Vildirect: IncomeTax-caselaws-2013-VIL-990-ITAT-MUM

2013-VIL-990-ITAT-MUM

Income Tax Appellate Tribunal MUMBAI

ITA No.3288/Mum/2013

Date: 29.11.2013

SOUTH INDIAN EDUCATION SOCIETY

COMMISSIONER OF INCOME TAX

For the Appellants : Shri Vijay Mehta & Shri Paresh Shaparia
For the Respondent : Ms Abha Kala Chanda

BENCH

Vijay Pal Rao And N K Billaiya, JJ.

JUDGMENT

PER : Vijay Pal Rao

This appeal by the assessee is directed against the order dated 20.3.2013 of Commissioner of Income Tax passed u/s 12AA(3) of the Income Tax Act whereby the registration u/s 12A granted to the assessee was withdrawn with effect from assessment year 2003-04.

2. The assessee is a Charitable Educational Trust and was set up in the year 1932 as per the registration certificate under Registration of Societies Act. Subsequently, the assessee was also registered with the Bombay Public Trust on 22.5.1953. The assessee was granted registration u/s 12A of the Income Tax Act vide certificate dated 22.3.2000 and also granted certificate u/s 80G on 29.5.2009. The assessee runs various institutions right from Nursery to High School and various colleges along with academic and professional institutions of higher learning. Some of the main objects of the assessee society are as under:

i) To promote the advancement of education and other interconnected fields in all its aspects globally and do all things necessary for the same.

ii) To establish, conduct, control and manage schools, academics, colleges, old age homes for destitute, retired teaching faculty and/or any deserving persons/s, Vedic Patashalas, Institutions for spread of social awareness and for promoting social causes in form including home for the physically challenged and identified vulnerable sections of the society, and institutions for promotion of education, scientific research and/or other relevant educational activities and development in all aspects including sports and games.

3. A search action u/s 132 of the Act was carried out on 11.5.2010 on the cases of managing counsel members of the assessee. Simultaneously, there was a survey u/s 133 in the premises of the assessee trust at Matunga, SIESC, Campus, Nerul, M/s Redfine Properties Pvt. Ltd. and Encube Ethicals Pvt. Ltd. From the evidence gathered and statements recorded during the search/survey it was found that the assessee is collecting donations/capitation fee from the candidates who were seeking admissions to various courses run by the assessee institutions. Statement of one Shri G. R. Ramchandran was recorded u/s 132(4) of the Act. In his statement Shri G. R. Ramchandran has explained how the admission under the management quota was undertaken against the donations received from the admission seeker. He has explained that a sum ranging from Rs. 50,000/- to Rs. 15,00,000/- being charged for admission to various courses. During the search operation, a number of lockers were found in the name of officer bearers or persons connected with the assessee. One of the locker No. 320H, Indian bank, Matunga belonging to Shri N. Venkatanathan was found with cash of Rs. 2.28 crores which was seized by the search party. It was stated in his statement that the cash was accumulated from the amounts received in cash from the students seeking admission through him to the various courses through management quota in the educational institutions run by the assessee trust. Thus, on the basis of statements recorded, it was found by the search party that Shri N. Venkatanathan had collected cash of Rs. 2.28 crores from students seeking admission by way of donation/capitation fee over a period of 3 to 4 years. Shri N. Venkatanathan submitted that the amount was siphoned by him from the money collected from students. Statement of Shri G. Chidambram, Trustee was also recorded in which he explained that the mark ‘R’ appearing on certain papers stands for "receipt required" where the receipt is required by the admission seeker for the donation and mark "NR" stands for "not required" where a receipt is not required by the admission seeker. Shri G. R. Ramachandran explained that where the receipt was required the assessee trust issued receipt for the donation and the amount is deposited in the corpus found of the trust. The amount of donation against which receipt was not issued is kept aside in the locker operated by Shri N. Venkatanathan.

