DAHISAR SPORTS FOUDATION,MUMBAI vs. ITO (E) (I), MUMBAI

आयकर अपील�य अ�धकरण “एक-सद�य मामला” �यायपीठ मुंबई म�। IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI �ी शमीम याहया, लेखा सद�य के सम� । BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER आयकर अपील सं./I.T.A. No. 7046/Mum/2016 (�नधा�रण वष� / Assessment Year: 2011-12) Dahisar Sports Foundation ITO (Exemptions)-(1), Dahisar Sports Foundation Ground, Piramal Chambers, Lalbaug, बनाम/ Opp. Viday Mandir School, Parel, Mumbai-400 012 Vs. C. S. Road, Dahisar (E), Mumbai-400 068 �थायी लेखा सं./जीआइआर सं./PAN/GIR No. AAATD 3769 P (अपीलाथ� /Appellant) (��यथ� / Respondent) : अपीलाथ� क� ओर से / Appellant by : Shri Vipul Joshi ��यथ� क� ओर से/Respondent by : Ms. Hemalatha सुनवाई क� तार�ख / : 31.08.2017 Date of Hearing घोषणा क� तार�ख / : 09.11.2017 Date of Pronouncement आदेश / O R D E R Per Shamim Yahya, A. M.: This appeal by the assessee is directed against the order by the Commissioner of Income Tax (Appeals)-1, Mumbai (‘CIT(A)’ for short) dated 08.09.2016 and pertains to the assessment year (A.Y.) 2011-12.

2 ITA No. 7046/Mum/2016 (A.Y.2011-12) Dahisar Sports Foundation vs. ITO (E) benefit of exemption u/s. 11 of the Income - tax Act, 1961 ["the Act"] to the Appellant. 1.2 The Ld. CIT (A) erred in confirming the action of the A.O. in holding that the case of the Appellant was covered by the proviso to section 2 (15) of the Act. 1.3 It is submitted that in the facts and the circumstances of the case, and in law, no denial of exemption was called for. 2 Without prejudice to the above, in the alternative, assuming - but not admitting - that some addition was called for, the computation of the same is not in accordance with the law, is arbitrary and excessive.

Income Tax Act. During the course of assessment proceedings, the assessing officer

referred to the applicability of amended provisions of section 2(15) of the Income Tax

Act w.e.f 01.04.2009. Seeking asseessee's response in this regard, the assessing officer proceeded to deny that the benefit of exemption of section 11 in view of the amended

section 2(15) of the Act. The reasoning attributed by the assessing officer in this

regard read as under:

3.3 The above submissions of assessee have been considered. The ‘A’ is relying on circular no.395 (F.no.181(5)85/IT(A-l)/ date 24.09.1984. However it may be noted that the provisions of section 2(15) have been amended vide Finance Act, 2008. As can be seen from the above, the activity of the assessee is commercial in nature in view of amended provisions of section 2(15) vide Finance Act, 2008 states that the 'advancement of any other object of general public utility' shall not be a charitable purpose if it involves the carrying on of - (a) any activity in the nature of trade, commerce or business or (b) any activity of rendering any service in relation to any trade, commerce or business; for a cess or fee or any other consideration, irrespective of the nature of use or application, or retention of the income from such activity provided the receipts from such activity are Rs.25,00,000 (for A.Y.2011-12). From the aforementioned reply of the assessee, it is seen that the assessee has not disputed commercial nature of such receipts viz. Coaching Camp Receipts of

3 ITA No. 7046/Mum/2016 (A.Y.2011-12) Dahisar Sports Foundation vs. ITO (E) Rs.22,94,004 lakhs and receipts in respect of the Garden Receipts of Rs.2,13,220 totaling to Rs.25,07,224. It is also not disputed by the assessee that the objects of and the activities of the assessee trust fall within the fourth limb i.e. any other object of general public utility. The assessee had relied upon the case of DIT(E) Vs. Goregaon Sports Club (IT APPEALL NO.6301 OF 2010) which is prior to the amended provisions of section 2(15) of Finance Act W.E.F. 01.04.2009. In view of the above, it is seen that the assessee trust has satisfied both the conditions as under: a) That its object and activities fall within the fourth limb viz. 'any other object of general public utility' of section 2(15) and b) That the receipts are commercial in nature and above Rs.25,00,000. 3.4 Therefore, it is a fit case for denial of exemption u/s.11 in view of the amended section 2(15) w.e.f. 01.04.2009. Further, in view of section 13(8) introduced w.e.f. 1.4.2009 which provides that no exemption U/s.11 shall be available to such entities, which cannot be construed to be charitable on account of the above amended section 2(15). Penalty proceedings u/s 271(l)(c) of the IT Act 1961 are initiated separately.

upon by the assessee. The learned CIT-A concluded as under:

The appellant submitted that the AO has wrongly treated its activities as business activities and applied proviso to section 2(15). In this regard it is mentioned that the appellant has receipts of Rs. 22.94 lakhs from coaching camp during the year. As per Income & Expenditure A/c for the year ending 31 March 2011, expenditure is only Rs. 12.06 lakhs and thus there is a profit of more than Rs. 10 lakhs. This is a recurring activity of the appellant as is evident from the copy of accounts filed. Last year also the receipts by way of this activity were Rs.15.43 lakhs against which the expenditure was only Rs.9.09 lakhs and thus was a profit of more than Rs. 6 lakhs. The similar is the position with reference to the receipts from Zen Garden. Accordingly, AO has treated this activity being an activity of rendering service in relation to trade, commerce or business for cess or fee. In view of the above, I agree with the assessing officer that the proviso to section 2(15) is triggered which renders the activities of the appellant as non-charitable under this section. ii. Appellant has relied upon several case laws. However, on perusal of these judgments it is found that the facts of the cases are distinguishable. It is noted

