TMI Blog2021 (4) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... colleges, namely, Roland Institute of Computer and Management Studies, Roland Supriya Junior college, Roland Junior College and Roland Institute of Technology. Coming to assessment years before i.e. AYs 2005-06 and 2007-08 to 2012-12, the assessee has placed on record its corresponding income and expenditure accounts indicating figures; after application of income (assessment year wise, surplus application) - all these assessment years except AY 2011-12 have seen more application than receipts since there is nothing left after considering accumulation, revenue expenditure and development heads in assessee s case. Relevant records indicate that AY 2011-12 s positive figure of ₹ 5,00,504/- is indeed less than the permissible 15% limit of gross receipts of ₹ 8,20,08,082/-; coming to ₹ 12,30,121/-. We thus observe that the assessee has applied and has utilizsed its gross receipts only for educational purposes as per the detailed evidence forming part of the case file. Whether the clinching statutory expression employed in section 10(23C)(vi) existing solely for educational purposes has to be read in isolation or in complete sense i.e. any university or colleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is no escapement of income, as the assessee followed the provision for accumulation of income u/s 11 of the Act. We also observe that once registration granted by the revenue department to the assessee u/s 12AA on 15/01/2003 BY CIT, Bhubneswar and it has not been withdrawn, then if the assessee is complying the other provisions of the Act, it cannot be held as there is any escapement of income . In this case, merely not granting the approval u/s 10(23C)(vi) does not amount to escapement of income as per the decision cited by the assessee as quoted supra. Respectfully following the above judgement we therefore, hold that the reopening merely on the basis of that the assessee has not got approval u/s 10(23C)(vi) is not justified. Another contention of the assessee is that there is no new material brought on record by the AO to reopen the assessment. He also contended that the objections were filed before the AO for the reasons recorded for reopening of the case which have not been disposed off, which is against the ratio laid down by the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd., Vs. ITO . [ 2002 (11) TMI 7 - SUPREME COURT] - After careful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012-13 -do-, dated 06/09/2013 -do- 08 264/CTK/2019 2005-06 -do-, dated 24/03/2010 -do- 09 265/CTK/2019 2007-08 -do-, dated 06/09/2013 -do- 10 266/CTK/2019 2008-09 -do-, dated 27/03/2009 -do- 11 267/CTK/2019 2009-10 -do-, dated 29/05/2009 -do- 12 268/CTK/2019 2010-11 -do-, dated 26/09/2011 -do- 13 269/CTK/2019 2011-12 -do-, dated 25/09/2012 -do- 14 270/CTK/2019 2012-13 -do-, dated 06/09/2013 -do- 15 469/CTK/2019 2005-06 CIT(A) 1, Bhubaneswar, dated 23/10/2019, IT Appeal No. 0424/13-14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act, 1961 (for short the Act ) on the grounds inter alia that :- 1. The order dated 24.09.2015 passed by the Ld.Principal Chief Commissioner of Income-tax denying exemption to the appellant u/s 10(23C)(vi) of the Income-tax Act, 1961 for F.Y. 2013-14 is bad in law and on facts. 2. That the reasons given for denying exemption u/s 10(23C)(vi) of the Act are contrary to law and facts since the appellant being a trust exists solely for educational purposes and not for the purpose of profit. 3. The Ld. Principal Chief Commissioner of Income-tax was not justified in denying exemption on the ground that the amended Trust Deed executed on 26.03.2012 deleting certain objects alleged to be non-educational, was not valid. 4. Assuming without admitting that the amended Trust Deed dated 26.03.2012 was not valid, the Ld. Principal Chief Commissioner of Income-tax was not justified in denying exemption as the alleged non-educational objects were not implemented or acted upon. 5. That the Ld. Principal Chief Commissioner of Income-tax was not justified in ignoring the clarification issued by the CBDT in Circular No.14/2015 dated 17.08.2015 and in denying the exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 19-11-1997, the assessee Trust has power and authority to undertake non-educational activities which could possibly dilute the exclusive pursuit of educational purpose. Pr. CCIT further proceeded to conclude that since the assessee Trust is carrying out its activities since 1997 covering a period of more than 20 years, its mere existence as an educational institution would not be enough to preclude the prescribed authority from looking into the other aspects. So, Pr.CCIT held that the assessee Trust does not qualify for approval u/s. 10(23C)(vi) of the Act and thereby rejected the application without going into the merits of the activities and maintenance of the accounts. 5. Feeling aggrieved with the impugned order passed by Ld.Pr.CCIT, the assessee has come up before the Tribunal by filing the present appeal. 