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TMI Blog2012 (10) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 2CA of the IT Rules and sub-clause (vi) of the 23C of Sec. 10 of the IT Act, any University or Educational Institution whose aggregate annual receipts exceed one crore, approval has to be obtained from the prescribed authority for claiming exemption. 4. Though the alternative claim u/s. 11 was allowed by the Hon'ble ITAT, Hyderabad in the case of St. Theresa's Convent Society, followed by in many cases including the recent decision in ITA No. 1289/Hyd/l0 to 15, Others in Ravi Rishi Educational Society group of cases with due respect to the decision of the Hon'ble ITAT. Hyderabad and the Department has not accepted the decision of the Hon ble ITAT and preferred appeal before the Hon'ble AP High Court. 5. The Id. CIT(A) erred in holding that the assessee is entitled to the exemption u/s 11 of the IT Act, whereas there is clear violation of the provision of 13(l)(c) r.w.s. 13(3)(a) of the IT Act. 6. In a similar issue in the case of Villages in Partnership for the AY 2002-03, the salary paid to the members was disallowed u/s. 13(2) of the IT Act. The decision of the learned CIT(A) to allow relief to the assessee was not accepted and the Department contested before the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collecting capitation fees for admission of students over 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 fo 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 exemption either u/s 10(23C) or u/s 11 of the IT Act. Since the lower authorities were not examined the collection of capitation fees in this case, in our opinion, the matter requires to be examined by the assessing officer ITA No.1729/Hyd/2008 Andhra Mahila Sabha Trust Board, Hyderabad whether the assessee is collecting the capitation fees from students or not and it is necessary for bringin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond any shadow of doubt in r. 28 of the IT Act (Appellate Tribunal) Rules, 1963. The Tribunal must form an opinion judiciously and thereafter it can exercise the power of remand. A detailed reason may not be given in the decision. The exact nature of the remand order to be passed in a given case is a matter within the absolute discretion of the Tribunal, but the power being judicial, it must be exercised judiciously, according to rule and not according to humour, the order must be legal and regular, disciplined as opposed to capricious. A capricious or impetuous order of remand is an abuse of the discretionary power conferred on the ITA No. 1729/Hyd/2008 Andhra Mahila Sabha Trust Board, Hyderabad Tribunal. When such a discretionary order is made by a Tribunal, a high powered authority, the presumption is that it was a disciplined and responsible exercise of power. The grounds of such exercise of power may appeal either from the order or the reasoning of the Tribunal in the decision rendered by it or, in an appropriate case, implicitly from the decision rendered by it in the background of the contentions raised before it. 3. According to the learned counsel for the assessee, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He relied on the following judgement 1. CIT v. Ramesh Electric Trading Co. (203 ITR 497) (Bom) 2. ITO Vs. ITAT Other (229 ITR 651) 3. Salgaocar Mining Industries Ltd. Vs. DCIT (61 ITD 105) 4. Arun Kumar Srivastava Vs. ITO (63 ITD 50) (3rd Member) (Pune) 6. We have heard both the parties and perused the material available on record. The main grievance of the assessee s counsel is that the Tribunal gone beyond the jurisdiction vested with it. The Tribunal should not have set aside the order of the assessing officer by remand back the issue to the file of assessing officer for fresh consideration since there is no material on record so suggest the collection of capitation fee. The Tribunal by remand the issue back to the file of assessing officer caused injury to the assessee and the Tribunal should not have disturbed the order of the CIT(A). In our opinion, the power of the Tribunal u/s 254(1) are of widest amplitude. The word used in this section 254(1) thereon of course, restrict the jurisdiction of the Tribunal to the subject matter of the appeal. The words pass such orders thereon as the Tribunal thinks fit include all the powers (except possibly the power o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Karnataka Others (2002) 8 SCC 481 and in the case of Islamic Academy of Education Vs. State of Karnataka another (2003) 6 SCC 697, the Tribunal set aside the issue to the file of assessing officer for fresh consideration. By this act of the Tribunal, we cannot say that the Tribunal travel beyond the power vested in the Tribunal, by the statute in respect of the appeal preferred before it. In our opinion it is open to the tribunal to interfere with the jurisdictional discretion by the lower authorities and substitute the same by its own discretion. When it does so, in proper exercise of its power u/s 254 by taking into consideration all the relevant facts into consideration, and in deferring from the authorities below and exercising its own discretion, the Tribunal cannot be held to act arbitrary or capriciously. In our opinion, the Tribunal has not committed any error in remanding the issue back to the file of assessing officer and the Tribunal is the final fact finding body and the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all the facts have been set out in detail by the Tribunal or whether some incidental fact wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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