4. Based on the information gathered from the evidence and statements recorded during the search and survey action the Commissioner found that the activity of the society cannot be regarded as genuine which is against charity or public policy. Accordingly, the Commissioner issued a show-cause notice dated 26.2.2013 as to why the registration granted u/s 12A should not be withdrawn/cancelled. The assessee submitted reply to the show-cause notice vide letter dated 13.3.2013 and contended that the assessee is one of the pioneer in the city of Bombay in imparting education to public by running several educational institutions for several decades. It was contended that the capitation fee collected is utilised only for the advancement of the purpose of the assessee trust and therefore, when the activity of the assessee’s are to achieve the object of the trust then the registration cannot be withdrawn u/s 12AA(3). It was further contended that the amount of Rs. 2.28 crores found in the locker of Mr. N. Venkatanathan was never brought to notice of managing Counsel Member nor trustee or office bearer of any educational institution of the assessee trust. Mr. N. Venkatanathan is a retired person and without the knowledge of the Managing Counsel siphoned money in his personal capacity though he offered the said amount of Rs. 2.28 crores in his return of income. The assessee trust has nothing to do with the Act of Shri N. Venkatanathan. The Commissioner did not accept the contention of the assessee and held that the collection of capitation fee in contravention of Maharashtra Educational Institutions (prohibition of capitation fee Act, 1987) cannot be regarded as genuine activity. Accordingly, the Commissioner has cancelled the registration u/s 12A vide impugned order.

5. Before us the Ld. Counsel for the assessee has submitted that apart from registration u/s 12A as well as registration under Bombay Trust Act and 80G of the Income Tax Act, the assessee was also notified u/s 35 of the Income Tax Act by the CBDT on 28.4.2009. Therefore, the assessee has been recognised as charitable trust imparting education. He has explained that the assessee has been allowed to take admission under minority quota and therefore, discretion has been given to the assessee under the minority quota. The Ld. Counsel has explained that the capitation fee against which the receipts were issued by the assessee or its institution has been duly accounted in the books of account of the assessee and therefore there is no dispute about the said receipt being utilised for the objects of the assessee. He has further submitted that part of the capitation fee received in cash and against which receipt was not desired by the admission seekers has been regularised and brought into books by taking donations from third parties. Thus, the Ld. Counsel has submitted that the entire amount of capitation fee has been shown in the books though part of the amount received in cash was shown as donation from third parties as cheques were taken from the third parties against the cash. Some amount was siphoned of by Shir N. Venkatanathan in his own capacity in the process of admission and the same was offered to tax by him. The assessee issued receipts against the capitation fee in the case where the receipt was asked for balance amount though received in cash but was converted into donation from third party. Therefore, the entire amount collected as capitation fee was accounted for though under different heads. Thus, the Ld. A.R has submitted that the amount collected under capitation fee has been used for achieving the objects of the assessee trust. He has further submitted that the objects of the assessee are charitable in nature and it was not disputed by the taxing authorities. The Ld. A.R has referred Section 12AA(3) of the Income Tax Act and submitted that the registration granted u/s 12A can be cancelled only on the satisfaction of the condition that the activities of trust or institution are not genuine or are not being carried out in accordance with the objects of the trust or institution. The Ld. A.R has contended that the activities of promotion and imparting education are very much genuine activity of the assessee and therefore, the incidents of accepting the capitation fee does not change the genuine activity of promotion and imparting education into non-genuine activity. He has referred the decision of Hon’ble Madras High Court in case of CIT Vs Sarvodaya Ilakkiya Pannai 343 ITR 300 and submitted that the Hon’ble High Court has observed that in order to apply the provisions of Section 12AA(3), there must be specific finding that the activities of the trust or institution are not genuine or not being carried out in accordance with the object of trust or institution as case may be. The reason for cancellation of registration that the activities of trust was not charitable cannot be brought under the provisions of Section 12AA(3) of the Act. The Ld. A.R has referred the objects of the assessee trust and submitted that the objects of the assessee are not in dispute being charitable in nature therefore, the activity of imparting education is genuine activity and in accordance with the objects of the assessee. He has further submitted that the assessee has explained in the reply to the so-cause notice about some of the prominent patron member of the institution are former President of India and other prominent personalities being Principle Scientific Advisor to the PM and member of the other constitutional body. Some of the accreditation, achievements and recognition of the assessee trust are also referred by the Ld. A.R and submitted that these achievements and recognition in the field of education go to prove that the assessee is a genuine trust in the field of education. He has then referred the decision of Pune Bench of this Tribunal in case of Maharashtra Academy & Engineering Education Research Vs CIT 133 TTJ (Pune) 706 and submitted that the Tribunal has held that accepting donation and capitation fee for admission cannot be a ground for cancellation of registration but is a subject matter of assessment being source of income. He has then referred the decision of this Tribunal in case of Rama Rao Adik Education Society Vs CIT in ITA No. 5742/2007 and submitted that only when the funds collected by the assessee trust through capitation fee/donation have been used for the purpose other then running the institution can be said to be the activities are not carried out in accordance with the objects of the assessee. He has then relied upon the decision of this Tribunal in case of Vidyavardhini Vs CIT in ITA No. 6509/2007 and submitted that if some person indulges in wrong activities that does not mean that the institution has indulged in the wrong activities. The Ld. A.R has also relied upon the following decisions:

- M/s Padanilam Welfare Trust Vs DCIT 20 Taxman 113 (Chennai)

- ADIT Vs St. Francis Education Trust in ITA No. 2669/M/2012

- Miss Mohini Jain Vs State of Karnataka and Ors. 2 SSC 666

- Shavak Shiksha Samiti Vs CIT 104 TTJ 127 (Del)

- Amby International School Academy Vs DIT (Exemp.) in ITA No. 6214/M/2009

- M/s Krupanidini Education Trust Vs DIT (Exemp.) in ITA No. 86/Bng/2012

- Project Management Institute Vs DIT (Exemp.) 142 ITD 339 (Hyd.)

- M/s Agra Development Authority Vs CIT 31 Taxman 40 (Agratrib.)

6. Thus, the Ld. A.R has submitted that in all these decisions the cancellation of registration on the ground of accepting capitation fee was found not sustainable in law. The Ld. A.R then submitted that the CIT(A) accepted the genuineness of the activity of imparting education in para 21 of the impugned order and therefore, the incident of accepting capitation fee cannot be the ground for cancellation of registration. He has then pointed out that the Commissioner has relied upon the decision of Hon’ble Supreme Court in case of Miss Mohini Jain Vs State of Karnataka and Ors. 2 SSC 666. In the said case the question before the Hon’ble Supreme Court was the validity of circular issued by the Karnataka Government allowing the capitation fee to be received by the educational institutions in the State therefore the said decision is not relevant for the purpose of cancellation of registration u/s 12AA(3) of the Act. The decision in case of Vodhithala Education Society Vs ADIT 20 SOT 353 (Hyd) relied upon by the CIT(A) is on the issue of exemption u/s 11 of the Act in respect of capitation fee. Therefore, the decisions relied upon by the CIT while passing the impugned order are not applicable on the issue of cancellation of registration. The Ld. A.R has further submitted that whatever capitation fee received by the assessee has been duly accounted for and used for the objects of the trust. The amount received by the third person was offered to tax by the said person cannot be otherwise considered as an activity of the assessee for cancellation of registration. The Ld. A.R has referred the assessment order passed by the A.O subsequent to the cancellation of registration wherein the A.O has accepted the fact that the cash of Rs. 2.28 crores found in the locker was offered as income by N. Venkatanathan. The Ld. A.R has also distinguished the decision of Hon’ble Supreme Court in case of Sole Trustee, Lok Shikashana Trust Vs CIT 101 ITR 234 which has been relied upon by the Commissioner and submitted that the said decision is in respect of unamended provisions of Section 2(15) of the Income Tax Act and further it was not a case of education society or trust.

7. On the other hand, the Ld. D.R has heavily relied upon the impugned order of Commissioner and submitted that the facts of the case are not in dispute where the assessee has accepted donation/capitation fee for admission which amounts to sell of education and not charitable activity. Thus, the acceptance of capitation fee itself is a activity for a profit motive and the education loses is character of charity when the activities carried out with the motive of earning profit in the shape of capitation fee.

8. We have considered the rival submissions and carefully perused the relevant record as well as the decisions relied upon by the parties. There is no dispute regarding the fact that the assessee has received the donation/capitation fee from the admission seekers in various courses in the institute run by the assessee. The Commissioner has noted the fact that from the locker No. 320H with Bank of India, Matunga, a sum of Rs. 2.28 crores found during the search and seizure action. The locker was in the name of Shri N. Venkatanathan. Apart from the amount of Rs. 2.28 crores found in the locker a sum of Rs. 1.18 crores was also seized from the residence of Shri N. Venkatanathan. Out of this the total amount of Rs. 3.46 crores Shri N. Venkatanathan has admitted Rs. 2.28 crores as his undisclosed income and offered to tax. The balance of Rs. 1.18 crores was stated to be belonging to the assessee being cash donation/capitation fee from the parents of the admitted students. It is also undisputed fact that the assessee has accounted for the entire amount of donation/capitation fee. The part of the capitation fee against which the receipts were issued by the assessee was accounted for under the same head and the remaining part where the admission seekers did not ask for receipt was converted into donation from third parties. This fact has been accepted by the A.O in the assessment passed subsequent to the search and cancellation of registration u/s 12A. The A.O has recorded these facts in para 3.2 and 3.3 as under:

