ITO-3(3), Lucknow V. Regional Centre for Urban, Lucknow

ITA 367/LKW/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54818 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-12-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 23-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B : LUCKNOW BEFORE SHRI S. K. YADAV, JUDICIAL MEMBER AND SHRI B. R. JAIN, ACCOUNTANT MEMBER I.T.A. NO.367/LKW/11 ASSESSMENT YEAR:2007 - 2008 INCOME TAX OFFICER - 3(3), VS. REGIONAL CENTRE FOR URBAN LUCKNOW. AND ENVIRONMENTAL STUDY, REGISTRAR OFFICE, LUCKNOW UNIVERSITY, LUCKNOW. PAN: AABTR1550R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P. K. BAJAJ, SR. D. R. RESPONDENT BY : NONE DATE OF HEARING :1 9 /12/2011 DATE OF PRONOUNCEMENT : 28/12/2011 ORDER PER B. R. JAIN: THIS APPEAL BY REVENUE IS AGAINST THE ORDER DATED 1 7 /0 3 /2011 OF LEARNED CIT(A) - I, LUCKNOW BY RAISING FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN LAW IN ALLOWING THE EXEMPTION U/S 10(23C)(IIIAB) OF THE I.T. ACT, 1961 THOUGH NEITHER THE ASSESSEE IS EXISTING SOLELY FOR EDUCATIONAL PURPOSES NOR WHOLLY OR SUBSTANTIALLY FINANCED BY THE GOVERNMENT DURING THE PERIOD. 2. APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY ONE OR MORE OF THE GROUNDS OF APPEAL, AS STATED ABOVE, AS AND WHEN NEED OF DOING SO ARISES WITH PRIOR PERMISSION OF THE HON'BLE BENCH. 2 2. BRIEFLY, THE FACTS ARE THAT THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO PRODUCE EVIDENCE OF CLAIMING EXEMPTION U/S 10(23C)(IIIAB) OF THE ACT FOR ` 1,43,76,613/ - . THE GROSS RECEIPTS OF THE ASSESSEE ARE ` 13,97,74,004/ - . SINCE THE ASSESSEE DID NOT PRODUCE ANY EVIDENCE TO SUPPORT THE CLAIM OF EXEMPTION, THE ASSESSING AUTHORITY DISALLOWED THE CLAIM AND COMPLETED ASSESSMENT AT AN INCOME OF ` 1,43,76,613/ - AS AGAINST NIL INCOME DECLARED BY THE ASSESSEE. 3. THE LEARNED CIT(A), HOWEVER, TOOK A VIEW THAT THE ASSESSING OFFICER HAS NOT GIVEN ANY FINDING OF FACT THAT APPELLANT HAD EMBARKED UPON ANY ACTIVITIES OTHER THAN EDUCATION WHEREAS THE APPELLANT IS STATED TO HAVE FURNISHED DETAILS AND REPLIES, THE FACTUAL CORRECTNESS OF WHICH HAS NOT BEEN QUESTIONED BY THE ASSESSING OFFICER. EVEN THE FACT AS TO WHETHER OR NOT THE APPELLANT INSTITUTION WAS W HOLLY OR SUBSTANTIALLY FINANCED BY THE GOVERNMENT WAS AVAILABLE FOR VERIFICATION BY THE ASSESSING OFFICER BUT THIS FACT, HOWEVER, HAS NOT BEEN DISPUTED BY HIM. HE, THEREFORE, OPINED THAT THE EVIDENCE WHICH WOULD HAVE ENABLED THE ASSESSING OFFICER TO EXAMI NE THE ELIGIBILITY FOR EXEMPTION AND HOW AND WHAT FURTHER EVIDENCE WAS ACCEPTED OR CONTEMPLATED HAVING NOT BEEN SPELT OUT, FOUND NO CONCRETE REASON IN REJECTING THE ASSESSEES CLAIM FOR EX EMPTION . HE, THEREFORE, SET ASIDE THE DECISION TAKEN BY THE ASSESSI NG AUTHORITY IN THAT RESPECT AND ALLOWED THE APPEAL OF THE ASSESSEE. 4. WE HAVE HEARD LEARNED D.R. EX - PARTE QUA ASSESSEE. SECTION 10(23C)(IIIAB) READ WITH THE SCHEME OF THE ACT REVEALS THAT ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION WHICH EXISTS SOL ELY FOR EDUCATIONAL PURPOSES AND IS WHOLLY OR SUBSTANTIALLY FINANCED BY THE GOVERNMENT REQUIRES NO APPROVAL FROM THE 3 CHIEF COMMISSIONER OF INCOME - TAX OR COMMISSIONER OF INCOME - TAX FOR CLAIMING EXEMPTION UNDER THAT SECTION. IT, THEREFORE, IS IMPERATIVE TO FIND OUT THAT THE ESSENTIALS OF SECTION 10(23C)(IIIAB) ARE DULY SATISFIED BEFORE ANY SUCH EXEMPTION IS ALLOWED TO THE ASSESSEE. NEITHER THE ASSESSING AUTHORITY NOR THE LEARNED CIT(A) HIMSELF HAVE RECORDED ANY FINDING OF FACT AS TO WHETHER THE ASSESSEES I NSTITUTION EXISTS SOLELY FOR EDUCATIONAL PURPOSES AND THAT IT IS WHOLLY OR SUBSTANTIALLY FINANCED BY THE GOVERNMENT. WE, THEREFORE, SET ASIDE THE ORDER OF LEARNED CIT(A) AND REMIT THE MATTER BACK TO THE ASSESSING AUTHORITY FOR RECORDING A FINDING OF FACT ON THE AFORESAID ESSENTIALS OF SECTION 10(23C)(IIIAB) OF THE ACT AND TAKE DECISION AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE AND EFFECTIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES ONLY. (THE ORDER PRONOUNCED IN THE OPEN COURT ON 28/12/2011 ) SD/. SD/. ( S. K. YADAV ) ( B. R. JAIN ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28/12/2011 *SINGH 27 12 COPY FORWARDED TO THE: 1. APPELLANT. 2. RESPONDENT. 3. CIT (A) 4. CIT 5. DR. ASSISTANT REGISTRAR