The Commissioner Of Income Tax v. 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 MenonHon'ble Shri Justice K.K.Trivedi ---------------------------------------------------------------------------------------- Shri Sanjay Lal, learned counsel for the appellant.Shri Sumit Nema, learned counsel for therespondent/Assessee. J U D G M E N T (16/11/2015) This is revenue's appeal under Section 260 A of the IncomeTax Act, 1961 calling in question tenability of an order dated21[st] of May, 2012 passed by the Income Tax AppellateTribunal, Indore. 2. Having heard Shri Sanjay Lal and Shri Sumit Nema,learned counsel for the parties, we find that the delay ofthree days' in filing of this appeal is properly explained andthe same requires to be condoned. 3. Accordingly, I.A.No.4871/2015 is allowed. The delay infiling of this appeal is condoned. 4. Heard learned counsel for the parties on the question ofadmission. 5. Even though, the appeal has been filed on the substantialquestions of law raised in the memorandum of appeal, wefind that two grounds have been canvassed before us at thetime of admission. The first ground was with regard toconsideration made in the matter of unsecured loan obtainedby the Assessee/ Institute and the action of theCommissioner, Appeals and the Tribunal in acceptance of theloan obtained from one Smt. Anju Gupta. Both theCommissioner, Appeals and the Tribunal have found that thematerial available on record indicates that the unsecuredloan received from Smt. Anju Gupta to the tune of Rs.16 Lacscan be accepted, as the veracity of the aforesaid unsecuredloan according to the findings recorded by the authoritieshas been established, however, the matter has beenremanded back to the Assessing Officer for considerationwith regard to veracity of the loan obtained from M/s.Ayushmati Education Society and Maa Vaishno EducationSociety. 6. In doing so, we find that no error has been committed bythe appellate authorities and the concurrent findings of fact,recorded in this regard by the authorities, does not warrantany reconsideration and in this regard, no substantialquestion of law arises for consideration. 7. That apart, another ground canvassed at the time ofhearing was with regard to grant of exemption under Section10(23-C)(iii)(ad) to the assessee. It was argued that it wasraised for the first time before the Commissioner, Appealsand the Commissioner, Appeals having rejected the same onaccount of the fact that it was not raised before theAssessing Officer. Shri Sanjay Lal argued that the appellatetribunal committed error in directing the Assessing Officer toconsider Assessee's claim under Section 10 (23-C). It wasargued that in so directing, an error has been committed inas much as without conducting a proper enquiry into thematter of tenability of this claim. The direction to considerthe claim under Section 10(23-C) is unsustainable. 8. Shri Sumit Nema, learned counsel for the Assesseerefuted the aforesaid contention and argued that as theAssessee was an Educational Institute entitled to exemptionunder Section 10 (23-C), in directing the Assessing Officer to reconsider the matter, no error has been committed as theentire matter is now open before the Assessing Officer andwhile considering the same, the Assessing Officer is requiredto conduct an appropriate enquiry with regard to entitlementof assessee for exemption under the statutory provision andrecord a finding. 8. Shri Sumit Nema, learned counsel for the Assesseerefuted the aforesaid contention and argued that as theAssessee was an Educational Institute entitled to exemptionunder Section 10 (23-C), in directing the Assessing Officer to reconsider the matter, no error has been committed as theentire matter is now open before the Assessing Officer andwhile considering the same, the Assessing Officer is requiredto conduct an appropriate enquiry with regard to entitlementof assessee for exemption under the statutory provision andrecord a finding. 9. We have heard learned counsel for the parties and we findthat the Assessee's claim for exemption under Section 10(23-C) is only directed to be considered as there was no materialto record a positive finding on the assessee's entitlement inaccordance with the statutory provision and in directing theAssessing Officer to reconsider the same, no error incommitted. While considering the aforesaid claim, theAssessing Officer can very well conduct an enquiry andrecord a finding with regard to entitlement of the Assesseefor exemption or otherwise, the remand order is inaccordance with the law and, therefore, the remand orderpassed by the tribunal does not call for any interference byus. 10. Accordingly, as no substantial question of law arises forconsideration, we dispose of this appeal with the aforesaidobservation and clarification. With the aforesaid, the appeal stands disposed of. (Rajendra Menon) (K.K.Trivedi) Judge Judge