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TMI Blog2014 (6) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... as been held that the institution which are collecting capitation fees for admission of students over and above the fees prescribed cannot be construed as charitable/education institution - the fees collected over and above the prescribed fee for admission of the student has to be constructed as capitation fee - lower authorities have not examined the collection of capitation fee – thus, the matter is required to be remitted back to the AO for fresh adjudication – Decided in favour of Revenue. Claim of depreciation – Held that:- Following Jaipur Stock Exchange. Versus Assistant Commissioner Of Income-Tax [2006 (6) TMI 153 - ITAT JAIPUR-A] - depreciation on fixed assets is an allowable deduction, which is necessary to arrive at the income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neous on facts and in law. (ii) The CIT(A) erred in holding that the assessee is eligible for exemption us/. 11 of the I.T. Act and the exemption u/s. 11 can be alternatively claimed. (iii) The CIT(A) ought to have confirmed the assessment as it is mandatory on the part of the assessee to obtain notification u/s. 10(23C)(iv) of the I.T. Act. (iv) The CIT(A) ought to have sustained the disallowance of depreciation in the light of the decision of the Supreme Court in the case of Escorts Limited (199 ITR 4). (v) The decision of the ITAT in St. Theresa s Society has not been accepted by the Department and appeal u/s. 260A has been preferred before the A.P. High Court. (vi) The CIT(A) ought to have confirmed disallowance of provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exemption either u/s 10(23C) or u/s 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whatever name it is called i.e., donation, building fund, auditorium fund etc. etc., over and above the prescribed fee for admission of students. 4. Before parting we may note that the learned counsel for the assessee submitted before us that only for quantification of the exemption under S.11, the issue may be set aside and not otherwise. On this issue, we find it appropriate to mention herein 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 on the earlier judgment of jurisdictional High Court in the case of CIT V/s. Krishna Mining Co. (107 ITR 702), that the Tribunal can go into the only issue raised before it and not on other issues. It was observed by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case. 5. The next issue involved in these appeal relates to the addition made on account of depreciation claimed by the assessee. The Assessing Officer has observed that the trust had claimed expenditure on account of depreciation. He was of the view that since the purchase of capital asset used to promote the objective of the trust is allowed as application of income, depreciation is not allowable on capital asset where the entire cost of acquisition is either written off in the first year itself or the cost of acquisition is treated as application of income. The Assessing Officer has drawn support from the decision of the Apex Court in the case of Escorts Ltd. (199 ITR 44). The CIT(A), on appeal, has allowed the claim of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove, the Assessing Officer is directed to verify in respect of each asset on which depreciation claimed, whether the value of such asset was in fact allowed under S.11, and if it was so allowed, the depreciation would not be allowed in respect of such asset. Only if the value of the asset was not allowed as expenditure under S.11, the Assessing Officer is required to allow depreciation thereon, as per the rate applicable to those assets, as held in the case of Mahila Sidh Nirman Yojna, cited supra. This issue raised by the Revenue is set aside to the file of the Assessing Officer for fresh consideration, in the light of the above observations. The Assessing Officer shall accordingly redecide the issue in accordance with law and after givin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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