MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION,MUMBAI vs. DEPUTY COMMISSIONER OF INCOME TAX (EXEMPTIONS)-2(1), MUMBAI

आयकर अपील सं/ (निर्धारण वर्ा / Assessment Year: 2015-16) DCIT (Exemption)-2(1) बिधम/ Maharashtra Industrial Room No.519, 5th Floor, Development Corporation Vs. Piramal Chambers, Lalbaug, Udyog Sharthi Mahakali Lower Parel, Mumbai-400012. Caves Road, Andheri (E), Mumbai-400093. स्थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AAACM3560C (अपीलाथी /Appellant) .. (प्रत्यथी / Respondent) Assessee by: Shri K. Madhusudan Revenue by: Ms. Neha Sharma (DR) सुनवाई की तारीख / Date of Hearing: 22/06/2021 घोषणा की तारीख /Date of Pronouncement: 09/07/2021 आदेश / O R D E R PER AMARJIT SINGH (JM): The assessee as well as revenue have filed the above mentioned appeals against the order dated 07.02.2019 passed by the Commissioner of Income Tax (Appeals) -04, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y. 2015-16.

2. The revenue has filed the present appeal against the order dated 07.02.2019 passed by the Commissioner of Income Tax (Appeals) -04, 3433/M/2019 A.Y. 2015-16 Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2015- 16.

3. "Whether on the facts and in the circumstances of the case and in law, the Ld.CIT(A) is right in holding that the land belongs to the state government and merely its possession was given to the assessee merely following the decision of Hon'ble ITAT in the assessee's own case for A.Y.2011-12 ignoring the provisions of section 3(2) of MIDC Act under which assessee is an independent body incorporated under section 32(7) of M1DC Act which envisage compulsory transfer of land acquired by the 3433/M/2019 A.Y. 2015-16 Government to assessee for its objects and section 39 of MIDC Act under which the assessee can dispose of the land only after Government acquire and transfer such land to the assessee.

7. Whether on the facts and in the circumstances of the case and in law, the Ld.CIT(A) is right in following the decision of Hon’ble ITAT in the assessee's own case for A.Y.2011-12 where it was held that income arising from various activities relating to land does not belong to assesse, though the activities of dealing in lands were considered that of assessee, for holding that it is hit by the proviso to section 2(15) of the LT. Act in the first round Seal.

9. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is right in following the decision of Hon'ble ITAT in the assessee's own case for A Y 2011-12 where it was held that ownership of land vested with the state government and income arising there from viz, lease premium, rent, interest income on funds parked as deposits with the bank etc. cannot be assessed as the income of the assessee corporation without considering each item separately in view of their own directions in first round of appeal to AO in the assessee's own case for A.Y.2011-12 to examine the claim of assessee that some activities were done by it on its 3433/M/2019 A.Y. 2015-16 own account and some on behalf of the Government and assessee's failure to comply with these direction to bifurcations.

10. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is correct in following the decision of Hon’ble ITAT in the assessee's own case for A. Y.2011-12 where it was concluded that the transfer of land by the State Government to assesse was a "revocable transfer" within the meaning of Section 61 to 63 of LT. Act, based on Section 43I4(3) rw.s. 32(7) and Section 56 of MIDC Act ignoring the fact that provision of Section 56 of MIDC Act when comes into operation after substantial development of estate, when the plots are already leased to industry and revocation of land from assessee to Govt. is not possible.

12. "Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was correct in following the decision of the Hon'ble ITAT in the assessee's own case for A. Y.2011-12 while deciding the above issue.

13. "The appellant prays that the order of the Commissioner of income Tax (Appeals)-4, Mumbai be set aside and that of the Assessing Officer be restored." 3433/M/2019 A.Y. 2015-16 14. "The Appellant craves leave the amend or alter any ground or add a new ground which may be necessary".” 4. The brief facts of the case are that the assessee filed its return of income on 22.09.2015 declaring total income to the tune of Rs. Nil for the A.Y.2015-16. The return of income was processed u/s 143(1) of the Act. Thereafter, the case of the assessee was assessed u/s 143(3) of the Act determining total income to the tune of Rs.23,70,68,50,760/- on 29.12.2017. Aggrieved by the addition, the assessee filed an appeal before the CIT(A) who allowed the claim of the assessee in connection with the grounds mentioned above, therefore, the revenue has filed the present appeal before us.

