M/s CRM Jat Post Graduate College, Hisar V. JCIT (OSD), (E), C-1, Chandigarh

CO 18/CHANDI/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6700 (ITAT-CHANDIGARH)
• Duration Of Justice: 23 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 08-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VEENA JOSHI
• Assessee Lawyers: KULDEEP KHERA
• Keywords: Opportunity of being heard
• Section: 80G; 12A; 12AA; 12; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # , $ % & ' ( , )* # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NO. 237/CHD/2019 / ASSESSMENT YEAR : 2013-14 JT. COMMISSIONER OF INCOME TAX(OSD) (EXEMPTIONS), CIRCLE-2, CHANDIGARH. VS M/S CRM JAT POST GRADUATE COLLEGE, C/O THE PRINCIPAL,CRM JAT POST GRADUATE COLLEGE, NEAR OLD COURT CHOWK, HISAR. ./ PAN / TAN NO. : AAATC6289R / APPELLANT / RESPONDENT & C.O. 17/CHD/2019 IN ./ ITA NO. 237/CHD/2019 / ASSESSMENT YEAR : 2013-14 M/S CRM JAT POST GRADUATE COLLEGE, C/O THE PRINCIPAL, CRM JAT POST GRADUATE COLLEGE, NEAR OLD COURT CHOWK, HISAR. VS JT. COMMISSIONER OF INCOME TAX(OSD) (EXEMPTIONS),CIRCLE-2, CHANDIGARH. ./ PAN /TAN NO. : AAATC6289R / APPELLANT / RESPONDENT & ./ ITA NO. 238/CHD/2019 / ASSESSMENT YEAR : 2014-15 JT. COMMISSIONER OF INCOME TAX(OSD) (EXEMPTIONS), CIRCLE-2, CHANDIGARH. VS M/S CRM JAT POST GRADUATE COLLEGE, C/O THE PRINCIPAL,CRM JAT POST GRADUATE COLLEGE, NEAR OLD COURT CHOWK, HISAR. ./ PAN / TAN NO. : AAATC6289R / APPELLANT / RESPONDENT C.O. 18/CHD/2019 IN ./ ITA NO. 238/CHD/2019 / ASSESSMENT YEAR : 2014-15 M/S CRM JAT POST GRADUATE COLLEGE, C/O THE PRINCIPAL, CRM JAT POST GRADUATE COLLEGE, NEAR OLD COURT CHOWK, HISAR. VS JT. COMMISSIONER OF INCOME TAX(OSD) (EXEMPTIONS),CIRCLE-2, CHANDIGARH. ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 2 OF 24 ./ PAN /TAN NO. : AAATC6289R / APPELLANT / RESPONDENT / REVENUE BY : SMT. VEENA JOSHI, CIT-DR !' / ASSESSEE BY : SHRI KULDEEP KHERA, CA # $ '%/ DATE OF HEARING : 10.07.2019 &'() '%/ D ATE OF PRONOUNCEMENT : 31.07.2019 )-/ ORDER PER DIVA SINGH BY THESE TWO APPEALS FILED BY THE REVENUE CORRECTN ESS OF THE SEPARATE ORDERS DATED 17.12.2018 OF CIT(A)-5, L UDHIANA PERTAINING TO 2013-14 AND 2014-15 ASSESSMENT YEAR H AS BEEN ASSAILED ON IDENTICAL GROUNDS. THE TWO CROSS OBJEC TIONS FILED BY THE ASSESSEE ARE STATED TO BE SUPPORTIVE OF THE ORDERS PASSED WHEREIN AS PER THE SUBMISSIONS OF THE LD. AR , NO NEW RELIEF IS BEING SOUGHT. 2. IT WAS A COMMON STAND OF THE PARTIES BEFORE THE BENCH THAT SINCE THE GROUNDS RAISED IN THE TWO APPEALS AR E IDENTICAL ON SAME SET OF FACTS, CIRCUMSTANCES AND POSITION OF LAW, ACCORDINGLY, THE ARGUMENTS ADVANCED IN ITA 237/CHD/ 2019 WOULD FULLY APPLY TO THE ISSUES ADDRESSED IN ITA 238/CHD/2019 ALSO. 3. IN VIEW OF THE AFORESAID COMMON STATED STAND OF THE PARTIES, THE GROUNDS RAISED IN ITA 237/CHD/2019 ARE REPRODUCED HEREUNDER : ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 3 OF 24 I. THAT ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE ID. CIT (APPEALS) HAS ERRED IN LAW IN DELETING THE ADDITION AMOUNTING TO RS. 1, 16,11,419/-/ (RS. 1,91,84,322 IN A.Y. 2014-15 A.Y.) DESPITE THE FACT THAT THE ASSESS EE FAILED TO PRODUCE 12A REGISTRATION CERTIFICATE BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE CIT(APPEALS). II) THAT ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE ID. CIT (APPEALS) HAS ERRED IN LAW IN ACCEPTING THE STANCE OF THE ASSESSEE THAT ASSESSEE'S CASE WAS COVERED BY THE PROVISIONS OF SECTION 10(23C)(IIIAB) OF THE ACT EVE N WHEN THE ASSESSEE HAS BEEN CLAIMING EXEMPTION U/S 11 & 12 OF THE ACT CONTINUOU SLY AND THE ASSESSEE HAS CHANGED ITS STANCE WHEN IT HAS NOT BEEN ABLE TO FUR NISH THE 12A REGISTRATION CERTIFICATE BEFORE THE AO AND THE APPELLATE AUTHORI TY. III) THAT THE APPELLANT CRAVES TO LEAVE, ADD OR AMEND ANY GROUNDS OF APPEAL ON OR BEFORE THE APPEAL IS HEARD OR DISPOSED OF. 4. THE LD. CIT-DR RELYING UPON THE GROUNDS RAISED S UBMITTED THAT IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE DID NOT PRODUCE THE COPY OF THE 12AA CERTIFICATE AND MERELY RELIED UPON THE 80G CERTIFICATE AVAILABLE WITH IT THE ORDE R PASSED IS ASSAILED. IT WAS HER SUBMISSION THAT CIT(A) ON THE BASIS OF THE 80G CERTIFICATE AVAILABLE WITH THE ASSESSEE PROCEED ED TO INFER THAT REGISTRATION U/S 12AA WOULD BE AVAILABLE. THE SAID CONCLUSION, IT WAS SUBMITTED IS CHALLENGED IN THE P RESENT PROCEEDINGS. 4.1 IT WAS ALSO HER SUBMISSION ADDRESSING GROUND NO . 