TMI Blog2005 (10) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... stored - - - - - Dated:- 19-10-2005 - Judge(s) : CYRIAC JOSEPH., RAJESH TANDON. Cyriac Joseph C.J.- The petitioner-Welham Boys' School Society-is a society registered under the Societies Registration Act, 1860, and is running a residential school by name Welham Boys School at 5, Circular Road, Dehradun. The petitioner society, was originally registered on September 14, 1957, as Welham Boys Preparatory School Society vide Registration Certificate No. 227/57-58 issued by the Registrar of Societies, Uttar Pradesh. The name was later changed to Welham Boys' School Society. The petitioner has been regularly filing returns under the Income-tax Act, 1961 (hereinafter referred to as "the Act"). In view of the charitable objects of the petitioner society, it was granted registration under section 12AA of the Act. The registration granted to the petitioner society under section 12AA of the Act has been continuing in force. By virtue of the registration granted under section 12AA of the Act, the petitioner society was entitled to the benefits under sections 11 and 12 of the Act. As per section 11, income derived from property held under trust for charitable or religious purposes was l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary contributions. Therefore, the institution does not appear to be existing for charitable purpose and therefore, goes outside the purview of sections 11, 12, 12A and therefore, does not qualify for continuation of registration under section 12AA. I therefore, propose to withdraw the registration granted to the institution vide order dated April 10, 1974. Your are hereby allowed to show cause as to why registration granted may not be withdrawn. Your reply may please reach this office within 10 days failing which it will be presumed that the institution has no objection to the withdrawal of registration." In reply to annexure 4 show-cause notice, the petitioner submitted annexure 5 reply dated April 10, 2002, and supplementary reply dated April 22, 2002. In the said reply, the petitioner contended that the petitioner society did not lose its character of a non-profit institution merely because the society had some surplus at the end of the year. According to the petitioner, the entire surplus was credited to the general fund which could be utilised only for the purpose of education and could not be diverted anywhere else. The petitioner asserted that the assessee was a charitable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court, the second respondent held that the Welham Boys' School Society was not carrying on any charitable activity and it did not exist for charitable purpose and therefore, it was not entitled to continuation of registration under section 12AA. On that basis, the registration granted to the petitioner was rescinded and withdrawn by the second respondent. Though the second respondent noted that there was no provision in the Act for revocation of registration, he overruled the petitioner's objection that he had no power or jurisdiction to withdraw the registration. While overruling the objection, the second respondent observed that even though there was no provision in the Act conferring power on the Commissioner to withdraw the registration, there was also no prohibition in the Act against such exercise of power by the Commissioner and no other authority had been vested with such power. Relying on section 21 of the General Clauses Act, 1897, the second respondent held that the power to issue registration under section 12AA of the Act included the power to rescind the order granting registration. Aggrieved by annexure 6 order passed by the second respondent, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained in the Act. Being a statutory functionary, he has no power, jurisdiction or discretion to go beyond the provisions of the statute. He cannot assume any power that is not specifically conferred on him by the statute. If there is any lacuna in the statute or if any amendment is required in the statute for preventing the institutions from misusing the benevolent provisions in the statute, only the Legislature can remedy it and the second respondent cannot assume and exercise any power or jurisdiction which has not been conferred on him. Therefore, the petitioner is right in contending that on the basis of the alleged review of the activities of the petitioner society, the second respondent could not have withdrawn the registration under section 12AA of the Act even if it was for ensuring that such institutions did not become a fraud on the law of the land and misuse the benevolent legislation. As rightly pointed out by the petitioner, even if the petitioner society was found to be not carrying on any charitable activity, the second respondent could only deny the benefits of sections 11 and 12 of the Act to the petitioner society at the time of assessment. Faced with the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12AA with effect from a future date shows that the object of inserting sub-section (3) was not clarificatory or explanatory and that it was to confer on the Commissioner a power which did not exist till then. Therefore, the petitioner's contention that prior to October 1, 2004, the Commissioner had no power to withdraw or revoke the registration already granted under section 12AA of the Act has to be upheld. Learned counsel for the respondents then submitted that in view of section 21 of the General Clauses Act, 1897, the Commissioner of Income-tax who issued the order granting registration under section 12AA has the power to rescind or revoke the said order. In our view, this contention also is liable to be rejected. Section 21 of the General Clauses Act, 1897 reads thus: "21. Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws.- Where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction, and conditions (if any), to add to, amend, vary or rescind any notifications, order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Congress (I) v. Institute of Social Welfare reported in [2002] 5 SCC 685 the hon'ble Supreme Court has also pointed out that there are exceptions to the principle that the Election Commission had no power to review the order registering a political party for having violated the provisions of the Constitution or for having committed the breach of undertaking given to the Election Commission at the time of registration. The exceptions mentioned by the hon'ble Supreme Court are: (a) where a political party has obtained registration by practising fraud or forgery; (b) where a registered political party amends its nomenclature of association, rules and regulations abrogating therein conforming to the provisions of section 29A(5) of the Representation of the Peoples Act or intimating the Election Commission that it has ceased to have faith and allegiance to the Constitution of India or to the principles of socialism, secularism and democracy or it would not uphold the sovereignty, unity and integrity of India so as to comply with the provisions of section 29A(5) of the Act; and (c) any like ground where no enquiry is called for on the part of the Commission. Relying on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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