Appeal details
Counselvise Citation
[2011] 134 COUNSELVISE.COM (IT) 3401 (ITAT-HYDERABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
6 month(s) 5 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
13-04-2011
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
A
Next Hearing Date
08-03-2011
Assessment Year
2007-2008
Appeal Filed On
08-10-2010
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. & C.O. NO. THEREIN ASST YEAR APPELLANT IN APPEALS RESPONDENT IN APPEAL/CROSS OBJECTOR 1289/HYD/2010 & CO 99/HYD/2010 2005-06 ASSISTANT DIRECTOR OF INCOME-TAX (EXEMP- TIONS)-I, HYDERABAD RAVI RISHI EDUCATIONAL SOCIETY, HYDERABAD (PAN AAAAR 1952 M) 1290/HYD/2010 & CO 100/HYD/2010 2006-07 1291/HYD/2010 & CO 101/HYD/2010 2007-08 1293/HYD/2010 & CO 102/HYD/2010 2005-06 ASSISTANT DIRECTOR OF INCOME-TAX (EXEMP- TIONS)-I, HYDERABAD TARAKARAMA EDUCATIONAL SOCIETY, HYDERABAD (PAN AAAAT 6566 H) 1294/HYD/2010 & CO 103/HYD/2010 2006-07 1295/HYD/2010 & CO 104/HYD/2010 2005-06 ASSISTANT DIRECTOR OF INCOME-TAX (EXEMP- TIONS)-I, HYDERABAD AURORA EDUCATIONAL SOCIETY, HYDERABAD (PAN AAATA 8751 C) 1296/HYD/2010 & CO 105/HYD/2010 2006-07 1297/HYD/2010 & CO 106/HYD/2010 2007-08 ASSESSEE S BY : SHRI S,RAMA RAO DEPARTMENT BY : SHRI V.SRINIVAS CIT O R D E R PER BENCH: THESE APPEALS BY THE REVENUE AND CROSS-OBJECTIONS BY THE ASSESSEES ARE DIRECTED AGAINST THE ORDERS OF THE CO MMISSIONER OF ITA NO.1289/HYD/10 AND 15 OTHERS M/S.RAVI R ISHI EDUCATIONAL SOCIETY, HYD & TWO OTHERS 2 INCOME-TAX(APPEALS). SINCE IDENTICAL ISSUE IS INVO LVED, THESE APPEALS AND CROSS-OBJECTIONS ARE BEING DISPOSED OFF WITH TH IS CONSOLIDATED ORDER. REVENUES APPEALS: 2. IDENTICAL GROUNDS OF IN THE REVENUES APPEALS A RE AS UNDER- 1. THE ORDER OF THE CIT(A) IS NOT ACCEPTABLE AS IT IS ERRONEOUS ON FACTS AND IN LAW. 2. THE CIT(A) ERRED IN HOLDING THAT THE ASSESSEE I S ELIGIBLE FOR EXEMPTION U/S. 11 OF THE IT ACT AND THE EXEMPTI ON U/S. 11 CAN BE ALTERNATIVELY CLAIMED. 3. THE CIT(A) OUGHT TO HAVE CONFIRMED THE ASSESSMEN T AS IT IS MANDATORY ON THE PART OF THE ASSESSEE TO OBTA IN NOTIFICATION US/. 10(23C)(IV) OF THE IT ACT. 4. THE DECISION OF ITAT IN ST. THERESAS SOCIETY HA S NOT BEEN ACCEPTED BY THE DEPARTMENT AND APPEAL U/S. 260 A HAS BEEN PREFERRED BEFORE THE A.P. HIGH COURT. 3. THE LEARNED CIT-DEPARTMENTAL REPRESENTATIVE HAS RELIED ON THE ORDERS OF THE ASSESSING OFFICER. HE SUBMITT ED THAT THE ASSESSEES HAVE NOT RECEIVED NOTIFICATION UNDER S.10 (23C) OF THE ACT AND THEREFORE, IN THE ABSENCE OF NOTIFICATION UNDER S.10(23C)(VI), THE CLAIM OF EXEMPTION HAS TO BE DENIED TO THE ASSESSEE . HE SUBMITTED THAT THE ASSESSEE UNDER THE PROVISIONS OF LAW IS OB LIGED TO APPLY FOR APPROVAL UNDER S.10(23C)(VI) OF THE ACT, AS THE GRO SS RECEIPTS OF THE ASSESSEES HAVE EXCEEDED RS.1 CRORE IN EACH OF THE ACCOUNTING PERIODS UNDER CONSIDERATION. THE LEARNED CIT-DEPARTMENTAL R EPRESENTATIVE, SUBMITTED THAT THE DECISION OF THE HYDERABAD BENCH OF THE TRIBUNAL IN ST. THERESAS SOCIETY HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND AN ITA NO.1289/HYD/10 AND 15 OTHERS M/S.RAVI R ISHI EDUCATIONAL SOCIETY, HYD & TWO OTHERS 3 APPEAL UNDER S.260A HAS BEEN PREFERRED BEFORE THE H ONBLE JURISDICTIONAL HIGH COURT AND THE SAME IS PENDING. 