TaxTMI 
TaxTMI 
2015 (8) TMI 1436
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....d also relationship of donors to the students studying in its college. The assessee filed its reply on 24.12.2007 stating that the development fund was voluntary contribution from the parents of the students. The A.O. however, did not accept the assessee's contention and by following the judgment of the Hon'ble Supreme Court in the case of TMA Pai Foundation and others vs. State of Karnataka and others dated 31.10.2002 and also considering the restrictions placed by the A.P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 on collection of capitation fee, held that the donations to be capitation fee and not allowable as exemption under section 11 of the I.T. Act. Aggrieved by the said order of the A.O., the assessee preferred an appeal before the Ld. CIT(A), who confirmed the order of the A.O. and the assessee is in second appeal before us. 3. Before the Ld. CIT(A), the assessee had also challenged the validity of the reopening under section 147 of the I.T. Act. The assessee also placed reliance upon the order of this Tribunal in assessee's own case for the A.Ys. 1999-2000 to 2003-2004 in support of its contention that the....
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.... the Tribunal, the DDIT (Exemptions) has issued notices for reopening of the assessment for the A.Ys. 2002-2003 and 2003-2004 also on 27.03.2007. The notice under section 148 for the A.Y. 2002-2003 and 2003-2004 have been challenged by the assessee before this Tribunal and this Tribunal vide order dated 05.04.2013 in I.T.A. No. 433, 434 & 437/Hyd/2008, 1718/Hyd/2008 and 1582/Hyd/2011 has dealt with the issue at length and has held as under: "2. The first common issue in the first four appeals in ITA Nos. 433/Hyd/2008, 434/Hyd/2008, 1718/Hyd/2008 and 1582/Hyd/2011 is with regard to reopening of assessment. The assessee is a trust having its registered office at 11-5-432, Red Hills, Hyderabad, runs education institutions at various places in Hyderabad. In these four years, assessment was reopened after survey conducted u/s. 133A of Income-tax Act, 1961 on 15.10.2004 at G. Pullareddy Engineering College (GPEC), Kurnool. During the course of survey it came to the knowledge of the Department that the assessee has not filed returns of income for A.Y. 1997-98 and onwards. However, on record it was observed that the assessee filed returns of income as follows: A.Y. 1999-2000 - On 06.10.....
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.... from the assessee's side. The proceedings initiated by the Kurnool Range u/s. 148 dated 9.12.2004 were also closed as not applicable and no order in pursuance of the reopening was passed. Being so, the Department cannot find fault for reopening the assessee's case by the DDIT (Exemptions)-II, Hyderabad. 6. We have heard both the parties and perused the material on record. We have carefully gone through the earlier order of the Tribunal in ITA Nos. 1 to 5/Hyd/2007 dated 11th February, 2010 wherein the Tribunal confirmed levy of penalty u/s. 272A(2)(e) of the Act. For clarity, we will reproduce the relevant paras of that order herein below: "6. We have heard both the parties and perused the material on record. We have also carefully gone through relevant case-law cited by both the parties. In these cases, the assessee had not filed any return from assessment year 1997-98 to assessment years 2003-04. The assessee runs an engineering college, viz. G. Pulla Reddy Engineering College at Kurnool. During the course of TDS inspection dated 30-9-2004 on the above college, it came to light that the assessee did not file return of income from assessment years 1997-98 onwards. 6.1....
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....(5) and he had jurisdiction over the assessee. Thus the exercise of jurisdictional authority over the assessee by JCIT Kurnool is justified. 6.6. Under pre 1988 sec. 124(5) a person was entitled to call a question and dispute the jurisdiction of ITO. a) In cases where he had furnished a return u/s. 139(1) or his assessment had been completed within one month from the date of furnishing of return or completion of assessment whichever is earlier. b) In case where he had not made a return u/s. 139(1) nor his assessment was completed, and he had been served with a notice for furnishing of return under the then section 139(2) or 148 then within the time allowed under such notice. 6.7. Under Posts. 124 of the IT Act 1961: a) where he has made a return under sub-section (1) of section 115WD or under sub-section (1) of section 139, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 142 or sub-section (2) of section 115WE sub-section (2) of section 143 or after the completion of the assessment whichever is earlier. b) When he has made no such return, after the expiry of the time allowed by the notice under sub-section ....
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....nue and the assessing officer is entitled to close assessment proceedings by dropping the same and hence the mention of completion of assessment is not there in clause (b) as against its mention in clause (a). The comma used after the words 'Where he has made no such return' is crucial as it emphasizes only on the time allowed under any of the notices mentioned thereafter, once it is clear that the assessee has not made returns as mentioned in clause (a) of the sub-section. 7.3. In our opinion, the assessee is squarely covered under clause (b) of 124(3) as he had not filed return within time allowed u/s. 139(1) as per provisions of section 139(4A). That sub-section (2) of section 124, the question of jurisdiction shall be determined by DGIT/CCIT/CIT or CBDT as the case may be. The assessee did not approach any of the above authorities to resolve his problem of jurisdiction." 7. Being so, the jurisdiction of the assessee is vested with the JCIT, Kurnool during the relevant assessment years. It is also on record that the issue of notice u/s. 148 was by the ACIT, Kurnool Range for A.Ys. 1999-2000, 2000-01, 2001-02, 2002-03, 2003-04 and 2004-05. The assessee also filed a lett....