Asst. DIT (Exemptions)-II, Hyderabad V. Indian Institute of Health & Family Welfare, Hyderabad

ITA 1024/HYD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2904 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 03-07-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M H NAIK
• Assessee Lawyers: G NAGESWARA RAO
• Section: 143(3); 10; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A : HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA.NO.1024/HYD/2012 ASSESSMENT YEAR 2003-2004 ASST. DIRECTOR OF INCOME TAX (EXEMPTIONS)-II, HYDERABAD VS. INDIAN INSTITUTE OF HEALTH AND FAMILY WELFARE, HYDERABAD 500 034. PAN AAAAT0326A (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI M.H. NAIK RESPONDENT BY: SHRI G.NAGESWARA RAO DATE OF HEARING: 22.04.2013 DATE OF PRONOUNCEMENT: 31.05.2013 ORDER PER SMT. ASHA VIJAYARAGHAVAN, J.M. THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED A GAINST THE ORDER OF CIT(A), GUNTUR, DATED 30/03/2012 FOR THE A SSESSMENT YEAR 2003-04. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A REGISTERED SOCIETY REGISTERED UNDER SOCIETIES REGISTRATION ACT . FROM THE ASSESSMENT, THE ASSESSEE HAS FILED ITS RETURN OF IN COME FOR THE A.Y. 2003-2004 CLAIMING EXEMPTION UNDER SECTION 10( 23C) (IIIAB) OF THE ACT ON THE GROUND THAT THE EXEMPTION IS AVAI LABLE FOR THE ASSESSEE BEING AN EDUCATIONAL INSTITUTION WHICH IS SOLELY AND SUBSTANTIALLY FINANCED BY THE GOVERNMENT. DURING TH E COURSE OF ASSESSMENT PROCEEDINGS, THE A.R. WAS ASKED TO EXPLA IN HOW ITS INCOME IS EXEMPT. THE A.R. WITHOUT CLAIMING EXEMPTI ON UNDER 2 ITA NO. 1024/H/12 INDIAN INSTITUTE OF HEALTH & FAMILY WELFARE SECTION 10(23C)(IIIAB) FILED LETTER DATED 21.3.2006 FROM THE SECRETARY OF THE INSTITUTE CLAIMING UNDER A FRESH P LEA THAT ITS INCOME IS EXEMPT UNDER ARTICLE 289(1) OF THE CONSTI TUTION OF INDIA. 3. AFTER CONSIDERING THE ARGUMENTS OF THE ASSESSEE, THE ASSESSING OFFICER HELD THAT THE SOCIETY WAS FORMED AND REGISTERED BY ITSELF WHICH DISPROVES THE CLAIM THAT THERE WAS COMPLETE IDENTITY BETWEEN THE GOVERNMENT AND THE INSTITUTE A ND THE SOCIETY HAVING PERSONALITY OF ITS OWN IS DISTINCT F ROM THE STATE. THE AO FURTHER POINTED OUT THAT GOVERNMENT JUST CHO SE TO RETAIN THE POWER TO DISSOLVE AND THE POWER TO ABSORB THE E MPLOYEES AND THEREFORE, THE INSTITUTE IS NOT PART AND PARCEL OF THE STATE. HE ALSO OBSERVED THAT THE BYE-LAW 50 STATES THAT THE INSTITUTES PROPERTIES ARE DEEMED TO BE VESTED IN GOVERNMENT WH ICH MERELY SAYS THAT THESE PROPERTIES ARE NOT GOVERNMENT PROPE RTIES AND HENCE THE ASSESSEES CLAIM THAT THERE IS COMPLETE I DENTITY BETWEEN THE GOVERNMENT AND THE INSTITUTE HAS NO LEG S TO STAND. 4. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). LEARNED AR OF THE ASSESSEE FILED WRITTEN SUBMISSION S. 5. THE ASSESSEE HAD ALSO ON RECEIPT OF THE ASSESSME NT ORDER FOR A.Y. 2003-2004 WHICH IS BEFORE US FILED STAY PE TITION BEFORE ACIT AND THE SAME WAS REJECTED BY THE DIT (EXEMPTIO N) BY LETTER DATED 15.11.2006. THE ASSESSEE FILED A WRIT PETITIO N BEFORE THE HONBLE HIGH COURT AGAINST THE DEPARTMENT IN TAKING STEPS FOR RECOVERY OF THE DISPUTED TAX. THE HONBLE HIGH COUR T STAYED THE COLLECTION OF TAX. 6. THE CIT(A)-V, HYDERABAD INFORMED THE ASSESSING O FFICER TO SEND REMAND REPORT AND STATUS OF WRIT PETITION TO D ISPOSE OF THE CASE. THE ASSESSING OFFICER SUBMITTED HIS REMAND RE PORT AND A 3 ITA NO. 1024/H/12 INDIAN INSTITUTE OF HEALTH & FAMILY WELFARE COPY OF THE SAME WAS SENT TO THE ASSESSEE BY CIT(A) -V, HYDERABAD WHO HAD FILED HIS COMMENTS. AFTER CONSIDE RING THE REPORT OF THE ASSESSING OFFICER, THE CIT(A) DECIDED THE ISSUE. IN THE WRITTEN SUBMISSIONS THE LEARNED AR OF THE ASSES SEE CLEARLY BROUGHT OUT THE FACTS AND STATED THAT WHILE FILING THE RETURN OF INCOME THE ASSESSEE CLAIMED EXEMPTION UNDER SECTION 10(23)(2AB) OF THE ACT AS IT IS PROVIDING THE EDUCA TION AND THE SOCIETY IS NOT ESTABLISHED FOR DERIVING THE PROFIT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE ALSO CLAIMED THAT ITS INCOME IS EXEMPT UNDER ARTICLE 289 OF THE CONST ITUTION OF INDIA. ALTERNATIVELY, THE ASSESSEE STATED IN HIS SU BMISSIONS THAT WHILE DETERMINING THE SAID INCOME, THE ASSESSING OF FICER REJECTED THE CLAIM FOR EXEMPTION UNDER ARTICLE 289 OF THE CO NSTITUTION OF INDIA AND MENTIONED THAT THE ASSESSEE WITHDREW THE CLAIM OF EXEMPTION UNDER SECTION 10(23C) OF THE ACT. IT WAS ARGUED BY THE A.R. THAT THE ORIGINAL CLAIM WAS MADE UNDER SECTION 10(23C). THEREAFTER, IT CLAIMED EXEMPTION UNDER ARTICLE 289 OF THE CONSTITUTION OF INDIA AND HENCE, THE ASSESSING OFFI CER IS WRONG IN STATING THAT THE ASSESSEE WITHDRAW HIS CLAIM AS THE ASSESSING OFFICER OUGHT TO HAVE CONSIDER THE CLAIM OF EXEMPTI ON UNDER SECTION 10 (23C) OF THE ACT AS ALL THE MATERIALS WE RE AVAILABLE ON RECORD AND THE ASSESSING OFFICER HAS CONSIDERED GRA NTING EXEMPTION UNDER SECTION 10(23C) OF THE ACT BY HIMSE LF UNDER SECTION 143(3) OF THE ACT. 7. THE LEARNED CIT(A) AFTER GOING THROUGH THE CASE LAWS ON THE SUBJECT SUBMITTED BY THE ASSESSEE AND PERUSING THE DETAILS OF THE TRAINING PROGRAMMES CONDUCTED BY THE INSTITUTE HELD THAT THE