"3.2 Out of the cash donations collected (Sr. No. 1), the assessee has claimed unaccounted cash expenditure (Sr. No. 2), Conversion/recycle into cheques (Sr. No. 3) and the balance of around Rs. 1.18 crores was hoarded temporarily in Lockers for future conversion/application (Sr. No. 5). However, it is seen at Sr. No. 4 that a part of the unaccounted cash collection was deposited in their bank accounts wherein the payers have insisted on receipts and hence have been accounted for by default. During the course of post search enquires, assessee has claimed unaccounted expenses and amount recycles/converted but without producing any evidence.

3.3 Total cash of Rs. 3.46 crores was seized from residence and bank lockers maintained by Shri N. Venkatanathan, personal aide of Shri V. Shankar. Out of the cash so seized from Shri N. Venkatanathan, he admitted Rs. 2.28 crores as his undisclosed Income and Rs. 1.18 crores was owned up by SIES, During the post search proceedings, assessee has submitted an explanation for Rs. 1.18 crores claiming that it pertains to cash donations (corpus donations) received from parents of the admitted students during the F.Y. 2009-10 and which remained unaccounted for several months in that year till it was brought to light by the Search & Seizure operation."

9. Thus, the factum of the collection of capitation fee and conversion part of the same into donation is not in dispute. The question arises is whether the acceptance of capitation fee can be a ground for cancellation of registration granted u/s 12A by invoking Section 12AA(3) of the Act. There is no dispute that the assessee’s objects are accepted as charitable in nature. Even otherwise the fact of the promotion and imparting education through various schools and institutions run by the assessee is also not in dispute. Therefore, the primary activity of the assessee is in the field of education which is undoubtedly a charitable activity as per Section 2(15) of the Income Tax Act. It is further corroborated by the registration granted by the Income Tax Authorities u/s 12A as well as 80G and also the registration under Bombay Public Trust Act, 1950. A registration granted u/s 12A can be cancelled u/s 12AA(3) on satisfaction of either of the two conditions viz. i) if the activities carried out by the trust/institution are not genuine ii) the activities are not being carried out in accordance with the objects of the trust or institution as case may be. The Commissioner has cancelled the registration by considering the activity of accepting the capitation fee as non-genuine activity. It is pertinent to note that the activity of the assessee trust is promoting and imparting the education and the receipt of donation/capitation fee is only a source of income and not the activity itself. The activity of education is no where disputed by the Commissioner and nothing has been brought on record by the Commissioner to show that the assessee is carrying on any activity which is not related to the promotion of education or imparting of education. Therefore, the source of income being the capitation fee is purely a subject of assessment and exemption u/s 11 and cannot be a ground for cancellation as stipulated u/s 12AA(3) when the actual carrying out of the activity of imparting education is not disputed. An identical issue has been considered by the Hon’ble High Court as well as this Tribunal in a series of decisions. In the case of CIT Vs Sarvodaya Ilakkiya Pannai (supra) the registration granted u/s 12A was cancelled by the Commissioner on the ground that the assessee society was engaged in the purchase and sale of books. The Hon’ble High Court has observed in para 6 and 9 as under:

"6. In order to apply the above provision, there must be a specific finding by the Commissioner that the activities of the trust or institution are not genuine or not being carried out in accordance with the objects of the trust or institution, as the case may be. The question is, whether the order of the Commissioner of Income Tax could fall under the powers conferred on him under section 12AA(3) of the Act. The only reason given by the Commissioner of Income Tax to cancel the registration is that the activities of the trust were not charitable and, therefore, the trust is not entitled to exemption under section 11 and, consequently, cancelled the registration granted under section 12AA.

6. …………………………………………………

8. …………………………………………………

9. Under Section 12AA, the Commissioner is empowered to grant or refuse the registration and after granting registration, would be empowered to cancel and that too, only on two conditions laid down under section 12AA(3) of the Act. Whether the income derived from such transaction would be assessed for tax and also whether the trust would be entitled to exemption under section 11 are entirely the matters left to the Assessing Officer to decide as to whether it should be assessed or exempted."

10. Thus, it is clear that the reason given by the Commissioner for cancellation of registration being the activities were not charitable was held beyond the scope of Section 12AA(3). It was held that carrying on the publication and sell of books treating as not charity cannot be brought under the provisions of Section 12AA(3) of the Act. In the case of Maharashtra Academy of Engineering & Education Research Vs CIT (supra) the Tribunal has held in para 11.9 and conclusion in para 11.14 as under:

"11.9 We have also gone through a decision referred from the side of the Revenue namely the Jammu & Kashmir Bank Priority Sector Asset Risk Funs Vs CIT (ITA No. 61/Asr/2006 order dt. 1st Sept., 2006) (supra); cited in support of the argument that firstly the CIT has been vested with the powers vide s. 12AA(3, inserted w.e.f. 1st Oct., 2004, to enquire about the genuineness of the activities of a trust and to satisfy himself that such activities are being carried out in accordance with the objects of the trust. Secondly in case of dissatisfaction he is empowered to cancel the already granted registration. Thirdly in case it is found that the activities are not in conformity with the object that too is the good reason for cancellation of registration. Fourthly the sweep of the section is wide enough to empower the CIT to examine the nature of the object whether for general public utility and philanthropic in nature. In our conscientious view there is no disagreement about the above-mentioned four legal proposition as eruditely laid down by the respected Amritsar Bench. Undisputedly we have also to decide this appeal more or less within these parameters. But the basic question is that before stepping towards the cancellation of registration the heavy burden is on the learned Cit to conclusively demonstrate that all had gone haywire i.e., objects are meant for personal benefits; that engaged in immoral activities or that there is no element of public benefit. In the present appeal none of the above criteria for rejection of registration was in existence, however mainly confined to the finding that by charging donation the trust has infringed the rules of Prohibition of Capitation Fee Act.

11.10……………………………………………………

11.11 …………………………………………………..

11.12 …………………………………………………….

11.13 ……………………………………………………

11.14 Facts of this appeal are peculiar, as already discussed in above paras in detail and thereupon can comment that prima facie no case was made out by the learned CIT so as to even vaguely demonstrate that the activities of the appellant were not genuine or activity of imparting of education, for which the trust was created, were not carried out. Even the learned CIT has failed to establish that any part of the income/receipt of the trust was in any manner misutilized by the trustees for their personal benefit i.e., not in fulfilment of the object of the trust. Otherwise also there are three ways to look at this problem. One is, that the donations are raised but not utilized for achieving the objects i.e., towards imparting education; then such an institution must bear the consequence of cancellation of registration since ipso facto infringed s. 12AA(3) condition. Second aspect is, that though the donations received are meant to fulfil the objects but together with fees have infringed Anti Capitation Prohibition Act; then comes within the clutches of that Act but definitely not under s. 12AA(3) provisions. The third aspect is, that the donation plus fees do not exceed the prescribed limit of Anti Capitation Fee Act i.e., five times the normal fees; further that no evidence of misutilization other than the prescribed activity then no action can be suggested under s. 12AA(3). The assessee’s case falls under the third category. With the result, totality of the circumstances thus warrants, in the light of the foregoing discussion, not to endorse the view of the learned CIT; consequence there upon reverse those findings. The order of cancellation of registration is hereby revoked. Grounds allowed."

11. Similarly, in the case of Rama Rao Adik Education Society Vs CIT (supra) the Tribunal has held in para 46 and 47 as under:

"46. Nowhere in his proceedings the Commissioner has stated that the activities carried on by the Assessee are not genuine. It is beyond doubt and brought on record that the assessee is carrying on a number of Educational Institutions approved by the Central and State Government Agencies including University Grants Commission. It is a fact that more than 7000 students are pursuing their education in these Institutions. The Assessee is running Hospitals and Rural Health Centres. There is no doubt regarding these facts. The Commissioner has not brought any materials on record to hold a view that the above activities carried on by the Assessee-Trust are not genuine. There is no such case at all. The objects of the Assessee-Trust are to engage in the activities in the field of education, medical care and rural development. The activities now carried on by the Assessee-Trust are in consonance with the objects and enshrined in its Memorandum of Association. The Commissioner has no case that the activities of Assessee-Trust are not reflected in the objects clause of the Assessee-Trust.

