Indian Radiological and Imaging Association, New Delhi V. DIT(E), New Delhi

ITA 5005/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58492 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 12-01-2012
• Assessment Year: misc
• Appeal Filed On: 11-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SALIL MISHRA
• Keywords: Charitable institution
• Section: 80G; 12A; 12; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : C : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.5005/DEL/2011 ASSESSMENT YEAR : NA INDIAN RADIOLOGICAL AND IMAGING ASSOCIATION, IRIA HOUSE, C-5, QUTAB INSTITUTIONAL AREA, NEW DELHI. PAN : AAATI0305E VS. DIT (EXEMPTIONS) PLOT NO.15, 3 RD FLOOR, AAYAKAR BHAWAN, DISTT. CENTRE, LAXMI NAGAR, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.N. GUPTA, ADVOCATE REVENUE BY : SHRI SALIL MISHRA, SR.DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DIRECTED AGAINST THE ORDER PASSED BY THE DIRECTOR OF INCOME-TAX (EXEMPTION S) [DIT (E)], NEW DELHI DATED 13 TH SEPTEMBER, 2011 WHEREBY THE APPLICATION FOR RENEWA L OF EXEMPTION U/S 80G(5)(VI) OF INCOME-TAX ACT, 1961 (THE ACT) HAS BEEN REJECTED. THE GROUNDS OF APPEAL READ AS UNDER:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LEARNED DIRECTOR OF INCOME TAX (EXEMPTIONS), NEW DELH I (HEREINAFTER CALLED DIT FOR SHORT) ERRED IN REJECTING THE APPLICATION OF THE APPELLANT SEEKING EXEMPTION U/S 80G OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED THE ACT FOR THE SAKE OF BREVITY). 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , DIT FAILED TO CONSIDER AND HOLD THAT THE APPELLANT WAS AN IN STITUTION FOR A CHARITABLE PURPOSE IN AS MUCH AS IT WAS ENGAG ED IN ITA NO.5005/DEL/2011 2 PROVIDING EDUCATION WITHIN THE MEANING OF THAT WORD IN SECTION 2 (15) OF THE ACT. 3. THAT WITHOUT PREJUDICE TO THE GENERALITY OF GROUNDS OF APPEAL NO.1 & 2 ABOVE, DIT ERRED IN HOLDING THAT THE APPELLAN T WAS CARRYING ON ANY ACTIVITY IN THE NATURE OF TRADE, COMMERC E OR BUSINESS OR ANY ACTIVITY OF RENDERING ANY SERVICE IN RELATION TO ANY TRADE, COMMERCE OR BUSINESS FOR A CESS OR FEE OR ANY OTHER CONSIDERATION AND, THEREFORE, THE APPELLANT IS NOT COVER ED BY THE MISCHIEF OF THE PROVISO TO SECTION 2 (15) OF THE ACT. 4. THAT WITHOUT PREJUDICE TO THE GENERALITY OF GROUND OF APPEAL NO.3 ABOVE, DIT FAILED TO APPRECIATE THAT THE PUBLISHING DIVISION OF THE APPELLANT PUBLISHES AND CIRCULATES A SCIENTIFIC MEDICAL JOURNAL BY THE NAME INDIAN JOURNAL OF RADIOLOGY AND IMAGING AND ALSO NEWS BULLETINS NOT FOR ANY COMMERCIAL PURPOSES B UT ONLY FOR THE PURPOSE OF EDUCATING ITS MEMBERS AND SUCH PROFESSI ONAL DOCTORS THAT SUBSCRIBE TO THESE JOURNALS. THIS WOULD BE EVIDENT FROM THE FACT THAT FROM YEAR TO YEAR THE EXPENSES INCURRE D BY THE PUBLISHING DIVISION ARE IN EXCESS OF THE RECEIPTS. