M/s. Jaycees Public School, New Delhi V. ITO, Rudrapur

ITA 1740/DEL/2009

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69529 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 27-11-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 29-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DK MISHR A; DR S N BHATIA
• Assessee Lawyers: DR RAKESH GUPTA
• Keywords: Depreciation; Opportunity of being heard
• Section: 12; 10; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI B. C. MEENA, ACCOUNTANT MEMBER I.T.A .NO.-1740/DEL/2009 (ASSESSMENT YEAR-2005-06) M/S JAYCEES PUBLIC SCHOOL VS. ITO GANGAPUR ROAD RUDRAPUR RUDRAPUR (U.S. NAGAR) (APPELLANT) (RESPONDENT) I.T.A .NO.-385/DEL/2012 (ASSESSMENT YEAR-2008-09) M/S JAYCEES PUBLIC SCHOOL VS. ITO C/O M/S RRA TAXINDIA RUDRAPUR D-28 SOUTH EXTENSION, PART-I NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY:-DR. RAKESH GUPTA, ADV. REVENUE BY:-SH. D. K. MISHRA, DR & DR. S. N. BHATIA, SR. DR. ORDER PER JOGINDER SINGH, JM. THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 18 TH FEBRUARY, 2009 FOR ASSESSMENT YEAR 2005-06 AND ORDER DATED 1 ST DECEMBER 2011 FOR ASSESSMENT YEAR 2008-09. 2. DURING HEARING WE HAVE HEARD DR. RAKESH GUPTA LD . ADVOCATE FOR THE ASSESSEE AND SHRI. D. K. MISHRA ALONG WITH SHRI S. N. BHATIA, LD. SR. DR. FOR 2 ASSESSMENT YEAR 2005-06 THE ONLY GRIEVANCE RAISED B Y THE ASSESSEE PERTAINS TO CONFIRMING THE ACTION OF THE AO DENYING EXEMPTIO N U/S 11 AND 12 OF THE ACT AND FURTHER HOLDING THAT INCOME OF THE ASSESSEE IS NOT EXEMPT. IDENTICALLY FOR ASSESSMENT YEAR 2008-09, ALONGWITH DISALLOWING THE EXEMPTION U/S 10 (23C) OF THE ACT ANOTHER GROUND PE RTAINS TO DISALLOWANCE OF DEPRECIATION AND PAYMENT OF SALARY ON, THE GROUN D THAT EPF HAS NOT BEEN PAID, AND ALSO CHARGING OF INTEREST U/S 234A AND 23 4B OF THE ACT HAVE BEEN RAISED. MR. GUPTA ADVANCED HIS ARGUMENTS WHICH ARE IDENTICAL TO THE GROUND RAISED. ON THE OTHER HAND THE LD. SR. DR STRONGLY D EFENDED THE IMPUGNED ORDERS. MR. MISHRA POINTED OUT THAT THE CLAIM OF TH E ASSESSEE U/S 10 (23C) WAS REJECTED BY THE LD. CHIEF COMMISSIONER. THE LD. REPRESENTATIVE FROM BOTH SIDES SUGGESTED THAT THE MATER REQUIRES RE-CON SIDERATIONS AT THE LEVEL OF THE AO SO THAT FACTS CAN BE EXAMINED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. DURING HEARING, IT WAS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE THAT FOR ASSESSMENT YEAR 2001-02, IDEN TICAL CLAIM WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE. (ITA NO. 2192/DEL/2004). WE HAVE GONE THROUGH THIS ORDER AND FOUND THAT THE TRI BUNAL TOOK THIS DECISION BY CONSIDERING THE FACT THAT THE AMOUNT INVOLVED IN THAT YEAR WAS BELOW PRESCRIBED LIMIT AND IN THAT SITUATION A PARTICULAR CONCLUSION WAS ARRIVED AT. HOWEVER, IN THE PRESENT ASSESSMENT YEAR THE TOTAL R ECEIPT IS ABOVE ONE CRORE 3 THEREFORE, AFORESAID DECISION OF THE TRIBUNAL MAY N OT HELP THE ASSESSEE. WE ALSO NOTE THAT THE COPY OF OBJECTS OF THE ASSESSEE ARE ALSO NOT AVAILABLE ON RECORD, EVEN OTHERWISE THE COPY OF THE ORDER DENYIN G THE CLAIM BY THE LD. CHIEF COMMISSIONER IS ALSO NOT AVAILABLE ON RECORD. FACTS REMAINS THAT THE ASSESSEE WAS GRANTED EXEMPTION U/S 12A/12AA OF THE ACT. WE FURTHER NOTE THAT ONE OF THE REASON FOR DENYING BENEFIT TO THE A SSESSEE AS MENTIONED IN THE ORDER OF THE LD. CIT (A) IS THAT THE ASSESSEE IMPAR TING EDUCATION BY CHARGING FEE FROM THE STUDENTS. BROADLY WE ARE NOT IN AGREEM ENT WITH THIS APPROACH OF THE DEPARTMENT BECAUSE WITHOUT CHARGING FEE IT IS N OT ALWAYS POSSIBLE TO FULFILL THE OBJECT OF THE IMPARTING EDUCATION AS CH ARGING OF FEE IS ONE OF THE SOURCE OF INCOME FOR RUNNING THE SOCIETY. EVEN OTHE RWISE IT HAS NOT BEEN ALLEGED THAT THE FEE SO CHARGED IS HIGHLY DISPROPOR TIONATE. EVEN THE LD. AO HAS NOT EXAMINED AS TO HOW MANY STUDENTS ARE TAUGHT WHO ARE FINANCIALLY WEAK. WHEN THE ASSESSEE WAS GRANTED REGISTRATION U/ S 12A/12AA THERE IS ALL POSSIBILITY THAT OBJECTS OF THE ASSESSEE WERE CONSI DERED BY THE LD. COMMISSIONER. WITHOUT ADVERTING FURTHER AND KEEPING IN VIEW, THE TOTALITY OF FACTS, WE REMAND BOTH THESE FILES TO THE FILE OF TH E LD. AO TO EXAMINE THE NATURE AND SOURCE OF RECEIPT BY THE ASSESSEE AND TH EN DECIDE AFRESH IN ACCORDANCE WITH LAW. NEEDLESS, TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE WITH FURTHE R LIBERTY TO FURNISH 4 EVIDENCE, IF ANY, TO SUBSTANTIATE ITS CLAIM. FINALL Y BOTH THE APPEAL, ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 27/11/2013 IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH THE SIDES, AT THE CONCLUSION OF THE HEARING. SD/- SD/- ( B. C. MEENA ) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL M EMBER DATED: 27/11/2013 *AK VERMA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTR