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TMI Blog2012 (7) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... pective assessment years by the assessing authority, but are certainly outside the purview of the scope of enquiry required to be carried out by the commissioner while granting approval u/s. 80G(5)(vi) of the Act - Commissioner directed to grant the renewal of recognition of the assessee u/s. 80G5(vi) of the Act in accordance with the law - IT APPEAL NO. 745 (PUNE) OF 2010 - - - Dated:- 3-4-2012 - I.C. SUDHIR, G.S. PANNU, JJ. Smt. Deepa Khare for the Appellant. Ramendra Kaushal for the Respondent. ORDER G.S. Pannu, Accountant Member This appeal filed by the assessee is directed against the order of the Commissioner of Income-I, Pune (in short 'the commissioner') dated 24-03-2010 whereby the application of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Expenditure Accounts for the FYs 2006-07 to 2008-09 by including the earmarked funds other than corpus, there was a non-compliance with the provisions of Section 11(1) of the Act in terms of which the assessee was required to apply a prescribed percentage of its income for its stated objects. In sum and substance, considering the two reasons advanced it can be inferred that as per the commissioner the assessee did not comply with the provisions of Sections 11/12 of the Act and therefore the assessee was not eligible for renewal of recognition u/s.80G(5)(vi) of the Act. 3. Against the aforesaid, the Ld counsel for the assessee has pointed out that investment made in a cooperative society was not violative of the provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Para 2 of this order and the same is not being repeated for the sake of brevity. 5. We have carefully considered the rival submissions. The Commissioner is empowered to grant approval or renewal thereof to any institution or fund as per clause (vi) of sub-section 5 of section 80G of the Act. Further, in terms of Rule 11AA(2) of the Income-tax Rules, 1962 (in short Rules) the application seeking approval or renewal thereof is required to be accompanied by the documents specified therein namely a copy of the registration granted u/s.12A or section 10(23) or section 10(23C), as the case may be; a note on activities of the institution or fund since inception or for last three years; whichever is less; and, a copy of financial accounts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other charitable purpose; clause (iii) prescribes that the applicant is not expressed to be for the benefit of any particular religious community or caste; clause (iv) prescribes that the applicant is to maintain regular accounts of the receipts and expenditure; and, clause (v) prescribes that the applicant is constituted as a public charitable trust or registered under Societies Registration Act, 1860 or under any other corresponding law or u/s.25 of the Companies Act, 1956 or is a university established by law, or is any other educational institution recognised by the Government or by a university established by law, or affiliated to any university established by law, or is an institution financed wholly or in part by the Government or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated two reasons. 8. At this point of time, it would be appropriate to examine as to whether the commissioner is empowered to examine such situation while conducting enquiries to evaluate the assessee's application for renewal of its recognition u/s.80G5(vi) of the Act. The Hon'ble Gujarat High Court in the case of N.N. Desai Charitable Trust ( supra ) while deliberating upon the scope of enquiry for the purpose of granting of recognition u/s.80G of the Act opined that it does not envisage the commissioner to act as an assessing authority because the actual assessment of institution would not ultimately effect the claim for deduction u/s. 80G qua the donors. As per the Hon'ble High Court, once it is established that the applicant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Infact, both the objections raised by the commissioner may be relevant for the purposes of assessment of the income of the assessee in the respective assessment years by the assessing authority, but are certainly outside the purview of the scope of enquiry required to be carried out by the commissioner while granting approval u/s. 80G(5)(vi) of the Act. 10. Apart from the aforesaid objection, we find no other finding of the Commissioner as to in what manner the conditions prescribed in clauses (i) to (v) of section 80G(5) are not fulfilled by the applicant and therefore in our considered opinion the Commissioner erred in refusing to renew recognition u/s.80G (5)(vi) of the Act as sought by the assessee interms of its application dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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