TMI Blog2019 (9) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... ribution to the students from time to time. It was also helping in coordinating the development activities of the universities. The trust has appointed 200 teachers who guide the students in studying course material and their queries of study material. It also helps the students in preparation for examination. Such facts are stated before the ld AO per letter dated 08.06.2016. The assessee also submitted the details of course material expenses of ₹ 72.37 lakhs, which was for the course material, it can be said to be an educational activity or not. Admittedly, in the earlier years the claim of the assessee is accepted. The issue is discussed in case of DIT Vs. The Delhi Public School Society [ 2018 (4) TMI 714 - DELHI HIGH COURT] , wherein, the issue is examined that when the assessee is carrying out opening and running around 120 schools through franchise agreement and franchise charges received with the assessee for using the name of Delhi Public School by the satellite schools in and outside India and assessee earned franchisee fees is an educational activity or business activity. The memorandum of association of DPS society as well as the joint venture agreement ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purview of word education which is seriously flawed due to the singular fact that when sharing of proceeds with Global Open University Nagaland is an admitted and accepted fact which in turn is sourced from tuition fees etc so collected by said university from admitted students so character of said proceeds in hands of appellant would also be education receipts only as ultimate and exclusive beneficiaries of activity of assessee is student only who are getting education from collective, combined and consolidated efforts of appellant and said university. Accordingly Ld AO and Ld CIT-A orders may please be reversed and returned income may please be restored. 2. That in the given facts order of Ld AO and Ld CIT-A are incorrect in so far as not treating the appellant to be engaged in charitable activity as covered u/s 2(15) of the Act which also includes general public utility and even if for sake of moment it is assumed without admitting that education clause does not apply to appellant then it does not ipso facto result in ouster of appellant from section 2(15) of the Act as done by both the lower authorities in flying manner without heed to scheme of law app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 10.02.2011, which is carrying on the activities of establishment of educational institute for strengthening the cause of education by providing the didactical (designed or intended to teach) facilities etc. It filed its return of income on 30.09.2014 declaring nil income. The ld AO during the course of assessment proceedings found that activities of the trust are in the nature of business activities and therefore, it is not eligible for deduction/ exemption u/s 11 and 12 of the Act. The main reason for holding so is that assessee has entered into Memorandum Of Understanding with Global Open University, Nagaland wherein, 67% of the fees collected by that university is shared by the assessee. The assessee submitted that the issue is covered in favour of the assessee by the decision of the Hon'ble Supreme Court in Oxford University Press Vs. CIT 115 Taxmann.com 69 and of the Hon'ble Delhi High Court in 20 Taxmann.com 505. The ld AO rejected the contention of the assessee stating that those decisions relied are on different facts. He held that the assessee is engaged in procuring study materials and engaged part time teachers who are paid remuneration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal infrastructure, no permanent establishment, no teachers on its rolls, no recognition to enroll students in its premises and hence it could not be called an educational institution in view of the decision of the Hon'ble Supreme Court in the ca: of Sole Trustee, Lok Shikshan Trust (supra). It was held that the activities of the trust we non-charitable and the benefit of exemption under section 11 was denied to the appellant. 4.1.2 The appellant has submitted that from the objects of the assessee it is clear that it is engaged in carrying on the activities in the field of education and from the MoU entered into with the Global Open University, Nagaland it is apparent that all the services to be rendered by the assessee are exclusively in the field of education. It has also been submitted that the assessee ensures preparation in publication of the syllabus, study material and conduct classes and examinations of the student on behalf of the Global Open University, Nagaland. It has also been submitted that the assessee monitors and evaluates the development activities of students of the Global Open University, Nagaland and hence the activity in question cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e developmental activities of TGOUN and will act as a catalyst for the optimisation of the resources available with TGOUN, (e) This MoUs may be terminated by either by TGOUN or by WIDP by giving a six months notice. (f) In case of any dispute, an arbitrator will be appointed with mutual consultation between TGOUN and WIDP for resolving the dispute. 