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TMI Blog2013 (7) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... Secretary of the Institute claiming under a fresh plea that its income is exempt under Article 289(1) of the Constitution of India. 3. After considering the arguments of the assessee, the Assessing Officer held that the society was formed and registered by itself which disproves the claim that there was complete identity between the Government and the Institute and the society having personality of its own is distinct from the State. The AO further pointed out that Government just chose to retain the power to dissolve and the power to absorb the employees and therefore, the Institute is not part and parcel of the State. He also observed that the Bye-Law 50 states that the Institutes properties are deemed to be vested in Government which merely says that these properties are not Government properties and hence the assessee's claim that there is complete identity between the Government and the Institute has no legs to stand. 4. Aggrieved, the assessee preferred appeal before the CIT(A). Learned AR of the assessee filed written submissions. 5. The assessee had also on receipt of the assessment order for A.Y. 2003-2004 which is before us filed stay petition before ACIT and the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 7.2 of his order, the CIT(A) elaborated discussed various activities of the assessee and was satisfied that the assessee is a educational institution. The CIT(A) concluded at para.7.3 as under : "It is seen from the records that the appellant has declared a surplus of Rs.65,7,925/- and claimed exemption, which was not allowed by the A.O. while finalising the assessment proceedings. It is further seen from the records that out of the total receipts of Rs.1,49,00,000/- an amount of Rs.1,16,00,000/- is attributable to government donations, which are corpus donations and as such does not form part of receipts. Thus, the remaining receipts being Rs.33,00,000/-, which are otherwise below one crore of rupees, not subject to tax in terms of the provisions of section 10(23C)(iiiad) of the IT Act, 1961. There is no finding by the A.O. that the institute existed not for training the personnel working in the health department of the State Government or that it is existing for making profit. In the absence of any cogent material brought on record to the contrary, the contention of the appellant that the receipts have been applied for the objects of the institute is acceptable. In addition, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties and perused the record. We find that the assessee has raised alternate plea in appeal before the CIT(A) in ground Nos. 2 & 4. The CIT(A) admitted the alternate plea under sub-section (5) of section 250 of the IT Act, 1961 and after calling for the remand report decided the issue. We are of the opinion that the CIT(A) has rightly entertained the alternate peal taken before him. Our opinion is based on the ratio of decision in Addl. CIT Vs. Ghai Lime Stone Co. 144 ITR 140 (MP) and Al Farook Educational Centre Vs. ITO 30 (11) ITCL 65 (Cochin Tribunal). Hence, Ground Nos. 2 & 4 of revenue are dismissed. 12. Ground Nos. 3 & 5 read as under: "Ground No. 3: The learned CIT(A) is not correct to hold that the assessee is eligible for exemption either u/s 10(23C) iii ad or ab. In view of the observation made by the Hon'ble Supreme Court of India as regards the meaning of the word Education occurring in section 2(15) of the Income-tax Act, 1961 in the case of Sole Tustee Lok- Shikshana Trust Vs. CIT 101 ITR 234 (SC). Ground No. 5: Without prejudice to the above it is further stated that the learned CIT(A) erred in not appreciating that the assessee institution is not existing so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in ITA No.1794/Hyd/2008, dated 4th February, 2010, which clearly apples to the facts of the case, wherein the Tribunal vide para 3 and 4 of its order held as follows- "3. After hearing both the parties, we are of the opinion that this issue has already been decided by the tribunal vide its order dated 29.1.2009 in assessee's own case for the assessment year 2005-06 in ITA No.1120/Hyd/2009 by holding as follows: "We have heard both the parties and perused the material on record. The learned Authorized Representative for the assessee submitted that this issue covered in favour of the assessee by the order of the Hyderabad Bench 'A' of the Tribunal dated 15.4.2009 in assessee's own cases in ITA No.1133/Hyd/2006 for the assessment years 2003- 04 and order dated 17.4.2009 in ITA No.1206/Hyd/2007 for the assessment year 2004-05. However, we find that the Constitutional Bench of Apex Court in the case of T.M.A. Pai Foundations and others Vs. State of Karnataka & Others (2002) 8 SCC 481 examined the issue of collection of capitation fees for the admission of students over and above fees prescribed by the private institution and held that the institution which are collecting capitation fe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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