2 RAISED THAT THE CIT(A) HAS ADJUDICATED UPON THE ALT ERNATE PRAYER OF THE ASSESSEE. THE SAID ISSUE, IT WAS SUB MITTED, HAD NOT BEEN CONSIDERED BY THE AO. ACCORDINGLY, A PRAY ER FOR REMAND BACK TO THE AO WAS MADE AS THE FACTS IT WAS SUBMITTED, NEED TO BE VERIFIED. 5. THE LD. AR ON THE OTHER HAND RELYING UPON THE IM PUGNED ORDER SUBMITTED THAT AS INSTRUCTED BY THE ASSESSEE, HE IS ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 4 OF 24 MAKING A STATEMENT IN THE COURT THAT TILL DATE, 12A REGISTRATION GRANTED TO THE ASSESSEE HAS NOT BEEN R EVOKED BY THE REVENUE. IT WAS ALSO HIS SUBMISSION THAT NO IN FIRMITY ON FACTS OR LAW HAS BEEN POINTED OUT BY THE REVENUE. ACCORDINGLY, IT WAS HIS PRAYER THAT UPHOLDING THE O RDERS, THE DEPARTMENTAL APPEALS MAY BE DISMISSED. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON AN APPRECIATION OF THE RESPECTIVE ARGUMENTS OF THE PARTIES IN THE CONTEXT OF THE GROUNDS RAISED BY THE REVENUE, WE ARE OF THE VIEW T HAT THE ISSUES WHICH FALL FOR OUR CONSIDERATION IN THE PRES ENT PROCEEDINGS CAN BE SUMMED UP IN THE FOLLOWING QUEST IONS : (I) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE THE INFERENCE DRAWN BY THE CIT(A) THAT THE ASSESSEE HAS 12A REGISTRATION CERTIFICATE IS AN INCORRECT CONCLUSION REQUIRED TO BE UPSET ? (II) WHETHER IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE THE ASSESSEE CAN BE SAID TO BE ENTITLED FOR RELIEF U/S 10(23C)(IIIAB) ? 7. ADDRESSING THE FACTS RELATABLE TO THE FIRST ISSU E FRAMED BY US, IT IS NECESSARY TO REFER TO THE ADMITTED FACT T HAT THE ASSESSEE IN THE FACTS OF THE PRESENT CASE, COULD NO T FILE THE CERTIFICATE OF REGISTRATION GRANTED U/S 12A. IT IS SEEN THAT THE ASSESSEE AS PER FACTS ON RECORD CLAIMED THAT 12A CE RTIFICATE OF REGISTRATION HAD BEEN LOST/MISPLACED AND INSTEAD FU RNISHED ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 5 OF 24 COPY OF REGISTRATION CERTIFICATE GRANTED U/S 80G OF THE INCOME TAX ACT. RELYING UPON THE 80G CERTIFICATE DATED 10. 11.2000, THE ASSESSEE REQUESTED THE AO THAT HE MAY DRAW INFE RENCE OF AVAILABILITY OF GRANT OF REGISTRATION U/S 12AA. THE RECORD SHOW THAT THE SAID CLAIM WAS SUPPORTED BY WAY OF AN AFFI DAVIT FILED BEFORE THE AO. 7.1.1 BEING UNSUCCESSFUL BEFORE THE AO, THE ASSESSE E CARRIED THE ISSUE BEFORE THE CIT(A) AND REITERATED THE SUBMISSIONS ADVANCED. REFERENCE AGAIN WAS MADE TO THE FACT THAT REGISTRATION U/S 12A HAD BEEN GRANTED TO THE A SSESSEE VIDE FILE NO. 228(11C)/1982-83/J/DATED 23.04.1982 A ND 80G REGISTRATION HAD BEEN GRANTED VIDE FILE NO. CIT/PANCHKULA/2000-2001/80-G/21/7321 DT. 20.11.2000 . 7.1.2 IT WAS RE-ITERATED THAT ALTHOUGH THE REGISTRA TION CERTIFICATE COULD NOT BE FILED BEFORE THE AO, HOWEV ER THESE DETAILS OF THE REGISTRATION CERTIFICATE NAMELY FILE NUMBER AND DATE ETC. WERE MADE AVAILABLE TO THE SAID AUTHORITY . 7.1.3 THE RECORD SHOWS THAT IT HAD ALSO BEEN ARGUE D THAT EFFORTS WERE MADE TO OBTAIN DUPLICATE CERTIFICATE F ROM THE CONCERNED AUTHORITIES I.E. CIT (E) ROHTAK AND CIT ( E) PANCHKULA. THE DETAILS OF THESE CORRESPONDENCES WI TH THE CONCERNED OFFICE WERE STATED TO HAVE BEEN FURNISHED BEFORE THE AO. THE CIT(A) CONSIDERING THESE ARGUMENTS AND THE ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 6 OF 24 PROVISIONS OF LAW GRANTED RELIEF TO THE ASSESSEE WH ICH IS UNDER CHALLENGE IN THE PRESENT PROCEEDINGS. 7.2 ON A CONSIDERATION OF THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE NOTE ON A REA DING FROM THE ASSESSMENT ORDER THAT THE ASSESSEE IN ITS REPLY DATED 12.03.2016 APART FROM REFERRING TO THE ABOVE MENTIO NED ARGUMENTS AND SUBMISSIONS HAS ALSO MADE A SPECIFIC REFERENCE TO THE FACT THAT REGISTRATION U/S 12A HAD BEEN GRAN TED VIDE FILE NO. 228(LLC)/1982-83/J/DT. 23.04.1982 AND THAT TILL DATE, IT HAS NOT BEEN REVOKED. IT IS ALSO SEEN THAT SUPPO RTING DOCUMENTS DEMONSTRATING THAT CORRESPONDENCES TO OBT AIN DUPLICATE CERTIFICATE OF REGISTRATION U/S 12A ADDRE SSED TO THE CONCERNED OFFICE WERE FURNISHED TO THE AO AND THE R EPLY OF THE CONCERNED AUTHORITIES RECEIVED BY THE ASSESSEE BROU GHT TO THE NOTICE OF THE ASSESSING OFFICER VIDE LETTER DATED 12.03.2016 THOUGH HAS BEEN EXTRACTED IN THE ASSESSMENT ORDER B Y THE ASSESSING OFFICER AT PAGE 2 OF HIS ORDER BUT THE CO NTENTS THEREOF HAVE REMAINED IGNORED. A PERUSAL OF THE SA ME SHOWS THAT APART FROM REFERRING TO THE ABOVE MENTIONED AR GUMENTS AND SUBMISSIONS, THE ASSESSEE MAKES A REFERENCE TO THE REPLY RECEIVED FROM THE CIT, ROHTAKS OFFICE WHEREIN IT I S CLAIMED THAT THE RECORDS HAVE BEEN DESTROYED IN THE