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TMI Blog2012 (9) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income-tax (Appeals) when the Assessing Officer has categorically allowed the expenditure being the application of the income bringing to tax only the surplus as per the income and expenditure account. 2. At the outset the learned Counsel for the assessee submitted that the issue is squarely covered in favour of the assessee by the decision of this Tribunal for the earlier years when a similar assessment was made by the Assessing Officer was dealt with by the learned CIT(A) holding the assessee entitled for claim of Sections 11 and 13 in pursuance to the assessee being an educational institution entitled for continuation of registration under the provisions of Section 12A. 3. The brief facts as have been brought on record are that t h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue expenditure reflected in the income and expenditure account was to be allowed. The learned Counsel for the assessee therefore submitted that there was no indication of linking the activities ultravires the provisions of Section 11 & 13 as had been brought on record insofar as having allowed the expenditure the surplus which was to be in accordance with the provisions of Section 11(4) only has been brought to tax by the Assessing Officer and confirmed by the learned CIT(A). Section 11(2) indicates the treatment to be given to the surplus has not been controverted by either the Assessing Officer or the learned CIT(A) has left the issue to be dealt with the issue by the Tribunal insofar as the Tribunal was pleased to hold in the assessee's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntile system of accounting allows claim of outstanding fees payable clinches the issue in favour of the assessee to the extent that the income and expenditure account has not been appreciated as per the accounting standard maintained by the assessee. He submitted that the learned CIT(A) has tried to confirm the action of the Assessing Officer by choosing to follow the predecessor's CIT(A)'s finding on the basis of assessments made u/s.153A for the earlier years. The predecessor CIT(A)had in fact categorically held that there was no violation to the provisions of Sections 11 and 13. He chose to pick a few items indicating that the provisions of Section 11 & 13 have been violated but at the same time not been able to fact finding as was consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned CIT(A) therefore, proceeded to consider the case of the assessee when he, after taking into cognizance of the totality of the circumstances , held that there was no material evidence in the hands of the AO for further addition of receipts of the capitation fees. The Assessing Officer on the basis of some discriminating paper found during the course of search in the Assessment Year 2006-07 presumed that there might be some receipts of capitation fees in the earlier Assessment Years which he estimated inspite of the search documents available to him did not indicate that the capitation fees must have been received in the impugned AYs as well. The assessee had relied on the decision of ITAT, Kolkata in the case of LMJ International v. (11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking into consideration of the presumptions and assumptions of the AO and reproducing the same in his order thought it fit to delete the additions by allowing the assessee the benefit of exemption u/s.11 for the impugned AYs before us. Therefore, in this view of the matter, we are inclined to uphold the orders of the learned CIT(A) and dismiss the appeals filed by the Revenue and correspondingly allow the Cross objections of the assessee supporting the orders of the CIT(A) on this issue. 12. On the assessee's appeals for the AYs 2001-02, 2002-03 insofar as the learned CIT(A) has confirmed the unsecured loans remaining unexplained and the learned CIT-DR supporting the contention of the learned CIT(A), the learned Counsel for the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng education for which the learned CIT(A) has granted exemption u/s.11 of the Act. The Assessing Officer therefore erred in disallowing it as an expenditure, which was not claimed as expenditure more so though were addition to the assets of the institution cannot be disallowed under the provisions of Section 153A. Therefore, the assessee's appeal for the Assessment Year 2004-05 on the solitary issue is directed to be allowed by deleting this addition as otherwise sustained by the learned CIT(A).The assessee's appeal for the Assessment Year 2001-02 and 2002-03 is dismissed as no further supportive material have been brought on record to demolish the stand taken by the Assessing Officer as well as the learned CIT(A). 14. In respect of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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