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , SINCE THE APPROVAL UNDER SECTION 80G (5)(VI) OF THE ACT WAS A CCORDED TO THE APPELLANT VIDE ORDER NO. DIT (E) 2008-2009/1-12 4/706 DATED 17.06.2008 FOR THE PERIOD ENDING 31 ST MARCH, 2011, THE AFORESAID APPROVAL WAS VALID FOR PERPETUITY IN VIEW O F THE DELETION OF THE PROVISO TO SECTION 80 (6) (VI) BY FINAN CE (NO.2) ACT, 2009 W.E.F. 1.4.2009, DIT HAD NO JURISDICTION TO PASS THE IMPUGNED ORDER. 6. THAT THE APPELLANT COMPANY CRAVES LIBERTY TO ADD, ALTE R, VARY OR AMEND ANY GROUND OF APPEAL. 2. AS IT CAN BE SEEN FROM THE GROUNDS OF APPEAL, PREVI OUSLY THE ASSESSEE WAS GRANTED APPROVAL U/S 80G (5)(VI) VIDE ORDER DATED 17 TH JUNE, 2008 UPTO 31 ST MARCH, 2011. THE ASSESSEE FILED APPLICATION FOR THE RENEWAL OF THE SAID APPROVAL ON 15 TH MARCH, 2011 WHICH APPLICATION HAS BEEN REJECTED BY LD. DIT (E). LD. DIT (E) ASKED THE ASSESSEE TO FURNISH CERTAIN DOCUMENTS/EXPLANATIONS VIDE LETTER DAT ED 25 TH APRIL, 2011 AND BEING DISSATISFIED WITH THE EXPLANATION FILED BY THE ASSESSEE, LD. DIT (E) HAS HELD THAT THERE IS NO ELEMENT OF CHAR ITY IN THE ACTIVITY OF THE SOCIETY AS THE SAME IS CARRIED OUT PURELY ON COMMER CIAL LINES FOR COMMERCIAL ENTITIES AND PEOPLE. IT IS HELD BY DIT (E) THAT THE ACTIVITY OF ITA NO.5005/DEL/2011 3 THE ASSESSEE IS HIT BY THE PROVISO TO SECTION 2(15) OF TH E IT ACT, 1961 AS AMENDED BY FINANCE ACT, 2008 W.E.F. ASSESSMENT YEAR 2 009-10 AND, IN THIS MANNER, THE APPLICATION FILED BY THE ASSE SSEE FOR RENEWAL OF EXEMPTION U/S 80G HAS BEEN REJECTED. 3. THE ASSESSEE IS ENJOYING REGISTRATION U/S 12A SINCE 1974 AND APPROVAL U/S 80G WAS GRANTED UPTO 31 ST MARCH, 2011 AND NOW THE APPLICATION FILED BY THE ASSESSEE FOR RENEWAL OF APPROV AL U/S 80G DATED 15 TH MARCH, 2011 HAS BEEN REJECTED BY THE LD. DIT (E). 