TMI Blog2019 (5) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... f repair and maintenance of buses on ad -hoc basis - fuel charges for running the buses are on higher side as the assessee society is owning only two buses - HELD THAT:- Since both AO/CIT (A) have disallowed/confirmed the expenses on ad hoc basis only on the ground that the same are on higher side without disputing the incurrence of the expenses it is not permissible under law. Moreover, maintenance charges as well as fuel charges of the buses depends upon the age and condition of the vehicle which has not been examined by the AO. So, we are of the considered view that these expenses are liable to be allowed it is a matter of record that when the assessee society has been claimed exemption u/s 11, no such question has been raised by the AO regarding disallowance of exemption claimed on account of hostel and transportation facilities as is evident from assessment order for AYs 2009-10, 2012-13 and 2013-14 passed u/s 143 (3) . When there is no change in the facts and circumstances of the case, the Revenue is also bound to follow rule of consistency. Disallowance of exemption of receipt from the activities of providing hostel and transport facilities to the students of the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sable under the provisions of the Act. 3. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in rejecting the contention of the appellant that hostel and transport facilities being incidental to the education activities by way of running school, the AO was not justified in holding that these activities tantamount to business and as such not eligible for deduction under Section 11 of the Income Tax Act. 4(i) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the action of the AO in disallowing exemption under Section 11 to the assessee in respect of activities related to running of hostel and providing transport to the students. (ii) That the learned CIT(A) has erred both on facts and in law in confirming the abovesaid action of the AO rejecting the contention of the assessee that hostel and transport facilities being part of activities of providing education only, the same are eligible for exemption under Section 11 of the Act. 5. On the facts and circumstances of the case, the learned CIT(A) has erre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - on account of repair and maintenance of buses and fuel charges of ₹ 2,55,135/- incurred for running the school buses. 3. Assessee carried the matter by way of an appeal before the ld. CIT (A) who has confirmed the additions by dismissing the appeal. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal. 4. We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case. GROUND NO.1 5. Ground No.1 is general in nature, hence needs no adjudication. GROUNDS NO.2, 3, 4(i), 4(ii) 5 6. Undisputedly, the assessee society is duly registered u/s 12A of the Act to avail of the exemption of income u/s 11 of the Act. It is also not in dispute that the assessee has been providing hostel as well as transport facilities to its own students. It is also not in dispute that the assessee has not maintained separate books of account for running transportation and hostel services. It is also n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observation to fortify his case that surplus generated on account of running of transportation and hostel facilities is an independent business. 10. At the same time, we are of the considered view that in case, surplus has been generated on account of running of transportation and hostel facilities the same would be set off, in case in the subsequent period, assessee suffered some loss on account of providing these facilities. So, merely on the basis of the fact that the assessee society has generated surplus on account of running of transportation and hostel services, the same cannot be treated as an independent business. 11. This issue has been decided by the coordinate Bench of the Tribunal in case cited as Delhi Public School Ghaziabad vs. ACIT 2018 (5) TMI 1482 ITAT Delhi by relying upon the decision rendered by Hon ble Karnataka High Court in Karnataka Lingayat Education Society in ITA No.5004/2012 dated 15.10.2014 wherein it is held that providing of the hostel to the students and staff working for the society is incidental to achieve the object of providing education. In Kanha Charitable Trust vs. ACIT in ITA Nos.3297 5987/Del/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable at pages 65 to 67, 102 to 105 and 106 to 108 of the paper book. When there is no change in the facts and circumstances of the case, the Revenue is also bound to follow rule of consistency. 17. In view of what has been discussed above, we are of the considered view that disallowance of exemption of receipt of ₹ 3,71,99,570/- from the activities of providing hostel and transport facilities to the students of the institution is not sustainable in the eyes of law being intrinsic part of the educational activities of the assessee society. Consequently, grounds no.2, 3, 4(i), 4(ii) 5 are determined in favour of the assessee. GROUND NO.6(i) 6(ii) 18. AO/CIT (A) made disallowance of ₹ 4,35,23,067/- on account of depreciation on fixed assets while computing total amount utilized and applied towards charitable purposes by relying upon the decision rendered by Hon ble Supreme Court in the case of Escorts Limited vs. UOI 199 ITR 43 . 19. Ld. AR for the assessee challenging the impugned order contended that the decision rendered by Hon ble Supreme Court in case of Escorts Limited (supra) is not appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same business outgoing is not intended unless clearly expressed. The present case is not one of this type, as rightly distinguished by the CIT(Appeals). 14. Having regard to the consensus of judicial opinion on the precise question that has arisen in the present appeal, we are not inclined to admit the appeal and frame any substantial question of law. There does not appear to be any contrary view plausible on the question raised before us and at any rate no judgment taking a contrary view has been brought to our notice. In the circumstances, we decline to admit the present appeal and dismiss the same with no order as to costs. 22. Identical issue has also been decided by Hon ble Supreme Court in case of CIT vs. Rajasthan and Gujarati Charitable Foundation Poona in Civil Appeal No.7186 of 2014 dated 13.12.2017 in favour of the assessee wherein view taken by Hon ble Bombay High Court in case of Director of Income-tax (Exemption) vs. Framjee Cawasjee Institute (1993) 109 CTR 463 has been affirmed by returning following findings :- 4. Question No.2 herein is identical to the question / which was raised before the Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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