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TMI Blog2012 (10) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... principles of natural justice and equity. 5. Any other relief as the Hon'ble Bench may consider fit on the facts and circumstances of the case." 2. Briefly, the facts, as noted in the impugned order, are that the assessee filed prescribed form before the ld. CIT on 19.01.2010 seeking renewal of approval already granted u/s. 80G(5)(vi) of the IT Act upto 31.03.2009. The Instrument of memorandum accompanied by the copy of registration under the Society Registration Act and copies of certificates granted u/s. 80G(5)(vi) and section 12AA of the IT Act were filed. The objects of the assessee institution are charitable in nature. However, in order to ascertain its genuineness and charitable character and also appropriation of donations towards charity, vide letter dated 18.02.2010, the Additional CIT Farrukhabad was directed to look into the matter. The report of Addl. CIT dated 15.04.2010 was without substantiating his conclusion about the genuineness and appropriation of donated funds towards all corners of charity. The explanation on several issues from point (a) to (g), as noted at page 2 of the impugned order was called for. The letter dated 19.05.2010 to that effect was issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 27.07.2010, i.e., beyond six months from the receipt of the application. Therefore, according to rule 11AA(6) of the IT Rules, approval should be deemed to be granted. In support of the contention, he has relied upon the order of ITAT, Amritsar Bench in the case of S. Lakha Singh Bahra Charitable Trust v. CIT [2011] 133 ITD 201/15 taxmann.com 97 (copy of the same filed at paper book page 146). He has also relied upon the order of the ITAT Delhi Bench in the case of Maharishi Dayanand Education Society v. CIT in ITA No. 218/Del/2009 dated 20.04.2011, in which it was held that the assessee is an educational institution existing purely for educational purpose and so long the assessee enjoyed registration u/s. 12A continuously which has not been withdrawn till date and is subsisting and during the subsistence of registration u/s. 12A, the renewal of the assessee u/s. 80G could not be denied. Copy of the same is filed at page 151 of the paper book. The ld. counsel for the assessee referred to order sheet entries which are filed at page 47 to 49 of the paper book, which have been written on 08.07.2010 by ITO (Technical) before refusing to grant approval u/s. 80G of the IT Act, in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil construction work and no building was purchased in the year 2008-09. Therefore, there was no title deed as alleged by the ITO (Tech.). The assessee maintained proper books of account in which no defects have been pointed out and moreover, in the impugned order, it is stated that the issue of donation is not relevant to the extension of renewal u/s 80G(5) of the IT Act. Therefore, the reasons given in the impugned order are irrelevant. He has relied upon the order of ITAT, Delhi Bench in the case of Gaur Brahmin Vidya Pracharini Sabha v. CIT [2009] 34 SOT 371. The ld. counsel for the assessee, therefore, submitted that the order of the ld. CIT may be set aside and he may be directed to grant renewal of approval u/s. 80G(5) of the IT Act. 4. On the other hand, the ld. DR relied upon the impugned order and submitted that there is a delay of 9 days in passing the impugned order which was mainly attributed to the assessee because on several issues, the reply of the assessee was silent as is noted at page 2 of the impugned order. It is submitted that according to the procedure of the department, enquiries were held by the ITO (Tech.). However, he was unable to support his stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 registered under the Societies Registration Act. In earlier year, it was also granted approval u/s. 80G(5) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.5 ITAT Delhi Bench in the case of Gaur Brahmin Vidya Pracharini Sabha v. (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 liable to be rejected. It is also noted by the ITO (Tech.) that draft order is put up for consideration and approval by the CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 only the Commissioner would call for the documents from the assessee in order to satisfy himself about the genu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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