ITO, Ludhiana V. Shri Bala Ji Prem Ashram and Nikil Vidyalaya, Ludhiana

ITA 380/CHANDI/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1628 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 30-04-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 11-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK MONGIA
• Keywords: Benefit of exemption
• Section: 12A; 6; 12; 10; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI H.L.KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO.318/CHD/2013 (ASSESSMENT YEAR : 2009-10) AND ITA NO.380/CHD/2014 (ASSESSMENT YEAR : 2010-11) THE INCOME TAX OFFICER, VS. SHRI BALAJI PREM ASHRAM & WARD VI(3) NIKHIL VIDYALAYA, THAKUR COLONY, LUDHIANA. NEAR STERLING RESORT, PAKHOWAL ROAD, LUDHIANA. PAN: AAAHTS6196C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIVEK MONGIA RESPONDENT BY : S/SHRI SUDHIR SEHGAL & ASHOK GOYAL DATE OF HEARING : 18.09.2015 DATE OF PRONOUNCEMENT : 27.10.2015 O R D E R PER RANO JAIN, A.M . : THESE TWO APPEALS FILED BY THE REVENUE ARE DIR ECTED AGAINST THE SEPARATE ORDERS OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I, LUDHIANA DATED 4.1.2013 AND 28.2.2014 FOR ASSESSMENT YEARS 2009-10 AND 2010-11 RESPECTIVELY. 2 ITA NO.318/CHD/2014 : 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE AS SESSEE HAD EXCESS OF INCOME OVER THE EXPENDITURE AMOUNTING TO RS.32,52,148/- ON WHICH THE EXEMPTION HAD BEEN CLAI MED IN THE RETURN OF INCOME WITHOUT SPECIFYING THE SECTION THEREOF. ALONGWITH THE RETURN, THE ASSESSEE HAD ALSO FILED A UDIT REPORT UNDER SECTION 12A(B) OF THE INCOME TAX ACT, 1961 (I N SHORT THE ACT). THE ASSESSING OFFICER OBSERVED THAT TH E ASSESSEE HAD BEEN GRANTED REGISTRATION UNDER SECTION 12A OF THE ACT VIDE ORDER DATED 26.5.2011, WHICH WAS MEANT FOR AS SESSMENT YEAR 2009-10 ONWARDS, THEREFORE, THE ASSESSEE WAS N OT ELIGIBLE FOR EXEMPTION UNDER SECTION 11 OF THE ACT IN THE RE LEVANT ASSESSMENT YEAR. ON BEING CONFRONTED BY THE ASSES SING OFFICER, THE SUBMISSION OF THE ASSESSEE WAS THAT TH E SOCIETY WAS RUNNING A SCHOOL AND THE RECEIPTS OF THE SAME W ERE BELOW RS.1 CRORE. THEREFORE, IT WAS ELIGIBLE FOR EXEMPT ION UNDER SECTION 10(23C)(IIIAD) OF THE ACT. HOWEVER, THE AS SESSING OFFICER DID NOT AGREE WITH THE SAID SUBMISSION OF T HE ASSESSEE. HE WAS OF THE VIEW THAT THE TRUST DEED OF THE ASSES SEE SHOWED THAT IT HAD OBJECTS WHICH WERE NOT RESTRICTED TO AD VANCEMENT OF EDUCATION ALONE AND, THEREFORE IT COULD BE SAID THAT IT IS NOT EXISTING SOLELY FOR THE PURPOSES OF