GROUNDS Nos. 1 to 10 & 12

5. The revenue has challenged the grounds no. 1 to 10 & 12 on the basis of this fact that the CIT(A) has followed the decision of the Hon’ble ITAT in the assessee’s own case for the A.Y. 2011-12 bearing which is not justifiable, hence, the finding of the CIT(A) is liable to be set aside in the interest of justice. However, on the other hand, the Ld. Representative of the assessee has placed reliance upon the decision of the CIT(A) on all the issues. Before going further, we deem it necessary to advert the finding of the CIT(A) on record.:

“5. Grounds No. '1 & 2 : These grounds are general in nature. The adjudication of subsequent ground will redress the grievance raised by the appellant, therefore, grounds no. 1 and 2 raised by the appellant are dismissed. 6. Ground No. 3 Vide this ground appellant has agitated against the observation of the Ld. AC stating that the appellant was not a valid

ITA No.3354/Mum/2019 3433/M/2019 A.Y. 2015-16 trust. In para 3.1 .2 of the assessment order the Ld. AO had mentioned that during the assessment of the assessee trust for AY. 2010-11, it was held that assessee trust was not a valid trust In para 3.1.3 the Ld. AC mentioned that he had no reason to defer from the findings given in appellants own assessment year 2010-11. Appellant has agitated the findings given by the Ld. AC and stated that in appellants own case for A.Y 2011-12 the appeal of the assessee has been decided by Hon'ble ITAT. The relevant observations of Hon’ble ITAT are reproduced as under:

'9.....The first reason cited by the C?T(A) was that the clause 58 of the MID Act provides for the dissolution of the assessee and hence it falls in the category of a revocable trust. We are not able to accept this view expressed by the Ld. CIT(A). In our view, the dissolution clause would not tantamount to a revocation' clause. The dissolution clause provides for the manner of distribution of assets in the case of winding up and, in fact. every trust deed or Memorandum is expected to have such kind of clause. There should not be any dispute that 'revocation and winding up' have different meaning and purpose. A careful perusal of Section 58 of the MID Act would show that the section prescribes a condition for dissolving the assessee, meaning thereby the assessee cannot be dissolved at the sweet will of the State Government Accordingly, we are not agreeable with the view of the Ld. CIT('A) and accordingly set aside the same,..."

Further the appellant submitted that department filed an appeal before Hon.ble Bombay High Court against the order of Hon'ble ITAT. According to the appellant appeal of the department has been decided by Hon'ble Bombay High Court in ITXA 291/2016. Since the appeal has been dismissed by Hon'ble: Bombay High Court, therefore, respectfully following judgements of Hon’ble ITAT in appellant's own case for AY. 2011-12 appeal of the assessee on this ground is. allowed. 3433/M/2019 A.Y. 2015-16 7. Ground No. 4: Vide this ground. appellant had claimed that the assessee trust was immune from taxation under Article 289 of the Constitution on the ground that it was undertaking sovereign function. During the course of appellate proceedings, the Ld. AR of the appellant fairly conceded that the ground involved was earlier decided against the Appellant by the Hon'ble ITAT The ground was also decided by the Hon'ble Bombay High Court, also against the appellant. The question of law raised by the appellant before Hon'ble High Court was as under:

(i) Whether on the facts and in the circumstances of the case and in law, whether the Tribunal was right in law in holding that the appellant was not carrying on its activities on behalf of the Government of Maharashtra and accordingly not exigible to Income-tax under Article 289 of the Constitution of The question of law raised by the appellant was dismissed by the Hon'ble High Court with the following observations:

