M/S BHAGIRATH SHIKSHAN SANSTHAN, JAIPUR V. INCOME TAX OFFICER (E), WARD-1, JAIPUR

ITA 112/JPR/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8797 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 31-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA ADD CIT A
• Keywords: Charitable institution; Maximum Marginal Rate; TDS
• Section: 10(23C); 12; 11

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 112/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 M/S BHAGIRATH SHIKSHAN SANSTHAN 31-B, LAXMI NAGAR-II, NIWARU NAGAR, JHOTWARA, JAIPUR. CUKE VS. THE ITO(E), WARD-1, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAAAB 6922 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A.S NEHRA (ADD. CIT) A LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 29/07/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 30/07/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT-3, JAIPUR DATED 19.12.2018 FOR THE ASSESSMENT Y EAR 2013-14 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND S OF APPEAL:- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE ACTION OF AO IN DENYING EXEMPTION U/S 10(23C)(IIIAD ) OF IT ACT, 1961 BY MAKING/GIVING VARIOUS INCORRECT OBSERVATION /FINDINGS AND THEREBY ASSESSING THE SURPLUS OF RS. 2,44,689/- UND ER THE HEAD INCOME FROM OTHER SOURCES. ITA NO. 112/JP/2019 M/S BHAGIRATH SHIKSHAN SANSTHAN VS. ITO(E) 2 2. THE LD. CIT(A) HAS ERRED ON FACTS & IN LAW IN C ONFIRMING LUMP SUM DISALLOWANCE OF RS. 3,61,212/- BEING 30% OF TOT AL EXPENDITURE OF RS. 12,04,039/- CLAIMED BY THE ASSES SEE. 3. THE LD. CIT(A) HAS ERRED ON FACTS & IN LAW IN NO T CONSIDERING THAT EVEN IF THE INCOME OF ASSESSEE IS HELD LIABLE FOR TAXATION, THE TAX IS TO BE LEVIED U/S 164(2) AS AOP GENERAL AND N OT AT MMR AS DIRECTED BY THE AO. 2. REGARDING GROUND NO. 1, THE LD AR SUBMITTED THA T BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, 1958. IT IS ENGAGED IN IMPARTING EDUCATION AMONG THE DIFFERENT SECTIONS OF THE SOCIETY AND CURRENTLY RUN NING THREE EDUCATIONAL INSTITUTIONS, I.E. B.S.S. COLLEGE OF TECHNICAL EDUC ATION, B.S.S. INSTITUTE OF MEDICAL SCIENCE AND B.S.S. COLLEGE OF MANAGEMENT & TECHNOLOGY. IT WAS SUBMITTED THAT THE ASSESSEE FILED ITS RETURN OF INC OME ON 30.09.2015 DECLARING NIL INCOME AFTER CLAIMING EXEMPTION U/S 1 0(23C)(IIIAD) OF THE IT ACT, 1961. THE AO DENIED THE EXEMPTION U/S 10(23 C)(IIIAD) OF IT ACT, 1961 AND THEREBY ASSESSED THE SURPLUS OF RS.2,44,68 9/- UNDER THE HEAD INCOME FROM OTHER SOURCES BY GIVING THE FOLLOWING FINDINGS:- (I) THE ASSESSEE IS RUNNING A LEARNING CENTRE ON BEHA LF OF VARIOUS UNIVERSITIES/ INSTITUTIONS AND COLLECTS FEES FROM