FLOODS OF 1995 AND SOME RECORDS HAVE BEEN FORWARDED TO THE CONCERNED C ITS. THUS, IT WAS CLAIMED THAT THE RELEVANT RECORDS WOUL D PROBABLY ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 7 OF 24 BE AVAILABLE WITH THE CIT (EXEMPTIONS), PANCHKULA. THE RELEVANT EXTRACT FROM PAGE 2 OF THE ASSESSMENT ORDER IS REPRODUCED HEREUNDER : ..WE HAVE ALREADY RECEIVED REPLY FROM THE CO MMISSIONER OF INCOME- 'TAX, ROHTAK IN WHICH IT HAS BEEN MENTIONED THAT THE RECORDS WERE DESTROYED IN FLOODS OF/ 1995 AND BALANCE RECORD IF ANY OF THE ASSESSEE HAD BEEN FORWARDED TO CONCERNED COMMISSIONER OF INCOME TAX, SO FROM THE LETTERS IT IS CLEAR THAT THE RECORD IS WITH YOUR GOODSELF OR WITH THE COMMISSIONER OF INCOME TAX(EXEMPTIONS), PANCHKULA. (EMPHASIS SUPPLIED) 7.3 BE THAT AS IT MAY, WHERE ON FACTS THE ASSESSEE EXPRESSES ITS INABILITY TO MAKE AVAILABLE THE ORIGINAL CERTIF ICATE ON THE GROUNDS THAT THE ASSESSEE HAS MISPLACED/LOST IT AND PLEADS INABILITY TO PROCURE THE DUPLICATE CERTIFICATE OF R EGISTRATION U/S 12A FROM THE RECORDS OF THE TAX AUTHORITIES ON ACCOUNT OF THE FACT THAT AS COMMUNICATED TO HIM, THE RECORDS A RE EITHER DESTROYED OR FORWARDED TO THE CONCERNED CITS. AS F AR AS THE ASSESSEE IS CONCERNED, DESPITE ALL EFFORTS FROM THE RECORDS OF THE DEPARTMENT, ALSO THE DOCUMENTS ARE NOT TRACEABL E. APART FROM THESE ARGUMENTS AND SUBMISSION ON FACTS, THE A SSESSEE ADMITTEDLY HAS PROVIDED THE SPECIFIC FILE NUMBER AN D DATE OF REGISTRATION OF 12A CERTIFICATE. IN THESE PECULIAR FACTS WHICH REMAIN UNASSAILED, WE ARE CALLED UPON TO CONSIDER T HE MERITS OF THE CONCLUSION DRAWN IN FAVOUR OF THE ASSESSEE A LLOWED ON A CONSIDERATION OF THE STATUTORY FRAMEWORK PERMISSIBL E UNDER THE ACT. ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 8 OF 24 7.4 EXAMINING THE CLAIM, WE NOTE THAT ADMITTEDLY TH E ASSESSEE HAS MADE AVAILABLE THE CERTIFICATE GRANTED U/S 80G OF THE INCOME TAX ACT. THE GRANT OF CERTIFICATE U/S 80 G NECESSITATES THE FULFILLMENT OF THE CONDITIONS SET OUT IN RULE 11AA OF THE INCOME TAX RULES, 1962. THE SAID RULE ADDRESSES THE REQUIREMENT TO BE MET BY AN INSTITUTION FOR GRA NT OF REGISTRATION U/S 80G. FOR THE SAKE OF COMPLETENESS, THE SAID RULE IS EXTRACTED HEREUNDER FOR READY REFERENCE : RULE 11AA -[ REQUIREMENTS FOR APPROVAL OF AN INSTITUTION OR FUND UNDER SECTION 80G.] '11AA. (I) THE APPLICATION FOR APPROVAL OF ANY INST ITUTION OR FUND UNDER CLAUSE (VI) OF SUBSECTION (5) OF SECTION 80G SHALL BE IN FORM NO. 10G AND SHALL BE MADE IN TRIPLICATE. (2) THE APPLICATION SHALL BE ACCOMPANIED BY THE FOL LOWING DOCUMENTS, NAMELY:- (I) COPY OF REGISTRATION GRANTED UNDER SECTION 12A OR COPY OF NOTIFICATION ISSUED UNDER SECTION 10(23) OR 10(2 3C); (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 DOCU MENTS OR INFORMATION FROM THE INSTITUTION OR FUND OR CAUSE SUCH INQUIR IES TO BE MADE AS HE MAY DEEM NECESSARY IN ORDER TO SATISFY HIMSELF ABOUT THE GEN UINENESS OF THE ACTIVITIES OF SUCH INSTITUTION OR FUND. (4) WHERE THE COMMISSIONER IS SATISFIED THAT ALL THE CO NDITIONS 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 SATISFACT ION 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 COMMISSIONER IS SATISFIED THAT ONE OR MORE OF THE CONDITIONS LAID DOWN IN CLAUSES (I) TO (V) OF SUB-SECTION (5) OF SE CTION 80G ARE NOT FULFILLED, HE SHALL REJECT THE APPLICATION FOR APPROVAL, AFTER RE CORDING THE REASONS FOR SUCH REJECTION IN WRITING : PROVIDED X X X (6) X X X PROVIDED X X X (EMPHASIS SUPPLIED) ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 9 OF 24 7.5 ON A PERUSAL OF THE SAME, IT IS EVIDENT THAT PR ODUCTION OF CERTIFICATE OF REGISTRATION U/S 12A AS FAR AS THE A SSESSEE IN THE FACTS OF THE PRESENT CASE IS CONCERNED WAS A SI NE QUO NON. IT IS NOBODYS CASE THAT 80G CERTIFICATE HAS BEEN G RANTED IN VIEW OF ANY NOTIFICATION U/S 10(23) OR 10(23C). A P ERUSAL OF SUB-RULE (5) OF RULE 11AA MAKES IT CLEAR THAT IF THE COMMISSIONER IS SATISFIED THAT ONE OR MORE OF THE C ONDITIONS LAID DOWN IN CLAUSES (I) TO (V) OF SUB-SECTION (5) OF SECTION 80G ARE NOT FULFILLED, HE SHALL REJECT THE APPLICATION FOR APPROVAL, AFTER RECORDING THE REASONS FOR SUCH REJECTION IN W RITING . IN THE FACTS OF THE PRESENT CASE, ADMITTEDLY 12A CERTI FICATE AS REQUIRED HAS BEEN MADE IN TRIPLICATE IN FORM NO. 10 G. IT IS NO BODYS CASE THAT 80G CERTIFICATE ON RECORD IS FRAUD ULENTLY OBTAINED. ADMITTEDLY CERTIFICATE U/S 80G HAS BEEN PRODUCED ALL ALONG AND IS AN ADMITTED FACT. TO INFER TO THE CONTRARY I.E. 80G CERTIFICATE HAS BEEN GRANTED WITHOUT THE PRODUC TION OF 12A CERTIFICATE, FIRSTLY NO ARGUMENTS OR SUBMISSION HAVE BEEN ADVANCED TO THIS EFFECT BY THE REVENUE. SECONDLY S UCH AN ARGUMENT, IF ADVANCED, WOULD TANTAMOUNT TO A CASE O F TOTAL ADMINISTRATIVE FAILURE. THE FILE NUMBERS AND THE DA TES OF GRANT OF THE RESPECTIVE CERTIFICATES IS AVAILABLE O N RECORD. 