ADIT (Exemptions)-III, Hyderabad V. The Hyderabad Public School Society, Hyderabad

ITA 1615/HYD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59138 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 14-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SATYANARAYANA MURTHY
• Assessee Lawyers: K MYTHILI RANI
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER I.T.A. NO. 1615/HYD/2011 (ASSESSMENT YEAR : 2008-09) ASST. DIRECTOR OF INCOME - TAX (EXEMPTIONS)-III, HYDERABAD VS. THE HYDERABAD PUBLIC SCHOOL SOCIETY, HYDERABAD PAN: AAATT4938Q APPELLANT RESPONDENT APPELLANT BY: MS. K. MYTHILI RANI RESPONDENT BY: SHRI B. SATYANARAYANA MURTHY DATE OF HEARING: 11 . 0 1.201 2 DATE OF PRONOUNCEMENT: 11.01.2012 O R D E R PER CHANDRA POOJARI, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-IV, HYDERABAD DATED 30.06.2011 FOR TH E ASSESSMENT YEAR 2008-09. 2. THE REVENUE RAISED THE FOLLOWING GROUNDS: 1. THE ORDER OF THE LD. CIT(A) IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2. THE LD. CIT(A) ERRED TO HOLD THAT THE ASSESSEE IS ELIGIBLE FOR CLAIM UNDER SECTION 11 IN ABSENCE OF APPROVAL UNDER SUB-CLAUSE (VI) TO THE SECTION 10(23C). 3. THE LD. CIT(A) FAILED TO SEE THAT APPROVAL SUB- CLAUSE (VI) TO THE SECTION 10(23C) IS DISTINCT FROM REGISTRATION U/S. 12A OF THE ACT. 4. THE LD. CIT(A) FAILED TO SEE THAT SUB-CLAUSE (VI) T O THE SECTION 10(23C) AS INSERTED BY THE FINANCE ACT, 1998 W.E.F. 1.4.1999 STATES THAT THE UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION EXISTIN G SOLELY FOR EDUCATIONAL PURPOSES MAY BE APPROVED I.T.A. NOS. 1615/HYD/2011 THE HYDERABAD PUBLIC SCHOOL SOCIETY ============================= 2 BY THE PRESCRIBED AUTHORITY. THE ISSUE IS EXPLICIT LY DEALT WITH BY THE ACT ITSELF AND THE INTENTION OF T HE LEGISLATURE IS QUITE CLEAR FROM IT. 5. THE LD. CIT(A) ERRED IN RELYING UPON THE DECISION O F THE APEX COURT IN THE CASE OF CIT VS. BAR COUNCIL OF MAHARASHTRA, WHICH WAS MADE IN THE YEAR 1981, WHICH IS PRIOR TO THE INTRODUCTION OF THE SUB - CLAUSE (VK) TO THE SECTION 10(23C) [INSERTED BY THE FINANCE ACT, 1998 W.E.F. 01.04.1999]. 6. THE LD. CIT(A) FAILED TO SEE THAT IN THE CITED CASE OF AMERICAN HOTEL AND LODGING ASSN./ EDUCATIONAL INSTITUTE VS. CBDT (2008) 170 TAXMAN 306 (SC), THE HONBLE SUPREME COURT SET ASIDE THE ORDER OF THE CBDT DECLINING APPROVAL UNDER SECTION 10(23C)(VI) AND RESTORED THE APPLICATION OF THE ASSESSEE FOR FRESH DISPOSAL AND DID NOT DISPENSE WITH THE REQUIREMENT OF APPROVAL UNDER SECTION 10(23C)(VI). IN THE CONTRARY, THE DECISION OF THE APEX COURT STRENGTHENED THE VIEW THAT THE APPROVAL UNDER SECTION 10(23C)(VI) BY THE PRESCRIBED AUTHORITY IS A PRE-REQUISITE FOR ENJOYIN G EXEMPTION BY ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. IN THIS CASE THE CIT(A) WHILE ALLOWING THE APPEAL OF THE ASSESSEE GAVE A DIRECTION TO THE ASSESSING OFFI CER TO VERIFY THE COLLECTION OF DONATION TO SEE WHETHER THE ASSES SEE COLLECTED ANY FEES OVER AND ABOVE THE PRESCRIBED FEES FOR ADM ISSION OF STUDENTS. BUT IN OUR OPINION, THE CIT(A) HAS NO PO WER TO SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICE R WHICH AMOUNTS TO SETTING ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER AND WE CANNOT APPROVE THE SAME. BEING SO, WE CANCEL THE ORDER OF THE CIT(A). HOWEVER, CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE IT IS NECESSARY TO SEE WHETHER THE ASSESSEE HAS COLLECTED ANY AMOUNT OVER AND ABOVE THE PRESCRIBED FEES FOR ADMISSION OF STUDENTS BY WH ATEVER NAME IT IS CALLED. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(A) AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF TH E ASSESSING I.T.A. NOS. 1615/HYD/2011 THE HYDERABAD PUBLIC SCHOOL SOCIETY ============================= 3 OFFICER TO CONSIDER THE ORDER OF THE TRIBUNAL IN TH E CASE OF VASAVI ACADEMY OF EDUCATION IN ITA NO. 1749/HYD/200 9 DATED 4.2.2010. 4. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH JANUARY, 2012. SD/ - (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED THE 11 TH JANUARY, 2012 COPY FORWARDED TO: 1. THE ASST. DIRECTOR OF INCOME - TAX (EXEMPTIONS) - III, ROOM NO. 309, 3 RD FLOOR, AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD. 2. THE HYDERABAD PUBLIC SCHOOL SOCIETY, # 1 - 11 - 87 TO 88, BEGUMPET, HYDERABAD. 3. COMMISSIONER OF INCOME - TAX (APPEALS) - IV, HYDERABAD. 4. THE DIRECTOR OF INCOME - TAX (EXEMPTIONS), HYDERABAD. 5 . THE DR B BENCH, ITAT, HYDERABAD TPRAO