ADIT(Exemption)-III, Hyderabad V. St. Louis Educational Society, Secunderabad

ITA 1893/HYD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61918 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 08-11-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V SRINIVAS SHRI K VISWANATHAM
• Assessee Lawyers: K C DEVADAS
• Keywords: Opportunity of being heard
• Section: 12A; 6; 2; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.1893/HYD/2011 : ASSESSMENT YEAR 2008- 09 ASSTT . DIRECTOR OF INCOME - TAX(EXEMPTION) II, HYDERABAD V/S ST. LOUIS EDUCATIONAL SOCIETY, SECUNDERABAD ( PAN - AACTS 1898 Q ) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V.SRINIVAS& SHRI K.VISWANATHAM RESPONDENT BY : SHRI K.C.DEVADAS DATE OF HEARING 11.6.2012 DATE OF PRONOUNCEMENT 15.6.2012 O R D E R PER D.KARUNAKARA RAO, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAI NST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS)-IV, HYDE RABAD DATED 30.8.2011 FOR THE ASSESSMENT YEAR 2008-09. 2. EFFECTIVE GROUNDS OF THE REVENUE IN THIS APPEAL READ AS FOLLOWS- 1. THE ORDER OF THE LD. CIT(A) IS ERRONEOUS BOTH O N FACTS AND IN LAW. 2. THE LD. CIT(APPEALS) ERRED TO HOLD THAT THE ASS ESSEE IS ELIGIBLE FOR CLAIM UNDER SECTION 11 IN ABSENCE OF APPROVAL UNDER SUB-CLAUSE (VI) TO THE SECTION 10(23C). 3. THE LD. CIT(APPEALS) FAILED TO SEE THAT APPROVAL SUB-CLAUSE (VI) TO THE SECTION 10(23C) IS DISTINCT FROM REGIST RATION U/S. 12A OF THE ACT. 4. THE LD. CIT(A) FAILED TO SEE THAT SUB-CLAUSE (VI ) TO THE SECTION 10(23C) AS INSERTED BY THE FINANCE ACT, 199 8 W.E.F. 01.04.1999 STATES THAT THE UNIVERSITY OR OTHER EDUC ATIONAL INSTITUTION EXISTING SOLELY FOR EDUCATIONAL PURPOSE MAY BE APPROVED BY THE PRESCRIBED AUTHORITY. THE ISSUE IS EXPLICITLY DEALT WITH BY THE ACT ITSELF AND THE INTENTION OF T HE LEGISLATURE IS QUITE CLEAR FROM IT. ITA NO.1893/HYD/2011 ST. LOUIS EDUCATIONAL SOCIETY, SECUNDERABAD. 2 5. THE LD. CIT(APPEALS) FAILED TO APPRECIATE THAT THE DECISION OF THE APEX COURT IN THE CASE OF CIT V/S. BAR COUNC IL OF MAHARASHTRA WAS MADE IN THE YEAR 1981 PRIOR TO INTRODUCTION OF THE SUB-CLAUSE (VI) TO THE SECTION 10(23C) [INSERTED BY THE FINANCE ACT, 1998 W.E.F. 01.04.199 9] 6. THE LD. CIT(APPEALS) FAILED TO SEE THAT IN THE C ITED CASE OF AMERICAN HOTEL AND LODGING ASSN./EDUCATIONAL INSTIT UTE VS. CBDT (2008) (170 TAXMAN 306)(SC), THE HONBLE SUPRE ME COURT SET ASIDE THE ORDER OF THE CBDT DECLINING APP ROVAL UNDER SECTION 10(23C) (VI) AND RESTORED THE APPLICA TION OF THE ASSESSEE FOR FRESH DISPOSAL AND DID