Income Tax Appellate Tribunal - Cuttack
Indus Educational & Charitable Trust, ... vs Ito,Ward-2(1), Bhubaneswar on 14 October, 2020
IN THE INCOME TAX APPELLATE TRIBUNAL,
CUTTACK 'SMC' BENCH, CUTTACK
BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER
ITA No.19/CTK/2020
Assessment Year: 2010-2011
Indus Educational & Charitable Vs. ITO, Ward 2(1),
Trust, Plot No.3/33, IRC Village, Bhubaneswar.
Nayapalli, Bhubaneswar.
PAN/GIR No.AAATI 5702 M
(Appellant) .. ( Respondent)
Assessee by : Shri Niranjan Panda, CA
Revenue by : Shri Subhendu Dutta, DR
Date of Hearing : 01 /09/ 2020
Date of Pronouncement : 14/10/2020
ORDER
This is an appeal filed by the assessee against the order of the CIT(A),1, Bhubaneswar dated 18.9.2019 for the assessment year 2010- 2011.
2. The assessee has raised the following grounds of appeal:
" 1. For that the order of the learned C.I.T Appeal - 1, Bhubaneswar dated 18.09.2019 passed in Appeal No. ITA-0423/13-14 confirming the assessment order dated 01.03.2013 passed by the ITO, Ward- 2(1), Bhubaneswar hereinafter referred to as learned 'Assessing Officer' is not just and legal on the facts and in the circumstances of the case.
2. For that the learned CIT(A) is not justified in upholding the addition to the extent of Rs. 31,68,430/- (being excess of income P a g e 1 | 16 ITA No .1 9/ CTK /2 020 Assessm ent Y ear : 20 10- 201 1 over expenditure of Rs. 26,06,930/- and disallowance of salary paid to Managing Trustee of Rs. 5,61,504/-) made by the learned Assessing Officer on the facts and in the circumstances of the case.
3. For that the order of learned CIT (A)-1, Bhubaneswar confirming the A.O's addition of the income of Rs. 26,06,930 /- (being excess of income over expenditure claimed as exemption by the appellant) after rejecting the exemption status of the appellant Trust & treating the appellant as AOP on the ground that the appellant Trust had collected fees in excess of the fees prescribed by the authority which is not a fact & against the materials available on record.
4. For that the order of learned C1T (A)-1, Bhubaneswar confirming the A.O's addition of Rs. 5,61,504/- (being the salary paid to Smt.Ragoor Sujatha, Managing Trustee of the Trust) after observing that the salary paid to the Managing Trustee is liable to be disallowed since the status is taken as AOP after rejecting the benefit of exemption U/S-11 of the l.T Act 1961 is not just and correct on the facts and in the circumstances of the case.
5. For that without prejudice to the grounds mentioned above the learned A.O is wrong in not allowing the exemption U/s.11 of l.T.Act,1961 on the wrong grounds without giving adequate opportunity to the appellant which is nothing but gross violation of principle of natural justice."
3. Ground No.1 of appeal is general in nature and hence, requires no adjudication.
4. Apropos Ground Nos.2 & 3 of appeal, facts of the case are that the assessee appellant is a registered charitable educational trust, established for imparting B.Tech, Diploma & equivalent course in Odisha. The assessee trust was granted registration u/s.12AA of the Act w.e.f 9.4.2007. The assessee trust filed return of income for the assessment year under consideration declaring total income at Rs.Nil. During the course of assessment proceedings, the Assessing Officer noticed that the assessee in P a g e 2 | 16 ITA No .1 9/ CTK /2 020 Assessm ent Y ear : 20 10- 201 1 the income and expenditure, has shown gross income of Rs.7,41,83,588/- comprises of annual tuition fees of Rs.7,30,58,043/- and interest & other income of Rs.11,25,545/-. Thus, the collection from academic sources i.e. collection under different heads is as under:
Sl.No. Academic income Amount in (Rs.)
1. Tuition fees (B.Tech) 4,54,11,000
2. Tuition fee (diploma) 18,12,100
3. Books and study materials 34,65,500
4. Transportation fees 68,02,050
5. Dress material fees 5,82,500
6. Misc. income 2,89,793
7. Hostel fees 51,85,844
8. Placement fees 17,80,000
9. Subsidized lunch books Emp.Training 65,80,855
10. Summer training course (Oracle) 11,47,401
Total : 7,30,58,043/-
4. The AO also noticed that as against sanction strength of Rs.1020 in different B.Tech courses, 742 students had taken admission and as against sanctioned strength of 240 in Diploma courses, 78 students had taken admission in the academic year 2009-10. The AO also further noticed that the assessee trust has collected excess fees from student than that of the prescribed by the Government and the excess funds were utilized for expansion of infrastructure, carrying of educational activities, which cannot be considered for charitable purposes. In view of above, the AO held that the assessee trust is not entitled for exemption u/s.11 of the Act, for which surplus of income over expenditure amounting to Rs.26,06,930/- and, P a g e 3 | 16 ITA No .1 9/ CTK /2 020 Assessm ent Y ear : 20 10- 201 1 therefore, the AO disallowed the same treating the assessee as an AOP in stead of Trust.
5. On appeal before the ld CIT(A), the assessee filed written submission with relevant documents and additional evidences, which were sent to the AO for a remand report u/s.250(4) of the Act. The remand report furnished by the O dated 6.8.2019 is as under:
""Facts of the case :-01. Fee Structure:-
The assessee is a trust created by virtue of trust deed on 08.12.2006. It runs a degree engineering college in the name and style of "Indus College of Engineering" and imparting technical education. During the academic year 2009-10 approval has been accorded to the trust for imparting diploma engineering courses under the name and style of "Indus School of Engineering". The assessee has been registered u/s 12AA of the IT Act, 1961 w.e.f 09.04.2007 vide order dtd.27.06.2008 by the then Commissioner of Income-Tax, Bhubaneswar.
.,Return of income for the A/Y 2010-11 relevant to the F/Y 2009-1Q was filed on 30.09.2010, showing 'nil' income. Case has been picked up for scrutiny' through CASS. Assessment was completed on 01.03.2013 determining the total income at Rs.31,68,430/-(r.f.). While determining the total income the AO denied exemption u/s 11 of IT Act 1961, to the tune of Rs.26,06,930/- due to violation of collection of fee structure from the students over and above the fees prescribed by the State Government © fixed for students. Besides, the above addition, the AO denied expenditure claimed u/s.13(1)(c) of I.T.Act being salary paid to the trustee for gross violation of section 11 of I.T.Act by the assessee.
During the course of assessment proceedings the AO observed that for the relevant assessment year 2010-11 the assessee has disclosed gross income to the tune of Rs.7,41,83,588/-, which includes interest income of Rs.11,25,545/-. Thus income from' academic sources i.e., collection under different heads which is as under :-
SI. No. Academic Income Amount in (Rs.)
01. Tuition fee(B.Tech) 4,54,11,000/-
02. Tuition fee(Diploma) 18,12,1000/-
03. Books and study materials 34,66,500/-
04. Transportation fees 68,02,050/-
05. Dress material fees 5,82,500/-
P a g e 4 | 16
ITA No .1 9/ CTK /2 020
Assessm ent Y ear : 20 10- 201 1
06. Misc.Income 2,89,793/-
07. Hostel Fees 51,85,844/-
08. Placement Fees 17,80,000/-
09. Subsidized Lunch books 65,80,855/-
Emp.Training
10. Summer Training 11,47,401/-
Course(Oracle)
Total 7,30,58,043/-
The assessee had also furnished the details of approved strength as well as admitted strength of students for courses like, Computer Science, Electronics and Communication, Information and Technology, Electrical & Electronics, Electrical, Mechanical, Master in computer Application, Master in business Administration for B.Tech courses held under the trust . As discussed by the A.O at page '2' and '3' of the assessment order during the academic year the assessee has as much as '742' students against sanctioned strength at 1020' for the academic year during 2009-10. Similarly, for Diploma courses the assessee have had a strength of 78 students against sanctioned strength of 240 students.