6. We have heard the Ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case. 7. Undisputedly, earlier application moved by the assessee Trust for grant of approval u/s 10(23C)(vi) of the Act for FY 2009-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribes that income of any university or other educational institutions, existing solely for educational purposes and not for purposes of profit, shall be exempt from tax if such entities are approved by the prescribed authorities. Such approval is not required in cases of university or educational institutions wholly or substantially financed by the Government [sub-clause (iiiab)] or if their aggregate annual receipts do not exceed ₹ 1 crore [sub-clause (iiiad) r.w. rule 2BC). Thus, while granting approval to entities covered under subclause (vi), the prescribed authority has to ensure that the applicant institution must exist solely for educational purposes and not for purposes of profit . There are several Provisos to clause (23C) of section 10 and prescribe, inter alia, various monitoring conditions subject to fulfillment of which only the exemption can be availed. These monitoring conditions include mode and manner of application of funds, maintenance and audit of books of accounts in certain situations etc. Some other Provisos prescribe the manner of making application u/s 10(23C)(vi) and the circumstances when an approval granted earlier can be withdrawn. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Ratio of the judgment in case of American Hotel and Lodging Association Educational Institute (supra) is the threshold precondition to accord approval u/s.10(23C)(vi) of the Act is the actual existence of educational institution as section 10(23C)(vi) of the Act seeks to exempt income of institutions with laudable objects and activities, such as, universities, hospitals, etc. and stipulation of monitoring conditions as different from compliance with these conditions. Compliance or non-compliance can be gauged at the assessment stage. So, in other words, the actual existence of educational institutions is the precondition and thereafter the applicant can approach the prescribed authorities for approval in terms of section 10(23C)(vi) of the Act by making application in the prescribed form. 12. Even otherwise, as per para 1.3 of the CBDT Circular (supra), the prescribed authority is eligible to grant approval u/s.10(23C)(vi) of the Act subject to such terms and conditions as deemed necessary including those falling with the framework of various proviso to said clause of section 10, which can be gauged while monitoring the case and in case of any breach thereof, the appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith a view to promoting the objects of the trust and to discuss and negotiate with the Government Department, public and other bodies, corporations, persons scheme and other work and matters within the framework of the objects of the Trust and to conform to any proper condition upon which such grants and other payments be made. (12) To take over, acquire, manage, control, organize or maintain or to assist in establishing, promoting, managing, organizing or maintaining any branch of the Trust and to promote or carryon with affiliation or amalgamation of such other Trust with this Trust. 14. Assessee Trust has established institutions / colleges to provide various courses, namely, BCA, +2 Science +2 Commerce, B.Tech MCA and +2 Science +2 Commerce in the following educational institutions / colleges :- (i) Roland Institute of Computer and Management Studies providing Bachelor Degree in Computer Education-BCA Course (set up in 1998). (ii) Roland Supriya Junior College (set up in 1999). (iii) Roland Junior College (set up in 1999) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her educational institution for getting approval u/s. 10(23C)(vi) of the Act is that the institution is existing solely for educational purposes and not for purposes of profit. So far as , instant case is concerned, when by way of amendment of the original Trust Deed dated 19-11-1997 vide registered amended Trust Deed dated 26-03-2012, the assessee Trust has come up with its sole objective i.e. to carry out educational activities for educational purposes, Pr.CCIT travelled beyond his power by examining the validity of Trust Deed which came into existence on 26-03-2012. 19. Furthermore, when we examine audited annual accounts for FY 2013-14 and FY 2012-13 available at pages 94 to 162 of the paper book, in the light of the statement of income expenditure account of the assessee for FY 2012-13 available at page 97 of the paper book and statement of income expenditure account of the assessee for FY 2013-14 available at page 133 of the paper book, it is proved that the assessee Trust s expenditure was more than its income and as such, it is an educational institution existing solely for educational purpose and not for purposes of profit. 