- (1.) THE appeal by the revenue under section 260 -A of the Income Tax Act, 1961 arises from a decision of the Income Tax Appellate Tribunal dated 29 November 2013. The Assessment Year to which the appeal relates is Assessment Year 2009 -10.
(2.) THE revenue has raised the following questions of law: - "1. Whether the Hon'ble ITAT has erred in law and on facts in confirming the order of the Ld. CIT(A) allowing exemption u/s 10(23C)(iiiad) of the I.T. Act without appreciating that the assessee did not make any such claim at the time of assessment and the said exemption was allowed by the Ld. CIT(A) without affording the opportunity to the Assessing Officer of examining the admissibility of the said exemption at assessment stage. 2. Whether the Hon'ble ITAT has erred in law and on facts in holding that the assessee is entitled to the exemption u/s 10(23C)(iiiad) despite the fact that the assessee trust is not existing solely for educational purposes, which is the primary condition for exemption u/s 10(23C)(iiiad), but for non educational objects such as providing financial assistance for any class of general public utility, giving relief to poor, to maintain orphanages and homes for old, aged, disabled, blind, handicapped and destitute persons etc., general public welfare, holding of exhibitions, meetings, lecturers, seminars, classes of dance, plays, debates etc. (vide para 5(a), 5(d), 5(e), 5(h), 5(i) and 5(k) etc. of trust deed). 3. Whether the Hon'ble ITAT has erred in law and on facts in deleting the addition of Rs.40,20,000/ - made by the AO without appreciating that there was no registration granted u/s 12AA of the I.T. Act for the assessment year under consideration and the claim of exemption u/s 10(23C)(iiiad) was never raised before the AO during the course of assessment proceedings."
(3.) THE assessee was assessed as an association of persons for Assessment Year 2009 -10. During the course of the previous year relevant to the Assessment Year, the assessee received donations aggregating Rs.40.20 lacs. The assessee claimed an exemption under section 10(23C). The Assessing Officer, in the course of an assessment under section 143(3) brought the entire sum of Rs.40.20 lacs to tax. The assessee had claimed that the amounts had been received by way of donations towards the corpus funds of the assessee. The Assessing Officer held that since the assessee had been declined registration under section 12AA an exemption under section 10(23C)(iiiad) could not be granted. In appeal the CIT(A) held on the basis of the confirmations issued by the donors, that the donations had been granted specifically for the construction of a campus building to be specifically utilised for educational purposes. Since the entire receipts were below the ceiling of Rs.1 crore, the assessee was held entitled for exemption. This view of the CIT(A) has been confirmed in appeal by the Tribunal. Now at the outset, it would be necessary to note that in declining to grant an exemption under section 10(23C)(iiiad), the Assessing Officer has relied extensively on an order of the CIT -II, Agra dated 23 August 2011 rejecting the application of the assessee for the grant of registration under section 12AA. Admittedly, in an appeal filed by the assessee before this Court from the decision of the Tribunal confirming the view of the CIT -II, a Division Bench of this Court by a judgment dated 15 March 2013 held that the findings of the Tribunal were unsustainable and the application for registration under section 12 -AA deserved to be allowed. The Court has been informed by counsel for the Revenue that the revenue has accepted the judgment since no Special Leave Petition was filed before the Supreme Court.;