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2017 (5) TMI 169 - ITAT HYDERABAD

2017 (5) TMI 169 - ITAT HYDERABAD - TMI - Exemption u/s 11 of the IT Act - denial on the ground that it exceeded the number of Indian students permitted in each class, in violation of the approval granted by Min of External Affairs - Held that: - We are surprised that the Ld.CIT(A) upheld the order of A.O on the issue of admission of Indian students over and above the prescribed limits, without noticing the order of her predecessor, which was accepted by Revenue in that year. Since this issue wa .....

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of A.O and CIT(A) on this issue and allow the grounds of Assessee - appeal allowed - decided in favor of assessee. - ITA No. 1446/Hyd/2016 - Dated:- 3-5-2017 - SMT P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER For The Assessee : Shri S. Raghunathan For The Revenue : Smt. Suman Malik ORDER PER B. RAMAKOTAIAH, AM This is an appeal by Assessee against the order of CIT(A)-9, Hyderabad dated 18-05-2015, on the issue of not granting the relief u/s 11 of the IT Act. 2. Bri .....

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e mainly admits the students of Foreign employees working in the institute and can admit up to five students per class of Indian employees. For the A.Y 2011-12, A.O noticed that Assessee is not eligible for deduction u/s 11 of the IT Act on two reasons (i) that it exceeded the number of Indian students permitted in each class, in violation of the approval granted by Min of External Affairs and also collected donations more than the fee permitted and violated the orders of the Hon ble Supreme Cou .....

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on this issue is as under: 14. I have considered the f acts on record and the submissions of the AR. Though the letter f rom DARE specif ied that admissions to the school will be open only to the children of non-Indian members of the institute, this condition was modified by the MEA letter which permitted admission of children of Indian nationality subject to certain limits. The AR has submitted that the list of students of the school had been submitted to MEA every year (in accordance with the .....

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. This matter was carried to the ITAT by Assessee. The ITAT in ITA No. 1715/Hyd/2014 has clearly noted that the issue of capitation fee was only one which required adjudication, as other reasons has not been found sustainable by CIT(A). The order of ITAT in that year with reference to the issue of admitting excess students thus has become final, as revenue has not appealed on that. This fact is also clearly noted by the ITAT in para 11 as under: 11. We have considered the submissions of the part .....

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entioned by the AO for denying benef it u/s 11. Thus, the only issue which requires consideration is whether the denial of exemption u/s 11 of the Act to the assessee on the allegation of charging capitation fee over and above the fee prescribed under the Act is sustainable…….. 3.2 There after, the ITAT went on to examine the issue and the matter was restored to the file of A.O to examine whether there was any fees fixed for Assessee, so that the collection of donation can be consi .....

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e year under consideration also, A.O has taken the both the issues. In the appeal, Ld. CIT(A) while accepting that the collection of donation is not in violation of the approvals/ provisions, following the direction given by the ITAT in the earlier year and the consequential order of A.O in that year. Ld. CIT(A), without noticing the predecessor order on the issue, confirmed the disallowance u/s 11 of the IT Act by stating as under: 7. In view of the above consequential order passed u/s. 143(3) .....

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raised by Assessee in impugned assessment year are as under: 1. On the f acts and circumstances of the case and in law, the Ld. CIT(A) erred in not following the position settled by the order of the Ld. CIT(A) dated 27 the August 2014 for the AY 2011-12 in the Appellant s own case by directing the AO to verif y the student mix as per Department of Agricultural Research and Education / Ministry of External Aff airs guidelines and bring to tax the capital f ee in cases where the number of Indian .....

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the consequential order of the A.Y 2011-12 is pending adjudication before Ld. CIT(A), however submitted that the issue of admitting more students than the permitted number has been adjudicated by Ld. CIT(A) in favour of Assessee in A.Y 2011-12 and Revenue has not come in appeal. Therefore, the action of A.O in the consequential order for that year is not correct. Further, it was submitted Ld. CIT(A) wrongly relied on the consequential order of the earlier year, when her predecessor has not sust .....

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wever relied on the order of the ITAT to submit that the issue was set aside to the A.O to examine all the issues as per provisions of law and accordingly A.O has again re-agitated this issue in the constitutional order and supported the orders of AO/CIT(A). 7. We have considered the rival contentions and perused the orders of CIT(A) and ITAT in earlier years. It was admitted that A.O originally has taken up two issues while denying the benefit u/s 11 of the IT Act. One was that Assessee admitte .....

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