9911796707
TMI Blog1997 (1) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... by its subsequent order dated October 31, 1996, the Board has, with reference to the earlier order dated September 9, 1991, directed that the words : " the Board has examined your case and I am directed to say that as the case of the Stock Exchange, Ahmedabad, is covered by the specific provisions contained in section 10(23A) of the Income-tax Act, 1961" were withdrawn and the application seeking notification under section 10(23A) was rejected on the ground that the petitioner-stock exchange does not have as its object, control, supervision, etc., of any profession as contemplated by section 10(23A). By the earlier order dated September 9, 1991, which has been challenged in this petition with reference to the application dated December 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government under the said provision, was for a specific period of five years, a question arose during the hearing of this petition as to whether the Board can decide that the Central Government will not issue any notification under the said provision in respect of the petitioner. There was a communication dated December 18, 1980, a copy of which is on record, addressed by the Government of India to the stock exchange, which refers to an application of the petitioner being made to the Board for consideration of the issuance of a notification under section 10(23C)(iv) of the said Act. There is, however, no decision taken by the Central Government on the subject. Admittedly, in the past, exemption notification under section 10(23C)(iv) wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the impugned order dated September 9, 1991, was a communication of the Board's view that the stock exchange is an institution, which falls within the scope of exemption available under section 10(23A) and not under section 10(23C) of the Act and, therefore, the application of the petitioner-exchange dated December 27, 1988, for continuance of the exemption under section 10(23C) which was made available to the petitioner up to the assessment year 1988-89, cannot be considered under the said provision and its case for exemption can be considered only on making an appropriate application under section 10(23A), as an association or institution of a profession. It was in pursuance of this order that the petitioners had made a request to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 10(23C) is exempt from the payment of tax subject to fulfilment of conditions mentioned therein. Once there is a requirement of application to be made to the Central Government, the necessary consequence is that though the grant of approval or exemption, as the case may be, rests with the discretion of the Central Government, but that discretion has to be exercised after due application of mind to the application within the precincts of the provisions of the Act and once that duty inheres in the exercise of the discretion, that application of mind might be reflected in the order that is made on such application. Moreover, it is also discernible from the provisions governing the two exemptions that the discretion is not a discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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