Hamdard Education Society, New Delhi V. ADIT (Exemptions), New Delhi

MA 102/DEL/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6904 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 26-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRATHIMA KAUSHIK
• Assessee Lawyers: R M MEHTA
• Section: 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH FRIDAY-C NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI SHAMIM YAHYA MISCELLANEOUS APP. NO. 102/DEL/2011 ( IN I.T..A. NO. 5387/DEL/2010) ASSESSMENT YEAR : 2007-08 HAMDARD EDUCATION SOCIETY, VS. ADIT(EXEMPTION), TALIMABAD, SANGAM VIHAR, TRUST CIRCLE-II NEW DELHI. NEW DELHI. (PIN: AAATH0260P) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI RM MEHTA, ADV. RESPONDENT BY: SMT. PRATHIMA KAUSHIK, D R ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE PRESENT MISCELLANEOUS APPLICATION IS DIRECTED A T THE INSTANCE OF THE ASSESSEE POINTING OUT AN APPARENT ERROR IN THE ORDER OF THE ITAT DATED 03.02.2011. IT IS PLEADED IN THE APPLICATION THAT I N GROUND NO.2 OF THE MEMORANDUM OF APPEAL, ASSESSEE HAS PLEADED THAT ASS ESSING OFFICER HAS ERRED IN DENYING EXEMPTION UNDER SEC. 11 OF THE INC OME-TAX ACT, 1961 BY MISCONSTRUING THE PROVISIONS OF SEC. 11 TO 13 OF TH E ACT. THE ITAT HAS ONLY ADJUDICATED GROUND NO.5 TAKEN BY THE ASSESSEE AND F AILED TO CONSIDER THIS GROUND. 2. ON THE STRENGTH OF THE PLEADING MADE IN THE APPL ICATION, IT WAS CONTENDED BY THE LEARNED COUNSEL FOR THE ASSESSEE T HAT AN ADDITION OF 2 RS.14,41,500 WAS MADE BY THE ASSESSING OFFICER ON T HE GROUND THAT ASSESSEE TOOK FORCEABLE DONATION/CAPITATION FEE FROM THE PAR ENTS OF THE STUDENTS WHILE ADMITTING THEM IN THE SCHOOL, THEREFORE, ASSESSEE I S NOT ENTITLED FOR EXEMPTION UNDER SEC. 11 OF THE ACT. THE ITAT HAS RE MITTED THE ISSUE REGARDING TAKING OF FORCEABLE DONATION/CAPITATION F EES TO THE ASSESSING OFFICER, HOWEVER, FAILED TO MAKE A MENTION ABOUT TH E ISSUE OF ADMISSIBILITY OF EXEMPTION UNDER SEC. 11 OF THE ACT. HE POINTED O UT THAT THE ISSUE OF EXEMPTION HAS TO BE KEPT OPEN BEFORE THE ASSESSING OFFICER WHICH IS TO BE ADJUDICATED AFTER THE ISSUE OF TAKING FORCEABLE DON ATION/CAPITATION FEES FROM THE PARENTS OF THE STUDENTS. 3. LEARNED DR ON THE OTHER HAND SUBMITTED THAT THER E IS NO APPARENT ERROR IN THE ORDER OF THE ITAT. 4. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. IN OUR OPINION, ONCE WE HAVE REMI TTED THE BASIC ISSUE TO THE ASSESSING OFFICER, WHICH PERSUADED THE ASSESSING OF FICER TO MAKE THE ADDITION OF RS.14,11,500 AND DENYING THE EXEMPTION UNDER SEC. 11 OF THE ACT, THE ASSESSING OFFICER WOULD AUTOMATICALLY REEX AMINE THE ISSUE OF EXEMPTION AVAILABLE UNDER SEC. 11 OF THE ACT. SINCE THE ASSESSEE HAS FILED THE 3 MISCELLANEOUS APPLICATION ALLEGING THAT IT HAS RAIS ED A SPECIFIC GROUND WHICH HAS NOT BEEN ADJUDICATED BY THE ITAT. CONSIDERING T HIS PLEA OF THE ASSESSEE, WE ALLOW THE MISCELLANEOUS APPLICATION AND DIRECT T HE ASSESSING OFFICER TO READJUDICATE THE ISSUE REGARDING ADMISSIBILITY OF E XEMPTION UNDER SEC. 11 OF THE ACT. 3. IN VIEW OF THE ABOVE DISCUSSION, GROUND NO.2 TAK EN BY THE ASSESSEE IN THE APPEAL IS ALSO ALLOWED FOR STATISTICAL PURPOSES , CONSEQUENTLY, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 19.08.201 1 SD/- SD/- ( SHAMIM YAHYA ) ( RAJPA L YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBE R DATED: 19/08/2010 MOHAN LAL COPY FORWARDED TO: 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR:ITAT ASSISTANT REGISTRAR