S TUDENTS AND GETS THEM ENROLLED WITH THE INSTITUTION. THE ASSESS EE HAS BEEN ENROLLED AS LEARNING CENTRE OF THESE INSTITUTIONS U NDER THE DISTANCE EDUCATION PROGRAMME. THE DISTANCE LEARN ING PROGRAMME OF ANY UNIVERSITY CANNOT BE REGARDED EIT HER AS UNIVERSITY OR EDUCATIONAL INSTITUTION OR OTHER EDUC ATIONAL INSTITUTION WITHIN THE AMBIT OF THE PROVISIONS OF S ECTION 10(23C) AS WELL AS THE PROVISIONS OF SECTION 2(15) OF THE I T ACT, 1961. ITA NO. 112/JP/2019 M/S BHAGIRATH SHIKSHAN SANSTHAN VS. ITO(E) 3 (II) THE NATURE OF ACTIVITIES CARRIED OUT BY THE ASSES SEE WITH ITS PRINCIPAL AS FRANCHISEE ALSO INDICATE THE SAME TO B E A PART AND PARCEL OF THE BUSINESS AS DEFINED U/S 2(15) OF THE IT ACT, 1961. THEREFORE, THE SAME HAS BEEN TREATED AS TECHNICAL OR PROFESSIONAL SERVICE RENDERED BY THE ASSESSEE TO P RINCIPAL AND THUS TDS HAS ALSO BEEN DEDUCTED @ 10% U/S 194H TREA TING THE SAME AS COMMISSION OR BROKERAGE. (III) COMPLETE BOOKS OF ACCOUNTS HAVE NOT BEEN PRODUCED A ND EXPENSES ARE MAINLY INCURRED IN CASH. (IV) THE ASSESSEE HAS PAID RENT OF RS.1,50,000/- FOR A S MALL PREMISES TO SH. R.K. SHARMA WHO IS HAVING SUBSTANTI AL INTEREST. FURTHER, HE IS IN RECEIPT OF SALARY OF RS.1.20 LACS P.A. AS DIRECTOR OF SANSTHAN BUT HIS QUALIFICATION IS MERELY D-PHARM A. FURTHER A SUM OF RS.72,000/- HAS BEEN PAID TO SH. GANESH NARA YAN SHARMA WHO IS ALSO A RELATED PERSON. (V) THE OBJECTS OF ASSESSEE SANSTHAN ALSO INCLUDED TH E ACTIVITIES RELATED TO OTHER SOCIAL CAUSES. THUS, IT CANNOT BE SAID THAT INSTITUTION IS SOLELY FOR THE EDUCATION PURPOSE. 3. IT WAS SUBMITTED BY THE LD AR THAT ON APPEAL FIL ED BY THE ASSESSEE, THE LD. CIT(A) UPHELD THE FINDINGS OF AO BY MERELY REPRODUCING THE OBSERVATION OF AO AND THE SUBMISSIO N OF ASSESSEE AND MAKING IT AS PART OF HIS ORDER AND HOLDING THAT THE A/R OF THE APPELLANT IN HIS SUBMISSION DID NOT FILE ANY ARGUMENT AGAINST THE OBSERVATION MADE BY THE AO IN THE ASSESSMENT ORDER. AGAINST THE SAID ORDER, THE ASSESSEE HAS FILED THE PRESENT APPEAL. ITA NO. 112/JP/2019 M/S BHAGIRATH SHIKSHAN SANSTHAN VS. ITO(E) 4 4. IN THE AFORESAID FACTUAL BACKGROUND, THE LD. AR SUBMITTED THAT THE MAIN OBSERVATION OF LOWER AUTHORITIES IS THAT DIST ANCE LEARNING PROGRAMME OF ANY UNIVERSITY CANNOT BE REGARDED EIT HER AS UNIVERSITY OR EDUCATIONAL INSTITUTION OR OTHER EDUCATIONAL INSTIT UTION WITHIN THE AMBIT OF THE PROVISIONS OF SECTION 10(23C). IN MAKING SUC H OBSERVATION, IT IS IGNORED THAT ASSESSEE IS AFFILIATED AND ENROLLED WI TH PUNJAB TECHNICAL UNIVERSITY AND JAIPUR NATIONAL UNIVERSITY FOR CONDU CTING REGULAR COURSE ON DIFFERENT EDUCATION PROGRAMMES WHICH INCLUDES PR OPER CLASSROOM EDUCATION