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2020 (9) TMI 460 - AT - Income TaxExemption u/s 11 - assessee society is registered u/s 12AA - assessee trust provided undue benefit in lieu of salary to the persons specified u/s 13(3) - HELD THAT:- From the above decision of the ITAT in assessee's own case [2018 (8) TMI 748 - ITAT JAIPUR ] we noticed that even if the salary paid to the trustee are held to be unreasonable even then the exemption cannot be denied. Only excess/ unreasonable salary paid to the trustee, would not be entitled to the benefit of Section 11 of the Act. CIT(A) after taking into consideration the decision of ITAT Jaipur bench in assessee's own case for the Assessment Year 2014-15 [2018 (8) TMI 748 - ITAT JAIPUR] had correctly held that exemption u/s 11 cannot be denied in respect of entire surplus of the society. The present ground has been taken in appeal by the Department only on the ground that the order of ITAT for the A.Y. 2014-15 was not accepted by the Department. These arguments of the Revenue are not sustainable in the eye of law as merely filing of appeal against the order of ITAT is not enough and the Revenue has to show as to whether the Hon'ble High Court has stayed the operation of the said impugned order and in case there is no stay order by the Hon'ble High Court then the Revenue is bound as on today by the decision of the Coordinate Bench of ITAT in assessee's own case (supra) for the A.Y. 2014-15 and thus we dismiss these grounds raised by the Revenue. According, the Ground No. 1 to 3 raised by the Revenue are dismissed. Claim of capital expenditure - HELD THAT:- ITAT Coordinate Bench in assessee's own case for the A.Y. 2014-15 [2018 (8) TMI 748 - ITAT JAIPUR] has already held that the assessee is entitled to exemption u/s 11 of the Act then the capital expenditure is to be considered as application of income in computing the total income of the assessee. Therefore, the ld. CIT(A) under these facts and circumstances of the case has rightly directed the AO to allow the claim of capital expenditure as application of income. No new facts or circumstances have been brought before us in order to controvert or rebut the findings so recorded by the ld. CIT(A). Therefore, we find no reason to interfere into the lawful findings so recorded by the ld. CIT(A). Ground raised by the Revenue also stands dismissed. Disallowance of excess payment of salary to specified person u/s 13 - HELD THAT:- Since the order of the AO in set aside proceedings for the A.Y. 2014-15 was passed in pursuance to the direction of ITAT for A.Y. 2014-15 wherein salary paid to Hema Choudhary, Deepak Rastogi and Meghna Singhal has been accepted as reasonable. Therefore, we set aside the order of the ld. CIT(A) for the year under consideration and delete the disallowance of salary paid to these persons i.e. Hema Choudhary, Deepak Rastogi and Meghna Singhal. So far as the salary paid in respect of DR.Pankaj Garg and Smt. Vidushi Garg are concerned, we restore the matter back to the record of the AO for afresh adjudication after proper verification and examination of all the relevant facts. Thus the assessee is directed to produce all the relevant facts to establish the actual rendering of services by these two persons and also all the rules applicable in respect of the qualification and appointment of persons on such posts. Thus the appeal of the assessee is partly allowed for Statistical purposes.
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