The Commissioner Of Income Tax vs. M/S Nav Krishna Education Society

HIGH COURT OF MADHYA PRADESH AT JABALPUR I.T.A. No : 173 OF 2012 The Commissioner of Income Tax - V/s - M/s Nav Krishna Education Society Present : Hon’ble Shri Justice Rajendra Menon Hon'ble Shri Justice K.K.Trivedi ---------------------------------------------------------------------------------------- Shri Sanjay Lal, learned counsel for the appellant. Shri Sumit Nema, learned counsel for the respondent/Assessee. J U D G M E N T (16/11/2015) This is revenue's appeal under Section 260 A of the Income Tax Act, 1961 calling in question tenability of an order dated 21st of May, 2012 passed by the Income Tax Appellate Tribunal, Indore. 2. Having heard Shri Sanjay Lal and Shri Sumit Nema, learned counsel for the parties, we find that the delay of three days' in filing of this appeal is properly explained and the same requires to be condoned. 3. Accordingly, I.A.No.4871/2015 is allowed. The delay in filing of this appeal is condoned. 4. Heard learned counsel for the parties on the question of admission. 5. Even though, the appeal has been filed on the substantial questions of law raised in the memorandum of appeal, we find that two grounds have been canvassed before us at the time of admission. The first ground was with regard to consideration made in the matter of unsecured loan obtained by the Assessee/ Institute and the action of the Commissioner, Appeals and the Tribunal in acceptance of the loan obtained from one Smt. Anju Gupta. Both the Commissioner, Appeals and the Tribunal have found that the material available on record indicates that the unsecured loan received from Smt. Anju Gupta to the tune of Rs.16 Lacs can be accepted, as the veracity of the aforesaid unsecured loan according to the findings recorded by the authorities has been established, however, the matter has been remanded back to the Assessing Officer for consideration with regard to veracity of the loan obtained from M/s. Ayushmati Education Society and Maa Vaishno Education Society. 6. In doing so, we find that no error has been committed by the appellate authorities and the concurrent findings of fact, recorded in this regard by the authorities, does not warrant any reconsideration and in this regard, no substantial question of law arises for consideration. 7. That apart, another ground canvassed at the time of hearing was with regard to grant of exemption under Section 10(23-C)(iii)(ad) to the assessee. It was argued that it was raised for the first time before the Commissioner, Appeals and the Commissioner, Appeals having rejected the same on account of the fact that it was not raised before the Assessing Officer. Shri Sanjay Lal argued that the appellate tribunal committed error in directing the Assessing Officer to consider Assessee's claim under Section 10 (23-C). It was argued that in so directing, an error has been committed in as much as without conducting a proper enquiry into the matter of tenability of this claim. The direction to consider the claim under Section 10(23-C) is unsustainable. 8. Shri Sumit Nema, learned counsel for the Assessee refuted the aforesaid contention and argued that as the Assessee was an Educational Institute entitled to exemption under Section 10 (23-C), in directing the Assessing Officer to reconsider the matter, no error has been committed as the entire matter is now open before the Assessing Officer and while considering the same, the Assessing Officer is required to conduct an appropriate enquiry with regard to entitlement of assessee for exemption under the statutory provision and record a finding. 9. We have heard learned counsel for the parties and we find that the Assessee's claim for exemption under Section 10(23- C) is only directed to be considered as there was no material to record a positive finding on the assessee's entitlement in accordance with the statutory provision and in directing the Assessing Officer to reconsider the same, no error in committed. While considering the aforesaid claim, the Assessing Officer can very well conduct an enquiry and record a finding with regard to entitlement of the Assessee for exemption or otherwise, the remand order is in accordance with the law and, therefore, the remand order passed by the tribunal does not call for any interference by us. 10. Accordingly, as no substantial question of law arises for consideration, we dispose of this appeal with the aforesaid observation and clarification. With the aforesaid, the appeal stands disposed of. (Rajendra Menon) (K.K.Trivedi) Judge Judge