EDUCATION. HE FURTHER OBSERVED THAT FOR CLAIMING EXEMPTION UNDER SECTION 10(23C)(IIIAD) OF THE ACT AS PER RULE 16CC OF THE I NCOME TAX RULES, AUDIT REPORT IN FORM NO.10BB IS REQUIRED TO BE FURNISHED UNDER THE TENTH PROVISO TO CLAUSE (23C) O F SECTION 10 ALONGWITH RETURN OF INCOME WHICH WAS NOT FILED B Y 3 THE ASSESSEE. IN THIS WAY, THE ASSESSING OFFICER HELD THAT THE ASSESSEE WAS NOT ELIGIBLE FOR EXEMPTION EITHER UNDE R SECTION 11 OR EVEN UNDER SECTION 10(23C)(IIIAD) OF THE ACT. 3. FURTHER, THE ASSESSING OFFICER ASKED THE ASSES SEE TO FILE PARTICULARS OF ALL DONATIONS/GRANTS/CONTRIBUTI ONS RECEIVED IN EXCESS OF RS.5000 GIVING THEREIN NAME AND ADDRES S OF THE DONOR, DATE OF DONATION, AMOUNT OF DONATION AND MO DE OF RECEIPT. HOWEVER, THE ASSESSEE EXPRESSED ITS INAB ILITY TO PROVIDE SUCH DETAILS. IN VIEW OF THIS, THE ASSESS ING OFFICER HELD THAT EVEN OTHERWISE IN VIEW OF THE PROVISO TO SECTION 10(23C) OF THE ACT ANONYMOUS DONATIONS REFERRED TO IN SECTION 115BBC ON WHICH TAX IS PAYABLE IN ACCORDANCE WITH T HE PROVISIONS OF THE SAID SECTION ARE TO BE INCLUDED I N THE TOTAL INCOME OF THE ASSESSEE. 4. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICE R, THE ASSESSEE WENT IN APPEAL BEFORE THE LEARNED CIT (APP EALS) AND SUBMITTED THAT THE ASSESSEE TRUST IS RUNNING SCHOOL AND RECEIPTS OF THE TRUST ARE BELOW RS.1 CRORE AND AS S UCH, EXEMPTION UNDER SECTION 10(23C)(IIIAD) OF THE ACT M AY BE ALLOWED TO THE ASSESSEE. IN THIS RESPECT, REFEREN CE TO THE BOARDS CIRCULAR NO.14(XL-35) DATED 11.4.1955 WAS M ADE. FURTHER WITH REGARD TO EXEMPTION UNDER SECTION 10(2 3C)(IIIAD) OF THE ACT, IT WAS SUBMITTED THAT NO EXEMPTION UNDE R SECTION 10(23C)(IIIAD) OF THE ACT CAN BE DENIED TO THE ASSE SSEE JUST ON THIS GROUND THAT MULTIPLE OBJECTS ARE INCLUDED IN T HE TRUST DEED. IT WAS STATED THAT IT IS NOT THE ENTIRETY O F THE INCOME OF THE RECIPIENT BUT ONLY THE INCOME FROM EDUCATION AL 4 INSTITUTION THAT COMES WITHIN THE PURVIEW OF THE EX EMPTION. IT IS THUS CLEAR THAT IF THE INCOME OF ANY PERSON FALL S IN CLAUSE COVERED BY CLAUSE (23C) OF SECTION 10 OF THE ACT, T HEN SUCH INCOME IS NOT INCLUDIBLE IN THE TOTAL INCOME OF THA T PERSON. THE EXEMPTION UNDER SECTION 10(23C)(IIIAD) OF THE A CT IS NOT TO BE SEEN QUA THE ASSESSEE BUT RELEVANT TO THE ACTIVI TY OF EDUCATIONAL INSTITUTION BEING CARRIED OUT BY AN ASS ESSEE. THE ASSESSEE TRUST IN THE CURRENT YEAR HAS CONSTRUCTED THE BUILDING FOR THE SCHOOL AND NO OTHER INCOME OTHER T HAN EDUCATIONAL INCOME WAS INCLUDED IN THE INCOME AND EXPENDITURE