From the above it was true that the assessee had strength of 742 admitted students for B.Tech courses and 78 number of Diploma students during the academic year 2009-10 against intake capacity of 1020 and 240 respectively. Also the course wise fee structure as produced by the Ld. A/R of the assessee during the course of assessment proceedings is as under:-
Course/ Course Placem Books Transp Dress Subsidi Employa Hostel Total
Year fee(Rs. ent and ort mater zed bility fees
fees study ials lunch training
materials
B.Tech 40,000 2,500 1,900 10,000 ~- 3,750 4,800 33,000 98,950
2007
B.Tech 64,500 2,500 4,900 10,000 -- 3,750 4,800 33,000. 123450 2008 B.Tech 64,500 2,500 4,900 10,000 -- 3,750 4,800 33,000 123450 2009 Diplom 23,700 10,000 -- 3,750 31,000 68,450 a 2009 All Govt. Engineering colleges/Polytechnics/Engineering Schools are. under the administrative control of the Director of Technical Education &-- Training, Industries Department of Govt, of Odisha, whereas the private Engineering colleges/poly techniques are unaided institutions affiliated to BPUT/state council for Technical Education & Vocational Trainings Odisha and approved by AICTE/State Government A reference to Government notification dated 17.12.2007 ( No.I-IT-141/2007 (pt.) 18488 which speaks about fee structure for the academic session 2007-08 which also hold good its validity for the academic year 2009-10. Extract of the notification is as under:
P a g e 5 | 16 ITA No .1 9/ CTK /2 020 Assessm ent Y ear : 20 10- 201 1 "In pursuance of the provision of the Orissa Professional Educational Institutions(Regulation of Admission and Fixation of Fees)) Act 2007 and consequent upon the interim order of the Hon'ble Supreme Court dated 01.06.2007 in petitions for special Leave to Appeal(Civil No(s) 10318/2007 and in three others and interim order of the Hon'ble Apex court dated 18.06.2007 in Civil Appeal No.2872/2007, Government constituted the fee structure Committee for determination of fee for admission to the private professional Technical institution of the state."
The fee structure committee after due consideration and taking into account the infrastructure of the institutions recommended the fee structure as follows :-
For the institute Indus College of Engineering, Bhubaneswar fee structure is Rs. 40,000/- Also there was a Ceiling of optional cost on following items :-
SI. Particulars Amount in (Rs.)
No.
01. Hostel cost Rs. 14,000/- per year
02. Transportation Rs.7,000/- up to 20 kms and 10,000/- for more
cost than that for full year
03. Placement fees Rs. 10,000/- for each course subject to a
maximum of Rs.2,500/- per year
04. Blazer & Uniform The cost of Blazer provided by the college shall not exceed Rs.2,500/- and for Blazer and Uniform together provided by the college shall not exceed Rs.4,000/-
As per the prescribed cost mentioned above colleges/institutions are not allowed to charge any other optional cost in any manner or in any name. Since the assessee was indulged in collecting excess fees from students than that of the amount prescribed by the Govt, and the capitation fee was utilized for expansion of infrastructure, carrying of educational activities cannot be considered solely for charitable purpose but for commercial purpose, where education is sold for price. In view of the fact the assessee is not eligible to claim exemption u/s 11 for which surplus of income over expenditure amounting to Rs.26,06,930/- was disallowed and added back to the total income 'NIL' as disclosed by the appellant. Also the AO treated the status of the assessee as 'AOP' instead of its claim as 'Trust' "
6. The ld CIT(A) provided copy of the remand report to the assessee for giving rejoinder. The reply/rejoinder to remand report of the AO by the assessee is as under:
P a g e 6 | 16 ITA No .1 9/ CTK /2 020 Assessm ent Y ear : 20 10- 201 1 " Withdrawal of the exemption u/s.11 of the I.T.Act, 1961 and taxing Rs.26,06,930/- being excess of income over and expenditure:
That the AO has completely misread the notification and recommendation of the Govt. and concluded as under:
a) The assessee has collected fees over and above the prescribed fees like course fees, hostel fees, and employability training fees etc which are not as per the norms of AICTE Act 1987.
b) The assessee trust though is running educational activities, the actual generation of surplus year after year spent in expansion of infrastructure I facilities proved that the activities are in realistic sense meant to earn profit and no charity is genuinely involved.
