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TMI Blog2008 (9) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... swar (hereinafter called as "CCIT") did not entertain the application of the assessee-petitioner made under section 10(23C)(vi) for the financial year 2006-07 for grant of exemption on the ground that the said application was not filed within the time stipulated under the said section. 2. Shorn of unnecessary details, the facts of the case as stated in the writ petition is as follows: 3. The petitioner, in the present case, is a registered trust which runs an educational institution. The trust is constituted, inter alia, with the object to organize and promote education. It is engaged in imparting technical education and training. The institution has been approved by the All India Council for Technical Education for conducting the degree course in Engineering and Technology. The petitioner-trust has been granted registration under section 12A of the Income-tax Act on January 15, 2003, bearing Registration No. 44/1998-99. It filed an application for exemption under section 10(23C)(vi) for the financial year 2006-07 in Form 56D along with the requisite documents on May 31, 2007. This application was accompanied by another application for condonation of delay in presenting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... technical education without motive of profit or gain and, therefore, the order passed by O. P. No. 1 will cause serious prejudice to the interests of the petitioner. 6. Per contra, Mr. A. K. Mohapatra, learned counsel appearing on behalf of opposite parties submitted that since the statute provides the period of limitation for making application for grant of exemption under section 10(23C)(vi) and admittedly the petitioner has not filed the application within the said stipulated time, the Chief Commissioner of Income-tax is justified in not admitting the petitioner's application for grant of exemption. He further submitted that no power is vested with the Chief Commissioner of Income-tax to condone the delay in presenting the application under section 10(23C)(vi) for exemption. It is the Central Board of Direct Taxes ("the CBDT") which is empowered under section 119(2) (b) to direct an income-tax authority to admit an application or claim for any exemption, deduction, refund or any other relief under the Income-tax Act after expiry of the period specified therein the Income-tax Act. 7. In view of the rival contentions of the respective parties, the question that falls for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olely for educational purpose and not for the purpose of profit other than those mentioned in sub-clause (iiiab) or sub-clause (iiiad), which may be approved by the prescribed authority, makes an application on or after June 1, 2006, to the Chief Commissioner of Income-tax such application shall be made at any time during the financial year immediately preceding the assessment year from which the exemption is sought for. Thus, as required by the statute, application for grant of exemption for the financial year 2006-07 should be made to the Chief Commissioner of Income-tax before the end of the said financial year, i.e., by March 31, 2007. In the present case, the application was made on May 31, 2007, which is beyond the time provided in the statute. The Income-tax Act nowhere provides any provisions for condonation of delay in presenting application under section 10(23C)(vi) for grant of exemption. Thus, it is to be examined whether in the absence of such a provision any application made under section 10(23C)(vi) beyond the statutory period of limitation can be entertained by the appropriate authority by condoning the delay in presenting such application. 10. The Income-tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make an application for issue or notification/grant of approval or continuance thereof. It is proposed to insert a new proviso in clause (23C), so as to provide a time limit for the purposes of making an application under the said sub-clauses. Such application for grant of exemption or continuance thereof under any of these sub-clauses shall have to be filed at any time during the financial year immediately preceding the assessment year from which such exemption is sought. Such application cannot be made for any earlier period. The proposed amendment shall apply only in respect of applications which are made on or after June 1, 2006. This amendment will take effect from 1st June, 2006." 11. Thus, the Finance Bill, 2006, has been brought, inter alia, to provide period of limitation for entertaining application under section 10(23C)(vi) for exemption made on or after June 1, 2006, and accordingly the new proviso 14 was inserted to section 10(23C)(vi). While providing period of limitation for presenting application for grant of exemption under section 10(23C)(vi) before the Chief Commissioner of Income-tax, the Legislature has not made any provision for condonation of delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Act for the purpose of considering the matter relating to condonation of delay. 15. The Chief Commissioner of Income-tax being a creature of the statute cannot travel beyond the statutory provisions. Law is well settled that court cannot derive jurisdiction apart from the statute (vide United Commercial Bank v. Their Workmen, AIR 1951 SC 230 ; Smt. Nai Bahu v. Lala Ramarayan, AIR 1978 SC 22; Natraj Studios P. Ltd. v. Navrang Studio, AIR 1981 SC 537, UOI v. Deoki Nandan Aggarwal, AIR 1992 SC 96, Karnal Improvement Trust v. Prakash Wanti [1995] 5 SCC 159 and Collector of Central Excise v. Flock (India) (Pvt.) Ltd., AIR 2000 SC 2484. 16. Mr. Sahoo, learned counsel submitted that a direction may be given to the Chief Commissioner of Income-tax to consider the application of the petitioner for condonation of delay. In support of such submission he relied on the order dated May 15, 2008, passed by this court in W. P. (C) No. 4514 of 2008 in Padmashree Krutarth Acharya Institute of Engineering and Technology v. Chief CIT [2009] 309 1TR 13 wherein this court held that though the application for grant of approval for exemption had been filed by an education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and not to legislate. (See District Mining Officer v. Tata Iron and Steel Co. [2001] 7 SCC 358). 23. In M. K. Mohammed Kunhi's case [1969] 71 ITR 815 (SC) relied on by Mr. Sahoo, learned counsel for the petitioner, the hon'ble court held that in the absence of any specific power of the authority to grant stay there is implied power of doing all such acts or employing any such means as are essentially necessary to its execution. According to the said decision, while exercising any jurisdiction by any quasi-judicial authority, the question of ancillary and incidental power arises. Condonation of delay may itself be a question of jurisdiction depending upon the statute applicable. Once limitation expires, the court/authority may lose the jurisdiction to adjudicate any issue. In that event, exercise of any ancillary and incidental power does not arise. Thus, M. K. Mohammed Kunhi's case [1969] 71 ITR 815 (SC) is of no help to the assessee. 24. In the present case, the Chief Commissioner of Income-tax does not acquire any jurisdiction in respect of the application filed under section 10(23C)(vi) beyond the statutory period of limitation, in that situation, the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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