NOT DISPENS E WITH THE REQUIREMENT OF APPROVAL UNDER SECTION 10(23C)(V I). IN THE CONTRARY, THE DECISION OF THE APEX COURT STREN GTHENED THE VIEW THAT THE APPROVAL UNDER SECTION 10(23C)(VI ), BY THE PRESCRIBED AUTHORITY, IS A PREREQUISITE FOR ENJOYIN G EXEMPTION BY ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION. 3. REVENUE IS AGGRIEVED WITH THE CONCLUSION OF THE CIT(A) THAT THE ASSESSEE IS ELIGIBLE FOR BENEFITS OF SECTION 11 OF THE ACT IN ALTERNATIVE TO THE PROVISIONS OF S.10(23C)(VI) OF THE ACT. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE MENTIONED THAT THE ISSUE R AISED IN THE ABOVE GROUNDS OF APPEAL BY THE REVENUE ARE IDENTICAL TO T HE ONES ALREADY ADJUDICATED BY THIS TRIBUNAL IN ASSESSEES OWN CASE S FOR THE ASSESSMENT YEARS 1999-2000 AND 2002-03 VIDE ORDER DATED 8 TH SEPTEMBER, 2008 IN ITA NOS.496 AND 497/HYD/2007; FOR THE ASSESSMENT YE AR 2005-06 VIDE ORDER DATED 26.12.2008 IN ITA NO.1456/HYD/2005; AND FOR ASSESSMENT YEAR 2007-08, VIDE ORDER DATED 28.1.2011 IN ITA NO. 1418/HYD/2010. A COPY EACH OF THE SAID ORDERS OF THE TRIBUNAL ARE AL SO FILED BEFORE US. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE VIEW TAKEN BY THE CIT(A) IS ALSO IN CONSONANCE WITH THE CONSISTENT VI EW TAKEN BY THE TRIBUNAL IN SIMILAR MATTERS IN THE RECENT PAST, AS IN THE CASE OF M/S. LINCOLNS EDUCATION SOCIETY, HYDERABAD , VIDE ORDER DATED 8.7.2011 IN ITA NO.4/HYD/2011, WHEREIN THE TRIBUNAL VIDE PARA-5 THE REOF HELD AS FOLLOWS- 5. WE HOWEVER, FIND THAT THE HYDERABAD BENCH OF T HE TRIBUNAL IN DIRECTOR OF INCOME-TAX(EXEMPTION) V/S. VASAVI ACADE MY OF EDUCATION IN ITA NO.1449/HYD/2008, VIDE ORDER DATED 4.2.2010, HAS HELD THAT AN EDUCATIONAL INSTITUTION IS ENTITLED FO R EXEMPTION UNDER ITA NO.1893/HYD/2011 ST. LOUIS EDUCATIONAL SOCIETY, SECUNDERABAD. 3 S.10(23C) OR UNDER S.11, IF NO DONATION WAS COLLECT ED FROM THE STUDENTS. WE BEING IN AGREEMENT WITH THE ORDER OF T HE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF VASAVI ACADEMY OF EDUCATION(SUPRA), DIRECT THE ASSESSING OFFICER TO V ERIFY THE ASPECT OF DONATION, CAPITATION FEE ETC. IF ANY COLLECTED BY T HE ASSESSEE, AND FURTHER DIRECT THAT IF IT IS FOUND THAT BESIDES FUL FILLING OTHER PREREQUISITES FOR EXEMPTION UNDER S.11, THE ASSESSE E HAS NOT CHARGED ANY MONEY BY WHATEVER NAME IT IS CALLED, I. E. DONATION, BUILDING FUND, AUDITORIUM FEE ETC, OVER AND ABOVE T HE PRESCRIBED FEE FOR THE ADMISSION OF STUDENTS, THE ASSESSEE WOULD B E ENTITLED FOR EXEMPTION UNDER S.11, EVEN THOUGH THE NOTIFICATION UNDER S.10(23C)(VI) OF THE ACT HAVE NOT BEEN RECEIVED BY IT. WE DIRECT ACCORDINGLY. 