4. IT IS THE CASE OF THE ASSESSEE THAT AS PER AMENDMENT BR OUGHT TO THE ACT W.E.F. 1 ST OCTOBER, 2009 WHERE EXEMPTION HAS ALREADY BEEN ALLOWED/GRANTED UPTILL 31 ST MARCH, 2010 SHALL BE DEEMED TO HAVE BEEN EXTENDED IN PERPETUITY UNLESS SPECIFICALLY WITHDRAWN A ND RELIANCE IS PLACED ON THE BOARD CIRCULAR NO.7/2010 (F.NO.197/21 /2010 ITA-I) DATED 27 TH OCTOBER, 2010 AND, THUS, IT IS THE CASE OF THE ASSESSEE T HAT THE DENIAL OF RENEWAL IS CONTRARY TO THE PROVISIONS OF LAW . REFERENCE IS ALSO MADE TO THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF BABU HARGOVIND DAYAL TRUST VS. ITAT (2011) 199 TAXMAN 138 (ALL). 5. ON THE OTHER HAND, THE LEARNED DR RELIED UPON TH E ORDER OF THE DIT (E) AND PLEADED THAT ASSESSEES ACTIVITY IS NOT OF CH ARITABLE NATURE AND, HENCE, LD. DIT (E) WAS RIGHT IN DENYING THE REN EWAL OF APPROVAL U/S 80G. 6. AFTER HEARING BOTH THE PARTIES, WE FIND THAT THE PRESENT ISSUE IS COVERED BY THE DECISION OF THIS TRIBUNAL IN THE CASE O F EDUCATE INDIA SOCIETY VS. DIT (E), ORDER DATED 28 TH OCTOBER, 2011 IN ITA NO.3895/DEL/2011 IN WHICH SIMILAR ISSUE WAS RAISED BY TH E ASSESSEE AND THE APPEAL WAS DECIDED IN FAVOUR OF THE ASSESSEE. F OR THE SAKE OF CONVENIENCE, THE SAID ORDER IS REPRODUCED BELOW:- ITA NO.5005/DEL/2011 4 THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DIRECTED AGAINST THE ORDER PASSED BY THE DIRECTOR OF INCOME-TAX (EXEMPTIONS) [DIT (E)] U/S 80G(5)(VI) OF INCOME-TAX A CT, 1961 (THE ACT) READ WITH RULE 11AA OF INCOME-TAX RU LES, 1962 (THE RULES). THE GROUNDS OF APPEAL READ AS UNDER :- 1. THAT THE REJECTION ORDERS PASSED U/S 80G(5)(VI) OF THE ACT, ARE AGAINST THE LAW AND TO THE FACTS OF THE CASE. 7. THAT THE LD. DIT (EXEMPTIONS) FAILED TO APPRECIATE THA T AS PER THE AMENDED PROVISIONS OF LAW AFTER 1 ST OCTOBER, 09 THE EXEMPTION ALREADY ALLOWED/GRANTED UP TILL 31.03.10 SHA LL BE DEEMED TO HAVE BEEN EXTENDED IN PERPETUITY UNLESS SPECI FICALLY WITHDRAWN AS CONTAINED IN BOARDS CIRCULAR NO.7/2010 (F.NO.197/21/2010 ITA I) DATED 27.10.2010. 8. THAT THE LD. DI (EXEMPTION) WAS FURTHER WRONG FOR NO T APPRECIATING THAT THE APPELLANT SOCIETY IS ALREADY REGISTE RED U/S 12A(A) OF THE INCOME TAX ACT, 1961, FOR DOING CHARITAB LE ACTIVITIES AND ALSO FULFILL THE CONDITIONS LAID DOWN U/ S 80G(5)(VI) OF THE ACT, AND GRANTED EXEMPTION U/S 80G FOR THE PERIOD FROM 01.04.07 TO 31.03.10 VIDE ORDERS DATED 26.04.2007. 9. THAT THE LD. DI (EXEMPTION) FURTHER FAILED TO CONSIDE R THE INFORMATION GIVEN AND THE DOCUMENTS FILED WHICH WERE ACKNOWLEDGED ON 10.03.11 PRIOR TO PASS THE REJECTION O RDERS, FOR THE RENEWAL OF EXEMPTION TO THE APPELLANT SOCIETY. 