2010 (6) TMI 68 - HC - Income Tax

Stay of recovery - the Director of Income Tax (International Taxation) directed the petitioner (assessee) to furnish security to cover the demand - Section 10(23C)(vi) - The Supreme Court clarified that the petitioner had fulfilled the threshold condition of the actual existence of an educational institute under Section 10(23C)(vi) and consequently directed the Board not to reject the application for approval dated 7 April 1999 on that ground. - On 23 February 2009 an order was passed by the Deputy Director of Income Tax (International Taxation) making a demand for arrears of income-tax in the amount of Rs.10.48 crores for assessment years 2000-2001 to 2006-2007. The grievance of the petitioner is that the demand for arrears was made without complying with the directions of the Supreme Court pursuant to which the Central Board of Direct Taxes was required to consider the application for approval under Section 10(23C)(vi) afresh in accordance with law. Held that the Central Board of Direct Taxes was justified in imposing a condition that a certain proportion (Seventy Five per cent) of the accounting income should be applied and utilized for educational purposes in India stay of recovered ordered

Summary

Issues Involved:
1. Imposition of condition by CBDT to apply 75% of accounting income for educational purposes in India.
2. Prospective application of the condition and reasonable period for compliance.
3. Ancillary challenge to the order directing the petitioner to furnish security for tax demand.
4. Inaction by respondents and compliance with Supreme Court's directives.

Detailed Analysis:

1. Imposition of Condition by CBDT:
The petitioner, a nonprofit organization, challenged an order dated 3 November 2009 by the Central Board of Direct Taxes (CBDT) which imposed a condition requiring the petitioner to "apply 75% of its accounting income for educational purposes in India." The petitioner argued that this condition was impossible to comply with for the assessment years 1999-2000 to 2001-2002, which had already elapsed. However, the court held that the imposition of such a condition was justified and consistent with the statutory purpose of Section 10(23C)(vi) of the Income Tax Act, 1961. The court noted that the Supreme Court had previously clarified that such conditions could be imposed to ensure that the institution exists solely for educational purposes and not for profit.

2. Prospective Application and Compliance Period:
The petitioner contended that the condition should be applied prospectively and that they should be granted a reasonable period for compliance. The court acknowledged that the petitioner should be given an opportunity to comply with the monitoring conditions. The court directed the prescribed authority to verify whether the petitioner had fulfilled the conditions of approval and, if any shortfall was found, to allow the petitioner a reasonable period to make up the deficit.

3. Ancillary Challenge to Security Order:
The petitioner also challenged an order dated 22 December 2009 by the Director of Income Tax (International Taxation), which directed the petitioner to furnish security to cover the tax demand for assessment years 1999-2000 to 2006-2007. The court noted that the petitioner had argued that it had complied with the condition of applying 75% of its income for educational purposes in India. The court directed that during the period allowed for compliance, there should be a stay on the recovery of the outstanding demands for the relevant assessment years.

4. Inaction by Respondents and Compliance with Supreme Court's Directives:
The petitioner argued that the respondents had failed to act in accordance with the principles laid down by the Supreme Court in its decision dated 9 May 2008. The court noted that there had been considerable delay on the part of the CBDT in passing orders on the application for approval under Section 10(23C)(vi). The court directed the prescribed authority to dispose of the applications for assessment years 2002-2003 to 2006-2007 expeditiously within two months.

Conclusion:
The court upheld the conditions imposed by the CBDT in its order dated 3 November 2009, including the requirement to apply 75% of the accounting income for educational purposes in India. The court directed the prescribed authority to verify compliance and allow a reasonable period for the petitioner to make up any shortfall. Additionally, the court ordered a stay on the recovery of outstanding demands during the compliance period and directed the prescribed authority to expedite the disposal of pending applications for approval. The petition was disposed of in terms of these orders, with no order as to costs.