4. REFERRING TO THE DIRECTION OF THE ITAT TO THE ASSESSING OFFICER GIVEN ABOVE, LEARNED COUNSEL HOWEVER, ARGUED THAT T HE CASE NEED NOT BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION OF THE ASPECT OF DONATION, CAPITATION FEE, ETC., IF ANY, COLLECTED B Y THE ASSESSEE. FURTHER, HE ALSO TOOK OBJECTION TO THE DIRECTION OF THE TRIB UNAL, IN THE RECENT CASES, WHEREIN IT IS STATED THAT IN CASE THE ASSESSEE IS F OUND TO HAVE NOT VIOLATED, BY CHARGING ANY MONEY BY WAY OF DONATION , BUILDING FUND, AUDITORIUM FEE, ETC. OVER AND ABOVE THE PRESCRIBED FEE FOR ADMISSION OF STUDENTS, THE ASSESSEE WOULD BE ENTITLED FOR EXEMPT ION UNDER S.11, AND MENTIONED THAT THESE DIRECTIONS ARE UNCALLED FOR, C ONSIDERING THE FACT THAT THERE IS NO GROUND IN THE PRESENT APPEAL OF THE REV ENUE TO THAT EXTENT BEFORE THE TRIBUNAL. THEREFORE, HE SUBMITTED THAT T HE TRIBUNAL SHOULD RESTRICT ITSELF TO THE GROUNDS RAISED BY THE REVENU E BEFORE IT IN THE APPEAL. FOR THIS PRINCIPLE, LEARNED COUNSEL RELIED ON THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF S.A.RAHIM AND TWO OTHERS V/S. CIT (333 ITR 379) AND OF THE GUJARAT HIGH COURT IN CIT V/S. STEEL CAST CORPORATION(107 ITR 683). THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LATER ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 2007- 08 DATED 28.1.2011 IN ITA NO.1418/HYD/2010 IS NOT A SPEAKING ORDER AND IN ANY EVENT, IN VIEW OF THE FACT THAT TWO DIFFEREN T ORDERS OF THE TRIBUNAL COVERS THE ISSUE, IT IS THE ORDER WHICH IS FAVOURAB LE TO THE ASSESSEE, WHICH SHOULD BE CONSIDERED WHILE ADJUDICATING A SUBSEQUEN T APPEAL. ITA NO.1893/HYD/2011 ST. LOUIS EDUCATIONAL SOCIETY, SECUNDERABAD. 4 5. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REP RESENTATIVE FOR THE REVENUE, THOUGH, DID NOT CONTROVERT THE CON TENTION OF THE ASSESSEE THAT THE ISSUE RAISED IN THE GROUNDS OF TH IS APPEAL IS COVERED IN ASSESSEES OWN CASES BY THE ORDERS OF THIS TRIBUNA L FOR THE EARLIER YEARS AS NOTED ABOVE, ON THE ISSUE OF SETTING ASIDE THE M ATTER TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION, HE PLACED RELIA NCE ON THE ORDER OF THE TRIBUNAL DATED 28.1.2011 IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08 AND READ OUT CONTENTS OF PARA 2 AND SUBMITT ED THAT THE TRIBUNAL APPROVED THE DIRECTIONS OF THE CIT(A) TO THE ASSESS ING OFFICER TO MAKE VERIFICATION BEFORE GRANTING BENEFITS OF PROVISIONS OF S.11 TO 13 OF THE ACT. HE FURTHER MENTIONED THAT THE PROVISIONS OF S.11 TO S.13 ARE LINKED WITH EACH OTHER AND THEY ARE NO STAND ALONE PROVISIONS, AND THEREFORE, THE BENEFITS OF S.11 TO 13 CANNOT BE GRANTED UNLESS THE CONDITIONS ATTACHED THERETO ARE LEGALLY SATISFIED. REFERRING TO THE PROVISIONS OF S.254(1), LEARNED DEPARTMENTAL REPRESENTATIVE ARGUED VEHEMENT LY BY STATING THAT ITAT IS EMPOWERED TO PASS ORDERS AS IT THINKS FIT AND THEREFORE, ITAT IS JUSTIFIED IN ENTERTAINING THE ORAL ARGUMENTS RAISE D DURING THE PROCEEDINGS BEFORE IT. 6. WE HEARD BOTH THE PARTIES AND PERUSED THE ORDER S OF THE LOWER AUTHORITIES AND THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2007-08 AND OTHER CASE-LAW RELI ED UPON BY THE PARTIES. ASSESSEES ARGUMENT THAT THE BENEFIT OF S .11 SHOULD BE GRANTED IN THE ALTERNATIVE, WITHOUT VERIFICATION OF CONDITI ONS SPECIFIED IN S.11 OF THE ACT, CANNOT BE ACCEPTED ON ITS FACE. IT IS AN U NDISPUTED FACT THAT THE ISSUE INVOLVED IN THE GROUNDS OF THIS APPEAL, WAS S UBJECT MATTER OF APPEAL BEFORE THE TRIBUNAL IN ASSESSEES OWN CASES FOR THE EARLIER YEARS AS NOTED ABOVE, BESIDES BY THE ORDERS OF THE TRIBUNAL IN SIM ILAR CASES. AS FOR THE SETTING ASIDE THE MATTER TO THE FILE OF THE ASSESSI NG OFFICER FOR VERIFICATION BEFORE GRANTING EXEMPTION, AS PRAYED FOR BY THE ASS ESSEE, IS CONCERNED, WE FIND THAT THE DIRECTIONS IN THAT BEHALF, ARE ALS O CONSISTENT WITH THE VIEW ITA NO.1893/HYD/2011 ST. LOUIS EDUCATIONAL SOCIETY, SECUNDERABAD. 5 TAKEN BY THE TRIBUNAL IN SIMILAR MATTERS, INCLUDING IN ASSESSEES OWN CASES FOR EARLIER YEARS EXCEPT 2005-06. FOR THE AS SESSMENT YEAR 2005- 06, THE TRIBUNAL, CONSIDERING THE GROUNDS RAISED BE FORE IT AND THE ISSUES INVOLVED BEFORE THE LOWER AUTHORITIES, DID NOT GIVE ANY DIRECTION WITH REGARD TO SUCH VERIFICATION BY THE ASSESSING OFFICE R BEFORE GRANTING EXEMPTION. 7. IT IS IN THAT CONTEXT, THE QUESTION THAT REMAI NS TO BE ADDRESSED IN THE PRESENT APPEAL IS THE ONE RAISED B Y THE ASSESSEE IN THE COURSE OF HEARING ON THIS APPEAL BEFORE US, AS TO W HETHER THE TRIBUNAL IS CORRECT IN SETTING ASIDE THE MATTER TO THE ASSESSIN G OFFICER FOR VERIFICATION, AND THUS ADJUDICATING ON AN ISSUE, WHICH IS NOT SPE CIFICALLY RAISED BY THE REVENUE IN THE GROUNDS OF THIS APPEAL. IT IS TRUE T HAT IN THE ORDER FOR ASSESSMENT YEAR 2005-06 DATED 26.12.2008 HAS NOT RE MITTED THE MATTER BACK TO THE FILES OF THE ASSESSING OFFICER. HOWEVE R, WE FIND THAT FOR THE SUBSEQUENT ASSESSMENT YEAR 2007-08 AND ALSO FOR THE ASSESSMENT YEARS 1999-2000 AND 2002-03, THE TRIBUNAL, VIDE ITS ORDER NOTED ABOVE, SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFIC ER FOR VERIFICATION AS TO THE FULFILMENT OF THE CONDITIONS MENTIONED IN S.11 TO 13, WITH REFERENCE TO COLLECTION OF CAPITATION FEE ETC. 8. NOTWITHSTANDING THIS POSITION AS TO THE CONSIS TENCY OF THE DIRECTIONS GIVEN BY THE TRIBUNAL FOR VERIFICATION B Y THE ASSESSING OFFICER, IN ASSESSEES OWN CASES AND ALSO IN SIMILAR CASES IN T HE RECENT PAST, WE ALSO DO NOT FIND MERIT IN THE LEGAL CONTENTION OF THE LE ARNED COUNSEL FOR THE ASSESSEE THAT ADJUDICATION BY THE TRIBUNAL SHOULD B E CONFINED TO THE GROUNDS RAISED IN THE APPEAL BEFORE IT AND CONSIDER ATION OF THE ASPECTS NOT SPECIFICALLY RAISED IN THE GROUNDS OF APPEAL, B Y THE TRIBUNAL, IS PROHIBITED. IT IS SETTLED POSITION OF LAW THAT IN TERMS OF S.254(1) OF THE ACT, THE TRIBUNAL, WITHOUT DEVIATING FROM THE SUBJE CT MATTER OF APPEAL, MAY CONSIDER ALL THE ASPECTS OF THE MATTER, WHETHER SPECIFICALLY COVERED ITA NO.1893/HYD/2011 ST. LOUIS EDUCATIONAL SOCIETY, SECUNDERABAD. 6 OR NOT BY THE GROUNDS RAISED IN THE APPEAL, PASS SU CH ORDERS AS IT MAY DEEM FIT FOR THE DISPOSAL OF THE APPEAL. IN SUPPORT OF THIS PROPOSITION, WE RELY ON THE FOLLOWING DECISIONS- (A) HUKUMCHAND MILLS LIMITED V/S. CIT(63 ITR 232)-SC (B) AHMEDABAD ELECTRICITY CO. LTD. V/S. CIT (199 ITRT 3 51)- BOM.(FB) (C) CIT V/S. MAHALAKSHMI TEXTILES MILLS LTD. (66 ITR 71 0)SC (D) TATA TELE-COMMUNICATIONS LTD. V/S. DCIT (121 ITD SB 384) (E) MORGAN ASSET MANAGEMENT INC. V/S. DCIT(39 DTR 240). IT IS NOTEWORTHY TO REFER TO THE OBSERVATIONS OF TH E MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF LINKLATERS LLP V/S. ITO(ITA NO.4896/MUM/03) FOR ASSESSMENT YEAR 1995-96, NOT CITED BY THE PARTIES B EFORE US, WHEREIN THE TRIBUNAL, AFTER REFERRING TO THE RATIO OF THE ABOVE DECISIONS AMONG OTHERS, AND ALSO REFERRING TO THE VARIOUS PROVISIONS OF LAW AND ITAT RULES, SUMMED UP THE SCOPE OF ADJUDICATION BY THE TRIBUNAL IN THE FOLLOWING MANNER- 32. IT IS NOTEWORTHY THAT, IN TERMS OF PROVIS ION OF RULE 11 OF THE APPELLATE TRIBUNAL RULES 1963, WHILE THE APPELLANT SHALL NOT, EXCEPT BY LEAVE OF THE TRIBUNAL, URGE OR BE HEARD IN SUPPORT OF ANY GROUND NOT SET FORTH IN THE MEMORANDUM OF APPEAL, THE TRIBUNAL, IN DECIDING THE APPEAL, SHALL NOT BE CONFINED TO THE GROUNDS SET FORTH IN T HE MEMORANDUM OF APPEAL OR TAKEN BY LEAVE OF THE TRIBUNAL UNDER THIS RULE. THE MANDATE OF THE RULE IS THUS CLEAR AND UNAMBIGUOUS. WHILE THERE ARE RESTRICTIONS ON THE APPELLANT AS TO THE ISSUES HE CAN RAISE IN THE APPEAL, THERE ARE NO RESTRICTIONS ON THE TRIBUNAL AS TO ON WHAT GROUNDS THE TRIBUNAL DECIDES THE APPEAL. THE ONLY RIDER IS, IN TERMS OF PROVISO TO RULE 11, THAT THE TRIBUNAL SHALL NOT REST ITS DECISION ON ANY OTHER G ROUND UNLESS THE PARTY WHO MAY BE AFFECTED THERE BY HAS HAD A SUFFICIENT O PPORTUNITY OF BEING HEARD ON THAT GROUND. IN EFFECT THUS, AS LONG AS A FFECTED PARTIES HAVE AN OPPORTUNITY OF HAVING BEEN HEARD ON THE GROUND ON W HICH APPEAL IS DECIDED, THE TRIBUNAL CAN DECIDE THE APPEAL ON ANY OF THE ISSUE WHETHER RAISED BY THE PARTIES OR NOT. IT IS ALSO IMPORTANT TO APPRECIATE THAT THE EXPRESSIONS SUBJECT MATTER OF APPEAL AND GROUNDS OF APPEAL CANNOT BE USED INTERCHANGEABLY AS THEY HAVE DISTINCT CONNOTAT IONS. WHILE THE TRIBUNAL CANNOT ENLARGE THE SCOPE OF SUBJECT MATTE R OF APPEAL INASMUCH AS A DISALLOWANCE NOT MADE BY ANY OF THE AUTHORITIE S BELOW CANNOT BE MADE BY THE TRIBUNAL, OR ANY ADDITION OF INCOME NOT MADE BY THE AUTHORITIES BELOW CANNOT BE MADE BY THE TRIBUNAL, B UT, WITHIN THE SUBJECT MATTER OF APPEAL, THE TRIBUNAL CAN EXAMINE ANY ASPE CT OF THE MATTER WHETHER THE SAME HAS BEEN EXAMINED BY THE AUTHORITI ES BELOW OR NOT. IT IS, THUS, NOT ONLY INVITATION OF THE PARTIES BUT AL SO ON ITS OWN THAT THE ITA NO.1893/HYD/2011 ST. LOUIS EDUCATIONAL SOCIETY, SECUNDERABAD. 7 TRIBUNAL CAN ADDRESS ITSELF TO AN ASPECT RELATED TO THE ISSUE IN APPEAL, EVEN THOUGH THE SAME MAY NOT HAVE BEEN SPECIFICALLY RAISED BY EITHER OF THE PARTIES. THE ONLY LIMITATION TO THIS POWER PERH APS IS THAT IT SHOULD NOT EXPAND THE SCOPE OF THE APPEAL IN TERMS OF THE INCO ME SOUGHT TO BE TAXED OR DISALLOWANCE SOUGHT TO BE MADE, AND THAT BOTH TH E PARTIES SHOULD HAVE ADEQUATE OPPORTUNITY OF BEING HEARD ON THIS ISSUE I N TERMS OF THE PROVISIONS OF RULE 11 OF THE APPELLATE TRIBUNAL RUL ES, 1963. THE DECISION OF THE JURISDICTIONAL HIGH COURT IN TH E CASE OF S.A. RAHIM (SUPRA) AND OTHER CASE LAW RELIED UPON BY THE LEARN ED COUNSEL FOR THE ASSESSEE ARE DISTINGUISHABLE ON FACTS AND IT HAS NO APPLICATION TO THE FACTS OF THE PRESENT CASE IN AS MUCH AS IN THE PRESENT CA SE THE DISPUTE IS CONFINED TO WHETHER THE TRIBUNAL HAS POWER TO DIREC T THE ASSESSING OFFICER TO VERIFY CERTAIN ASPECTS OF THE MATTER BEFORE ALLO WING THE CLAIM OF THE ASSESSEE, AND NOT TO ADJUDICATE IN RELATION TO AN A SPECT NOT HAVING ANY BEARING ON THE SUBJECT MATTER INVOLVED IN THE GROUN DS OF APPEAL. HENCE, WE ARE NOT INCLINED TO ACCEPT THE LEGAL CONTENTIONS OF THE ASSESSEE ON THIS ASPECT. 9. FURTHER, WE DO NOT FIND MERIT IN THE ARGUMENT OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE LATER ORDER OF TH E TRIBUNAL DATED 28.1.2011 FOR ASSESSMENT YEAR 2007-08 IS NOT A SPEA KING ORDER AND IN ANY EVENT, WE HAVE TO FOLLOW THE ORDER WHICH IS FAV OURABLE TO THE ASSESSEE. THE ARGUMENT OF THE ASSESSEE FOR NOT SE TTING ASIDE THE MATTR FOR VERIFICATION TO THE FILE OF THE ASSESSING OFFIC ER BASED ON THE RULE NO GROUND NO ADJUDICATION IS ALSO DEVOID OF THE MERIT , INASMUCH AS EVEN ORAL ARGUMENTS ADVANCED BY THE PARTIES IN THE COURSE OF HEARING, HAVE TO BE ENTERTAINED AND ADJUDICATED UPON BY THE TRIBUNAL AS LONG AS THE ARGUMENTS PUT FORTH DURING THE COURSE OF HEARING FA LLS WITHIN THE SCOPE OF SUBJECT MATTER OF APPEAL INVOLVED IN THE GROUNDS OF APPEAL. THIS LEGAL POSITION IS WELL SETTLED BY THE RATIO OF THE DECISI ONS NOTED AND DISCUSSED HEREINABOVE. FURTHER, WHEN THE TRIBUNAL HAS PASSED ITS ORDER DATED 28.1.2011 FOR THE ASSESSMENT YEAR 2007-08, IT HAS T WO EARLIER ORDERS OF THE TRIBUNAL BEFORE IT, AND WHEN IT HAS FOLLOWED ON E OF THEM, IT CANNOT BE ITA NO.1893/HYD/2011 ST. LOUIS EDUCATIONAL SOCIETY, SECUNDERABAD. 8 SAID EITHER THAT THE TRIBUNAL HAS NOT PASSED A SPEA KING ORDER OR HAS NOT APPLIED ITS MIND. 10. IN VIEW OF THE ABOVE DISCUSSION, CONSISTENT W ITH THE VIEW TAKEN BY THE COORDINATED BENCHES OF TRIBUNAL, IN SI MILAR MATTERS, INCLUDING IN ASSESSEES OWN CASES FOR EARLIER YEARS , AS DISCUSSED ABOVE, WE SET ASIDE THE IMPUGNED ORDER OF THE CIT(A) AND R ESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO VERIFY THE ASPECT OF DONATION, CAPITATION FEE ETC. IF ANY COLLECTED BY T HE ASSESSEE, AND FURTHER DIRECT THAT IF IT IS FOUND THAT BESIDES FULFILLING OTHER PREREQUISITES FOR EXEMPTION UNDER S.11, THE ASSESSEE HAS NOT CHARGED ANY MONEY BY WHATEVER NAME IT IS CALLED, I.E. DONATION, BUILDING FUND, AUDITORIUM FEE ETC, OVER AND ABOVE THE PRESCRIBED FEE FOR THE ADMI SSION OF STUDENTS, THE ASSESSEE WOULD BE ENTITLED FOR EXEMPTION UNDER S.11 , EVEN THOUGH THE NOTIFICATION UNDER S.10(23C)(VI) OF THE ACT HAVE NO T BEEN RECEIVED BY IT. WE DIRECT ACCORDINGLY. 11. IN THE RESULT, REVENUES APPEAL IS PARTLY ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 15.6.2012 SD/- SD/- (SAKTIJIT DEY) (D.KARUNAKARA RAO) JUDICIAL MEMBER. ACCOUNTANT MEMBER. DT/- 15TH JUNE, 2012 COPY FORWARDED TO: 1. 2. 3 ST. LOUIS EDUCATIONAL SOCIETY, 222 - B, WEST MARREDPALLY, SECUNDERABAD. ASSTT. DIRECTOR OF INCOME-TAX(EXEMPTION) II, HYDERA BAD COMMISSIONER OF INCOME-TAX(APPEALS) IV, HYDERABAD ITA NO.1893/HYD/2011 ST. LOUIS EDUCATIONAL SOCIETY, SECUNDERABAD. 9 4. COMMISSIONER OF INCOME - TAX III , HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD B.V.S.