Allahabad H.C : Assessee for extention of approval under section 10(23C)(vi) was a redundant application, inasmuch as, there was no requirement to apply for extension as said approval was granted after 1-12-2006 and original order of approval still continued to remain in force

High Court Of Allahabad

Sunbeam Academy Educational Society Vs. CCIT

Section : 10(23C)

Assessment Years : 2008-09 To 2010-11

Tarun Agarwala And Bachchoo Lal, JJ.

Civil Misc. Writ Petition (Tax) No.1502 Of 2009

May 21, 2014

ORDER

Tarun Agarwala, J. – Heard Sri Ashish Bansal, the learned counsel for the petitioner and Sri Shambhu Chopra, the learned counsel appearing for the Chief Commissioner of Income Tax.

2. The petitioner is a society registered under the Societies Registration Act, 1860 and is providing education by setting up centres for educational excellence and schools under the name and style of “The Sunbeam Academy Educational Society”. Initially the Society was imparting education upto the 8th standard and the same was increased to 12th standard from the academic year 2003-04. Considering the aims and objects of the Society, the petitioner applied and was duly granted a registration under Section 12A of the Income Tax Act (hereinafter referred to as “the Act”).

3. The Chief Commissioner of Income Tax, by an order dated 20.12.2007, granted approval under Section 10 (23C)(vi) of the Act after being satisfied that the educational institution was existing solely for educational purpose and not for the purpose of profit. This approval by the order dated 20.12.2007 was granted for the assessment year 2005-06 to 2007-08, i.e., for a period of three years.

4. Under the provisions of the Income Tax Act, the approval is granted for three assessment years and the assessee is required to apply for extension of the approval. Accordingly, the petitioner applied for extension of the approval on 25.3.2008 for the assessment years 2008-09, 2009-10 and 2010-11. This application was rejected by the Chief Commissioner of Income Tax by the impugned order dated 17.3.2009. The petitioner, being aggrieved by the rejection of his application, has filed the present writ petition on various grounds.

5. The learned counsel for the petitioner made a submission that in view of the circular No.7 of 2010, dated 27.10.2010, the Central Board of Direct Taxes (hereinafter referred to as the “CBDT”) has clarified that it was not necessary to seek further approval or extension of the earlier approval granted under Section 10 (23C)(vi) where approval was granted after 13.7.2006. This specific ground has not been raised by the petitioner in his writ petition but since this issue goes to the root of the matter, we have allowed the learned counsel for the petitioner to add a ground in the writ petition.

6. The CBDT issued a circular No.7 of 2010, dated 27.10.2010 upon receiving various references from the public about the period of validity of approval granted by the Chief Commissioner of Income Tax under sub-clause (iv), (v), (vi) and (vi-a) of Section 10(23-C) of the Act and approval granted by the Commissioner of Income Tax or Director of Income-tax under Section 80G(5) of the Income Tax Act, 1961. The CBDT noticed that various field authorities were interpreting the provision relating to the period of above approval in a different manner and, consequently, for removal of doubt, the CBDT issued various instructions.

7. In so far as Clause (vi) of Section 10(23-C) of the Act is concerned, the CBDT issued the following directions:—

‘4. Approvals under Sub-Clauses (vi) and (via) of Section 10(23C) are governed by the procedure contained in Rule 2CA. Rule 2CA was amended w.e.f. 1.12.2006, inter alia by substitution of the existing sub-rule 3 by a new provision which is reproduced below:—

“(3) The approval of the Central Board of Direct Taxes or Chief Commissioner or Director General, as the case may be, granted before the 1st day of December, 2006 shall at any one time have effect for a period not exceeding three assessment years.”

Read in isolation, without any further guidance as was given by way of explanatory notes to Finance Act, 2006 in respect of amendment of sub-clauses (iv) & (v) of Section 10(23C), the above amendment leaves some scope for doubt about the period of validity of the approval under Section 10(23C)(vi) and (via) on or after 1.12.2006. For the removal of doubts if any in this regard, it is clarified that as in the case of approvals under sub-clauses (iv) & (v) of Section 10(23C), any approval issued on or after 1.12.2006 under sub-clause (vi) or (via) of that sub-section would also be a one time approval which would be valid till it is withdrawn.’

