9911796707
TMI Blog2012 (7) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income Tax Act, 1961. 4. That the impugned order dated 28.09.2010 of the Ld. CIT is arbitrary and against the principles of natural justice and equity. 5. Any other relief as the Hon'ble Bench may consider fit on the facts and circumstances of case." 2. Briefly, the facts, as noted in the impugned order, are that the assessee-trust filed application in prescribed form before the ld. CIT, Aligarh on 23.03.2010. The assessee is already granted registration u/s. 12AA of the Act. The Addl. Commissioner, Range-II, Farrukhabad was asked to examine the claim of the assessee and to report as to whether applicant-trust fulfils all the conditions laid down in this behalf for granting approval u/s. 80G(5)(vi) of the IT Act. The report dated 13.09.2010 was sent by the Addl. CIT, who has scanned the entire matter and his report is filed at page 55 of the Paper Book. However, it was found necessary to examine certain material facts and accordingly, the assessee was given opportunity to explain certain issues vide letter dated 15.09.2010. All the queries are noted in the impugned order and after receiving the explanation and replies of the assessee, it was found that there is no role of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been incorporated along with the replies of the assessee. It would, therefore, establish that the ITO (Tech.) only made enquiries and no enquiries have been made by the ld. CIT himself. Even the draft order was prepared by ITO (Tech.) suo moto on 27.09.2010, which was put up before the ld. CIT for perusal and his approval. The ld. counsel for the assessee, therefore, submitted that the order is passed in most mechanical manner without having jurisdiction of the ITO (Tech.) and the order was also passed against Rule 11AA of the IT Rules and beyond the period of limitation. Therefore, the order of the ld. CIT is not sustainable in law and the same is illegal and without jurisdiction and the assessee is entitled for exemption. He has further submitted that in several preceding assessment years 2002-03, 2003-04, 2004-05, 2006-07 and 2009-10, assessments have been completed u/s. 143(3) or U/s. 143(3)/147 of the IT Act and it was found that the assessee society is doing charitable activities and the assessment was completed on the returned income. He has, therefore, submitted that the entire order sheet of the ITO (Tech.) dated 27.09.2010 is reproduced in the impugned order and as suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (5) of section 80G are fulfilled by the institution or fund, he shall record such satisfaction in writing and grant approval to the institution or fund specifying the assessment year or years for which the approval is valid. (5) Where the Commissioner is satisfied that one or more of the conditions laid down in clauses (i) to (v) of sub-section (5) of section 80G are not fulfilled, he shall reject the application for approval, after recording the reasons for such rejection in writing. Provided that no order of rejection of an application shall be passed without giving the institution or fund an opportunity of being heard. (6) The time limit within which the Commissioner shall pass an order either granting the approval or rejecting the application shall not exceed six months from the date on which such application was made: Provided that in computing the period of six months, any time taken by the applicant in not complying with the directions of the Commissioner under sub-rule (3) shall be excluded." 5.2 It is not in dispute that the assessee trust/institution runs an educational institution and enjoyed continuous registration u/s. 12AA of the IT Act. He is also registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of approval u/s. 80G has wrongly been refused to the assessee. The CIT was directed to grant the same to the assessee. 5.5 ITAT Delhi Bench in the case of Gaur Brahmin Vidya Pracharini Sabha vs. CIT (supra) held - "Assessee society formed for the purpose of establishing educational institution, not for any particular religion, community or cast having been granted registration under s. 12AA and all the conditions laid down in cls. (i) to (v) of sub-s. (5) of s. 80G having been fulfilled, assessee society is eligible for registration under s. 80G(5)(vi), notwithstanding the fact that it is charging fees for education." 5.6 The ld. counsel for the assessee filed the copy of order sheet dated 08.07.2010 (PB-47 to 49), which is passed by the ITO (Tech.). The ld. DR also produced the record which confirms that the ITO (Tech.) recorded the order sheet on 08.07.2010, in which the same facts have been noted as noted in the impugned order as have been mentioned by the ITO (Tech.). The ITO (Tech.) after noting the same facts, as have been observed in the impugned order, recommended that continuation of approval u/s. 80G(5)(vi) would not serve any purpose and application for approval is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er on 27.07.2010 was posted as CIT, Aligarh only on 22.07.2010. Thus, there was no reason to believe that any of the Commissioners, above, have called for any documents or information from the assessee institution in order to satisfy themselves about the genuineness of the activities of the assessee institution or the funds. The impugned order is passed by CIT, Aligarh without giving any opportunity of being heard to the assessee and the impugned order was also passed beyond the period of 6 months from the date of filing of application. Since no enquiries have been conducted by any of the CIT in the matter, there is no question of not complying with the directions of Commissioner under sub-rule (3) of Rule 11AA so as to exclude the period during which directions of the Commissioner were not complied with. Thus, no delay can be attributed to the assessee for not complying with the directions of the ld. CIT in the matter. These facts would clearly prove that enquiries were done by the ITO (Tech.) without any authority of law. Even if, the Commissioner may direct the ITO (Tech.) to make enquiries in the matter, but such enquiry report shall have to be confronted to the assessee and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e IT Act; (iv). That the reasons given by ITO (Tech.) for refusal to renew the approval u/s. 80G(5)(vi) are not valid in the eyes of law and since the assessee enjoyed registration u/s. 12AA of the IT Act continuously and also complied with the provisions of section 80G(5), therefore, renewal of approval should not have been rejected. 7. In view of the above discussion and findings, we set aside the order of the ld. CIT, Aligarh dated 27.07.2010 and direct him to grant renewal of approval u/s. 80G(5)(vi) of the IT Act. 8. In the result, the appeal of the assessee is allowed. 5.1 On examination of the material on record in the light of the above judgment and the facts of the case, we find that the facts and issue are identical. Therefore, the assessee is entitled for approval u/s. 80G of the IT Act. Further, it is not in dispute that the report from Addl. CIT was called for in this matter, who has given his reported dated 13.09.2010 as is also mentioned in the impugned order, copy of which is filed at page 55 & 56 of the paper book, in which the ld. Addl. Commissioner on examination of the record of the assessee recommended for grant of approval u/s. 80G of the IT Act and also f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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