2012 (6) TMI 833

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....r of the CIT(A) is erroneous on facts and in law and. (ii) The CIT(A) erred in holding that the assessee is eligible for exemption u/s. 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 notiafication u/s. 10(23(C)(iv) of the I.T. Act. (iv) The decision of the ITAT in St. Therasa's Society has not been accepted by the department and the appeal u/s. 260A has been preferred before the High Court. (v) The CIT(A) erred in holding that the assessee is entitled to claim depreciation of Rs. 72,73,447/- for the A.Y. 2007-08. (vi) The CIT(A) ought to have sustained the d....

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....n 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 capitation fees for admission of students over and above the fees prescribed cannot 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 univers....

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..... 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 assessee is not entitled for exemption either u/s 11 or u/s 10(23C) in case it collected any money by whatever name it is called i.e., donation, building fund, auditorium fund etc. etc., over and above the prescribed fee for admission of students. 5. The next issue involved in this appeal relates to the addition made on account of depreciation claimed by the asse....

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....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.32(1) is not allowable as the trust is not undertaking any business activity. In view of the above, 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....