AND PRACTICAL TRAINING, DISTRIBUTION OF C OURSE BOOK AND CONDUCTING EXAMINATION. ON COMPLETION OF RESPECTIVE CLASSROOM TEACHING AND SUCCESSFUL PASSING THE EXAMS, CERTIFIC ATE IS ISSUED BY THE RESPECTIVE UNIVERSITIES AND EDUCATIONAL INSTITUTION S TO THE STUDENTS. THUS, THE SOCIETY IMPARTS SYSTEMATIC INSTRUCTION CL ASSROOM TEACHING AND TRAINING TO THE STUDENTS THROUGH DISTANCE LEARNING PROGRAMME OF THESE UNIVERSITIES WHICH PER SE IS EDUCATION. IN SUPPOR T, RELIANCE WAS PLACED ON THE DECISION OF THE ITAT CHENNAI BENCH IN CASE O F SOORYA EDUCATIONAL TRUST VS. ITO 33 CCH 347 WHEREIN THE IM PARTING OF DISTANCE EDUCATION PROGRAMME FOR THE UNIVERSITY WAS HELD AS IMPARTING EDUCATION. 5. IT WAS FURTHER SUBMITTED THAT SO FAR AS OTHER O BSERVATIONS LIKE DEDUCTION OF TDS ON AMOUNT PAID BY PUNJAB TECHNICAL UNIVERSITY, PAYMENT OF RENT/ SALARY TO THE SPECIFIED PERSON AND EXPENDITURE INCURRED IN CASH IS CONCERNED, SAME ARE NOT RELEVAN T FOR DENYING EXEMPTION U/S 10(23C)(IIIAD) PARTICULARLY WHEN NO M ATERIAL IS BROUGHT ON RECORD BY THE AO AS TO HOW THE RENT/ SALARY PAID TO SPECIFIED PERSON IS EXCESSIVE OR UNREASONABLE OR THE CASH EXPENDITURE I NCURRED HAS RESULTED ITA NO. 112/JP/2019 M/S BHAGIRATH SHIKSHAN SANSTHAN VS. ITO(E) 5 INTO ANY BENEFIT TO THE SPECIFIED PERSONS. SIMILARL Y DEDUCTION OF TDS BY PUNJAB TECHNICAL UNIVERSITY ON THE FRANCHISEE FEES PAID BY THEM WHICH IS PAYMENT OF PART OF THE AMOUNT RECEIVED FROM THE STUDENTS COULD NOT MAKE THE ACTIVITY OF THE ASSESSEE AS BUSINESS AS OB SERVED IN THE DECISION REFERRED SUPRA. HENCE, FOR THESE REASON TH E EXEMPTION U/S 10(23C) CANNOT BE DENIED. 6. IT WAS FURTHER SUBMITTED THAT ANOTHER OBJECTION OF THE LOWER AUTHORITIES THAT THE OBJECTS OF THE SOCIETY INCLUDE S OTHER OBJECTS ALSO IS ALSO NOT RELEVANT/ CORRECT IN AS MUCH AS THE ASSESS EE IS ENGAGED SOLELY FOR IMPARTING THE EDUCATION AND EVEN AS PER THE OBJ ECT CLAUSE, ALL OBJECTS ARE RELATED/ INCIDENTAL TO EDUCATION. IN TH E FOLLOWING CASES, IT IS HELD THAT EVEN WHEN A SOCIETY HAS NUMBER OF OBJECT S BUT THE ONLY OBJECT PURSUED BY IT IS EDUCATION, THE BENEFIT OF S ECTION 10(23C)(IIIAD) CANNOT BE DENIED. RELIANCE WAS PLACED ON THE FOLLOW ING DECISIONS:- GEETANJALI EDUCATION SOCIETY VS. ADIT (2014) 101 DT R 337 (KAR) SARASWATI EDUCATIONAL & WELFARE SOCIETY (REGD.) (20 15) 152 ITD 527 (CHD) 7. PER CONTRA, THE LD. DR RELIED ON THE FINDING OF THE LOWER AUTHORITIES AND OUR REFERENCE WAS DRAWN TO THE FIND INGS OF THE LD. CIT(A) WHICH READ AS UNDER:- THE A/R OF THE APPELLANT IN HIS SUBMISSION DID NOT FILE ANY ARGUMENT AGAINST THE OBSERVATION MADE BY THE ASSESS ING OFFICER IN THE ASSESSMENT ORDER. THE A/R OF