TMI Blog2011 (5) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... n law and on facts in deciding the status of the appellant as that of an AOP (Trust) instead of an institution engaged in providing education as covered u/s. 10(23)(vi) of the ITA, 1961. 4. Alternatively and without prejudice, the learned AO erred in law and on facts in adding the Capital Outlay Contribution of ₹ 1,25,18,250 to the total income considering it to be a Revenue Receipt. 2. Besides above, the assessee has raised following additional Grounds with request to allow the same for adjudication of the Tribunal since issue involved therein is legal in nature which does not need consideration of material outside the record. : Additional Ground 1. The learned CIT(A)-I, Pune and the learned ITO, Ward 11(1), Pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d No. 1 is concerned, it is legal in nature which goes to the root of the matter and further that adjudication of the same does not require consideration of fresh material outside the record. We also find that the other additional Ground which is alternative in nature and the grounds of the appeal explaining the action of the first appellate authority are consequential to the issue raised in additional Ground No. 1. We thus allowed the request of the Ld. A.R. for adjudication of Additional Ground No. 1. We accordingly directed the parties to proceed with their arguments on additional Ground No. 1. 5. In support of the said additional Ground, the Ld. A.R submitted that assessee s school is solely engaged into the activity of education. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide its order dated 1.4.2009, has affirmed the action of the A.O again in absence of the required approval by the Ld Chief Commissioner on 1.4.2009. He pointed out that till Taxation Laws (Amendment) Act 2006 with retrospective effect from 1.4.2006 in Section 10(23C) proviso, whereby granting or rejecting of application order is required to be passed within the period of 12 months from the end of month in which such application was received, no time limit was prescribed for the action of the Ld Chief Commissioner on such application for the approval. Thus in absence of such prescribed time limit for the period before the amendment came into effect, a reasonable time should be taken for disposal of the application for approval by the Ld Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Commissioner of Income Tax on the application moved for exemption u/s.10(23C) by an institution. The answer as per the provisions of law and procedure laid down under Income Tax Act, 1961, would be in negative. But here is a peculiar situation before us. In the present case, the revenue has not denied before us the claim of the appellant institution that it had moved application seeking approval of exemption u/s. 10(23C) in form No. 56D before the Ld. Chief Commissioner for A.Y. 2005-06 and for the next two years alongwith return of income for A.Y. 2005-06 well in time on 13.3.2006, but it has not been disposed off so far. The assessment order treating the appellant as AOP in absence of the required approval for the exemption has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would arise as to what would be the reasonable time on passing whereof after the date of filing of the application would acquire deemed approval.Till Taxation Laws (Amendment) Act, 2006 with retrospective effect from 1.4.2006 in Section 10(23C) proviso (whereby granting or rejecting of application ordere is required to be passed within the period of twelve months from the end of month in which such application was received) no time limit was prescribed for the action of the ld. Chief Commissioner on such application for the approval. Thus the inference by implication would be that w.e.f. 1.4.2006 if the Chief Commissioner does not act upon the application for approval of exemption u/s. 10(23C) pending before him, after passing of the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment for the A.Y. in question accordingly. It is however pointed out by the Ld. AR before us has pointed out at Bar that till date no action has been taken by the ld. Chief Commissioner on the said application dated 13.3.2006. Under these circumstances, the above stated two issues are decided in favour of the appellant accordingly. Consequently, while setting aside the orders of the authorities below, we direct the A.O to frame assessment for the year in question afresh treating the appellant as enjoying approval of exemption u/s. 10(23C) for the claimed period in its application dated 3.3.2006 (acquired deemed approval) after affording opportunity of being heard to the appellant. 9. In result, appeal is allowed for statistical p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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