TMI Blog2012 (10) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... tire cost of acquisition is either written off in the first year itself or in subsequent years and depreciation is not allowable on capital asset as it is not used for Business activity - in favour of revenue for statistical purposes. - ITA No.1379/Hyd/2011 - - - Dated:- 6-7-2012 - SHRI D.KARUNAKARA RAO AND SHRI SAKTIJIT DEY, JJ. Appellant by : Shri K.Viswanatham, DR Respondent by : Shri A.V.Raghuram Adv. ORDER Per Saktijit Dey, Judicial Member: This appeal filed by the Revenue is directed against the order of the Commissioner of Income-tax(Appeals)-IV, Hyderabad dated 31.5.2011 for the assessment year 2004-05. 2. Effective grounds of the Revenue in this appeal read as follows- (i) The order of the CIT(A) is not acceptable as it is erroneous both in law and on facts. (ii) The CIT(A) ought to have appreciated the fact that obtaining approval of the prescribed authority is mandatory as per the plain meaning of the provisions of 10(23C)(vi) of the I.T. Act and it does not call for any interpretation. (iii) The CIT(A) failed to appreciate that sec.10(23C) as such is not a replacement of Sec.10(22) and 22A as stated in the appellate order b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order of the Tribunal is also filed before us, and our attention is invited to para 3 of the said order, whereby the Tribunal has set aside the order of the CIT(A) and restored the matter to the file of the assessing officer, for verification, with the following observations- 3. Since the lower authorities have not examined the collection of capitation fees in this case, in our opinion, the matter requires to be examined by the assessing officer whether the assessee is collecting the capitation fees from students or not and it is necessary for bringing the actual facts on record for deciding the issue effectively. Similar view was taken by us in the case of M/s. Jamia Nizamia in ITA No.763/Hyd/2007 dated 30.6.2008, in the case of International Educational Academy, Hyderabad in ITA No.494/Hyd/2007 and 518/Hyd/2008 for the assessment years 2002- 2003 and 2004-05 and Sri Sai Sudhir Educational Society, Hyderabad in ITA No.999/Hyd/20-06 for the assessment year 2003-04. Therefore, we set aside the orders of the lower authorities and remit back the matter to the file of assessing officer with a direction to assessing officer that he shall reconsider the entire issue in the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised in the grounds of this appeal is covered in assessee s own case by the order of this Tribunal dated 8th July, 2011 for assessment year 2007-08, he disputed the contention of the assessee against setting aside of the matter to the file of the assessing officer for verification He further mentioned that these provisions are linked and they are no stand alone provisions, and therefore, the benefits of S.11 to 13 cannot be granted unless the conditions attached thereto are legally satisfied. Referring to 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. 7. We heard both the parties and perused the orders of the lower authorities and the decision of the Tribunal in the case of exhibition Society(supra) 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. As for the setting aside the matter to the file o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 decision on any other ground unless the party who may be affected there by has had a sufficient opportunity of being heard on that ground . In effect thus, as long as affected parties have an opportunity of having been heard on the ground on which appeal is decided, the Tribunal can decide the appeal on any of the issue whether raised by the parties or not. It is also important to appreciate that the expressions subject matter of appeal and grounds of appeal cannot be used interchangeably as they have distinct connotations. While the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atters, including in assessee s own case, as discussed above, we set aside the impugned order of the CIT(A) and restore the matter to the file of the assessing officer with a direction 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. 11. The next issue involved in this appeal relates to the addition made on account of depreciation claimed by the assessee. The Assessing Officer has observed that the trust had claimed expenditure on account of depreciation. He was of the view that since the purchase of capital asset used to promote the objective of the trust is allowed as application of income, depreciation is not allowable on capital asset where the entire cost of acquisition is either w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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