DDIT, Hyderabad v. Agarwal Siksha Samithi, Hyderabad

ITA 1199/HYD/2009 | 2006-2007
Pronouncement Date: 20-01-2011 | Result: Allowed

Appeal Details

RSA Number 119922514 RSA 2009
Assessee PAN AAATA5372R
Bench Hyderabad
Appeal Number ITA 1199/HYD/2009
Duration Of Justice 1 year(s) 1 month(s) 3 day(s)
Appellant DDIT, Hyderabad
Respondent Agarwal Siksha Samithi, Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 20-01-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted B
Tribunal Order Date 20-01-2011
Assessment Year 2006-2007
Appeal Filed On 17-12-2009
Judgment 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.1199/H/2009 ASSESSMENT YEAR 2006-07 THE DDIT (EXEMPTIONS)-I HYDERABAD VS M/S AGARWAL SIKSHA SAMITHI HYDERABAD (PAN AAA TA 5372 R) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.E. SUNIL BABU RESPONDENT BY : NONE O R D E R PER CHANDRA POOJARI ACCOUNTANT MEMBER: THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED A GAINST THE ORDER PASSED BY THE CIT(A) IV HYDERABAD DATED 30.10.200 9 AND PERTAINS TO THE ASSESSMENT YEAR 2006-07. 2. THE REVENUE RAISED THE FOLLOWING GROUNDS IN ITS APPEAL: 1. THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACT T HAT OBTAINING APPROVAL U/S 10(23C)(VI) OF THE IT ACT OF THE PRESC RIBED AUTHORITY IS MANDATORY SINCE THE GROSS RECEIPTS OF THE SOCIETY H AVE EXCEEDED RS. ONE CRORE. 2. THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACT T HAT IT WAS SECTION 10(23)(VI) THAT PROVIDED FOR EXEMPTION OF THE EDUCA TIONAL INCOM E OF THE TRUSTS SOCIETIES ETC. AND NOT SECTION 11. 3. THE DECISION OF THE ITAT RAJASTHAN SIKSHA SAMIT HI HAS NOT BEEN ACCEPTED IN PRINCIPLE BUT THE APPEAL HAS NOT BEEN P REFERRED BEFORE THE HIGH COURT U/S 260A DUE TO THE FACT THAT THE TAX EF FECT IS BELOW THE MONETARY LIMITS. 4. IN THE CASE OF ST. THERESAS SOCIETY THE DECIS ION OF THE ITAT HAS NOT BEEN ACCEPTED AND APPEAL HAS BEEN FILED BEFORE THE HIGH COURT. 3. AT THE TIME OF HEARING ON 20.1.2011 NONE APP EARED ON BEHALF OF THE ASSESSEE. WE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ITA NO.1199/H/2009 AGARWAL SIKSHA SAMITHI HYD. 2 2 DECIDED THE ISSUE ON MERIT. WE ARE OF THE OPINION THAT THIS ISSUE HAS ALREADY BEEN DECIDED BY THE TRIBUNAL VIDE ITS ORDER DATED 29.1.2009 IN THE CASE OF M/S VASAVI ACADEMY EDUCATION FOR THE ASSESS MENT YEARS 2005-06 IN ITA NO.1120/HYD/2009 BY HOLDING AS FOLLOWS: 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE SUBMITTED THAT THIS ISSUE COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF T HE HYDERABAD BENCH A OF THE TRIBUNAL DATED 15.4.2009 IN ASSESSEES OWN CASES IN ITA NO.1133/HYD/2006 FOR THE ASSESSMENT YEARS 2003-04 AND ORDER DATED 17.4.2009 IN ITA NO.1206/HYD/2007 FOR THE ASSESSMENT YEAR 2004-05. HOWEVER WE FIN D THAT THE CONSTITUTIONAL BENCH OF APEX COURT IN THE CASE OF T.M.A. PAI FOUNDATIONS AND OTHERS VS. STATE OF KARNATAKA & OTHERS (2002) 8 SCC 481 EXAMINED THE ISSUE OF COLLECTION OF CAPITATION FEES FOR THE ADMISSION OF STUDENTS OVE R AND ABOVE FEES