DCIT, Guntur V. Bapatla Education Society, Bapatla

ITA 112/VIZ/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7023 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 04-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBRATA SARKAR
• Assessee Lawyers: C P RAMASWAMY
• Section: 12A; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH: VISAKHAPATNAM BEFORE: SRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SRI B.R. BASKARAN, ACCOUNTANT MEMBER I.T.A. NO.112/VIZAG/2009 ASSESSMENT YEAR : 2005-06 DCIT, CIRCLE-1(1) GUNTUR VS. BAPTLA EDUCATIONAL SOCIETY, BAPATLA (APPELLANT) (RESPONDENT) PAN NO. AAATB 6795 M APPELLANT BY : SHRI SUBRATA SARKAR, CIT ( DR ) RESPONDENT BY : SHRI C.P. RAMA SWAMY, ADVOCATE O R D E R PER B..R. BASKARAN, ACCOUNTANT MEMBER : THE APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 26.9.2008 PASSED BY THE LD CIT (A) GUNTUR AND IT RELATES TO T HE ASSESSMENT YEAR 2005-06. 2. ALL THE GROUNDS URGED UPON BY THE REVENUE GIVE R ISE TO A SINGLE ISSUE, VIZ., WHETHER THE LD CIT (A) IS JUSTIFIED IN HOLDING THAT THE ASSESSEE CAN CLAIM EXEMPTION EITHER U/S 10(23C) OR SEC.11 OF THE ACT. 3. THE FACTS RELATING TO THE ISSUE ARE STATED IN BR IEF. THE ASSESSEE IS A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT AND IS RUNNING AN EDUCATIONAL INSTITUTIONS. THE SOCIETY WAS REGISTERED AS A CHARI TABLE INSTITUTION U/S 12A OF THE INCOME-TAX ACT. DURING THE YEAR UNDER CONSIDERATION , THE ANNUAL RECEIPTS OF THE ASSESSEE SOCIETY EXCEEDED RS.1.00 CRORE. AS PER TH E PROVISIONS OF SECTION 10(23C) OF THE INCOME TAX ACT, IF THE GROSS RECEIPT S EXCEED RS.1.00 CRORE AND IF THE ASSESSEE SOCIETY WANTS TO AVAIL EXEMPTION U/S 1 0(23C)(VI), IT IS REQUIRED TO OBTAIN APPROVAL IN THAT REGARD FROM THE PRESCRIBED AUTHORITY. THE ASSESSEE SOCIETY DID NOT OBTAIN REQUIRED APPROVAL AS STATED ABOVE AND HENCE IT PREFERRED TO 2 AVAIL EXEMPTION U/S 11 OF THE ACT. HOWEVER, THE AO WAS OF THE VIEW THAT THE ASSESSEE COULD NOT AVAIL EXEMPTION U/S 11, SINCE IT S ANNUAL RECEIPTS HAS EXCEEDED FROM THE PRESCRIBED LIMIT OF RS.1.00 CRORE AND THE ASSESSEE COULD ONLY AVAIL EXEMPTION U/S 10(23C(VI) OF THE ACT. SINCE T HE ASSESSEE SOCIETY DID NOT HAVE REQUIRED APPROVAL OF THE PRESCRIBED AUTHORITY, THE AO BROUGHT TO TAX THE TOTAL INCOME BY REJECTING THE CLAIM OF EXEMPTION U/S 11 O F THE ACT. HOWEVER, THE LD CIT (A) HELD THAT, ONCE GENUINENESS OF ACTIVITIES I S ESTABLISHED, THE ASSESSEE SOCIETY CAN CLAIM EXEMPTION EITHER U/S 10(23C) OR S EC.11. ACCORDINGLY, LD CIT (A) HELD THAT THE ASSESSEE SOCIETY CAN CLAIM EXEMPT ION U/S 11 SUBJECT TO THE VERIFICATION OF FULFILLMENT OF THE CONDITION SPECIF IED UNDER THAT SECTION. AGGRIEVED BY THE ORDER OF THE LD CIT (A), THE REVENUE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE PARTIES IN THIS REGARD. A SIM ILAR ISSUE WAS CONSIDERED BY THIS BENCH IN THE CASE OF NIDAMANURU EDUCATIONAL SOCIETY, ONGOLE IN ITA NO.493/V/2007, WHEREIN THIS BENCH, VIDE ITS ORDER D ATED 13.11.2009 HAS HELD AS UNDER: .. THE LD CIT (A) HAS FOLLOWED THE DECIS ION OF ITAT DELHI IN THE CASE OF SHARAK SHIKSHA SAMITI VS. CIT (16 SOT 213) (DEL. ) ) WHEREIN IT WAS HELD THAT WHEN TWO RECOURSES ARE AVAILABLE TO A PER SON UNDER A LAW IT IS FOR HIM TO CHOOSE ONE OR THE OTHER OR BOTH THE RECO URSES. IN THE CASE OF MALINENI PERUMALLU EDUCATIONAL SOCIETY, REFERRED SU PRA, THIS BENCH HAS ALSO TAKEN A SIMILAR VIEW, BY FOLLOWING TWO DECISIO NS OF ITAT HYDERABAD LISTED BELOW, WHEREIN THE TRIBUNAL HAS TAKEN A VIEW THAT THE EXEMPTION CAN BE CLAIMED EITHER U/S 11 OR SEC. (23C) OF THE A CT. A. RAJASTHAN SHIKSHA SAMITI ITA N OS. 80 & 81/HYD/08 B. DDIT VS. ST. TERESA CONVENT SOC IETY ITA NO. 234/HYD/07 IN VIEW OF THE ABOVE, WE ARE OF THE VIEW T HAT THE DECISION RENDERED BY LD CIT (A) IS IN ACCORDANCE WITH THE VIEW CONSISTEN TLY TAKEN UP BY VARIOUS BENCHES OF ITAT. IN VIEW OF THE ABOVE, W E DO NOT FIND ANY NECESSITY TO INTERFERE WITH THE DECISION OF THE LD CIT (A). 3 5. THE FACTS AND CIRCUMSTANCES OF THE INSTANT C ASE ARE IDENTICAL WITH THE CASE OF NIDAMANURU EDUCATIONAL SOCIETY DISCUSSED SUPRA. HENCE, CONSISTENT WITH THE VIEW TAKEN THEREIN, WE UPHOLD THE ORDER OF LD CIT(A ). 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 25-2-2010. SD/- SD/- (SUNIL KUMAR YADAV) (B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM DATE : 25 TH FEBRUARY, 2010 A COPY OF THIS ORDER IS FORWARDED TO : 01 THE DCIT, CIRCLE-1(1), GUNTUR, CENTRAL REVENUES BUILDING, GUNTUR 522004 02 M/S BAPATLA EDUCATION SOCIETY, GBC ROAD, BAPATL A 03 THE CIT (A), GUNTUR 04 THE CIT, GUNTUR 05 DR, ITAT, VISAKHAPAATNAM 06 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY ITAT, VISAKHAPATNAM BENCH