4.1.4 From the above it is clear that the main activity of the assessee was to ensure timely preparation and publication of study material and its dispatch to the admitted students. It brought on record that the assessee has signed a MoU with the Indian Institute of Ecology and Environment, New Delhi for procuring master copy of books on different subjects to be provided to the students enrolled with WIBP. It is not the case that the assessee is itself publishing and printing books, but it is merely procuring master copy of books on different subjects which is being copied and provided to students as is apparent from the photocopy charges debited in the Income and Expenditure account. It is also been brought on record by the Assessing Officer and as is validated by the MoU, that 67 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... generated profits out of the activity of publishing and selling school textbooks. In the case under consideration, the appellant is Ecology and Environment, New Delhi and providing it to be the students enrolled with WIBP. It is not the case that the appellant itself is printing and publishing the course material and is distributing the same at subsidized rates to the students. 4.1.7 In the case of Assam State Text Book Production and Publication Corporation Ltd vs. CIT [(2009) 319 ITR 317 (SC)] also, the facts of the case were different from that in the case of the appellant. In the case of Assam State Text Book Production and Publication Corporation Ltd, the Horible Supreme Court noted as under: Following the judgement of the Rajasthan High Court, we are of the view that, in this case, the High Court, in its impugned judgement, has not considered the historical background in which the Corporation came to be constituted; secondly, the High Court ought to have considered the source of funding, the shareholding pattern and aspects, such as return on Investment; thirdly, it has not considered the letters issued by C.B.D.T. which are referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the facts, different findings have been recorded in the year under consideration. Hence, the principle of consistency cannot be taken as a ground for holding that the income is exempt. 4.1.11 As regards initiation of penalty proceedings, it is to be noted that an appeal lies against an order levying penalty and not against initiation of penalty. 4.1.12 In view of the discussion above, grounds of appeal Nos. 1 to 10 are dismissed. 4.2 Ground of appeal No. 11 states that the appellant craves to urge additional ground/grounds, substitute, alter or amend any of the grounds of appeal either before or at the time of the hearing. Since no such option has been exercised during the appellate proceedings, this ground of appeal is considered to be dismissed for statistical purposes. 5. In the end result, the appeal is DISMISSED. 5. Thus, assessee aggrieved with the same has preferred this appeal. 6. The ld AR submitted that the assessee s activities are accepted in Assessment Year 2012-13 and 2013-14 u/s 143(3) of the Act and for this year, the assessee s activities are termed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered under head educational in nature and benefit u/s 11 and 12 of the Act has been granted to the assessee. For this year claim of the assessee has been rejected by the ld AO. Looking to the object of the trust the assessee has earned course material fees of ₹ 4.11 crores out of which it has spent staff salary of ₹ 12.14 lakhs, course material charges of ₹ 72.37 lakhs, course material photocopy charges of ₹ 7.19 lakhs, honorarium charges of ₹ 59.21 lakhs. Over and above it has also incurred courier fees of ₹ 11.44 lakhs, printing and stationary charges of ₹ 4.79 lakhs. The assessee is carrying on object of establishing and helping universities, colleges, schools and other institutions for strengthening the cause of education by providing didactical facilities provide consultancy support in the area of educational planning and administration for opening, diversifying and developing the existing or new institutions. It also provides mutual and technical cooperation for implementing and supplementing for establishment of universities. It has entered into an MOU with the Global Open University, Nagaland for helping the university in the are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve principles to the facts of the above case, it is apparent that the assessee is a developing, preparing and providing study material to the students of Global Open university of Nagaland as per MOU placed before us at page 21. For this, it recovers. 67% of the fees for publication, preparation of study material. Admittedly, study material has used as curriculum of the above university. Admittedly, the assessee is also receiving examination fees, conducting such examination, providing help to the university, and incurring expenses on them. Admittedly, it is not shown by the ld AO that the revenue surplus generated by the assessee is not utilized for the purposes of educational activities. Thus, prima facie assessee is carrying on the educational activities and not the business as facilitator. Further, the decision stated by the ld AO of 101 ITR 234 of the Hon'ble Supreme Court, does not apply to the facts of the present case as in that case as trust was running, printing and publishing newspapers, where as in the impugned case the assessee is preparing study material which is part of the curriculum of the university for the distribution to the students and mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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