20. Moreover, vide order dated 15-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in case, in the original trust deed, no real intention of the settler is visible to create a charitable trust on account of certain sub-clauses of the object, it would not be open to the Income-tax authority to refuse to look at such rectified instrument of the trust on the ground that the trustee of the trust should ignore the said rectified objects and should stick to the instrument as it existed prior to its rectification. The income-tax authority has to take the instrument as it exists in its actual amended form when its pressed in service for framing the assessment concerning the relevant assessment year in which such rectified instrument holds the field. 25. Ratio of the judgment in CIT vs. Kamla Town Trust (supra) is when the powers had been given to the trustee by the settler as, in the instant case, it can be amended without approaching the civil court provided all the conditions laid down by the settler are fulfilled. So, the ratio of the judgment is applicable to the facts and circumstances of the case. 26. We are of the considered view that Pr.CCIT by ignoring the basic law as enunciated in American Hotel and Lodging Association Educational Institute (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried out in accordance with all or any of the conditions subject to which approval is given, such approval and exemption must forthwith be withdrawn. 29. In the decision rendered by Hon ble Allahabad High Court in case cited as Allahabad Young Men s Christian Association vs. CCIT Ors. (2015) 371 ITR 23 (All), the Hon ble Court while dealing with identical issue also held the same in favour of the assessee by determining the following findings :- Held, allowing the petition without entering into the merits, (i) that the assessee was in existence since the year 1910 and on the land, which was taken for 99 years lease, it had constructed a building for a school. It was prima facie engaged for educational activities . So, it was incorrect to say that it was not providing education. Undoubtedly, the assessee was an educational institution, which was providing education. No other activity was proved by the Department. Moreover, the Chief Commissioner had already granted exemption under section 12A / 12AA with effect from April 1, 2007. Merely because there were other objects of the society, that did not mean that the educational institution did not ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpliance of the tribunal s order. 6. Learned CIT-DR at this stage invited our attention to the CCIT s impugned order(s) under challenge denying these assessees section 10(23C)(vi) approval in AY 2005-06 vide following identical detailed reasoning as follows: The appellant i.e. Roland Educational Charitable Trust runs four educational institutions viz. (i) Roland Institute of Computer Management Studies, (ii) Supriya Junior College, (iii) Roland Institute of Technology and (iv) Roland Junior College to impart education in Computer Management Studies, General Education and Engineering Pharmacy. application for grant of exemption 10(23C)(vi) of the I.T. Act, 1961 in form No.56D was filed in the Office of the Chief Commissioner of Income Tax, Bhubaneswar on 24.03.2004. The case was fixed for hearing on 18.02.2010. Dr. J.Surya Rao, Permanent Trustee of the Trust along with Sri S. R. Wadhwa, Advocate appeared and the case was discussed. The details and documents submitted by the assessee with the application and filed at the time of hearing were persued. The Trust was created on 19.11.1997 and registered under the Indian Trust Act vide registration No.409 of 1997. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... students and citizens of the work of life and it does not include non-formal type of education. In this context, it will be relevant to point out that in its instruction dated 29.10.1977, the Central Board of Direct Taxes, had also clarified that if the Trust has the option to apply its surplus for non-educational purposes, it cannot be said to exist solely for educational purposes and such institutions will not qualify for exemption u/s.10(22) of the Income Tax Act, 1961. Since the provisions of section 10(23C)(vi) arc similar, the same view will hold good in the context of the aforesaid provisions. The interpretations contained in the Board's instruction find support from the decision of Reliance Motor Co. Pvt. Ltd. reported in (213 ITR 733) (Madras). In the aforesaid case, the Hon'ble Court had categorically held that it is not the actual user but the likelihood of the user and the capacity of the Trust to undertake a particular activity, which is relevant. Though this case law was decided in the context of grant of exemption u/s.80G, but the interpretations will hold good in the context of the provisions of Section 10(23C)(vi) also. In the present case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of educational/other object clauses, it is not eligible for the impugned approval. Mr. Goutham sought to support the CCIT s findings, inter-alia, that the assessee trust object Nos. 8 to 12, giving unbriddled powers to its office bearers, namely J. Surya Rao (supra) as well which disentitle it from blocking section 10(23C)(vi) approval relief. 