TMI Blog2012 (9) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed fee for the admission of students, the assessee would be entitled for exemption under S.11, even though the notification under S.10(23C)(vi) have not been received by it. We direct accordingly – Decided partly in favor of Revenue for statistical purposes - ITA No.1893/Hyd/2011 - - - Dated:- 15-6-2012 - SHRI D.KARUNAKARA RAO, AND SHRI SAKTIJIT DEY, JJ. Appellant by : Shri V. Srinivas Shri K. Viswanatham Respondent by : Shri K.C. Devadas O R D E R Per D.Karunakara Rao, Accountant Member: This appeal filed by the Revenue is directed against the order of the Commissioner of Income-tax(Appeals)-IV, Hyderabad dated 30.8.2011 for the assessment year 2008-09. 2. Effective grounds of the Revenue in this appeal read as follows- 1. The order of the Ld. CIT(A) is erroneous both on facts and in law. 2. The ld. CIT(Appeals) erred to hold that the assessee is eligible for claim under Section 11 in absence of approval under sub-clause (vi) to the section 10(23C). 3. The ld. CIT(Appeals) failed to see that approval sub-clause (vi) to the section 10(23C) is distinct from registration u/s. 12A of the Act. 4. The ld. CIT(A) failed to see that sub-claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. We however, find that the Hyderabad Bench of the Tribunal in Director of Income-tax(Exemption) V/s. Vasavi Academy of Education in ITA No.1449/Hyd/2008, vide order dated 4.2.2010, has held that an educational institution is entitled for exemption under S.10(23C) or under S.11, if no donation was collected from the students. We being in agreement with the order of the coordinate Bench of the Tribunal in the case of Vasavi Academy of Education(supra), direct the assessing officer to verify the aspect of donation, capitation fee etc. if any collected by the assessee, and further direct that if it is found that besides fulfilling other prerequisites for exemption under S.11, the assessee has not charged any money by whatever name it is called, i.e. donation, building fund, auditorium fee etc, over and above the prescribed fee for the admission of students, the assessee would be entitled for exemption under S.11, even though the notification under S.10(23C)(vi) of the Act have not been received by it. We direct accordingly. 4. Referring to the direction of the ITAT to the assessing officer given above, learned counsel however, argued that the case need not be set aside to the fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of S.254(1), Learned Departmental Representative argued vehemently by stating that ITAT is empowered to pass orders as it thinks fit and therefore, ITAT is justified in entertaining the oral arguments raised during the proceedings before it. 6. We heard both the parties and perused the orders of the lower authorities and the decision of the Tribunal in assessee s own case for assessment year 2007-08 and other case-law relied upon by the parties. Assessee s argument that the benefit of S.11 should be granted in the alternative, without verification of conditions specified in S.11 of the Act, cannot be accepted on its face. It is an undisputed fact that the issue involved in the grounds of this appeal, was subject matter of appeal before the Tribunal in assessee s own cases for the earlier years as noted above, besides by the orders of the Tribunal in similar cases. As for the setting aside the matter to the file of the assessing officer for verification before granting exemption, as prayed for by the assessee, is concerned, we find that the directions in that behalf, are also consistent with the view taken by the Tribunal in similar matters, including in assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 DTR 240). It is noteworthy to refer to the observations of the Mumbai Bench of the Tribunal in the case of Linklaters LLP V/s. ITO(ITA No.4896/Mum/03) for assessment year 1995-96, not cited by the parties before us, wherein the Tribunal, after referring to the ratio of the above decisions among others, and also referring to the various provisions of law and ITAT Rules, summed up the scope of adjudication by the Tribunal in the following manner- 32. It is noteworthy that, in terms of provision of Rule 11 of the Appellate Tribunal Rules 1963, while the appellant shall not, except by leave of the Tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal, the Tribunal, in deciding the appeal, shall not be confined to the grounds set forth in the memorandum of appeal or taken by leave of the Tribunal under this rule. The mandate of the rule is thus clear and unambiguous. While there are restrictions on the appellant as to the issues he can raise in the appeal, there are no restrictions on the Tribunal as to on what grounds the Tribunal decides the appeal. The only rider is, in terms of proviso to Rule 11, that the Tribunal shall not rest its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in any event, we have to follow the order which is favourable to the assessee. The argument of the assessee for not setting aside the mattr for verification to the file of the assessing officer based on the rule no ground no adjudication is also devoid of the merit, inasmuch as even oral arguments advanced by the parties in the course of hearing, have to be entertained and adjudicated upon by the Tribunal as long as the arguments put forth during the course of hearing falls within the scope of subject matter of appeal involved in the grounds of appeal. This legal position is well settled by the ratio of the decisions noted and discussed hereinabove. Further, when the Tribunal has passed its order dated 28.1.2011 for the assessment year 2007-08, it has two earlier orders of the Tribunal before it, and when it has followed one of them, it cannot be said either that the Tribunal has not passed a speaking order or has not applied its mind. 10. In view of the above discussion, consistent with the view taken by the coordinated benches of Tribunal, in similar matters, including in assessee s own cases for earlier years, as discussed above, we set aside the impugned order of the CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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