CLAIM OF THE ASSESSEE THAT IT IS NOT CHARGEABLE IN TERMS OF ARTICLE 289 (1) OF THE CONSTITUTION OF INDIA IS INCORRECT A ND CONFIRMED THE ORDER OF THE ASSESSING OFFICER. BUT THE CIT(A) PROC EEDED TO 4 ITA NO. 1024/H/12 INDIAN INSTITUTE OF HEALTH & FAMILY WELFARE CONSIDER THE PLEA THAT INCOME OF THE ASSESSEES INS TITUTE IS EXEMPT IN TERMS OF SECTION 10 (23C) OF THE ACT. AT PARA 7.2 OF HIS ORDER, THE CIT(A) ELABORATED DISCUSSED VARIOUS ACTI VITIES OF THE ASSESSEE AND WAS SATISFIED THAT THE ASSESSEE IS A E DUCATIONAL INSTITUTION. THE CIT(A) CONCLUDED AT PARA.7.3 AS UN DER : IT IS SEEN FROM THE RECORDS THAT THE APPELLANT HAS DECLARED A SURPLUS OF RS.65,7,925/- AND CLAIMED EXEMPTION, W HICH WAS NOT ALLOWED BY THE A.O. WHILE FINALISING THE AS SESSMENT PROCEEDINGS. IT IS FURTHER SEEN FROM THE RECORDS TH AT OUT OF THE TOTAL RECEIPTS OF RS.1,49,00,000/- AN AMOUNT OF RS.1,16,00,000/- IS ATTRIBUTABLE TO GOVERNMENT DONA TIONS, WHICH ARE CORPUS DONATIONS AND AS SUCH DOES NOT FOR M PART OF RECEIPTS. THUS, THE REMAINING RECEIPTS BEING RS.33,00,000/-, WHICH ARE OTHERWISE BELOW ONE CRORE OF RUPEES, NOT SUBJECT TO TAX IN TERMS OF THE PROVISIO NS OF SECTION 10(23C)(IIIAD) OF THE IT ACT, 1961. THERE I S NO FINDING BY THE A.O. THAT THE INSTITUTE EXISTED NOT FOR TRAINING THE PERSONNEL WORKING IN THE HEALTH DEPARTMENT OF T HE STATE GOVERNMENT OR THAT IT IS EXISTING FOR MAKING PROFIT . IN THE ABSENCE OF ANY COGENT MATERIAL BROUGHT ON RECORD TO THE CONTRARY, THE CONTENTION OF THE APPELLANT THAT THE RECEIPTS HAVE BEEN APPLIED FOR THE OBJECTS OF THE INSTITUTE IS ACCEPTABLE. IN ADDITION, AS PER SECTION 10(23C)(III AD) OF THE INCOME TAX ACT, 1961, ANY UNIVERSITY OR OTHER EDUCA TIONAL INSTITUTION EXISTING SOLELY FOR EDUCATIONAL PURPOSE S AND NOT FOR PURPOSES OF PROFIT IF THE AGGREGATE ANNUAL RECE IPTS OF SUCH UNIVERSITY OR EDUCATIONAL INSTITUTION DO NOT E XCEED THE AMOUNT OF ANNUAL RECEIPTS AS MAY BE PRESCRIBED (ONE CRORE RUPEES UNDER RULE 2BC(1)}, SUCH INCOME SHALL NOT BE INCLUDED IN THE TOTAL INCOME OF THE INSTITUTION. TH US, SEEN IN ANY MANNER, THAT IS BEING AN EDUCATIONAL INSTITUTIO N, NOT EXISTING FOR MAKING PROFIT, OVERALL RECEIPTS BEING LESS THAN RUPEES ONE CRORE ETC., THE APPELLANT IS NOT A TAXAB LE ENTITY FOR THE YEAR UNDER CONSIDERATION. BUT HOWEVER, IT M AY BE NOTED HERE THAT IN CASES WHERE THE ANNUAL RECEIPTS ARE MORE THAN RS. 1 CRORE THE INSTITUTION WILL HAVE TO SEEK APPROVAL FOR EXEMPTION U/S. 10(23C)(VI) AS PER GUIDELINES APPEAR ING IN RULE 2CA OF I.T. RULES, 1962. IT IS ALSO IMPORTANT TO NOTE THAT AS