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TMI Blog2002 (9) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 4), (iv) the order impugned is silent as to with effect from which date registration is cancelled or withdrawn and as such it has no legal force and is invalid (Ground No. 5). 3. The facts in brief are that the assessee is stated to be remained a charitable institution established by the Government of Madhya Pradesh engaged in the activities of publication and sale of weekly magazine (Rozgar and Nirman), production of documentary films, T.V. reports, etc. for the State Government Departments and public sector undertakings, acting as advertising agency for the State Government Departments and public sector undertakings for publication of advertisements in the newspapers, as observed by the lower authorities and stated to be activities of public welfare and utility services by the assessee. It has got its own constitution having Chief Minister, Minister for Public Relations, Principal Secretary (Finance), Principal Secretary (Cultural Department), Secretary, Public Relation Department, Director, Public Relation Department Controller, Government Printing Press, Managing Director, M.P. Madhyam and Additional Managing Director of MP Madhyam of the State Government as its executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 21st Dec., 2001. The Department reopened the assessments for the asst. yrs. 1989-90, 1990-91, 1991-92, 1992-93, 1993-94, 1996-97 and 1997-98 under s. 148 of the Act in March, 2001. Thereafter, the learned CIT cancelled the registration of the assessee granted on 29th Jan., 1986 under s. 12A of the Act by order dt. 1st Feb., 2002, questioned herein before us. 5. It is worthwhile to point out here that the first appeals preferred by the assessee against the assessment orders dt. 30th March, 2001 under s. 143(3) of the Act for the asst. yrs. 1994-95 and 1998-99 were also rejected as infructuous in view of cancellation/withdrawal of registration by the learned CIT. Against this common first appellate order, the assessee is in appeal before us vide ITA No. 324/Ind/2002 (asst. yr. 1994-95) and ITA No. 325/Ind/2002 (asst. yr. 1998-99), as mentioned hereinabove. 6. While reiterating the grounds of the appeal, the learned authorised representative submits that provisions of s. 12AA of the Act came into operation w.e.f. 1st April, 1997, which were procedure for registration only and even if it is applied retrospectively, it would apply to pending matters only. The learned authorised re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. CIT (1997) 142 CTR (SC) 527 : (1997) 225 ITR 652 (SC) in support. The learned authorised representative also refers the contents of the order of the Tribunal for the asst. yr. 1994-95 on earlier occasion on the issue as to whether the AO had rightly disallowed the claim of exemption under s. 11 of the Act to the assessee. He also refers the provisions of s. 15(2) of the Act wherein phraseology "not involving of carrying on any activity of profit" has been deleted w.e.f. 1st April, 1984. The assessee is not a trust but society registered under the M.P. Societies Registration Act, 1973. The learned authorised representative submits that the learned CIT while cancelling the registration was suffering from official bias as he on earlier occasion in the capacity of CIT(A) had rejected the claim of the assessee for exemption as charitable society, upholding the assessment order. He cites the decision of the Hon ble Supreme Court in the case of Manaklal vs. Dr. Prem Chand Singhvi Ors. AIR 1957 SC 425 wherein the Hon ble Supreme Court was pleased to hold that apprehension is sufficient to establish bias. He invites our attention to page No. 305 of the paper book wherein cause was sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndly as to whether the Tribunal was justified in holding that grant of certificate under s. 12A of the Act is conclusive and debarring the AO to take any contrary view. He also draws our attention to the advertisement made in the "Rojgar and Nirman" placed at p. 11 of the paper book filed by the Department and submits that the assessee also used to accept and publish private advertisements regarding admission notices in private institutions. He submits further that the assessee is also indulging in activities like organising film-fair, etc. The learned Departmental Representative also points out that the assessee has also preferred appeal before the Hon ble High Court under s. 260A of the IT Act against the order dt. 16th March, 1999, of the Tribunal, Indore Bench. 8. The learned authorised representative in rejoinder submits that the writ petition preferred by the assessee against the show-cause notice for cancellation of registration was dismissed mainly on the basis that the Hon ble jurisdictional High Court was not inclined to interfere with the proceedings at the stage of show-cause notice in the writ jurisdiction. The assessee has, however, to avoid any technical difficulti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. 11. So far as the finding of the Hon ble High Court in the writ petition is concerned, it should be read in totality of the facts and circumstances as observed by the Hon ble High Court in its order at this stage. The Hon ble High Court in para 5 of its order has been pleased to observe as under: "5. It is simply a case of issuance of show-cause notice. It is open to the petitioner to file reply to the show-cause against proposed action before the CIT, Bhopal. It cannot be said that issuance of show-cause notice is without jurisdiction as such. I am not inclined to interfere at this stage of the proceedings in the writ jurisdiction of this Court." From a reading of para 5 it appears that the Hon ble High Court was not inclined to interfere at this stage of the proceedings in the show-cause notice in the writ jurisdiction with the observation that it was open to the petitioner to file reply to show-cause notice against the proposed action before the CIT, Bhopal. Under these circumstances, the Hon ble High Court was of the view that it could not be said that the issuance of show-cause notice was without jurisdiction as such. There was no issue in the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been recognised as such for several years and is carrying on the same objects and there is no change in the relevant law, it is not for the Court to reopen the same point from time to time, once the assessee institution has been held to be a public charitable institution. In CIT vs. Hindusthan Motors Ltd. (1991) 192 ITR 619 (Cal) their Lordships have held that it is true that there is no res judicata in income-tax matters but there must be some substantial ground for one AO to differ from the view taken by the another AO in an earlier assessment year. In the case before us, there was absolutely no change in the facts of the assessee in asst. yr. 1994-95 as compared to the preceding assessment years. Therefore, there was absolutely no justification for taking a different view specially when nothing has been brought on record to show that there was change in the facts in any manner in asst. yr. 1994-95 from those of the preceding years. In the case of Radha Soami Satsang vs. CIT (1991) 100 CTR (SC) 267 : (1992) 193 ITR 321 (SC), their Lordships have observed that where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be termed as charitable." 13. The Hon ble jurisdictional High Court in the case of CIT vs. Indore Table Tennis Trust relied on by the learned authorised representative was pleased to hold that exemption once earned was not lost lightly. There was no proof of any contravention, secondly the assessee could not be denied the benefit of promissory estoppel as well. The Hon ble Supreme Court in the case of Thiagarajar Charities vs. Addl. CIT Anr. relied on by the learned authorised representative was pleased to follow the ratio laid down in its earlier judgment in the case of Addl. CIT vs. Surat Art Silk Cloth Manufacturers Association wherein it was held that if a trust is entitled to the exemption under s. 11 r/w s. 2(15) of the IT Act, 1961, because it has been established for the advancement of an object of general public utility not involving the carrying on of any activity for profit is whether predominant object of the activity involved in carrying out the object of general public utility is to subserve the charitable purpose or to earn profit. Where profit-making is the predominant object of the activity, the purpose, though an object of general public utility, would c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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