TMI Blog2021 (7) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... t, namely Section 10(23C)(iv) of the Act, in our opinion, would not disentitle the petitioners/ assessees to seek for being notified under a different provision, as it is for the assessees/petitioners to choose as to which of the provisions would be more beneficial. The respondents for the reasons best known did not take any action on the applications filed by each of the petitioners for being notified under Section 10(46) of the Act, nor communicated the reason for not considering the applications, for nearly three years, till the petitioners approached this Court by the present writ petitions. Thus, the action of the respondents in not processing the case of the petitioners and maintaining static silence, cannot be countenanced The understanding of the 2nd respondent that the power to withdraw conferred under Section 293C or Section 10(23C)(iv) of the Act, to be undertaken only at the behest of the respondents and not at the request of the petitioners, does not appeal to this Court, as a correct understanding. As detailed herein above, the word withdraw as used in both the Sections 10(23C)(iv) and 293C of the Act, encompasses in itself the exercise of power even at the be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Control of Pollution) Act, 1981 and are established for the purpose of administering and controlling various steps relating to reduction of pollution and hazardous waste of all kinds, as per the statutory provisions of the said statutes. 4. It is the case of the petitioner-TSPCB that on its application, the prescribed authority viz., the 2nd respondent, granted approval under Section 10(23C)(iv) of the Act with effect from the Assessment Year 2014- 15 onwards. 5. Similarly, it is the case of the petitioner-APPCB that the prescribed authority granted approval to it under Section 10(23C)(iv) of the Act with effect from the Assessment Year 2010-11 onwards. 6. It is the common case of the petitioners that though the petitioners were approved by the 2nd respondent and granted exemption under Section 10(23C) of the Act, the 3rd respondent denied the benefit of exemption on its income under the Act, for one or other reason and the matters are pending consideration in appeal before the appellate forum. 7. The petitioners contend that Parliament by the Finance Act, 2011, inserted sub-section (46) to Section 10 of the Act, with effect from 01.06.2011; that the said provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were already granted registration under Section 10(23C)(iv) of the Act, and the said registration is still in force; and that in view of the 18th proviso to Section 10(23C) inserted with effect from 01.04.2015, the benefit of approval under Section 10(46) of the Act would not be available. It is also contended that the claim of the petitioners with regard to the similarly placed Boards of other States being notified under Section 10(46) of Act, would attract the concept of Zohnerism (whatever that means), as unlike other Pollution Control Boards, the petitioners are already registered under Section 10(23C)(iv) of the Act. 13. On 16.02.2021, when the writ petitions were taken up for hearing by this Court, the petitioners were granted time to file applications before 1st respondent seeking withdrawal of exemption granted under Section 10(23C) of the Act, and seeking for being notified under Section 10(46) of the Act with effect from the Assessment Year 2016-17. This Court further directed the 1st respondent to dispose of the said applications within a period of two weeks from date of its receipt and communicate the decision to the petitioners. 14. Pursuant thereto, the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely because it is more beneficial to it. 19. We have considered the submissions made by the learned counsel appearing for the parties. 20. Before adverting to the respective contentions advanced on behalf of the parties, it is necessary to take note of the Scheme of the Act, dealing with exemption under Section 10(23C)(iv) and 10(46) of Act. 21. Chapter-III of the Act deals with Incomes which do not form part of Total Income . Section 10 of the Act provides that in computing the total income of a previous year of any person, any income falling within the clauses mentioned therein shall not be included. Sub-clause (iv) of Clause (23C) of Section 10 of the Act mentions that the income of any fund or institution established for charitable purposes (which may be approved by the prescribed authority) having regard to the objects and importance either throughout India or State or States, shall not be included in its total income. By Rule 2C of the Income Tax Rules (for short Rules ), the prescribed authority is specified as Principal Commissioner or Commissioner, whom the Central Board of Direct Taxes may authorize. The form prescribed for making applications for accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning. In Samee Khan v. Bindu Khan (1998) 7 SCC 59 , the Hon ble Supreme Court by referring to Black s Law Dictionary held that the word also has variety of meanings like Besides; as well; in addition; likewise; in like manner; similarly; too; withal . 26. Applying the meaning as ascribed to the above two words, used as opening words of 15th proviso to Section 10(23C)(iv) of the Act, it can be inferred that the conditions specified therein relate to restriction imposed on the prescribed authority for exercising powers on his own. In Re Chervirala Narayan AIR 1958 AP 235,239 = 1957 SCC Online AP 242 a Division Bench of this Court speaking through Hon ble Sri Justice K. Subba Rao, C.J. (as his Lordship then was), while interpreting the provisions of Section 207-A(4) of Cr.P.C., had held that In our view, the word also denotes the extent of power of the Magistrate rather than its limitation . 27. Further, the term withdraw as used in Section 10(23C)(iv) 15th proviso and also in Section 293C of the Act has a wider connotation and cannot be construed in a restrictive manner as sought to be projected by the respondents. In Kalabharati Advertising v. Hemant Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ather than Rewarding the Honest . 32. In juxtaposition, Section 10(46) of the Act confers powers on the Central Government to notify in the official gazette any specified income of a body or authority or Board or Trust or Commission, not being included in its total income, subject to complying with the conditions specified therein. Thus, once a notification is issued by Central Government in official gazette, specifying the income of an assessee not forming part of total income, the assessee would be entitled to claim exemption on that specified income and no discretion would vest with the assessing authority to examine the eligibility of the assessee to claim exemption thereon. 33. Thus, the basic difference between the two provisions of the Act viz., 10(23C)(iv) and 10(46) of the Act, is that, while under the first provision, it is only a grant of an approval making an assessee eligible to claim exemption without any certainty of exemption being allowed on any income, since it is subject to scrutiny, the latter provision confers benefit of automatic exemption in respect of the specified income of the assessee as notified by the Central Government in the gazette. Thus, unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approval has not been specifically provided for in such provision, withdraw such approval at any time: Provided that the Central Government or Board or income-tax authority shall, after giving a reasonable opportunity of showing cause against the proposed withdrawal to the assessee concerned, at any time, withdraw the approval after recording the reasons for doing so. 39. In our view, the reason assigned by the 2nd respondent in its communication dt.02.03.2021 to reject the request of the petitioners seeking withdrawal of the approval granted under Section 10(23C) of the Act, is also overlooking the power conferred on the said authority under Section 293C of the Act, even if it is construed that the 15th proviso confers power on the authority to withdraw only on the conditions stipulated therein. The understanding of the 2nd respondent that the power to withdraw conferred under Section 293C or Section 10(23C)(iv) of the Act, to be undertaken only at the behest of the respondents and not at the request of the petitioners, does not appeal to this Court, as a correct understanding. As detailed herein above, the word withdraw as used in both the Sections 10(23C)(iv) and 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
