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2019 (6) TMI 595 - ITAT COCHINExemption u/s. 11 - filing of return of income belatedly - returns of income were filed consequent to the notice u/s. 153A - the assessee has not filed the regular return of income u/s. 139(4A) but filed the return of income u/s. 153A(a) consequent to search u/s. 132 - HELD THAT:- Compliance of requirement of the Act will have to be at any time before the completion of assessment proceedings. However, for claiming the benefit of exemption u/s. 11 on the basis of information supplied consequent to the completion of the assessment proceedings would mean that the assessment order will have to be re-opened. The Act does not contemplate such reopening of the assessment. However, in the present case, it was filed consequent to the notice issued u/s. 153A(a). Further, in the present case, exemption u/s. 11 was denied because of non filing of return of income on time and also due to the discrepancies mentioned above. In our opinion, the returns of income were filed consequent to the notice u/s. 153A. The sections 11 & 12 of the Act nowhere prescribe filing of return by any due date for the assessment years under consideration so as to grant exemption u/s. 11. Therefore, the findings of the CIT(A) that the assessee having not filed its returns of income within the prescribed time had failed to comply with the requirement prescribed under the Act, is not tenable. - Decided in favour of assessee Addition on account of collection of capitation fee - during search, there was no incriminating material found regarding collection of additional fees for the assessment years - HELD THAT:- In the present case, there is no evidence collected by the Department for the assessment year 2006-07 to 2011-12 and there was evidence only in the assessment year 2012-13. As said in earlier paras of this order, there was no admission by any of the Trustees of the assessee-Trust. In the present case, addition towards additional fees collected by the assessee was solely based on the statement of one of the employees of the Trust, Shri Shibu and later details were furnished by the assessee at the time of assessment. Hence, there was no incriminating evidence regarding the receipt of additional fees either found or seized during the search. What was found was the seized material CHN/21/VJ-1-A showing the details of students admitted to MBBS, BDS. BAMS and the money collected from each student recorded in the laptop of the administrative officer, Shri Shibu and printouts of the same for financial year 2011-12 relevant to assessment year 2012-13. Later, the assessee furnished details of fees collected in the year 2010-11 in the tabular form. From this, the Assessing Officer arrived at the additional fees collected by the assessee. However, the assessee vide letter dated 10/12/2013 stated that the assessee had not collected any additional fees and only collected advance fees. Being so, whatever was found was the break up of number of students who were admitted under different quotas in various courses. Therefore, there cannot be any addition in the hands of the assessee towards additional fees collected in the absence of any material seized or found during the search for the assessment years 2006-07 to 2011-12. However, we direct the Assessing Officer to confine the addition to the extent of seized material found during the search for the assessment year 2012-13. Central Board of Direct Taxes had issued instructions by Circular No. 286/2/2003-IT, wherein it had been directed that the search party should not obtain confessions. So the admission made u/s 132(4) by the Administrative Officer cannot be treated as a valid piece of evidence. Moreover, there was no proof that the assessee had collected additional fees in the guise of donation and there was no violation of Prohibition of Collection of Capitation fees act, 1992. The donation voluntary given by anybody to a Trust towards its corpus was a permissible and legal activity, and not an illegal activity resulting in denial of exemption u/s. 11. There was no evidence on record to show any link between the investment made in the hands of various trustees with the Trust’s activities under the provisions of section 164(1) r.w.s. 13(1)(c) and 13(1)(d). In our opinion, for the assessment year 2011-12, the additional fees or advance fees which was offered for taxation by the assessee by accounting the same, cannot be brought to tax once again which amounts to double taxation. Similarly for the assessment year 2012-13, it was admitted by the assessee that it had collected additional fees from MBBS and BAMS students which have been accounted by the assessee, hence, for this assessment year also, the Assessing Officer cannot bring to tax once again. For this assessment year, the Assessing Officer has to verify whether it is duly accounted for the assessment year 2012-13 only. Hence, we are not in a position to uphold the order of the CIT(A) on the issue of collection of additional fees for the assessment years 2009-10 to 2011-12. Assessing Officer is to restrict the addition towards collection of additional fees for the assessment year 2012-13 to the extent of the seized material found during the course of search. This ground of appeal in relating to the addition towards collection of additional fees is partly allowed for statistical purposes. Further, the provisions of section 11 was considered by the Tribunal while restoring the registration granted to the assessee u/s. 12AA in assessee’s own case for the assessment years 2009-10 to 2011-12.
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