ADIT (Exemptions)-I, Hyderabad v. Human Resource Development Society, Hyderabad

ITA 1377/HYD/2011 | 2005-2006
Pronouncement Date: 27-12-2011 | Result: Dismissed

Appeal Details

RSA Number 137722514 RSA 2011
Assessee PAN AAATH0868H
Bench Hyderabad
Appeal Number ITA 1377/HYD/2011
Duration Of Justice 5 month(s) 1 day(s)
Appellant ADIT (Exemptions)-I, Hyderabad
Respondent Human Resource Development Society, Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 27-12-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 27-12-2011
Assessment Year 2005-2006
Appeal Filed On 26-07-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH HYDERABAD BEFORE SHRI CHANDRA POOJARI A.M. & SMT. ASHA VIJAYARAGHAVAN J.M. ITA NO.1377/HYD/2011 ASSESSMENT YEAR 2005-06 THE ASST. DIRECTOR OF IT(EXEMPTIONS) HYDERABAD VS M/S HUMAN RESOURCE DEVELOPMENT SOCIETY HYDERABAD. ( PAN AAATH 0868 H) APPELLANT RESPONDENT APPELLANT BY : SHRI B.V. PRASAD REDDY RESPONDENT BY : SHRI MOHD. AFZAL DATE OF HEARING : 15/11/2011 DATE OF PRONOUNCEMENT : 27/12/2011 ORDER PER ASHA VIJAYARAGHAVAN JM: THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) IV HYDERABAD DATED 29. 4.2011 AND IT PERTAINS TO THE ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2005-06 ON 1.10.2007 DECLARING NIL INCOME AFTER CLA IMING EXEMPTION U/S 11 OF THE IT ACT. SUBSEQUENTLY IT WAS NOTICED THAT THE SURPLUS HAS NOT BEEN TAXED IN THE ABSENCE OF NOTIFICATION U/S 1 0(23C)(VI) OF THE ACT. NOTICE U/S 148 HAS BEEN ISSUED TO THE ASSESSEE AND IN RESPONSE TO THIS THE ASSESSEE STATED THAT THE RETURN FILED ON 1.11.2 007 MAY BE TREATED AS HAVING BEEN FILED IN RESPONSE TO NOTICE U/S 148. 3. CONTESTING THE ACTION OF THE ASSESSING OFFICER THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL BEFORE T HE CIT(A) ITA NO.1377/HYD/2011 M/S HUMAN RESOURCE DEVELOPMENT SOCIETY HYD. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE ORDER OF THE ASSESSING OFFICER IS CONTRARY TO LAW AND FACTS OF T HE CASE. 2. THE ASSESSING OFFICER ERRED IN HOLDING THAT THE ASSESSEE HAS NOT OBTAINED APPROVAL U/S 10(23C) (VI) OF THE ACT THER EFORE THE ASSESSEE HAS TO BE TAXED ON THE SURPLUS OF RS.63 40 727/- IN SPITE OF BEING ELIGIBLE TO CLAIM EXEMPTION U/S 11 OF THE IT ACT. 3. THE ASSESSING OFFICER ERRED IN NOT APPLYING PRO VISIONS OF SECTION 11 OF THE ACT IN SPITE OF HAVING REGISTRATION U/S 12AA OF THE IT ACT GRANTED BY THE CIT(A)-II HYDERABAD VIDE PROCEEDING S IN HQRS.II/12A & 80H/22/98-99. 4. THE APPELLANT CRAVE LEAVE TO ADD/TO SUBSTITUTE/ALTER/MODIFY/DELETE ALL OR ANY OF THE GR OUNDS. 4. THE LEARNED AR OF THE ASSESSEE CONTENDED THAT T HERE IS NO EMBARGO ON CLAIMING EXEMPTION EITHER U/S 10(23C) OR U/S 11 AND THAT APPLICATION SECTION 11 IS NOT EFFECT BY SECTION 10(23C). HE FU RTHER CONTENDED THAT BOTH THE SECTIONS OPERATE SIDE BY SIDE PROVIDED TH E CONDITIONS IN THE RESPECT SECTIONS ARE FULFILLED. THE AR RELIED ON T HE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. MAHA SABA GURUKUL VIDYAPEETH HARYANA (326 ITR 25) WHEREIN IT WAS HE LD THAT WHEN ALL REQUISITE CONDITIONS FOR EXEMPTION U/S 11 ARE MET EVEN IF CONDITIONS U/S 10(23C)(VI) ARE NOT COMPLIED WITH THERE WOULD BE N O BAR TO SEEK EXEMPTION U/S 11. 