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American School of Bombay Education Trust (Through Its Trustees) & Others Versus Union of India & Others

2015 (8) TMI 717 - DELHI HIGH COURT

Exemption under Section 10 (23C)(vi) denied - whether we remit the matter to the CBDT once again for it to decide the question of approval or on the basis of available material, we direct the CBDT to grant the approval? - Held that:- In Digember Jain Society (2009 (10) TMI 61 - DELHI HIGH COURT) this court had in fact issued a mandamus directing the revenue to grant exemption to the petitioner therein under Section 10(23C)(vi) of the said Act. The court, while doing so, also directed that the co .....

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he petitioner under Section 10(23C)(vi) of the said Act for the Assessment years 1999-2000 to 2001-02. However, we are making it clear that as the assessments for the three years in question are open, the Assessing Officer can certainly go into the question as to whether the conditions stipulated in the third proviso and the 13th proviso to Section 10(23C)(vi) of the said Act have been met and appropriate orders can been passed by the Assessing Officer in accordance with law. - W P (C) No. 2186/ .....

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nt of approval for exemption under Section 10 (23C)(vi) of the Income-tax Act, 1961 (hereinafter referred to as the said Act) for assessment years 1999-2000, 2000-01 and 2001-02. By virtue of the impugned order dated 29.10.2013, the application of the petitioner has been rejected. 2. This case has had a long history. We need not go into all the details. Only a few facts are necessary. First, the assessments for the years in question had been completed but have been set aside by the Income Tax Ap .....

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to be re-examined by the CBDT in the light of the Supreme Court decision in the case of American Hotel and Lodging Association Educational Institution v. CBDT: 301 ITR 86 (SC). The said decision of the Supreme Court has been relied upon by another Division Bench of this court in Digember Jain Society For Child Welfare v. Director General of Income-Tax (Exemptions): 329 ITR 459 (Delhi), where it has been held that by virtue of the Supreme Court decision in American Hotel and Lodging Association .....

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t of exemption for which the applicant has to move an application in the standardized form in terms of the first proviso to Section 10(23C)(vi). The Division Bench also clarified after interpreting the Supreme Court decision in American Hotel and Lodging Association (Supra) that insofar as the third proviso is concerned, the same relates to application of funds and that would be a matter which would arise for consideration at a later stage. In other words, the third proviso prescribes a monitori .....

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ncome Tax which also reiterates the propositions settled in American Hotel and Lodging Association (Supra). 3. Third, we may also take note of the fact that despite the setting aside of the assessment orders as noted above by the Income Tax Appellate Tribunal, the Assessing Officer, without waiting for the decision of the CBDT, passed fresh assessment orders which ultimately were set aside by the Bombay High Court by an order dated 12.11.2013. In the course of those proceedings the Bombay High C .....

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fluenced by the findings of the Assessing Officer in the assessment orders for the assessment years 1999-2000 to 2001-02. Those assessment orders have been set aside and have been restored to the file of the Assessing Officer as we have already indicated above. This fact is also noted by the CBDT in the following manner:- "The mere fact that the said three assessment orders have been restored back to the file of the AO by the ITAT, Mumbai on a technical ground, with the direction to decide .....

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d at the assessment orders while examining the application for grant of approval which was prohibited by the Bombay High Court by virtue of its directions given in the writ petition which the petitioner had filed before the said court. 5. Apart from this, we also find that the direction given by this court has not been followed by the CBDT in the sense that it has not decided the case in terms of the decision of the Supreme Court in American Hotel and Lodging Association (Supra). That decision i .....

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