TMI Blog2012 (10) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Remit the matter back to the file of the Assessing Officer for deciding the issue afresh and determine as to whether the assessee has collected capitation fee from the students, keeping in view the principles enunciated by the Apex Court and others in the judicial pronouncements discussed above - ITA No.378/Hyd/2009, ITA No.66/Hyd/2010, ITA 399/Hyd 2009, & ITA No.83/Hyd/2010 - - - Dated:- 19-10-2012 - SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER, AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER For the Assessee : Shri V.Sivakumar For the Department : Shri V.Srinivas ORDER Per Saktijit Dey, Judicial Member: These are cross-appeals for two years and they are directed against separate orders of the Commissioner of Income-tax(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same in the income and expenditure account. On examination of the list of donors and other details regarding addresses, purpose of donation, bank, mode of payment, confirmations and income-tax records of the donors, etc. the assessing officer found that the confirmatory letters were in a stereo typed style and language. He also observed that the donations had been received during the months of May and June, while a few of them in the month of July. Very few donations had been received in the months of August, September, and October. The assessing officer found that the months coincided with the dates of admission. The assessing officer accordingly issued letters to donors to confirm the donations and asked them to explain how the same were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditure, without giving the benefit of exemptions under the said sections. 6. While completing the assessment as above, denying the assessee s claim for exemption, the assessing officer disallowed the assessee s claim for depreciation of ₹ 1,46,87,771, holding that such claim amounts to double deduction. Dealing with this issue, on appeal, the CIT(A), in consonance with the decision he has taken in relation to computation of income of the assessee under the head business , applying commercial principles applicable under the Act, has directed the assessing officer to verify the claim of depreciation as per rules and allow such depreciation on various assets, while working out the income of the assessee on commercial lines. 7. Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or computation of income of the assessee on commercial lines, duly considering deductions towards expenditure and depreciation. 10. We heard both sides and perused the impugned orders of the lower authorities. We have also examined the orders of the Income-tax Appellate Tribunal Chennai Bench cited before us by the assessee. In the case of Vellore Institute of Technology (supra), Chennai Bench of the Tribunal, considering the questions (a) whether if a student or his parents are so particular to gain admission into an institution and for that purpose are willing to donate money for improvement of the institution, then it is voluntary act, and, therefore, even if donations were paid at the time of or to secure admission into institution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taka Others (2002) 8 SCC 481 examined the issue of collection of capitation fees for the admission of students over and above fees prescribed by the private institution and held that the institution which are collecting capitation fees for admission of students over and above the fees prescribed cannot be construed as charitable/education institution. Apex Court further observed that the fees collected over and above the prescribed fee for admission of the student has to be constructed as capitation fee. The Apex Court, further observed that the concerned university and regulated body has to take action for withdrawal of the recognition in case it is found that the educational institution received any money over and above the fees prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for which the trust was created. It is also the specific contention of the assessee that it has never violated the GO(Ms) No.33 and collected fee in excess over the fee fixed by the Fee Committee. It is the contention of the learned Authorised Representative for the assessee that the learned Assessing Officer has presumed that the donations received were in the nature of capitation fee only on the basis of the letters received from Shri Murali Raju and Shri A.Venkat Reddy and there is no material before him to come to such a conclusion. The enquiry conducted by the Assessing Officer with handful of persons does not appear to have brought out the reality of the situation as to the collection of capitation fee by the assessee. In this view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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