4 ITA No. 7046/Mum/2016 (A.Y.2011-12) Dahisar Sports Foundation vs. ITO (E) that in the case of Goregaon Sports Club, the relevant AY was 2003-04 when proviso to section 2(15) was not on the statute. Similar are the facts in case of Delhi Golf Club Ltd., relied upon by the appellant where the relevant AY was 2006-07. In case of Society for Participatory Research in Asia, and Pinegrove International Charitable Trust, the dispute was as to whether activities of the appellant are education or not. In case of India Trade Promotion Organization, constitutional validity of proviso to section 2(15) was challenged. Thus, the facts of these case laws relied upon by the appellant are not identical to the facts of the appellant's case and hence the ratio laid down by the Hon'ble Courts with reference to the facts of these cases is not applicable to the facts of the appellant's case. iii. Other points mentioned by the appellant in its submissions are a mere reiteration of the submissions made before the AO, which have already been dealt with by the assessing officer in the Assessment Order. In view of the facts and legal position as discussed above, findings of the AO are upheld.

present case. He submitted that the said proviso is applicable to an assessee which was

engaged in a non-charitable business. For the proposition that the said proviso is not

applicable if the alleged commercial activity is the very activity with respect of which registration u/s. 12 is granted and is in force, the learned counsel referred to following

case laws:

5 ITA No. 7046/Mum/2016 (A.Y.2011-12) Dahisar Sports Foundation vs. ITO (E) 7. For the applicability of proviso to section 2(15) vis-a-vis a Sports Association, the learned counsel of the assessee placed reliance upon the following case laws:

Definitions. 2. In this Act, unless the context otherwise requires,- (1) ……… (2) …….. (15) "charitable purpose" includes relief of the poor, education, [yoga,] medical relief, preservation of environment (including watersheds, forests and wildlife) and preservation of monuments or places or objects of artistic or historic interest, and the advancement of any other object of general public utility: Provided that the advancement of any other object of general public utility shall not be a charitable purpose, if it involves the carrying on of 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, for a cess

6 ITA No. 7046/Mum/2016 (A.Y.2011-12) Dahisar Sports Foundation vs. ITO (E) or fee or any other consideration, irrespective of the nature of use or application, or retention, of the income from such activity, unless— (i) such activity is undertaken in the course of actual carrying out of such advancement of any other object of general public utility; and (ii) the aggregate receipts from such activity or activities during the previous year, do not exceed twenty per cent of the total receipts, of the trust or institution undertaking such activity or activities, of that previous year;

(15A) "Chief Commissioner" means a person appointed to be a Chief Commissioner of Income-tax or a Principal Chief Commissioner of Income-tax under sub-section (1) of section 117;

(15B) "child", in relation to an individual, includes a step-child and an adopted child of that individual;

the sports and games. The authorities below have drawn adverse inference and

invoked the amended provisions of section 2(15) by holding that by engaging into

coaching camps and obtaining receipts therefrom, the assessee is engaging into

activities of commercial nature. I find that this proposition is not at all sustainable. In

the case of Tamil Nadu Cricket Association (Supra) in a case where the assessee is a

Cricket Association was receiving income from holding of matches and was receiving

sums therefrom was denied exemption on the ground that it was engaged in the

activities in the nature of trade or commerce or business. The Hon’ble High Court

reversed the order holding that substantial/regular surplus cannot taint receipts as

arising from business/commerce. By the volume of receipt one cannot draw inference

that the acivity is commercial. I find that this case law applies to all fours to the

present case. Here also the authorities below have drawn adverse inference on the

7 ITA No. 7046/Mum/2016 (A.Y.2011-12) Dahisar Sports Foundation vs. ITO (E) ground that amount received from the coaching camp being less than the expenditure incurred. Similarly, in the case of ICAI vs. DGIT(E) [2013] 358 ITR 91 (Del), the

Hon’ble Delhi High Court has expounded as under:

(a) There was no finding that the predominant object in doing their activities was to generate profits. (b) These activities were ancillary activities to the main activity/ object. (c) The surplus generated out of these activities is utilised towards the infrastructure development and other student / members related activities. (d) Section 2 (15) defines the term "charitable purpose". Therefore, while construing the term "business" for the said section, the object and purpose of the section has to be kept in mind. We do not think that a very broad and extended definition of the term "business" is intended for the purpose of interpreting and applying the first proviso to section 2 (15) of the Act to include any transaction for a fee or money. An activity would be considered "business" if it is undertaken with a profit motive. There should be facts and other circumstances which justify and show that the activity undertaken is in fact in the nature of business. The expressions "business", "trade" or "commerce" as used in the first proviso must, thus, be interpreted restrictively and where the dominant object of an organization is charitable any incidental activity for furtherance of the object would not fall within the expressions "business", "trade" or "commerce". (e) If the object or purpose of an institution is charitable, the fact that the institution collects certain charges does not alter the character of the institutions. It is not necessary that it should provide something for nothing or for less than it costs or for less than the ordinary price.

undeniable that the object or purpose of this trust is promotion of sports and games and thus charitable. The fact that the trust collects certain charges from coaching

camps meant for promotion of sports and games cannot alter the character of the

institution. To repeat the proposition as expounded above, it is not necessary that the

8 ITA No. 7046/Mum/2016 (A.Y.2011-12) Dahisar Sports Foundation vs. ITO (E) Trust should provide something for nothing or for less than it cause or for less than the ordinary Trust. Accordingly, in my considered opinion, in the background of the aforesaid discussion and precedent, the orders of the authorities below are set aside. Accordingly, I hold that the assessee trust should not be visited with denial of exemption. Hence, the orders of the authorities below is set aside and issue decided in favour of the assessee.