Income Tax Appellate Tribunal - Hyderabad
Agarwal Siksha Samithi, Hyderabad vs Department Of Income Tax on 15 December, 2006
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCH 'B', HYDERABAD
BEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER
AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER.
ITA No.279/Hyd/2007
(Assessment Year 2003-04)
Astt. Director of Income- V/s Agarwal Siksha Samithi, Hyderabad
tax(Exemption), Hyderabad
(PAN - AAATA 5372 R )
(Appellant) (Respondent)
Appellant by : Shri K.E.Sunil Babu
Respondent by : Shri S.Rama Rao
Date of Hearing 5 3.2012
Date of Pronouncement 7.3.2012
ORDER
Per D.Karunakara Rao, Accountant Member:
This appeal by the assessee for the assessment year 2003-04 is directed against the order of the Commissioner of Income-tax(Appeals)
-IV, Hyderabad, dated 15.12.2006.
2. Revenue is aggrieved against the order of the Commissioner of Income-tax(Appeals) on account of the relief granted by the CIT(A) to the assessee, when the assessee failed to obtain the approval under S.10(23)(c)(via) of the Act, which is mandatory.
3. At the very outset, the learned counsel for the assessee mentioned that the issue involved in this appeal has to be set aside to the file of the assessing officer in tune with the directions of the Tribunal issued in assessee's own case for the assessment year 2006-07 in ITA No.1199/Hyd/2009, where on identical issue, the Tribunal, vide its order dated 20.1.2011, set aside the issue in dispute to the file of the 2 ITA No.279/Hyd/07 Agarwal Siksha Samithi, Hyderabad assessing officer relying on the still earlier order of the Tribunal dated 29.1.2009 in the case of Vasavi Academy of Education in ITA No.1120/Hyd/2009.
4. On the other hand, the Learned Departmental Representative, relied on the order of the assessing officer.
5. We heard both the parties and find that in assessee's own case for the assessment year 2006-07, the matter was set aside to the file of the assessing officer, by the Tribunal, vide its order dated 29.1.2011, following the still earlier order of the Tribunal in the case of Vasavi Academy of Education, as noted above. In this regard, we perused the relevant paras, viz. 3 and 4 of the said order in assessee's own case dated 20.1.2011, and the same are reproduced hereunder for the sake of completeness of this order-
"3. At the time of hearing on 20.1.2011 none appeared on behalf of the assessee. We heard the learned Departmental Representative and 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 fo M/s. Vasavi Academy Education for the assessment 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 assessee 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 assessee's own cases in ITA No.1133/Hyd/2006 for the assessment year 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 constitutional Bench of Apex Court in the case of T.M.A.Pai Foundation and others 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 institutions and held that the institution which ware collecting capitation fees for admission of students over and above the fees prescribed cannot be construed as charitable/educational institution. Ape Court further observed that the fees collected over and above the prescribed fee for admission of the student has to be construed as capitation fee. The Apex Court further 3 ITA No.279/Hyd/07 Agarwal Siksha Samithi, Hyderabad observed that the concerned university and regulated body has to take action for withdrawal of the recognition in case it is found that the educational institution received any money over and above the fees prescribed for the courses. Same view was taken by Apex Court in the case of Islamic Academy of Education and another Vs. State of Karnataka & Another (2003) 6 SCC 697. If the donations were received 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 authorities 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 assessee is collecting the capitation fees from students or not and it is necessary for bringing the actual facts on record for deciding the issue effectively. Similar view was taken by us in the case of M/s. Jamia Nizamia in ITA No.763/Hyd/2007 dated 30.6.2008, in the case of International Educational Academy, Hyderabad in ITA No.494/Hyd/2007 and 518/Hyd/29008 for the assessment years 2002-03 and 2004-05 and Sri Sai Sudhir Educational society, Hyderabad in ITA No.999/Hyd/2006 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 assessing officer that he shall reconsider the entire issue in the light of judgment of Supreme Court in the case of M/s. Islamic Academy of Education & Another V/s. State of Karnataka and Another ((supra), and in the cased of T.M.A.Pai Foundation and Others V/s. State of Karnataka and Others (supra), and find out whether the assessee has received any money over and above the fees prescribed and thereafter decide the issue afresh in accordance 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. 11 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 prescribed fee for admission of students.
4. In the result, Revenue's appeal is allowed for statistical purposes."
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 the assessing officer on similar direction for fresh consideration."
Considering the above, we are of the opinion that the issue involved in the present appeal should also be set aside to the file of the assessing officer with identical directions. We do so accordingly. Grounds of the Revenue in this appeal are allowed for statistical purposes.
4 ITA No.279/Hyd/07Agarwal Siksha Samithi, Hyderabad
6. In the result, Revenue's appeal is allowed for statistical purposes.
Order pronounced in the court on 7.3.2012
Sd/- Sd/-
(Saktijit Dey) (D.Karunakara Rao)
Judicial Member. Accountant Member.
Dt/- 7th March, 2012
Copy forwarded to:
1. Agarwal Siksha Samithi, 21-1-823, Pathergatti, Hyderabad
2. Dy. Director of Income-tax(Exemption)-I Hyderabad
3. Commissioner of Income-tax(Appeals)IV Hyderabad
4. Commissioner of Income-tax III, Hyderabad
5. The Departmental Representative, ITAT Hyderabad B.V.S.