6.1 That to understand the issue in greater clarity the provision of Sec- 2(15) of the Act is worth mentioning.
a) That according toSec-2(15) of the act, expression "Charitable purpose"
has been defined by way of inclusive definition so as to include relief to the poor, education, medical and advancement of any other object of genera! public utility.
6.2 That Imparting education is coming under the definition of charitable purpose under the provision of Sec-2(15) of the Act. The appellant trust is imparting education courses like B-Tech in conformity with the object clause of the trust deed, the copy of which was furnished earlier before your honour.
6.3 That admittedly the assessee trust is registered under Sec-12AA of the Act. The genuineness of the registration and the operation of the appellant trust has nowhere been disputed by A.O. in fact learned A.O. has admitted the fact of carrying on educational activities in last para of Page-8 of his order dated 01.03.2013 6.4 That learned A.O's contention that the fees are collected over and above the fees prescribed by the appropriate authority is not correct and against the materials found on record.
6.5 That for better appreciation of the fact the assessee is to state that to regulate the fees structure of the private institutions, Govt, of Odisha had introduced an Act under the name & style of Orissa Professional educational Institutions (Regulation of Admission and Fixation of Fees) Act, 2007.
6.6 That the validity of the said Act i.e., Orissa Professional Educational Institution (Regulation of Admission and Fixation of Fees) Act,2007 was challenged by Orissa Private Engineering College Association (OPECA). before Hon'ble Odisha High Court vide writ petition W.P.C No.244fyof 2007.
P a g e 7 | 16 ITA No .1 9/ CTK /2 020 Assessm ent Y ear : 20 10- 201 1 Hon'ble Odisha High Court vide its judgement -dated 18.05.2007 quashed the Act'2007.
6.7 That against the above said judgement the Govt, of Odisha t filed on appeal vide civil appeal No. 2873 of 2007 before Hon'ble Supreme Court which is still pending before Hon'ble Supreme Court. The Apex, Court while admitting the said appeal along with other connected appeals passed an interim order vide order dated 01.06.2004 staying the operation of the aforesaid Act. More so, in the said appeal the Hon'ble Apex Court was pleased to direct for the constitution of a policy Planning body (P.P.B.) as well as the fees structure committees (F.S.C). It is pertinent to mention here that the said civil appeal is still pending before Hon'ble Supreme Court Thus the Fee structure committee came into existence.
6.8 That as per the mandate the fees structure committee before recommending any fees schedule should discuss with the institution and evaluate the cost of education and infrastructure available which have paramount bearing on the component of the fees.
6.9 That the fees committee without due consideration & without giving opportunity to the appellant, arbitrarily & unilaterally had finalised the fees from time to time. The appellant had agitated this matter before appropriate authority vide its letter dated 14.07.2008, 15.04.2010 & 25.06.2010 the copies of which are enclosed herewith & marked as Annexure-C,D & E respectively for your honour's kind perusal.
6.10 That this matter was also brought to the notice of Hon'ble Odisha High Court vide Writ Petition No.3824 of 2009 by Orissa Private Engineering College Association (OPECA). Hon'ble Odisha High Court vide its order dated 15.04.2009 directed as under:
"The representation shall be disposed of by the Fee Structure Committee before expiry of its life. The aforesaid order is subject to the condition that the representation under Annexure-4 and the representations of the other member institutions pursuant to the resolution of the Fee Structure Committee are pending disposal." The copy of the order of the Hon'ble Odisha High Court is enclosed herewith & marked as Annexure-F. 6.11 That due to the unjust fixation of Fees, the appellant had filed the following Writ Petitions before the Hon'ble Odisha High Court challenging the arbitrary & unilateral action of the Fees Structure Committee:
6.11 That due to the unjust fixation of Fees, the appellant had filed the following Writ Petitions before the Hon'ble Odisha High Court challenging the arbitrary & unilateral action of the Fees Structure Committee:
P a g e 8 | 16
ITA No .1 9/ CTK /2 020
Assessm ent Y ear : 20 10- 201 1
SI. Particulars Case No. Status
No.