7. We have given our thoughtful consideration to rival pleadings against and in support of the CCIT s order(s) denying section 10(23C)(vi) approval benefit to the assessee on the above said twin reasoning, inter-alia, that the impugned objects do not fall solely in the category of educational purposes and its trustees enjoyed unchecked extraordinary powers. We find no merit in Revenue s foregoing stand for the detailed reasoning in succeeding paragraphs. 7.1 There can hardly be any dispute that section 10(23C)(vi) of the Act entitles the assessee to claim exemption relief when it receives any income on behalf of any university or other educational institution existing solely for educational than profitable purposes. We wish to observe here that Revenue s emphasis is on assessee s original clauses in its trust deed dated 19/11/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d conditions as the Trustees in their discretion may think fit. 15. To make, vary, alter or modify schemes, rules and regulations for carrying out the objects of the Trust and for the management of the affairs thereof and/or running any institution in furtherance of the objects of the Trust and otherwise for giving effect to the objects of the Trust. 16. To apply to the Government, Publis Bodies, Urban, Local, Municipal, District and other bodies, Corporations etc. for and accept grant of money and of aid, donation gifts, subscriptions and other assistance with a view to promoting the objects of the Trust and to discuss and negotiate with the Government Department, Public and other bodies, corporations, persons scheme and other work and matters within the frame work of the objects of the Trust and to confirm to any proper condition upon which such grants and other payments may be made. 17. To take over, acquire manage, control, organise or maintain or to assist in establishing, promoting, managing, organising or maintaining any branch of the Trust or any other Trust or its branch with objects similar to those of this Trust and to promote or carry on with affiliation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 144, 168, 193, 224, 253 and 284 reveal that the nature of the said fixed assets is nothing but computers, furniture, lab equipment, specialized laboratory for carrying out educational activities only. An institution wise chart also forms part of the case files to this effect. We sought to know from the Revenue side during the course of hearing as to whether there is any material suggesting that this taxpayer has ever undertaken other than educational activity till date. The reply coming from the departmental side is in negative only. It emphasizes that the assessee trust deed s object clauses have seen amendment much later (supra) and therefore, it would not be held that the said amendment would apply from retrospective effect. Mr. Goutham has placed reliance on various case law quoted in CCIT s order as well (supra). 7.4 The issue therefore arises for our adjudication in view of the foregoing pleadings is as to whether the clinching statutory expression employed in section 10(23C)(vi) existing solely for educational purposes has to be read in isolation or in complete sense i.e. any university or college existing solely for educational purposes and not for purposes of profi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unning its educational institutions in the pursuit of deriving profit only as evident from the alleged excess fee(s) collected from the students in the nature of library fees, certificates fees, duplicate Identity card fees and attendance fines etc. We see no substance forthcoming in Revenue s foregoing argument. We notice that assessees educational institutions are duly affiliated under the corresponding regulators like education board and council of technical education etc. getting renewals from them after due disclosure of all the fee(s) collected from its students. Furthermore, none of the above items have been found to be in the nature of capitation fees as is the Revenue s stand going by the case law Mohini Jain Vs. State of Karnataka and P.A. Inamdar Vs. State of Maharashtra, Civil Appeal No. 5041 of 2005 (supra). We thus reverse the CCIT s findings as well as Revenue s argument on the latter account as well. 7.8 Lastly comes the Revenue s concluding argument that the CCIT has rightly held that assessee s trustees had unbridled powers and they had also received payments from the former. We make it clear that there is no such condition in section 10(23C)(vi) of the Act qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Coming to the remaining three appeals ITA nos. 469-471/CTK/2019, the assessee M/s Roland Educational Charitable Trust has raised the following grounds of appeal in AY 2005-06, which are common in AYs 2006-07 2007-08 as well:- 1. That, the Ld. Dy Commissioner erred in initiating proceedings u/s 148 and completing the assessment u/s 143(3)/147 and the Ld. CTT(A)-l, Bhubaneswar confirming the same is in clear violation of the settled law laid down by the Hon'ble Supreme court in case of GKN Driveshaft (India) Ltd. Vs. ITO [2003] 252 ITR 19 (SC). 