(a) The impugned order of the Tribunal held that the appellant could not be considered as a part of the Government Department so as to be exempted from Income Tax It held that Article 289 of the Constitution of India would not extend to the appellant It placed reliance upon the decision of the Supreme Court in Andhra Pradesh State Road Corporation Vs. ITO. 521 ITR 524 to come to the aforesaid conclusion (b)Mr. Sridharan. learned Senior Counsel appearing in support of the appeal challenges the above finding I conclusion of the Tribunal as being contrary to the decision of its co-ordinate bench in the case of CIDCO (Mah) Ltd. Vs. ACIT 138 ITD 381.1n the above case, it had taken a view that an incorporated company engaged in the construction and development of residential and commercial structures would not be subjected to income tax being an agent of the State Government. It is submitted that the facts are similar and the same benefit should be extended to the appellant herein. 3433/M/2019 A.Y. 2015-16 (c) However, it was fairly pointed out by Mr Sridharan, learned Senior Counsel for the appellant that the State has filed an appeal to this Court from the order of the co-ordinate bench of the Tribunal in the case of CIDCO (supra) to this Court being Income Tax Appeal No 1394of 2013 The above appeal has been admitted on 8thJuly. 2015 as giving rise to substantial question of law on the question. "Whether CIDCO was agent of the Government and protected by Article 289 of the Constitution of India and was not exigible to income tax:.

(d) We agree with Mr. Singh. teamed ASG that this issue is no longer resintegra as it stands concluded by the decision of the Supreme Court in Aditya Industrial Area Development Authority Vs Union of India.2006 (5) SCC 100 wherein an identical / similar entity to the appellant herein was not extended the benefit of Article 289 of the Constitution of India in the context of Bihar Industrial Development Authority Act.1974 (Authority Act. 1974). Our attention was particularly drawn to similar/ identical provisionsinAuthorityAct.1974 and the Maharashtra Industrial Development Act.1961 to point out the identical nature of the two entities Therefore. the decision of the Tribunal in CIDCO (supra) was per incurim as the above decision of the Apex Court was not brought to its notice. Further, on facts, this case stands concluded by the decision of the Supreme Court in Aditya Industrial Area Development Authority (supra).Thus, the admission of the appeal in the case of CIDCO (supra) by this Court would not on facts of this case, warrant admission of this appeal.

(e) Therefore, in face of the Supreme Court decision in Aditya Industrial Area Development Authority (supra) which concludes the issue in the present facts, the question as proposed does not give rise to any substantial question of law. Thus, not entertained.

Respectfully following the judgement of the Hon'ble High Court this ground of appeal raised by the appellant is, dismissed. 3433/M/2019 A.Y. 2015-16

8. Ground No. 5 Vide this ground, appellant had challenged the observations made by the Ld. AO that the assessee trust was undertaking commercial activities and commerce and accordingly hit by the proviso to Section 2(15) of the Act. The Ld. AR of the appellant fairly conceded that the grounds raised by the appellant had been decided against the appellant by Hon'ble ITAT in its own case for the A.Y. 2010-11. The relevant part of the Hon’ble ITAT order is reproduced as under:

The present day scenario would show that the private entrepreneurs are developing many Special Economic Zones all over the Country Hence, in the present day scenario, the activities of the assessee and the private entrepreneurs stand on same footing. There cannot be any dispute That the activity of setting up/developing industrial estates and maintaining the infrastructure facilities by the private entrepreneurs is considered as "Business activity". Since the activity carried on by the assessee is no different from that one carried on by the private entrepreneurs, in our view, the activity carried on by the assessee should also be considered to be "business activity" only Hence, the activity carried on by the assessee, in our view, would be hit by the proviso to sec. 2(15) of the Act.

28. The Ld AO invited our attention to the various provisions of MID Act to contend that the assessee is carrying on its operations in accordance with the directions issued by the Slate Government He further submitted that the lands vested with the assessee can also be taken back by the State Government. Accordingly, he contended that the activities of the assessee cannot be considered to be a business activity, since it is acting in accordance with the directions issued by the State Government. In our view, the control or directions issued by the State Government would not change the character of "business activity" We are of the view that the activity carried on by the assessee should be examined independently and the fact that the assessee is being regulated by the State Government would not make any difference. In our view "Ownership" of the Corporation and "activities" of the Corporation are two different aspects 3433/M/2019 A.Y. 2015-16 and the ownership cannot be considered or taken into account to determine the character or nature of the activities carried on by the Corporation.