10. THAT THE REJECTION OF RENEWAL OF EXEMPTION IS FURTHE R BAD IN LAW, AS NO REASONABLE AND PROPER OPPORTUNITY IF ANY W AS EVER AFFORDED TO THE APPELLANT SOCIETY TO PRESENT THEIR CASE BE FORE THE DI (EXEMPTION),BECAUSE THE NOTICE ALLEGED TO BE ISSUED WERE NOT RECEIVED/SERVED UPON TO THEM. 11. THAT APPELLANT SOCIETY ASSAILS THEIR RIGHTS TO AMEND, ALTE R OR CHANGE ANY GROUNDS OF APPEAL OF ANY TIME EVEN DURING THE COURSE OF HEARING OF INSTANT APPEAL. 2. THE ASSESSEE BEING A CHARITABLE INSTITUTION FILED AN APPLICATION FOR RENEWAL OF APPROVAL U/S 80G(5) ON 10 TH MARCH, 2011. THE ASSESSEE WAS ENJOYING APPROVAL U/S 80G VIDE ORDER DATED 26 TH APRIL, 2007 PASSED U/S 80G(5)(VI) OF THE ACT FOR THE PERIOD FROM 1.4.2007 TO 31 ST MARCH, 2010. SUCH APPLICATION FILED BY THE ASSESSEE HAS BEEN REJECTED BY LD. DIT (E). COPY OF THE APPLICATION HAS BEEN FI LED IN THE PAPER BOOK AT PAGES 67 ONWARDS. ON THE COVERING LETTE R, WHICH IS FILED ON 10 TH MARCH, 2011 TO SEEK RENEWAL OF EXEMPTION U/S 80G, SUBJECT HAS BEEN MENTIONED AS BELOW: - ITA NO.5005/DEL/2011 5 REF: RENEWAL OF EXEMPTION U/S 80G OF THE INCOME TAX ACT, 1961 OF EDUCATE INDIA SOCIETY. 3. ALONG WITH THE AFOREMENTIONED COVERING LETTER, V ARIOUS DOCUMENTS WERE ALSO FILED WHICH, INTER ALIA, CONTAINE D COPY OF APPLICATION IN FORM 10G; PHOTO COPY OF 80G CERTI FICATE; PHOTO COPY OF REGISTRATION U/S 12A(A) OF THE ACT; PHO TO COPY OF ITR FOR THE LAST THREE YEARS; COPY OF AUDITED BALA NCE SHEETS FOR THE LAST THREE YEARS, ETC. FROM THE ORDER O F LD. DIT (E), IT APPEARS THAT THE ASSESSEE DID NOT APPEAR IN RESPONSE TO THE NOTICES ISSUED BY HIM. THEREFORE, TAKIN G INTO ACCOUNT THE NON-APPEARANCE OF THE ASSESSEE, LD. DI T (E) HAS REJECTED THE APPLICATION OF THE ASSESSEE BY OBSERVING THAT IN THE ABSENCE OF DOCUMENTARY EVIDENCE OF CHARITABLE ACTIVITIES AND ALSO MISUSE OF CORPUS DONATION RECEIVED FROM DONORS FOR A PARTICULAR PURPOSE, THE ASSE SSEE DID NOT SATISFY THE CONDITIONS LAID DOWN U/S 80G(5) OF THE ACT. THE ASSESSEE IS AGGRIEVED BY SUCH ORDER PASSED BY LD. DIT (E) AND, HENCE, HAS FILED THE AFOREMENTIONED APP EAL. 4. AT THE OUTSET, IT WAS SUBMITTED BY THE LEARNED AR T HAT BY OMISSION OF THE PROVISO TO SECTION 80G(5) (VI), THE ASSESSEES OBLIGATION TO SEEK SUCH RENEWAL HAS BEEN DONE AWAY WITH AND THIS POSITION OF LAW HAS BEEN MADE CLEAR BY THE CBDT VIDE ITS CIRCULAR NO.7/2010 (F.NO.197/21/20 10- ITA-I DATED 27 TH OCTOBER, 2010). HE HAS PLACED ON OUR RECORD A COPY THEREOF WHEREIN THE BOARD HAS ISSUED CER TAIN CLARIFICATION WITH REGARD TO PERIOD OF VALIDITY OF APPROVALS INTER ALIA INCLUDING U/S 80G (5). IN