8. The CBDT clarified that in view of the amendment of Rule 2CA w.e.f. 1.12.2006, the explanatory note with regard to the amendment in Sub-clauses (iv) and (v) of Section 10(23-C) would also have to be read for the provision of Clause (vi) and (via) and that any approval granted by the Chief Commissioner of Income Tax under Section 10(23C) after 1.12.2006 would be a one time approval, which would remain valid till it was withdrawn under the proviso. For facility, relevant proviso to Section 10(23-C) is extracted hereunder:

“Provided also that where the fund or institution referred to in sub-clause (iv) or trust or institution referred to in sub-clause (v) is notified by the Central Government [or is approved by the prescribed authority, as the case may be,] or any university or other educational institution referred to in sub-clause (vi) or any hospital or other medical institution referred to in sub-clause (via), is approved by the prescribed authority and subsequently that Government or the prescribed authority is satisfied that—

(i)such fund or institution or trust or any university or other educational institution or any hospital or other medical institution has not-

(A)applied its income in accordance with the provisions contained in clause (a) of the third proviso; or

(B) invested or deposited its funds in accordance with the provisions contained in clause (b) of the third proviso; or

(ii)the activities of such fund or institution or trust or any university or other educational institution or any hospital or other medical institution-

(A)are not genuine; or

(B)are not being carried out in accordance with all or any of the conditions subject to which it was notified or approved,

it may, at any time after giving a reasonable opportunity of showing cause against the proposed action to the concerned fund or institution or trust or any university or other educational institution or any hospital or other medical institution, rescind the notification or, by order, withdraw the approval, as the case may be, and forward a copy of the order rescinding the notification or withdrawing the approval to such fund or institution or trust or any university or other educational institution or any hospital or other medical institution and to the Assessing Officer.”

9. The aforesaid proviso was in relation to clause (iv) and (v) of Section 10 (23C) of the Act. The CBDT by its circular No.7 of 2010 has clearly held that it would also be applicable for approval granted under clause (vi) and (via) of the Act, namely, that the approval can be withdrawn by the competent authority on certain conditions being satisfied and after giving a reasonable opportunity of show cause to the assessee.

10. In the light of the aforesaid, the application dated 25.3.2008 filed by the petitioner for extension of the approval under Section 10(23C)(vi) of the Act for the assessment years 2008-09, 2009-10 and 2010-11 was a redundant application, inasmuch as, there was no requirement to apply for extension of the approval inasmuch as the approval in the case of the petitioner was granted after 1.12.2006 on 20.12.2007. The approval so granted by the Chief Commissioner of Income Tax, by an order dated 20.12.2007, was a one time affair, which was to continue till it was withdrawn under the proviso as extracted above. Consequently, the impugned order dated 17.3.2008 was otiose having no effect in law. The impugned order only rejects the application for extension of the approval for the assessment years 2008-09, 2009-10 and 2010-11. The original order of approval dated 20.12.2007 still continues to remain in force inspite of the rejection of the petitioner’s application by the impugned order dated 17.3.2009.

11. In the light of the circular dated 27.10.2010 issued by the CBDT, the approval granted by the Chief Commissioner of Income Tax dated 20.12.2007 being a one time affair continues to remain in force till it is withdrawn under the proviso as extracted aforesaid. Similar view was held by a Division Bench of the Lucknow Bench of this High Court in State Innovations in Family Planning Services Project Agency v. Union of India [Writ Petition No.6715(M/B) of 2013, decided on 4.9.2013].

12. In the light of the aforesaid, the impugned order passed by the Chief Commissioner of Income Tax is quashed. The writ petition is allowed.

13. In It is hereby clarified, that it would be open to the authorities to proceed, if they are so advised against the petitioner under the proviso as extracted aforesaid.

[Citation : 365 ITR 378]