JCIT-OSD(E) Vs Gujarat Housing Board (ITAT Ahmedabad)

ITAT Ahmedabad recently ruled on six appeals filed by the Revenue against the Gujarat Housing Board concerning different assessment years ranging from 2011-12 to 2018-19. The disputes primarily revolved around the applicability of tax exemptions under Sections 11 and 12 of the Income Tax Act, 1961, and compliance with the definition of “charitable purpose” under Section 2(15). Appeals related to low-tax-effect cases for assessment years 2015-16 and 2016-17 were withdrawn by the Revenue following CBDT’s Circular No. 09/2024.

A significant contention arose for the assessment year 2011-12, where the Revenue challenged the Gujarat High Court’s decision in the Hon’ble Supreme Court. The key issues debated included the application of the proviso to Section 2(15) and the criteria for exemption under Sections 11 and 12. The Revenue argued that sufficient opportunities were provided to the assessee during assessment proceedings, which were not adequately utilized.

The Hon’ble Supreme Court, in its landmark judgment in related cases, clarified the interpretation of “charitable purpose” and trade-related activities. The Court ruled that entities advancing general public utility could engage in trade or business only if such activities were incidental to their primary charitable objectives and adhered to specific quantitative thresholds.

Under Section 2(15) of the Income Tax Act, 1961, the term “charitable purpose” includes the advancement of general public utility; however, the proviso imposes a quantitative limit on commercial activities, stipulating that the aggregate receipts from trade, commerce, or business should not exceed 20% of the total receipts in a financial year.  Court clarified that incidental commercial activities aligned with a charitable purpose are permissible only if they remain within this threshold. Exceeding the limit results in the loss of charitable status for that year, making the entity ineligible for tax exemptions under Sections 11 and 12.

The ITAT Ahmedabad applied these principles to the case, emphasizing that statutory bodies performing essential public functions might charge fees or cess, which do not necessarily qualify as trade or business. The Board’s activities, primarily focused on advancing public utility, aligned with the Supreme Court’s guidelines, provided the receipts were not significantly higher than the cost incurred.

This ruling underscores the criticality of maintaining detailed records to demonstrate compliance with the quantitative limits under Section 2(15). It further highlights the importance of a case-by-case assessment by tax authorities to determine the nature of activities undertaken by statutory bodies. The outcome serves as a reminder for entities claiming exemptions under Sections 11 and 12 to ensure transparency and adherence to statutory thresholds.

FULL TEXT OF THE ORDER OF ITAT AHMEDABAD

These bunch of six appeals are filed by the Revenue as against the different appellate orders passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, (in short referred to as “CIT(A)”), arising out of the different Assessment Years 2011-12, 2015-16 to 2018-19.

2. At the outset, Revenue submitted that in ITA No. 976 & 977/Ahd/2023 relating to the Asst. Years 2015-16 & 2016-17 arising out of the assessment orders passed under section 147 r.w.s. 144 and under section 143(3) of the Act respectively, wherein Tax Effect is Rs. 8,44,636/- and Rs.15,61,032/- which are Low Tax Effect as per the new CBDT Circular No. 09/2024 dated 17-09­-2024. Therefore Revenue sought permission to withdraw the appeals.

3. Recording the above submissions, Revenue appeals in ITA Nos. 976 & 977/Ahd/2023 are hereby dismissed as withdrawn.

4. ITA No. 444/Ahd/2023 is relating to the Asst. Year 2011-12 wherein in the first round of appeal, the Revenue challenged the same before Hon’ble Supreme Court of India as against the judgment dated 02-07-2018 passed Hon’ble Gujarat High Court in Tax Appeal No. 752 of 2018. The Revenue raised the following Questions of Law before Hon’ble Supreme Court.

“1. Whether, on the facts and in the circumstances of the case, and in law, the Hon’ble High Court is justified in upholding the order of the Appellate Tribunal in remanding the matter to the assessing officer to examine the issue of deduction/exemption under Sections 11 & 12 of the Income Tax. Act, 1961 (for short ‘the Act’) on the basis of material on record and in view of the judgments of Hon’ble High court of Gujarat in the case of Ahmedabad Urban Development Authority 396 ITR 323 (Gujarat), and in the case of Gujarat Industrial Development Corporation 83 taxmann.com 366 (Gujarat), without appreciating that these judgments are pending consideration before this Hon’ble Court in C.A. No.-21762-21762 /2017-ASSISTANT COMMISSIONER OF INCOME TAX (EXEMPTIONS) VS AHMEDABAD URBAN DEVELOPMENT AUTHORITY and C.A. No. 003971 /2018 COMMISSIONER OF INCOME TAX VS 1 GUJARAT INDUSTRIAL. DEVELOPMENT CORPORATION DIRECTOR?

