the totality of the facts of the case. Ordinarily, Chambers of Commerce and similar organizations rendering services to their members would not be affected by the amendment and their activities would continue to be regarded as advancement of any other object of general public utility. 7. In consonance with such assurance given by the Finance Minister on the floor of the House, CBDT issued a Circular No. 11 of 2008 dated 19th December 2008 explaining the amendment as under :- 3. The newly inserted proviso to section 2 (15) will apply only to entities whose purpose is advancement of any other object of general public utility ie., the fourth limb of the definition of charitable purpose contained in section 2 (15). Hence, such entities will not be eligible for exemption under section 11 or under section 10 (23C) of the Act if they carry on commercial activities. Whether such an entity is carrying on any activity in the nature of trade, commerce or business is a question of fact which will be decided based on the nature, scope, extent and frequency of the activity. 3.1 There are industry and trade associations who claim exemption from tax under section 11 on the ground that their objects are for charitable purpose as these are covered under any other object of general public utility. Under the principle of mutuality, if trading takes place between persons who are associated together and contribute to a common fund for the financing of some venture or object and in this respect have no dealings or relations with any outside body, Page 11 of 14
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then any surplus returned to the persons forming such association is not chargeable to tax. In such cases, there must be complete identity between the contributors and the participants. Therefore, where industry or trade associations claim both to be charitable institutions as well as mutual organizations and their activities are restricted to contributions from and participation of only their members, these would not fall under the purview of the proviso to section 2 (15) owing to the principle of mutuality. However, if such organizations have dealings with non-members, their claim to be chargeable organizations would now be governed by the additional conditions stipulated in the proviso to section 2 (15). 3.2 In the final analysis, however, whether the assessee has for its object the advancement of any other object of general public utility is a question of fact. If such assessee is engaged in any activity in the nature of trade, commerce or business or renders any service in relation to trade, commerce or business, it would not be entitled to claim that its object is charitable purpose. In such a case, the object of general public utility will be only a mask or a device to hide the true purpose which is trade, commerce or business or the rendering of any service in relation to trade, commerce or business. Each case would, therefore, be decided on its own facts and no generalization is possible. Assessees, who claim that their object is charitable purpose within the meaning of section 2(15), would be well advised to eschew any activity which is in the nature of trade, commerce or business or the rendering of any service in relation to any trade, commerce or business. 8. What thus emerges from the statutory provisions, as explained in the speech of Finance Minister and the CBDT Circular, is that the 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. 12. All these were the objects of the general public utility and would squarely fall under section 2 (15) of the Act. Profit making was neither the aim nor object of the Trust. It was not the principal activity. Merely because while carrying out the activities for the purpose of achieving the objects of the Trust, certain incidental surpluses were generated, would not render the activity in the nature of trade, commerce or business. As clarified by the CBDT in its Circular No. 11/2008 dated 19th December 2008 the proviso aims to attract those activities which are truly in the nature of trade, commerce or business but are carried out under the guise of activities in the nature of public utility." 15.1 Applying the aforesaid decision to the facts of the case on hand and the 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.
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15.2 Considering the aforesaid facts and circumstances of the case, we are of opinion that the learned 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. 16. In view of the above and for the reasons stated above, the impugned order passed order passed by the learned Tribunal in respective appeals for different assessment year are hereby quashed and set aside. Accordingly, all these appeals are allowed and answered both the questions in favour of assessee and against the revenue. No costs.”
11.1 In the above judgment, the Hon’ble Gujarat High Court has held that the activities carried out by the assessee are like advancement of any other object of general public utility, and therefore the assessee is eligible for exemptions under section 11 of the Act. As the facts of the case on hand are identical to the facts as discussed above, therefore respectfully following the same we hold that the activities of the assessee are not in the nature of commerce/ trade. As such the activities carried out by the assessee are in the nature of advancement of general public utility. The judgment above being of Jurisdictional High Court is binding on us. Therefore we do not find any force in the argument of the learned DR as discussed above.
The 2nd issue arises for our consideration is how the exemption under 12. section 11 of the Act to be worked out. There is no ambiguity that the AO did not verify the calculation for the exemption under section 11 of the Act during the assessment proceedings. Therefore we are inclined to restore this issue to the file of the AO for the limited purpose of the verification of the exemptions
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to be allowed under section 11 of the Act. Hence the ground of appeal of the assessee is partly allowed for statistical purposes.
In the result, the appeal of the assessee is partly allowed for statistical purposes.
Order pronounced in the Court on 22/04/2019 at Ahmedabad.
-Sd- -Sd- (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 22/04/2019 manish
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