ACCOUNT. WHEN NO OTHER OBJECTS WERE O PERATIONAL IN THE YEAR AND EVEN IF OTHER ACTIVITY OF THE TRUST MAY BE CARRIED OUT AT ANY TIME IN FUTURE YEARS, THE ASSESS EE WOULD BE PREPARING SEPARATE ACCOUNTS AND RECORDS FOR THE SAM E. RELIANCE WAS PLACED ON THE FOLLOWING JUDGMENTS : I) BIRLA VIDHYA VIHAR TRUST VS. CIT(1982)136 ITR 4 45(CAL-HC) II) CIT VS ST.XAVIERS(1990) 184 ITR 284(PAT) III) DIRECTOR OF IT(EXEMPTION) VS.INSTITUTE OF FRANCIS CAN CLARIST SISTER OF THE MOST BLESSED SACRAMENT (2005) 196 CTR (DEL)582. IV) CIT VS. VIDYA VIKAS VIHAR(2004)265 ITR 489(BOM ) V) U.S SRIVASTAVA EDUCATIONAL MEMORIAL SOCIETY VS. ASSTT.CIT(2004)82ITJ(LUCK-TRIB)471. VI) DIGEMBER JAIN SOCIETY FOR CHILD WELFARE VS.DIR ECTOR GENERAL OF INCOME TAX(EXEMPTIONS). VII) CIT VS ST.MARY'S MALANKARA SEMINARY. VIII) ITO VS. BABA DHALL EDUCATIONAL SOCIETY OF IND IA(2009) 27 SOT 391(DEL)(ITAT-F.BENCH) 5 5. AFTER HEARING THE ASSESSEE AT LENGTH, THE LEARN ED CIT (APPEALS) RELYING ON THE JUDGMENTS CITIED BY THE AS SESSEE ALLOWED THE APPEAL OF THE ASSESSEE ON THE BASIS THA T THE ASSESSEE TRUST IS CARRYING OUT ONLY EDUCATIONAL ACT IVITIES DURING THE YEAR AND SINCE THE RECEIPTS DURING THE Y EAR ARE BELOW RS.1 CRORE, IT IS ELIGIBLE FOR EXEMPTION UNDE R SECTION 10(23C)(IIIAD) OF THE ACT. ON THE ISSUE OF FILING OF AUDIT REPORT, THE LEARNED CIT (APPEALS) OBSERVED THAT THE AUDIT REPORT IN FORM NO.10B OF THE ACT IS NOT REQUIRED TO BE FILED IN RESPECT OF ASSESSEES CLAIM OF EXEMPTION UNDER SECT ION 10(23C)(IIIAD) OF THE ACT. IN VIEW OF THESE FINDI NGS, THE LEARNED CIT (APPEALS) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. 6. AGGRIEVED BY THE SAID ORDER OF THE LEARNED CIT (APPEALS), THE DEPARTMENT HAS COME UP IN APPEAL BEF ORE US RAISING THE FOLLOWING GROUNDS OF APPEAL : 1. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION M ADE BY THE ASSESSING OFFICER AND GRANTING EXEMPTION U/ S 10 (23C) (IIIAD) OF THE I.T. ACT, 1961 AS THE ASSESSEE TRUST DID NOT FULFILL THE CONDITION FOR CLAIMING EXEMPTION AS THE TRUST WAS NOT EXISTING SOLELY FOR EDUCATION PUPOSES, AS R EQUIRED TO CLAIM EXEMPTION U/S 10 (23 C) (IIIAD), BUT FOR OTHER PURPOSES ALSO AS PER THE AIMS AND OBJECTS OF THE TR UST DEED. 2. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER AS THE ASSESSEE HAS FAILED TO FILE AUDIT REPORTINFORMNO.10BBREQUIRED TO BE FURNISHED U NDER THE 10 PROVISO TO CLAUSE (23C) OF SECTION 10 6 ALONG WITH RETURN OF INCOME FOR CLAIMING EXEMPTION U/S 10 (23 C)(IIIAD), AS PER RULE 16CC OF I.T. RULE 1962. 