2. Whether, on the facts and in the circumstances of the case, and in law, the Hon’ble High Court was justified in upholding the decision of the Appellate Tribunal on the issue of deduction/exemption under Sections 11 & 12 of the Act, in view of the applicability of Section 2(15) of the Act without appreciating, that sufficient opportunities were given to the assessee during assessment proceedings which the assessee did not avail and comply and that the Appellate Tribunal ignored the substantive discussion and findings of the first appellate authority on the application of proviso to Sections 2(15) and 13 (8) of the Act?”

4.1. The Hon’ble Supreme Court of India vide its common judgment dated 19-10-2022 in a batch of cases namely ACIT (Exemptions) Vs. Ahmedabad Urban Development Authority held as follows:

“IV. Summation of conclusions

253. In view of the foregoing discussion and analysis, the following conclusions are recorded regarding the interpretation of the changed definition of “charitable purpose” (w.e.f. 01.04.2009), as well as the later amendments, and other related provisions of the IT Act.

A. General test under Section 2(15)

A1. It is clarified that an assessee advancing general public utility cannot engage itself in any trade, commerce or business, or provide service in relation thereto for any consideration (“cess, or fee, or any other consideration”);

A2. However, in the course of achieving the object of general public utility, the concerned trust, society, or other such organization, can carry on trade, commerce or business or provide services in relation thereto for consideration, provided that (i) the activities of trade, commerce or business are connected (“actual carrying out…” inserted w.e.f. 01.04.2016) to the achievement of its objects of GPU; and (ii) the receipt from such business or commercial activity or service in relation thereto, does not exceed the quantified limit, as amended over the years (Rs. 10 lakhs w.e.f. 01.04.2009; then Rs. 25 lakhs w.e.f. 01.04.2012; and now 20% of total receipts of the previous year, w.e.f. 01.04.2016);

A3. Generally, the charging of any amount towards consideration for such an activity (advancing general public utility), which is on cost-basis or nominally above cost, cannot be considered to be “trade, commerce, or business” or any services in relation thereto. It is only when the charges are markedly or significantly above the cost incurred by the assessee in question, that they would fall within the mischief of “cess, or fee, or any other consideration” towards “trade, commerce or business”. In this regard, the Court has clarified through illustrations what kind of services or goods provided on cost or nominal basis would normally be excluded from the mischief of trade, commerce, or business, in the body of the judgment.

A4. Section 11(4A) must be interpreted harmoniously with Section 2(15), with which there is no conflict. Carrying out activity in the nature of trade, commerce or business, or service in relation to such activities, should be conducted in the course of achieving the GPU object, and the income, profit or surplus or gains must, therefore, be incidental. The requirement in Section 11(4A) of maintaining separate books of account is also in line with the necessity of demonstrating that the quantitative limit prescribed in the proviso to Section 2(15), has not been breached. Similarly, the insertion of Section 13(8), seventeenth proviso to Section 10(23C) and third proviso to Section 143(3) (all w.r.e.f. 01.04.2009), reaffirm this interpretation and bring uniformity across the statutory provisions.

B. Authorities, corporations, or bodies established by statute

B1. The amounts or any money whatsoever charged by a statutory corporation, board or any other body set up by the state government or central governments, for achieving what are essentially ‘public functions/services’ (such as housing, industrial development, supply of water, sewage management, supply of food prain, development and town planning, etc.) may resemble trade, commercial, or business activities. However, since their objects are essential for advancement of public purposes/functions (and are accordingly restrained by way of statutory provisions), such receipts are prima facie to be excluded from the mischief of business or commercial receipts. This is in line with the larger bench judgments of this court in Ramtanu Cooperative Housing Society and NDMC (supra),

B2. However, at the same time, in every case, the assessing authorities would have to apply their minds and scrutinize the records, to determine if, and to what extent, the consideration or amounts charged are significantly higher than the cost and a nominal mark-up. If such is the case, then the receipts would indicate that the activities are in fact in the nature of “trade, commerce or business” and as result, would have to comply with the quantified limit (as amended from time to time) in the proviso to Section 2(15) of the IT Act.

