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TMI Blog2012 (3) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the assessee is eligible for claim under section 11 in absence of approval under sub-clause (vi) to the section 10(23C). 3. The ld. CIT(A) failed to see that approval sub-clause (vi) to the Sections 10(23C) is distinct from registration U/S. 12A of the Act. 4. The ld. CIT(A) failed to see that sub-clause (vi) to the Section 10(23C) as inserted by the finance Act, 1998 w.e.f. 01.04.1999 states that the university or other educational institution existing solely for educational purpose may be approved by the prescribed authority. The issue is explicitly dealt with by the Act itself and the intention of the legislature is quite clear form it. 5. The ld. CIT(A) failed to appreciate that the decision of the Apex Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA No.1206/Hyd/2007 for the assessment year 2004-05, wherein it was held that if donations are received compulsorily for the admission of students, by whatever name it may be called, i.e. donation, building fund, auditorium fund, etc. over and above the prescribed fee, from the students, the assessee would not be entitled for exemption either under S.10(23C) or under S.11 of the Act. Further, 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 capitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in ITA No.999/Hyd/2006 for the assessment year 2003-04. Therefore, we set aside the orders of the lower authorities and remit back the matter to the file of assessing officer with a direction to assessing officer that he shall reconsider the entire issue in the light of judgment of Supreme Court in the case of M/s Islamic Academy of Education Another Vs. State of Karnataka and Another (supra), and in the cased of T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others (Supra), and find out whether the assessee has received any money over and above the fees prescribed and thereafter decide the issue afresh in accordance with law after giving reasonable opportunity of hearing to the assessee. We make it clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tead of deciding on the genuineness of the transaction, without any documentary evidence. In that circumstance, the Hon ble High Court has held as above. In the present case, the issue is relating to allowability of exemption under S.11 or under S.10(23C), and while adjudicating on this issue one has to see the eligibility of claiming of deduction under S.11. This aspect has not been proper addressed by the CIT(A) while granting the alternative claim of the assessee for exemption under S.11. Since the Assessing Officer has no occasion to examine the claim of the assessee under S.11, we have given suitable directions, in the preceding para, to the Assessing Officer for verification. That being so, the ratio laid down by the jurisdictional Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder S.11, it is not sufficient to deny claim for depreciation unless the value of asset has been actually allowed as expenditure. If not so allowed in the year of acquisition, assessee will be entitled to depreciation. Further, it was held by the Cochin Bench of the Tribunal in the case of Dy. CIT V/s. Adi Sankara Trust (46 SOT 230) that where an assessee trust is claiming depreciation on assets where cost of the relevant assets stood claimed as an application of income for a preceding and/or the current year under S.11(1), its claim under S.32(1)is eligible only in respect of business assets and where entire cost of the asset stands allowed by way of application of income under S.11(1), the depreciation claimed by the assessee under S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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