3. THE LD. CIT(A) HAS ERRED IN NOT DIRECTING THE ASS ESSING OFFICER TO CHARGE TAX U/S 115BBC(1) OF THE I.T. ACT ON DONATIONS RECEIVED BY THE TRUST AS THEASSESSEE HAS NOT PRODUC ED THE RECORDS OF THE IDENTITY INDICATING THE NAME AND ADD RESS OF THE DONORS. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GROUND OF APPEAL BEFORE IT IS FINALLY DISPOSED OFF. 7. THE LEARNED D.R. WHILE ARGUING BEFORE US RELIED UPON THE ORDER OF THE ASSESSING OFFICER. HIS MAIN ARGU MENT WAS THAT THE ASSESSEE ITSELF HAS NOT CLAIMED EXEMPTION UNDER SECTION 10(23C)(IIIAD) OF THE ACT WHILE FILING ITS RETURN OF INCOME AND IN FACT IT INTENDING TO AVAIL EXEMPTION UNDER SECTION 11 OF THE ACT. NOT HAVING THE REGISTRATION UNDER SECTION 12A OF THE ACT, NEITHER EXEMPTION UNDER SEC TION 10(23C) NOR SECTION 11 OF THE ACT IS AVAILABLE TO T HE ASSESSEE. IT WAS STRESSED BEFORE US THAT THE ASSESSEE HAD FIL ED REPORT IN FORM NO.10B OF THE ACT ALONGWITH RETURN OF INCOME, WHICH GOES TO PROVE THAT THE ASSESSEE INTENDED TO CLAIM E XEMPTION UNDER SECTION 11 OF THE ACT WHILE IT WAS NOT HAVING REGISTRATION UNDER SECTION 12A OF THE ACT. IN THI S VIEW, IT WAS PRAYED THAT THE ORDER OF THE ASSESSING OFFICER BE CONFIRMED. 8. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES. OUR ATTENTION WAS INVITED TO THE TRUST DEED, WHEREBY ONE OF THE O BJECTS OF THE SOCIETY OF THE ASSESSEE WAS TO RUN SCHO OLS, COLLEGES, 7 LIBRARY, GOWSHALA, VRIDHASHRAM, STAY HOME, REHABILI TATION CENTERS AND DISPENSARY, ETC. FOR DISTRESSED GENERAL MASSES. THIS WAS SHOWN TO US TO EMPHASIZE THE FACT THAT THE RUNNING OF EDUCATIONAL INSTITUTION IS ONE OF THE OBJECTS OF THE ASSESSEE TRUST. IT WAS STATED THAT DURING THE YEAR 2009-10 , THE ASSESSEE HAD CONSTRUCTED SCHOOL AND DURING THE YEAR 2010-11, THE ASSESSEE HAD STARTED EDUCATIONAL ACTIVITIES. N O OTHER ACTIVITY HAD BEEN CARRIED OUT BY THE ASSESSEE DURIN G THE YEAR. RELIANCE WAS PLACED ON A NUMBER OF JUDGMENTS TO THE EFFECT THAT EVEN IF THE ASSESSEE INTENDED TO CLAIM EXEMPTI ON UNDER SECTION 11 OF THE ACT WHILE FILING ITS RETURN OF IN COME, IT WAS NOT AVAILABLE TO IT DUE TO THE LACK OF REGISTRATION UNDER SECTION 12A OF THE ACT, THE EXEMPTION AVAILABLE TO IT UNDER SECTION 10(23C)(IIIAD) OF THE ACT CANNOT BE DENIED IF IT FU LFILLS ALL THE REQUIREMENTS OF THE SAID SECTION. ON THE ISSUE OF FILING OF AUDIT REPORT AS REQUIRED BY TENTH PROVISO TO CLAUSE (23C) OF SECTION 10 OF THE ACT, IT WAS SUBMITTED THAT THE RE QUIREMENT OF FILING SUCH AUDIT REPORT IS ONLY FOR INSTITUTIONS C OVERED BY