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2016 (8) TMI 156 - MADRAS HIGH COURT

2016 (8) TMI 156 - MADRAS HIGH COURT - [2016] 388 ITR 475 - Approval under Section 10(23C)(vi) - condone the delay in filing an application - Held that:- After receipt of the reply and written submission and after affording an opportunity of personal hearing, the respondent pointed out that there is no power for condoning the delay in filing the application in Form No.56D and with regard to alternative prayer, the same was also rejected stating that the assessment year is defined under Section 2 .....

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question of examining the merits of the matter would not arise and it is a superseded exercise. - However, considering the legal position that there is no power to condone the delay in filing an application under Section 10(23C) of the Act, this Court is not inclined to exercise its extraordinary jurisdiction to condone the delay. However, this Court is inclined to give appropriate direction to the respondent to consider the petitioner's application as an application for the subsequent asse .....

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the writ petition is partly allowed and the finding rendered by the respondent that the petitioner's application cannot be considered as the same is time barred is affirmed and the finding with regard to objectives of the Society by respondent holding that the Society cannot be said to be solely for education purpose is set aside. - W. P. No. 4969 of 2014 - Dated:- 28-7-2016 - T. S. Sivagnanam, J. For the Petitioner : Mr.R.Venkata Narayanan, for M/s.Subbaraya Aiyar, Padmanabhan and Ramamani For .....

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n Higher Secondary School . The petitioner is registered under Section 12A(a) of the Income Tax Act (hereinafter the Act ), vide proceedings dated 30.07.1990. 3. In the assessment year 2012-2013, the petitioner filed an application in Form No.56D on 22.11.2012 seeking exemption under Section 10(23C)(vi) of the Act. The respondent issued a show cause notice dated 21.10.2013 calling upon the petitioner to show cause as to why their application should not be rejected on two grounds; (a) it is not f .....

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ioner's application on the ground that it is filed beyond the time prescribed under the 14th Proviso to Section 10(23C)(vi) of the Act and also on the ground that the petitioner Society does not fulfill the requirements of Section 10(23C)(vi). This order was challenged by the petitioner on the ground that if the respondent had chosen to reject the petitioner's application on the ground of delay, then the respondent could not have proceeded to consider the merits of the matter. On the mer .....

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Bench in an appeal filed against the said order in W.A.No.31 of 2015, dated 03.02.2015 (CCI and others v. Shri Anand Rishi Jain Society) 5. Learned counsel for the petitioner placed reliance on the decision of the Hon'ble Division Bench of this Court in the case of Centre for Individual and Corporate Action (CICA) v. Assistant Commissioner of Income Tax (T.C.A.No.283 to 288 of 2014, dated 23.09.2014) to buttress the submission that when the respondent chose to reject the application as time .....

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hief Commissioner of Income Tax ([2009] 309 ITR 0013 (Orissa)). It is further submitted that these decisions were taken note of in Shri Anand Rish Jain Society's case (cited supra) and considering the peculiar facts of the said case, the delay therein was condoned as the delay was only one day. However, in the instant case, it is submitted that the order passed by the respondent is perfectly valid both on the ground of refusing to condone the delay and on the ground that the object of the pe .....

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e considered is whether the respondent could have proceeded to decide the merits of the matter when he chose to reject the application on the ground of delay. 8. Identical issue was considered by the Hon'ble Division Bench of this Court in the case of Centre for Individual and Corporate Action (CICA) v. Assistant Commissioner of Income Tax (T.C.A.No.283 to 288 of 2014, dated 23.09.2014) and it was held that the appellate Tribunal (in that case) adopted a procedure which is highly prejudicial .....

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the petitioner Society did not exist solely for educational purpose. In my view, when the authority takes a decision to reject the application on the ground of limitation, it is but proper for the authority to refrain from rendering finding on the merits of the matter. However, in the impugned order, the respondent has proceeded on both grounds, which cannot be approved by this Court. 10. On the question of delay, the contention of the revenue is that there is no power conferred on the responde .....

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(23C)(vi) override the provisions of the Limitation Act. Therefore, it will not be appropriate/permissible to rely on the provisions of any other statute including the Limitation Act for the purpose of considering the matter relating to condonation of delay. 15. The Chief Commissioner of Income-tax being a creature of the statute cannot travel beyond the statutory provisions. Law is well settled that court cannot derive jurisdiction apart from the statute (vide United Commercial Bank v. Their Wo .....

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nt of approval for exemption had been filed by an educational institution belatedly, it should have been considered on the merits. This Court further held that in deciding such questions the Commissioner decides the rights of the parties and, therefore, has to act in a quasi-judicial capacity. He has to decide rights of the parties after a hearing. Any authority exercising such quasi-judicial function should also have the incidental power of condoning delay if there is justifiable ground for suc .....

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4) While passing the order dated May 15, 2008, in W.P.(C) No.4514 of 2008 (Padmashree Krutarth Acharya Institute of Engineering and Technology v. Chief CIT [2009] 309 ITR 13) the ratio of the decisions of the Hon'ble Supreme Court which are applied in this judgment were not brought to the notice of this Court. Hence, the order of this Court dated May 15, 2008, in W.P.(C) No.4514 of 2008 has no application to the present case. It is settled legal proposition that function of the Court is only .....

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rutharth Acharya Institute of Engineering and Technology (supra) which has been distinguished by the Division Bench in the subsequent decision in Roland Educational and Charitable Trust (supra). I am in respectful agreement with the decision in Roland (supra) and the petitioner cannot rest their case on the decision in Padmashree (supra). 12. Coming back to the facts, on receipt of show cause notice dated 21.10.2013, the petitioner submitted their first reply on 29.10.2013, wherein they have poi .....

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ting team sport events and field events for both boys and girls of 28 schools in South Chennai District and the entire staff of the school and the society members had worked hard from July'2012 and completed the sports meet on 04.09.2012. To support such contentions, documents were also enclosed. Therefore, the petitioner stated that due to the maiden responsibility entrusted to their institution by the Education Department, it had taken some time for them to finalise the accounts. Therefore .....

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submission and after affording an opportunity of personal hearing, the respondent pointed out that there is no power for condoning the delay in filing the application in Form No.56D and with regard to alternative prayer, the same was also rejected stating that the assessment year is defined under Section 2(9) to mean the period of 12 months commencing on the 1st April of every year and therefore, the application cannot be treated as application for the assessment year 2013-2014. Ultimately, in .....

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