PER THE A.R. THE INSTITUTE IS ALSO ELIGIBLE FOR EXEMPTION IN TERMS OF THE PROVISIONS OF SECTION 10(23C)(IIIAB), WHERE THE ACTIVITIES OF THE INSTITU TE ARE SUBSTANTIALLY FUNDED BY THE GOVERNMENT. THUS, TAKIN G INTO ACCOUNT OVERALL FACTS AND CIRCUMSTANCES OF THE CASE , THE 5 ITA NO. 1024/H/12 INDIAN INSTITUTE OF HEALTH & FAMILY WELFARE INSTITUTE IS ALSO ELIGIBLE FOR EXEMPTION UNDER SECT ION 10(23C) (IIIAB) OF THE IT ACT, 1961. 8. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. 9. GROUND NOS.1 & 6 ARE GENERAL IN NATURE, HENCE, N EED NO ADJUDICATION. 10. GROUND NOS. 2 & 4 READ AS UNDER: GROUND NO. 2: THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT THE ASSESSEE DID NOT TAKE THE GROU ND THAT IT IS ELIGIBLE FOR EXEMPTION U/S 10(23C)(IIIB)/10(23C) (IIIB) OF THE IT ACT, 1961. THE ASSESSEE MAINLY TOOK THE GROU ND THAT IT IS ELIGIBLE FOR EXEMPTION FROM TAX UNDER ARTICLE 289(1) OF THE CONSTITUTION OF INDIA. THE LEARNED CIT(A) AFTER DISMISSING THE SAID GROUND TAKEN BY THE ASSESSEE, H OWEVER, GRANTED RELIEF ON AN ALTOGETHER DIFFERENT ISSUE WHI CH WAS NOT A SUBJECT MATTER OF APPEAL, AS EVIDENT FROM THE GRO UNDS OF APPEAL REFERRED TO BY CIT(A) IN PARA 3 OF HIS ORDER . GROUND NO. 4: THE LEARNED CIT(A)S DECISION TO ALLOW EXEMPTION UNDER SECTION 10(23C)(IIIB) IS NOT REASON ABLE, WHEN THE ASSESSEE ITSELF HAS WITHDRAWN THE CLAIM OF EXEMPTION UNDER THAT SECTION BEING UNABLE TO JUSTIF Y ITS STATUS AS AN EDUCATIONAL INSTITUTION BEFORE THE ASS ESSING OFFICER, IN COURSE OF ASSESSMENT PROCEEDINGS. 11. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERUSED THE RECORD. WE FIND THAT THE ASSESSEE HAS R AISED ALTERNATE PLEA IN APPEAL BEFORE THE CIT(A) IN GROUN D NOS. 2 & 4. THE CIT(A) ADMITTED THE ALTERNATE PLEA UNDER SUB-SE CTION (5) OF SECTION 250 OF THE IT ACT, 1961 AND AFTER CALLING F OR THE REMAND REPORT DECIDED THE ISSUE. WE ARE OF THE OPINION THA T THE CIT(A) HAS RIGHTLY ENTERTAINED THE ALTERNATE PEAL TAKEN BE FORE HIM. OUR OPINION IS BASED ON THE RATIO OF DECISION IN ADDL. CIT VS. GHAI LIME STONE CO. 144 ITR 140 (MP) AND AL FAROOK EDUCA TIONAL CENTRE VS. ITO 30 (11) ITCL 65 (COCHIN TRIBUNAL). H ENCE, GROUND NOS. 2 & 4 OF REVENUE ARE DISMISSED. 6 ITA NO. 1024/H/12 INDIAN INSTITUTE OF HEALTH & FAMILY WELFARE 12. GROUND NOS. 3 & 5 READ AS UNDER: GROUND NO. 3: THE LEARNED CIT(A) IS NOT CORRECT TO HOLD THAT THE ASSESSEE IS ELIGIBLE FOR EXEMPTION EITHER U/S 10(23C) III AD OR AB. IN VIEW OF THE OBSERVATION MA DE BY THE HONBLE SUPREME COURT OF INDIA AS REGARDS THE MEANI NG OF THE WORD EDUCATION OCCURRING IN SECTION 2(15) OF TH E INCOME-TAX ACT, 1961 IN THE CASE OF SOLE TUSTEE LOK - SHIKSHANA TRUST VS. CIT 101 ITR 234 (SC). GROUND NO. 5: WITHOUT PREJUDICE TO THE ABOVE IT IS FURTHER STATED THAT THE LEARNED CIT(A) ERRED IN NOT APPRECI ATING THAT THE ASSESSEE INSTITUTION IS NOT EXISTING SOLELY FOR EDUCATIONAL PURPOSE INASMUCH AS PER THEIR LETTER DATED 23/09/20 05 FILED DURING THE ASSESSMENT PROCEEDING IN ADDITION TO PRO VIDING TRAINING AND TECHNICAL GUIDANCE IT IS ALSO RENDERIN G ADVISORY AND CONSTANCY SERVICE TO GOVERNMENT AND OTHER HEALT H RELATED ORGANISATIONS ON THE VARIOUS MATTERS. 13. AS REGARDS GROUND NO. 3, THE LEARNED COUNSEL SU BMITTED THAT THE AP STATE GOVERNMENT FORMED THE SOCIETY VIDE GO NO. MSNO. 520 DATED 11/11/98. THE MAIN OBJECT OF THE SOCIETY IS TO TRAIN STATE GOVERNMENT EMPLOYEES WORKING IN HEALTH DEPART MENTS WITHOUT ANY PROFIT MOTIVE. HE FURTHER SUBMITTED THA T THE INSTITUTION IS CONDUCTING THE TRAINING PROGRAMS IN MEDICAL HEALTH SCIENCES FOR THE EMPLOYEES WORKING IN THE DEPARTMEN TS OF HEALTH AND FAMILY WELFARE AND, THEREFORE, THE SAME PROVES THAT THE SOCIETY IS AN EDUCATIONAL INSTITUTION WITHOUT ANY P ROFIT MOTIVE AS IT SATISFIED THE CONDITIONS. THE LEARNED COUNSEL RE LIED UPON THE FOLLOWING CASES: 1. THE GUJARAT HIGH COURT IN CASE OF GUJARAT STATE COOPERATIVE UNION V/S CIT 195 ITR 279. 2. ITAT AHMEDABAD IN ENTERPRENEURSHIP DEVELOPMENT INSTITUTE OF INDIA VS. ITO, 49 ITD 183. 3. OXFORD UNIVERSITY PRESS 247 ITR 655 IN WHICH THE APEX COURT OBSERVED THAT THE BASIC REQUIREMENT OF THIS S ECTION IS THE EXISTENCE OF THE INSTITUTION FOR EDUCATIONAL PU RPOSE. 7 ITA NO. 1024/H/12 INDIAN INSTITUTE OF HEALTH & FAMILY WELFARE 4. CIT VS. ACADEMY OF GENERAL EDUCATION, 150 ITR 13 5 KARNATAKA HIGH COURT. 14. THE LEARNED AR POINTED OUT THAT WHILE MAKING TH E REMAND REPORT, THE ASSESSING OFFICER CITED THE CASE LAWS O F SOLE TRUSTEE, LOKA SHISHANA TRUST VS. CIT 1975 (101) ITR. THE FIN DING OF THE ABOVE CASE IS NOT APPLICABLE TO THIS SOCIETY. THE LEARNED AR FURTHER SUBMITTED THAT THE APEX COURT DELIVERED THE JUDGMENT IN FOLLOWING CASES IN RESPECT OF THE FACTUM OF EXEMPTI ON OF EDUCATIONAL INSTITUTIONS ESTABLISHED NOT FOR PROFIT : A. PARA 33 OF THE JUDGMENT IN AMERICAN HOTEL AND LO DGING ASSOCIATION EDUCATION INSTITUTE VS. CBDT [2007] 158 TAXMAN 146 (DELHI) B. ADITANARIS EDUCATIONAL INSTITUTION VS. ADDL. CIT [1997] 224 ITR 310 C. ADDL. CIT VS. SURAT ART CLOTH MANUFACTURING ASSO CIATES [1980] 121 ITR 1 SC. 15. