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1. Ground of Appeal No.1 :

On the basis of the facts and the position in law, the Assessing Officer erred in taking the view that all the activities carried out by the trust are in the nature of advancement of any other object of general public utility.

Till the Assessment Year 2009-10 for which a scrutiny Assessment under Section 143(3) was made, the activities of the Appellant Pubic Charitable Trust was never considered as 'any other object of general public utility even though the same existed in the definition of Charitable Purpose u/s 2(15) of the Act. It is only after the amendment to the proviso to Section 2(15) that the Assessing Officer has treated the activities of the Appellant Trust as object of general public utility which was earlier treated as educational activities, without there being any change in the activities during the year under Appeal. We submit that the activities of the Appellant Trust continues to be educational as can be seen from the following facts.

"The assessee-trust formed to carry out the object of education and development. of natural talents of people having special skills, more particularly women. It trained them to earn while learning. It educated them in the field of catering, stitching, toy making, etc. While giving them training, it used material bought from the open market. This was essential for carrying out the assessee's object. In the process, some finished product such as pickles, jam, etc., were produced and which the assessee sold through shops, exhibitions and personal contacts. The motive of the assessee was not the generation of profit but to provide training to needy women in order to equip or train them in these fields and make them selfconfident and self-reliant. There was nursing training, which was also being managed and administered by the assessee. The details of income and expenditure showed that the assessee had received donations of Rs. 36, 88,634 and nursing school fees of Rs. 4,46,088. The assessee pointed out that this nursing training provided at the center of the assessee at Panvel was free of cost. The charge was levied for the mess but accommodation and other facilities were free of cost and apart from community development programmes, which were undertaken to educate rural women, they were taught various skills and made aware of how to live honorably. The Tribunal found that this was not an activity which would fall within the proviso to section 2(15). The Tribunal referred to two letters addressed by the trustees of the assessee-trust clarifying that in the past, such activities had been found to be incidental to the objects of the trust. Secondly, the donation received during the year had been utilised in the assessment year 2009-10 for achieving the object of the trust. However, the bank interest received was continued and, then, there was a deficit. It was in these circumstances that the argument was canvassed that the fees collected for training women were only to meet the cost of expenses for providing them food items. Their accommodation and other facilities were free of cost, The Tribunal found that the trust may be set up for advancement of any other object of general public utility but that would not cease fo be charitable purposes because the activities in which the trust was involved could not be termed as carrying on of trade, commerce or business, that the activity undertaken did not partake of the ITA NO. 7461/MUM/2018 (A.Y: 2010-11) Nehru Centre character of trade, commerce or business nor of rendering of any service in relation thereto but was only to teach or impart skills and to instill confidence that the produced goods or articles were sold. To that extent also deficit had occurred. The Tribunal took a view that occasional sales or the trust's own fund generation were for furthering the objects but not indicative of trade, commerce or business. The proviso did not apply. ...... considering the fact that the trust had been set up and was functional for the past several decades and it had not deviated or departed from any of its stated objects and purpose, utilisation of the income, if at all generated, did not indicate the carrying on of any trade, commerce or business. The Tribunal's view was to be upheld. It was a possible view and could not be termed perverse. The view was taken on an overall consideration and bearing in mind the functions and activities of the trust. In such circumstances, it was not vitiated by any error of law apparent on the face of the record."

(i) The Gujarat High Court in the case of Ahmedabad Urban Development Authority 335 ITR 575 held as under:

"Thus granting the registration u/s 12AA, therefore, cannot be ignored or wished away by Assessing Officer by adopting a stand that the trust or institution is not fulfilling the conditions for applicability of section 11 and 12.

(ii) The Jurisdictional Mumbai Tribunal in the case of Shamukhanand Fine Arts and Sangeeta Sabha 1975/M/2016 & 6858/M/2016 held as under.

"In our opinion, during the continuation of registration, it is not possible to the department to challenge the charitable nature of the object of the trusts".

12. On the other hand, Ld. AR submitted that till the A.Y.2009-10 for which scrutiny Assessment u/s. 143(3) of the Act were made, the activities of the assessee's are Public Charitable Trust and was never considered as 'any other object of general public utility' even though the assessee's trust existed as per the definition of Charitable Purpose u/s. 2(15) of the Act.

He submitted that it is only after the amendment to the proviso to Section 2(15) of the Act the Assessing Officer has treated the activities of the assessee Trust as object of general public utility which was earlier treated as educational activities, he also submitted that there is no change in the activities during the year under Appeal. He submitted that the activities of the assessee are same over the years and no change. He submitted that the activities of the assessee continues to be educational and in order to stress the above point he brought to our notice submissions made by ITA NO. 7461/MUM/2018 (A.Y: 2010-11) Nehru Centre the assessee before the Ld.CIT(A). He also refers to the Circular No. 11 of 2008 issued by CBDT on the issue of applicability of proviso to section 2(15) of the Act which are in line with the Finance Minister's speech in the parliament. Finally, he relied on the finding of the Ld.CIT(A) and prayed that it may be upheld.