TMI Blog2011 (11) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... ter was then listed before this Court on 12.10.2011 and thereafter on 19.10.2011. On 19.10.2011, a communication dated 17th October, 2011 forwarded by Shri Ajay Goyal, Director (ITAII) to the Chief Commissioner of Income Tax, Nagpur, was produced by Advocate Parchure. Thereafter the matter has been placed before us on 15.11.2011 and 16.11.2011. Accordingly, we have heard parties yesterday and today. 3] Shri Gordey, learned Senior Advocate with Advocate Shri Bhattad for the petitioner, has contended that rejection of renewal/approval of certificate as contemplated by Section 35 (1) (ii) of the Income Tax Act, 1961 in the present matter is basically on three counts. First one is not maintaining separate account books in relation to researc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is without jurisdiction and unsustainable. The alleged approval of the Hon'ble Minister does not show independent application of mind by the Hon'ble Minister to material on record. He further states that when this communication is read in contradistinction with the impugned order dated 17th October 2010, a different position emerges. 4] Shri Parihar, learned Standing Counsel appearing for respondent no.1 and Shri Parchure, learned counsel appearing for respondent no.2 are supporting the impugned order. Shri Parihar has after Shri Gordey finished his arguments on this issue also stated that as consequences which followed are serious, this Court should adjourn the matter to enable him to produce original records before this Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of facts, consideration of claim and material findings upon it continue up to end of paragraph 12. The last paragraph i.e. paragraph 13 then reads as under: The prescribed authority in consideration of the facts mentioned above and the material placed on record has held that Central India Institute of Medical Sciences is NOT a fit case for grant of approval under Section 35(i)(ii). The rejection of your application for approval under Section 35(1)(ii) of the Income Tax Act, 1961, made vide letter dated 27.04.2009 was justified. Now in consideration of the aforesaid facts, Prescribed authority under section 35(1)(ii) of the Income tax Act, 1961, has ordered for rejection of the application seeking renewal/approval for the period 0104 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en dated 22.10.2010, there exists any other order or decision, by which claim of the petition for approval has been rejected. 7] The communication dated 17th October, 2011 has been sent by Mr. Ajay Goyal to respondent no.2 before us. The communication is in the light of amendment effected by the petitioner. In paragraph 1 of this communication issue about competency CBDT as raised in the petition figures. In second paragraph procedure followed by CBDT has been mentioned. As per that procedure it appears that question of approval/rejection of any application under Section 35(1)(ii)/ (iii) is to be decided by the Central Government through Finance Minister to Government of India. The role of CBDT is stated to be only to process such applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oot question. The letter sent by the Director to (ITAII) to respondent no.2 does not specify the date on which the Finance Minister has approved the order dated 22.10.2010. If the order is dated 22/10/2010 whether it was submitted for approval to Hon'ble Minister on the same day or it was approved after 22.10.2010 is again a question. 9] Facts above show that impugned order dated 22.10.2010 is not passed by the Hon'ble Minister. It is order passed by Director and is a decision of Director. Person signing it has not communicated it as an order passed by Minister or even as an order approved by Hon'ble Minister. Its perusal is enough to show that Director (ITAII) has shown it as his own decision. The Division Bench of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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