PARA 5OF THE SAI D CIRCULAR IT HAS BEEN STATED AS UNDER:- 5. AS REGARDS APPROVALS GRANTED UPTO 1-10-2009 UNDER SECTION 80G BY THE COMMISSIONERS OF INCOME- TAX/DIRECTORS OF INCOME-TAX, PROVISO TO SECTION 80G(5)(VI) CLARIFIED THAT ANY APPROVAL SHALL HAVE EFF ECT FOR SUCH ASSESSMENT YEAR OR YEARS NOT EXCEEDING FIVE ASSESSMENT YEARS AS MAY BE SPECIFIED IN THE APPROVAL. THE ABOVE PROVISO WAS DELETED BY THE FINANCE (NO. 2) ACT, 2009. THE INTENT BEHIND THE DELETION OF ABOVE PROVISO AS EXPLAINED IN THE EXPLANATORY MEMORANDUM TO FINANCE (NO. 2) BILL, 2009 WAS AS UNDER : FURTHER AS PER CLAUSE (VI) OF SUB-SECTION (5) OF SECTION 80G OF THE INCOME-TAX ACT, 1961, THE INSTITUTIONS OR FUNDS TO WHICH THE DONATIONS ARE MADE HAVE TO BE APPROVED BY THE COMMISSIONER OF INCOME-TAX IN ITA NO.5005/DEL/2011 6 ACCORDANCE WITH THE RULES PRESCRIBED IN RULE 11AA OF THE INCOME-TAX RULES, 1962. THE PROVISO TO THIS CLAUSE PROVIDES THAT ANY APPROVAL GRANTED UNDER THIS CLAUSE SHALL HAVE EFFECT FOR SUCH ASSESSMENT YEAR OR YEARS, NOT EXCEEDING FIVE ASSESSMENT YEARS, AS MAY BE SPECIFIED IN THE APPROVAL. DUE TO THIS LIMITATION IMPOSED ON THE VALIDITY OF SUCH APPROVALS, THE APPROVED INSTITUTIONS OR FUNDS HAVE TO BEAR THE HARDSHIP OF GETTING THEIR APPROVALS RENEWED FROM TIME TO TIME. THIS IS UNDULY BURDENSOME FOR THE BONA FIDE INSTITUTIONS OR FUNDS AND ALSO LEADS TO WASTAGE OF TIME AND RESOURCES OF THE TAX ADMINISTRATION IN RENEWING SUCH APPROVALS IN A ROUTINE MANNER. THEREFORE, IT IS PROPOSED TO OMIT THE PROVISO TO CLAUSE (VI) OF SUB- SECTION (5) OF SECTION 80G TO PROVIDE THAT THE APPROVAL ONCE GRANTED SHALL CONTINUE TO BE VALID IN PERPETUITY. FURTHER, THE COMMISSIONER WILL ALSO HAVE THE POWER OF WITHDRAW THE APPROVAL IF THE COMMISSIONER IS SATISFIED THAT THE ACTIVITIES OF SUCH INSTITUTION OR FUND ARE NOT GENUINE OR ARE NOT BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECTS OF THE INSTITUTION OR FUND. THIS AMENDMENT WILL TAKE EFFECT FROM 1ST DAY OF OCTOBER, 2009. ACCORDINGLY, EXISTING APPROVALS EXPIRING ON OR AFTER 1ST OCTOBER, 2009 SHALL BE DEEMED TO HAVE BEEN EXTENDED IN PERPETUITY UNLESS SPECIFICALLY WITHDRAWN. IT APPEARS THAT SOME DOUBTS STILL PREVAIL ABOUT THE PERIOD OF VALIDITY OF APPROVAL UNDER SECTION 80G SUBSEQUENT TO 1-10-2009, ESPECIALLY IN VIEW OF THE FAC T THAT NO CORRESPONDING CHANGE HAS BEEN MADE IN RULE 11A(4). TO REMOVE ANY DOUBTS IN THIS REGARD, IT IS REITERATED THAT ANY APPROVAL UNDER SECTION 80G(5) ON OR AFTER 1-10-2009 WOULD BE A ONE TIME APPROVAL WHICH WOULD BE VALID TILL IT IS WITHDRAWN. 