THE APPELLANT R ELIED UPON ITA NO. 112/JP/2019 M/S BHAGIRATH SHIKSHAN SANSTHAN VS. ITO(E) 6 VARIOUS CASE LAWS WHICH ARE NOT APPLICABLE IN THIS CASE BECAUSE THE APPELLANT RUNNING THE DISTANCE EDUCATION PROGRA MME WHICH CANNOT BE TREATED EITHER AN UNIVERSITY OR EDUCATION INSTITUTE WITH THE AMBIT OF PROVISION OF SECTION 10(23C) AS WELL A S THE PROVISION OF SECTION 2(15) OF THE I.T. ACT. THE SANSTHAN IS RUNNING A FRANCHISE. THE OBJECT OF APPELLANT SANSTHAN ALSO INCLUDED THE ACTIVITIES RELATED TO OT HER SOCIAL CAUSES. THEREFORE CONSIDERING THE ABOVE OBSERVATION I AM THE VIEW THAT APPELLANT IS NOT ELIGIBLE EITHER FOR THE EXEMPTION U/S 10(23C)(IIIAD) OR FOR THE EXEMPTION U/S 11 OF THE I NCOME TAX ACT. THIS GROUND IS NOT ALLOWED. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD CIT(A) HAS RETURNED A F INDING THAT THE A/R OF THE APPELLANT IN HIS SUBMISSION DID NOT FILE ANY AR GUMENT AGAINST THE OBSERVATION MADE BY THE ASSESSING OFFICER IN THE AS SESSMENT ORDER. HOWEVER, WE FIND THAT THE ASSESSEE THROUGH ITS A/R HAS FILED WRITTEN SUBMISSIONS WHICH ARE REPRODUCED AT PARA 4.2 OF THE ORDER SO PASSED BY THE LD CIT(A). THEREFORE, THE FINDINGS RECORDED BY THE LD CIT(A) ARE NOT BORNE OUT OF THE RECORDS WHICH DESERVE TO B E SET-ASIDE. FURTHER, DURING THE COURSE OF HEARING, THE LD AR HA S CONTENDED THAT THE LD CIT(A) HAS MERELY REPRODUCED THE OBSERVATION S OF THE AO AND NOT GIVEN ANY INDEPENDENT FINDING AS TO WHY THE SUB MISSIONS SO FILED BY THE ASSESSEE WERE NOT FOUND ACCEPTABLE. GIVEN T HAT THE WRITTEN SUBMISSIONS AND EXPLANATION SO FURNISHED BY THE ASS ESSEE HAS NOT BEEN CONSIDERED AND EXAMINED BY THE LD CIT(A) AND I N ABSENCE OF ANY INDEPENDENT FINDING RECORDED BY THE LD CIT(A), WE ARE ITA NO. 112/JP/2019 M/S BHAGIRATH SHIKSHAN SANSTHAN VS. ITO(E) 7 CONSTRAINED TO REMAND THE MATTER BACK TO THE FILE O F THE LD CIT(A) TO PASS A SPEAKING ORDER TAKING INTO CONSIDERATION THE EXPLANATION SO FURNISHED BY THE ASSESSEE AND AFTER PROVIDING REASO NABLE OPPORTUNITY TO THE ASSESSEE. IN THE RESULT, THE GROUND OF APPEA L IS ALLOWED FOR STATISTICAL PURPOSES. 9. IN GROUND NO. 2, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD CIT(A) IN CONFIRMING THE LUMP SUM DISALLOWANCE OF R S. 3,61,212/- BEING 30% OF TOTAL EXPENDITURE OF RS. 12,04,039/- C LAIMED BY THE ASSESSEE. 