IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT PETITON NO.12 OF 2008 WRIT PETITON NO.12 OF 2008 WRIT PETITON NO.12 OF 2008 Tolani Education Foundation ..Petitioner. V/s. Asstt. Commissioner of Income Tax & Ors...Respondents. Mr.S.E.Dastur, senior Advocate with Nitesh Joshi i/b. Atul K.Jasani for petitioner. Mr.R.Ashokan with Ms.P.P.Bhosale and R.S.Sahadeven for respondents. CORAM : DR. S.RADHAKRISHNAN AND CORAM : DR. S.RADHAKRISHNAN AND CORAM : DR. S.RADHAKRISHNAN AND J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. DATED : 1ST APRIL, 2008. DATED : 1ST APRIL, 2008. DATED : 1ST APRIL, 2008. P.C. :- P.C. :- P.C. :- 1. Heard learned senior counsel for the petitioner and learned counsel for the respondents. Rule. Rule made returnable forthwith. 2. Counsel for the respondents waive service. By consent of the parties, petition is taken up for final hearing. 3. By this petition, the petitioner is challenging the order dated 31/3/2007 whereby petitioner’s claim for grant of exemption under section 10(23C)(vi) of the Income Tax Act, 1961 from 2005-06 onwards was rejected by the Chief Commissioner of Income Tax (Central)-II, Mumbai. Mr.Dastur, learned - = : 2 : = - senior counsel for the petitioner pointed out that the Chief Commissioner of Income Tax observed in para 7 that the petitioner has not filed any appeal against the assessment order for A.Y. 2003-04 wherein it was held that a sum of Rs.1.33 crores has not been spent by the foundation towards the object of the Trust. Mr.Dastur pointed out that when the above order was passed, appeal was not filed because the trust income was exempt, however the petitioners have subsequently filed an appeal and the same is pending. Apart from that, he has pointed out that there is an application filed by the petitioner on 1st March, 2005 seeking exemption upto 2004-05 and the same is also pending. 4. Mr.Dastur pointed out that in the subsequent assessment order for 2004-05 passed on 15th December, 2006 the payment of rent to another charitable trust has been accepted by the asessing officer. Under the aforesaid facts and circumstances, we quash and set aside the impugned order dated 31st July, 2007 and direct the respondent No.3 Chief Commissioner of Income Tax (Central) II, Mumbai to decide the said issue afresh. Over and above that, we also direct the Chief Commissioner of Income Tax to decide the application of the petitioner for exemption filed on 1st March, 2005 for the assessment year 2004-05 onwards. The Chief Commissioner of Income Tax (Central) II, Mumbai shall - = : 3 : = - expeditiously decide the same. 5. Rule is made absolute in above terms. 6. Writ Petition disposed of accordingly with no order as to costs. (DR.S.RADHAKRISHNAN, J.) (DR.S.RADHAKRISHNAN, J.) (DR.S.RADHAKRISHNAN, J.) (J.P. DEVADHAR, J.) (J.P. DEVADHAR, J.) (J.P. DEVADHAR, J.)