1 Fees collected W.P.(C) Writ Pending
for B.Tech No.22332 of
Courses 2010
2 Fees collected Misc. Case Interim Order passed
for B.Tech No.20452 of 2010 directing no coercive action
Courses shall be taken. It is further
clarified that in case the
petitioner-institution does
not succeed in the writ
extra fees collected over
& above the prescribed
fees will be adjusted
towards the fees of the
respective students.
3 Fees collected W.P.(C) No. Writ pending
for MBA courses 22333 of 2010
4 Fees collected Misc. Case Interim order passed
for MBA courses No.20453 of 2010 directing no coercive action shall be taken further clarified that in case the petitioner-institution does not succeed in the writ extra fees collected over & above the prescribed fees will be adjusted towards the fees of the respective students.
5 Fees collected W.P.(C) Writ pending for MCA courses No.22493 of 2010
6. Fees collected Mis. Case Interim order passed for MCA courses No.20524 of 2010 directing no coercive action shall be taken. It is further clarified that in case the petitioner-institution does not succeed in the writ extra fees collected over & above the prescribed fees will be adjusted towards the fees of the respective students.
Hon'ble Odisha High Court has given clear cut clarification to appropriate the extra fees collected in case the appellant failed to succeed in the writ.
P a g e 9 | 16 ITA No .1 9/ CTK /2 020 Assessm ent Y ear : 20 10- 201 1 As a token of evidence the copies of both the orders of Hon'ble Orissa High court are enclosed herewith & marked as Annexure- G, H & I respectively for your honour's kind perusal.
6.12 That Hon'ble Odisha High Court vide it's above said orders clearly allowed the appellant trust to collect and retain fees till the finalization of the writ which is still awaiting disposal.
6.13 That from above sequel of the facts it is quite evident that no just & proper fees structure has been decided by Fee structure Committee which is entangled with many litigations pending before Hon'ble Odisha High Court. Thus learned A.O's observation of charging fees in excess of prescribed is against the materials available on record.
6.14 That without prejudice to the argument preferred above the appellant is to state that the fees charged to the student is in no way excess if we compare the fees charged by other contemporary institutions imparting the same course.
Sr.No Institution B.Tech Institution MBA
1 C.V Raman 67,000/- Academy of 76,000/-
College, BBSR Business, Balasore
2 Gandhi 70,000/- Ajay Binoy 65,000/-
engineering Inst,Cuttack
college, BBSR
3 Krupajal Engg 64,000/- Bijupatnaik Inst, of U 95,000/-
college, BBSR & MGT, BBSR
4 Silicon Inst Of 68,000/- NIST, Berhampur 78,000/-
Techno, BBSR
5 NIST, Berhampur 68,000/- Gandhi Inst, Gunupur 73,000/-
6 Gandhi Inst, BBSR 67,000/- - DRIEMS , CUTTACK/ 76,000/-
7 Jagannath Inst, 67,000/- NM Inst, BBSR 76,000-
Gajapati
8 Gandhi Inst, 70,000/- Srusti Academy, BBSR 84,000/--
Gunupur
Analysis of the above facts reveals that the fees charged by the appellant trust are in no stretch of imagination in excess as compared to the above cotemporary Institutions. Thus learned A.O'S observation that the activities of the appellant trust are in realistic sense meant to earn profit and no charity is genuinely involved is a concoction & has no leg to stand.
6.15 That your honour's attention is drawn to the fact that in the case of T.M.A pai foundation vs. state of Karnataka (2002) 8 SCC 481 , Hon'ble P a g e 10 | 16 ITA No .1 9/ CTK /2 020 Assessm ent Y ear : 20 10- 201 1 supreme Court has stated that the decision on the fees to be charged must necessarily be left to the private educational Institution that do not seek and which are not dependent upon any funds from the GOVT. Each institution will be entitled to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the infrastructure and facility available, the investments made, salaries paid to the teachers and staff, future plans for expansion and /or betterment of the institution etc".
In view of the clear-cut mandate of the Apex Court the conclusion of learned A.O regarding collection of fees in excess of the prescribed limit has no leg to stand.