B3. In clause (b) of Section 10(46) of the IT Act, “commercial” has the same meaning as “trade, commerce, business” in Section 2(15) of the IT Act. Therefore, sums charged by such notified body, authority, Board, Trust or Commission (by whatever name called) will require similar consideration – i.e.. whether it is at cost with a nominal mark-up or significantly higher, to determine if it falls within the mischief of “commercial activity”. However, in the case of such notified bodies, there is no quantified limit in Section 10(46). Therefore, the Central Government would have to decide on a case-by-case basis whether and to what extent, exemption can be awarded to bodies that are notified under Section 10(46).

B4. For the period 01.04.2003 to 01.04.2011, a statutory corporation could claim the benefit of Section 2(15) having regard to the judgment of this Court in the Gujarat Maritime Board case (supra). Likewise, the denial of benefit under Section 10(46) after 01.04.2011 does not preclude a statutory corporation, board, or whatever such body may be called, from claiming that it is set up for a charitable purpose and seeking exemption under Section 10(23C) or other provisions of the Act.

H. Application of interpretation

H. At the cost of repetition, it may be noted that the conclusions arrived at by way of this judgment, neither precludes any of the assessees (whether statutory. or non-statutory) advancing objects of general public utility, from claiming exemption, nor the taxing authorities from denying exemption, in the future, if the receipts of the relevant year exceed the quantitative limit. The assessing authorities must on a yearly basis, scrutinize the record to discern whether the nature of the assessee’s activities amount to “trade, commerce or business” based on its receipts and income (i.e., whether the amounts charged are on cost-basis, or significantly higher). If it is found that they are in the nature of “trade, commerce or business”, then it must be examined whether the quantified limit (as amended from time to time) in proviso to Section 2(15), has been breached, thus disentitling them to exemption.

254. In accordance with the foregoing discussion, and summary of conclusions, the numerous appeals are disposed of as follows:

(i) The revenue’s appeals against the Improvement Trust, Moga 158, the Hoshiarpur Improvement Trust159, Bathinda Improvement Trust 160, Fazilka Improvement Trust 61, Sangrur Improvement Trust 162; Patiala Improvement Trust 163, Jalandhar Improvement Trust 164, Kapurthala Improvement Trust 165, Pathankot Improvement Trust 166, Improvement Trust, Hansi 167, and the Special Leave Petitions filed against the Gujarat Maritime Board and Karnataka Water Supply and Drainage Board are rejected.

(ii) The revenue’s appeals against Ahmedabad Urban Development Authority 170, the Gujarat Housing Board, the Gandhinagar Urban Development Authority 172, Rajkot Urban Development Authority 173, Surat Urban Development Authority 174, Jamnagar Area Development Authority 175, and the Gujarat Industrial Development Corporation1% are rejected. Likewise, the revenue’s appeals against Agra Development Trust177; UP Awas Evam Vikas Parishad178; Raebareli Development Authority 179, Rajasthan Housing Board180; Mangalore Urban Development Authority 181; Mathura Vrindavan Development Authority 182, Meerut Development Authority 183; Belgaum Development Authority 184, Moradabad Urban Development Authority 185, Yamuna Expressway Industrial Development Authority 186; Greater Noida Industrial Development Authority 187; New Okhla Industrial Development Authority and Karnataka Industrial Areas Development Board are rejected.”

4.2. The following Supreme Court Judgment in assessee’s own case dismissing Revenue appeal, the present appeal filed by the Revenue in ITA No. 444/Ahd/2023 is hereby dismissed.

5. Similar is the case for the remaining appeals namely ITA Nos. 978, 979 and 440/Ahd/2023 relating to Assessment Years 2016-17, 2017-18 and 2018-19. Respectfully following Apex Court judgment cited in assessee’s own case, the Revenue appeals are devoid of merit and liable to be dismissed.

6. In the result, all the appeals filed by the Revenue are hereby dismissed.

Order pronounced in the open court on 06-12-2024