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2015 (10) TMI 241 - AT - Income TaxRectification of mistake - whether there had occurred a mistake apparent from record in the tribunal's order in-as-much as the tribunal had assumed that exemption u/s.10(21) was not an issue before the ld. CIT(A)? - denial of exemption u/s.10(21) and 10(23C) - benefit of exemption u/s.11 - Held that:- The assessee has brought on record the approval u/s. 35(1)(ii) dated 27.06.2008 w.e.f. 01.04.2002, and which is a prerequisite for the applicability of s. 10(21). The same is subject to certain additions specified therein, and which have not been examined for their satisfaction by the A.O., being not furnished before him. It was thus incumbent on the ld. CIT(A) to have caused so after admitting the said Approval by way of additional evidence under rule 46A. Not only does he not do so, he also does not issue any finding qua the satisfaction or otherwise of those conditions, and proceeds, as afore-stated, on the basis of the matter being covered by the tribunal's order for the earlier years, and which is definitely not the case. The Revenue, on its part, has brought on record the copy of the order u/s.10(23C)(via) dated 31.12.2008 (for A.Ys. 1999-2000 to 2007-08) by the prescribed authority, refusing the approval there-under to the assessee, claiming it to have a bearing in the matter. The same, we observe, contains findings on the aspect of the surcharge @ 20% on the bills issued to the indoor patients, and transferring the same, as also 25% of the fees paid to the doctors, to the corpus fund, even as the same are not in the nature of donations. These factors are duly noted by the A.O. at pg. 2 of his order, and which the assessee explains before the tribunal (for A.Ys. 1995-96 and 2001-02) as being voluntary in-as-much as this was being so done at the instance of the Charity Commissioner and, besides, being earmarked for the upgradation of the hospital, stand diverted by overriding title. These aspects stand duly considered in the Order u/s.10(23C)(via) supra. In view of the foregoing, we, under the circumstances, consider it only fit and proper to restore the matter back to the file of the A.O. to consider and determine the issue of exemption u/s. 10(21) on the income of the assessee's research centre afresh. This is a subsisting issue in the assessee's case. The A.O. shall consider the matter in all its aspects, and decide the same in accordance with the law per a speaking order, taking into account all the material deemed relevant for the purpose, allowing reasonable opportunity to the assessee to state its case. We decide accordingly. - Decided in favour of revenue for statistical purposes.
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