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TMI Blog2018 (1) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... - against the returned income at Rs. Nil in the facts and circumstances of the case. 3. Brief facts of the case, according to AO are that the assessee is an 'AOP' and filed its return of income declaring 'Nil' for the A.Y under consideration on 19-02-2010. Notices u/s. 143(2) and 142(1) of the Act were issued and duly served on the assessee. In response to which, the A/R of the assessee appeared and filed written submissions and produced books of accounts. During the course of scrutiny proceedings the AO found that the application for renewal of approval u/s. 35(1)(ii) of the Act for the period from 1-4-08 onwards has been rejected by the Central Board of Direct Taxes hereafter for short as CBDT vide its order dt. 24-08-09. Thereby the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act without appreciating the facts and the AO should have made a protective assessment. 5. Considering the above submissions, the CIT-A in absence of any approval u/s. 35(1)(ii) of the Act rejected the claim of assessee and confirmed the order of the AO. The relevant portion of which is reproduced as under: "1. This appeal is filed against order U/s. 143(3) dated 25/11/2011 assessing the income at Rs. 92,04,200 against the returned income of Rs. NIL. 2. The AO noted that the renewal of approval U/S 35(1)(ii) for the period 01/04/2008 onwards has been rejected by Central Board of Direct Taxes vide Order Dated 24/08/2009. As the assessee was not registered as a charitable trust U/S 12, the AO did not allow exemption U/S 11. 3. Durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the order of rejection of renewal passed by the CBDT is not valid and prayed to allow the grounds of appeal as raised by the assessee before the Tribunal. 7. On the other hand, the ld. DR relied on the orders of the authorities below. 8. Heard rival submissions and perused the material on record. We find that the CBDT rejected the application of assessee for renewal of the recognition seeking exemption by an order dated 24- 08-2009 stating that no adequate scientific research activity has been carried out by the assesse. We note that in order to claim exemption u/s. 35(1)(ii) of the I.T Act 1961 approval is essential and necessary. The relevant portion of which is reproduced as under:- "2. After careful examination of the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of Finance for passing an order either accepting or rejecting the prayer for approval is at document no-4 of paper book of assessee. The relevant portion of which is reproduced herein below:- "In this case the petitioner was offered an opportunity of hearing before "Member (IT) CSDT and CIT (IT)''. CIT (IT) is also the authority to receive the application for approval, CIT(IT) after receiving such application is required to satisfy himself as regards eligibility of the applicant. In case he is not satisfied be may also afford an opportunity of hearing to the appellant and shall thereafter make the recommendation. In this case such an opportunity was granted by the letter dated 26th February, 2013 but the writ petitioner refused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed." 11. In view of the decision above by the Hon'ble High Court of Calcutta, we find no force in the submissions of the Ld.AR in respect of the CBDT has no power to decide the application seeking approval u/s 35(1)(ii) of the Act. Admittedly, it is noticed that for the A.Y under consideration, there was no approval for getting exemption u/s. 35(1)(ii) of the Act as on the date of assessment to claim exemption. Therefore, in our opinion, the CIT-A rightly exercised his jurisdiction in confirming the order of AO in rejecting the claim of the assessee. Therefore, grounds raised by the assessee in the appeal are dismissed. 12. In the result, the appeal (ITA No. 1777/Kol/2014 for the A.Y 2009-10) of the assessee is dismissed. Order p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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