CLAUSE (IV)(V)(VI) AND (VIA) OF SECTION 10(23C) OF THE ACT. SINCE THE ASSESSEE IS CLAIMING EXEMPTION UNDER SECTION 10(23C)(IIIAD) OF THE ACT, THERE IS NO SUCH REQUIRE MENT. FURTHER, OUR ATTENTION WAS INVITED TO THE REMAND RE PORT DATED 9.2.2014 FILED BY THE ASSESSING OFFICER TO THE LEAR NED CIT (APPEALS) DURING THE APPELLATE PROCEEDINGS FOR ASSE SSMENT YEAR 2010-11, WHEREBY THE ASSESSING OFFICER HAD PHY SICALLY VERIFIED THE EDUCATIONAL ACTIVITY OF THE ASSES SEE, SPECIALLY 8 MENTIONING THAT THE ASSESSEE IS RUNNING THE SCHOOLS FOR EDUCATING THE DEAF, DUMB, MENTALLY RETARDED AND POO R STUDENTS APPROXIMATELY 252 IN NUMBERS. IN THIS VI EW, IT WAS PRAYED THAT THE ASSESSEE BE HELD TO BE ELIGIBLE FOR EXEMPTION UNDER SECTION 10(23C)(IIIAD) OF THE ACT. 9. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BO TH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSESSEE SOCIETY DOE S NOT POSSESS REGISTRATION UNDER SECTION 12A OF THE ACT F OR RELEVANT ASSESSMENT YEAR. FROM THE PERUSAL OF RETURN FILED BY IT ALONGWITH FORM NO.10B SHOWS THAT IT INTENDED TO CLA IM EXEMPTION UNDER SECTION 11 OF THE ACT, WHICH IT COU LD NOT, SINCE IT DID NOT HAVE REGISTRATION UNDER SECTION 12 A OF THE ACT AT THAT TIME. HOWEVER, IT CAN CLAIM EXEMPTION UND ER ANY OTHER PROVISION OF THE ACT PROVIDED IT SATISFIES A LL THE CONDITIONS GIVEN IN THAT PROVISION. UNDER SECTION 10(23C)(IIIAD) OF THE ACT, ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION EXISTING SOLELY FOR EDUCATIONAL PURPOSE S AND NOT FOR PURPOSES OF PROFIT IF THE AGGREGATE ANNUAL REC EIPTS OF SUCH UNIVERSITY OR EDUCATIONAL INSTITUTION DO NOT EXCEED THE AMOUNT OF RS.1 CORE CAN AVAIL OF THIS EXEMPTION. UNDOUB TEDLY, THE ANNUAL RECEIPT DURING THE RELEVANT ASSESSMENT YEAR OF THE ASSESSEE DOES NOT EXCEED RS.1 CRORE. THE ONLY ISS UE TO BE SEEN IS WHETHER THE ASSESSEE IS EXISTING SOLELY FOR EDUCATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROFIT. SINCE THE 9 ASSESSEE HAS BEEN GRANTED REGISTRATION UNDER SECTIO N 12A OF THE ACT IN THE FUTURE AS ON 26.5.2011, IT CANNOT B E DENIED THAT IT DID NOT EXIST FOR EARNING OF PROFITS. NOW , THE ONLY QUESTION IS WHETHER THE ASSESSEE IS EXISTING WHOLLY FOR EDUCATIONAL PURPOSES. NO DOUBT, THE ASSESSEE HAS ONE OF ITS OBJECTS THE EDUCATION ACTIVITIES AS DISCUSSED HEREI NABOVE. FROM THE PERUSAL OF BALANCE SHEET AND OTHER PAPERS FILED IN THE PAPER BOOK, IT IS SEEN THAT THE ONLY ACTIVITY C ARRIED ON BY THE ASSESSEE DURING THE YEAR IS RELATING TO THE EDU CATION ONLY. THE FACT OF EDUCATIONAL