2010 (8) TMI 1043

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....to have considered the fact that sub clause (iv) and (via) are entirely new provisions meant to provide the monitoring mechanism that was lacking in the earlier provisions. 5. The CIT(A) ought to have appreciated the fact that it was section 10(22) that provided for exemption of the educational income of the Trusts, Societies etc. and not section 11. 6. The CIT(A) erred in observing that section 11 provides sufficient monitoring mechanism to check the assessee's activities and condition of section 11 as the conclusion of the CIT(A) is not founded on sound reasoning and even the citation of Supreme Court in 195 ITR 8, in fact, purports just the opposite view. 7. The decision of the ITAT in Rajasthan Siksha Samithi has not been accepted in principle but the appeal has not been preferred before the High Court u/s 260A due to the fact that the tax effect is below the monetary limits. 8. In the case of St. Theresa's Society the decision of the ITAT has not been accepted and appeal has been filed before the High Court. 3. Similar issue has been considered by this Tribunal in the case of M/s Vasavi Academy & Education, Hyderabad in ITA No.1120/Hyd/2009, the Tribunal vide it....

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.... in ITA No.999/Hyd/20-06 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 judgement 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 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. 4. Later, the above assessee filed a Miscellaneous petition in MA No.58/Hyd/2010 and the same was disposed off by this Tribunal vide its order dated 4th June, 2010 by holding as follows: The assess....

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....ion for enhancement of assessment which shall ought have been avoided. 4. On the other hand, the departmental representative submitted that the issue before us in the assessment year under consideration is whether the assessee entitled for exemption u/s 11 & 12 or 10(23C) or not. The issue of collection of capitation fee is very vital issue as per the judgement of the Hon'ble Supreme Court which was relied by the Tribunal while deciding the appeal. He submitted that as per judgement of the Hon'ble Supreme Court as relied by the Tribunal, if assessee collected the capital fee, then does not entitle for any exemptions. He submitted that when the CIT(A) decide the case without bringing the proper facts on record, the Tribunal is not precluded from set aside the issue to the file of assessing officer for fresh consideration after bringing the entire facts on record. He relied on the judgements: 1. Kapurchand Shrimal Vs. CIT (AP) (131 ITR 451) wherein it was held that the facts required for examining the claim were before the Tribunal. The absence of an appeal by the assessee against the order of the Commissioner, who had remanded the matter to the Income Tax Officer, ....

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.... when there is an appeal or cross objections against that order. It should be noted that the power of the Tribunal must be confined to the issue arise in the appeal and it cannot travel outside the ambit of its jurisdiction. If the assessing officer made an error in not bringing facts on record and the judgement cannot be without examining the facts on record, then to rectify that error, the Tribunal cannot shut its eyes and deliver the judgements. If the Tribunal decides to remand taking a particular view of the case, but an alternative view or other views might exist for not remanding the case, the exercise of the power of the Tribunal should not be disturbed. If the effect of the order of remand is to be resulted in fair play of justice, the order should not be disturbed. Even in that event, the view expressed by the Tribunal is not correct, the assessee would always have its remedy as provided in the Act. The Tribunal cannot over look its own responsible position while delivering justice. It is incumbent on the part of the Tribunal to deliver justice in the best interest of both the parties. The Tribunal while deciding any appeal cannot treat the findings of the fact made by th....