4. THE LEARNED COUNSEL FOR THE ASSESSEES CONTEND ED THAT THE APPLICATIONS OF THE ASSESSEES UNDER S.10(23C)(VI) O F THE ACT WERE REQUIRED TO BE FILED BY THE ASSESSEES ONLY IF THE A SSESSEES CLAIM FOR EXEMPTION UNDER THE SAID SECTION. HOWEVER, THE ASSE SSEES IN THESE CASES HAVE CLAIMED EXEMPTION UNDER S.11 OF THE ACT, WHEREIN THERE IS NO SUCH REQUIREMENT. THE ASSESSEE-TRUSTS HAVE BEEN REGISTERED BY THE COMMISSIONER UNDER S.12A OF THE ACT. HE SUBMIT TED THAT THE ISSUE WHETHER THE ASSESSEES CAN CLAIM EXEMPTION UNDER S.1 1 OF THE ACT AND WHETHER IT IS MANDATORY ON THEIR PART TO OBTAIN NOT IFICATION UNDER S.10(23C) (VI) OF THE ACT HAS BEEN CONCLUDED IN FAV OUR OF THE ASSESSEE WITH SERIES OF DECISIONS, WHICH ARE AS UNDER- (A) CIT V/S. BAR COUNCIL OF MAHARASHTRA (130 ITR 28)-SC (B) CIT V/S. SARASWATHI POOR STUDENTS FUND(150 ITR 142) -KAR (C) BAR COUNCIL OF U.P. V/S. CIT (148 ITR 584)-ALL (D) AMERICAN HOTEL AND LODGING ASSOCIATION/EDUCATIONAL INSTITUTE V/S. CBDT (170 TAXMAN 306)-SC (E) DECISIONS OF ITAT, HYDERABAD IN THE CASES OF- (I) RAJASTHANI SIKSHA SAMITI (ITA NO.80-81/HYD/20 08) (II) ST. THERASAS CONVENT SOCIETY (ITA NO.844/HYD/ 2008) (III) ST. LOUIS EDUCATIONAL SOCIETY (ITA NO. 1456/H YD/2008) HE ALSO PLACED RELIANCE ON THE DECISION OF THE HYDE RABAD BENCH OF THE TRIBUNAL IN THE CASE OF DIRECTOR OF INCOME-TAX(EXEM PTION) V/S. VASAVI ACADEMY OF EDUCATION IN ITA NO.1449/HYD/2008) DATED 4.2.2010. HE SUBMITTED THAT THE ISSUE OF APPLICABILITY OF PROVIS IONS OF S.11 HAS BEEN CONSIDERED BY THE ASSESSING OFFICER AND NOTHING ADV ERSE HAS BEEN ITA NO.1289/HYD/10 AND 15 OTHERS M/S.RAVI R ISHI EDUCATIONAL SOCIETY, HYD & TWO OTHERS 4 FOUND BY THE ASSESSING OFFICER WITH REGARD TO THE I SSUE OF APPLICABILITY OF S.11 OF THE ACT. THE ONLY OBJECTION OF THE ASSE SSING OFFICER IS THAT THE ASSESSEE HAS NOT GOT APPROVAL UNDER S.10(23C)(V I) OF THE ACT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREF ULLY AND HAVE PERUSED THE ORDERS OF THE ASSESSING OFFICER AN D THE CIT(A). WE FIND THAT THE CIT(A) HAS PASSED A WELL REASONED SPE AKING ORDER ON THIS ISSUE. IT IS NOW WELL SETTLED THAT AN ASSESSEE CAN MAKE ALTERNATIVE CLAIM FOR EXEMPTION UNDER S.11 OF THE ACT AND IT IS NOT MANDATORY FOR THE ASSESSEES TO OBTAIN NOTIFICATION UNDER S.10(23C )(VI) OF THE ACT. THIS ISSUE HAS BEEN CONCLUDED IN FAVOUR OF THE ASSE SSEES IN SERIES OF DECISIONS RELIED UPON BY THE LEARNED COUNSEL FOR TH E ASSESSEES AND CITED SUPRA. CIT(A) IN THE IMPUGNED ORDERS HAD REC ORDED ALL THE DECISIONS RELIED UPON BY THE ASSESSEE. THE HYDERABA D BENCH OF THE TRIBUNAL IN RAJASTHANI SIKSHA SAMITI (SUPRA) HAD UP HELD THE VIEW THAT ALTERNATIVE CLAIM UNDER S.11 OF THE