ITA No.12 of 2017 02. 11.12.2019 Heard Mr. R.S. Chiminka, learned Sr. Standing Counsel along with Shri A. Kedia, learned Standing Counsel for appellant-Income Tax Department. 2. By way of this appeal Income Tax Department has challenged order dated 28.02.2017 passed by learned Income Tax Appellate Tribunal, Cuttack Bench, Cuttack in ITA No.389/CTK/2016 vide Annexure-2, allowing appeal preferred by assessee-respondent. 3. Perused impugned order in detail. Learned Tribunal while allowing appeal at paragraphs-7 to 11 of its order dated 28.02.2017 has observed as under: 7. We find that CIT (A) has relief on decision of Hon'ble A.P. High Court in case of NEW NOBLE EDUCATION SOCIETY & ORS. Vs. CHIEF COMMISSIONER OF INCOME TAX & ANR., 334 ITR 303 (AP), where, Hon'ble High Court has held that in order to be eligible for exemption, under s. 10(23C)(vi) of Act, it is necessary that there must exist educational institution. Secondly, such institution must exist solely for educational purposes and, thirdly, institution should not exist for purpose of profit. If there are several objects of society some of which relate to education , and others which do not, and trustees or managers, in their discretion, are entitled to apply income or property to any of those objects, institution would not be eligible to be regarded as one existing solely for educational purposes, and no part of its income would be exempt from tax. In other words, where main objects are distributive, each and every one of them must relate to education in order that institution may be held entitled for benefits under s. 10(23C)(vi) of Act. But if primary or dominant purpose of institution is educational , another object which is merely ancillary or incidental to primary or dominant purpose would not disentitle institution from benefit. 8. We find that CIT (Exemptions) after examining objects of society has not brought any material on record to show that other objects -2- included in trust deed are not ancillary or incidental objects to primary or dominant purpose and that other objects are primary objects of institution. Therefore, inference drawn by CIT (Exemptions) that since trust deed of society contains other objects also and, therefore, society is not eligible for exemption u/s. 10(23C)(vi) of Act by relying on decision of Hon'ble A.P. High Court in case of New Noble Educational Society (supra) is not correct. 9. We further find that Hon'ble Karnataka High Court in case of Geetanjali Education Society (supra) has held that even though objects of society contained other objects which constitute purpose other than educational purpose but as there is no dispute to fact that society carried on object of conducting school only, it cannot be denied exemption u/s. 10(23C)(iiiad) of Act. In case of assessee at hand also, it is not case of revenue that assessee is carrying on objects which constitute purpose other than educational purposes, therefore, respectfully following decision of Hon'ble Karnataka High Court in case of Geetanjali Education Society (supra), we are of view that exemption u/s. 10(23C) cannot be denied to assessee society. 10. Even otherwise, where there are contrary decisions of Hon'ble High Courts on issue and none of which is Hon'ble Jurisdictional High Court, then decision of favour of assessee should be followed in view of decision of Hon'ble Supreme Court in case of CIT vs. Vegetable Products Ltd., 88 ITR 192 (SC). 11. Therefore, respectfully following decision of Hon'ble Karnataka High Court in case of Geetanjali Education Society (supra), we set aside order of Commissioner of Income Tax (Exemptions) and direct him to allow exemption u/s. 10 (23C) of Act to assessee society. Thus, this ground of appeal of assessee is allowed. 4. Considering submission made and keeping in view observations made by learned Tribunal as quoted above, we are in complete agreement with view taken by learned Tribunal in impugned order and find no case is made out to interfere with same. -3- 5. Hence, appeal, being devoid of merits, deserves to be dismissed and is accordingly dismissed. All connected Misc. Case(s)/I.A(s) if any, is/are accordingly dismissed. ( K.S. Jhaveri ) Chief Justice .. (K.R.Mohapatra) Akk Judge Commissioner of Income-tax, Exemption v. Yuvodaya Charitable Trust