TMI Blog2013 (7) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Thus set aside the issue to the file of the AO for a fresh decision in accordance with law, after affording a reasonable opportunity of being heard to the assessee. Revenue is partly allowed for statistical purposes. - ITA.No.1024/Hyd/2012 - - - Dated:- 31-5-2013 - Shri Chandra Poojari And Smt. Asha Vijayaraghavan,JJ. For the Appellant : Shri M. H. Naik For the Respondent : Shri G. Nageswara Rao ORDER Per Smt. Asha Vijayaraghavan, J. M. This appeal preferred by the revenue is directed against the order of CIT(A), Guntur, dated 30/03/2012 for the assessment year 2003-04. 2. The facts of the case are that the assessee is a registered society registered under Societies Registration Act. From the assessment, the assessee has filed its return of income for the A.Y. 2003-2004 claiming exemption under section 10(23C) (iiiab) of the Act on the ground that the exemption is available for the assessee being an educational institution which is solely and substantially financed by the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed that its income is exempt under Article 289 of the Constitution of India. Alternatively, the assessee stated in his submissions that while determining the said income, the Assessing Officer rejected the claim for exemption under Article 289 of the Constitution of India and mentioned that the assessee withdrew the claim of exemption under section 10(23C) of the Act. It was argued by the A.R. that the original claim was made under section 10(23C). Thereafter, it claimed exemption under Article 289 of the Constitution of India and hence, the Assessing Officer is wrong in stating that the assessee withdraw his claim as the Assessing Officer ought to have consider the claim of exemption under section 10 (23C) of the Act as all the materials were available on record and the Assessing Officer has considered granting exemption under section 10(23C) of the Act by himself under section 143(3) of the Act. 7. The learned CIT(A) after going through the case laws on the subject submitted by the assessee and perusing the details of the training programmes conducted by the institute held that the claim of the assessee that it is not chargeable in terms of Article 289 (1) of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption in terms of the provisions of section 10(23C)(iiiab), where the activities of the institute are substantially funded by the government. Thus, taking into account overall facts and circumstances of the case, the institute is also eligible for exemption under section 10(23C) (iiiab) of the IT Act, 1961." 8. Aggrieved, Revenue is in appeal before us. 9. Ground Nos.1 6 are general in nature, hence, need no adjudication. 10. Ground Nos. 2 4 read as under: Ground No. 2: The learned CIT(A) ought to have appreciated that the assessee did not take the ground that it is eligible for exemption u/s 10(23C)(iiib)/10(23C)(iiib) of the IT Act, 1961. The assessee mainly took the ground that it is eligible for exemption from tax under Article 289(1) of the Constitution of India. The learned CIT(A) after dismissing the said ground taken by the assessee, however, granted relief on an altogether different issue which was not a subject matter of appeal, as evident from the grounds of appeal referred to by CIT(A) in para 3 of his order. Ground No. 4: The learned CIT(A)'s decision to allow exemption under section 10(23C)(iiib) is not reasonable, when the assessee itself has withdra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Gujarat State Cooperative Union v/s CIT 195 ITR 279. 2. ITAT Ahmedabad in Enterpreneurship Development Institute of India Vs. ITO, 49 ITD 183. 3. Oxford University Press 247 ITR 655 in which the Apex Court observed that the basic requirement of this section is the existence of the Institution for Educational purpose. 4. CIT Vs. Academy of General Education, 150 ITR 135 Karnataka High Court. 14. The learned AR pointed out that while making the remand report, the Assessing Officer cited the case laws of Sole Trustee, Loka Shishana Trust Vs. CIT 1975 (101) ITR. The finding of the above case is not applicable to this society. The learned AR further submitted that the Apex Court delivered the judgment in following cases in respect of the factum of exemption of educational institutions established not for profit: a. Para 33 of the Judgment in American Hotel and Lodging Association Education Institute Vs. CBDT [2007] 158 Taxman 146 (Delhi) b. Aditanaris Educational Institution Vs. Addl. CIT [1997] 224 ITR 310 c. Addl. CIT Vs. Surat Art Cloth Manufacturing Associates [1980] 121 ITR 1 SC. 15. We have heard the arguments of both the parties, perused the material on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judgement of Supreme Court in the case of M/s Islamic Academy of Education Another 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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