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Income Tax Appellate Tribunal, DIVISION BENCH ‘B’, CHANDIGARH
Before: SHRI SANJAY GARG & MS. ANNAPURNA GUPTA
IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH ‘B’, CHANDIGARH
BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA Nos.290 & 291/Chd/2018 (Assessment Years: 2012-13 & 2014-15) M/s Sacred Heart Educa- Vs. The Income Tax Officer(Exemptions), tional & Welfare Society, Ward Chandigarh. Dhanaula Road, Barnala. PAN: AAAABTT2083M (Appellant) (Respondent)
Appellant by : Shri Tej Mohan Singh, Adv. Respondent by : Shri Manjit Singh, Sr.DR Date of hearing : 19.06.2018 Date of Pronouncement : 04.07.2018
ORDER PER ANNAPURNA GUPTA, A.M.:
Both the above appeals have been preferred by the
same assessee against the separate orders of learned
Commissioner of Income Tax(Appeals), Patiala both dated
1.1.2018 relating to assessment years 2012-13 and 2014-
15.
Since the issues involved in both the appeals are
identical, they were heard together and are disposed off by
this common order.
The sole issue involved in the present appeals is the
treatment of the assessee society as AOP and taxing the
surplus of income over expenditure for the year, for the
reason and on account of the fact that its application for
approval within the meaning of section 10(23C)(vi) of the
ITA No.290 & 291/Chd/2018 2 AYs. 2012-13 & 2014-15
Income Tax Act, 1961 (in short ‘the Act’) was rejected by the
prescribed authority i.e. CCIT, Chandigarh.
Briefly stated, the assessee is an educational society
running by the name of Sacred Heart Educational and
Welfare Society, having two educational institutions under
it’s aegis i.e. Sacred Heart International College of Education
at Barnala and Barnala Polytechnic College. The said
society claimed itself to be existing solely for educational
purposes and not for the purpose of profit and, therefore,
claimed exemption under the provisions of section
10(23C)(vi) of the Act, thereby filing nil return of income for
the impugned assessment years. However, since the assessee
society’s application for approval, within the meaning of
section 10(23C)(vi) of the Act, was rejected by the
prescribed authority i.e. CCIT, Chandigarh (vide
F No.CC/10(23C)/2011-12/2143; dated 24.07.2012), the AO,
while scrutinizing the aforesaid nil returns of income, held
the assessee society to be an AOP and thereafter proceeded
to tax the surplus of income over expenditure for the periods
under consideration in its order passed u/s 143(3) of the
Act.
The matter was carried in appeal before the
Ld.CIT(Appeals) who upheld the order of the Assessing
Officer observing that the assessee society had filed a civil
petition in the High Court, under Article 226/227 of the
Constitution, for issuance of writ in the nature of certiorari
ITA No.290 & 291/Chd/2018 3 AYs. 2012-13 & 2014-15
against the order passed by the CCIT, rejecting assessee’s
application for grant of approval u/s 10(23C)(vi) of the Act
and the High Court had allowed the writ setting aside the
order of the CCIT for deciding afresh in the light of various
judicial pronouncements. The CIT(A) noted that the
remanded matter had not yet been decided and , therefore,
held that for all purposes, the assessee society was not an
approved society for the purpose of claiming exemption. The
Ld.CIT(Appeals), however, added that if the prescribed
authority approved the assessee society for the said
exemption, there shall be no incidence of tax. Therefore,
subject to the outcome of the approval pending before the
CIT(E), the Ld.CIT(Appeals) dismissed the assessee’s appeal.
Aggrieved by the same, the assessee has come up in
appeal before us raising following grounds:
“1. That the Ld. Commissioner of Income Tax (Appeals) has erred in upholding the finding of the Assessing Officer that the assessee is an AOP for taxation purposes and is not an approved society for claiming of exemption u/s 10(23C)(vi) which is arbitrary and unjustified and as such the assessment merits annulment. 2 That the Ld. Commissioner of Income Tax (Appeals) has erred in law in upholding the assessment framed by the Assessing Officer thereby treating the excess of surplus of Rs.74,85,7507- over expenditure to be taxable resulting in an addition of Rs.74,85,750/- which is arbitrary and unjustified. 3. That the Ld. Commissioner of Income Tax (Appeals) has further erred in upholding the addition of Rs.1,37,690/- on account of alleged difference in the interest on FDRs which is arbitrary and unjustified.
ITA No.290 & 291/Chd/2018 4 AYs. 2012-13 & 2014-15
That the order of the Ld. Commissioner of Income Tax (Appeals) is erroneous, arbitrary, opposed to law and facts of the case and is, thus, untenable.” 7. During the course of hearing before us the Ld. counsel
for assessee stated that the assessee had been granted
approval u/s 10(23C)(vi) of the Act for the impugned years
vide order of the CIT(E), Chandigarh dated 26.4.2018. Copy
of the order was placed before us and it was pointed out
therefrom that the approval had been granted from
assessment year 2012-13 onwards. The Ld. counsel for
assessee stated, therefore, that in the light of the aforesaid
facts and in view of the order of the Ld.CIT(Appeals) passed
subject to approval granted by the CIT(E) u/s 10(23C)(vi) of
the Act, the assessee’s income is entitled for exemption u/s
10(23C)(vi) of the Act and the excess of income over
expenditure subject to tax by the Assessing Officer,
therefore, be deleted.
The Ld. DR prayed that the matter be restored to the
Assessing Officer to pass afresh order after considering the
fact of the approval having been granted to the assessee u/s
10(23C)(vi) of the Act as canvassed by it.
The Ld. counsel for assessee did not object to the same.
In view of the above, we consider it fit to restore the
issue, in both the appeals before us, back to the file of the
Assessing Officer to pass order afresh after considering the
approval granted by the CIT(E) to the assessee u/s
10(23C)(vi) of the Act..
ITA No.290 & 291/Chd/2018 5 AYs. 2012-13 & 2014-15
In the result, both the appeals filed by the assessee
are allowed for statistical purposes.
Order pronounced in the open court.
Sd/- Sd/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 4th July, 2018 *Rati*
Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) 4. The CIT 5. The DR
Assistant Registrar, ITAT, Chandigarh