Respectfully following judgement of Hon'ble ITAT in appellant's own case as dis4ove appeal of the assessee on this is dismissed.

9. Ground No. 6 to 29 Vide these grounds appellant had claimed that appellant had received income on behalf of the Government of Maharashtra. The appellant had also claimed that all the lands belonged to the Government of Maharashtra and not the appellant. I have considered the submissions of the appellant. Similar grounds were raised by the appellant vide ground ho. 1 and ground no. 3 in the batch of appeals for A.Y. 2007-08 to 2014-15 (except 2011-12). I have decided all the above mentioned appeals vide my orders dated 31.01.2019 by following the order of Hon’ble ITAT in appellants own case for A.Y. 2011-12. The relevant part of my order for A.Y. 2007-08 is reproduced as under:

Vide Ground I and 3. the Appellant has claimed that the income by way of lease premiums, rent, interest on bank deposits, etc. does not pertain to the assessee Corporation but to the Government of Maharashtra. In support of its claim, the Appellant placed reliance on the judgment of the Hon ble ITAT in its own case for AY 2011-12. The original assessment for AY 2011-12 was framed by the Lxi. AO vide order dated 28.02.2014. which was confirmed by the CIT(A) vide order dated 29.09.2014.

The Appellant has not pressed Ground 2 and is therefore, dismissed Vide Ground I and 3, the Appellant has claimed that the income by way of lease premiums, rent, interest on bank deposits, etc. does not pertain to the assessee Corporation but to the Government of Maharashtra. In support of its claim, the Appellant placed reliance on the judgment of the Hon'ble ITAT in its own case for A Y 201112 The original assessment for AY 2011-12 was framed by the Ld AG vide order dated 28.02.2014, 3433/M/2019 A.Y. 2015-16 which was confirmed by the Cl T(A) vide order dated 29 09.2014, with the following directions:

"5.3, have considered the facts and circumstances of the case, submissions of the appellant and assessment order The arguments and submissions of the appellant are based on the proposition that the government has overriding title over such income as are contested in Ground No. B of appeal However, it is on record that the appellant is a valid legal corporation established through legislation with its independent objects, functions and powers. Same are performed by the appellant having full autonomy, discretion and valid powers and competence under law for this purpose. The argument that state/government has powers to decide the dissolution and/or disposal of its income is only in the nature of 'application of income as against diversion of income, by overriding title in the context of section 2(24) of the I T. Act, 1961 as also supported by decision in the case of CIT Vs. Sitaldas Tirathdas (1961 41 ITR) (SC) There is no basis for treating the income of the appellant as only for and on behalf of the State government and even there is no Such legal obligation existing in MIDC Act, to consider such an argument. Therefore, on facts and as per law, he argument based on overriding title on the income of the appellant are rejected The argument that amounts have been accepted as in earlier years in balance sheet is not a relevant and valid argument because there is no such provision in support of this proposition and further because AO has made addition after discussing the nature or transactions and computation of income as per I. T. law. Book entries are not determinative of the transactions or computation of income is a settled legal position.

The arguments of gross and net amount relating to the additions/adjustments made by the AO by including the said amounts in 3433/M/2019 A.Y. 2015-16 income of the appellant and not allowing such amounts as are often not as per market rate but are given at concessional rates, in order to aid the objective of the MID Act."

Accordingly, it was contended that the funds received in respect of activities carried on behalf of the Government of Maharashtra cannot be considered as income of the assessee In the alternative, it was contended that the corresponding expenditure relating to the said receipts should be allowed as deduction and only net income can be assessed as income, 32 The Ld. 0, R., on the contrary. placed strong reliance on the orders passed by Ld. CIT (A).

