DDIT, Hyderabad V. International Institute of Information Technology, Hyderabad

ITA 538/HYD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3350 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 23-04-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V SRINIVAS
• Assessee Lawyers: M V ANIL KUMAR
• Keywords: Tax effect; Set aside
• Section: 260A; 195; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.538 & 539/H/2009 ASSESSMENT YEAR : 2005-06 & 2006-07 THE DY. CIT (E)-I, HYDERABAD VS THE INTERNATIONAL INSTITUTE OF INFORMATION TECHNOLOGY, HYDERABAD PAN AAATI 2260P/-036 APPELLANT RESPONDENT APPELLANT BY : SHRI V. SRINIVAS, CIT, DR RESPONDENT BY: SHRI M.V. ANIL KUMAR ORDER PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THESE TWO APPEALS PREFERRED BY THE REVENUE ARE DIRECTED AGAINST THE COMMON ORDER PASSED BY THE CIT(A) IV, HYDERABAD DATED 13.3.2009 AND PERTAINS TO THE ASSESSMENT YEARS 200 5-06 & 2006-07. SINCE ISSUES INVOLVED IN THESE TWO APPEALS ARE COMM ON IN NATURE, THEY ARE CLUBBED TOGETHER, HEARD TOGETHER AND DISPOSED O FF VIDE THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE REVENUE RAISED THE FOLLOWING COMMON GROUN DS IN BOTH THE APPEALS AS FOLLOWS: 1. THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT OBTAINING APPROVAL OF THE PRESCRIBED AUTHORITY IS MANDATORY AS PER THE PL AIN MEANING OF THE PROVISIONS OF SECTION 10(23C)(VI) OF THE IT ACT, AN D IT DOES NOT CALL FOR ANY INTERPRETATION. 2. THE CIT(A) FAILED TO APPRECIATE THAT SECTION 10(23C ) AS SUCH IS NOT A REPLACEMENT OF SECTION 10(22) AND (22A) AS STATED I N THE ASSESSEE ORDER BUT ONLY SUB CLAUSES (VIII) (AD) AND (III AC) ARE R EPLACEMENTS OF THE ERSTWHILE SECTION 10(22) AND 10(22A) RESPECTIVELY. 2 3. THE CIT(A) OUGHT TO HAVE CONSIDERED THE FACT THAT S UB CLAUSE (IV) AND (VIA) ARE ENTIRELY NEW PROVISIONS MEANT TO PROVIDE THE MONITORING MECHANISM THAT WAS LACKING IN THE EARLIER PROVISION S. 4. THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT IT WAS SECTION 10(22) THAT PROVIDED FOR EXEMPTION OF THE EDUCATIONAL INCO ME OF THE TRUSTS, SOCIETIES ETC. AND NOT SECTION 11. 5. THE CIT(A) ERRED IN OBSERVING THAT SECTION 11 PROVI DES SUFFICIENT MONITORING MECHANISM TO CHECK THE ASSESSEES ACTIVI TIES AND CONDITION OF SECTION 11 ARE AS THE CONCLUSION OF THE CIT(A) I S NOT FOUND ON SOUND REASONING AND EVEN THE CITATION OF SUPREME COURT IN 195 ITR 8, IN FACT, PURPORTS JUST THE OPPOSITE VIEW. 6. THE DECISION OF THE ITAT RAJASTHAN SIKSHA SAMITHI H AS NOT BEEN ACCEPTED IN PRINCIPLE BUT THE APPEAL HAS NOT BEEN PREFERRED BEFORE THE HIGH COURT U/S 260A DUE TO THE FACT THAT THE TAX EFFECT IS BEL OW THE MONETARY LIMITS. 7. IN THE CASE OF ST. THERESAS SOCIETY, THE DECISION OF THE ITAT HAS NOT BEEN ACCEPTED AND APPEAL HAS BEEN FILED BEFORE THE HIGH COURT. 