ADIT, Hyderabad V. Lincoins Education Soceity, Hyderabad

ITA 4/HYD/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3211 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 03-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B V PRASAD REDDY
• Assessee Lawyers: A V RAGHURAM

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B , HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.4/HYD/2011 : ASSESSMENT YEAR 2 007-08 ASST. DIRECTOR OF INCOME TAX(EXEMPTION)-I, HYDERABAD VS M/S. LINCOLNS EDUCATION SOCIETY, HYDERABAD (PAN AAATL 3171 H ) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.V.PRASAD REDDY RESPONDENT BY : SHRI A.V.RAGHURAM O R D E R PER G.C.GUPTA, VICE PRESIDENT: THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEA R 2007-08 IS DIRECTED AGAINST THE ORDER OF THE COMMIS SIONER OF INCOME- TAX(APPEALS). 2. GROUNDS OF APPEAL OF THE REVENUE ARE AS UNDER- (I) THE ORDER OF THE CIT(A) IS NOT ACCEPTABLE AS I T IS ERRONEOUS ON FACTS AND IN LAW. (II) THE CIT(A) ERRED IN HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR EXEMPTION U/S. 11 OF THE I.T. ACT AND THE EXEMP TION U/S. 11 CAN BE ALTERNATIVELY CLAIMED. (III) THE CIT(A) OUGHT TO HAVE CONFIRMED THE ASSESS MENT AS IT IS MANDATORY ON THE PART OF THE ASSESSEE TO OBTA IN NOTIFICATION U/S. 10(23C)(VI) OF THE I.T. ACT. (IV) THE DECISION OF THE ITAT IN ST. THERASAS SOCI ETY HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND APPEAL U/S. 260 A HAS BEEN PREFERRED BEFORE THE A.P. HIGH COURT. ITA NO.4/H/2011 M/S. LINCOLNS EDUCATION SOCIETY, HYDERABAD 2 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITT ED THAT THE DECISION OF THE TRIBUNAL IN ST. THERASAS SOCIE TYS CASE, RELIED UPON BY THE CIT(A), HAS NOT BEEN ACCEPTED BY THE DE PARTMENT AND AN APPEAL UNDER S.260A OF THE ACT HAS BEEN PREFERRE D BEFORE THE HON'BLE A.P. HIGH COURT. HE SUBMITTED THAT THE ASS ESSEE HAS NOT OBTAINED THE NOTIFICATION UNDER S.10(23C)(VI) OF TH E ACT AND THEREFORE, THE EXCESS OF INCOME OVER EXPENDITURE WA S RIGHTLY BROUGHT TO TAX BY THE ASSESSING OFFICER. HE RELIED ON THE ORDER OF THE DDIT(E). THE LEARNED COUNSEL FOR THE ASSESSEE HAS RELIED ON THE ORDER OF THE CIT(A) AND HAS REFERRED TO THE RELEVAN T PORTIONS OF THE APPELLATE ORDER OF THE CIT(A) IN SUPPORT OF HIS SUB MISSIONS. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CARE FULLY. WE FIND THAT IT IS NOW SETTLED WITH SERIES OF DECISION S OF THE HYDERABAD BENCHES OF THE TRIBUNAL THAT AN ASSESSEE CAN MAKE ALTERNATIVE CLAIM UNDER S.11 OF THE ACT AND IT IS NOT MANDATORY FOR T HE ASSESSEE TO OBTAIN A NOTIFICATION UNDER S.10(23C)(VI) OF THE AC T. THE ISSUE BEING COVERED IN FAVOUR OF THE ASSESSEE WITH SERIES OF DE CISIONS OF THE TRIBUNAL, WE HOLD THAT THE ASSESSEE CAN MAKE ALTERN ATIVE CLAIM FOR EXEMPTION UNDER S.11 OF THE ACT AND THERE BEING NO MISTAKE IN THE ORDER OF THE CIT(A), ON THIS ISSUE, WE HOLD THAT NO INTERFERENCE WITH HIS ORDER IS CALLED FOR. 5. WE HOWEVER, FIND THAT THE HYDERABAD BENCH OF T HE TRIBUNAL IN DIRECTOR OF INCOME-TAX(EXEMPTION) V/S. VASAVI ACADEMY OF EDUCATION IN ITA NO.1449/HYD/2008, VIDE ORDER DA TED 4.2.2010, HAS HELD THAT AN EDUCATIONAL INSTITUTION IS ENTITLE D FOR EXEMPTION UNDER S.10(23C) OR UNDER S.11, IF NO DONATION WAS C OLLECTED FROM THE STUDENTS. WE BEING IN AGREEMENT WITH THE ORDER OF THE COORDINATE ITA NO.4/H/2011 M/S. LINCOLNS EDUCATION SOCIETY, HYDERABAD 3 BENCH OF THE TRIBUNAL IN THE CASE OF VASAVI ACADEM Y OF EDUCATION (SUPRA), DIRECT THE ASSESSING OFFICER TO VERIFY THE ASPECT OF DONATION, CAPITATION FEE ETC. IF ANY COLLECTED BY THE ASSESSE E, AND FURTHER DIRECT THAT IF IT IS FOUND THAT BESIDES FULFILLING OTHER P REREQUISITES 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 ADMISSION OF STUDENTS, THE ASSESSEE WOULD BE ENTITLED FOR EXEMPT ION UNDER S.11, EVEN THOUGH THE NOTIFICATION UNDER S.10(23C)(VI) OF THE ACT HAVE NOT BEEN RECEIVED BY IT. WE DIRECT ACCORDINGLY. 6. IN THE RESULT, REVENUES APPEAL IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 8.7.2011 SD/- SD/- (CHANDRA POOJARI) ( G.C. G UPTA) ACCOUNTANT MEMBER VICE PRESIDENT DATED THE 8 TH JULY, 2011 COPY FORWARDED TO: 1. M/S. LINCOLNS EDUCATION SOCIETY, 2 - 1 - 124/A/2, NALLAKUNTA, HYDERABAD 2. ASST. DIRECTOR OF INCOME TAX(EXEMPTION) I, HYDERABA D 3. CIT(A)-IV, HYDERABAD. 4. COMMISSIONER OF INCOME - TAX III , HYDERABAD 5. THE D.R., ITAT, HYDERABAD. B.V.S