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TMI Blog2014 (5) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) TMI 262 - BOMBAY HIGH COURT] - only because a power operates with respect to past transactions does not imply that the relevant provision is retrospective - post 01/10/2009, subject to the satisfaction of s. 292C, section 80-G approval could also be withdrawn for a period prior to 01/10/2009 - where the activities leading to the withdrawal, stand undertaken prior the date - the Revenue is not justified in not granting approval u/s 80-G(5) to the assessee – the competent authority directed to grant approval u/s 80-G(5) to the assessee with effect from 04/11/2009 – Decided in favour of Assessee. - I.T.A. No. 7279/Mum/2011 - - - Dated:- 2-5-2014 - Shri Sanjay Arora, AM And Shri Amit Shukla,JM,JJ. For the Appellant : Shri Satish R. Modi For the Respondent : Shri Girija Dayal ORDER Per Sanjay Arora, A. M.: This is an Appeal by the Assessee directed against the Order u/s. 80-G r/w s. 254 of the Income Tax Act, 1961 ( the Act hereinafter) by the Director of Income Tax (Exemption), Mumbai ( DIT(E) for short) dated 28.9.2011, rejecting the assessee s application dated 04.11.2009 for grant of approval u/s.80-G of the Act. 2.1 The issue arising in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04/11/2009, the date of the application, the genuineness of the trust itself is in doubt. Accordingly, the approval or its renewal was denied. Aggrieved, the assessee is in appeal. 3.1 Before us, the assessee s case was that the limited issue before the ld. DIT(E) in the set aside proceedings was as to if the assessee had indeed constructed the School and Hospital and, further, handed it over to Government and a charitable trust respectively for running, so that, where so, it be granted approval under sec.80-G. The Revenue had, accordingly, exceeded its jurisdiction in examining other aspects of the matter; its purview being governed/restricted by the terms of the set aside. 3.2 The Revenue s case, on the other hand, was that the activity, with reference to which the inference of the assessee being a public charitable trust is drawn by the tribunal, i.e., construction of a school, extends to the period up to 31/03/1997. The said order therefore cannot be construed as having the effect of restraining the Revenue from looking at other aspects germane to the matter and decide the issue on merits. 4. We have heard the parties and perused the material on record, giving our care ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was permissible for it (the Revenue) to, while reconsidering the assessee s case, bring additional facts on record, considering which may render the earlier finding, based as it was on the material on record and the case of the parties before it, as not valid. Whether, for example, the hospital, which would continue to appear on the assessee s books and, thus, form a part of the property held by it under trust, is being run by the other trust on charitable lines, or is on a profit making basis, as are various private hospitals. How does the assessee ensure this? What are the objects of the said trust? Whether the assessee is in fact geared to undertake charitable work, or all that it does is to construct buildings for being taken over and managed by others? Is there any profit element or otherwise commercial aspect to the transaction? We say so as, as is apparent, this is all that the assessee has undertaken in the past, and throughout the many years of its existence. Mobilizing funds for and actually constructing buildings, even if it is a school building or a hospital, could only be regarded as charitable activity if there is actually a user of the building as a school or hospi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eny approval, but the nonundertaking of charitable activity cannot by itself lead to the finding of the institution being not genuine, particularly considering that registration as a charitable trust stands granted by the Revenue, and which is not sought to be disturbed. In fact, this is what had led the hon ble court to in Sonepat Hindu Educational and Charitable Society vs. CIT [2005] 278 ITR 262 (P H) to hold that approval u/s. 80-G could not be denied where registration stands granted in-as-much as the same is a sufficient proof of it being established for charitable purposes. We are conscious as well as aware that the approval, though normally follows registration, cannot however be considered as consequential. The Revenue has also relied on decisions, as in the case of Madani Musafir Khana Welfare Society vs. CIT [2003] 264 ITR 481 (Pat) and Vishwa Budha Parishad vs. CIT [2003] 264 ITR 357 (Pat). We have already clarified that this is the second round before the tribunal, so that we are being guided principally by the earlier order by the tribunal, which has since attained finality; further only meeting the Revenue s case as sought to be made before us. The application being ..... X X X X Extracts X X X X X X X X Extracts X X X X
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