M.C. Agarwal, J. - (1.) BY this petition, the petitioner challenges (i) a Notification No. 6551 F. No. 203/23/957, dated January 2, 1986, issued by the Under Secretary to the Government of India withdrawing the approval of the petitioner for the purpose of Sections 35(1)(ii) and 10(21) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), with retrospective effect from January 17, 1980 ; (ii) notices issued by the Income-tax Officer, Faizabad, respondent No. 4, under Sections 148 and 139(2) of the Act; (iii) order dated July 21, 1986, passed by the Commissioner of Income-tax under Section 263 of the Act setting aside the petitioner's assessment for the assessment years 1981-82 and 1982-83 and directing the Assessing Officer to make fresh assessments after making proper enquiries, and (iv) notice issued by the Income-tax Officer 11(3), Kanpur, respondent No. 5, asking for certain information in connection with the assessment for the assessment year 1983-84. A writ of prohibition is also sought to restrain the respondents from taking any further proceedings in pursuance of the various notices mentioned above.
(2.) WE have heard Sri S.P. Gupta, learned senior advocate, assisted by Sri Shakeel Ahmad for the petitioner, and Sri Bharat Ji Agarwal, learned senior standing counsel, for the respondents. The petitioner's case is that it is a society registered under the Societies Registration Act, and its object is to undertake scientific research in connection with sugarcane varieties, manuring, irrigation, soil testing and crop diseases, in pest control, etc. It has a research centre situate in village Masondha, Motinagar, in the District of Faizabad while its head office is situate at Moti Bhawan, Collectorganj, Kanpur. The petitioner applied to the prescribed authority, namely, Indian Council of Agriculture Research, for recognition for the purpose of Section 35(1)(ii) of the Act and the prescribed authority after due care and scrutiny gave its approval, vide Notification No. 2739 (F. No. 203/197-78 ITA-II) (see [1979] 118 ITR (St.) 32), dated March 18, 1979, for a period of one year from January 17, 1979, to January 16, 1980. Further approval for the period January 17, 1980, to January 16, 1983, was granted, vide Notification No. 4185 (F. No. 203/134/ 79-ITA-II) (see [1982] 133 ITR (St.) 18), dated August 20, 1981, and again, vide Notification No. 5431 (F. No. 203/170/82-ITA-II), dated October 22, 1983 (see [1984] 145 ITR (St.) 19). Approval was accorded for the period January 17, 1983, to June 30, 1984. The last approval was subject to the following conditions (see [1984] 145 ITR (St.) 19) : " (i) That the K.M. Scientific Research Centre, Faizabad, will maintain a separate account of the sums received by it for scientific research. (ii) That the said association will furnish annual returns of its scientific research activities to the prescribed authority for every financial year in such forms as may be laid down and intimated to them for this purpose by April 30, each year. (iii) That the said association will submit to the prescribed authority by June 30, each year, a copy of their audited annual accounts showing their total income and expenditure and balance-sheet showing its assets and liabilities with a copy of each of these documents to the concerned Commissioner of Income-tax." It is claimed that with every application for approval the petitioner furnished all the particulars and details required therein and the petitioner was granted approval only after satisfying all its queries and conditions. It is alleged that although in terms of the first two approvals it was not obligatory on the part of the petitioner to submit copies of its annual accounts, even then the petitioner submitted such accounts after the same were completed. By letter dated June 7, 1985, respondent No. 1, namely, Principal Scientific Officer, Government of India, Ministry of Science and Technology, Department of Scientific and Industrial Research, informed the petitioner that it was proposed to withdraw the approval retrospectively with effect from June 17, 1980, copy of the said letter has been annexed as annexure "6" to the writ petition and it is stated that it gave no reason for the withdrawal. It is claimed that the petitioner was surprised and shocked to receive the said communication because it has been carrying on very wide and extensive research work and has been rendering yeoman services to the sugarcane farmers. By letter dated September 7, 1985, the petitioner submitted the audited annual accounts of the research centre for the year ending September 30, 1982, along with a copy of the annual report for 1983-84 and also a note on the work relating to research and demonstration conducted under the auspices of the research centre. The petitioner in its meeting with respondent No. 1 strongly pleaded for continuation of the approval and exemption under Section 35(1)(ii) and submitted that there was no case whatsoever for the proposed retrospective withdrawal which was granted only after full satisfaction regarding the various research activities being carried on by the petitioner. The petitioner was, however, informed by the Under Secretary to the Government of India by notification dated January 2, 1986, that the notifications dated August 20, 1981, and October 22, 1983, were withdrawn retrospectively with effect from June 7, 1980. The petitioner through a letter dated January 24, 1986, addressed to the third respondent, namely, the Under Secretary to the Government of India, submitted full facts about the research centre which had not been taken into account by the prescribed authority while withdrawing the approval and requested for a reconsideration of the matter. With the said letter, the audited balance-sheet for the year 1981-82 was also submitted and the petitioner undertook to file shortly thereafter the annual accounts for the year 1982-83 after the same were compiled and audited. The first respondent, vide his letter dated February 7, 1986, informed the petitioner that the comments of the Department have already been sent to the Ministry of Finance and the petitioner may contact the said Ministry for further action. Respondent No. 3 in his turn asked the petitioner to contact the prescribed authority and it was alleged that the petitioner's application for reconsideration was pending. As a consequence of the withdrawal of the approval, the Income-tax Officer, Faizabad, respondent No. 4, has issued four notices dated February 3, under Section 148 of the Act for the assessment years 1981-82 to 1984-85 calling upon the petitioner to submit its return of income for those assessment years. The said officer also issued a notice under Section 139(2) of the Act for the assessment year 1985-86. It is claimed that the petitioner is being assessed by the Income-tax Officer 11(3), Kanpur, and the said notices are illegal and the reply to this effect has been sent. The Commissioner of Income-tax, Kanpur, respondent No. 6, also issued show-cause notice under Section 263 for the assessment years 1981-82 and 1982-83 proposing to set aside the assessment in view of the retrospective withdrawal of approval under Section 35(1)(ii) and in spite of objections by the petitioner he has ultimately passed orders (copies annexures 21 and 22) quashing the assessments and directing the Assessing Officer to make fresh assessments. The Income-tax Officer 11(3), Kanpur, also issued a notice dated July 25, 1986, requiring the petitioner to furnish details of all names and addresses of the parties to whom the petitioner had made donations totalling to Rs. 43,00,000 and also called upon the petitioner to explain why excess of income over expenditure to the extent of Rs. 19,97,779 be not brought to tax. The petitioner contends that all these proceedings are without jurisdiction and premature as the prescribed authority had no power or jurisdiction to give the notification retrospective operation. It is claimed that the notices issued by the Income-tax Officer, Faizabad, are without jurisdiction as the petitioner's Assessing Officer is Income-tax Officer 11(5), Kanpur, who has already made assessments for some years and that the notification withdrawing the approval with retrospective effect is ultra vires and all his actions in pursuance thereof are illegal and the notice for the assessment year 1983-84 is also bad in law because the assessment proceedings for that year were pending before the Income-tax Officer 11(3), Kanpur. It is claimed that the assessment orders were not erroneous and prejudicial to the interests of the Revenue when they were passed because at the time of making of the assessments the approval was in force and hence actions taken under Section 263 are illegal. It is also claimed that the assessment orders that have been cancelled by the Commissioner of Income-tax under Section 263 were no assessment orders in the eyes of law as there was neither income nor loss determined and, therefore, there was nothing for the Commissioner of Income-tax to cancel. It is claimed that the petitioner has no effective, adequate remedy against the aforesaid actions of the authorities concerned.
(3.) RESPONDENTS Nos. 1, 2, 3 and 7 have filed a separate counter-affidavit while another counter-affidavit has been filed on behalf of respondents Nos. 5 and 6. An affidavit sworn by Sri Ramesh Chandra Gupta, Inspector of Income-tax, Faizabad, has been filed on behalf of respondent No. 4. On behalf of the prescribed authority and its allies, it has been stated that up to June 30, 1982, the Indian Council of Agricultural Research was the prescribed authority for the purposes of Section 35(1)(ii) in the field of agricultural research. Thereafter, the Department of Science and Technology was given the function of the prescribed authority and at present, Ministry of Science and Technology (Department of Scientific and Industrial Research) is acting as the prescribed authority. It is claimed that in accordance with the procedure prescribed by the Ministry an inter-departmental research review group has been set up to review the annual returns of these institutions. This group consists of representatives of the Indian Council of Agricultural Research, CSIR, ICMR, the Ministry of Science and Technology (Department of Scientific and Industrial Research), and the Central Board of Direct Taxes. The annual returns are placed before this group for review and to make recommendations on them for consideration of the prescribed authority. The petitioner was one of the associations which was granted approval for the periods from January 17, 1980, to January 16, 1983, and January 17, 1983, to June 30, 1984. On receipt of several complaints about the misutilisation of funds, and absence of any scientific research the case of the petitioner was examined by the prescribed authority and it was noted that the Centre had not been submitting the prescribed annual returns. By letter dated August 13, 1984, the petitioner was asked to submit annual returns for the years 1982-83 and 1983-84. The petitioner did not respond in spite of reminder dated September 14, 1984. Then on the recommendation of the research review group a reminder was sent by registered post, a copy of which is annexure "A". Again there was no response and a further letter dated December 7, 1984, a copy of which is annexure "B" was sent. The petitioner then sent a letter dated December 17, 1984, stating that the accounts were being prepared and will be submitted within three to four weeks but still the requisite information was not furnished and a further reminder dated February 25, 1985, was issued a copy of which is annexure "C" to the counter-affidavit. Ultimately, a show-cause notice dated June 7, 1985, was issued to the petitioner by registered post to show cause why the approval be not withdrawn. The letter contained the reasons for the approval (sic) and the petitioner was asked to send a reply by July 8, 1985. No reply was received yet to afford another opportunity to the petitioner, a hearing was fixed at 10-11 a.m. on August 9, 1985. The petitioner sent a reply dated July 1, 1985, along with the annual progress report for the year 1982-83 and letter dated July 29, 1985, was received requesting for postponement of the hearing fixed for August 9, 1985. The hearing ultimately took place on September 9, 1985, in which the petitioner was represented by Sarvasri L.K. Jhunjhunwala and M.P. Mehrotra. The petitioner's representatives were asked to explain the following expenses incurred by the petitioner as to how they were relevant for conducting agricultural research : JUDGEMENT_23_ITR229_1998Html1.htm ;