Wp/27482/2007 Of St.marys Educational Society v. The Chief Commissioner Of Income Tax

IN THE HIGH COURT OF JUDICATURE OFANDHRA PRADESHAT HYDERABAD THE HON’BLE MRS. JUSTICE T.MEENA KUMARIAND THE HON’BLE MS. JUSTICE G.ROHINI WRIT PETITION NO.27482 OF 2007 Dated : December 31, 2007 Between: St. Mary’s Educational Society,]Rep. By its Secretary Mrs.Y.Mary. Petitioner AND The Chief Commissioner of Income Tax,Hyderabad –1, Ayakar Bhavan,Basheerbagh, Hyderabad Respondent THE HON’BLE MRS. JUSTICE T.MEENA KUMARIAND THE HON’BLE MS. JUSTICE G.ROHINI WRIT PETITION NO.27482 OF 2007 ORAL ORDER:(per THE HON’BLE MRS. JUSTICE T.MEENA KUMARI) Seeking a writ of Certiorari to call for the recordsrelating to File No.CC/Tech.I/22b (153)/2007-08 dated31.10.2007 whereby the application of the petitionerseeking exemption was rejected and consequently togrant recognition to the petitioner under the provisions ofSection 10(23-C)(iv) of the Income Tax Act for theassessment year 2005-2006 and 2006-2007, thepetitioner filed this writ petition. The petitioner is a Society formed with the object ofestablishing Educational Institutions for impartingeducation and in furtherance of such object, it establishedJunior and Degree Colleges at Himayathnagar and atYousufguda. It is averred that the petitioner Society doesnot impart or offer coaching classes for EAMCET or anyother competitive examinations. The petitioner is an assessee on the rolls of therespondent, under Sec. 12 of the Income Tax Act. Whileso, the petitioner made an application under Sec.10(23-C)(vi) of the Income Tax Act claiming exemption in Form 56-D on 27.10.2006 annexing Memorandum of Articles ofAssociation. The petitioner claimed exemption for theassessment year 2005-06 and 2006-2007. While so, therespondent by impugned order dated 31.10.2007 rejectedthe petitioner’s application under sub-clause (6) of Sec. 10(23-C) of the Income Tax Act for violation of Sec. 11(5)read with Sec. 13(1)(d) which contemplates that surplusfunds, if any of the institution, should be deposited in thesecurities enumerated in Sec. 11(5); that the petitionerhas collected capitation fee prohibited under the A.P.Educational Institutions (Regularisation of Admission andProhibition of Capitation Fees) Act, 1983 and that thepetitioner’s institution is running for the purpose of profit.The impugned order further shows that though notice wasissued on 23.10.2007 itself, fixing the date of hearing on19.10.2007, there was no representation on behalf of thepetitioner Institution, as such, the application submitted bythe petitioner seeking exemption under Sec. 10(23-C) (vi)of the Income Tax Act for the assessment years 2006-07and 2007-08 was rejected. Heard the learned counsel for the petitioner and thelearned Standing Counsel for the Income TaxDepartment. The learned counsel for the petitioner submitted thatthe impugned order is passed without putting the petitionon notice and, therefore, contended that an opportunity begiven to the petitioner to submit objections. Having regard to the facts and circumstances of thecase and having heard the learned counsel for thepetitioner and respondent, we feel that the writ petition canbe disposed of giving liberty to the petitioner to filed objections to the impugned order dated 31.10.2007.Accordingly, without delving on merits or otherwise of thecontention raise by the petitioner, the writ petition isdisposed of giving liberty to the petitioner to raise all theobjections that are available to it before the respondent,within a period of two weeks from day and on such filing ofthe objections by the petitioner, the respondent is directedto consider the same and pass appropriate orders afteraffording an opportunity of hearing to the petitioner, withina period of three months therefrom. With these directions, the writ petition is disposed of.No order as to costs. ____________________ T.MEENA KUMARI, J. December 31, 2007MAS ____________ G.ROHINI, J.