Vaish Model Primary School Education Society v. Chief Commissioner Of Income Tax, Panchkula

CWP-16541-2012 CWP-16541-2012 (O&M)Date of Decision: 28.9.2018 Vaish Model Primary School Education Society ...Petitioner Versus Chief Commissioner of Income Tax, Panchkula ...Respondent CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.HON'BLE MR. JUSTICE AVNEESH JHINGAN. PRESENT: Mr. Sandeep Goyal, Advocate for the applicant-petitioner.Mr. Denesh Goyal, Sr. Standing Counsel for the respondent. AJAY KUMAR MITTAL,J. 1.This writ petition has been filed under Articles 226/227 of theConstitution of India for issuance of a writ in the nature of certiorari forquashing the order dated 30.5.2012 (Annexure P-10) passed by therespondent rejecting the application dated 26.9.2009 (Annexure P-3) filedby the petitioner for exemption/approval under Section 10(23C)(vi) of theIncome Tax Act, 1961 (in short “the Act”) for the assessment year 2009-10.Further, a writ of mandamus has been sought directing the respondent togrant exemption to the petitioner under Section 10(23C)(vi) of the Act. 2. Briefly stated, the facts necessary for adjudication of thepresent writ petition as narrated therein may be noticed. The petitioner is aSociety registered under the Societies Registration Act, 1860 with theRegistrar of Societies vide Registration Certificate dated 29.9.2009 CWP-16541-2012 (Annexure P-1). It is an educational institution for educational purposes asis discernible from the Memorandum of Association dated 29.9.2009(Annexure P-2). The petitioner had been regularly filing its income taxreturns. Since it had been for educational purposes and not for the purposesof earning profit, the petitioner was entitled to exemption under Section 10(23C)(vi) of the Act. The petitioner vide application dated 26.9.2009(Annexure P-3) applied for exemption under Section 10(23C)(vi) of the Actfrom the assessment years 2009-10 and onwards along with the requisitedocuments. In response thereto, the Income Tax Officer, vide letter dated6.8.2010 (Annexure P-4) asked the petitioner to appear in person. Thepetitioner submitted detailed written submissions dated 29.9.2010(Annexure P-5). The respondent vide order dated 29.9.2010 (Annexure P-6)rejected the application of the petitioner for grant of exemption underSection 10(23C)(vi) of the Act. Against the order, Annexure P-6, thepetitioner filed CWP-4119-2011 and this Court vide order dated 3.10.2011(Annexure P-7) allowed the writ petition and directed the respondent to re-decide the issue by keeping in mind the principles laid down in casePinegrove International Charitable Trust's case (supra) and the earlierorder dated 29.1.2010 passed in Civil Writ Petition No. 858 of 2009 andother connected petitions including the petitioner's writ petition being CivilWrit Petition No. 8258 of 2009 for the assessment years 2005-06 to 2008-09. Vide letter dated 27.12.2011 (Annexure P-8), the petitioner wasdirected to appear before the respondent on 9.1.2012. In response thereto,the counsel for the petitioner filed written submissions dated 25.5.2012(Annexure P-9) along with the relevant documents. However, theGURBACHAN SINGHrespondent vide order dated 30.5.2012 (Annexure P-10) rejected the2018.10.08 10:43I attest to the accuracy andintegrity of this document CWP-16541-2012 application of the petitioner for the claim of exemption. Hence, the presentwrit petition. 3. We have heard the learned counsel for the parties and haveperused the record. 4.Learned counsel for the petitioner placed reliance upon the judgment of this Court in Pine Grove International Charitable Trust v.Union of India (2010) 327 ITR 273 which was affirmed by the ApexCourt. Further, reliance was also placed upon the decision of the SupremeCourt in M/s Queen's Educational Society v. Commissioner of IncomeTax, AIR 2015(SC) 3253. CWP-16541-2012 application of the petitioner for the claim of exemption. Hence, the presentwrit petition. 3. We have heard the learned counsel for the parties and haveperused the record. 4.Learned counsel for the petitioner placed reliance upon the judgment of this Court in Pine Grove International Charitable Trust v.Union of India (2010) 327 ITR 273 which was affirmed by the ApexCourt. Further, reliance was also placed upon the decision of the SupremeCourt in M/s Queen's Educational Society v. Commissioner of IncomeTax, AIR 2015(SC) 3253. 5. On the other hand, the order declining the grant of benefitunder Section 10(23C)(vi) of the Act was sought to be justified by placingreliance upon the decision of the Karnataka High Court in Visvesvaraya Technological University v. Assistant Commissioner of Income Tax(2014) 362 ITR 279 which was affirmed by the Apex Court inVisvesvaraya Technological University v. Assistant Commissioner ofIncome Tax (2016) 384 ITR 37 (SC). 6. Besides the aforesaid, both the parties had also relied upon theproposition of law laid down by this Court in Commissioner of IncomeTax, Jalandhar-I, Jalandhar v. Gulab Devi Memorial Hospital Trust,Jalandhar, ITA No. 602 of 2010 decided on 23.12.2016. In view of theaforesaid decisions, it was urged by learned counsel for the parties thatkeeping in view the factual matrix involved herein, the issue is required tobe adjudicated in their favour. 7. After hearing learned counsel for the parties at length, it isconsidered appropriate to remit the matter to the respondent who shall on CWP-16541-2012 the basis of facts involved herein apply the legal principles enunciated in theabove noted pronouncements. 8. Consequently, the writ petition is allowed and the order dated30.5.2012 (Annexure P-10) passed by the respondent is set aside. Thematter is remitted to the respondent for deciding afresh in accordance withlaw after affording an opportunity of hearing to the parties. Needless to saythat anything observed herein before shall not be taken as an expression of opinion on the merits of the controversy. 9.This order shall also dispose of CM-9805-CWP-2017. (AJAY KUMAR MITTAL) JUDGE September 28, 2018gbs (AVNEESH JHINGAN)JUDGE Whether Speaking/Reasoned Yes Whether ReportableYes