The ITO, Ward-2., Eluru v. M/s Amma Educational Society,, Kanchili

ITA 540/VIZ/2008 | 2005-2006
Pronouncement Date: 25-02-2010 | Result: Dismissed

Appeal Details

RSA Number 54025314 RSA 2008
Bench Visakhapatnam
Appeal Number ITA 540/VIZ/2008
Duration Of Justice 1 year(s) 3 month(s) 29 day(s)
Appellant The ITO, Ward-2., Eluru
Respondent M/s Amma Educational Society,, Kanchili
Appeal Type Income Tax Appeal
Pronouncement Date 25-02-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted Not Allotted
Tribunal Order Date 25-02-2010
Assessment Year 2005-2006
Appeal Filed On 27-10-2008
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH: VISAKHAPATNAM BEFORE: SRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SRI B.R. BASKARAN ACCOUNTANT MEMBER I.T.A. NO.540/VIZAG/2008 ASSESSMENT YEAR : 2005-06 ITO WARD-2 ONGOLE VS. AMMA EDUCATIONAL SOCIETY KANDUKUR (APPELLANT) (RESPONDENT) PAN NO. AABTA 06155 APPELLANT BY : SHRI G.S.S.GOPINATH DR RESPONDENT BY : NONE O R D E R PER B..R. BASKARAN ACCOUNTANT MEMBER : THE APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 28.7.2008 PASSED BY THE LD CIT (A) GUNTUR AND IT RELATES TO T HE ASSESSMENT YEAR 2005-06. NONE APPEARED ON BEHALF OF THE ASSESSEE AND HENCE W E PROCEED TO DISPOSE OF THIS APPEAL EX-PARTE QUA THE ASSESSEE. 2. ALL THE GROUNDS URGED UPON BY THE REVENUE GIVE R ISE TO A SINGLE ISSUE VIZ. WHETHER THE LD CIT (A) IS JUSTIFIED IN HOLDING THAT THE ASSESSEE CAN CLAIM EXEMPTION EITHER U/S 10(23C) OR SEC.11 OF THE ACT. 3. THE FACTS RELATING TO THE ISSUE ARE STATED IN BR IEF. THE ASSESSEE IS A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT AND RUNNING AN EDUCATIONAL INSTITUTION. THE SOCIETY WAS REGISTERED AS A CHARIT ABLE INSTITUTION U/S 12A OF THE INCOME-TAX ACT. DURING THE YEAR UNDER CONSIDERATION THE ANNUAL RECEIPTS OF THE ASSESSEE SOCIETY EXCEEDED RS.1.00 CRORE. AS PER TH E PROVISIONS OF SECTION 10(23C) OF THE INCOME TAX ACT IF THE GROSS RECEIPT S EXCEED RS.1.00 CRORE AND IF THE ASSESSEE SOCIETY WANTS TO AVAIL EXEMPTION U/S 1 0(23C)(VI) IT IS REQUIRED TO 2 OBTAIN APPROVAL IN THAT REGARD FROM THE PRESCRIBED AUTHORITY. THE ASSESSEE SOCIETY DID NOT OBTAIN REQUIRED APPROVAL AS STATED ABOVE AND HENCE IT PREFERRED TO AVAIL EXEMPTION U/S 11 OF THE ACT. HOWEVER THE AO WAS OF THE VIEW THAT THE ASSESSEE COULD NOT AVAIL EXEMPTION U/S 11 SINCE IT S ANNUAL RECEIPTS HAS EXCEEDED FROM THE PRESCRIBED LIMIT OF RS.1.00 CRORE AND THE ASSESSEE COULD ONLY AVAIL EXEMPTION U/S 10(23C(VI) OF THE ACT. SINCE T HE ASSESSEE SOCIETY DID NOT HAVE REQUIRED APPROVAL OF THE PRESCRIBED AUTHORITY THE AO BROUGHT TO TAX THE TOTAL INCOME BY REJECTING THE CLAIM OF EXEMPTION U/S 11 O F THE ACT. HOWEVER THE LD CIT (A) HELD THAT ONCE GENUINENESS OF ACTIVITIES I S ESTABLISHED THE ASSESSEE SOCIETY CAN CLAIM EXEMPTION EITHER U/S 10(23C) OR S EC.11. ACCORDINGLY LD CIT (A) HELD THAT THE ASSESSEE SOCIETY CAN CLAIM EXEMPT ION U/S 11 SUBJECT TO THE VERIFICATION OF FULFILLMENT OF THE CONDITION SPECIF IED UNDER THAT SECTION. AGGRIEVED BY THE ORDER OF THE LD CIT (A) THE REVENUE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE LD DR IN THIS REGARD. A SIMIL AR ISSUE WAS CONSIDERED BY THIS BENCH IN THE CASE OF NIDAMANURU EDUCATIONAL SOCIETY ONGOLE IN ITA NO.493/V/2007 WHEREIN THIS BENCH VIDE ITS ORDER D ATED 13.11.2009 HAS HELD AS UNDER: .. THE LD CIT (A) HAS FOLLOWED THE DECIS ION OF ITAT DELHI IN THE CASE OF SHARAK SHIKSHA SAMITI VS. CIT (16 SOT 213) (DEL. ) ) WHEREIN IT WAS HELD THAT WHEN TWO RECOURSES ARE AVAILABLE TO A PER SON UNDER A LAW IT IS FOR HIM TO CHOOSE ONE OR THE OTHER OR BOTH THE RECO URSES. IN THE CASE OF MALINENI PERUMALLU EDUCATIONAL SOCIETY REFERRED SU PRA THIS BENCH HAS ALSO TAKEN A SIMILAR VIEW BY FOLLOWING TWO DECISIO NS OF ITAT HYDERABAD LISTED BELOW WHEREIN THE TRIBUNAL HAS TAKEN A VIEW THAT THE EXEMPTION CAN BE CLAIMED EITHER U/S 11 OR SEC. (23C) OF THE A CT. A. RAJASTHAN SHIKSHA SAMITI ITA N OS. 80 & 81/HYD/08 B. DDIT VS. ST. TERESA CONVENT SOC IETY ITA NO. 234/HYD/07 IN VIEW OF THE ABOVE WE ARE OF THE VIEW T HAT THE DECISION RENDERED BY LD CIT (A) IS IN ACCORDANCE WITH THE VIEW CONSISTEN TLY TAKEN UP BY 3 VARIOUS BENCHES OF ITAT. IN VIEW OF THE ABOVE W E DO NOT FIND ANY NECESSITY TO INTERFERE WITH THE DECISION OF THE LD CIT (A). 5. THE FACTS AND CIRCUMSTANCES OF THE INSTANT C ASE ARE IDENTICAL WITH THE CASE OF NIDAMANURU EDUCATIONAL SOCIETY DISCUSSED SUPRA. HENCE CONSISTENT WITH THE VIEW TAKEN THEREIN WE UPHOLD THE ORDER OF LD CIT(A ). 6. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 25-02-2010. SD/- SD/- (SUNIL KUMAR YADAV) (B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM DATE : 25 TH FEBRUARY 2010 A COPY OF THIS ORDER IS FORWARDED TO : 01 THE ITO WARD-2 SANTHAPET ONGOLE 02 AMMA EDUCATIONAL SOCIETY RAGHAVA COMPLEX KANIG IRI ROAD KANDUKUR 03 THE CIT (A) GUNTUR 04 THE CIT GUNTUR 05 DR ITAT VISAKHAPAATNAM 06 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY ITAT VISAKHAPATNAM BENCH