80G CERTIFICATE HAS BEEN ISSUED VIDE FILE NO.CIT/PANCHKULA/2000-2001/80-G/21/7321 DT.20.11.2000 AND 12A REGISTRATION VIDE FILE NO. ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 10 OF 24 228(11C)/1982-83/J/DATED 23.04.1982. AS NOTED BY TH E AO HIMSELF, THERE IS AN UNREBUTTED ARGUMENT ON RECORD THAT CERTAIN RECORDS OF CIT (E), ROHTAK WERE DESTROYED I N 1995 FLOODS AND AVAILABLE RECORD HAD BEEN FORWARDED TO C IT (E), PANCHKULA ETC. NO ATTEMPT TO MAKE OUT A CASE LET A LONE ANY ARGUMENT IS AVAILABLE ON RECORD BY THE REVENUE TO S HOW THAT THESE ARGUMENTS ON FACTS REFERRING TO RECORD OF CIT (ROHTAK) HAVING BEEN DESTROYED IN THE FLOODS OF 1995 WAS EIT HER AN INCORRECT FACT OR AN RELEVANT FACT IS AVAILABLE ON RECORD. THE FACT WHICH ALSO REMAINS UNREBUTTED RIGHT FROM THE A SSESSMENT STAGE ON RECORD IS THAT ON THE DATE REGISTRATION U/ S 80G WAS GRANTED, 12A CERTIFICATE WAS AVAILABLE, IT HAS BEEN FILED AND THERE IS NOTHING ON RECORD TO SHOW THAT THE REQUIREMENT O F THE SAID RULE WAS CIRCUMVENTED OR ALLOWED TO BE CIRCUMVENTED . THE ASSERTION BY WAY OF AN ARGUMENT HAS BEEN MADE THAT IT IS STILL IN EXISTENCE AS NO PROCEEDINGS TO REVOKE THE SAME HAVE TAKEN PLACE. THE SAID ARGUMENT BECOMES PLAUSIBLE AND ACCEPTABLE ON ACCOUNT OF THE FOLLOWING STATUTORY PROVISIONS WHICH ARE TRI GGERED IN CASE THE CERTIFICATE OF REGISTRATION IS TO BE REVOK ED. SECTION 12AA GOVERNS THE PROCEDURE FOR REGISTRATION AND REV OCATION OF REGISTRATION ONCE GRANTED. SUB-SECTION (3) OF THE SAID SECTION MANDATES THAT COMMISSIONER OR THE PRINCIPAL COMMISS IONER AS IT MAY, WITHOUT AFFORDING A HEARING TO THE TRUST OR IN STITUTION IN TERMS OF THE SAID PROVISION, THE CERTIFICATE ONCE G RANTED U/S ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 11 OF 24 12A CANNOT BE CANCELLED. THE STATUTE MANDATES THAT A WRITTEN ORDER BE PASSED AND THAT TOO ONLY AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD . NO SUCH WRITTEN ORDER REVOKING THE REGISTRATION HAS BEEN MADE AVAILABLE B Y THE REVENUE IN THE PRESENT PROCEEDINGS. FOR READY REFER ENCE, THE PROVISION UNDER CONSIDERATION IS EXTRACTED HEREUNDE R : [PROCEDURE FOR REGISTRATION] 12AA. (1) . (1A) (2) [(3) WHERE A TRUST OR AN INSTITUTION HAS BEEN GRANT ED REGISTRATION UNDER CLAUSE (B) OF SUB-SECTION (1) [OR HAS OBTAINED REGISTRATION AT ANY TIME UNDER SECTION 12A [AS IT STOOD BEFORE ITS AMENDMENT BY THE FINANCE (NO. 2) A CT, 1996 (33 OF 1996)]] AND SUBSEQUENTLY THE '[PRINCIPAL COMMISSIONER OR] COMMI SSIONER IS SATISFIED THAT THE ACTIVITIES OF SUCH TRUST OR INSTITUTION ARE NOT GEN UINE OR ARE NOT BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECTS OF THE TRUST OR INSTITU TION, AS THE CASE MAY BE, HE SHALL PASS AN ORDER IN WRITING CANCELLING THE REGISTRATIO N OF SUCH TRUST OR INSTITUTION: PROVIDED THAT NO ORDER UNDER THIS SUB-SECTION SHALL BE PASSED UNL ESS SUCH TRUST OR INSTITUTION HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD.] (EMPHASIS SUPPLIED) 7.6 IN THE FACTS OF THE PRESENT CASE, NOTHING HAS B EEN PLACED BY THE REVENUE ON RECORD TO SHOW THAT THE REGISTRAT ION GRANTED TO THE ASSESSEE VIDE ORDER DATED 23.04.1982 HAS BEE N SUBSEQUENTLY CANCELLED OR REVOKED. 7.7 WHEN THE ABOVE FACTS, SUBMISSIONS AND THE CONCL USION OF THE CIT(A) ARE TAKEN INTO CONSIDERATION WE ARE OF T HE VIEW THAT THE INFERENCE DRAWN BY THE CIT(A) THAT THE ASSESSEE HAD BEEN GRANTED REGISTRATION U/S 12AA HAS TO BE UPHELD. AC CORDINGLY, ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 12 OF 24 WE FIND NO GOOD REASON AVAILABLE ON RECORD TO VARY THE CONCLUSION ARRIVED AT. 7.8 ACCORDINGLY, IN VIEW OF THE DETAILED REASONING HEREINABOVE, THE ISSUE POSED IN QUESTION (I) FRAMED BY US IS ANSWERED IN FAVOUR OF THE ASSESSEE. THE DEPARTMENT AL GROUND IN VIEW THEREOF IS DISMISSED. 