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TMI Blog2012 (10) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... ec.10(22) and 10(22A) respectively. (iv) The CIT(A) ought to have considered the fact that subclause (iv) and (via) are entirely new provisions meant to provide the monitoring mechanism that was lacking in the earlier provisions. (v) The CIT(A) ought to have appreciated the fact that it was sec.10(22) that provided for exemption of the educational income of the Trusts, Societies etc. and not Sec.11. (vi) The CIT(A) erred in observing that Sec.11 provides sufficient monitoring mechanism to check the assessee's activities and condition of sec.11. (vii) In the case of Rajasthan Shiksha Samithi, the decision of the Hon'ble ITAT on similar issue has not been accepted in principle but appeal u/s. 260A has not been preferred due to monetary limits being less than the prescribed for filing. (viii) The order of the ITAT in ITA No.233/Hyd/07 in the case of St.Theresa's Convent Society has not been accepted by the Department and appeal u/s. 260A has been preferred before the Hon'ble A.P. High Court. (ix) The CIT(A) ought to have sustained the disallowance of depreciation in the light of decision of the Supreme Court in the case of Escorts Ltd., & Another Vs. Union of India (199 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Vs. State of Karnataka and Another (supra), and in the cased of T.M.A. Pai Foundation and Others Vs. 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. 5. Learned counsel however, argued during the course of proceedings before us, stating that the case need not be set aside to the file of the assessing officer for verification of the aspect of donation, capitation fee, etc. if any is collected by the assessee. Further, he also took objection to the direction of the Tribunal, wherein it is stated that in case the assessee is found to have not violated, by charging any money by way of donation, building fund, auditorium fee, etc. over and above the prescribed fee for admission of students, the assessee would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 own case and in the case of St. Louis Educational Society, Secunderabad for assessment year 2008-09, wherein the Tribunal vide its order dated 15.6.2012 in ITA No.1893/Hyd/2011, considered similar objections of the assessee against setting aside the matter to the file of the assessing officer for verification in the absence of grounds raised by the Revenue in that behalf, and rejected the same. 8. Notwithstanding this position as to the consistency of the directions given by the Tribunal for verification by the assessing officer, in assessee's own case and also in similar cases in the recent past, we also do not find merit in the legal contention of the learned counsel for the assessee that adjudication by the Tribunal should be confined to the grounds raised in the appeal before it and consideration of the aspects not specifically raised in the grounds of appeal, by the Tribunal, is prohibited. It is settled position of law that in terms of S.254(1) of the Act, the Tribunal, without deviating from the subject ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce not made by any of the authorities below cannot be made by the Tribunal, or any addition of income not made by the authorities below cannot be made by the Tribunal, but, within the subject matter of appeal, the Tribunal can examine any aspect of the matter - whether the same has been examined by the authorities below or not. It is, thus, not only invitation of the parties but also on its own that the Tribunal can address itself to an aspect related to the issue in appeal, even though the same may not have been specifically raised by either of the parties. The only limitation to this power perhaps is that it should not expand the scope of the appeal in terms of the income sought to be taxed or disallowance sought to be made, and that both the parties should have adequate opportunity of being heard on this issue in terms of the provisions of Rule 11 of the Appellate Tribunal Rules, 1963. The decision of the jurisdictional High Court in the case of S.A. Rahim (supra) and other case law relied upon by the learned counsel for the assessee are distinguishable on facts and it has no application to the facts of the present case in as much as in the present case, the dispute is confined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome. The Assessing Officer has drawn support from the decision of the Apex Court in the case of Escorts Ltd. (199 ITR 44). The CIT(A), on appeal, has allowed the claim of the assessee. Against the order of the CIT(A), Revenue is in appeal before us on this issue. 12. We heard both the parties on this issue. Similar issue came up for consideration before the Jaipur Bench of this Tribunal in the case of Jaipur Stock Exchange (108 TTJ 393)(Jp), wherein it was held that depreciation on fixed assets is an allowable deduction, which is necessary to arrive at the income available for application to charitable purpose. Further, in the case of Mahila Sidh Nirman Yojna V/s. IAC (50 ITD 472), it has been held by the Delhi Bench of the Tribunal that merely because entire value of asset is allowable as expenditure under S.11, it is not sufficient to deny claim for depreciation unless the value of asset has been actually allowed as expenditure. If not so allowed in the year of acquisition, assessee will be entitled to depreciation. Further, it was held by the Cochin Bench of the Tribunal in the case of Dy. CIT V/s. Adi Sankara Trust (46 SOT 230) that where an assessee trust is claiming deprec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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