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4.3. Ld. A.R. submitted that the surplus generated from the aforesaid business undertakings of the appellant trust are redeployed for the purpose of achieving its main charitable objectives. He submitted that from the aforesaid activities of the undertakings of the appellant trust it may be appreciated that the appellant is solely committed to achieving its predominant charitable objectives of providing medical relief, imparting education and relief to the poor. The authorities below while accepting that the objects/activities of the appellant trust as being charitable in nature, in the same breadth held that it fell under the sixth limb of the definition of charitable purpose given u/s 2(15) of the Act, i.e. advancement of any other object of general public utility. It was covered under the mischief of proviso to that section. Applying the aforesaid proviso, the authorities below held the appellant's transaction to be in the nature of business and commerce, similar to private players in the market and denied exemption amounting to Rs.103,32,76,024/- u/s 11/12 of the Act. He pointed out that the appellant, since its inception, in the year 1995, has been engaged in the activities of providing medical relief through Ayurved, Naturopathy, Yoga, Acupressure which has been consistently accepted by the revenue authorities in the assessment years 2004-05 to 2008-09 vide various assessments completed u/s 143(3) of the Act. In support, he referred to pages 207-244 of the paper book i.e. copies of these assessment orders for asstt. years 2004-05 to 3008-09. In all these assessment orders, the A.O. has consistently held that he appellant was engaged in providing medical relief, contended the Ld. A.R. Ld. A.R. pointed out further that in the assessment years 2004-05 to 2008-09, the A.O. has allowed exemption u/s 11/12 of the Act but the addition/disallowances were made (primarily relatable to compute the income of the business undertaking) while computing the taxable income. On appeal, the first appellate authority has deleted the additions/disallowances made by the A.O. in each of the said years, thereby accepting the return of income of the appellant and also accepted that the appellant trust was engaged in providing medical relief. Ld. A.R. submitted that the aforesaid orders of the first appellate authority have not been challenged by the revenue and accordingly, the said orders have reached its finality. He submitted that there was no dispute raised by the A.O. as regards to the objects of the trust of providing medical relief being pursued by the appellant. He pointed out further that there has been no change in the charitable objectives pursued by the appellant in the assessment year under consideration in comparison to earlier years. Thus, the A.O. has deviated from its stand which has been consistently accepted in the past many years. Ld. A.R. contended that in income tax proceedings though the principle of res judicata does not strictly apply, yet, the rule of consistency does apply. In support he placed reliance on the following decisions:

"A question has been raised regarding the availability of exemption in the hands of charitable trusts of amounts aid as donation to other charitable trusts.

The issue has been considered by the Board and it has been decided that as the law stands at present, the payment of a sum by one charitable trust to another for utilization by the donee trust towards its charitable objects is proper application of income for charitable purpose in the hands of the donee trust; and the donor trust will not lose exemption under section 11 of the I. T. Act, 1961, merely because the donee trust did not spend the donation during the year of receipt itself.

6.6.4. Further allegation of Ld. CIT(DR) remained that the appellant has applied minimum amount of income for charitable purpose and diverted substantial amount to its sister concern i.e. Patanjali Yogpeeth Trust with the intention of retaining funds within its own control. It was alleged by her that the appellant was charging exhorbitant rates for accommodation fee in the name of participation fee. In alleging so the Ld. CIT(DR) has placed relilance on the statement of one Shri Balwant Singh Minhas, wherein he has alleged to have paid amount of Rs. 49,000/- as participation fee for the yoga shivir purportedly conducted by the appellant in the assessment year under consideration. The Ld. CIT(DR) has further alleged that appellant has collected a sum of Rs. 68.45 lacs under this head during the year. She alleged further that the assessee has charged Rs. 290.79 lacs from patients during the assessment year through medical hospital which was in addition to the price of medicine charged from patients. She alleged that the appellant was unable to produce during the appellate proceedings any documentary evidence to support the charitable activities in the form of medical relief in the hospital run by the appellant. She alleged that the appellant was unable to produce the medical practicitioner during the assessment proceedings. The rejoinder of the Ld. AR remained that there is no legal impediments in one charitable trust giving donation to inter charitable trust. It was submitted that it is a well settled position that when a charitable donation amount out of its current income is donated to inter charitable trust, the same constitute application of income u/s 11(1)(9) of the Act. A copy of certificate of registration of the donee trust u/s 12A of the Act has been placed at page 856 of the supplementary paper book - (III). The CBDT instruction No. 1132 dated 5.1.1978, extract of which has been made available at page No. 857 of the supplementary paper book-III has made it clear that payment of a sum by one charitable trust to another for utilization by the donee trust towards its charitable objects is proper application of income for charitable purpose in the hands of the donee trust and the donor trust will not loose exemption u/s 11 of the Income Tax Act 1961. We thus do not find substance in the contention of the Ld. CIT(DR) that the appellant has donated an amount to the donee trust to deviate from its objectives. Since it is not the case of the department that Patanjali Yog Trust, the donee has not applied such sums for charitable purposes, there is no substance in the allegation that the appellant has deviated the funds.