"13. We shall now advert to the core issue involved in the present appeal i.e as to whether the CIT(A) was right in law and the facts of the case in concurring with the A 0 that as the lands under consideration were not owned by the Government of Maharashtra, hence the income arising there from viz lease premiums, rent, interest income earned on the funds parked as deposits with the banks etc were liable to be assessed as the income of the assessee corporation. We are of the considered view that as held by the Hon'ble Supreme Court in the case of /TO vs. Ch. Attchaiah (1996) 218 ITR 239 (SC), it is obligatory on the part of the revenue authorities to assess the income in the hands of the right person and the right person alone We have deliberated at length on the issue under consideration in the backdrop of the contentions advanced by the representatives for both the parties and perused the exhaustive material placed on record and the judicial pronouncements relied upon by both the parties to only balance sheet items, is also not supported by facts and legal provisions. The expense of huge amounts are debited in the profit and loss account during the year Therefore, to that extent there is no as of any further allowance/deduction of expenses relating to the amounts 3433/M/2019 A.Y. 2015-16 under question. Further, no such claim or bifurcation of Gross and net amount was either made before AO or in appellate proceedings with supporting accounts and in specific manner. There is no such note /comment in the final accounts / annual reports pointing out such differentiation of Gross and net amounts as claimed by the appellant. Under these circumstances, the arguments of the appellant for bifurcation and claim of Gross and net amounts of the additions is not sustainable and not supported by any worthy material and evidence Therefore, the claim and arguments as discussed above are rejected In view of above discussion and for the reasons above, Grounds No. 8 and E (10, 11, 12 and 15) of appeal are dismissed.'

"31. Before us, the Ld. A.R. submitted that the assessee is carrying on its activities on its own account and also as agent of the Government of Maharashtra. The amount received from the activities carried on behalf of the State Government was directly taken to the Balance Sheet, since the assessee. as an agent, is liable to hand over the said proceeds to the State Government He further submitted that the assessee has been consistently following this accounting system and this method of accounting followed has been accepted by the Comptroller and Audit General of India also. He further submitted that the nature of these amounts and also the relationship between the assessee and the State Government is evident from reading of number of resolutions / orders passed by the State Government, In the written submissions, the assessee 3433/M/2019 A.Y. 2015-16 has made reference to the resolution No. IDC 1067138498-1ND-1 dated 16.8.1997. With regard to the above said resolution, following submissions have been given in the Written Submissions:

'10. The resolution clearly notes that certain lands acquired by the Government under the MID Act as well as under other laws such as the Land Acquisition Act are placed at the disposal of the Corporation for the purposes of development of industrial areas: and the Corporation is to dispose the land to suitable industries. From the proceeds collected through such disposal to industries (i.e. through lease etc.) the MIDC is entitled to reimburse expenditures incurred by it, and the remainder amount is required to be remitted to the Government. Thus, the first charge over the amounts is with the Government, and not with MIDC. Further, reference may also be made to resolution no. IDC 10791(1 966)/I ND. 14 dated 11.9.1986, where the earlier resolution of 1967 has been reiterated, and it has been stated that MIDC acts as an agent of the Government for development of industrial areas and infrastructural facilities under the provisions of the MID Act. These resolutions have the force of law. It is reiterate that the land belongs to the State Government and this is also further evidenced by the fact that 7112 extracts in respect of the said lands too. As the land is owned by the Government of Maharashtra, the lease premiums collected by the Corporation on behalf of the Government are held on behalf of the Government of Maharashtra and is disclosed as "deposits" in the audited accounts. It is noteworthy that the lease premiums and rents

During the year under consideration there is neither any factual change nor any legal change, therefore, following judgement of Hon'ble ITAT in appellant's own case for AN. 2011-12, appeal of the assessee is, allowed.