8. BEFORE ADDRESSING THE SECOND ISSUE FRAMED BY US WHICH ARISES FOR OUR CONSIDERATION IN THE FACTS OF THE PR ESENT CASE, IT IS NECESSARY TO ADDRESS THE DEPARTMENTAL REQUEST FO R REMAND POSED ON THE BASIS OF THE PREMISES THAT THE FACTS R ELATABLE TO THE SAID CLAIMS WERE NEVER CONSIDERED BY THE AO AS NO SUCH CLAIM WAS MADE BEFORE THE AO. 8.1 ON A PERUSAL OF THE RECORD WE FIND THAT THE ASS ESSEE HAD MADE AN ALTERNATE CLAIM SEEKING EXEMPTION U/S 10(23 C)(IIIAB) BEFORE THE ASSESSING OFFICER ARGUING THAT THE ASSES SEE HAD BEEN RECEIVING GOVERNMENT AID FOR THE STATED ACTIVI TY FOR THE LAST SO MANY YEARS. THE ASSESSING OFFICER HAS EXPR ESSLY NOTED THAT THE CLAIM WAS HIGHLIGHTED ON THE BASIS OF THE FOLLOWING FACTUAL POSITION ADDRESSED VIDE LETTER DATED 19.11. 2015. THE ASSESSING OFFICER IN HIS ORDER DATED 28.03.2016 HAS EXTRACTED THE FOLLOWING DETAILS OF RECEIPT OF GOVERNMENT AID BY THE ASSESSEE IN THE ASSESSMENT ORDER : FINANCIAL YEAR AMOUNT 2008-09 RS. 2,43,65,000/- 2009-10 RS. 4,02,31,400/- ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 13 OF 24 2010-11 RS. 5,46,40,700/- 2011-12 RS. 7,29,74,000/- 2012-13 RS. 665,02,000/- 8.2 THE AO GOES ON TO FURTHER RECORD THAT THE ASSESSEE VIDE REPLY DATED 19.11.2015 HAD SUBMITTED THAT AS GRANTS HAVE BEEN RECEIVED FROM THE GOVERNMENT THE CASE OF ASSESSEE H AS FULLY COVERED BY THE PROVISIONS OF SECTION 10(23C)(IIIAB) OF I.T ACT. THE ASSESSEE WAS ASKED THROUGH A SPECIFIC LETTER DA TED 07.02.2016 WHETHER THE 'SUBSTANTIALLY FINANCED BY T HE GOVERNMENT' HAS BEEN CLAIMING IN ANY OF THE RETURN IN THE PROCEEDING FEW YEARS. AS ASSESSEE WAS CLAIMING EXEM PTION U/S 11/12 OF I.T.ACT MERELY DUE TO NON-FURNISHING OF CE RTIFICATE U/S 12A THE ASSESSEE CANNOT CHANGE ITS STANCE AND CLAIM EXEMPTION IN A DIFFERENT SECTION. 8.3 A PERUSAL OF THE ABOVE SHOWS THAT THE AO HAS EX AMINED THE FACTS AND REJECTED THE CLAIM HOLDING THAT THE A SSESSEE CANNOT CHANGE ITS STANCE AND CLAIM EXEMPTION IN A D IFFERENT SECTION AND NOTING THE FACT THAT IN EARLIER YEARS, NO SUCH CLAIM WAS MADE AND IN THE YEAR UNDER CONSIDERATION IT WAS MADE, DUE TO NON-FURNISHING OF CERTIFICATE U/S 12AA. HE FURTHER TOOK NOTE OF THE FACT THAT THE TERM SUBSTANTIALLY FINANCED BY THE GOVERNMENT HAS BEEN DEFINED FROM 01.04.2015 PROSPEC TIVELY THROUGH EXPLANATION BELOW SECTION 10(23C)(IIIAB). CONSIDERING THE PROVISIONS, HE HOLDS THAT, NO BENEFIT OF IT CAN BE CLAIMED RETROSPECTIVELY FOR ANY EARLIER YEAR. IN VIEW OF THIS REASONING, HE RELIES TO HOLD THAT, I AM NOT INCLINED TO GRANT EXEMPTION U/S 12A OR 10(23C)(IIIAB) OF THE I.T.ACT TO THE ASSESSE E. ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 14 OF 24 8.4 THUS, WE SEE THAT THE DEPARTMENTAL ARGUMENTS THAT T HE CLAIM WAS NOT MADE BEFORE THE AO AND THE CIT(A) HAV ING CONSIDERED THE CLAIM AFRESH WARRANTS A REMAND, WE F IND IS NOT BORNE OUT FROM RECORD. THE PRAYER HAS TO BE REJECT ED. 9. ADDRESSING THE SECOND ISSUE FRAMED BY US WHERE W E ARE CALLED UPON TO DECIDE WHETHER THE ASSESSEE EDUCATIO NAL INSTITUTION CAN BE CONSIDERED TO BE ON FACTS SUBSTA NTIALLY FINANCED BY THE GOVERNMENT OF HARYANA AND HENCE THE CASE OF THE ASSESSEE CAN BE SAID TO BE COVERED U/S 10(23C)( IIIAB) OF THE ACT, THE RELEVANT FACTS ON RECORD ARE THAT THE PERC ENTAGE OF GOVERNMENT GRANT IS 60% OF THE TOTAL RECEIPTS. THI S FINDING OF FACT AVAILABLE ON RECORD REMAINS UNREBUTTED. IN THE ABSENCE OF ANY REBUTTAL ON FACTS, WE FIND NO GOOD REASON TO UP SET THE CONCLUSION DRAWN. 9.1 NO DOUBT AS FAR AS THE YEAR UNDER CONSIDERATIO N IS CONCERNED, PERCENTAGE OF RECEIPTS TO BE CONSIDERED AS CROSSING THE STATUTORY THRESHOLD LIMIT BY WAY OF INSERTION O F EXPLANATION BELOW CLAUSE 10(23C) WAS NOT AVAILABLE AS IT WAS INSERTED PROSPECTIVELY AND THE VAGUENESS ATTRIBUTAB LE TO THE WORDS SUBSTANTIALLY FINANCED COULD BE SAID TO HAV E EXISTED. THE FACT THAT THE INSERTION IN THE EXPLANATION AS I NTRODUCED PROSPECTIVELY W.E.F. 01.04.2015 IS NOT IN DISPUTE. HOWEVER, EVEN WHEN THERE WAS A PERCEIVED AMBIGUITY IN THE ST ATUTORY POSITION, IT CAN BE SEEN FROM THE FOLLOWING DISCUSS ION ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 15 OF 24 IN THE ORDER THAT THE LEGAL POSITION STOOD WELL ADD RESSED AS THE COURTS HAD STEPPED IN TO FILL THIS GAP. IT IS PERTI NENT TO NOTE THAT EVEN BEFORE THE INSERTION OF THE EXPLANATION B ELOW CLAUSE 10(23C)(IIIAB) IN THE ABSENCE OF ANY STATUTORY GUID ANCE THEREON, THERE WERE DECISIONS OF DIFFERENT COURTS A ND TRIBUNALS WHERE THE LIMITS OF ABOUT 37% HAVE ALSO BEEN HELD T O BE SUFFICIENT FOR THE SOCIETY TO CLAIM THE BENEFIT OF THE PROVISIONS. REFERENCE MAY BE MADE TO THE DECISION OF THE HON'BL E KARNATAKA HIGH COURT IN THE CASE OF CIT VS INDIAN INSTITUTE OF MANAGEMENT (2011) 196 TAXMAN 276 (KAR). IN THE FACTS OF THE SAID CASE, GOVERNMENT FINANCING OF 37.85% WAS HELD TO BE ENTITLED FOR EXEMPTION U/S 10(23C)(IIIAB). THE