TMI Blog2016 (11) TMI 1574X X X X Extracts X X X X X X X X Extracts X X X X ..... view thereof, the orders of the A.O. and the ld. CIT(A) are set aside and the appeal of the assessee is allowed.- decided against revenue - ITA No. 5496/Del/2013 - - - Dated:- 29-11-2016 - SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER For The Assessee : Dr. Rakesh Gupta Shri Somil Agarwal, Adv. For The Department : Shri Umesh Chand Dubey, Sr. DR ORDER PER: LALIET KUMAR, J.M.: This is an appeal filed by the assessee arises against the order dated 25/07/2013 passed by the ld. CIT(A)-II, Dehradun for the A.Y. 2010-11, wherein the assessee has raised following grounds of appeal:- 1. The order of the Ld. CIT, Appeals-II confirming the order of learned Assessing Officer is bad in law an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e name and style of M/s Queen s Public School, Haldwani. The assessee filed its return for the year under consideration on 31/03/2011 in the status of AOP declaring Nil income. The assessee has shown gross fee receipts of ₹ 87,05,206/- and that of interest receipt at ₹ 6,400/- aggregating to ₹ 87,11,606/- and after claiming various expenses, excess of income over expenditure has been disclosed at ₹ 9,13,333/-. This surplus of ₹ 9,13,333/- has been invested in the fixed assets. The A.O. has further observed that during the course of assessment proceedings, it was submitted by the assessee that the institution is imparting education and it is covered U/s 10(23C)(iii)(ad) of the Income Tax Act, 1961 (in short the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Haldwani Vs M/s Queen s Educational Society, Haldwani in Income tax appeal No. 103 of 2007 vide their judgment dated 24/09/2007 has upheld the order of the Assessing Officer and set aside the order of the ITAT. In their judgment, referred to above, it was held by the Hon ble High Court of Uttrakhand that the investment in the fixed assets like furniture and buildings are the properties of the society and may be connected with the imparting of education but the same has been constructed and purchased out of income from imparting the education with a view to expand the institution and to earn more income. 3. Being aggrieved by the order of the A.O., the assessee carried the matter before the ld. CIT(A), who by relying on the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said property tax judgment which was rendered in the context of whether an educational society is supported wholly or in part by voluntary contributions, something which is completely foreign to Section 10(23C) (iiiad). The final conclusion that if a surplus is made by an educational society and ploughed back to construct its own premises would fall foul of Section 10(23C) is to ignore the language of the Section and to ignore the tests laid down in the Surat Art Silk Cloth case, Aditanar case and the American Hotel and Lodging case. It is clear that when a surplus is ploughed back for educational purposes, the educational institution exists solely for educational purposes and not for purposes of profit. In fact, in S.RM.M.CT.M. Tirup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the assessee is squarely covered by the judgment of the Hon ble Supreme Court and therefore, the appeal of the assessee is required to be allowed. 5. At the outset, the ld. Sr. DR has relied upon the orders passed by the authorities below and has submitted that the appeal of the assessee is required to be dismissed. 6. We have heard the rival contentions of both the parties, perused the material available on the record and have also perused the decision of the Hon ble Supreme Court referred supra, in our view, the appeal is required to be allowed. As noted hereinabove, even, as per case of the revenue, there is no change of material facts since A.Y. 2000-01 and 2001-02 and the judgment of the Hon ble High Court of Uttarakhand ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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