TaxTMI 
TaxTMI 
2015 (8) TMI 912
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....per the several grounds in these appeals by the assessee is the maintainability or otherwise in law of the denial of registration u/s.12AA by the ld. CIT vide order/s u/s.12AA(1)(b)(ii) of the Act pursuant to the assessee's application/s for registration there-under. The background facts 3. The background facts leading to the issue under reference in both the appeals is the same, even as the reference to the dates, paragraph/page numbers, etc., which may come about in the narrative, are as arising qua the impugned order dated 27.03.2012. The assessee is a society registered under the Societies Registration Act, 1860 since February, 1992, and stands also declared as a Minority Educational Institution (MEI) within the meaning of section 2(g) of the National Commission for Minority Educational Institutions Act, 2004 ('NCMEI Act' hereinafter), being issued a certificate on 19.03.2007 to this effect by the National Commission for Minority Educational Institutions (NCMEI). The assessee applied for registration as a charitable institution u/s. 12A(1)(aa) on 06.10.2008, which was rejected by the competent authority vide its order dated 18.03.2010. The assessee moved a fresh application ....
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....ut. No doubt the educational institutions, being two schools, one affiliated to the ICSE Board and the other to the CBSE Board, run and managed by the assesseesociety, are MEIs. Again, we agree that the provisions of the NCMEI Act, 2004 and the Central Educational Institutions (Reservation in Admission Act, 2006), read in conjunction with Articles 29 and 30 of the Constitution of India (also 'Constitution') and the decisions by the Supreme Court having a bearing in the matter, clarify that the following elements are necessary for the status of a Minority Institution, as discerned by the ld. CIT after analyzing the same, at page 10 of his order: a) that the educational institution was established by a member/members of the minority religion community; b) that the educational institution is established for the benefit of the minority community; and c) that the educational institution is administered by the minority community. However, for the purposes of the Act, it is only the satisfaction of the condition (b) (supra), being violative of section 13(1)(b), which, may operate to deny registration as a Charitable Institution under the Act. We may, at this stage, clarify that the wo....
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....hown that Muslim students are charged lower fee than the non-muslims or, for example, the non-muslims teachers (of the same rank) are paid lower than their Muslim counter parts, establishing, thus, discrimination on religious lines, and which is not the case. It is also not the Revenue's case that scholarships by the assessee's educational institutions are granted only to the Muslims students. An absence of any charge on this score could only imply that, on an average, 90% of the scholarships go to non-muslim students, i.e., in the same ratio as of non-muslim students on its' rolls, so that the same are granted on merits to the deserving students (refer para 2/pg. 13 of the impugned order). This would again meet the charge of commerciality. In fact, the assessee states of the ICSE Board, with which one of the two schools being run by it is affiliated, specifically provides for the affiliate institution to be run on no profit basis. Continuing further, in the facts of the case, 90% of the students and, in fact, even the teachers are non-Muslims, which is itself destructive of the minority character of the institution, both on facts as well as in law, i.e., considering the provision....
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....)(c) r/w s. 13(3). In this regard, the assessee claims to have repaid the entire deposit by 31.12.2010/31.3.2011, i.e., prior to the (second) application, furnishing the balance-sheet as on that date to exhibit the same. In our view, the matter has to be examined and considered in its totality, i.e., whether the arrangement, in its intent and scope, was toward unjust enrichment of, or to benefit, the interested parties, directly or indirectly. The same falls within the ambit of section 13(1)(c) r/w s. 13(3) and, thus, has a bearing on the denial of benefit of sections 11 and 12, as clarified in the case of Chandrika Educational Trust v. CIT [1997] 224 ITR 453 (Ker), relied upon by the Revenue. The same could though, i.e., in the facts of a case, also have a bearing on the genuineness of the activities, as where it leads to the conclusion of the activities of the trust being carried out with an ulterior motive, resulting in refusal of registration. The onus in such a case would be heavy on the Revenue. We do not, however, consider the advance to be a part of any such arrangement, i.e., to benefit, directly or indirectly, the landlord or any other person specified u/s.13(3). The adva....
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....ithout disturbing the minority character. This balance, however, may not be specified in terms of a fixed percentage, which has to take into account the population as well as the educational needs of the area in which the educational institution is located, variables which are also subject to change with time (refer pgs. 8, 9 of the impugned order). The situation, thus, as it appears, is in a state of flux, though the position in law is clear, with the state governments empowered to prescribe the percentage, and which could be revised or changed from time to time. Clearly, thus, a right to regulate admission thereto is an important right of a minority institution. However, we do not find the same expressed in the charter of the assessee-society; there being no reference to any percentage or any restriction or mandate in respect thereof in its 'Aims and Objects'. Whatever implication this may have for its status as a minority institution, we can hardly countenance or subscribe to a proposition which, despite there being nothing either in its memorandum of association (object clause) or its conduct, sanctions a presumption that it is established for the benefit of the minority (Musl....
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....otwithstanding, therefore, a minority status being accorded to its educational institutions, we are, both on the facts and in law, unable to regard it as being established for the benefit of a particular religious community. Even though the relevant provision (sec. 13(1)(b)) provides for exclusion of ss. 11 and 12 of the Act, the same could well be taken into consideration for the purpose of grant or otherwise of registration u/s.12AA in-as-much as it impinges on its public character. What, we are unable to comprehend, effect or purpose the registration would have where, notwithstanding the same, no benefit u/ss. 11 and 12 can be allowed in view of an abiding feature of the applicant's constitution or its' inherent nature. The Revenue has also been unable to move us on the grounds of commerciality or as to the institution/s operating for the benefit - direct or indirect, of the excluded/ specified persons. Finally, a bare reading of this order would disclose several differences between the case as made out before us and that before the tribunal (SMC Bench) in the assessee's case (supra) relied upon by the Revenue - which order we have perused, even as the same is not binding on u....
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....y this second innings of section 147 and subsequent Assessment Order, the order of CIT(A)-II, Patna dated 16.01.2009 has been reduced to a nullity and at the same time, appeal has been filed against this order. Therefore, it was bad in law for the AO to initiate proceedings u/s.147 for a second time primarily for the same reasons when appeal in respect of first proceedings was pending before the ITAT. Therefore, the proceedings u/s.147 initiated on 16.04.2009 are not sustainable and need to be quashed.' 9. We have heard the parties, and perused the material on record. The primary facts are not in dispute. We are in agreement with the ld. CIT(A) that the reasons recorded by the A.O. u/s.148(2) for the issue of notice u/s.148(1) are substantially the same as recorded by him in the first instance, i.e., while issuing notice u/s.148(1) dated 08.01.2007. He, however, completely misleads himself in holding the second initiation, i.e., which is under reference, as bad in law. The A.O. has an inherent right to assess the assessee's income, which includes reassessment of income (s. 2(8)). The only restriction is that he has to, in doing so, observe the procedure prescribed in law in its r....