10. IT WAS SUBMITTED BY THE LD AR THAT THE AO HAS D ISALLOWED 40% OF THE TOTAL EXPENDITURE OF RS.12,04,039/- I.E. RS.4,8 1,616/- ON THE GROUND THAT EXPENSES ARE INCURRED MAINLY IN CASH AND NOT S UPPORTED WITH DOCUMENTARY EVIDENCES. ON APPEAL, THE LD. CIT(A) RE STRICTED THE DISALLOWANCE TO 30% OF THE EXPENSES BY ASSUMING THA T 60% OF THE DISALLOWANCE MADE BY THE AO IS EXCESSIVE AND UNREAS ONABLE. THE DETAILS OF THE EXPENSES ARE AT PAGE 24 & 25 OF THE LD. CIT(A) ORDER. OUT OF THE TOTAL EXPENSES OF RS.12,04,039/-, EXPENDITUR E INCURRED IN CASH IS RS.9,46,535/- WHICH INCLUDES PAYMENT OF SALARY OF R S.5,64,000/- AND RENT OF RS.1,18,500/-. ALL OTHER EXPENDITURES INCUR RED IN CASH ARE OF SMALL AMOUNT. THE NATURE OF THESE EXPENDITURE IS SU CH THAT MAKING CASH PAYMENT FOR THE SAME IS INEVITABLE. THESE EXPENSES ARE REASONABLE AND SUPPORTED BY BILLS & VOUCHERS AS EXPLAINED AT PG 25 -26 OF THE CIT(A) ORDER. THEREFORE, THE DISALLOWANCE CONFIRMED BY LD. CIT(A) BE DIRECTED TO BE DELETED. ITA NO. 112/JP/2019 M/S BHAGIRATH SHIKSHAN SANSTHAN VS. ITO(E) 8 11. PER CONTRA, THE LD. DR RELIED ON THE FINDING OF THE LOWER AUTHORITIES AND OUR REFERENCE WAS DRAWN TO THE FIND INGS OF THE LD. CIT(A) WHICH ARE CONTAINED AT PARA 7.3 WHICH READS AS UNDER:- 7.3 I HAVE CAREFULLY CONSIDERED THE MATERIAL BEFOR E ME. I FIND THAT THE ASSESSING OFFICER ALLOWED ONLY 40% OF THE EXPENSES OF RS.12,04,039/- MAKING OBSERVATION THAT THE EXPEN SES ARE NOT FULLY VOUCHED. THE A/R OF THE APPELLANT FAILED TO FILE ANY EVIDENCE OR ARGUMENT AGAINST THE OBSERVATION MADE B Y THE ASSESSING OFFICER. THEREFORE I AM THE VIEW THAT THE EXPENSES ARE NOT FULLY VOUCHED. THE ASSESSING OFFICER DISALL OWED 60% OF THE EXPENSES WITHOUT ANY REASON AND ANY BASIS. I TR EAT THE DISALLOWANCE MADE BY THE ASSESSING OFFICER OF 60% A S EXCESSIVE AND UNREASONABLE. THEREFORE CONSIDERING T HE FACTS OF THE CASE AND NATURE OF THE EXPENSES I TREAT 30% OF EXPENSES AS UNVOUCHED EXPENSES. ACCORDINGLY I CONFI RM THE ADDITION OF RS.3,61,212/- AND BALANCE AMOUNT OF RS.3,61,211/- IS DELETED. THIS GROUND IS ALLOWED. 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD CIT(A) HAS RETURNED A F INDING THAT THE A/R OF THE APPELLANT FAILED TO FILE ANY EVIDENCE OR ARG UMENT AGAINST THE OBSERVATION MADE BY THE ASSESSING OFFICER. HOWEVER, WE FIND THAT THE ASSESSEE THROUGH ITS A/R HAS FILED WRITTEN SUBMISS IONS WHICH ARE REPRODUCED AT PARA 7.2 OF THE ORDER SO PASSED BY TH E LD CIT(A). THEREFORE, THE FINDINGS RECORDED BY THE LD CIT(A) A RE NOT BORNE OUT OF THE RECORDS WHICH DESERVE TO BE SET-ASIDE. GIVE N THAT THE WRITTEN SUBMISSIONS AND EXPLANATION SO FURNISHED BY THE ASS ESSEE HAS NOT BEEN CONSIDERED AND EXAMINED BY THE LD CIT(A), WE A RE CONSTRAINED TO REMAND THE MATTER BACK TO THE FILE OF THE LD CIT (A) TO PASS A SPEAKING ORDER TAKING INTO CONSIDERATION THE EXPLAN ATION SO FURNISHED ITA NO. 112/JP/2019 M/S BHAGIRATH SHIKSHAN SANSTHAN VS. ITO(E) 9 BY THE ASSESSEE AND AFTER PROVIDING REASONABLE OPPO RTUNITY TO THE ASSESSEE. IN THE RESULT, THE GROUND OF APPEAL IS A LLOWED FOR STATISTICAL PURPOSES. 