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIE S, PERUSED THE MATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES AS WELL AS THE DECISIONS CITED. WE FIND THAT THE ISSUE IS COVERED BY THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF VASAVI ACADEMY OF EDUCATION HYDERABAD, IN ITA NO.1794/HYD/2008, DATED 4TH FEBRUARY, 2010, WHICH CLEARLY APPLES TO THE FACTS OF THE CASE, WHEREIN THE TRIBUN AL VIDE PARA 3 AND 4 OF ITS ORDER HELD AS FOLLOWS- 3. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE OPINION THAT THIS ISSUE HAS ALREADY BEEN DECIDED BY THE TRIBUNAL VIDE ITS ORDER DATED 29.1.2009 IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005-06 IN ITA NO.1120/HYD/2009 BY HOLDING AS FOLLOWS: WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE LEARNED AUTHORIZED 8 ITA NO. 1024/H/12 INDIAN INSTITUTE OF HEALTH & FAMILY WELFARE REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE HYDERABAD BENCH A OF THE TRIBUNAL DATED 15.4.2009 IN ASSESSEES OWN CASES IN ITA NO.1133/HYD/2006 FOR THE ASSESSMENT YEARS 2003- 04 AND ORDER DATED 17.4.2009 IN ITA NO.1206/HYD/2007 FOR THE ASSESSMENT YEAR 2004- 05. HOWEVER, WE FIND THAT THE CONSTITUTIONAL BENCH OF APEX COURT IN THE CASE OF T.M.A. PAI FOUNDATIONS AND OTHERS VS. STATE OF KARNATAKA & OTHERS (2002) 8 SCC 481 EXAMINED THE ISSUE OF COLLECTION OF CAPITATION FEES FOR THE ADMISSION O F STUDENTS OVER AND ABOVE FEES PRESCRIBED BY THE PRIVATE INSTITUTION AND HELD THAT THE INSTITUTION WHICH ARE COLLECTING CAPITATION FEES FOR ADMISSION OF STUDENTS OVER AND ABOVE THE FEES PRESCRIBED CANNOT BE CONSTRUED AS CHARITABLE/EDUCATION INSTITUTION. APEX COURT FURTHER OBSERVED THAT THE FEES COLLECTED OVER AND ABOVE THE PRESCRIBED FEE FOR ADMISSION OF THE STUDENT HAS TO BE CONSTRUCTED AS CAPITATION FEE . THE APEX COURT, FURTHER OBSERVED THAT THE CONCERNED UNIVERSITY AND REGULATED BODY HAS TO TAKE ACTION FOR WITHDRAWAL OF THE RECOGNITION IN CASE IT IS FOUND THAT THE EDUCATIONAL INSTITUTION RECEIVED ANY MONEY OVER AND ABOVE THE FEES PRESCRIBED FOR THE COURSES. SAME VIEW WAS TAKEN BY APEX COURT IN THE CASE OF ISLAMIC ACADEMY OF EDUCATION AND ANOTHER VS. STATE OF KARNATAKA & ANOTHER (2003) 6 SCC 697. IF THE DONATIONS WERE RECEIVED COMPULSORILY FOR ADMISSION OF STUDENTS, THE ASSESSEE IS NOT ENTITLED FOR EXEMPTION EITHER U/S 10(23C) OR U/S 11 OF THE IT ACT. SINCE THE LOWER AUTHORITIES WERE NOT EXAMINED THE COLLECTION OF CAPITATION FEES IN THIS CASE, IN OUR OPINION, TH E MATTER REQUIRES TO BE EXAMINED BY THE ASSESSING OFFICER WHETHER THE ASSESSEE IS COLLECTING THE CAPITATION FEES FROM STUDENTS OR NOT AND IT IS NECESSARY FOR BRINGING