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TMI Blog2012 (4) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Furthermore, when no approval was granted u/s 10(23C), CIT was not justified in holding that assessee is a charitable institution and eligible for exemption u/s 10(23C)(iiiad) – Order of CIT(A) is set aside. Also, cancellation/rejection of registration u/s 12A and completion of assessment under 'AOP' by the A.O. is without jurisdiction. Hence, it is open to the Commissioner to consider the case of the assessee and pass necessary order u/s 12AA(3). - Decided in favor of Revenue. - IT Appeal NO. 102 (COCH.) of 2010 - - - Dated:- 29-3-2012 - N.R.S. GANESAN, B.R. BASKARAN, JJ. ORDER N.R.S. Ganesan, Judicial Member Being aggrieved by the order of the Commissioner of Income-tax(A)-II, Kochi, dated 30-11-2009 the revenue filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee came to a definite conclusion that no regular school or college was managed or established or run by the assessee, therefore, the assessee is not entitled for exemption u/s 11 of the Act. The ld.DR placed reliance on the judgment of the Supreme Court in Sole Trustee, Loka Shikshana Trust v. Commissioner of Income-tax [1975] 101 ITR 234 (SC) and Patna High Court in the case of Bihar Institute of Mining And Mine Surveying v. Commissioner of Income-tax [1994] 208 ITR 608 (Pat). 4. On the contrary, Shri P.J. Johney, the ld.representative for the assessee submitted that the assessee is conducting classes for Indira Gandhi Open University and other students, who are appearing for various university examinations. Therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he advancement of any other object of general public unity; Provided that the advancement of any other object of general public utility shall not be a charitable purpose, if it involves the carrying on of any activity in the nature of trade, commerce or business, or any activity of rendering any service in relation to any trade, commerce or business, for a cess or fee or any other consideration, irrespective of the nature of use or application, or retention, of the income from such activity." The assessee claims that they are teaching students, who are appearing for Indira Gandhi Open University and other universities on distance education mode. The question arises for consideration is when the assessee is teaching the students for open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s liable to be stolen or you are liable to be cheated by some unscrupulous person. The thief who removes your wallet and the swindler who cheats you teach you a lesson and in the process make you wiser though poorer. If you visit a night club, you get acquainted with and add to your knowledge about some of the not much revealed realities and mysteries of life. All this in a way is education in the great school of life. But that is not the sense in which the word "education" is used in clause (15) of section 2. What education connotes in that clause is the process of training and developing the knowledge, skill, mind and character of students by normal schooling." 6. In view of the above observations of the Apex Court all kinds of teachi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion, an imparting of education which can be said to be a process of training and developing knowledge and character of students by normal schooling. A coaching institute cannot be said to be an institution where normal schooling is done. The definition of "charitable purpose" is inclusive and not exhaustive." 7. In view of the above judgment of the Patna High Court it is obvious that mere conducting of classes for open university/distance education cannot be construed as charitable activity within the meaning of section 2(15) of the Act. The assessee has to necessarily conduct a regular school/college in which the students are imparted education, knowledge, training which resulted in confirmament of degree or diploma by the government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er years is not applicable to the facts of this case. 9. Furthermore, when the assessee was claiming the exemption u/s 11 we are unable to understand how the Commissioner of Income-tax(A) could say that the assessee is eligible for exemption u/s 10(23C)(iiiad) of the Act. Admittedly, no approval was granted by the concerned authority for approval u/s 10(23C) of the Act. Therefore, the Commissioner of Income-tax(A) is not justified in coming to the conclusion that the assessee is a charitable institution. In view of the above, the impugned order of the Commissioner of Income-tax(A) is set aside and that of the assessing officer is restored. 10. We further find that the assessing officer rejected the registration granted u/s 12A and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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