13. IN GROUND NO. 3, THE ASSESSEE HAS CHALLENGED TH E ACTION OF THE AO IN NOT CONSIDERING THAT EVEN IF THE INCOME OF AS SESSEE IS HELD LIABLE FOR TAXATION, THE TAX IS TO BE LEVIED U/S 164(2) AS AOP GENERAL AND NOT AT MMR AS DIRECTED BY THE AO. 14. IT WAS SUBMITTED BY THE LD AR THAT THE LOWER AU THORITIES HAVE ASSESSED THE INCOME BY APPLYING MMR. IN DOING SO TH E PROVISION OF SECTION 164(2) IS IGNORED WHICH PROVIDES THAT THE R ELEVANT INCOME WHICH IS DERIVED FROM PROPERTY HELD UNDER TRUST ONLY FOR CHARITABLE OR RELIGIOUS PERSON, TAX SHALL BE CHARGED ON SO MUCH OF THE RELE VANT INCOME AS IS NOT EXEMPT U/S 11 OR 12 AS IF THE RELEVANT INCOME N OT SO EXEMPT IS THE INCOME OF AOP. HOWEVER, WHERE THE RELEVANT INCOME I S NOT EXEMPT BY VIRTUE OF SECTION 13(1)(C) OR 13(1)(D), TAX SHALL B E CHARGED ON THAT PART OF THE INCOME AT MMR. IN THE PRESENT CASE, AO HAS N OT SPECIFIED THAT ANY PART OF THE INCOME OF THE SOCIETY IS NOT EXEMPT BY VIRTUE OF SECTION 13(1)(C) OR 13(1)(D). THEREFORE, EVEN IF THE TAX IS TO BE LEVIED ON THE ASSESSEE, THE SAME SHOULD BE AT THE RATE APPLICABLE TO AOP GENERAL AND NOT AT MMR. FOR THIS RELIANCE WAS PLACED ON THE FOL LOWING CASES:- DIT VS. WORKING WOMENS FORUM (2015) 235 TAXMAN 516 (SC) CIT VS. FR. MULLERS CHARITABLE INSTITUTIONS (2014) 227 TAXMAN 369 (SC) ITA NO. 112/JP/2019 M/S BHAGIRATH SHIKSHAN SANSTHAN VS. ITO(E) 10 IN VIEW OF ABOVE, EVEN IF THE INCOME OF ASSESSEE IS HELD LIABLE FOR TAXATION, THE TAX IS TO BE LEVIED U/S 164(2) AS AOP GENERAL AND NOT AT MMR. 15. PER CONTRA, THE LD. DR RELIED ON THE FINDINGS O F THE LOWER AUTHORITIES. 16. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THIS GROUND HAS N OT BEEN TAKEN BEFORE THE LD CIT(A) AND HAS BEEN TAKEN FOR THE FIRST TIME BEFORE US. BEING A LEGAL GROUND, THE SAME IS ADMITTED BY WAY OF ADDITI ONAL GROUND OF APPEAL. AS WE HAVE REMANDED THE OTHER MATTERS TO T HE FILE OF THE LD CIT(A), THE SAME IS ALSO REMANDED BACK TO THE FILE OF THE LD CIT(A) TO EXAMINE THE SAME AND DECIDE AS PER LAW AFTER PROVID ING A REASONABLE OPPORTUNITY TO THE ASSESSEE. IN THE RESULT, THE GR OUND OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30/07/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30/07/2021. ITA NO. 112/JP/2019 M/S BHAGIRATH SHIKSHAN SANSTHAN VS. ITO(E) 11 *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S BHAGIRATH SHIKSHAN SANSTHAN, JAI PUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO(E), WARD-1, JAIPUR-2. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 112/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR