DDIT, Hyderabad V. Agarwal Siksha Samithi, Hyderabad

ITA 279/HYD/2007

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7517 (ITAT-HYDERABAD)
• Duration Of Justice: 5 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 19-05-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 15-02-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K E SUNIL BABU
• Assessee Lawyers: S RAMA RAO
• Section: 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER. ITA NO.279/HYD/2007 (ASSESSMENT YEAR 2003- 04) ASTT. DIRECTOR OF INCOME- TAX(EXEMPTION), HYDERABAD V/S AGARWAL SIKSHA SAMITHI, HYDERABAD (PAN - AAATA 5372 R ) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.E.SUNIL BABU RESPONDENT BY : SHRI S.RAMA RAO DATE OF HEARING 5 3.2012 DATE OF PRONOUNCEMENT 7.3.2012 O R D E R PER D.KARUNAKARA RAO, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YE AR 2003-04 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER O F INCOME-TAX(APPEALS) IV, HYDERABAD, DATED 15.12.2006. 2. REVENUE IS AGGRIEVED AGAINST THE ORDER OF THE C OMMISSIONER OF INCOME-TAX(APPEALS) ON ACCOUNT OF THE RELIEF GRA NTED BY THE CIT(A) TO THE ASSESSEE, WHEN THE ASSESSEE FAILED TO OBTAIN TH E APPROVAL UNDER S.10(23)(C)(VIA) OF THE ACT, WHICH IS MANDATORY. 3. AT THE VERY OUTSET, THE LEARNED COUNSEL FOR TH E ASSESSEE MENTIONED THAT THE ISSUE INVOLVED IN THIS APPEAL HA S TO BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER IN TUNE WITH THE DIRE CTIONS OF THE TRIBUNAL ISSUED IN ASSESSEES OWN CASE FOR THE ASSESSMENT YE AR 2006-07 IN ITA NO.1199/HYD/2009, WHERE ON IDENTICAL ISSUE, THE TR IBUNAL, VIDE ITS ORDER DATED 20.1.2011, SET ASIDE THE ISSUE IN DISPUTE TO THE FILE OF THE ITA NO.279/HYD/07 AGARWAL SIKSHA SAMITHI, HYDERABAD 2 ASSESSING OFFICER RELYING ON THE STILL EARLIER ORDE R OF THE TRIBUNAL DATED 29.1.2009 IN THE CASE OF VASAVI ACADEMY OF EDUCATIO N IN ITA NO.1120/HYD/2009. 4. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REP RESENTATIVE, RELIED ON THE ORDER OF THE ASSESSING OFFICER. 5. WE HEARD BOTH THE PARTIES AND FIND THAT IN ASSE SSEES OWN CASE FOR THE ASSESSMENT YEAR 2006-07, THE MATTER WA S SET ASIDE TO THE FILE OF THE ASSESSING OFFICER, BY THE TRIBUNAL, VID E ITS ORDER DATED 29.1.2011, FOLLOWING THE STILL EARLIER ORDER OF THE TRIBUNAL IN THE CASE OF VASAVI ACADEMY OF EDUCATION, AS NOTED ABOVE. IN TH IS REGARD, WE PERUSED THE RELEVANT PARAS, VIZ. 3 AND 4 OF THE SAI D ORDER IN ASSESSEES OWN CASE DATED 20.1.2011, AND THE SAME ARE REPRODUC ED HEREUNDER FOR THE SAKE OF COMPLETENESS OF THIS ORDER- 3. AT THE TIM E OF HEARING ON 20.1.2011 NONE APPEARED ON BEHALF OF THE ASSESSEE. WE HEARD THE LEARNED DEPAR TMENTAL REPRESENTATIVE AND DECIDED THE ISSUE ON MERIT. W E ARE OF THE OPINION THAT THIS ISSUE HAS ALREADY BEEN DECIDED BY THE TRIBUNAL VIDE ITS ORDER DATED 29.1.2009 IN THE CASE FO M/S. VASAVI ACADEMY EDUCATION FOR THE ASSESSMENT YEARS 2005-06 IN ITA NO.1120/HYD/2009 BY HOLDING AS FOLLOWS: 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBM ITTED THAT THIS ISSUE COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF T HE HYDERABAD BENCH A OF THE TRIBUNAL DATED 15.4.2009 IN ASSESSEES OWN CASES IN ITA NO.1133/HYD/2006 FOR TH E ASSESSMENT YEAR 2003-04 AND ORDER DATED 17.4.2009 I N ITA NO.1206/HYD/2007 FOR THE ASSESSMENT YEAR 2004-05. HOWEVER, WE FIND THAT THE CONSTITUTIONAL BENCH OF A PEX COURT IN THE CASE OF T.M.A.PAI FOUNDATION AND OTHER S VS. STATE OF KARNATAKA & OTHERS (2002 ) 8 SCC 481 EXAMI NED THE ISSUE OF COLLECTION OF CAPITATION FEES FOR THE ADMISSION OF STUDENTS OVER AND ABOVE FEES PRESCRIBED BY THE PRIV ATE INSTITUTIONS AND HELD THAT THE INSTITUTION WHICH WA RE COLLECTING