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TMI Blog2012 (9) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... s to see the eligibility of claiming of deduction under S.11. This aspect has not been properly addressed by the CIT(A)/AO while granting the alternative claim of the assessee for exemption under S.11. Since the Assessing Officer has no occasion to examine the claim of the assessee under S.11 suitable directions to be given to the Assessing Officer for verification and to find out whether the assessee has received any money over and above the fees prescribed and thereafter decide the issue afresh - in favour of revenue for statistical purposes - ITA No.269-270/ Hyd/2012 - - - Dated:- 22-6-2012 - SHRI CHANDRA POOJARI, AND SHRI SAKTIJIT DEY, JJ. Appellant by : Shri V, Srinivas CIT-DR Respondent by : Shri C.P. Ramaswamy O R D E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in ITA Noi.1289/Hyd/10 to 15 others in Ravi Rishi Educational Society group of cases) was not accepted by the department and preferred an appeal before the Hon ble High Court. 6. The ld. CIT(Appeals) erred in not addressing the issues/reasons conclusions drawn in asst. order u/s. 143(3) dt. 25.11.2009 in which the assessee was denied exemption drawn. In the appeal for assessment year 2005-06, viz. ITA No.269/Hyd/2012, grounds No.1 to 5 are identical with the grounds for assessment year 2007-08 extracted above. There is however slight difference in ground No.6 noted above, and the same in the appeal for assessment year 2005-06 reads as follows- 6. The ld. CIT(Appeals) erred in not appreciating the fact that the order u/s. 154 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing officer on the ground that the assessee-society has not obtained the approval u/s. 10(23C)(iv) of the Act. On the ground that despite such a rejection of claim for exemption in the body of assessment order for assessment year 2005-06, in the computation part that finding has been ignored by mistake and assessment was completed adopting the assessable income of the assessee at NIL , the assessing officer passed rectification order, bringing to tax the surplus income of Rs.3,17,95,059 in consonance with the finding of rejection of exemption given in the body of the assessment order for that year. Against that order under S.154 for the assessment year 2005- 067 and assessment under S.143(3), assessee preferred appeals before the CIT(A), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and above the fees prescribed cannot be construed as charitable/education institution. Apex Court further observed that the fees collected over and above the prescribed fee for admission of the student has to be constructed as capitation fee. The Apex Court, further observed that the concerned university and regulated body has to take action for withdrawal of the recognition in case it is found that the educational institution received any money over and above the fees prescribed for the courses. Same view was taken by Apex Court in the case of Islamic Academy of Education and another Vs. State of Karnataka another (2003) 6 SCC 697. If the donations were received compulsorily for admission of students, the assessee is not entitled for ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption either u/s 11 or u/s 10(23C) in case it collected any money by whatever name it is called i.e., donation, building fund, auditorium fund etc. etc., over and above the prescribed fee for admission of students. We are fortified in this behalf by the orders of this Tribunal in assessee s own case dated 30.3.2012 in ITA No.2074/Hyd/2011 for assessment year 2003-04, to which both of us are parties, and dated 22.3.2012 in ITA No.1195/Hyd/2009 for assessment year 2006-07, to which one of us, viz. Accountant Member, is a party. 5. Before parting with our decision on this issue, we find it appropriate to mention that the Hon ble jurisdictional High Court in the case of S.A. Rahim and Others V/s. CIT(333 ITR 379), held placing reliance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given suitable directions, in the preceding para, to the Assessing Officer for verification. That being so, the ratio laid down by the jurisdictional High Court in the case noted above, has no application to the facts of the present case. Further, in relation to appeal for assessment year 2005-06, as for the scope of the provisions of S.154, it is the contention of the Revenue that there was inconsistency between the body of the assessment order wherein assessee s claim for exemption has been rejected, and the computation part thereof wherein income has been adopted at NIL , on account of mistake apparent from record, which is within the scope of the provisions of S.154 of the Act. In view of our finding on the assessee s claim for ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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