2. That, the Ld. Dy Commissioner erred in law and facts by passing the assessment order on 26.03.2013 and the Ld. CTT(A)-l, Bhubaneswar confirming the same is in clear violation of the order dated 15.12.2009 by the Hon'ble High Court of Odisha and hence, the assessment made on 26.03.2013 is barred by limitation. 3. That, the Ld. Dy Commissioner and the Ld. CIT(A) - I Bhubaneswar confirming the same failed to appreciate that the fact I that the Statute u/s 153 of the IT Act categorically states that 'immediately after period of stay order if the time available is less than sixty days then such remaining period sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause 9: To develop disciplinary conduct and a hit to observe the rule of law and self resistant. Clause 11: To contribute towards human resource development in the country. Clause 12: To establish, maintain or grant aid to homes for aged, orphanages or other establishments of the relief and help to the poor, needy and destitute people, orphans, widows and aged persons. 7. Such objects are clearly not connected with education. Section 10(23C)(vi) of the I.T. Act, 1961 stipulates that in order to qualify for approval of exemption, the following basic conditions should be satisfied: (i) It has to be a University or other educational Institution. (ii) It has to exist solely for educational purposes. (iii) It should not be for purposes of profit. 7.1 One of the basic pre-requisites for considering claim of exemption u/s.10(23C)(vi) is that the educational institution must exist 'solely' for educational purposes. The expression 'solely' came up for consideration before the Rajasthan High Court in the case of Maharaja Sawai Mansinghji Museum Trust (169 ITR 379). The Hon'ble Court had held that the expression 'solely' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t exists 'solely' for educational purposes. There are also various other clauses in the Trust Deed which give sweeping powers to the Permanent Trustees to have absolute control over the management of the Trust and utilize the property of the Trust for their own advantage. Some of such clauses 2:C reproduced below: Clause 18: The funds of the Trust shall be kept in a Scheduled Bank and shall be operated by either of the permanent trustees. Clause 20: The Permanent Trustees may appoint THREE more Trustees of their choice 0 function as co-trustees and their tenure of office shall be not more than two 'ears from the date of appointment unless they are re-nominated for further period Clause 21: The temporary Co-managing Trustee will exercise their duties as co-trustees subject to the control and supervision of the permanent trustees and in case of any mal-feasance or mis-feasance or negligence in discharging their duties in the management of the educational institution The said temporary managing co-trustees may be dismissed by The Permanent Trustees prior to the expiry of the stipulated period of two years. Clause 23: That the Permanent Trustees s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lfare. 10. Further as discussed in Para 1 the assessee-trust is running four educational institutions namely (i) Roland Supriya Public School; (ii) Roland Institute of Computer Management Studies; (iii) Roland Supriya Junior College and (iv) Roland Institute of Technology. During the course of assessment proceedings, it is found that the assessee-trust has collected development fees from the students of +2Commerce and Science. As per the fee structure, the development fees charged per student is as under: Class 1st Year (Fee per student) 2nd Year (Fee per student) +2 Commerce ₹ 2,000/- ₹ 1,900/- +2 Science ₹ 2,000/- ₹ 1,900/- From the above, it can be seen that the assessee-trust has collected the development fees over and above the normal fees collectible from the students which is not in accordance with the aims and objectives of the trust as it does not come within the meaning of 'charitable purposes' as per the provisions of Section 2(15) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (via) for the assessment year 2006-07 was rejected by the CCIT, Orissa vide order dated, 30.05.2008 as stated in the reasons recorded' is factually incorrect as the order of rejection by CCIT dated 30.05.2008 is pertaining to Assessment Year 2007-08 and not Assessment Year 2006-07. The same shall also be clearly evident from para 2 of the respective Assessment Orders for the A.Ys. 2005-06, 2006-07 and 2007-08. Further from the 'reasons recorded' reproduced, it is clear that the appellant's respective assessments for the captioned A.Y.s have been reopened on the alleged premise that in the absence of approval uls 10(23C)(vi) of the LT. Act, 1961 to the appellant for the A.Y. 2007-08 (incorrectly mentioned in the reasons recorded as A.Y. 200607) and also in earlier A.Y.s., the appellant's income over expenditure in all the captioned A.Y.s have not been applied or accumulated by it for application, wholly and exclusively