10. Ground No. 30: Vide this ground appellant has agitated against non allowability of depreciation as application of income claimed by the 3433/M/2019 A.Y. 2015-16 appellant. During the course of appellate proceeding it was submitted that identical issue arose before the CIT(A) in appellant's own case for AN. 2007-08. The CIT(A) allowed the ground of appeal of the Appellant following the decision of the Hon'ble Bombay High Court in the case of CIT vs. Institute of Banking Personnel 264 ITR 110. The Department filed an appeal before Hon’ble ITAT against the order of the CIT(A). The ITAT dismissed the ground of appeal by the revenue with the following observations:

5. After hearing the rival submissions and perusing the material on record, we find that the issue is covered squarely in favour of the assessee by the decision of the Hon’ble Bombay High Court in the case of CIT vs. Institute of Banking Personnel and Selection (supra) which has been followed by the Ld. CIT(A) while allowing the appeal of the assessee. The Ld CIT(A) also referred to the decision of Director of Income Tax (Exemption), Mumbai vs. Vile Parle Kelavani Mandel (2015) 58 taxmanncom 288 wherein the Hon’ble Bombay High Court has held that the depreciation claimed is towards the use of assets and could not be taken to mean as double deduction first by way of allowing the same as application of income and secondly by way of depreciation on the said amount of fixed asset. We. therefore, find no infirmity in the order of Ld. C1T(A) and are inclined to affirm the same by dismissing the grounds raised by the Revenue. Accordingly, the ground Nos 1. 2 & 3 are dismissed Respectfully following judgement of Hon'ble ITAT in appellants own case for A.Y. 2007-08 in appeal of the assessee on this ground is. allowed.

11. Ground No. 31 Vide this ground. appellant had claimed allowability of carry forward of deficit and allowing the set off against the income of the subsequent years. During the course of appellate proceeding, it was claimed that identical issue arose before the ITAT in 3433/M/2019 A.Y. 2015-16 the Appellant's own case for A.Y. 2007-08 [ITA 4101/Mum/20171 wherein the ITAT allowed the appeal of the Appellant with the following observations:

-6. The second issue raised by the Revenue from ground No.4 to 6 is against the decision of Ld. CIT(A) challenging the carry forward of deficit of Rs.40,45,02.295/- and allowing the set off against the income of the subsequent years.

15 We are of the considered view that a bare perusal of the scheme of the MIDC Act, and the absence of any instrument of transfer evidencing vesting of the ownership of the land in favour of the assessee corporation, both militates against the observations of the lower authorities that the ownership of the land had been transferred to assessee corporation. We thus, in the backdrop of our aforesaid observations are of the considered view that as neither there is any material borne from record. nor any documentary evidence had been furnished before us by the revenue which could irrefutably dislodge the claim of the assessee and therein persuade us to conclude that either the ownership of the land under consideration had been transferred to the assessee Corporation. or the latter could justifiably be held as a "deemed owner of the same for the purpose of justifying assessing of the income arising there from viz lease premiums, rent, interest income on funds parked as deposits with the bank etc., as the income of the assessee corporation, hence the said claim of the revenue fails and is thus rejected. The Grounds of appeal Nos. 1, 4, 5, 7, 8 and 14 are allowed in terms of our aforesaid observations."

In the present appeal. the Appellant relied upon the above observations of the Hon'ble ITA Tin the order in its own case for A. Y. 2011-12 and contended that the assessee is acting as an agent of the Government of 3433/M/2019 A.Y. 2015-16 Maharashtra and thus, the income in question in the form of lease premium, rent, interest on bank deposits, etc does not belong to the assessee but to the Government of Maharashtra, I find that the above judgment of the IT/IT for A. Y 2011-12 would equally apply to the facts of the subject year There is no change in facts considered by the Hon’ble ITAT for A. V 2011-12 and facts for the year in appeal. Therefore, respectfully following the order of the Hon’ble 1TAT for A. V. 2011-12, the appeal is allowed on Ground 1 and 3 raised in appeal Personnel and Selection (supra). We further note that in assessee's own case the issue has been settled in favour of the assessee by the decision of the Hon'ble Jurisdictional Bombay High Court in various earlier assessment years in 1TA No 2651 of 2011 for A. Y. 2004-05. (TA No.2652 of 2011 for A. Y. 2005-06 and 1TA No.288 of 2016 for A. Y. 2007-08. We. therefore, do not find any infirmity in the order of the Ld. CT(A) and accordingly affirm the same by dismissing the ground Nos 4 to 6 of the Revenue Respectfully following judgement of Hon'ble ITAT in appellant's own case appeal of the assessee on this ground is. allowed

