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Income Tax Appellate Tribunal, DELHI BENCH: ‘A’ NEW DELHI
Before: SHRI N.K.BILLAIYA & SHRI N.K. CHOUDHARYvs Dr. S.P. Mukherjee Civic
ORDER PER SHRI N.K. CHOUDHARY, J.M.
The instant appeal has been preferred by the Revenue- Department on filing aggrieved against the order dated 04.02.2015 passed by the Ld. CIT (A)-40, New Delhi u/s 250(6) of the Income Tax Act, 1961 (hereinafter called as the ‘Act’). The grounds raised by the Revenue-Department are as under:
“On the facts and in the circumstances of the case and in law, the Ld.CIT (A) has erred in ignoring the fact that the assessee is rendering specific services to its members as well as non-members and charging fees from them which is liable to be taxed under the head “Profits & Gains of Business & Profession” and as such its activities are not charitable in nature.
On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in ignoring the fact that the assessee is not eligible for exemption u/s 11 of the Income Tax Act, 1961.
The appellant craves leave to add, to alter or amend any ground of appeal
raised above at the time of hearing.”
2. Brief facts of the case are as under:
The assessee has claimed as charitable company registered u/s 25 of the Companies Act as well as Section 12AA of the Act. The benefit of Section 11 was denied to the assessee by the Assessing Officer, which was challenged before the Ld. CIT (A) who while considering the relevant judgments rendered by his predecessor, ITAT as well as the Hon’ble Delhi High Court in the assessee’s own case relevant to the AY 2006-07, 2007-08, 2008- 09, 2009-10 & 2010-11, allowed the appeal of the Assessee by granting benefit of Section 11 of the Act .The Revenue Department on being dissatisfied with the order impugned herein passed by the Ld. CIT (A) is in appeal before us.
3. The Ld. DR in support of the Revenue’s Appeal, submitted that the Ld. CIT (A) has erred in ignoring the fact that the assessee is rendering specific services to its members as well as non- members and charging fees from them, which is liable to be taxed under the head “Profits and Gains of Business and Profession” and as such, its activities are not charitable in nature. Further, the Ld. CIT (A) has also erred in ignoring the fact that the assessee is not eligible for exemption u/s 11 of the Act in view of the amendment to proviso to Section 2(15) of the Act .
On the other hand, the Ld. AR relied upon the order passed by the Ld. CIT (A) and submitted that the order under challenge has been passed while considering and following the judgments rendered by the Hon’ble Delhi High Court as well as the ITAT and even by the predecessor of the Ld. CIT (A) and in any case does not require any interference from this court.
We have heard the parties and gone through the relevant orders which are available on record. The issue with regard to the rendering specific services to member as well as non-members by charging fees and applicability of exemption u/s 11 of the Act has already been decided by the Hon’ble Delhi High Court, vide its order dated 19.10.2012 passed in the assessee’s own case relevant to the AY 2006-07 & 2007-08 by holding that the assessee society is entitled to get benefit u/s 11 of the Act. The said order passed by the Hon’ble High Court was further followed by the Hon’ble High Court itself, vide order dated 27.07.2016 pertains to the AY 2008-09 & 2009-10. Even otherwise, in the instant case, the Ld. CIT (A) has categorically held in para no. 4.5 of the impugned order that the case of the assessee is covered in favour of the assessee by the orders of his predecessor for the AY 2006-07, 2007-08, 2008-09, 2009-10 & 2010-11 and also by the Hon’ble Delhi High Court in the assessee’s own case for the AY 2006-07 and 2007-08 which required to be followed. As the Ld. DR also raised an issue that post amendment to the proviso to Section 2(15) of the Act , the situation has become altogether different from the AY 2009-10 onwards and the activities of the Assessee are liable to be treated as business activities, however, we realized that co-ordinate bench of ITAT at Delhi, vide its order dated 16-02- 2015 in the assessee’s own case for the AYs 2008-09 & 2009-10 duly considered and adjudicated the said issue and another co- ordinate bench at Delhi vide its order dated 23-05-2018 while deciding the appeal pertaining to A.Y. 2010-11, respectfully followed the said judgment and nothing is brought on record by Ld. DR, contrary to the said judgments and/or filing of any appeal against the same .
On the aforesaid consideration and observations, we do not find any infirmity, perversity or illegality in the order passed by the Ld. CIT (A), hence, the appeal of the Revenue-Department stands dismissed.
Order pronounced in the open court on 04.06.2018