9911796707
TMI Blog2009 (7) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... 000, reads as under : "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 . . . (vi) any university or other educational institution existing solely for educational purposes and not for purposes of profit, other than those mentioned in sub-clause (iiiab) or sub-clause ( and which may be approved by the prescribed authority." 3. The petitioner-trust made an application for approval on March 30, 1999. The prescribed authority for granting approval was the Central Board of Direct Taxes (CBDT). By its order dated March 9,2004 the Central Board of Direct Taxes approved the petitioner-trust for the purposes of exemption under section 10(23C)(vi) of the Act for the assessment years 1999-2000 to 2001-02. The petitioner, thereafter, made applications for renewal dated December 24, 2002, for the assessment years 2002-03 to 2004-05 and on February 22, 2005, for the assessment years 2005-06 to 2007-08. 4. Subsequent to the survey under section 133A of the Act carried out on the office premises of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dharamchand Nemichand Parikh, Deputy Director of Income-tax (Investigation) (H. Qrs.), Pune. Reliance is placed on rule 2CA of the Income-tax Rules, 1962. Reliance is also placed on a notification dated May 30, 2007. Based on the Rules and the notification, it is set out that respondent No. 1 would be the prescribed authority. 9. Considering the narrow controversy, we will first consider rule 2CA of the Income-tax Rules, which reads as under : "2CA. Guidelines for approval under sub-clauses (vi) and (via) of clause (23C) of section 10.-(1) The prescribed authority under sub-clauses (vi) and (via) of clause (23C) of section 10 shall be the Chief Commissioner or Director General to whom the application shall be made as provided in sub-rule (2). (1A) ( The prescribed authority under sub-clauses (vi) and (via) of clause (23C) of section 10 shall be the Central Board of Direct Taxes constituted under the Central Board of Revenue Act, 1963 (54 of 1963) for applications received prior to 3rd day of April 2001 : Provided that in case of applications received prior to 3rd day of April, 2001, where no order has been passed granting approval or rejecting the application as on 31st day of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of application received prior to April 3, 2001, where no order has been passed granting approval or rejecting the application as on May 31, 2007, the prescribed authority under sub-clauses (vi) and (via) of clause (23C) of section 10 shall be the Chief Commissioner or Director General. 12. In that context, let us consider section 10(23C)(vi) and/or (via) of the Act as also the 13th proviso which reads as under : "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 the 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction. There are several Chief Commissioners or Directors General for various commissionerates or areas throughout India. The notification only spells out which of the Directors General or Chief Commissioners would have jurisdiction, in that area. So read, in so far as sub-rule (1A) is concerned, it is clear that it will be that Chief Commissioner or Director General for that area alone who would have jurisdiction over that area. The rule cannot be read into sub-rule (1A) which has specifically defined the prescribed authority as the Central Board of Direct Taxes. There is no delegation of power of the Central Board of Direct Taxes by the notification to the Director General or any Commissioner. The notification, therefore, is clearly inapplicable in so far as rule 2CA (1A) is concerned 16. Having held that the prescribed authority is the Central Board of Direct Taxes - respondent No. 1 for the years 1999-2000 and 2000-01, the prescribed authority to pass the order reviewing grant of permission would be the Central Board of Direct Taxes. In our opinion, once a power is conferred by the Act and the Rules, it is only that authority, who has been conferred power under the Act and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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