ORDER
1. CM No. 2318 of 2005
The application is allowed, subject to just exceptions.
2. The delay in re-filing the appeal is condoned.
3. CM stands disposed of.
IT Appeal No. 59 of 2005
4. We have heard learned counsel for the appellant at some length. The challenge in this appeal under Section 260A of the IT Act, 1961, is to the order passed by the Tribunal, dt. 30th Jan., 2004, for the asst. yr. 1990-91.
5. The basic question that was determined by the Tribunal related to the benefit of Section 10(22) of the IT Act, 1961 (hereinafter referred to as “the Act”), on the ground that the assessed’s work relates to the performance of contract and not for providing regular education for anybody interested in learning Russian language. The order of the AO making certain additions in that regard and declining the benefit of the above provision to the assessed, allowed the appeal of the assessed and held that the appellant would get a relief of Rs. 54,85,870 for the asst. yr. 1990-91 as well as for certain other years. The order of the first appellate authority was confirmed by the Tribunal, which, while examining the issue, held as under:
“From the foregoing, it is clear that the appellant-society is engaged in educational activities and it is entitled to exemption under Section 10(22). For getting exemption under Section 10(22) it is not necessary that the trust should be registered under Section 12A(a) of the IT Act as registration under Section 12A(a) is required only when exemption under Section 11 is sought. Besides, the appellant was not required to take permission either from CBDT or RBI as it was not intending to send money abroad and it never sent money abroad. The money collected by it was to be utilised for setting up an institution of Russian, studies for which the appellant hired a building and subsequently tried to acquire a land and purchased a flat. The appellant also ran a school of para-medical education and training and when it was not able to get land and start educational institution and it donated all its money to leading educational institutions, educational purposes as per its aims and objects and as per permission given by the USSR Committee at whose instance money was collected. The trustees have not got any personal benefit. Paying a rent of Rs. 2,000 for the entire ground floor in a building on main Vikas Marg in Delhi cannot be said to be excessive or unreasonable so as to attract provision of Section 13(1)(c) r/w Section 13(3) of the IT Act. Besides, provision of Section 13 is not applicable to the appellant as its case is covered under Section 10(22) of the IT Act. The surplus for both the assessment years were in the nature of capital receipts and were also covered under overriding title as the appellant had no control over the same during these two years. As per MoU, these surpluses were to be utilised for setting up a centre for Russian language and preparatory courses in India which was again an educational purpose and when this purpose was not achieved in subsequent years due to break up of the USSR and the money and equipments could not be sent to the USSR, the trustees in their wisdom thought it fit to donate the amount of Rs. 70 lakhs to leading educational institutions after receiving intimation and permission from the USSR Committee. The trustees cannot be faulted with for the same as the trustees had carried out educational activities as per the aims and objects of the appellant-trust. The ratios of decisions relied upon by the AO are not applicable to the facts of the case. The decision of Supreme Court in the case of MCD is not applicable to the provisions of IT Act as that has application to the Delhi Municipal Act. Similarly, ratio of decision in the case of Bihar Institute of Mining & Mine Surveying v. CIT (1994) 123 Taxation : (1994) 208 ITR 608 (Pat) is not applicable to the appellant was not running any coaching centre or holding any tutorial classes. It held regular courses in Russian language as well as in para-medical and training courses. It is not necessary to spend any surplus money in the same year. The requirement of Section 10(22) is fulfillled if the appellant carried on educational activities for educational purposes.”
6. From the above recorded findings, which are primarily based upon the appreciation of the record and are primarily finding of fact, it was found that the assessed was carrying on the educational activities in learning of the language and as such there is nothing for this Court to interfere in this finding of fact concurrently recorded by the first appellate authority as well as the Tribunal.
7. We may also notice that for the other assessment years, the appeal preferred by the Department against the order of the Tribunal has already been dismissed by another Division Bench of this Court vide its order dt. 13th Sept., 2004, passed in IT Appeal No. 544 of 2004 relating to the same assessed.
No merit. Dismissed.