6. After going through the finding of the CIT(A) mentioned above, it is apparent on record that the CIT(A) has decided the above mentioned grounds in favour of the assessee on the basis of the finding of the Hon’ble ITAT in the assessee’s own case for the A.Y.2011-12 bearing ITA. No. 6552/Mum/2014. Nothing came into notice that the finding has been changed or varied by any appellate court. The facts are not distinguishable at this stage. Since the issues have been decided by CIT(A) in favour of the 3433/M/2019 A.Y. 2015-16 assessee on the basis of the finding of the Hon’ble ITAT in the assessee’s own case (supra), therefore, we are of the view that the CIT(A) has decided the matter of controversy judiciously and correctly which is not liable to be interfere with at this appellate stage. Accordingly, these issues are decided in favour of the assessee against the revenue.

ISSUE NO. 11 7. Issue no. 11 is in connection with the claim of the depreciation which has been allowed by the CIT(A) on the basis of the decision of Hon’ble Bombay High Court in the case of CIT Vs. Institute of Banking Personnel 264 ITR 110. The facts are quite similar. Nothing adverse has been shown. Nothing came into noticed that the claim of the assessee in connection with the depreciation has wrongly been allowed, therefore, in the said circumstances, we are of the view that the finding in connection with the issue no.11 is also quite correct which is not liable to be interfere with at this appellate stage. Accordingly, this issue is decided in favour of the assessee against the revenue.

ISSUE Nos. 13 & 14 8. Issue nos. 13 & 14 are formal in nature which is not required to be adjudication. In the result, appeal filed by the revenue is hereby dismissed.

9. The assessee has filed the present appeal against the order dated 07.02.2019 passed by the Commissioner of Income Tax (Appeals) -04, 3433/M/2019 A.Y. 2015-16 Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2015- 16.

1. In the facts and circumstances of the case and in law, the Ld. CIT(A) erred in confirming that the assessee corporation is undertaking commercial activities and therefore, its activities would not be regarded as charitable activities within the meaning of section 2(15) of the I.T. Act, 1961.” 11. The fact of the present case is quite similar to the facts of the case mentioned above in bearing therefore, there is no need to repeat the same.

ISSUE No. 1

12. Under this issue the assessee has challenged the observations made by the AO that the assessee trust is undertaking commercial activities and therefore its activities could not be regarded as charitable activities within the meaning of Section 2(15) of the Act. Before going further, we deem it necessary to advert the finding of the CIT(A) on this issue.:-

8. Ground No. 5 Vide this ground, appellant had challenged the observations made by the Ld. AO that the assessee trust was undertaking commercial activities and commerce and accordingly hit by the proviso to Section 2(15) of the Act. The Ld. AR of the appellant fairly conceded that the grounds raised by the appellant had been decided against the appellant by Hon'ble ITAT in its own case for the A.Y. 2010-11. The relevant part of the Hon’ble ITAT order is reproduced as under: The present day scenario would show that the private entrepreneurs are developing many Special Economic Zones all over the Country Hence, in 3433/M/2019 A.Y. 2015-16 the present day scenario, the activities of the assessee and the private entrepreneurs stand on same footing. There cannot be any dispute That the activity of setting up/developing industrial estates and maintaining the infrastructure facilities by the private entrepreneurs is considered as Business activity". Since the activity carried on by the assessee is no different from that one carried on by the private entrepreneurs, in our view, the activity carried on by the assessee should also be considered to be "business activity" only Hence, the activity carried on by the assessee, in our view, would be hit by the proviso to sec. 2(15) of the Act.

Respectfully following judgement of Hon'ble ITAT in appellant's own case as dis4ove appeal of the assessee on this is dismissed.”