ACTIVITIES BEING CARRIED OU T BY THE ASSESSEE HAS BEEN CONFIRMED BY THE ASSESSING OFFICE R HIMSELF IN THE REMAND REPORT DATED 18.2.2014 FILED BY HIM B EFORE THE LEARNED CIT (APPEALS) DURING THE APPELLATE PROCEEDI NGS FOR THE ASSESSMENT YEAR 2010-11. IN THIS REPORT, THE ASSE SSING OFFICER CONFIRMED THAT THE ASSESSEE TRUST IS RUNNIN G A SCHOOL FOR EDUCATING THE DEAF & DUMB, MENTALLY RETARDED, P HYSICALLY HANDICAPPED AND POOR STUDENTS. AFTER ENQUIRIES, TH E ASSESSING OFFICER ALSO FOUND THAT THERE ARE 250 TO 300 CHILDREN APPROXIMATELY IN THE SCHOOL TO WHOM THE A SSESSEE TRUST IS PROVIDING ALL FACILITIES I.E. FOOD, CLOTHI NG, HOSTEL, CONVEYANCE AND MEDICAL ETC. FOR WHICH NO CHARGES HA VE BEEN RECEIVED BY THE ASSESSEE. THE ASSESSEE MAY BE HAV ING MANY OTHER OBJECTS IN ITS TRUST DEED BUT DURING THE YEAR NO OTHER ACTIVITY OTHER THAN EDUCATION HAS BEEN PURSUED BY I T. THE EXEMPTION UNDER SECTION 10(23C)(IIIAD) OF THE ACT I S AVAILABLE ON THE EDUCATIONAL ACTIVITIES OF AN ASSESSEE AND IF THE ASSESSEE IS CARRYING ON ONLY THIS SOLE ACTIVITY DUR ING THE YEAR, THE EXEMPTION CANNOT BE DENIED TO IT ON THE BASIS T HAT IT HAS 10 OTHER OBJECTS ALSO IN ITS TRUST DEED. THERE IS NO ALLEGATION BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS DEVIATE D FROM ITS OBJECTS. IF IN ANY OF THE SUBSEQUENT YEARS, THE A SSESSEE CARRIES ON ANY OTHER ACTIVITIES OTHER THAN EDUCATIO NAL, IT HAS TO MAINTAIN SEPARATE BOOKS OF ACCOUNT AND IF IT DOE S NOT DO THE SAME, THE ASSESSING OFFICER CAN TAKE CARE OF IT DURING THE COURSE OF ASSESSMENT PROCEEDINGS OF THAT YEAR. ON THE PERUSAL OF THE ORDER OF THE ASSESSING OFFICER, IT A PPEARS THAT THE CHARITABLE NATURE OF THE ACTIVITIES CARRIED ON BY THE ASSESSEE HAS NOT BEEN DOUBTED BY HIM. THEREFORE T HE ASSESSING OFFICER CANNOT DENY THE BENEFIT OF EXEMPT ION UNDER SECTION 10(23C) OF THE ACT TO THE ASSESSEE ON THE G ROUND THAT IT HAS OBJECTS OTHER THAN EDUCATION ALSO. IN THIS REGARD, RELIANCE PLACED BY THE LEARNED COUNSEL FOR THE ASSE SSEE ON THE JUDGMENT OF HON'BLE CALCUTTA HIGH COURT IN THE CASE BIRLA VIDHYA VIHAR TRUST VS. CIT (1982) 136 ITR 445 (CAL) IS NOT OUT OF PLACE, WHEREBY IT HAS BEEN HELD THAT A TRUST MAY HAVE INCOME FROM SEVERAL SOURCES BUT THE SOLE OBJECT IS THE EDUCATIONAL AND THE INCOME HAS NOT DIVERTED FOR PER SONAL PROFIT, THE TRUST IS ENTITLED FOR THE BENEFIT UNDER SECTION 10(23C)(IIIAD) OF THE ACT. THE CONTENTION OF THE ASSESSING OFFICER THAT THE ASSESSEE ITSELF HAS CLAIMED EXEMPT ION UNDER SECTION 11 OF THE ACT WHILE FILING ITS RETURN OF IN COME AND NOT EXEMPTION UNDER SECTION 10(23C)(IIIAD) OF THE ACT C ANNOT BE THE BASIS FOR DISALLOWING THE CLAIM AS IT IS A TRIT E LAW BY NOW THAT EVEN IF THE ASSESSEE HIMSELF DOES NOT CLAIM AN Y BENEFIT IF 11 IT IS ELIGIBLE FOR ANY SUCH BENEFIT AND FULFILLS AL L THE CONDITIONS PROVIDED UNDER THE ACT, IT INCUMBENT ON THE AUTHORI TIES TO GIVE HIM SUCH BENEFIT. IT HAS BEEN VERY CLEARLY P ROVIDED IN THE CIRCULAR NO.14(XL-35) DATED 11.4.1995 (SUPRA) I SSUED BY THE CBDT, WHEREBY IT HAS BEEN INSTRUCTED THAT THE O FFICERS OF THE DEPARTMENT MUST NOT TAKE ADVANTAGE OF THE IGNOR ANCE OF AN ASSESSEE AS TO HIS RIGHTS. IT IS ONE OF THEIR DU TIES TO ASSIST A TAXPAYER IN EVERY REASONABLE WAY, PARTICULARLY IN THE MATTER OF CLAIMING AND SECURING RELIEFS AND IN THIS REGARD THE OFFICERS SHOULD TAKE THE INITIATIVE IN GUIDING A TAXPAYER WH ERE PROCEEDINGS OR OTHER PARTICULARS BEFORE THEM INDICA TE THAT SOME REFUND OR RELIEF IS DUE TO HIM. IN THIS VIEW , AS THE ASSESSEE IS CARRYING ON THE EDUCATIONAL ACTIVITY ON LY DURING THE YEAR, IT HAS TO BE GIVEN EXEMPTION UNDER SECTIO N 10(23C)(IIIAD) OF THE ACT. 10. AS REGARDS THE CONTENTION OF THE ASSESSING OFF ICER THAT THE EXEMPTION UNDER SECTION 10(23C)(IIIAD) OF THE ACT CANNOT BE GIVEN TO THE ASSESSEE AS IT DID NOT FILE THE AUDIT REPORT ALONGWITH THE RETURN OF INCOME AS REQUIRED B Y THE TENTH PROVISO TO CLAUSE (23C) OF SECTION 10 OF THE ACT. THE TENTH PROVISO TO SECTION 10(23C) OF THE ACT READS A S UNDER : PROVIDED ALSO THAT WHERE THE TOTAL INCOME, OF THE FUND OR INSTITUTION OR ANY UNIVERSITY OR OTHER EDUCATIONAL I NSTITUTION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION REFERRED T O IN SUB- CLAUSE (IV) OR SUB-CLAUSE (V) OR SUB-CLAUSE (VI) OR SUB -CLAUSE (VIA), WITHOUT GIVING EFFECT TO THE PROVISION S OF THE SAID SUB- 12 CLAUSES, EXCEEDS THE MAXIMUM AMOUNT WHICH IS NOT CH ARGEABLE TO TAX IN ANY PREVIOUS YEAR, SUCH TRUST OR INSTITUT ION OR ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION SHALL GET ITS ACCOUNTS AU DITED IN RESPECT OF THAT YEAR BY AN ACCOUNTANT AS DEFINED IN THE EXPLANATION BELOW SUB-SECTION (2) OF SECTION 288 AN D FURNISH ALONG WITH THE RETURN OF INCOME FOR THE RELEVANT AS SESSMENT YEAR, THE REPORT OF SUCH AUDIT IN THE PRESCRIBED FOR M DULY SIGNED AND VERIFIED BY SUCH ACCOUNTANT AND SETTING FORTH S UCH PARTICULARS AS MAY BE PRESCRIBED. 