COU RT THEREIN FOLLOWED ITS EARLIER DECISION IN NATIONAL EDUCATION SOCIETYS CASE. SIMILARLY IN THE DECISION RENDERED BY THE JU RISDICTIONAL HIGH COURT IN THE CASE OF CIT VS JAT EDUCATION SOCIETY (2016) 383 ITR 355 (P&H) CONSIDERING SUB-CLAUSE (IIIAB) OF CLAUSE (23C) OF SECTION 10, THE COURT HELD AT PAGE 358 PAR A 8 THAT A PLAIN READING OF THE SAID CLAUSE SHOWS THAT ANY UNI VERSITY OR OTHER EDUCATIONAL INSTITUTION EXISTING FOR EDUCATIONAL PURPOSES AND N OT FOR PROFITS AND IS WHOLLY OR SUBSTANTIALLY FINANCED BY THE GOVERNMENT IS ENTITLE D TO CLAIM EXEMPTION FROM INCOME-TAX UNDER THE ACT. IN THE FACTS OF THE SAID CASE, IT IS SEEN THAT EVEN THOUGH THE BENEFIT OF THE LEGISLATIVE INT ENT WAS NOT AVAILABLE TO THE HON'BLE HIGH COURT, THE COURT CONS IDERING THE FACT THAT THE TOTAL RECEIPTS WERE RANGING BETWEEN 4 1% TO 82% ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 16 OF 24 ON INDIVIDUAL INSTITUTION BASIS AND WHEN THE PERCEN TAGE FOR THE SOCIETY WAS CONSIDERED AS A WHOLE, IT WAS FOUND TO BE RANGING BETWEEN 44.52% AND 45.15% FOR THE TWO YEARS BEING C ONSIDERED BY THE JURISDICTIONAL HIGH COURT, THE DEPARTMENTAL APPEAL, ACCORDINGLY WAS DISMISSED HOLDING AS UNDER : IN VIEW OF THE ABOVE, THE TRIBUNAL WAS RIGHT IN HO LDING THAT THE AID GIVEN BY THE GOVERNMENT TO THE ASSESSEE CONSTITUTES SUBSTANTIAL FINANCE BY THE GOVERNMENT WHICH HAD ENTITLED THE AS SESSEE TO CLAIM EXEMPTION UNDER SECTION 10(23C)(IIIAB) OF THE ACT. NO INFIRMITY OR PERVERSITY COULD BE POINTED OUT BY THE LEARNED COUNSEL FOR THE REVENUE IN THE FINDINGS RECORDED BY THE TRI BUNAL. THE SUBSTANTIAL QUESTIONS OF LAW AS CLAIMED BY THE REV ENUE ARE ANSWERED ACCORDINGLY AND CONSEQUENTLY, FINDING NO MERIT IN T HE APPEALS, THE SAME ARE HEREBY DISMISSED. 9.2 HOWEVER, SINCE TODAY WE HAVE THE BENEFIT OF TH E INSERTION OF THE EXPLANATION TO SUB-CLAUSE (IIIAB) AND (IIIAC ) INSERTED BY FINANCE (NO.2) ACT, 2014 W.E.F. 01.04.2015 IT WILL BE APPROPRIATE TO EXTRACT THE RELEVANT PROVISIONS : SECTION 10(23C) ANY INCOME RECEIVED BY ANY PERSON ON BEHALF OF I) . II) III) (IIIAB) ANY UNIVERSITY OR OTHER EDUCATIONAL INSTIT UTION EXISTING SOLELY FOR EDUCATIONAL PURPOSES AND NOT FOR PURPOSES OF PROFIT, AND WHICH IS WHOLLY OR SUBSTANTIALLY FINANCED BY THE GOVERNMENT; OR (IIIAC) X X X X [EXPLANATION.FOR THE PURPOSES OF SUB-CLAUSES (IIIA B) AND (IIIAC), ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION, HOSPITAL OR OTHER IN STITUTION REFERRED THEREIN, SHALL BE CONSIDERED AS BEING SUBSTANTIALLY FINANCED BY THE G OVERNMENT FOR ANY PREVIOUS YEAR, IF THE GOVERNMENT GRANT TO SUCH UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION, HOSPITAL OR OTHER INSTITUTION EXCEEDS SUCH PERCENTA GE OF THE TOTAL RECEIPTS INCLUDING ANY VOLUNTARY CONTRIBUTIONS, AS MAY BE PRESCRIBED O F SUCH UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION, HOSPITAL OR OTHER INSTITUT ION, AS THE CASE MAY BE, DURING THE RELEVANT PREVIOUS YEAR ]; (EMPHASIS SUPPLIED) ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 17 OF 24 9.3 IT ALSO NEEDS TO BE ADDRESSED FOR THE SAKE OF COMPLETENESS THAT THE STATUTE AS QUOTED HEREINABOVE HAS USED THE EXPRESSION EXCEEDS SUCH PERCENTAGE OF THE TOTAL RECEIPTS. THAT VIDE RULE 2BBB (INSERTED W.E.F. 12.12.2014) OF THE INCOME TAX RULES, THE BAR AT THE MINIMUM THRESHOLD OF 50% HAS BEEN FIXED FOR AN INSTITUTION WHICH HAS TO BE FINANCED BY THE GOVERNMENT FOR CLAIMING BENEF IT OF SECTION 10(23C)(IIIAB). BEFORE THIS DATE, AS NOTED BY WAY OF JUDICIAL STANDARDS SET BY THE COURTS IN THE ABSENCE OF ANY STATUTORY GUIDANCE, INSTITUTIONS RECEIVING LESS THA N THIS PERCENTAGE COULD ALSO BE ELIGIBLE. 9.4 ACCORDINGLY, ON A CONSIDERATION OF THE POSITI ON OF LAW AS ADDRESSED BY THE HON'BLE KARNATAKA HIGH COURT IN TH E AFORESAID TWO DECISIONS NAMELY INDIAN INSTITUTE OF MANAGEMENT AND NATIONAL EDUCATION SOCIETYS CASE AS WELL AS THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS JAT EDUCATION SOCIETY (CITED SUPRA), THE INTERPRETATION OF THE CHANGE MADE THROUGH THE FINANCE ACT, 2014 W.E.F. 01 .04.2015 BY WAY OF INSERTION OF EXPLANATION BELOW CLAUSE (II IAB) AND (IIIAC) OF SUB-SECTION (23C) OF SECTION 10 WOULD BE THAT BEFORE 01.04.2015 EVEN INSTITUTION GETTING FINANCE LESS TH AN 50% OF THE TOTAL RECEIPTS FROM THE GOVERNMENT WOULD BE ELI GIBLE FOR EXEMPTION SUBJECT TO FULFILLMENT OF OTHER CONDITION S. HOWEVER, AFTER 01.04.2015 IT IS ONLY AN INSTITUTION WHOSE GO VERNMENT ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 18 OF 24 GRANTS WERE BEYOND THE THRESHOLD LIMIT OF 50% OF TH E TOTAL RECEIPTS WHICH WOULD BE ELIGIBLE FOR BENEFIT U/S 10 (23C)(IIIAB). IN THE FACTS OF THE PRESENT CASE, THE POSITION ON F ACTS AS CONSIDERED AND AVAILABLE ON RECORD IS THAT ABOUT 60 % OF THE INSTITUTIONS TOTAL RECEIPTS HAVE BEEN RECEIVED FRO M THE GOVERNMENT. THIS FINDING OF FACT AS NOTED HAS NOT BEEN UPSET BY THE REVENUE. THUS, WHERE ON FACTS THE FINDING O F FACT ARRIVED AT BY THE CIT(A) THAT THE ASSESSEE HAS RECE IVED GOVERNMENT AID TO THE TUNE OF 60% OF ITS RECEIPTS R EMAINS UNREBUTTED BY THE REVENUE, WE FIND NO MERIT IN THE DEPARTMENTAL APPEAL. 