5. HE FURTHER SUBMITTED THAT INTERPRETING THE STATUTO RY PROVISIONS IN THE LIGHT OF THE OMISSION OF PROVISO TO SE CTION 80G (5)(VI), HONBLE ALLAHABAD HIGH COURT IN THE CA SE OF BABU HARGOVIND DAYAL TRUST VS. ITAT (2011) 199 TAXMAN 138 (ALL) HAS RULED THAT 80G EXEMPTION SHALL BE DEEME D TO BE CONTINUED IN PERPETUITY AND IT WILL CONTINUE SO LONG AS IT IS NOT WITHDRAWN AS PER THE PROVISIONS OF IT ACT. IN T HAT CASE THE APPLICATION FOR RENEWAL WAS MADE ON 31 ST MARCH, 2010 AS SAID EXEMPTION WAS EXPIRING AFTER 1 ST OCTOBER, ITA NO.5005/DEL/2011 7 2009. IT WAS HELD THAT THE DIRECTIONS OF CIT (A) FOR REJECTION OF RENEWAL APPLICATION WAS NOT REQUIRED TO BE MAINTA INED AS BY VIRTUE OF OPERATION OF LAW THE EXEMPTION SHALL BE DEEMED TO BE CONTINUED IN PERPETUITY AND IT WILL CO NTINUE SO LONG AS IT IS NOT WITHDRAWN AS PER THE PROVISIONS OF T HE ACT. HE HAS ALSO PLACED A COPY OF THE SAID DECISION ON OUR RECORD AND A COPY WAS ALSO GIVEN TO THE LEARNED DR. THEREFORE, IT IS THE CASE OF THE LEARNED AR THAT DIRE CTIONS OF DIT (E) REGARDING REJECTION OF RENEWAL APPLICATION FILED BY THE ASSESSEE ARE NOT MAINTAINABLE AND SHOULD BE VACATED AS THE ASSESSEE BY VIRTUE OF PROVISIONS OF LAW WILL ENJOY THE APPROVAL U/S 80G IN PERPETUITY AS IT HAS BEEN ALREADY GRANTED WITH APPROVAL WHICH FALL BEYOND 1 ST OCTOBER, 2009 AND IS UPTO 31 ST MARCH, 2010. 6. ON THE OTHER HAND, RELYING UPON THE ORDER PASSED B Y THE DIT (E), IT IS THE CASE OF THE LEARNED DR THAT TH E ASSESSEES APPLICATION HAS RIGHTLY BEEN REJECTED AS THE ASSESSEE DID NOT APPEAR TO SUBSTANTIATE ITS APPLICATION FO R RENEWAL OF THE APPROVAL. 7. WE HAVE HEARD BOTH THE PARTIES. WE HAVE ALSO CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 80G( 5). CLAUSE (VI) OF SUB-SECTION (5) OF SECTION 80G STIPULATE S FOR THE NON-TAXABILITY OF DONATIONS RECEIVED BY AN INSTIT UTION WHICH INTER ALIA INCLUDES CHARITABLE INSTITUTION REGI STERED U/S 12 OF THE ACT. THE FUNDAMENTALS OF SUB-SECTION (5) OF SECTION 80G IS THAT 80G APPROVAL WILL BE GRANTED TO THE CHARITABLE INSTITUTIONS ON THE SAME LINE AS THE REGISTRA TION TO A CHARITABLE INSTITUTION IS GRANTED U/S 12A. THE A SSESSEE IS ALREADY ENJOYING BENEFIT OF REGISTRATION AS CHARITA BLE INSTITUTION WHICH IS NOT SHOWN TO BE WITHDRAWN. IT AP PLIED FOR RENEWAL U/S 80G(5)(VI) AS THE VALIDITY PERIOD OF ALREADY GRANTED APPROVAL HAD EXPIRED. BEFORE OMISSION OF THE PROVISO TO SECTION 80G(5) (VI) BY THE FINANCE (NO.2) ACT, 2009, W.E.F. 1.10.2009, IT WAS THE REQUIREMENT OF LA W THAT APPROVAL GRANTED U/S 80G SHALL HAVE EFFECT FOR SUCH ASSESSMENT YEAR OR YEARS, NOT EXCEEDING FIVE ASSESSMENT YEARS WHICH WAS TO BE SPECIFIED IN THE APPROVAL ITSELF. 