6. 16 That the appellant is providing education which is coming as a charitable object under the definition of Sec-2(15) of the LT. Act, 1961. The appellant enjoys the status of a valid charitable Trust by virtue of registration U/S 12AA of the Act. As long as the charitable status is intact the A.O does not have authority to withdraw the benefit available to a charitable organization U/s. 11 of the Act except for violation as provided in Sec 11 to 13 of the Act. No such violation has been established. The Hon'ble ITAT, Cuttack Bench, Cuttack has observed that even the administrative CIT does not have unbridle powers to withdraw the registration of a charitable organization U/s-12AA(3) of the Act as is decided in the case of Kalinga Institute of Information Technology(KIIT) vs. CIT (2008)23 SOT 74. Obviously, the AO does not enjoy any such power under the Act and the AO cannot deny the exemption U/s 11 without establishing any violation. No such violation has been established. Therefore, imposing Tax ignoring the exemption status is totally unfounded."
7. After considering the remand report vis-à-vis the reply to remand report by the assessee and the recommendation of fees structure committee, the ld CIT(A) confirmed the action of the Assessing Officer. Hence, the assessee is in appeal before us.
8. Ld A.R. of the assessee reiterating the submissions made by the assessee in the rejoinder to the remand report and submitted that assessee trust is providing education which is coming as a charitable object under the definition of Sec-2(15) of the LT. Act, 1961. The appellant enjoys the status of a valid charitable Trust by virtue of registration U/S 12AA of the Act. As P a g e 11 | 16 ITA No .1 9/ CTK /2 020 Assessm ent Y ear : 20 10- 201 1 long as the charitable status is intact the A.O does not have authority to withdraw the benefit available to a charitable organization U/s. 11 of the Act except for violation as provided in Sec 11 to 13 of the Act. No such violation has been established. The Hon'ble ITAT, Cuttack Bench, Cuttack has observed that even the administrative CIT does not have unbridle powers to withdraw the registration of a charitable organization U/s-12AA(3) of the Act as is decided in the case of Kalinga Institute of Information Technology (KIIT) vs. CIT (2008)23 SOT 74. Obviously, the AO does not enjoy any such power under the Act and the AO cannot deny the exemption U/s 11 without establishing any violation. No such violation has been established. Therefore, imposing Tax ignoring the exemption status is totally unfounded.
9. Ld AR also submitted that in view of decision of Hon'ble Supreme Court in the case of TMA Pai Foundation vs State of Karnataka (supra), the conclusion drawn by the AO regarding collection of excess fees of the prescribed limit has no legs to stand, thus, not sustainable. He also submitted that the Hon'ble High Court of Orissa in the W.P. (C) No.22332 of 2010, 22333 of 2010 and 22493 of 2010, which are pending before the Hon'ble High Court has passed orders directing that no coercive action shall be taken and it was also clarified that in case assessee/petitioner institution does not succeed in the writ, the extra fees collected over and above the prescribed fees will be adjusted towards the fees of respective students.
P a g e 12 | 16 ITA No .1 9/ CTK /2 020 Assessm ent Y ear : 20 10- 201 1 Therefore, the action of the AO is not correct and sustainable and the ld CIT(A) was also not justified in confirming and upholding the same.
10. Replying to the contention of ld A.R. of the assessee, ld DR strongly supported the orders of the lower authorities. However, he did not controvert the factum that the writs filed by the assessee are pending before the Hon'ble High Court of Orissa and interim stay orders have been passed therein that in case the assessee/petitioner institution does not succeed in the writs, extra fees collected over and above prescribed fees will be adjusted towards the fees of respective students.
11. On careful consideration of above submissions, I am of the view that from the relevant operative paras of assessment order, it is discernible that the AO firstly held that the assessee is found to be collecting from students' extra amount of course fees and fee in other categories such as employability of training, hostel, etc and such other fees is considered as capitation fees. The AO further noted that the notwithstanding the fact that the surplus of funds arising out of receipts from students are utilized for expansion of infrastructure by the Trust, for carrying of educational activities cannot be considered solely for charitable purposes being education but for commercial activities where education is sold for a price. Consequently, he denied benefit of section 11 of the Act to the assessee.