ACT COULD BE MA DE BY THE ASSESSEE. THIS VIEW WAS ALSO FOLLOWED IN SERIES OF DECISIONS BY THE TRIBUNAL AND IN THE CASE OF ST. THERESAS CONVENT SOCIETY, HYDER ABAD IN ITA NO.844/HYD/2008 AND ALSO IN THE CASE OF ADIT-(EXEMP TION) V/S. LOUIS EDUCATION SOCIETY (ITA NO.456/HYD/2008) DATED 28.12 .2008. WE FIND THAT THE ASSESSING OFFICER HAS NOT DOUBTED THE ELI GIBILITY OF THE ASSESSEES FOR EXEMPTION UNDER S.11 OF THE ACT AND T HE ONLY OBJECTION OF THE ASSESSING OFFICER IS WITH REGARD TO NON-APP ROVAL OF THE ASSESSEES UNDER S.10(23C)(VI) OF THE ACT. THE ISSU E BEING COVERED IN FAVOUR OF THE ASSESSEES WITH SERIES OF DECISIONS OF THE HONBLE COURTS AND THIS TRIBUNAL CITED SUPRA, WE HOLD THAT THE ASS ESSEES CAN MAKE AN ALTERNATIVE CLAIM FOR EXEMPTION UNDER S.11 OF THE A CT AND THERE BEING NO MISTAKE IN THE ORDERS OF THE CIT(A) IN DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEES, THE SAME ARE ACCORDINGLY CONFIRME D AND THE GROUNDS OF THE REVENUE IN THESE APPEALS ARE REJECTED. ITA NO.1289/HYD/10 AND 15 OTHERS M/S.RAVI R ISHI EDUCATIONAL SOCIETY, HYD & TWO OTHERS 5 CROSS OBJECTIONS OF THE ASSESSEES: 6. IDENTICAL GROUNDS OF CROSS-OBJECTIONS OF THE AS SESSEES ARE AS UNDER- 1. THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) OUGHT TO HAVE SEEN THAT THE ASSESSING OFFICER REJECTED TH E EXEMPTION U/S. 11 OF THE I.T. ACT AS THE RESPONDENT HEREIN DID NOT OBTAIN NECESSARY APPROVAL U/S. 10(23 C) OF THE I.T. ACT. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE SEEN THAT THE ASSESSING OFFICER DID N OT RAISE ANY ISSUE WITH REGARD THE COLLECTION OF ANY AMOUNT IN ADDITION TO THE FEES NORMALLY CHARGEABLE AS HE W AS SATISFIED THAT NO SUCH DONATIONS WERE COLLECTED. 3. THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) OUGHT TO HAVE SEEN THAT THE ASSESSING OFFICER HAVING EXAM INED THE CASE OF THE RESPONDENT HEREIN HAS ARRIVED AT TH E CONCLUSION THAT ALL OTHER REQUIREMENTS WERE SATISFI ED AND THAT THE EXEMPTION U/S. 11 IS NOT AVAILABLE ONLY B ECAUSE THE RESPONDENT DID NOT OBTAIN THE NECESSARY APPROVA L U/S. 10(23C) OF THE I.T. ACT. 4. THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) OUGHT TO HAVE DIRECTED THE ASSESSING OFFICER TO ALLOW EXE MPTION U/S. 11 WITHOUT ANY FURTHER VERIFICATION AS THE ASS ESSING OFFICER ALREADY VERIFIED THE REQUIRED PARTICULARS B EFORE PASSING THE ORDER OF REGULAR ASSESSMENT PROCEEDING S. 7. THE LEARNED COUNSEL FOR THE ASSESSEES SUBMITTED THAT THE CIT(A) WHILE PASSING THE IMPUGNED APPELLATE ORDERS HAS DIRECTED THE ASSESSING OFFICER TO VERIFY THE ASPECT OF CHARGING OF DONATION/CAPITAL FEE ETC. HE SUBMITTED THAT THE ASSESSING OFFICER H AS NOT RAISED ANY SUCH ISSUE OF COLLECTION OF ANY AMOUNT IN ADDITION TO THE FEE, NORMALLY CHARGEABLE AS HE WAS SATISFIED THAT NO SUCH DONATIO NS WERE COLLECTED BY THE ASSESSEES AND THEREFORE, THERE WAS NO OCCASI ON FOR THE CIT(A) ITA NO.1289/HYD/10 AND 15 OTHERS M/S.RAVI R ISHI EDUCATIONAL SOCIETY, HYD & TWO OTHERS 6 TO REFER THE MATTER BACK TO THE ASSESSING OFFICER T O VERIFY THE SAME AGAIN. 8. THE LEARNED CIT-DR HAS OPPOSED THE SUBMISSION S OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THA T THE DECISION OF THE HYDERABAD BENCH OF THE TRIBUNAL IN DIT(EXEMPTIO N) V/S. VASAVI ACADEMY OF EDUCATION, (SUPRA) IS CLEAR ON THE ISSUE AND IT HAS BEEN HELD THEREIN THAT IN CASE THE ASSESSEE HAS COLLECTE D ANY DONATION OR CAPITATION FEE, IT SHALL NOT BE ENTITLED TO ANY EXE MPTION UNDER THE ACT. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFU LLY. WE FIND THAT NO PREJUDICE IS CAUSED TO THE ASSESSEE ON ACCOUNT OF THE DIRECTIONS GIVEN BY THE CIT(A) TO THE ASSESSING OFF ICER TO VERIFY WHETHER THE ASSESSEES HAVE COLLECTED ANY DONATION O R CAPITATION FEE, ETC. DURING THE RELEVANT ACCOUNTING PERIODS. THE H YDERABAD BENCH OF THE TRIBUNAL IN DIT(EXEMPTION) V/S. VASAVI ACADEMY OF EDUCATION (SUPRA) HAS HELD THAT AN EDUCATIONAL INSTITUTION IS ENTITLED FOR EXEMPTION UNDER S.10(23C) OR UNDER S.11, IF NO DONA TION WAS COLLECTED FROM THE STUDENTS. IN THE FACTS OF THE C ASE, WE FIND NO MISTAKE IN THE ORDERS OF THE CIT(A) IN FOLLOWING TH E DECISION OF THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF VASA VI ACADEMY OF EDUCATION AND DIRECTING THE ASSESSING OFFICER TO VE RIFY THE ASPECT OF DONATION, CAPITATION FEE ETC. AND FURTHER DIRECTING THAT IF IT IS FOUND THAT BESIDES FULFILLING OTHER PREREQUISITES FOR EXEMPT ION UNDER S.11, THE ASSESSEES HAVE NOT CHARGED ANY MONEY BY WHATEVER NA ME IT IS CALLED, I.E. DONATION, BUILDING FUND, AUDITORIUM FEE ETC, O VER AND ABOVE THE PRESCRIBED FEE FOR THE ADMISSION OF STUDENTS, THE A SSESSEES WOULD BE ENTITLED FOR EXEMPTION UNDER S.11, EVEN THOUGH THE NOTIFICATIONS UNDER S.10(23C)(VI) OF THE ACT HAVE NOT BEEN RECEIVED BY THEM. THERE BEING NO MISTAKE IN THE ORDERS OF THE CIT(A) ON THIS ISSU E, WE CONFIRM THE ITA NO.1289/HYD/10 AND 15 OTHERS M/S.RAVI R ISHI EDUCATIONAL SOCIETY, HYD & TWO OTHERS 7 SAME AND THE GROUNDS OF THE ASSESSEES IN THEIR CROS S OBJECTIONS ARE REJECTED. 10. IN THE RESULT, APPEALS OF THE REVENUE AS WELL AS THE CROSS OBJECTIONS OF THE ASSESSEES ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 13.04.2011 SD/- SD/- (AKBER BASHA) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 13.4.2011 COPY FORWARDED TO: 1. RAVI RISHI EDUCATIONAL SOCIETY, C/O. SHRI S.RAMA RAO, FLAT NO.102, SHIRYA'S ELEGANCE, NO.3-6-643, ST. NO. 9, HIMAYATNAGAR, HYDERABAD 500029 2. TARAKARAMA EDUCATIONAL SOCIETY, C/O. SHRI S.RAMA RAO, FLAT NO.102, SHIRYA'S ELEGANCE, NO.3-6-643, ST. NO. 9, HIMAYATNAGAR, HYDERABAD 500029 3. AURORA EDUCATIONAL SOCIETY, C/O. SHRI S.RAMA RAO , FLAT NO.102, SHIRYA'S ELEGANCE, NO.3-6-643, ST. NO. 9, HIMAYATNAGAR, HYDERABAD 500029 4. ASSTT. DIRECTOR OF INCOME - TAX(EXEMPTION) , I, HYDERABAD 5. COMMISSIONER OF INCOME - TAX(APPEALS), I V , HYDERABAD. 6. DIRECTOR OF INCOME - TAX(EXEMPTION) HYDERABAD 7. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S.