3. AT THE TIME OF HEARING, THE LEARNED AUTHORIZE D REPRESENTATIVE FOR THE ASSESSEE PLACED RELIANCE ON THE ORDER OF TH IS TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2003-04 AND 2004 -05 AND PRAYED THAT IT IS TO BE FOLLOWED OR OTHERWISE, THE ISSUE M AY BE REFERRED FOR CONSTITUTION OF A SPECIAL BENCH. IN OUR OPINION, T HERE IS NO REASON FOR REFERRING THE MATTER TO A SPECIAL BENCH AS THE TRIB UNAL IS CONSISTENTLY HOLDING ON THIS ISSUE BY PLACING RELIANCE ON THE OR DER OF THIS TRIBUNAL IN THE CASE OF M/S VASAVI ACADEMY & EDUCATION, HYDERAB AD IN ITA NO.1120/HYD/2009, DATED 29.1.2010 WHEREIN IT WAS H ELD AS FOLLOWS: WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSES SEE SUBMITTED THAT THIS ISSUE COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE HYDERABAD BENCH A OF THE TRIBUNAL DATED 15.4.2009 IN ASSESSEES OWN CASES IN ITA NO.1133/HYD/2006 FOR THE ASSESSMENT YE ARS 2003-04 AND ORDER DATED 17.4.2009 IN ITA NO.1206/HYD/2007 FOR THE ASSESSMENT YEAR 2004-05. HOWEVER, WE FIND THAT THE CONSTITUT IONAL BENCH OF APEX COURT IN THE CASE OF T.M.A. PAI FOUNDATIONS AND OT HERS VS. STATE OF KARNATAKA & OTHERS (2002) 8 SCC 481 EXAMINED THE ISSUE OF COLLECTION OF CAPITATION FEES FOR THE ADMISSION OF STUDENTS OVER AND ABOVE FEES PRESCRIBED BY THE PRIVATE INSTITUTION AND HELD THAT THE INSTITUTION WHICH ARE COLLECTING CAPITATION FEES FOR ADMISSION OF STU DENTS OVER AND ABOVE THE FEES PRESCRIBED CANNOT BE CONSTRUED AS CHARITAB LE/EDUCATION INSTITUTION. APEX COURT FURTHER OBSERVED THAT THE F EES COLLECTED OVER AND ABOVE THE PRESCRIBED FEE FOR ADMISSION OF THE STUDE NT HAS TO BE 3 CONSTRUCTED AS CAPITATION FEE. THE APEX COURT, FUR THER OBSERVED THAT THE CONCERNED UNIVERSITY AND REGULATED BODY HAS TO TAKE ACTION FOR WITHDRAWAL OF THE RECOGNITION IN CASE IT IS FOUND T HAT THE EDUCATIONAL INSTITUTION RECEIVED ANY MONEY OVER AND ABOVE THE F EES PRESCRIBED FOR THE COURSES. SAME VIEW WAS TAKEN BY APEX COURT IN T HE CASE OF ISLAMIC ACADEMY OF EDUCATION AND ANOTHER VS. STATE OF KARNA TAKA & ANOTHER (2003) 6 SCC 697. IF THE DONATIONS WERE RECEIVED C OMPULSORILY FOR ADMISSION OF STUDENTS, THE ASSESSEE IS NOT ENTITLED FOR EXEMPTION EITHER U/S 10(23C) OR U/S 11 OF THE IT ACT. SINCE THE LOWER AUTHORITIES WERE NOT EXAMINED THE COLLECTION OF CAPITATION FEES IN T HIS CASE, IN OUR OPINION, THE MATTER REQUIRES TO BE EXAMINED BY THE ASSESSING OFFICER WHETHER THE ASSESSEE IS COLLECTING THE CAPITATION FEES FROM STU DENTS OR NOT AND IT IS NECESSARY FOR BRINGING THE ACTUAL FACTS ON RECORD F OR DECIDING THE ISSUE EFFECTIVELY. SIMILAR VIEW WAS TAKEN BY US IN THE C ASE OF M/S. JAMIA NIZAMIA IN ITA NO.763/HYD/2007 DATED 30.6.2008, IN THE CASE OF INTERNATIONAL EDUCATIONAL ACADEMY, HYDERABAD IN IT A NO.494/HYD/2007 AND 518/HYD/2008 FOR THE ASSESSMENT YEARS 2002- 20 03 AND 2004-05 AND SRI SAI SUDHIR EDUCATIONAL SOCIETY, HYDERABAD I N ITA NO.999/HYD/20-06 FOR THE ASSESSMENT YEAR 2003-04. THEREFORE, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND REMIT BACK THE MATTER TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO ASSES SING OFFICER THAT HE SHALL RECONSIDER THE ENTIRE ISSUE IN THE LIGHT OF JUDGEME NT OF SUPREME COURT IN THE CASE OF M/S ISLAMIC ACADEMY OF EDUCATION & ANOT HER VS. STATE OF KARNATAKA AND ANOTHER (SUPRA), AND IN THE CASED OF T.M.A. PAI FOUNDATION AND OTHERS VS. STATE OF KARNATAKA AND OT HERS (SUPRA), AND FIND OUT WHETHER THE ASSESSEE HAS RECEIVED ANY MONE Y OVER AND ABOVE THE FEES PRESCRIBED AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEA RING TO THE ASSESSEE . WE MAKE IT CLEAR THAT THE ASSESSEE IS NOT ENTITLED FOR EXEMPTION EITHER U/S 11 OR U/S 10(23C) IN CASE IT COLLECTED ANY MONE Y BY WHATEVER NAME IT IS CALLED I.E., DONATION, BUILDING FUND, AUDITOR IUM FUND ETC. ETC., OVER AND ABOVE THE PRESCRIBED FEE FOR ADMISSION OF STUDE NTS. 5. LATER, THE ABOVE ASSESSEE FILED A MISCELLANEOU S PETITION IN MA NO.58/HYD/2010 AND THE SAME WAS DISPOSED OFF BY THI S TRIBUNAL VIDE ITS ORDER DATED 4 TH JUNE, 2010 BY HOLDING AS FOLLOWS: THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS AP PLICATION UNDER PROVISO TO RULE 24 OF THE INCOME TAX APPELLATE TRIB UNAL RULES, 1963 TO RECALL THE ORDER OF THIS TRIBUNAL DATED 29.01.2010 IN ITA NO.1120/HYD/2009. 2. THE AUTHORISED REPRESENTATIVE FOR THE ASSESSE E SUBMITTED THAT THE ISSUE DEALT WITH BY THE TRIBUNAL DOES NOT FLOW FROM GROUNDS OF APPEAL. THERE WAS NO GROUND RAISED BY THE DEPARTMENT RELATING TO COLLECTION OF CAPITATION FEE. THERE ARE NO FACTS ON RECORD RELATING TO THE ISSUE DEALT WITH BY THE TRIBUNAL. HE SUBMITTED THAT AS PER THE JUDGEMENT IN THE CASE OF JEYPORE TIMBER & VENEER MILLS (P) LTD., (137 ITR 415) (GAUHATI HC), THE P ROVISIONS OF SEC.254(1) IS 4 BOTH ENABLING AND DISABLING PROVISION. HE DREW OUR ATTENTION TO THE SAID CASE LAW WHEREIN IT WAS OBSERVED THAT: THE POWER OF THE TRIBUNAL TO REMAND A CASE HAS BEE N PUT BEYOND ANY SHADOW OF DOUBT IN R. 28 OF THE IT ACT (APPELLATE TRIBUNAL) RULES, 1963. THE TRIBUNAL MUST FORM AN OPINION JUDICIOUSLY AND THEREAFTER IT CAN EXERCISE THE POWE R OF REMAND. A DETAILED REASON MAY NOT BE GIVEN IN THE DECISION. THE EXACT NATURE OF THE REMAND ORDER TO BE PASSED IN A GIVEN CASE IS A MATTER WITHIN THE ABSOLUTE DISCRETION OF THE T RIBUNAL, BUT THE POWER BEING JUDICIAL, IT MUST BE EXERCISED JUDICIOUSLY, ACCORDING TO RULE AN D NOT ACCORDING TO HUMOUR, THE ORDER MUST BE LEGAL AND REGULAR, DISCIPLINED AS OPPOSED T O CAPRICIOUS. A CAPRICIOUS OR IMPETUOUS ORDER OF REMAND IS AN ABUSE OF THE DISCRETIONARY PO WER CONFERRED ON THE TRIBUNAL. WHEN SUCH A DISCRETIONARY ORDER IS MADE BY A TRIBUNAL, A HIGH POWERED AUTHORITY, THE PRESUMPTION IS THAT IT WAS A DISCIPLINED AND RESPON SIBLE EXERCISE OF POWER. THE GROUNDS OF SUCH EXERCISE OF POWER MAY APPEAL EITHER FROM THE O RDER OR THE REASONING OF THE TRIBUNAL IN THE DECISION RENDERED BY IT OR, IN AN APPROPRIATE C ASE, IMPLICITLY FROM THE DECISION RENDERED BY