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TMI Blog2013 (2) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the activities of educational institutions itself has been doubted by the ITAT. Hence the ITAT is justified in going into the facts which was incidental to the question of law raised and no estoppel plea can be raised by the assessee. Further, it was noticed by AO that in a suit filed between Trust members, there was asset sharing compromise was arrived at. Thus from the overall facts and circumstances, it is evident that unless it is proved that the income derived is covered under Section 10(22) of the Income Tax Act, 1961, it cannot be decided as to whether addition of the same under Section 68 of the Income Tax Act, 1961, is possible or not. Therefore, on the facts and circumstances of this case, this court deems it appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year 1998-1999. 2.1. In respect of the assessment year 2000-2001, addition was made for a sum of Rs.18,00,000/-, which was the loan received from Bhargarwathraj, which is the subject matter in the Tax Case (Appeal) No.2205 of 2006. 3. On appeal, the Commissioner of Income Tax (Appeals) upheld the order of the Assessing Officer to the extent of bringing Rs.16,00,000/- to tax in respect of assessment year 1998-1999 and an amount of Rs.18,00,000/- in respect of the assessment year 2000-2001. 4. Contending that the entire income ought to have been exempted, by the application under Section 10 (22) of the Act, the assessee preferred appeal before the Income Tax Appellate Tribunal. It was further contended that the production of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of Section 10 (22) of the Act, is entitled to exemption. The disallowance made under Section 68 of the Act is assailed as erroneous. The finding of the Income Tax Appellate Tribunal that there was nothing to indicate that the money was used for educational purposes and not for the purpose of earning profit is contended to be without any basis. 6.1. It is relevant to extract Section 10 (22) of the Act, as the entire case is based upon that provision as the edifice:- "10. Incomes not included in total income. - In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included- .... (22) any income of a university or other educational institution, existin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity, it is not open to the Revenue to contend that the assessee has failed to prove the same. (c) In any event, the source of income need not be proved as the Section uses the word 'any income'. (d) There is a finding that the assessee is an educational institution running for educational purposes and not for profit purposes which has attained finality and the Revenue, having not appealed against, is now estopped from disputing the same. 7.2. In support of the contention, the learned counsel for the appellant relied upon the following three decisions:- (i) (1997) 224 ITR 310 (Aditanar Educational Institution v. CIT). In this decision, it has been held that we may state the language of section 10(22) of the Act is plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is not engaged in earning profit, the income of such institution is exempt under Section 10(22). (iii) (2005) 278 ITR 152 (Director of Income Tax v. Keshav Social and Charitable Foundation). "...to obtain benefit of the exemption under Section 11 of the Act, the assessee was required to show that the donation was voluntary. In the present case, the assessee had not only disclosed its donations, but had also submitted a list of donors. The fact that the complete list of donors had not been filed or that the donors had not been produced did not necessarily lead to the inference that the assessee had tried to introduce unaccounted money by way of donation receipts." 7.3. So far as this decision is concerned, there is a further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss examine the contributor. Therefore, when there is unexpected change of facts/situation/circumstances, the party taken by surprise should not be deprived of the opportunity to cross-examine the witness branded as assessee's witness. Evidence Act also permits a party to cross examine his own witness under stated circumstances therein. 7.5. Moreover, the Assessing Officer has given the following observations:- 1. The objects of the trust had been modified by the supplementary deed dated 02.01.2002, which is not permissible. 2. Books of accounts have not been maintained properly. 3. The minute book and details of resolution were not available properly. 4. There had been a dispute between the family members of the trust a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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