CAPITATION FEES FOR ADMISSION OF STUDENT S OVER AND ABOVE THE FEES PRESCRIBED CANNOT BE CONSTRUED AS CHARITABLE/EDUCATIONAL INSTITUTION. APE COURT FURTH ER OBSERVED THAT THE FEES COLLECTED OVER AND ABOVE THE PRESCRIBED FEE FOR ADMISSION OF THE STUDENT HAS TO BE CONSTRUED AS CAPITATION FEE. THE APEX COURT FURTHER ITA NO.279/HYD/07 AGARWAL SIKSHA SAMITHI, HYDERABAD 3 OBSERVED THAT THE CONCERNED UNIVERSITY AND REGULATE D BODY HAS TO TAKE ACTION FOR WITHDRAWAL OF THE RECOGNITIO N IN CASE IT IS FOUND THAT THE EDUCATIONAL INSTITUTION RECEIV ED ANY MONEY OVER AND ABOVE THE FEES PRESCRIBED FOR THE CO URSES. SAME VIEW WAS TAKEN BY APEX COURT IN THE CASE OF IS LAMIC ACADEMY OF EDUCATION AND ANOTHER VS. STATE OF KARNA TAKA & ANOTHER (2003) 6 SCC 697. IF THE DONATIONS WERE RE CEIVED COMPULSORILY FOR ADMISSION OF STUDENTS, THE ASSESSE E IS NOT ENTITLED FOR EXEMPTION EITHER U/S. 10(23C) OR U/S. 11 OF THE IT ACT. SINCE THE LOWER AUTHORITIES WERE NOT EXAMI NED THE COLLECTION OF CAPITATION FEES IN THIS CASE, IN OUR OPINION, THE MATTER REQUIRES TO BE EXAMINED BY THE ASSESSING OFF ICER WHETHER THE ASSESSEE IS COLLECTING THE CAPITATION F EES FROM STUDENTS OR NOT AND IT IS NECESSARY FOR BRINGING TH E ACTUAL FACTS ON RECORD FOR DECIDING THE ISSUE EFFECTIVELY. SIMILAR VIEW WAS TAKEN BY US IN THE CASE OF M/S. JAMIA NIZA MIA IN ITA NO.763/HYD/2007 DATED 30.6.2008, IN THE CASE OF INTERNATIONAL EDUCATIONAL ACADEMY, HYDERABAD IN ITA NO.494/HYD/2007 AND 518/HYD/29008 FOR THE ASSESSMEN T YEARS 2002-03 AND 2004-05 AND SRI SAI SUDHIR EDUCAT IONAL SOCIETY, HYDERABAD IN ITA NO.999/HYD/2006 FOR THE ASSESSMENT YEAR 2003-04. THEREFORE, WE SET ASIDE T HE ORDERS OF THE LOWER AUTHORITIES AND REMIT BACK THE MATTER TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO A SSESSING OFFICER THAT HE SHALL RECONSIDER THE ENTIRE ISSUE I N THE LIGHT OF JUDGMENT OF SUPREME COURT IN THE CASE OF M/S. I SLAMIC ACADEMY OF EDUCATION & ANOTHER V/S. STATE OF KARNAT AKA AND ANOTHER ((SUPRA), AND IN THE CASED OF T.M.A.PAI FOUNDATION AND OTHERS V/S. STATE OF KARNATAKA AND O THERS (SUPRA), AND FIND OUT WHETHER THE ASSESSEE HAS RECE IVED ANY MONEY OVER AND ABOVE THE FEES PRESCRIBED AND THEREA FTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTE R GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. W E MAKE IT CLEAR THAT THE ASSESSEE IS NOT ENTITLED FOR EXEM PTION EITHER U/S. 11 OR U/S. 10(23C) IN CASE IT COLLECTED ANY MO NEY BY WHATEVER NAME IT IS CALLED I.E. DONATION, BUILDING FUND, AUDITORIUM FUND ETC. ETC., OVER AND ABOVE THE PRESC RIBED FEE FOR ADMISSION OF STUDENTS. 4. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 4. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY T HE TRIBUNAL IN THE ABOVE ORDER, WE SET ASIDE THE ISSUE IN DISPUTE TO THE FILE OF THE ASSESSING OFFICER ON SIMILAR DIRECT ION FOR FRESH CONSIDERATION. CONSIDERING THE ABOVE, WE ARE OF THE OPINION THAT T HE ISSUE INVOLVED IN THE PRESENT APPEAL SHOULD ALSO BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER WITH IDENTICAL DIRECTIONS. WE DO SO ACCORDI NGLY. GROUNDS OF THE REVENUE IN THIS APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NO.279/HYD/07 AGARWAL SIKSHA SAMITHI, HYDERABAD 4 6. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 7.3.2012 SD/- SD/- (SAKTIJIT DEY) (D.KARUNAKARA R AO ) JUDICIAL MEMBER. ACCOUNTANT MEMBER. DT/- 7TH MARCH, 2012 COPY FORWARDED TO: 1. AGARWAL SIKSHA SAMITHI, 21-1-823, PATHERGATTI, H YDERABAD 2. DY. DIRECTOR OF INCOME - TAX(EXEMPTION) - I HYDERABAD 3. 4. COMMISSIONER OF INCOME - TAX(APPEALS)I V HYDERABAD COMMISSIONER OF INCOME-TAX III, HYDERABAD 5 . THE DEPARTMENTAL REPRESENTATIVE, ITAT HYDERABAD B.V.S.