ADIT, Hyderabad V. Hyderabad Archdiocese Educational Society, Secunderabad

ITA 1034/HYD/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 47736 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 25-07-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 05-10-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NIVEDITA BISWAS
• Assessee Lawyers: CHENNUBOTLU; BALAJI NAGARAJ

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND SHRI AKBER BASHA, ACCOUNTANT MEMBER ITA NO.1034/HYD/2009 (ASSESSMENT YEAR 2006-07) ASST. DIRECTOR OF INCOME TAX(EXEMPTION)-III, HYDERABAD V/S. THE ARCHDIOCESE OF HYDERABAD SOCIETY, HYDERABAD. (PAN AAATT 4037 G) (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. NIVEDITA BISWAS RESPONDENT BY : S/SHRI BALAJI NAGARAJ & CHENNUB OTLU O R D E R PER AKBER BASHA, ACCOUNTANT MEMBER: THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEA R 2006-07 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME-TAX(APPEALS)-IV. HYDERABAD DATED 15.6.2009, FOR THE ASSESSMENT YEAR 2006-07. 2. GROUNDS OF THE REVENUE IN THIS APPEAL READ AS U NDER- 1. THE LEARNED CIT(A)S ORDER IS ERRONEOUS IN LAW AND IN FACTS. 2. THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT OB TAINING APPROVAL OF THE PRESCRIBED AUTHORITY IS MANDATORY AS PER THE PLAIN MEANING OF THE PROVISIONS. 3. THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT SE C.10(23C) AS SUCH IS NOT REPLACEMENT OF SEC.10(22) AND (22A) AS STATE D IN THE APPELLATE ORDER BUT ONLY SUB-CLAUSE (IIIAD) AND (IIIAE) ARE R EPLACEMENT OF THE ERSTWHILE SEC.10(22) AND SEC.(22A) RESPECTIVELY. 4. THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT SU B-CLAUSES(VI) AND (VIA) ARE ENTIRELY NEW PROVISIONS MEANT TO PROVIDE THE MUCH NEEDED MONITORING MECHANISM THAT WAS LACKING IN THE EARLIE R PROVISIONS (AS STATED IN CIRCULAR NO.772) ITA NO.1034/HYD/09 THE ARCHDIOCESE OF HYDERABAD SOCIETY, HYDERABAD. 2 5. THE LEARNED CIT(A) HAS WRONGLY HELD THAT PROVISIONS OF SEC.10(23C)(VIA) AND SEC.11 ARE AVAILABLE TO THE AS SESSEE ALTERNATIVELY. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HA VE PERUSED THE ORDERS OF THE ASSTT. DIRECTOR OF INCOME TAX(EXEMPTI ON) AND THE CIT(A). WE FIND THAT THE ISSUES INVOLVED IN THE ABOVE GROUNDS OF APPEAL, HAVE BEEN SQUARELY COVERED BY THE DECISION OF THIS TRIBUNAL D ATED 4.3.2011 IN ITA NO.1033/HYD/2009 FOR ASSESSMENT YEAR 2006-07, IN TH E CASE OF HYDERABAD ARCHDIOCESE EDUCATIONAL SOCIETY, HYDERABAD. CONSID ERING IDENTICAL GROUNDS RAISED BY THE REVENUE IN THAT APPEAL, THIS TRIBUNAL , FOLLOWING CONSISTENT VIEW TAKEN BY THE TRIBUNAL IN SIMILAR MATTERS, SET ASIDE THE MATTER TO THE FILE OF THE LOWER AUTHORITIES FOR FRESH CONSIDERATION. FOR THE DETAILED REASONS DISCUSSED IN THAT ORDER DATED 4.3.2011, WE SET ASI DE THE ORDERS OF THE LOWER AUTHORITIES IN THIS CASE ALSO AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO RECONSIDER TH E ISSUES INVOLVED IN THE GROUNDS OF APPEAL OF THE REVENUE IN THE LIGHT OF JU DGMENT OF SUPREME COURT IN THE CASE OF M/S ISLAMIC ACADEMY OF EDUCATION & A NOTHER V/S. STATE OF KARNATAKA AND ANOTHER (2003) 6 SCC 697, AND IN THE CASE OF T.M.A. PAI FOUNDATION AND OTHERS VS. STATE OF KARNATAKA AND OT HERS (2008) 8 SCC 481 AND FIND OUT WHETHER THE ASSESSEE HAS RECEIVED ANY MONEY OVER AND ABOVE THE FEES PRESCRIBED, AND TO DECIDE THE ISSUE AFRESH AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE MAKE IT CLEAR THAT THE ASSESSEE SHALL BE ENTITLED TO EXEMPTION UNDER THE ACT, IN CA SE IT HAS NOT COLLECTED ANY MONEY BY WHATEVER NAME IT IS CALLED, I.E. DONATION, BUILDING FUND, ETC., OVER AND ABOVE THE PRESCRIBED FEE FOR ADMISSION OF STUDE NTS. 4. BEFORE PARTING WE MAY OBSERVE THAT THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS ARGUED AT LENGTH ON THE ASPECT O F THE VIOLATION OF THE PROVISIONS OF S.13(1)(C) OF THE ACT, BY THE ASSESS EE. WE, HOWEVER, FIND THAT THERE IS NO GROUND OF APPEAL TAKEN BY THE REVE NUE ON THAT ASPECT, AND ITA NO.1034/HYD/09 THE ARCHDIOCESE OF HYDERABAD SOCIETY, HYDERABAD. 3 HENCE, WE ARE NOT REQUIRED TO ADJUDICATE UPON THAT ASPECT OF THE MATTER IN THIS APPEAL. 5. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 28.7.2011 SD/- SD/- ( G.C. G UPTA) (AKBER BASHA) V ICE PRESIDENT A CCOUNTANT MEMBER DATED 28TH JULY, 2011 COPY FORWARDED TO: 1. THE ARCHDIOCESE OF HYDERABAD SOCIETY, ARCH BISH OPS HOUSE, 9-1-17/1, S.P.ROAD, SECUNDERABAD. 2. ASST. DIRECTOR OF INCOME TAX(EXEMPTION) III, HYDERA BAD 3. CIT(A)-IV, HYDERABAD. 4. DIRECTOR OF INCOME TAX(EXEMPTION) , HYDERABAD 5. THE D.R., ITAT, HYDERABAD. B.V.S