8. AS PER PROVISIONS APPLICABLE AT THE TIME OF GRANT O F APPROVAL, LD. DIT (E) VIDE ORDER DATED 26 TH APRIL, 2007 HAD GRANTED APPROVAL FOR THE PERIOD FROM 1.4.2007 TO 31 ST MARCH, 2010. IT IS ALREADY MENTIONED THAT THE ASSESSEE IS ENJOYING REGISTRATION U/S 12A (A) OF THE IT ACT, 1961 , THE COPY OF WHICH HAS BEEN PLACED ON RECORD AT PAGE 15 O F THE ITA NO.5005/DEL/2011 8 PAPER BOOK. THE SAID REGISTRATION HAS NOT BEEN SHOWN T O BE WITHDRAWN AND, THUS, THE ASSESSEE HAS ALWAYS BEEN TREATED AS CHARITABLE INSTITUTION REGISTERED U/S 12A(A) OF THE ACT. THE ASSESSEE, AS ITS APPROVAL WAS EXPIRED ON 31 ST MARCH, 2010, HAD FILED AN APPLICATION SEEKING THE R ENEWAL ON 10 TH MARCH, 2011. FIRSTLY, IT HAS TO BE SEEN THAT WHETHER OR NOT THE ASSESSEE WAS UNDER ANY OBLIGATION TO SEEK SUCH RENEWAL. THE AFOREMENTIONED PROVISO HAS BEEN OMITTED FROM 1.10.2009 AND SUCH OMISSION OF PROVISO HAS BEEN INTERPRETED BY THE CBDT IN AFOREMENTIONED CIRCULAR NO.7/2010 AND IT HAS BEEN MENTIONED IN THE CIRCULAR THAT VARIOUS REFERENCES HAVE BEEN RECEIVED BY THE BOARD FR OM THE FIELD FORMATIONS AS WELL AS FROM THE MEMBERS OF PUB LIC ABOUT THE PERIOD OF VALIDITY OF APPROVALS GRANTED U/ S 80G (5) OF THE ACT AND IN VIEW TO RESOLVE SUCH REFERENCES THE BOARD HAS CLARIFIED THE OMISSION OF AFOREMENTIONED PRO VISO IS INTERPRETED TO MEAN THAT THE APPROVAL ONCE GRANTE D SHALL CONTINUE TO BE VALID IN PERPETUITY. AT THE SAME TIM E IT HAS BEEN MENTIONED THAT THE COMMISSIONER WILL ALSO HAVE TH E POWER TO WITHDRAW THE APPROVAL IF THE COMMISSIONER IS SATISFIED THAT THE ACTIVITIES OF SUCH INSTITUTION OR FUN D ARE NON-GENUINE OR ARE NOT BEING CARRIED OUT IN ACCORDA NCE WITH THE OBJECTS OF THE INSTITUTION OR FUND. NO MATE RIAL WHATSOEVER HAS BEEN BROUGHT ON RECORD TO SUGGEST THAT THE APPROVAL GRANTED BY THE DEPARTMENT TO THE ASSESSEE U/S 80G HAS EVER BEEN WITHDRAWN. WHAT HAS BEEN CONSIDERED BY THE LD. DIT (E) IN HIS ORDER IS THE APPL ICATION FILED BY THE ASSESSEE FOR RENEWAL OF APPROVAL WHICH CAN NOT IN ANY MANNER BE INTERPRETED AS WITHDRAWAL OF APPROV AL U/S 80G. NOW, THE QUESTION WILL BE THAT WHETHER BY MERE FILING THE APPLICATION FOR RENEWAL OF APPROVAL U/S 