Bihar Combined Entrance Competitive Examination Board v. Chief Commissioner Of Income Tax-1

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.17654 of 2011 ====================================================== Bihar Combined Entrance Competitive Examination Board having its officeat IAS Bhawan, Near Airport, Patna, through its Controller of ExaminationAlok Kumar Sinha, Son of Late R.S. Sinha R/O,M-10,Strand Road,P.O. andP.S.Patna, Airport, Patna-800014 ... ... Petitioner/s Versus Chief Commissioner Of Income Tax-1, having its office at Central RevenueBuilding, Beerchand Patel Marg, Patna ... ... Respondent/s ======================================================Appearance :For the Petitioner/s: Mr.D.V.Pathy, Advocate For the Respondent/s: Mrs. Archana Sinha @ Shahi, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 03-12-2020 Petitioner has prayed for the following relief(s): i) that the order dated 17.8.2011 for the assessmentyears 2004-05, 2005-06, 2006-07, 2007-08, 2008-09, 2009-10 and 2010-11 passed by the respondent(as contained in Annexure-4 series) under Section 10(23C) (vi) and (via) of the Income Tax Act bequashed. years 2004-05, 2005-06, 2006-07, 2007-08, 2008-09, 2009-10 and 2010-11 passed by the respondent(as contained in Annexure-4 series) under Section 10(23C) (vi) and (via) of the Income Tax Act bequashed. (ii) for a direction to the respondent to grant approvalunder Section 10 (23C) (vi) and (via) of the IncomeTax Act.under Section 10 (23C) (vi) and (via) of the IncomeTax Act. (iii) for granting any other relief(s) to which thepetitioner is otherwise found entitled to.petitioner is otherwise found entitled to. 2. We have heard the learned counsel for the parties at length. 3. The primary issue which arises for consideration is as to whether the present petitioner, namely Bihar CombinedEntrance Competitive Examination Board would be entitled forexemption under the provisions of Section 10(23)(vi) whichpartly reads as under:- Section 10(23-C) (vi) 10. Incomes not included in total income.- Incomputing the total income of a previous yearof any person, any income falling within anyof the following clauses shall not be included-computing the total income of a previous yearof any person, any income falling within anyof the following clauses shall not be included- … (23-C) any income received by any person onbehalf of-behalf of-… (vi) any university or other educational institutionexisting solely for educational purposes andnot for purposes of profit, other than thosementioned in sub-clause (iiiab) or sub-clause(iiiad) and which may be approved by theprescribed authority; orexisting solely for educational purposes andnot for purposes of profit, other than thosementioned in sub-clause (iiiab) or sub-clause(iiiad) and which may be approved by theprescribed authority; or 4. We notice that vide impugned order dated 26[th] ofSeptember, 2012, the competent authority has rejected thepetitioner’s claim for grant of such exemption. 5. In support of his submission, Shri Pathy, learnedcounsel for the petitioner invites our attention to the decisionrendered by this Court in C.W.J.C. No. 20296 of 2010, titled as Bihar State Text Book Publishing Corporation Versus theCommissioner of Income Tax-I, Patna & anr. on 04.09.2020as also earlier decision rendered by this Court in M.A. No.425 of2010 titled as Bihar State Text Book Publishing Corporation Vs. The Commissioner of Income Tax-I, Patna, referred totherein. Also reliance is placed upon the decision rendered by theDelhi High Court in Council for the Indian School CertificateExaminations versus Director General of Income-Tax(Exemptions), [2014] 362 ITR 436 (Del). 5. In support of his submission, Shri Pathy, learnedcounsel for the petitioner invites our attention to the decisionrendered by this Court in C.W.J.C. No. 20296 of 2010, titled as Bihar State Text Book Publishing Corporation Versus theCommissioner of Income Tax-I, Patna & anr. on 04.09.2020as also earlier decision rendered by this Court in M.A. No.425 of2010 titled as Bihar State Text Book Publishing Corporation Vs. The Commissioner of Income Tax-I, Patna, referred totherein. Also reliance is placed upon the decision rendered by theDelhi High Court in Council for the Indian School CertificateExaminations versus Director General of Income-Tax(Exemptions), [2014] 362 ITR 436 (Del). 