PRAKASH KRISHNA AND RAM SURAT RAM (MAURYA), J. - (1.) ALL these appeals have been heard together and are being disposed of by a common judgment as questions of law involved in all the appeals are identical.
(2.) ARGUMENTS were heard in I.T.A. No.460 of 2010, therefore, facts of this appeal are noticed herein. Against the common order dated 23rd July, 2010 passed by the Income Tax Appellate Tribunal, Agra Bench, Agra above connected appeals relating to Assessment Years 2000 -01, 2001 -02 and 2002 -03 have been filed. The Income Tax Appellate Tribunal has held that the assessee -respondent's income is exempted under Section 10(23C)(iiiad) of the Income -tax Act, 1961, hereinafter referred to as "the Act". The Department has proposed the following substantial questions of law said to be arising out of the order of the Tribunal. (I) Whether the Hon'ble ITAT has erred in law in granting exemption u/s 10(23C) (iiiad) of the Act ignoring the fact that the receipt of the society has been used for other than educational purposes? (II) Whether the Hon'ble ITAT has erred in law in ignoring the fact that the construction material purchased in the name of the society was actually used in the construction of the house of Smt. Sashi Bala Sharma, Secretary of the society? (III) Whether the Hon'ble ITAT has erred in law in holding that the society existed society for the purpose of the education by ignoring the fact that the members of the society has utilized the funds in their favour and violated the provision of section 13(3) of the Act? (IV) Whether the ITAT has erred in law in ignoring the fact that the affairs of the assessee were not truly reflected in the books of account prepared which clearly shows that the assessee was generating funds out of books of accounts and has not complied with the provisions of 10(23C)(iiiad) of the Act?"
(3.) THE brief facts of the case are as follows. During the relevant assessment years, no registration was obtained by the respondent under Section 12A of the Act. The respondent claims that it is running educational institution for charitable purposes and in the relevant assessment years the income is less than Rs. One crore per annum. It has got two schools - one at Agra Road and another at Jail Road/Exhibition Road, Aligarh. The case of the Department is that the land of school at Agra Road belongs to Smt. Shashi Bala Sharma, who has leased it out to for the use of the school at Agra Road. Similarly, the land of school at Jail Road/Exhibition Road belongs to Sri S.C. Sharma, who has leased it out for the use of the school. Sri S.C. Sharma is the President of the society while Smt. Shashai Bala Sharma is the Secretary. A survey by the Income - tax Department took place on 8th August, 2002 wherein it was found that certain constructions were being raised as addition in the building. Smt. Shashi Bala of her own surrendered Rs.50.00 lacs as income from other sources in her individual capacity. On these facts, the Assessing Officer drew inference that the respondent - assessee has diverted its income for the purposes other than educational purpose. The said finding has been confirmed in appeal by the Commissioner of Income Tax (Appeals). The Tribunal has dealt with the matter in paragraph 11 of its order. It set aside the finding and held that it is not the case of the Revenue that the assessee has violated the proviso to Section 10(23C) of the Act.;