THE ACTUAL FACTS ON RECORD FOR DECIDING THE ISSUE EFFECTIVELY. SIMILAR VIEW W AS TAKEN BY US IN THE CASE OF M/S. JAMIA NIZAMIA IN ITA NO.763/HYD/2007 DATED 30.6.2008, IN THE CASE OF INTERNATIONAL EDUCATIONAL ACADEMY, HYDERABAD IN ITA NO.494/HYD/2007 AND 518/HYD/2008 FOR THE ASSESSMENT YEARS 2002- 2003 AND 2004-05 AND SRI SAI SUDHIR EDUCATIONAL SOCIETY, HYDERABAD IN ITA NO.999/HYD/20-06 FOR THE ASSESSMENT YEAR 2003- 9 ITA NO. 1024/H/12 INDIAN INSTITUTE OF HEALTH & FAMILY WELFARE 04. THEREFORE, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND REMIT BACK THE MATTER TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO ASSESSING OFFICER THAT HE SHALL RECONSIDER THE ENTI RE ISSUE IN THE LIGHT OF JUDGEMENT OF SUPREME COURT IN THE CASE OF M/S ISLAMIC ACADEMY OF EDUCATION & ANOTHER VS. STATE OF KARNATAKA AND ANOTHER (SUPRA), AND IN THE CASED OF T.M.A. PAI FOUNDATION AND OTHERS VS. STATE OF KARNATAKA AND OTHERS (SUPRA), AND FIND OUT WHETHER THE ASSESSEE HAS RECEIVED ANY MONEY OVER AND ABOVE THE FEES PRESCRIBED AND THEREAFTER DECIDE THE ISSUE AFRESH I N ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE . WE MAKE IT CLEAR THAT THE ASSESSEE IS NOT ENTITLED FOR EXEMPTION EITHER U/S 11 OR U/S 10(23C) IN CASE IT COLLECTED ANY MONEY BY WHATEVER NAME IT IS CALLED I.E., DONATION, BUILDING FUND, AUDITORIUM FUND ETC. ETC., OVER AND ABOVE THE PRESCRIBED FEE FOR ADMISSION OF STUDENTS. 4. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY T HE TRIBUNAL IN THE ABOVE ORDER, WE SET ASIDE THE ISSUE IN DISPUTE TO THE FILE OF ASSESSING OFFICER ON SIMI LAR DIRECTIONS FOR FRESH CONSIDERATION. 16. FOLLOWING THE CONSISTENT VIEW TAKEN BY THE TRIB UNAL IN SIMILAR MATTERS AND FOLLOWING THE RATIO LAID DOWN I N THE CASE OF VASAVI ACADEMY (SUPRA), WE SET ASIDE THE ISSUE TO T HE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION IN ACCORDANC E WITH LAW, AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 17. IN THE RESULT, APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MAY, 2013. SD/- SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER HYDERABAD, DATED: 31 ST MAY, 2013 10 ITA NO. 1024/H/12 INDIAN INSTITUTE OF HEALTH & FAMILY WELFARE VB/KV COPY TO 1. ASST. DIRECTOR OF INCOME TAX (EXEMPTIONS)-II, RO OM NO.307A, 3 RD FLOOR, AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD 2. INDIAN INSTITUTE OF HEALTH AND FAMILY WELFARE, 8 -3- 167/HFW, VENGALRAO NAGAR, HYDERABAD 500 034. PAN AAAAT0326A 3. CIT(A)-, GUNTUR 4. DIRECTOR OF INCOME TAX (EXEMPTIONS), HYDERABAD 5. DR A BENCH, ITAT, HYDERABAD