47. Therefore, as a clear proposition of facts, it is very evident from the record that the conditions necessary to be satisfied for the purpose of cancelling the registration as provided u/s 12AA(3) have not been satisfied in the present case. The law does not speak of any other situation in which the Commissioner of Income Tax has the power to cancel the registration of a Charitable Institution in order to cancel the registration, it should be seen that either the activities carried on by the assessee are not genuine or the activities of the Assessee-Trust are not in consonance with the declared objects. The assessee is not hit by any of the above riders. Therefore, we find that the Commissioner is not justified in exercising the powers u/s 12AA(3) in cancelling the registration of the Assessee-Trust."

12. Thus, it is clear that when the assessee is carrying on a number of educational institutions approved by the Central and State Government Board and University then it cannot be said that the activity of promotion and imparting education is not genuine. In the case of Vidyavardhini Vs CIT (supra) the Tribunal has again considered the issue of cancellation of registration on the ground of acceptance of capitation fee and by following the various other decisions of the Tribunal it was held that the cancellation on the ground of receipt of capitation fee itself is not sustainable. Similar view has been taken in the case of Padanilam Welfare Trust Vs DCIT (supra) and it was held that the cancellation of registration u/s 12A on the ground of accepting capitation fee is not sustainable in law. In the case of ADIT Vs St. Francis Education Trust (supra), the Tribunal after considering the decision in case of Vodithala Education Society 20 SOT 353 has held in para 2.3 as under:

"2.3 We have heard the rival submissions and perused the material before us. It is found that out of the total donation of Rs. 30.5 lakhs a sum of Rs. 1.98 lakhs was received from the students. A.O has not doubted the fact that the assessee is imparting education and as per the settled law of taxation imparting education is covered by the word charitable activity. If income earned by a trust is utilised for charitable purposes it cannot be held that trust is carrying out business. FAA has rightly pointed out that there is no evidence on record that profit earned by the assessee-trust were not utilised by it for non charitable purposes. It is also a fact that there is no instance of violation of provisions of sections 11-13 of the Act by the trust. In our opinion principles enumerated by the Hon’ble Supreme Court in the cases of Gujarat Maritime Board and Surat City Gymkhana are applicable to the case under consideration. Therefore, we are of the opinion that assesseetrust was carrying out charitable activities and was entitled to exemption. Therefore, confirming the order of the FAA we decide Ground No. 1 against the A.O."

13. It is clear from the series of decisions relied upon by the assessee that the mere accepting the capitation fee cannot be brought into the scope of Section 12AA(3) if the prominent activity of the assessee are not doubted being imparting of education and promotion of education. The assessee has been carrying on the activity in the field of education through its aided and unaided institutions since the year 1932. The various educational institutions run by the assessee are affiliated with the Boards of School Education and Universities. These activities in the field of education through various institutions are not in dispute and therefore, the genuineness of the same are not in dispute. The Commissioner has also accepted the fact of the activity of the assessee that the assessee is engaged in the educational activity but he has opined that the educational activity has been converted into commercial venture. Therefore, it is not the case of the Commissioner that the assessee has diverted its activity from education to some other field and therefore, the activity of imparting education is no more genuine. When nothing has been brought on record to say that the assessee has carried out the activities other then imparting and promoting the education then the cancellation of registration on the ground of accepting the capitation fee which has been used for the purpose of achieving the objects of the assessee is not sustainable in law in view of the various decisions as discussed above. Accordingly, we set aside the impugned order of the Commissioner and restored the registration u/s 12A.

14. The assessee though has raised an another ground regarding withdrawal of registration with retrospective effect however, the same become infructuous in view of our finding on the issue of cancellation of registration. Even otherwise the said issue is covered against the assessee by the decision of Hon’ble Jurisdiction High Court in case of Sinhagad Technical Education Society Vs CIT 343 ITR 23. Accordingly, the same is dismissed as become infructuous.

15. In the result, the appeal of the assessee is partly allowed.

Order pronounced in the open Court on this 29^th day of November 2013

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