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TMI Blog2015 (12) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... ue before the learned CIT (Appeals) by taking a specific ground. However, from the perusal of the order of the learned CIT (Appeals), we see that the learned CIT (Appeals) has not adjudicated the said issue. In view of this, we restore this issue to the file of the learned CIT (Appeals) to adjudicate the same as per law. - ITA No.318/Chd/2013, ITA No.380/Chd/2014 - - - Dated:- 27-10-2015 - SHRI H.L.KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER For The Appellant : Shr i Vivek Mongia Respondent by : S/Shri Sudhir Sehgal and Ashok Goyal ORDER Ms. Rano Jain, Accountant Member These two appeals filed by the Revenue are directed against the separate orders of learned Commissioner of Income Tax (Appeals)-I, Ludhiana dated 4.1.2013 and 28.2.2014 for assessment years 2009-10 and 2010-11 respectively. 2. Briefly, the facts of the case are that the assessee had excess of income over the expenditure amounting to ₹ 32,52,148/- on which the exemption had been claimed in the return of income without specifying the section thereof. Along with the return, the assessee had also filed Audit Report under section 12A(b) of the Income Tax Act, 1961 (in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 11.4.1955 was made. Further with regard to exemption under section 10(23C)(iiiad) of the Act, it was submitted that no exemption under section 10(23C)(iiiad) of the Act can be denied to the assessee just on this ground that multiple objects are included in the trust deed. It was stated that it is not the entirety of the income of the recipient but only the income from educational institution that comes within the purview of the exemption. It is thus clear that if the income of any person falls in clause covered by clause (23C) of section 10 of the Act, then such income is not includible in the total income of that person. The exemption under section 10(23C)(iiiad) of the Act is not to be seen qua the assessee but relevant to the activity of educational institution being carried out by an assessee. The assessee trust in the current year has constructed the building for the school and no other income other than educational income was included in the income and expenditure account. When no other objects were operational in the year and even if other activity of the trust may be carried out at any time in future years, the assessee would be preparing separate accounts and records f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer to charge tax u/s 115BBC(1) of the I.T. Act on donations received by the trust as the assessee has not produced the records of the identity indicating the name and address of the donors. 4. That the appellant craves leave to add or amend any ground of appeal before it is finally disposed off. 7. The learned D.R. while arguing before us relied upon the order of the Assessing Officer. His main argument was that the assessee itself has not claimed exemption under section 10(23C)(iiiad) of the Act while filing its return of income and in fact it intending to avail exemption under section 11 of the Act. Not having the registration under section 12A of the Act, neither exemption under section 10(23C) nor section 11 of the Act is available to the assessee. It was stressed before us that the assessee had filed report in Form No.10B of the Act along with return of income, which goes to prove that the assessee intended to claim exemption under section 11 of the Act while it was not having registration under section 12A of the Act. In this view, it was prayed that the order of the Assessing Officer be confirmed. 8. The learned counsel for the assessee reiterated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm No.10B shows that it intended to claim exemption under section 11 of the Act, which it could not, since it did not have registration under section 12A of the Act at that time. However, it can claim exemption under any other provision of the Act provided it satisfies all the conditions given in that provision. Under section 10(23C)(iiiad) of the Act, any university or other educational institution existing solely for educational purposes and not for purposes of profit if the aggregate annual receipts of such university or educational institution do not exceed the amount of ₹ 1 crore can avail of this exemption. Undoubtedly, the annual receipt during the relevant assessment year of the assessee does not exceed ₹ 1 crore. The only issue to be seen is whether the assessee is existing solely for educational purposes and not for the purpose of profit. Since the assessee has been granted registration under section 12A of the Act in the future as on 26.5.2011, it cannot be denied that it did not exist for earning of profits. Now, the only question is whether the assessee is existing wholly for educational purposes. No doubt, the assessee has one of its objects the education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct is the educational and the income has not diverted for personal profit, the trust is entitled for the benefit under section 10(23C)(iiiad) of the Act. The contention of the Assessing Officer that the assessee itself has claimed exemption under section 11 of the Act while filing its return of income and not exemption under section 10(23C)(iiiad) of the Act cannot be the basis for disallowing the claim as it is a trite law by now that even if the assessee himself does not claim any benefit if it is eligible for any such benefit and fulfils all the conditions provided under the Act, it incumbent on the authorities to give him such benefit. It has been very clearly provided in the Circular No.14(XL-35) dated 11.4.1995 (supra) issued by the CBDT, whereby it has been instructed that the officers of the Department must not take advantage of the ignorance of an assessee as to his rights. It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs and in this regard the Officers should take the initiative in guiding a taxpayer where proceedings or other particulars before them indicate that some refund or relief is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny further addition under section 115BBC of the Act. The assessee has raised this issue before the learned CIT (Appeals) by taking a specific ground. However, from the perusal of the order of the learned CIT (Appeals), we see that the learned CIT (Appeals) has not adjudicated the said issue. In view of this, we restore this issue to the file of the learned CIT (Appeals) to adjudicate the same as per law. 13. The ground of appeal No.4 raised by the Department is general and hence, needs no adjudication. 14. The appeal of the Revenue is partly allowed. ITA No.380/Chd/2014 : 15. The grounds of appeal raised by the Revenue are as under : 1) Whether on the facts and in the circumstances of cases the CIT(A) has erred in not considering the fact that the assessee is not existing solely for educational purpose as per the objectives in the Trust Deed. 2) That the appellant craves leave to add or amend any ground of appeal before it is finally disposed off. 16. It is relevant to observe here that the facts and circumstances of this case are similar to ground Nos.1 and 2 in ITA No.318/Chd/2013 and the findings given in ITA No.318/Chd/2013 shall apply to this case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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