P a g e 13 | 16 ITA No .1 9/ CTK /2 020 Assessm ent Y ear : 20 10- 201 1
12. Undisputedly, assessee trust enjoys registration u/s.12AA of the Act and it is also not a case of the AO that the activities of the assessee are not in accordance with its objects stated in the trust deed or assessee is doing or conducting any activities beyond its objects which is in the nature of commercial activities for profit motive. The only basis and allegation of the AO against the assessee for denying the benefit of section 11 of the Act is collecting of extra fees over and above the prescribed fees. At the same time, we also observe that the AO has noted that the surplus of funds arising out of the receipts from students have been utilized for expansion of infrastructure by the assessee trust but denied exemption u/s.11 of the Act that carrying of educational activities cannot be considered as solely for charitable purposes. In my considered and respectful opinion, in view of interim orders passed by Hon'ble High Court of Orissa, copies placed at pages 79 to 88 of assessee's paper book, I have no hesitation to hold that the Hon'ble High Court has allowed the assessee to retain extra amount of fees from prescribed limit till disposal of writ petitions. Even if assessee does not succeed in the said writes, then also, excess or extra charged fees has to be adjusted towards the fees of the respective students from whom it has been collected during completion of their courses. Order of Hon'ble High Court dated 22.12.2010 in W.P. (C) 22332 of 2010/Misc. case No.20452 of 2010 is being respectfully reproduced below for the sake of clarity:
P a g e 14 | 16 ITA No .1 9/ CTK /2 020 Assessm ent Y ear : 20 10- 201 1 " Heard.
In the interim, it is directed that no coercive action shall be taken pursuant to the public notice issued in the daily "The Samaj"
annexed as Annexure-4 as well as the communication under Annexure-3 against the petitioner-institution till the next date. However, it is clarified that in the event the petitioner institution does not succeed in the writ petition, extra fee collected by the petitioner
- institution over and above the fees prescribed by the Fee Structure Committee will be adjusted towards the fees of the respective students from whom it has been collected during completion of their course.
Urgent certified copy of this order be granted on proper application."
13. I am cautious and refrain from making any observations regarding allegation of the AO about charging of extra fees from prescribed limit as the issue is pending for adjudication before the Hon'ble High Court of Orissa in the respective writ petitions filed by the assessee. Therefore, in the totality of facts and circumstances of the case, the benefit of section 11 of the Act cannot be denied to the assessee only on the allegation of charging of extra fees from prescribed limit by taking respectful cognizance of the interim orders of Hon'ble High Court of Orissa (supra). Accordingly, Ground Nos.2 & 3 of the assessee are allowed.
14. Apropos Ground Nos. 4 & 5 of appeal, ld A.R. submitted that the benefit of section 11 of the Act was denied to the assessee without any reasonable cause, thus consequent disallowance of salary paid to Smt. Sujata of Rs.5,61,504/- should be deleted.
15. Ld D.R. supported the orders of the AO as well as ld CIT(A).
P a g e 15 | 16 ITA No .1 9/ CTK /2 020 Assessm ent Y ear : 20 10- 201 1
16. Since in the earlier part of this order, I have hold that the denial of benefit of section 11 is not correct and sustainable. Hence, consequential disallowance of salary paid to Mrs Sujata of Rs.5,61,504/- cannot be held as justified and sustainable. Accordingly, Ground Nos.4 & 5 of appeal are also allowed. The AO is directed to allow the same.
17. In the result, appeal of the assessee is allowed.
Order pronounced on 14 /10/2020.
Sd/-
(Chandra Mohan Garg)
JUDICIAL MEMBER
Cuttack; Dated 14/10/2020
B.K.Parida, SPS (OS)
Copy of the Order forwarded to :
1. The Appellant : Indus Educational & Charitable Trust, Plot No.N-3/33, IRC Village, Nayapalli, Bhubaneswar
2. The Respondent. ITO, Ward 2(1) , Bhubaneswar.
3. The CIT(A)-1, Bhubaneswar
4. Pr.CIT- 1, Bhubaneswar
5. DR, ITAT, Cuttack
6. Guard file.
//True Copy// By order Sr.Pvt.secretary ITAT, Cuttack P a g e 16 | 16