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TMI Blog2023 (7) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... here is a delay of 93 days in filing and 244 days in re-filing the appeal. 2. For the reasons given in the applications, the delay in filing and re-filing is condoned. 3. The above-captioned applications are, accordingly, disposed of. ITA 362/2023 4. This appeal concerns Assessment Year (AY) 2013-14. 5. The appeal is directed against the order dated 16.11.2021 passed by the Income Tax Appellate Tribunal [in short, "Tribunal"]. 6. The short issue which arose for consideration, both before the Commissioner of Income Tax (Appeals) [in short, "CIT(A)"] as well as the Tribunal was: whether the petitioner was wholly or substantially financed by the government. In this case, the government is the Government of National Capital Territory of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsity or other educational institution, hospital or other institution, as the case may be, during the relevant previous year;] or "2BBB. For the purposes of sub-clauses (iiiab) and (iiiac) of clause (23C) of section 10, any university or other educational institution, hospital or other institution referred therein, shall be considered as being substantially financed by the Government for any previous year, if the Government grant to such university or other educational institution, hospital or other institution exceeds fifty per cent of the total receipts including any voluntary contributions, of such university or other educational institution, hospital or other institution, as the case may be, during the relevant previous year." [Em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taka High Court in Commissioner of Income Tax, Bangalore vs. Indian Institute of Management [(2014) 49 taxmann.com 136 (Karnataka)]. 10.1 It is this view of the CIT(A) which the Tribunal has sustained. 11. Importantly, in relation to the aspect, as to whether or not the interest should be considered while quantifying the amount of grant received, the following findings of fact were returned by the Tribunal: "4.1.2 I have considered the assessment order and the submissions of the appellant. It is noted that the Assessing Officer has not taken into consideration the interest on capital grant for phase II building to be done by DMRC. In the audit conducted for Financial Year 2011-12, a specific para was raised regarding the interest income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted that the explanation to section 10(23C)(iiiac) was inserted by the Finance(No. 2) Act 2014 w.e.f. 01.04.2015 as per which an institution will be considered to be substantially financed if the Government grant to such institution exceeds the percentage as may be prescribed for the relevant previous year. It is to be noted that as per Rule 2BBB which was inserted by the IT (Thirteenth Amendment) Rules, 2014 prescribed the said percentage as 50%. Even if this percentage is considered, the grant received by the assessee including interest thereon which is to be included for the purpose of grant exceeds 50%. 12. It is evident, that the Tribunal has agreed that the interest is to be factored in while quantifying the grant-in-aid received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23C)(iiiac) was inserted via Finance Act 25 of 2014, with effect from 01.04.2015. The threshold has been pegged at 50%. Notably, the period we are concerned with is FY 2012-13 (AY 2013-14). 17. Notwithstanding the aforesaid position, in the instant case, upon reading the provisions of Section 10(23C)(iiiac) of the Act and Rule 2BBB of the Rules, it is clear that in the given period, the government had to either directly fund the concerned hospital or institute or seek adjustment by factoring in the interest earned on previous grants. 18. In case there was no adjustment, then, the interest, even according to Mr Maratha, would have to be returned to the concerned government for being credited to the Consolidated Fund of India. 18.1 That be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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