6.7.5. We have also gone through the decisions relied upon by the Ld. CIT(DR) and find that the facts of those cases are distinguishable from the case of the assesee, hence these are not helpful to the revenue. In the case of Samajbadi Society vs. ACIT 79 ITD 112 (Cutt) the assessee was engaged in printing and publishing newspapers and periodicals on commercial lines and it claimed exemption on the ground that it was engaged in the charitable activity of "imparting education". The Tribunal by placing reliance on the decision of Hon'ble Supreme Court in the case of Sole Trustee, Lok Shikshana Trust vs.CIT 101 TR 234 (SC) held that the activities undertaken by the appellant were in the nature of "general pubic utility" as defined u/s 2(!5) of the Act and since there was no itota of evidence to substantiate the charitable activities undertaken by the assessee no exemption was granted in the given assessment year. In the case of Aurolab Trust vs. CIT 46 SOT 125 (Chennai) assessee engaged in the singular activity of manufacturing and trading in ophthalimic and cardiovascular products and accessories, had not taken any charitable activity as provided in the trust deed. Even the sale price of the products sold by the assessee was higher than those available in the market. Taking into account these aspects the Tribunal held that since there was no element of chaity involved in the activities undertaken by the appellant the assessee was not entitled to claim exemption u/s 11/12 of the Act. In the case of CIT vs. ICAI 321 ITR 73 (Delhi) the assessee was pre-dominantly engaged in undertaking R & D activities on behalf of Government and other institution and providing consultancy services. In view of the primary activity undertaken by the assessee it was held to be in the nature of providing 'general public utility' as defined u/s 2 (15) of the Act. However the case was ultimately decided in favour of the assesee and exemption was granted u/s 10(23C)(iv) of the Act. In the case of CIT vs. Queen's Educational Society, ITA No. 103 (Uttrakhand High Court) decision was rendered in the context of allowability of exemption u/s 10(23C) of the Act on the facts of the case before the Hon'ble High Court. In this case profits of the assessee was considered without taking into consideration the capital expenditure incurred by the assessee for charitable purposes. This decision was subsequently been dissented from in several decisions including decision of Hon'ble Punjab & Haryana High Court in the cases of Pinegrove International Charitable Trust vs. UOI 327 ITR 73 (P & H) and CIT vs. Gaur Brahmin Vidya Pracharini Sabha 203 taxman 226 (P & H); Maa Saraswati Educational Trust vs. UOI 194 taxman 84 (H.P) ; DIT (Exemption) vs. Lilavati Kirtilal Mehta Medical Trust ITA(L) No. 2990/2009 (Bom) etc. in the case of Sanjeevamma Hanumantha Gowda Charitable vs. DIT(E) 9 SOT 293 (Bombay) the predominant activity undertaken by the assessee was letting out of marriage halls on purely commercial basis and not in furtherance of the charitable objectivities. Further the assessee had not undertaken any charitable activity in pursuance of the charitable objects provided in the trust deed. The assessee was therefore denied registration u/s 12A of the Act. In the case of Daulatram Public Trust vs. CIT 244 ITR 514 (Delhi) there was no dominant charitable objective in the trust deed which the ancillary objects sub served. It was also observed that no amount was utilized for charitable purposes and the assessee was predominantly engaged in undertaking commercial activities for the purpose of generating profits. In the case of Jacob Thasildar, 176 ITR 243 (Kerala) decision was given in the context of the Kerala Building Tax Act 1975 wherein the scheme of that Act is completely different from the applicable provisions of the Income Tax Act. In the case of CIT vs. Jodhpur CAs Society 258 ITR 548 (Raj.) the assesee was engaged in organizing conference, seminars and workshops which was held to be in the nature of "general public utility"