10. THOUGH WE HAVE CONCLUDED ON A CONSIDERATION OF FACTS, PROVISIONS AND POSITION OF LAW IN FAVOUR OF THE ASS ESSEE WE MAY ALSO MAKE A REFERENCE TO THE DECISION OF THE HO N'BLE BOMBAY HIGH COURT IN THE CASE OF DIT(E) VS TATA INSTITUTE OF SOCIAL SCIENCES (2019) 413 ITR 305 (BOM.) IN SUPPORT OF THE CONCLUSION DRAWN. 10.1 A PERUSAL OF THE SAID DECISION SHOWS THAT THE COURT THEREIN HAD AN OCCASION TO CONSIDER THE WORDING SU BSTANTIALLY FINANCED IN THE DEPARTMENTAL APPEALS PERTAINING TO 2004-05 TO 2006-07 ASSESSMENT YEARS. A BRIEF REFERENCE TO MATERIAL FACTS IS NECESSITATED AT THIS STAGE. IN THE FACTS OF THE SAID CASE, THE ASSESSEE WAS A TRUST REGISTERED UNDER SEC TION 12A OF ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 19 OF 24 THE INCOME-TAX ACT, 1961. FOR THE ASSESSMENT YEARS 2004-05, 2006-07 AND 2007-08 EXEMPTION UNDER SECTION 10(23C) (IIIAB) HAD BEEN SOUGHT ON THE GROUND THAT IT WAS SUBSTANTI ALLY FINANCED BY THE GOVERNMENT. 10.2 BEFORE THE ASSESSING OFFICER THE ARGUMENT HAD BEEN MADE THAT THE ASSESSEE WAS AN INSTITUTION SOLELY FO R EDUCATIONAL PURPOSES AND THAT THE GRANTS RECEIVED F ROM THE GOVERNMENT WERE IN EXCESS OF OVER 50 PER CENT, OF T HE TOTAL EXPENDITURE INCURRED AND THE TOTAL RECEIPTS DURING THE YEARS. 10.3 THE ASSESSING OFFICER DENIED THE BENEFIT UNDE R SECTION 10(23C)(IIIAB) AS HE WAS OF THE VIEW THAT SINCE THE GOVERNMENT GRANT RECEIVED WAS LESS THAN 75%, IT COULD NOT BE S AID THAT THE ASSESSEE WAS SUBSTANTIALLY FINANCED BY THE GOVERNME NT. FOR ARRIVING AT THE STATED LIMIT OF 75%, THE AO REFERRE D TO SECTION 14 OF THE COMPTROLLER AND AUDITOR GENERAL (DUTIES, POWERS AND CONDITIONS OF SERVICE) ACT, 1971. 10.4 THE SAID VIEW DID NOT FIND FAVOUR WITH THE C OMMISSIONER (APPEALS) WHO HELD THAT THE COMPTROLLER AND AUDITOR GENERAL (DUTIES, POWERS AND CONDITIONS OF SERVICE) ACT, 197 1 WAS NOT APPLICABLE IN THE ABSENCE OF ANY REFERENCE TO IT. RELYING UPON THE DECISION OF THE KARNATAKA HIGH COURT IN THE CAS E OF CIT VS INDIAN INSTITUTE OF MANAGEMENT, THE CIT(A) ALLOWED THE ASSESSEE'S APPEAL. ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 20 OF 24 10.5 SAID ORDER WAS UPHELD BY THE ITAT. THE TRIB UNAL FOUND THAT THE GRANT FROM THE GOVERNMENT WAS APPROXIMATEL Y 56 PER CENT OF THE TOTAL RECEIPTS WHILE UPHOLDING THE ORDE R OF THE COMMISSIONER (APPEALS). 10.6 THE REVENUE CARRIED THE ISSUE BEFORE THE HON' BLE HIGH COURT CHALLENGING THE ORDER OF THE ITAT. THE APPEA L WAS DISMISSED BY THE HIGH COURT. 10.7. THE COURT DID NOT APPROVE THE REVENUES RELI ANCE ON THE COMPTROLLER AND AUDITOR GENERAL (DUTIES, POWERS AND CONDI- TIONS OF SERVICE) ACT, 1971 WHEREIN SUBSTANTIALLY FINANCED HAD BEEN FIXED AT 75% ON THE GROUNDS THAT THE SAID ACT HAD NOT BEEN REFERRED TO BY STATUTE. THE COURT ALSO HEL D CONSIDERING THE SCOPE AND THE PURPOSES OF THE TWO A CTS I.E. COMPTROLLER AND AUDITOR GENERAL (DUTIES, POWERS AND CONDI- TIONS OF SERVICE) ACT, 1971 AND THE INCOME TAX ACT WERE ENTIRELY DIFFERENT AND THUS RELIANCE PLACED BY THE REVENUE ON THE SAID ACT FOR FIXING THE BAR AT 75% IN THE INCOM E TAX ACT WAS WITHOUT ANY BASIS. NOTING THAT THE SAID ACT HAD NEITHER BEEN INCORPORATED NOR CITED IN SECTION 10(23C)(IIIA B) AND THE FACT THAT THE TWO ACTS COULD NOT EVEN REMOTELY BE S AID TO BE IN PARI MATERIA REFERRING TO THE DECISION OF THE APEX COURT IN MSCO PVT. LTD. V. UNION OF IN&M [1985] 1 SCC 51 THE COURT HELD THAT, IT WOULD BE HAZARDOUS TO INTERPRET A WORD IN ACCORD ANCE WITH ITS ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 21 OF 24 DEFINITION IN ANOTHER STATUTE, WHEN IT IS NOT DEALI NG WITH A COGNATE SUBJECT. THEREFORE, READING THE PROVISIONS OF ONE ACT INTO ANOTHER WHEN NOT IN PARI MATERIA WILL LEAD TO WHAT THE COURTS HAS OBSERVED IN MSCO PVT. LTD. (SUPRA) TO A NEW TERROR IN CONSTRUCTION WHILE QUOTING WITH APPROVAL CRAIS ON STATUTE LAW (6TH EDITION) . ( EMPHASIS PROVIDED IN THE PRESENT PROCEEDINGS). 