AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (5) TMI 208
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....unds:- "1. That on the facts and circumstances of the case, the Commissioner of Income tax, (Appeals)-40, New Delhi ['the CIT(A)] having held that non recognized courses conducted by Women Training Institute (WTI) of the Appellant also constituted 'education' within the meaning of section 2(15) of the Income Tax Act, 1961 ("the Act") has erred in holding that tax paid on income from imparting education through non recognized courses shall not be refunded to the Appellant. 2. That on the facts and circumstances of the case and in law, the CIT(A) did not appreciate the ratio of CIT vs. Shelly Products & another (2003) 261 ITR 367(SC). It was not appreciated that inclusion of exempt income or income not in contemplation of la....
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....fore, any surplus generated from other activities of the assessee even if they are in the nature of commercial activities are allowable for exemption if used for the objectives of the society. Accordingly, he deleted the impugned addition and directed the Ld. AO to grant full exemption under section 11 along with consequential benefits. However, in para 4.2.4 (page 18) of his order, in view of decision of Hon'ble Supreme Court in CIT vs. Shelly Products & Another 261 ITR 367 (SC) the Ld. CIT(A) held that since the assessee paid tax on the impugned income of Rs. 99,97,872/- declared in the return, tax paid thereon will not be refunded even though the said income is eligible for exemption under section 11 of the Act. 5. The assessee is agg....
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....the return for AY 2012-13 with a view to ensure that penalty is not levied, for by the time return for AY 2012-13 was filed on 27.09.2012 appeal for AY 2009-10 was sub-judice before the ITAT. The assessee never admitted its liability to pay tax on income from running of non recognized courses by WTI. 6.2 The AR invited our attention to the observation of the Hon'ble Supreme Court in Shelly Products & Another (supra) made at page 382 therein which according to him obliges the Ld. AO to grant refund of the tax paid in access under the circumstances enumerated therein. 6.3 The Ld. AR submitted that there is no estoppel against the statute and referred to the following decisions:- (i) CIT vs. Bharat General Reinsurance Co. Ltd. (....
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....Ld. CIT(A) denied the assessee refund of tax paid on the said income declared by the assessee in its return filed on 27.09.2012 solely on the basis of Hon'ble Supreme Court's decision in Shelly Products & Another (supra). 7.1 To say the least the Ld. CIT(A) misapplied the decision (supra) of the Hon'ble Supreme Court to the facts of the assessee's case in which facts were altogether different. In Shelly Products & Another (supra) the facts were that the assessee, after having paid the advance tax filed its return for AY 1976-77. The AO framed assessment under section 143(3) r.w.s 144B of the Act. The CIT(A) partly allowed the appeal and rejected the assessee's contention that the AO was acting without jurisdiction. On further appeal, the....
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.... refund is claimed was not chargeable or payable, but claim refund on the sole ground of the failure of the authorities to pass an order of assessment." 7.4 Thus, the fact situation before the Hon'ble Supreme Court was - (i) that the assessee themselves had admitted their liability to pay tax in respect of which refund was sought and that they never contended that such tax was not chargeable or payable by them; (ii) that the sole ground of claim of refund of tax was failure by the tax authorities to pass an order of assessment 7.5 Does such a fact situation exist in the case of the assessee society which we are presently considering ? The answer is no. The assessee society had all along claimed that the activity of r....
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....er dated 15.02.2016 of the Tribunal (supra) and the decision dated 02.08.2016 of the Hon'ble Delhi High Court in the assessee's own case for AY 2009-10. The quantum appeal filed by the Revenue against the order dated 01.02.2017 of the Ld. CIT(A) for AY 2012- 13 has already been dismissed by the Tribunal vide its order dated 16.02.2021 in ITA No. 2760/Del/2017. Thus, as at present the dispute between the Revenue and the assessee on the issue of addition in respect of receipt from running of non-recognized courses by WTI has been put to rest by the decision (supra) of the Tribunal and the decision of Hon'ble Delhi High Court in ITA No. 509/2016 for AY 2009-10 in the assessee's own case. 8. It is, thus amply manifest that the Ld. CIT(A) mis....