9911796707
TMI Blog2012 (10) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals are being disposed off with this common order for the sake of convenience. 2. Common effective grievance of the assessee in both of its appeals is with regard to denial of its claim for exemption of its income from tax under S.11 of the Act, by treating the donations to the extent of Rs. 1,55,81,000 out of Rs. 2,29,99,999 for the assessment year 2005-06 and of Rs. 1,84,85,000 for the assessment year 2006-07, claimed to have been received by the assessee from the public, as representing collection of capitation fee from the students, over and above the prescribed fee. 3. Similarly, in the appeals of the Revenue, common effective grievance of the Revenue is that the CIT(A) is not correct in holding that depreciation has to be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questing issue of demand drafts, etc. Based on the results of the enquiries made with donors, banks and others and material gathered in relation to the donations received, the assessing officer, observing that as the law stands on date, any amount in the nature of voluntary contribution, can never be collected either at the instance of the institution or at the instance of the public, and accordingly concluded that the assessee had not been able to substantiate that the amounts had been receive as donation. In view of the Apex Court judgment dated 31.10.2002 in the case of TMA Pai Foundation and Others V/s. State of Karnataka and Others, the assessing officer therefore, treated an amount of Rs. 1,55,81,000/- out of Rs. 2,29,99,999/- receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions of the CIT(A) for computation of income of the assessee on commercial lines allowing deductions in respect of various expenditure and also claim of the assessee for depreciation on various assets, on due verification, Revenue preferred the present appeals before us. 8. Besides reiterating the contentions urged before the lower authorities and in the grounds of these appeals, the learned counsel for the assessee placed reliance on the Chennai Bench of the Tribunal in the case of DCIT V/s. Vellore Institute of Technology(12 Taxman.com.272(Chennai), a copy of which is also furnished before us, and submitted that even if any donation is received in connection with admission of a student, over and above the fee prescribed, the assessee w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st but would only be a capital receipt, decided the issue in favour of the assessee. The Tribunal also answered in the affirmative the question whether thus, corpus donations received at the time of admission, by an institution with a specific written direction from donor that donation was towards corpus fund or trust followed up by factum of actual application of donation for capital purposes of trust could not be treated as capitation fee receipt. The earlier decision of the Madras Bench of the Tribunal in the case of Balaji Educational and Charitable Public Trust (supra) is also to the same effect. 11. Similar issue, as is involved in this appeal, came up in the case of Vodithala Educational Society V/s. ADIT (20 SOT 353), wherein it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were received compulsorily for admission of students, the assessee is not entitled for exemption either u/s 10(23C) or u/s 11 of the IT Act. 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. 12. However, It is evident from the records that the assessee has strongly disputed the finding arrived at by the assessing officer on the basis of the enquiry conducted by him. Before the CIT(A) also the assessee has specifically submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the conclusion that the assessee has charged capitation fee. Consequently, in our considered opinion, the assessee deserves another opportunity to substantiate its claim before the Assessing Officer that it has not charged any capitation fee from the students. We therefore, 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. The assessing officer shall accordingly reexamine the matter in accordance with law and after giving reasonable opportunity of hearing to the assessee. 13. In view of our ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