PRESCRIBED BY THE PRIVATE INSTITUTION AND HELD THAT THE INSTITUTION W HICH ARE COLLECTING CAPITATION FEES FOR ADMISSION OF STUDENTS OVER AND ABOVE THE FEES P RESCRIBED CANNOT BE CONSTRUED AS CHARITABLE/EDUCATION INSTITUTION. APEX COURT FURTHE R OBSERVED THAT THE FEES COLLECTED OVER AND ABOVE THE PRESCRIBED FEE FOR ADM ISSION OF THE STUDENT HAS TO BE CONSTRUCTED AS CAPITATION FEE. THE APEX COURT FUR THER OBSERVED THAT THE CONCERNED UNIVERSITY AND REGULATED BODY HAS TO TAKE ACTION FO R WITHDRAWAL OF THE RECOGNITION IN CASE IT IS FOUND THAT THE EDUCATIONAL INSTITUTIO N RECEIVED ANY MONEY OVER AND ABOVE THE FEES PRESCRIBED FOR THE COURSES. SAME VIE W WAS TAKEN BY APEX COURT IN THE CASE OF ISLAMIC ACADEMY OF EDUCATION AND ANOTHE R VS. STATE OF KARNATAKA & ANOTHER (2003) 6 SCC 697. IF THE DONATIONS WERE RE CEIVED COMPULSORILY 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 AUTHORI TIES WERE NOT EXAMINED THE COLLECTION OF CAPITATION FEES IN THIS CASE IN OUR OPINION THE MATTER REQUIRES TO BE EXAMINED BY THE ASSESSING OFFICER WHETHER THE ASSES SEE IS COLLECTING THE CAPITATION FEES FROM STUDENTS OR NOT AND IT IS NECESSARY FOR B RINGING THE ACTUAL FACTS ON RECORD FOR DECIDING THE ISSUE EFFECTIVELY. SIMILAR VIEW W AS TAKEN BY US IN THE CASE OF M/S. JAMIA NIZAMIA IN ITA NO.763/HYD/2007 DATED 30.6.200 8 IN THE CASE OF INTERNATIONAL EDUCATIONAL ACADEMY HYDERABAD IN ITA NO.494/HYD/2007 AND 518/HYD/2008 FOR THE ASSESSMENT YEARS 2002- 2003 A ND 2004-05 AND SRI SAI SUDHIR EDUCATIONAL SOCIETY HYDERABAD IN 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 O F ASSESSING OFFICER WITH A DIRECTION TO ASSESSING OFFICER THAT HE SHALL RECONS IDER THE ENTIRE ISSUE IN THE LIGHT OF JUDGEMENT OF SUPREME COURT IN THE CASE OF M/S ISLAM IC ACADEMY OF EDUCATION & ANOTHER 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 MONEY OVER AN D ABOVE THE FEES PRESCRIBED AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANC E WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE . WE MAKE IT CLEAR THAT THE ASSESSEE IS NOT ENTITLED FOR EXEMPTION EITHER U/S 1 1 OR U/S 10(23C) IN CASE IT COLLECTED ANY MONEY BY WHATEVER NAME IT IS CALLED I .E. DONATION BUILDING FUND AUDITORIUM FUND ETC. ETC. OVER AND ABOVE THE PRESC RIBED FEE FOR ADMISSION OF STUDENTS. 4. IN THE RESULT REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ITA NO.1199/H/2009 AGARWAL SIKSHA SAMITHI HYD. 3 3 4. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE TRIBUNAL IN THE ABOVE ORDER WE SET ASIDE THE ISSUE IN DISPUTE TO THE FILE OF ASSESSING OFFICER ON SIMILAR DIRECTION FOR FRESH CONSIDERATIO N. 5. IN THE RESULT THE APPEAL OF THE REVENUE IS A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 20.1.2011 SD/- SD/- G.C. GUPTA CHANDRA POOJARI VICE PRESIDENT ACCOUNTANT MEMBER DATED THE 20 TH JANUARY 2011 COPY FORWARDED TO: 1. THE DY. DIRECTOR OF INCOME TAX (E)-I HYDERABAD 2. SHRI AGARWAL SIKSHA SAMITHI 21-1-823 PATHERGAT TI HYD. 3. CIT(A)- IV HYDERABAD. 4. CIT HYDERABAD 5. THE D.R. ITAT HYDERABAD. NP