9911796707
TMI Blog2008 (2) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005-06 : Date of application Financial year Total receipt (i) 31-3-2000 1998-99 ₹ 1,43,86,923.00 (ii) 31-10-2000 1999-2000 ₹ 1,49,45,503.00 (iii) 31-10-2001 2000-01 ₹ 1,35,72,044.00 (iv) 31-10-2002 2001-02 ₹ 1,10,07,978.00 (v) 31-10-2003 2002-03 ₹ 1,11,08,775.00 (vi) 1-11-2004 2003-04 ₹ 73,35,846.00 (vii) 31-10-2005 2004-05 ₹ 75,10,332.00 (viii) 31-10-2006 2005-06 ₹ 90,70,887.00 It is submitted that for each of the years, the petitioner trust made separate application for seeking approval, as required under rule 2CA read with Form 56D. However, the aforesaid applications were not disposed of and remained pending consideration for a fairly long p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Incomes not included in total income-In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included- ****** (22)any income of a university or other educational institution, existing solely for educational purposes and not for purposes of profit. 5. Dr. Pal, learned counsel on behalf of the petitioner submitted that on a reading of the aforesaid provision, it would be clear that exemption can be allowed only when a trust exists solely for educational purposes and not for the purpose of profit and the petitioner trust has been allowed exemption for the years 1993 to 1998. It is further submitted that section 10(22) remained in force till 31-3-1999 whereafter section 10(23C)( vi) was introduced and since then a trust could claim exemption under the said provision in terms thereof. Section 10(23C)( vi) of the Act, is quoted here for reference : 10. Incomes not included in total income.-In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included- ****** (23C) any income received by any person on behalf of- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s concerned the CBDT alone had the necessary authority for considering the grant of approval and, therefore, he asserts the Chief CIT did not have any authority in law nor was he the prescribed authority for the period, i.e., 1999-2001 and therefore, the order impugned is patently illegal, invalid and without jurisdiction and authority of law. 10. It is further submitted by Dr. Pal that after introducing section 10(23C)(vi ) of the Income-tax Act, the requirement of granting approval by the prescribed authority could only be applicable if the case of the assessee does not fall under sub-clause (iiiab) or sub-clause (iiiad) of section 10(23C). Sub-clause ( iiiad) of section 10(23C) provides that an approval is not necessary if the aggregate annual receipts of such university or educational institution do not exceed the amount of annual receipts as may be prescribed. The amount of annual receipt which has been prescribed and approved under rule 2BC of the Income-tax Rules, 1962, is ₹ 1 crore, being the aggregate receipt for that year. In other words, it is submitted that section 10(23C)( vi) of the Act provides, that any university or other educational institution existing s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l from the prescribed authority. Therefore, a prescribed authority is required to evaluate for each year whether the institution exists solely for educational purposes and not for the purpose of profit. In this respect Dr. Pal submitted that for the financial years 1998-99 to 2000-01, the CBDT was the prescribed authority and the Chief CIT had no jurisdiction to deal with the applications for the years 1998-99 to 2000-01. It is only for the financial years 2001-02 to 2005-06 that the Chief CIT is the prescribed authority, but then, the Chief CIT in terms of the aforesaid provisions and the case laws cited above, was required to examine each year s application individually and then reach a conclusion as to whether the petitioner s applications for the above financial years merited grant of approval of exemption or not. He further submitted that on a perusal of the impugned order, since the Chief CIT has passed a consolidated order for all the financial years, i.e., 1998-99 to 2005-06 the same is illegal, without jurisdiction and without any authority of law. 13. Mr. A.K. Mohapatra, learned standing counsel for the revenue vehe-mently opposed the contentions advanced on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner, who had sought for the approval by making necessary applications to the Chief CIT, and had never raised any objection against passing of a common order and, therefore, no objection can now be allowed to be entertained against the same. 15. Mr. Mohapatra has also referred to the judgment of the Apex Court in the case of Aditanar Educational Institution (supra) relied upon by the petitioner trust and submitted that the Hon ble Supreme Court has not held that a statutory authority cannot pass a common order covering different financial/assessment years. He further submitted that even after disposal of cases pertaining to different assessment years, by passing a consolidated order, there is no finding by the Hon ble Supreme Court that a statutory authority cannot pass a common order for various assessment years. The impugned order clearly indicates due and necessary application of judicial mind by the Chief CIT and he has exhaustively dealt with the issues involved in each year and has passed appropriate orders in accordance with law and there is no legal infirmity in the order impugned herein under Annex. 8 to the writ petition. 16. On a consideration of the rival con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was more than ₹ 1 crore. 17. Apart from the aforesaid provisions, it would be relevant to also note that the prescribed authority for the year 1999-2001 was the CBDT and thereafter such power of approval came to be vested in the Chief CIT. Although it is asserted by the learned counsel for the revenue that the petitioner trust ought not to have made application before the Chief CIT for the period 1999-2001, and should have made it to the CBDT, this fact of making such applications by itself cannot and does not vest any authority of law with the Chief CIT to deal with such application. It is a well-settled principle of law, that it is only the statute which can vest jurisdiction in a statutory authority and the conduct of the assessee in making of an application before an authority, who otherwise lacks jurisdiction cannot in law amount to vesting such an authority, with jurisdiction to deal with the same. In terms of rule 2BC of the Income-tax Rules, 1962 it is the prescribed authority alone which could deal with the application for approval and no other. 18. Now it is essential to deal with the further contention raised by the revenue to the effect that the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion at whether the applicant institution existed during the relevant year for the purpose of education alone and not for the purpose of profit, this is the statutory obligation which is required to be performed on an annual basis and each application is required to be dealt with individually. 20. In the present case, it is apparent that a common order has been sought to be passed by the Chief CIT for all the financial years in question i.e., 1998-99 to 2005-06. This clearly infracts the requirement of law for consideration of an application for approval, individually for each year in question. 21. The next contention of the petitioner was to the effect that the Chief CIT had no jurisdiction to deal with the applications for the financial years 1998-99 to 2000-01. Although all applications were made to the Chief CIT, yet the applications for the period 1998-2001 ought to have been transmitted to the approved authority, i.e., CBDT. The CBDT alone was vested with the authority to grant approval during the said period, i.e., 1999-2001. Further contention of the petitioner trust is that no approval for the financial years 2003-04, 2004-05 and 2005-06 was not (sic) necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