10.8. REFERRING TO THE POSITION PRIOR TO THE EXPLA NATION TO SECTION 10(23C)(IIIAB) OF THE ACT, THEIR LORDSHIPS FURTHER OBSERVED THAT THE METHOD EMPLOYED BY THE OFFICERS OF THE REVENUE WAS EITHER TO DETERMINE THE PERCENTAGE OF G RANT RECEIVED FROM THE GOVERNMENT IN THE CONTEXT OF TOTA L RECEIPT OR TO DETERMINE THE GRANTS RECEIVED FROM THE GOVERNMENT I N THE CONTEXT OF TOTAL EXPENDITURE. HOWEVER, AFTER 2014, THE MEASURE OF THE WORDS SUBSTANTIALLY FINANCED HAS TO BE FOU ND ONLY BY DETERMINING THE GRANTS RECEIVED FROM THE GOVERNMENT AS A PERCENTAGE OF TOTAL RECEIPTS RECEIVED BY AN INSTITU TION. 10.9 THE COURT NOTING THE POSITION THAT SINCE T HE BENEFIT OF THE EXPLANATION TO SECTION 10(23C)(IIIAB) OF THE AC T WAS BROUGHT ON THE STATUTE W.E.F. 01.04.2015 THEIR LORD SHIPS HELD, WAS TO CLARIFY THE POSITION/MEANING OF THE WORD SU BSTANTIALLY FINANCED BY THE GOVERNMENT ALTERNATELY TO REMOVE T HE VAGUENESS ATTRIBUTABLE TO THE MEANING OF THE WORDS SUBSTANTIALLY FINANCED BY THE ADDITION OF EXPLANA TION TO SECTION 10(23C)(IIIAB) OF THE ACT READ WITH RULE 2B BB OF THE ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 22 OF 24 RULES PROVIDES THAT THE GOVERNMENT GRANT SHOULD BE AT 50 PER CENT OF THE TOTAL RECEIPTS. THE COURT HELD THAT, THE VAGUENESS ATTRIBUTABLE TO THE MEANING OF THE WORDS 'SUB STANTIALLY FINANCED' IS REMOVED BY THE ADDITION OF THE EXPLANATION TO SECTION 10(23C)(IIIAB) OF THE ACT READ WITH RULE 2B BB OF THE RULES. THE ABOVE EXPLANATION STATES THAT GRANT FROM THE GOVERNMENT SHOULD BE IN EXCESS OF THE PRESCRIBED RE CEIPTS IN THE CONTEXT OF TOTAL RECEIPTS (INCLUDING VOLUNTARY DONATIONS). RULE 2BBB OF THE RULES PROVIDES THAT THE GOVERNMENT GRANT SHOULD BE AT 50 PER CENT OF THE TOTAL RECEIPTS. 10.10 REFERRING TO THE DECISION OF THE APEX COURT IN THE CASE OF STATE OF BIHAR VS S.K. ROY [1966] AIR 1966 SC 1995 HELD THAT, IT IS RECOGNIZED PRINCIPLE OF CONSTRUCTION THAT SUBSEQUENT LEGISLATION MAY BE LOOKED AT IN ORDER TO SEE WHAT IS THE PROPER INTERPRETATION TO BE PUT UPON THE EARLIE R LEGISLATION, WHERE THE EARLIER ACT IS OBSCURE OR AMBIGUOUS OR RE ADILY CAPABLE OF MORE THAN ONE INTERPRETATION. THE SAME P RINCIPLE WOULD APPLY TO AN AMENDMENT MADE TO AN ACT TO UNDER STAND THE MEANING OF AMBIGUOUS PROVISION, EVEN WHEN THE AMEND MENT IS NOT HELD TO BE RETROSPECTIVE. THIS HAS SO BEEN HELD BY THE APEX COURT IN THIRU MANICKAM CO . V. STATE OF TAMIL NADU [1977] AIR 1977 SC 518. IN THE ABOVE CASE, COURT HELD THAT AN AMENDMENT TO THE ACT WHICH IS NOT RETROSPECTIVE M YET BE USED AS AN EXPOSITION OF PARLIAMENTARY INTENT AS CONTAINED IN SECTION EVEN ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 23 OF 24 BEFORE ITS AMENDMENT. ACCORDINGLY, THEIR LORDSHIPS WITHOUT HOLDING THE EXPLANATION TO SECTION 10(23C)(IIIAB) OF THE ACT INSERTED INTO THE ACT WITH EFFECT FROM APRIL 1, 201 5 AS RETROSPECTIVE IS BEING USED AS AN AID IN CONSTRUING THE AMBIGUOUS PROVISION. THEREFORE, IN THE PRESENT FAC TS THE REVENUES APPEAL IS REQUIRED TO BE DISMISSED. 11. ACCORDINGLY, ON A READING THEREOF, IT IS UN AMBIGUOUSLY CLEAR THAT EVEN THOUGH THE PROVISION WAS HELD TO BE PROSPECTIVE, THE COURT HELD THAT THE LEGISLATIVE IN TENT COULD WELL BE USED AS AN AID IN CONSTRUING THE PROVISION WHICH HAD REMAINED AMBIGUOUS IN THE ABSENCE OF THE AMENDMENT. THUS, ON A CONSIDERATION OF THE FACTS, PROVISIONS AND THE POSITION OF LAW, WE FIND THAT THE SECOND ISSUE FRAMED BY US ALS O HAS TO BE DECIDED IN FAVOUR OF THE ASSESSEE BY WAY OF AN AFFI RMATIVE YES THE DEPARTMENTAL GROUND, ACCORDINGLY, IN VIEW THERE OF FAILS. SAID ORDER WAS PRONOUNCED ON THE DATE OF HEARING IT SELF IN THE PRESENCE OF THE PARTIES. 12. ITA 237/CHD/2019, ACCORDINGLY, IS DISMISSED. 13. SINCE FACTS, CIRCUMSTANCES AND POSITION OF LAW REMAIN IDENTICAL IN ITA 238/CHD/2019 WHEREIN NO SEPARATE A RGUMENTS HAVE BEEN ADVANCED BY THE PARTIES, ACCORDINGLY, FOR IDENTICAL REASONS AS IN ITA 237/CHD/2019 SIMILAR DEPARTMENTAL GROUND FAILS. ITA 237&238/CHD/2019 & C.O. 17 & 18/CHD/2019 PAGE 24 OF 24 14. IN THE RESULT, THE APPEALS OF THE REVENUE ARE D ISMISSED. SINCE CROSS OBJECTIONS OF THE ASSESSEE ARE SUPPORTI VE IN NATURE AND THERE IS NO NEW PRAYER MADE AS PER THE U NANIMOUS STAND OF THE PARTIES RIGHT AT THE OUTSET, THESE ARE ALSO DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JULY,2019. SD/- SD/- ( $ % & ' ( ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) )* #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER