The judgment of the court was delivered by
This appeal under Section 260A of the Income Tax Act, 1961 (the Act) challenges the order passed by the Income Tax Appellate Tribunal (Tribunal).
2. On 15.01.2010 this appeal was admitted on the following substantial questions of law :-
“(c) Whether on the facts and in the circumstances of the case, the ITAT was correct in law, in directing the Commissioner to grant approval under Section 80G(5) of the Act, even though the assessee had not furnished any details or evidence in support of its assertion on having registration under section 12AA of the Act?
(d) Whether on the facts and in the circumstance s of the case, the ITAT was correct in law, in directing the Commissioner to grant approval under Section 80G(5) of the Act, without even ascertaining as to whether the assessee applicant fulfilled the conditions stipulated in the proviso to Section 80G(5) of the Act?”
3. The impugned order of the Tribunal allowed the respondent/assessee's appeal holding that the respondent/assessee is entitled to approval/registration under Section 80G(5) of the Act. The Commissioner of Income Tax had rejected the application of the respondent/assessee for registration under Section 80G(5) of the Act on the ground that the respondent/assessee did not have registration under Section 12A of the Act. This, according to the Commissioner, was a pre-condition for registration under Section 80G(5) of the Act.
4. Mr. Dewani, learned counsel appearing for the respondent/ assessee states that respondent/assessee has been granted registration under Section 12A of the Act with effect from 01.04.2008 by the order of the Tribunal. The Revenue had filed an appeal bearing Income Tax Appeal No.27/2011 (CIT vs. Shivaji Education Society, Amravati) to this Court against the above order granting registration under Section 12A of the Act. This appeal (I.T.A. No.27/2011) by the Revenue was dismissed on 02.02.2012 by this Court. In view of the above, grant of registration under Section 80G(5) of the Act by the impugned order of the Tribunal cannot now be a subject matter of grievance for the Revenue.
6. Mr. Bhattad, learned counsel appearing for the Revenue accepts the fact that in view of the registration being granted under Section 12A of the Act with effect from 01.04.2008, the registration under Section 80G(5) of the Act of the respondent/assessee cannot be a source of complaint.
7. However, Mr. Bhattad for the Revenue stated that the Revenue has challenged the order of this Court in Income Tax Appeal No.27/2011 (supra) dated 02.02.2012 before the Supreme Court. The special leave has been granted and it is awaiting disposal as Civil Appeal No.8194/2012 before the Supreme Court. Thus, it is submitted that this appeal be allowed. We are unable to understand the above submission when no stay of the order dated 02.02.2012 passed by this Court, by the Apex Court has been brought to our notice.
8. Therefore, the substantial questions of law on which this appeal has been admitted, would necessarily have to be answered in the affirmative i.e. in favour of the respondent/assessee and against the appellant/Revenue.
9. It may also be pointed out that the impugned order of the Tribunal also records the fact that the respondent/assessee would be entitled to be registration under Section 80G(5) of the Act as its income would fall under Section 10(23C) of the Act. Thus, not includable in total income. Therefore, satisfies the pre-condition as stipulated in subsection (5) of Section 80G of the Act for grant of Registration. We find that the same has not been admitted as substantial question of law. Therefore, this would be one more reason why appeal filed by the appellant/Revenue must fail.
10. Accordingly, appeal dismissed. No order as to costs.