TaxTMI 
TaxTMI 
2012 (9) TMI 87
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....ion 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 from it. 5. The ld. CIT(Appeals) failed to appreciate that the decision of the Apex Court in the case of CIT V/s. Bar Council of Maharashtra was made in the year 1981 prior to introduction of the sub-clause (vi) to the Section 10(23C) [inserted by the Finance Act, 1998 w.e.f. 01.04.1999] 6. The ld. CIT(Appeals) failed to see that in the cited case of American Hotel and Lodging Assn./Educational Institute vs. CBDT (2008) (170 Taxman 306)(SC), the Hon'ble Supreme Court set aside the order of the CBDT declining approval under section 10(23C) (vi) and restored the application of the assessee for fresh disposal and did not dispense with the requirement of approval under section 10(23C)(vi). In the contrary, the decision of the Apex Court strengthened the view that the approval under section 10(23C)(vi), by the prescribed authority, is a prerequisite for enjoying exempti....
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....ssing officer for verification of the aspect of donation, capitation fee, etc., if any, collected by the assessee. Further, he also took objection to the direction of the Tribunal, in the recent cases, wherein it is stated that in case the assessee is found to have not violated, by charging any money by way of donation, building fund, auditorium fee, etc. over and above the prescribed fee for admission of students, the assessee would be entitled for exemption under S.11, and mentioned that these directions are uncalled for, considering the fact that there is no ground in the present appeal of the Revenue to that extent before the Tribunal. Therefore, he submitted that the Tribunal should restrict itself to the grounds raised by the Revenue before it in the appeal. For this principle, learned counsel relied on the judgment of the jurisdictional High Court in the case of S.A.Rahim and two others V/s. CIT (333 ITR 379) and of the Gujarat High Court in CIT V/s. Steel Cast Corporation(107 ITR 683). The learned counsel for the assessee submitted that the later order of the Tribunal for assessment year 2007- 08 dated 28.1.2011 in ITA No.1418/Hyd/2010 is not a speaking order and in any eve....
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.... for earlier years except 2005-06. For the assessment year 2005- 06, the Tribunal, considering the grounds raised before it and the issues involved before the lower authorities, did not give any direction with regard to such verification by the assessing officer before granting exemption. 7. It is in that context, the question that remains to be addressed in the present appeal is the one raised by the assessee in the course of hearing on this appeal before us, as to whether the Tribunal is correct in setting aside the matter to the assessing officer for verification, and thus adjudicating on an issue, which is not specifically raised by the Revenue in the grounds of this appeal. It is true that in the order for assessment year 2005-06 dated 26.12.2008 has not remitted the matter back to the files of the assessing officer. However, we find that for the subsequent assessment year 2007-08 and also for the assessment years 1999-2000 and 2002-03, the Tribunal, vide its order noted above, set aside the matter to the file of the assessing officer for verification as to the fulfilment of the conditions mentioned in S.11 to 13, with reference to collection of capitation fee etc. 8. No....
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....ecision on any other ground unless the party who may be affected there by has had a sufficient opportunity of being heard on that ground". In effect thus, as long as affected parties have an opportunity of having been heard on the ground on which appeal is decided, the Tribunal can decide the appeal on any of the issue - whether raised by the parties or not. It is also important to appreciate that the expressions 'subject matter of appeal' and 'grounds of appeal' cannot be used interchangeably as they have distinct connotations. While the Tribunal cannot enlarge the scope of 'subject matter of appeal' inasmuch as a disallowance not made by any of the authorities below cannot be made by the Tribunal, or any addition of income not made by the authorities below cannot be made by the Tribunal, but, within the subject matter of appeal, the Tribunal can examine any aspect of the matter - whether the same has been examined by the authorities below or not. It is, thus, not only invitation of the parties but also on its own that the Tribunal can address itself to an aspect related to the issue in appeal, even though the same may not have been specifically raised by either of the parties. Th....