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2019 (6) TMI 254 - HC - Income TaxApproval u/s 80(G)(5) - ITAT Lucknow remanded the instant matter to CIT (E) Lucknow - main contention raised by the assessee in this appeal is, the matter could not have been remanded back as the entire material was available before the ITAT to come to subjective satisfaction as to whether in the given circumstances the assessee was eligible for being granted a certificate u/s 80(G)(5), or not? - HELD THAT:- For the purpose of deciding as to whether or not to grant approval u/s 80G, a CIT (Exemptions) has to only examine whether or not the conditions set out in Section 80G(5)(i) to (v) are satisfied. The first and foremost thing to be seen is whether or not any income earned by the assessee is not being liable to inclusion in its total income under any of the provisions of Sections 11and 12 or Clause (23AA) or Clause (23C) of Section 10 of the Act, 1961. Since the assessee is granted approval for the future years, and since there is no way that anyone can have the clairvoyance of knowing whether or not the assessee will eventually be able to comply with the conditions, if any, attached to the exemptions, as long as the exemption is available in principle and as long as the assessee can reasonably claim to be able to satisfy the conditions attached to such exemption, one has to proceed on the basis that the condition laid down u/s 80G(5)(i) is satisfied. Before the ITAT it seems, the appellant was able to point out the relevant documents from which charitable nature of the society could be deciphered. The ITAT therefore in the facts and circumstances of the case observed that the CIT (E) has not examined the entire documents placed before him, and these are matters which require factual verification of the CIT (E) who has the requisite machinery to undertake such an exercise. The appellate Court certainly have the power of remand, and the ITAT has rightly remanded the matter back to the CIT (E) for fresh decision, and sufficient reasons have been stated by the ITAT in support of its decision to remand the case which cannot be found wanting. ITAT rightly remanded the matter back to the CIT (E) for fresh consideration and decision on the basis of the evidence available on record regarding genuineness of the documents and to pass a speaking order. The questions are answered accordingly.
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