80G THE ASSESSEE CAN BE HELD TO BE NOT ENTITLED FOR THE BENEFIT OF APPROVAL U/S 80G. IN OUR OPINION, WHERE THERE IS NO STATUTORY OBLIGATION ON THE ASSESSEE TO SEEK RENEWAL OF T HE APPROVAL, THEN, THE APPLICATION FILED BY THE ASSESSEE HAS NO MEANING AS THE STATUTORY PROVISIONS WILL PREVAIL. TH E INTERPRETATION OF THE STATUTORY PROVISION AS WELL AS TH E AFOREMENTIONED CIRCULAR ISSUED BY THE CBDT CLEARLY STA TES THAT THE EXISTING APPROVALS EXPIRING ON OR AFTER 1ST OCTOBER, 2009 SHALL BE DEEMED TO HAVE BEEN EXTENDED IN PERPET UITY UNLESS SPECIFICALLY WITHDRAWN. ALL THE AUTHORITIES WOR KING UNDER THE CONTROL OF CBDT ARE BOUND TO FOLLOW THE INSTRUCTIONS ISSUED BY THE CBDT. THEREFORE, IT HAS TO B E HELD THAT AS ASSESSEES EXISTING APPROVAL WAS EXPIRING ON OR AFTER THE 1 ST DAY OF OCTOBER, 2009, THE SAME SHALL BE DEEMED TO HAVE BEEN EXTENDED IN PERPETUITY UNLESS ITA NO.5005/DEL/2011 9 SPECIFICALLY WITHDRAWN. WE HAVE ALREADY MENTIONED T HAT THERE IS NO MATERIAL ON RECORD ACCORDING TO WHICH IT CAN BE SAID THAT THE APPROVAL GRANTED TO THE ASSESSEE U/S 80G (5 ) WAS SPECIFICALLY WITHDRAWN AND WHAT IS REJECTED BY THE IMPUGNED ORDER IS THE RENEWAL APPLICATION OF THE ASSESSE E WHICH DOES NOT HAVE ANY MEANING IN LAW AS THE ASSESSEE WAS NOT UNDER AN OBLIGATION TO SEEK RENEWAL AS APPROVA L GRANTED TO IT SHALL BE DEEMED TO HAVE BEEN EXTENDED IN PERPETUITY. THE AFOREMENTIONED DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF BABU HARGOVIND D AYAL TRUST (SUPRA) ALSO SUPPORT THIS PROPOSITION. THEREFORE, WE VACATE THE ORDER OF LD. DIT (E) VIDE WHICH THE RENE WAL APPLICATION FILED BY THE ASSESSEE FOR APPROVAL U/S 80G H AS BEEN REJECTED. IT IS HELD THAT THE APPROVAL GRANTED TO THE ASSESSEE U/S 80G WILL ACT IN PERPETUITY UNLESS IT IS SPECIFICALLY WITHDRAWN BY THE LD. DIT (E). THE APPE AL FILED BY THE ASSESSEE IS ALLOWED IN THE MANNER AFORESAID. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 28.10.2011. 7. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOTH THE PARTIES, RESPECTFULLY FOLLOWING THE AFOREMENTIONED DECISION IN WHICH BOTH OF US ARE PARTIES, WE ALLOW THE APPEAL FILED BY THE ASSESSEE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALL OWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 13.01.20 12. SD/- SD/- [SHAMIM YAHYA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 13.01.2012. DK ITA NO.5005/DEL/2011 10 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR, ITAT, DELHI BENCHES