Asst.Director of Income Tax (Exemptions)-II (I/c), Hyderabad V. Sree Triveni Education Society, R.R.Dist

ITA 1587/HYD/2013

• Counselvise Citation: 158722514 RSA 2013
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 27-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ADAGIRI
• Section: 12AA; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA.NO.1587/HYD/2013 ASSESSMENT YEAR 2009-2010 ADIT(E)-II, HYDERABAD VS. SREE TRIVENI EDUCATION SOCIETY, KOTHAPET, R.R. DISTRICT PAN ABDFS 7540R (APPELLANT (RESPONDENT) FOR REVENUE : MR. B. YADAGIRI FOR ASSESSEE : -NONE- DATE OF HEARING : 24.03.2014 DATE OF PRONOUNCEMENT : 26.03.2014 ORDER PER B. RAMAKOTAIAH, A.M. THIS IS A REVENUE APPEAL AGAINST THE ORDER OF THE CIT(A)-IV, HYDERABAD DATED 20.09.2013. THE ISSUE IN THIS APPEAL IS WITH REFERENCE TO GRANT OF EXEMPTION UNDE R SECTION 11 TO THE ASSESSEE. 2. THE REVENUE HAS RAISED 8 GROUNDS ON THIS ISSUE INCLUDING THE POWER OF THE CIT(A) TO SET ASIDE THE ASSESSMENT WITH REFERENCE TO THE VERIFICATION OF THE CLAIM. TH E ASSESSEE FILED NIL RETURN OF INCOME FOR A.Y. 2009-10 AFTER C LAIMING EXEMPTION UNDER SECTION 11 OF THE I.T. ACT. THE ASS ESSEE IS RUNNING AN INTERMEDIATE COLLEGE AT DILSUKHNAGAR, HY DERABAD AND WAS GRANTED REGISTRATION UNDER SECTION 12AA W.E .F. 2 ITA.NO.1587/HYD/2013 SREE TRIVENI EDUCATIONAL SOCIETY, KOTHAPET, R.R. DIST. 01.04.2008. A.O. REJECTED THE CLAIM OF EXEMPTION U NDER SECTION 11 ON THE REASON THAT ASSESSEE IS ENGAGED I N RUNNING AN EDUCATIONAL INSTITUTION WHICH WAS ELIGIBLE FOR E XEMPTION UNDER SECTION 10(23)(C)(VI) AND NOT UNDER SECTION 1 1 AND SINCE IT HAD NOT OBTAINED THE REQUISITE APPROVAL UNDER SE CTION 10(23)(C)(VI), HE DISALLOWED THE CLAIM OF EXEMPTION . LD. CIT(A) FOLLOWING VARIOUS DECISIONS OF THE ITAT, PARTICULAR LY OF JURISDICTIONAL ITAT, ALLOWED THE ASSESSEES CONTENT IONS BY STATING AS UNDER : 4. THE APPELLANT IS ADMITTEDLY REGISTERED UNDER SE C. 12AA BUT HAD NOT BEEN NOTIFIED U/S. 10(23C) OF THE ACT. THE ALLOWABILITY OF THE ALTERNATIVE CLAIM U/S 11 UNDER SIMILAR CIRCUMSTANCES IS SUPPORTED BY THE FOLLOWING JUDICIAL PRONOUNCEMENTS: I. CIT VS BAR COUNCIL OF MAHARASTRA [1981] 130 ITR 28(SC) II. AMERICAN HOTEL AND LODGING ASSOCIATION/ EDUCATIONAL INSTITUTE VS CBDT (2008) (170 TAXMAN 306) (SC) II. RAJASTHANI SIKSHA SAMITHI (ITA NO 80 & 81/HYD/2008) IV. ST. THERESA'S CONVENT SOCIETY, HYDERABAD (ITA NO.844/HYD/08) V. ADIT (EXEMPTIONS) VS LOUIS EDUCATIONAL SOCIETY, (ITA NO 1456/HYD/2008, DT 26.12.2008) VI. AP SOCIETY FOR KNOWLEDGE (ITA NO.843/ HYD /09, DT 9.10.2009) 5. IT WAS HELD IN THESE CASES THAT ONCE ALL THE REQUISITE CONDITIONS FOR EXEMPTION UNDER SEC. 11 WE RE MET, EVEN IF THE CONDITIONS UNDER SEC. 10(23C)(VI) HAD NOT BEEN COMPLIED WITH, THERE WOULD BE NO BAR TO SE EK EXEMPTION UNDER SEC. 11. 6. IT IS FURTHER SEEN THAT THE JURISDICTIONAL ITAT HAS HELD THAT IF DONATIONS ARE RECEIVED COMPULSORILY FO R THE ADMISSION OF STUDENTS, BY WHATEVER NAME CALLED, I.E . DONATION, BUILDING FUND, AUDITORIUM FUND, ETC, OVER AND 3 ITA.NO.1587/HYD/2013 SREE TRIVENI EDUCATIONAL SOCIETY, KOTHAPET, R.R. DIST. ABOVE THE PRESCRIBED FEE, FROM THE STUDENTS, THE X WOULD NOT BE ENTITLED TO EXEMPTION U/S 10(23C) OR U /S. 11. THIS VIEW HAS REPEATEDLY BEEN EXPRESSED BY THE ITAT AS IN THE FOLLOWING CASES: I. VASAVI ACADEMY OF EDUCATION (ITA NO. 1133/ HYD / 2006 , DATED 15.4.2O09) II. JAMIA NIZAMIA (ITA NO. 763/HYD/2007, DT. 30.6.2008) III. INTERNATIONAL EDUCATIONAL ACADEMY (ITA NO. 494/HYD/2007) IV. SRI VENKATA SAI EDUCATIONAL SOCIETY (ITA NO. 1440/HYD/2011, DATED 9.4.2012) 7. FOLLOWING THE ABOVE DECISIONS OF THE JURISDICTIONAL ITAT, IT IS HELD THAT IF THE ASSESSI NG OFFICER HAS FOUND THAT BESIDES FULFILLING OTHER PREREQUISITES FOR EXEMPTION U/S, 11, AS STIPULATED IN SECTIONS 11 TO 13 OF THE ACT, THE APPELLANT DID NOT CHARGE ANY MONEY, BY WHATEVER NAME IT IS CALLED, I. E. DONATION, BUILDING FUND, AUDITORIUM FEE ETC., OVER AND ABOVE THE PRESCRIBED FEE FOR THE ADMISSION OF THE STUDENT, THE APPELLANT WOULD BE ENTITLED FOR EXEMPT ION U/S. 11, EVEN IF THE NOTIFICATION U/S. 10(23C) OF T HE ACT HAS NOT BEEN OBTAINED BY IT. THE APPEAL IS, THEREFORE, DECIDED IN FAVOUR OF THE APPELLANT, SUBJECT TO VERIFICATION OF FULFILLMENT OF THE ABOVE CONDITIONS . 3. AFTER CONSIDERING THE D.R. SUBMISSIONS, WE DO N OT SEE ANY REASON TO INTERFERE WITH THE ORDER OF THE C IT(A) WHICH IS IN LINE WITH THE PRINCIPLES ESTABLISHED IN THIS REG ARD BY THE COORDINATE BENCH. THEREFORE, WE AFFIRM THE ORDER OF THE CIT(A). 4. WITH REFERENCE TO THE LAST GROUND THAT CIT(A) D O NOT HAVE ANY JURISDICTION IN DIRECTING THE A.O. TO VERIFY THE CLAIM UNDER SECTION 11, WHAT WE NOTICED IS THAT THE LD. CIT(A) HAS NOT SET ASIDE THE ASSESSMENT BUT ONLY DIRECTED THE A.O. TO EXAMINE WHETHER THE ASSESSEE FULFILLS OTHER REQUISI TE CONDITIONS 4 ITA.NO.1587/HYD/2013 SREE TRIVENI EDUCATIONAL SOCIETY, KOTHAPET, R.R. DIST. FOR EXEMPTION UNDER SECTION 11, AS THIS ISSUE WAS N OT EXAMINED BY THE A.O. IN HIS ORDER. WE DO NOT SEE AN Y REASON TO MODIFY THE DIRECTION OF THE LD. CIT(A). A.O. IS, HO WEVER, DIRECTED TO EXAMINE THIS ISSUE AS DIRECTED BY THE C IT(A). 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 26.03.2014. SD/- SD/- (ASHA VIJAYARAGHAVAN) (B.RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD DATED 26 TH MARCH, 2014 VBP/- COPY TO 1. THE ADIT(E)-II, HYDERABAD. 2. SREE TRIVENI EDUCATION SOCIETY, D.NO.105/A, NARA SIMHAPURI COLONY, OPP. ASTHA LAKSHMI TEMPLE ARCH, KOTHAPE T, R.R. DIST. 3. CIT(A)-IV, HYDERABAD 4. DIT(E), HYDERABAD 5. D.R. ITAT, A BENCH, HYDERABAD.