6. On the other hand, Mrs. Archana Sinha @ Shahiseeks reliance upon the decision rendered by Hon’ble the ApexCourt in Visvesvaraya Technological University versusAssistant Commissioner of Income Tax, 2016 (12) SCC 258, 7. However, in response thereto, Shri D.V.Pathy,learned counsel for the petitioners refers to and relies upon theother decisions rendered by Hon’ble the Apex Court in IslamicAcademy of Education vs. State of Karnataka, (2003) 6 697;Assam State Text Book Production and PublicationCorporation Limited versus Commissioner of Income Tax,(2009) 17 SCC 391 ; and in Queen’s Educational SocietyVersus Commissioner of Income Tax (2015) 8 SCC 47; . 8. Having perused the impugned order, we are of theconsidered view that the authority below, while concluding thatthe petitioner was not an educational institution, did not havecomplete material, including as to whether it was generating anyprofit by taking fees for conducting the examination. 9. After the matter was heard for some time, learnedcounsel for the parties were ad-idem that the matter can beremanded back to the authority for consideration afresh, byaffording opportunity to the parties to place all material, enablingthe authority to arrive at a decision in accordance with law. 10. We have no hesitation in acceding to such request.As such, dispose of the petition in the following terms: (a) The impugneds order dated 17.8.2011 passed by Chief Commissioner of Income Tax-I, Patna inF.No.CCIT/Pat/Tech-II/10(23C)(vi) & (via)/12-13,titled as Bihar Combined Entrance CompetitiveExamination Board, is quashed and set aside;F.No.CCIT/Pat/Tech-II/10(23C)(vi) & (via)/12-13,titled as Bihar Combined Entrance CompetitiveExamination Board, is quashed and set aside; (b) The matter is remanded back to theappropriate/competent authority for consideration ofthe petitioner’s application afresh;appropriate/competent authority for consideration ofthe petitioner’s application afresh; Here only Mrs. Archana Sinha clarifies that nowthe nominated authority is the PrincipalCommissioner of Income Tax (Exemption) Patna. (c) The parties are directed to appear before the saidauthority on 17.12.2020 when a date shall be fixed,enabling the parties to place on record additionalmaterial. authority on 17.12.2020 when a date shall be fixed,enabling the parties to place on record additionalmaterial. (d) Adequate opportunity of hearing shall be affordedwith full compliance of principles of natural justiceand the authority shall decide the matter afresh bypassing a speaking order, copies whereof shall besupplied to the parties.with full compliance of principles of natural justiceand the authority shall decide the matter afresh bypassing a speaking order, copies whereof shall besupplied to the parties. (e) Proceedings can be got conducted through a digitalmode, if so found necessary.mode, if so found necessary. (f) Liberty reserved to the parties to take recourse tosuch remedies, if so required and desired, as per law.such remedies, if so required and desired, as per law. (d) Adequate opportunity of hearing shall be affordedwith full compliance of principles of natural justiceand the authority shall decide the matter afresh bypassing a speaking order, copies whereof shall besupplied to the parties.with full compliance of principles of natural justiceand the authority shall decide the matter afresh bypassing a speaking order, copies whereof shall besupplied to the parties. (e) Proceedings can be got conducted through a digitalmode, if so found necessary.mode, if so found necessary. (f) Liberty reserved to the parties to take recourse tosuch remedies, if so required and desired, as per law.such remedies, if so required and desired, as per law. (g) We only hope and expect the authority to decide thematter expeditiously and preferably within thecurrent financial year and positively before 31[st]March, 2021.matter expeditiously and preferably within thecurrent financial year and positively before 31[st]March, 2021. (h) All issues are left open. 6/6 11. The writ petition stands disposed of in the above terms. 12. Interlocutory Application, if any, shall stand disposed of. (Sanjay Karol, CJ) K.C.Jha/-AFR/NAFRCAV DATEUploading Date08.12.2020Transmission Date ( S. Kumar, J)