IT IN THE BACKGROUND OF THE CONTENTIONS RAISED B EFORE IT. 3. ACCORDING TO THE LEARNED COUNSEL FOR THE ASSESSE E, THE TRIBUNAL EXCEEDS THE JURISDICTION VESTED WITH IT. HE SUBMITT ED THAT THE REVENUE HAS NOT RAISED ANY GROUND WITH REGARD TO COLLECTION OF CAPITATION FEE OR ANY SUCH OTHER MATTE. NOR WAS ANY EVIDENCE COLLECT ED IN THIS REGARD BY THE REVENUE AND CONSEQUENTLY THERE WAS NO SCOPE EVE N TO RAISE ADDITIONAL GROUND IN THIS REGARD. HE SUBMITTED THA T THE ORDER OF THE TRIBUNAL INDIRECTLY RESULTED IN GIVING THE DIRECTIO N FOR ENHANCEMENT OF ASSESSMENT WHICH SHALL OUGHT HAVE BEEN AVOIDED. 4. ON THE OTHER HAND, THE DEPARTMENTAL REPRESENTAT IVE SUBMITTED THAT THE ISSUE BEFORE US IN THE ASSESSMENT YEAR UNDER CO NSIDERATION IS WHETHER THE ASSESSEE ENTITLED FOR EXEMPTION U/S 11 & 12 OR 10(23C) OR NOT. THE ISSUE OF COLLECTION OF CAPITATION FEE IS VERY VITAL ISSUE AS PER THE JUDGEMENT OF THE HONBLE SUPREME COURT WHICH WAS RE LIED BY THE TRIBUNAL WHILE DECIDING THE APPEAL. HE SUBMITTED T HAT AS PER JUDGEMENT OF THE HONBLE SUPREME COURT AS RELIED BY THE TRIBU NAL, IF ASSESSEE COLLECTED THE CAPITAL FEE, THEN DOES NOT ENTITLE FO R ANY EXEMPTIONS. HE SUBMITTED THAT WHEN THE CIT(A) DECIDE THE CASE WITH OUT BRINGING THE PROPER FACTS ON RECORD, THE TRIBUNAL IS NOT PRECLUD ED FROM SET ASIDE THE ISSUE TO THE FILE OF ASSESSING OFFICER FOR FRESH CO NSIDERATION AFTER BRINGING THE ENTIRE FACTS ON RECORD. HE RELIED ON THE JUDGE MENTS: 1 . KAPURCHAND SHRIMAL VS. CIT (AP) (131 ITR 451) WHEREIN IT WAS HELD THAT THE FACTS REQUIRED FOR EXAMINING THE CLAIM WERE BEFORE THE TR IBUNAL. THE ABSENCE OF AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER, WHO HAD REMANDED THE MATTER TO THE INCOME TAX OFFICER, DID NOT IN ANY WAY PRECLUDE THE TRIBUNAL FROM HOLDING THAT THE CAPITAL GAIN IN THE INSTANT CASE WAS A LONG TERM CAPITAL GA IN, SINCE SUCH RELIEF HAD IN FACT BEEN SOUGHT BY THE ASSESSEE BEFORE THE ASSESSING OFFICER . 2. CIT VS. SMT. S. VIJAYALAKSHMI (242 ITR 46) WHERE IN IT WAS HELD THAT AN APPELLATE AUTHORITY HAS THE JURISDICTION AS WELL AS THE DUTY TO CORREC T ALL ERRORS IN THE PROCEEDINGS UNDER APPEAL AND TO ISSUE, IF NECESSARY, APPROPRIATE DIRECTIONS TO THE AUTHORITY AGAINST WHO DECISION THE APPEAL IS PREFERRED TO DISPOSE OF THE WHOLE OR ANY PART OF THE MATTER AFRESH, UNLESS FORBIDDEN FROM DOING SO BY STATUTE. 5. FURTHER, HE SUBMITTED THAT TRIBUNAL HAS TAKEN C ONSCIOUS DECISION. IT CANNOT BE RECTIFIED ACCORDING TO THE LIKING AND DIS LIKING OF THE ASSESSEES COUNSEL. THE TRIBUNAL HAS NO REVIEW POWER. HE REL IED ON THE FOLLOWING JUDGEMENT : 5 1. CIT VS. RAMESH ELECTRIC & TRADING CO. (203 ITR 497) (BOM.HC) 2. ITO VS. ITAT & OTHER (229 ITR 651) 3. SALGAOCAR MINING INDUSTRIES LTD. VS. DCIT (61 ITD 10 5) 4. ARUN KUMAR SRIVASTAVA VS. ITO (63 ITD 50) (3 RD MEMBER) (PUNE) 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE MAIN GRIEVANCE OF THE ASSESSEES COUNS EL