to the objects for which it is established. In other words, the Ld. AO has impliedly alleged that in the absence of approval u/s 10(23C)(vi) of the I.T. Act, 1961 the appellant's income over expenditure to the extent of ₹ 26, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 11 of the I.T. Act, 1961, it is an alternate relief available to the appellant in the absence of exemption U/S 10(23C)(vi) of the I.T. Act, 1961 which the AO and the CIT(A) have ignored in considering. Therefore even if exemption U/S 10(23C)(vi) of the I. T. Act, 1961 is not available to the appellant it would not make a difference to its income being exempt U/S 11 of the L T. Act, 1961, if the conditions under this section are satisfied. Reliance in this regard is placed on the following judicial pronouncements: The Hon'ble Supreme Court of lndia in the case of CIT vs. Bar Council of Maharashtra, [1981]130 ITR 28 (SC). The Hon'ble Punjab Haryana High Court in the case of CIT vs, Mahasabha Gurukul Vidyapeeth Haryana, [2010] 326 ITR 25 (P R). Having submitted the above, the appellant would like to reproduce section 11(1)(a) of the I.T. Act, 1961: [Income from property held for charitable or religious purposes. 11. (1) Subject to the provisions of section 60 to 63, the following income shall not be included in the total income of the previous year of the person in receipt of the income- (1)(a) income derived from property held under trust wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - F Taxable income (D-E) (1,59,34,478) (1,84,63,954) (79,41,522) From the above details it can be clearly seen that during the captioned AY.s the appellant has applied its gross receipts entirely for its charitable objects in India. In fact the appellant has made excess expenditure over income. Thus the appellant has made application of its gross receipts more than statutorily required as per section 11(1)(a) of the LT. Act, 1961 leaving no portion of it which could be accumulated as statutorily permitted, let alone giving rise to any surplus or 'income over expenditure' which could have escaped assessment U/S 147 ofthe LT. Act, 1961 as alleged by the Ld. AO and confirmed by the Ld. CTT(A). Hence the appellant's income during the A.V.s. 2005-06, 2006-07 2007-08 is exempt u/s 11 of the LT. Act, 1961. Escapement of income from chargeability to tax being the jurisdictional requirement for invoking section 147 of the LT. Act, 1961, the same being absent in the present case for the A.V.s. 2005-06, 2006-07 and 2007-08. the impugned Assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e u/s 148 was issued on 25.02.2009. Therefore, the assessment made on 30.03.2013 is clearly barred by limitation and hence, deserves to be annulled. As per the direction of Hon ble High Court, the order should be passed within two months preferably, which the AO has not done. 13.2 On the issue of illegality at notice u/s 148, the ld. counsel submitted that the Ld. AO has stated that there is nothing found on the face of the record as well as order sheet regarding passing of any speaking order in response to such objections raised by the assessee with regard to reasons recorded for reopening at assessment u/s 147. The ld. counsel stated that in the absence of any tangible material regarding the escapement of income, the notice issued u/s 148 is bad in law and consequently, the assessment order made u/s .147/143 is also bad in law. 14. On the other hand, the ld. DR relied on the orders of revenue authorities. The ld. CIT-DR submitted that the order has been passed by the ld. AO within the stipulated time. In this regard, he referred to the provisions of section 153 of the IT Act for time limit for passing the order. He further submitted that there is no proof for filing the obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgement we therefore, hold that the reopening merely on the basis of that the assessee has not got approval u/s 10(23C)(vi) is not justified. Another contention of the assessee is that there is no new material brought on record by the AO to reopen the assessment. He also contended that the objections were filed before the AO for the reasons recorded for reopening of the case which have not been disposed off, which is against the ratio laid down by the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd., Vs. ITO [259 ITR 19] (SC). After careful consideration of the submissions from both the sides, we are of the view that the AO has not followed direction of the Hon ble Jurisdictional High Court for passing the order within the stipulated time. In this regard, we find substance in the submission of the ld. AR that the orders passed by the AO is time barred. Further, we also note that in the remand proceedings the AO has categorically stated as under in regard to not disposing off the objections raised by the assessees , which read as under: II) AO has not passed any order in respect of objections filed by the appellant against the reasons recorded for reopeni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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