TMI Blog2013 (2) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000 students and has its own land, building, transport facilities and well furnished labs and other educational amenities. Fee is received from the students and considering the surplus over expenses in earlier years, the ld. CIT was of the view that surplus is invested in expansion of school the assessee though is imparting education to the students in lieu of payments received from them on regular basis but it is not spending any of this surplus funds on charitable activities. It was also observed that education per se is not a charitable activity and apparently, the assessee is running the educational institution on purely commercial lines and not conducting any charity itself. The assessee is not providing free education to poor and needy students and even no scholarship is given to provide any financial assistance to the poor and accordingly, the registration application was rejected. 3. The ld. Counsel for the assessee reiterated the submissions made before the ld. Commissioner and filed two paper books containing the information received under the RTI Act to the effect that Commissioner did not grant any opportunity of hearing to the assessee. Copies of the order sheets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief to the poor, education, medical relief etc. Thus, the charitable purpose includes the educational activities. Section 12AA of the IT Act provides the procedure for registration and reads as under : 12AA. (1) The Commissioner, on receipt of an application for registration of a trust or institution made under clause (a)or clause (aa) of sub-section (1) of section 12A, shall- (a) call for such documents or information from the trust or institution as he thinks necessary in order to satisfy himself about the genuineness of activities of the trust or institution and may also make such inquiries as he may deem necessary in this behalf; and (b) after satisfying himself about the objects of the trust or institution and the genuineness of its activities, he- (i) shall pass an order in writing registering the trust or institution; (ii) shall, if he is not so satisfied, pass an order in writing refusing to register the trust or institution, and a copy of such order shall be sent to the applicant : Provided that no order under sub-clause (ii) shall be passed unless the applicant has been given a reasonable opportunity of being heard. (1A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd under clause (vi) of sub-section (5) of section 80G shall be in Form No. 10G and shall be made in triplicate. (2) The application shall be accompanied by the following documents, namely :- (i) Copy of registration granted under section 12A or copy of notification issued under section 10(23) or 10(23C) ; (ii) Notes on activities of institution or fund since its inception or during the last three years, whichever is less ; (iii) Copies of accounts of the institution or fund since its inception or during the last three years, whichever is less. (3) The Commissioner may call for such further documents or information from the institution or fund or cause such inquiries to be made as he may deem necessary in order to satisfy himself about the genuineness of the activities of such institution or fund. (4) Where the Commissioner is satisfied that all the conditions laid down in clauses (i) to (v) of sub-section (5) of section 80G are fulfilled by the institution or fund, he shall record such satisfaction in writing and grant approval to the institution or fund specifying the assessment year or years for which the approval is valid. (5) Where the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths from the date on which such application was made. The proviso, however, provides that in computing the period of six months, any time taken by the assessee in not complying with the directions of the Commissioner under sub-rule (3), shall be excluded. 5.3. ITAT Amritsar Bench in the case of S. Lakha Singh Bahra Charitable Trust vs. CIT (supra) held CIT has to pass an order either granting the approval or rejecting application within six months from the date on which such application for exemption is made; rejection of application beyond six months makes the assessee legitimately entitled for approval. 5.4 ITAT, Delhi Bench in the case of Maharishi Dayanand Education Society vs. CIT(supra), following its earlier decision, held that during the subsistence of registration u/s. 12A, the renewal of the assessee u/s. 80G could not be denied on the ground that the assessee does not carry out charitable activity. It was, therefore, held that renewal of approval u/s. 80G has wrongly been refused to the assessee. The CIT was directed to grant the same to the assessee. 5.5 ITAT Delhi Bench in the case of Gaur Brahmin Vidya Pracharini Sabha vs. CIT (supra) held As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT remained posted as CIT, Aligarh from 22.07.2010 till date. In between Shri Surendrajit Singh, was holding the charge of CIT, Aligarh during the period 10.07.2010 to 18.07.2010 and no such information was maintained by the department whether he was physically present at the office of CIT, Aligarh. In view of the above facts, the ld. DR was directed to produce the jurisdictional order of the CIT, Aligarh. Despite giving sufficient time, no jurisdictional order of CIT, Aligarh dealing with the above matter was produced. The ld. DR filed copies of several letters which were written by him to the department for doing the needful and jurisdiction order of CIT, Aligarh between 19.01.2010 to 27.07.2010, but nothing was produced in this regard. These facts would clearly prove that the order sheet written by ITO (Tech.) on 08.07.2010 was not approved by Shri A.K. Jain, former CIT or Shri Surendrajit Singh, officiating CIT, Aligarh. Shri Virendra Singh, CIT, Aligarh who passed the order on 27.07.2010 was posted as CIT, Aligarh only on 22.07.2010. Thus, there was no reason to believe that any of the Commissioners, above, have called for any documents or information from the assessee institu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 6. Considering the above discussion, the impugned order dated 27.07.2010 cannot be sustained in law and accordingly, we hold (i). That the CIT, Aligarh has not conducted any enquiry into the matter in order to satisfy himself about the genuineness of the activities of the assessee institution or fund; (ii). That the impugned order is passed by the ld. CIT without giving opportunity of being heard to the assessee and in most mechanical manner, merely relying upon the order sheet dated 08.07.2010 recorded by ITO (Tech.); (iii). That the impugned order is passed beyond the period of 6 months from the date of filing of application and, therefore, provisions of Rule 11AA(6) of the IT Rules have been violated. Nothing could be attributed to the assessee for taking time in not complying with the directions of the ld. CIT because the ld. CIT never issued any direction as per above findings. Therefore, the assessee is entitled for grant of renewal of approval u/s. 80G(5) of the IT Act; (iv). That the reasons given by ITO (Tech.) for refusal to renew the approval u/s. 80G(5)(vi) are not valid in the eyes of law and since the assessee enjoyed registration u/s. 12AA of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see. The assessee in the paper book also filed RTI information received from CIT-II, Agra (PB-3), in which it has been informed that the Commissioner-II, Agra Shri B.P.S. Bisht (who passed the impugned order) was not present in the office at Agra on 17.07.2012, 23.07.2012, 25.07.2012 and 26.07.2012. It was further reported that CIT-II Agra Shri B.P.S. Bisht has not given any personal hearing to the assessee. The above facts would clearly reveal that the Commissioner did not grant any hearing to the assessee and merely agreed with the draft order of ITO (Tech.) which is against the provision of law and the action of the Commissioner was wholly unjustified. On the other hand, the assessee has produced specific evidences and material on record to prove that the assessee is engaged in genuine educational activities and the report from concerned AO through Additional Commissioner was called for and they have recommended for grant of registration to the assessee. There was no material before the ld. Commissioner to reject the application of the assessee for registration or holding that the assessee was doing commercial activities. The ld. CIT himself did not conduct any enquiry or procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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