IS THAT THE TRIBUNAL GONE BEYOND THE JURISDICTION VESTED WITH IT. THE TRIBUNAL SHOULD NOT HAVE SET ASIDE THE ORDER OF THE ASSESSING OFFICER BY RE MAND BACK THE ISSUE TO THE FILE OF ASSESSING OFFICER FOR FRESH CONSIDERATION S INCE THERE IS NO MATERIAL ON RECORD SO SUGGEST THE COLLECTION OF CAPITATION FEE. THE TRIBUNAL BY REMAND THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER CAU SED INJURY TO THE ASSESSEE AND THE TRIBUNAL SHOULD NOT HAVE DISTURBED THE ORDE R OF THE CIT(A). IN OUR OPINION, THE POWER OF THE TRIBUNAL U/S 254(1) ARE O F WIDEST AMPLITUDE. THE WORD USED IN THIS SECTION 254(1) THEREON OF CO URSE, RESTRICT THE JURISDICTION OF THE TRIBUNAL TO THE SUBJECT MATTER OF THE APPEAL. THE WORDS PASS SUCH ORDERS THEREON AS THE TRIBUNAL THINKS FI T INCLUDE ALL THE POWERS (EXCEPT POSSIBLY THE POWER OF ENHANCEMENT WHICH AR E CONFERRED UPON THE CIT(A). THE ONLY THING IS THAT THE TRIBUNAL CANNO T ASSUME POWERS WHICH ARE INCONSISTENT WITH THE EXPRESSED PROVISIONS OF T HE ACT. HOWEVER, IT CANNOT BE INFERRED THAT THE TRIBUNAL CANNOT INTERFE RE WITH ORDER OF THE LOWER AUTHORITIES WHICH IS DEFECTIVE OR HAS NOT BROUGHT O N RECORD RELEVANT FACTS, WHEN THERE IS AN APPEAL OR CROSS OBJECTIONS AGAINST THAT ORDER. IT SHOULD BE NOTED THAT THE POWER OF THE TRIBUNAL MUST BE CONFIN ED TO THE ISSUE ARISE IN THE APPEAL AND IT CANNOT TRAVEL OUTSIDE THE AMBIT O F ITS JURISDICTION. IF THE ASSESSING OFFICER MADE AN ERROR IN NOT BRINGING FAC TS ON RECORD AND THE JUDGEMENT CANNOT BE WITHOUT EXAMINING THE FACTS ON RECORD, THEN TO RECTIFY THAT ERROR, THE TRIBUNAL CANNOT SHUT ITS EYES AND D ELIVER THE JUDGEMENTS. IF THE TRIBUNAL DECIDES TO REMAND TAKING A PARTICULAR VIEW OF THE CASE, BUT AN ALTERNATIVE VIEW OR OTHER VIEWS MIGHT EXIST FOR NOT REMANDING THE CASE, THE EXERCISE OF THE POWER OF THE TRIBUNAL SHOULD NOT BE DISTURBED. IF THE EFFECT OF THE ORDER OF REMAND IS TO BE RESULTED IN FAIR PL AY OF JUSTICE, THE ORDER SHOULD NOT BE DISTURBED. EVEN IN THAT EVENT, THE VIEW EXPRESSED BY THE TRIBUNAL IS NOT CORRECT, THE ASSESSEE WOULD ALWAYS HAVE ITS REMEDY AS PROVIDED IN THE ACT. THE TRIBUNAL CANNOT OVER LOOK ITS OWN RESPONSIBLE POSITION WHILE DELIVERING JUSTICE. IT IS INCUMBENT ON THE PART OF THE TRIBUNAL TO DELIVER JUSTICE IN THE BEST INTEREST OF BOTH THE PARTIES. THE TRIBUNAL WHILE DECIDING ANY APPEAL CANNOT TREAT THE FINDINGS OF TH E FACT MADE BY THE CIT(A) AS FINAL WHILE EXAMINING THE ISSUE, THE TRIBUNAL HA S TO SEE BOTH THE QUESTIONS ON FACTS AND IN LAW. MERELY BECAUSE THE GROUND OF APPEAL STARTS WITH PHRASE WHETHER ON THE FACTS AND IN THE CIRCUM STANCES OF THE CASE THE TRIBUNAL CANNOT DECLINE TO INVESTIGATE THE FACTS AN D COME TO THE CONCLUSIONS AS TO THE CORRECTNESS OF THE FINDINGS OF THE CIT(A) . FURTHER, EVEN ASSUMING THAT THE GROUND IN APPEAL WAS OF LIMITED NATURE, TH E QUESTION STILL REMAINS AS TO WHETHER ON THE BASIS OF THE FINDINGS MADE BY THE CIT(A), THE CLAIM OF ASSESSEE COULD BE ALLOWED U/S 11 & 12 OR 10(23C). IN THIS CASE, OF THE ASSESSEE, THE ONLY REQUIREMENT IS THAT THE TRIBUNAL SHOULD NOT ACT ON ANY INFORMATION WITHOUT PUTTING THE SAME TO THE PARTY A ND FOR THE PURPOSE, IN VIEW OF THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF T M A PAI FOUNDATIONS AND OTHERS VS. STATE OF KARNATAKA & OTH ERS (2002) 8 SCC 481 6 AND IN THE CASE OF ISLAMIC ACADEMY OF EDUCATION VS. STATE OF KARNATAKA & ANOTHER (2003) 6 SCC 697, THE TRIBUNAL SET ASIDE TH E ISSUE TO THE FILE OF ASSESSING OFFICER FOR FRESH CONSIDERATION. BY THIS ACT OF THE TRIBUNAL, WE CANNOT SAY THAT THE TRIBUNAL TRAVEL BEYOND THE POWE R VESTED IN THE TRIBUNAL, BY THE STATUTE IN RESPECT OF THE APPEAL PREFERRED B EFORE IT. IN OUR OPINION IT IS OPEN TO THE TRIBUNAL TO INTERFERE WITH THE JURIS DICTIONAL DISCRETION BY THE LOWER AUTHORITIES AND SUBSTITUTE THE SAME BY ITS OW N DISCRETION. WHEN IT DOES SO, IN PROPER EXERCISE OF ITS POWER U/S 254 BY TAKING INTO CONSIDERATION ALL THE RELEVANT FACTS INTO CONSIDERATION, AND IN D EFERRING FROM THE AUTHORITIES BELOW AND EXERCISING ITS OWN DISCRETION , THE TRIBUNAL CANNOT BE HELD TO ACT ARBITRARY OR CAPRICIOUSLY. IN OUR OPIN ION, THE TRIBUNAL HAS NOT COMMITTED ANY ERROR IN REMANDING THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER AND THE TRIBUNAL IS THE FINAL FACT FINDING BODY AND THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENT ENCE MERELY TO FIND OUT WHETHER ALL THE FACTS HAVE BEEN SET OUT IN DETAIL B Y THE TRIBUNAL OR WHETHER SOME INCIDENTAL FACT WHICH APPEARS ON THE RECORD HA S NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGEMENT. IF THE COURT, ON A FAIR READING OF THE JUDGEMENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL AND HAS NOT TAKEN INTO ACCOUNT ANY IRRELEV ANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LI ABLE TO BE INTERFERED WITH, UNLESS, OF COURSE, THE CONCLUSIONS ARRIVED AT BY TH E TRIBUNAL ARE PERVERSE. 6.1. IT IS NOT NECESSARY FOR HE TRIBUNAL TO STATE I N ITS JUDGEMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSIDERED THE TOTALITY OF THE FACTS AS IF THAT WERE A MAGIC FORMULA; IF THE JUDGEMENT OF THE TRIBUNAL SHO WS THAT IT HAS IN FACT DONE SO THERE IS NO REASON TO INTERFERE WITH THE DE CISION OF THE TRIBUNAL. 4. IN VIEW OF THE ABOVE SETTLED POSITION, WE INCL INED TO SET ASIDE THE IMPUGNED ISSUES RAISED BY THE REVENUE TO THE FI LE OF ASSESSING OFFICER ON SIMILAR DIRECTIONS CONTAINED THEREIN. 5. IN THE RESULT, BOTH THE APPEALS OF THE REVENU E ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10.5.2 011 SD/- G.C. GUPTA SD/- CHANDRA POOJARI VICE PRESIDENT ACCOUNTANT MEMBER DATED 10 MAY, 2011 7 COPY FORWARDED TO: 1. THE DY. DIRECTOR OF INCOME TAX (E)-I, HYDERABAD 2. THE INTERNATIONAL INSTITUTE OF INFORMATION TECHNOLO GY, GACHIBOWLI, HYDERABAD. 3. CIT(A) IV, HYDERABAD 4. THE CIT, HYDERABAD 5. THE DR, ITAT, HYDERABAD NP