5. HE SUBMITTED THAT THOUGH IT IS SEEN THAT IN THE ASSESSEES CASE NO FINDING WITH REGARD TO CHARGING OF DONATION ETC. HA S BEEN MADE BY THE ASSESSING OFFICER KEEPING IN VIEW THE OBSERVATIONS OF THE HONBLE TRIBUNAL IN THE CASE OF M/S JAMIA NIZAMIA IN ITA NO .763/HYD/2007 DT. 30.6.2008 INTERNATIONAL EDUCATIONAL ACADEMY HYDER ABAD IN ITA NO.494/HYD/2007 AND 518/HYD/2008 AND SRI SAI SUDHEE R EDUCATIONAL ITA NO.1377/HYD/2011 M/S HUMAN RESOURCE DEVELOPMENT SOCIETY HYD. SOCIETY HYDERABAD IN ITA NO.999/HYD/2006 WHEREIN IT WAS HELD THAT IF DONATIONS ARE RECEIVED COMPULSORILY FOR THE ADMISSI ON OF STUDENTS BY WHATEVER THE NAME IT MAY BE CALLED I.E. DONATIONS BUILDING FUND AUDITORIUM FUND ETC. OVER AND ABOVE THE PRESCRIBED FEE FROM THE STUDENTS FOR ADMISSION THE ASSESSEE WOULD NOT BE ENTITLED F OR EXEMPTION EITHER U/S 10(23C) OR U/S 11 OF THE ACT. THEREFORE THE A SSESSING OFFICER IS DIRECTED TO VERIFY THIS ASPECT AGAINST WHILE GIVING EFFECT TO THIS ORDER. BY UPHOLDING THIS VIEW THE HONBLE TRIBUNAL IN THE CA SE OF ADIT (E) VS. SAINT LOUIS EDUCATIONAL SOCIETY IN ITA NO.1418/HYD/ 2010 HAVE ALSO OBSERVED THAT SINCE THE ASSESSEE IN THE SAID CASE H AD CLAIMED EXEMPTION U/S 11 OF THE ACT THE ASSESSING OFFICER WAS TO EXA MINE WHETHER THE ASSESSEE WAS COLLECTING ANY AMOUNT OVER AND ABOVE T HE FEES PRESCRIBED FOR ADMISSION OF STUDENTS AND ALSO EXAMINE THE VIOL ATION OF SECTION 11 12 AND 13 OF THE ACT AND IN CASE THE ASSESSEE VIOLA TED ANY OF THE SAID PROVISIONS IT WAS NOT ENTITLED FOR EXEMPTION. FOL LOWING THE SAID VIEW IT IS HELD THAT IN CASE IT IS NOT FOUND THAT BESIDES F ULFILLING THE OTHER PREREQUISITE FOR EXEMPTION U/S 11 THE ASSESSEE HAS NOT CHARGED ANY FEES FROM THE STUDENTS OVER AND ABOVE THE PRESCRIBED FEE S THE ASSESSEE WOULD BE ENTITLED FOR EXEMPTION U/S 11 EVEN THOUGH THE N OTIFICATION U/S 10(23C)(VI) HAS NOT BEEN RECEIVED BY IT. ACCORDING LY THE GROUNDS TAKEN BY THE ASSESSEE ARE ALLOWED BY THE CIT(A) SUBJECT T O SUCH VERIFICATION. 6. AGGRIEVED BY THE ORDER OF THE CIT(A) THE REVEN UE IS IN APPEAL BEFORE US. 7. WE HEARD BOTH THE PARTIES. WE FIND THAT THE C IT(A) HAS MERELY HELD THAT IN THE CASE OF ASSESSEE SINCE NO F INDING WITH REGARD TO CHARGING OF DONATION HAS BEEN GIVEN BY THE ASSESSIN G OFFICER THE ASSESSING OFFICER SHALL KEEPING IN VIEW THE OBSERVA TIONS OF THE TRIBUNAL IN THE CASES OF VASAVI ACADEMY EDUCATION IN IT A NO.1749/H/2009 DAT ED 4.2.2010 THE TRIBUNAL HAVE FURTHER OPTED THAT IN V IEW OF THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF TMA PAI FOUNDATI ON AND OTHERS VS. STATE OF KARNATAKA & OTHERS (2002) 8 SCC 481 THE ASSESSING OFFICER IS ITA NO.1377/HYD/2011 M/S HUMAN RESOURCE DEVELOPMENT SOCIETY HYD. DIRECTED TO VERIFY THIS ASPECT AGAIN WHILE GIVING E FFECT TO HIS ORDER. FURTHER THE CIT(A) HELD THAT I N CASE IT IS FOUND THAT BESIDES FULFILLING THE CONDITIONS ATTACHED TO THE APPROVAL U/S 10(23C) THE ASSESSEE HAS NOT CHARGED ANY FEES FROM THE STUDENTS OVER AND ABOVE T HE PRESCRIBED FEES THE ASSESSEE WOULD BE ENTITLED FOR EXEMPTION U/S 10 (23C). THE GROUNDS TAKEN IN THIS APPEAL ARE THEREFORE ALLOWED IN FAVOU R OF THE ASSESSEE SUBJECT TO SUCH VERIFICATION. WE ARE OF THE OPINIO N THAT NO GRIEVANCE IS CAUSED TO THE DEPARTMENT IN AS MUCH AS THE CIT(A) HAS MERELY DIRECTED THE ASSESSING OFFICER TO VERIFY WHETHER OBSERVATION S OF THE TRIBUNAL IN THE CASE OF VASAVI ACADEMY HAS BEEN FULFILLED BY THE AS SESSEE AND AFTER SUCH VERIFICATION TO DECIDE THE SAME IN ACCORDANCE WITH LAW. WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) IN THIS BEHALF . ACCORDINGLY THE ORDER OF THE CIT(A) IS CONFIRMED AND THE GROUNDS OF THE REVE NUE IN THIS APPEAL ARE REJECTED. 9. IN THE RESULT THE REVENUE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 27.12.2011 SD/- SD/- (CHANDRA POOJARI) ( (ASHA VIJAYA RAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 27 DECEMBER 2011 COPY FORWARDED TO: 1. THE ASST. DIRECTOR OF INCOME (E)-I 3 RD FLOOR AAYAKAR BHAVAN BASHEERBAGH HYDERABAD-4. 2. M/S HUMAN RESOURCE DEVELOPMENT SOCIETY KESAV MEMOR IAL CAMPUS NARAYANAGUDA HYDERABAD 3. THE CIT(A)- -IV HYDERBAD. 4. THE CIT HYDERABAD 5. THE DR ITAT HYDERABAD NP/