11. FROM THE PERUSAL OF THE SAID PROVISO, WE SEE T HAT THE PROVISIONS OF THIS PROVISO ARE APPLICABLE ONLY TO C LAUSE (IV), (V) (VI) AND (VIA) OF SECTION 10(23) OF THE ACT. SINCE THE ASSESSEE IS CLAIMING EXEMPTION UNDER SECTION 10(23C)(IIIAD) OF THE ACT, THERE IS NO NEED TO FILE AUDIT REPORT IN FORM NO.10 BB. IN VIEW OF THE ABOVE, THE ASSESSEE HAS COMPLIED WITH A LL THE CONDITIONS OF SECTION 10(23C)(IIIAD) OF THE ACT. W E DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LEARNED CIT (APPE ALS) AND CONFIRM THE SAME. THE GROUND NOS. 1 AND 2 RAISED BY THE DEPARTMENT ARE DISMISSED. 12. AS REGARDS GROUND NO.3, WITH RESPECT TO THE ANONYMOUS DONATIONS TO BE TAXED UNDER SECTION 115BC (1) OF THE ACT, WE FIND THAT ASSESSING OFFICER HAD CALLED FOR THE DETAILS OF DONATIONS RECEIVED BY THE ASSESSEE, WHIC H THE ASSESSEE FAILED TO GIVE. HOWEVER, SINCE THE ASSES SING OFFICER DENIED THE BENEFIT OF EXEMPTION UNDER SECTION 10(23 C)(IIIAD) OF THE ACT TO THE ASSESSEE, HE DID NOT MAKE ANY FURTHE R ADDITION UNDER SECTION 115BBC OF THE ACT. THE ASSESSEE H AS RAISED 13 THIS ISSUE BEFORE THE LEARNED CIT (APPEALS) BY TAKI NG A SPECIFIC GROUND. HOWEVER, FROM THE PERUSAL OF THE ORDER OF THE LEARNED CIT (APPEALS), WE SEE THAT THE LEARNED CIT (APPEALS) HAS NOT ADJUDICATED THE SAID ISSUE. IN VIEW OF TH IS, WE RESTORE THIS ISSUE TO THE FILE OF THE LEARNED CIT ( APPEALS) TO ADJUDICATE THE SAME AS PER LAW. 13. THE GROUND OF APPEAL NO.4 RAISED BY THE DEPART MENT IS GENERAL AND HENCE, NEEDS NO ADJUDICATION. 14. THE APPEAL OF THE REVENUE IS PARTLY ALLOWED. ITA NO.380/CHD/2014 : 15. THE GROUNDS OF APPEAL RAISED BY THE REVENUE AR E AS UNDER : 1) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F CASES THE CIT(A) HAS ERRED IN NOT CONSIDERING THE FACT THAT TH E ASSESSEE IS NOT EXISTING SOLELY FOR EDUCATIONAL PURPOSE AS P ER THE OBJECTIVES IN THE TRUST DEED. 2) THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEN D ANY GROUND OF APPEAL BEFORE IT IS FINALLY DISPOSED OFF. 16. IT IS RELEVANT TO OBSERVE HERE THAT THE FACTS AND CIRCUMSTANCES OF THIS CASE ARE SIMILAR TO GROUND NO S.1 AND 2 IN ITA NO.318/CHD/2013 AND THE FINDINGS GIVEN IN IT A NO.318/CHD/2013 SHALL APPLY TO THIS CASE ALSO WITH EQUAL FORCE. 14 17. THE APPEAL OF THE REVENUE IS DISMISSED. 18. IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO.318/CHD/2013 IS PARTLY ALLOWED FOR STATISTICAL P URPOSES, WHILE THE APPEAL OF THE REVENUE IN ITA NO.380/CHD/2 014 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF OCTOBER, 2015. SD/- SD/- (H.L.KARWA) (RANO JAIN) VICE PRESIDENT ACOUNTANT MEMBER DATED : 27 TH OCTOBER, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH