ORDER :- This petition has been preferred against refusal to grant approval to the petitioner under section 80G(5) of the Income Tax Act, 1961 vide order dated 21-5-2001 marked as Annexure A/6. 2. Petitioner is a society registered under the provisions of the Madhya Pradesh Societies Registration Act, 1973 which is formed for carrying out research, training and education in the fields of development especially rural development, general management, antipoverty action, project planning and management etc. Petitioner applied for registration under section 12A(a) of the Income Tax Act, 1961 which was allowed w.e.f. 1-4-1996. Petitioner applied for renewal of approval under section 80G vide its application on form No. 10-G, copy whereof has been annexed as Annexure A/2 along with enclosures. The Commissioner of Income Tax vide his letters dated 14-2-2001 and 26-2-2001 (collectively on record as Annexure A/3) expressed his desire to visit the petitioner institute. He was informed by the petitioner that the concerning officers of the petitioner were not available and it would be possible to facilitate the inspection in the month of March, 2001. Accordingly, visit of the Commissioner of Income Tax was performed at the centre of the petitioner on 26-4-2001. After making inspection, the Commissioner of Income Tax passed the impugned order Annexure A/6 thereby rejecting the application of the petitioner under section 80G, which is challenged on the ground that the petitioner was never served with any specific show-cause notice nor was given any opportunity. Impugned order is, thus, violative of principles of natural justice and is not sustainable in law. There was no material before the learned Commissioner of Income Tax to arrive at the conclusion that the petitioner is running the institution on commercial lines and the finding that the petitioner is not a charitable institute has no basis. Accordingly, following main reliefs have been prayed for :- (1) To direct the respondent No. 2 to allow proper opportunity of hearing to the petitioner to explain his case before the respondent No. 2. (2) To direct the respondent No. 2 to grant approval under section 80G of the Income Tax Act read with Rule 11AA to the petitioner. (3) To quash the order F.NO.CIT/JBP/80G/2001-02 dated 21-5-2001 passed by the Commissioner refusing to grant renewal under section 80G of the Act. (2) To direct the respondent No. 2 to grant approval under section 80G of the Income Tax Act read with Rule 11AA to the petitioner. (3) To quash the order F.NO.CIT/JBP/80G/2001-02 dated 21-5-2001 passed by the Commissioner refusing to grant renewal under section 80G of the Act. (4) To direct respondent No. 2 to grant continuation of the approval allowed under section 80G of the Income Tax Act vide order dated 31-3-1998 with effect from 1-1-1998 to 31-3-2000. 3. In the return submitted by the respondents it is stated that the objects of the petitioner are already mentioned in the trust deed, which are not fully charitable in nature. It is denied that opportunity of hearing was not given to the petitioner. On the contrary, the impugned order has been passed on the basis of material provided by the petitioner itself and no extraneous material was taken into consideration while passing the impugned order. The articles of the petitioner provide means of distribution of the assets on dissolution of the institute and the ownership of the landed property of the institute. It cannot be said on their basis that the institution is not functioning with a motive of profit. Petitioner has been rightly found to be working on commercial lines. It is categorically stated in the return that running of various courses is on commercial lines due to quantum of fees charged and other activities of the institute being self funding, the profit is generated. Moreover, the petitioner is not maintaining the separate account for the educational institute. Accordingly, the Commissioner of Income Tax is justified in disallowing the exemption under section 80G to the petitioner. Therefore, the prayer for dismissal of the writ petition has been made. 4. Shri G. N. Purohit, learned senior counsel for the petitioner and Shri Rohit Arya, learned senior counsel for Income Tax Department made their respective submissions. 5. Relevant portion of section 80G of the Income Tax Act, 1961 for the purpose of the present writ petition is reproduced below : - "80G. Deduction in respect of donations to certain funds, charitable institutions, etc. - (1) hi computing the total income of an assessee, there shall be deducted, in accordance with and subject to the provisions of this section, - 0)........ (ii)........ Deduction in respect of donations to certain funds, charitable institutions, etc. - (1) hi computing the total income of an assessee, there shall be deducted, in accordance with and subject to the provisions of this section, - 0)........ (ii)........ (2) The sums referred to in sub-section (1) shall be the following, namely : - (a) any sums paid by the assessee in the previous year as donations to- (ii)........ (iii)........ (iv) any other fund or any institution to which this section applies; (v)........ (vi)........ (vii)........ (3)........ (4)........ (ii)........ (2) The sums referred to in sub-section (1) shall be the following, namely : - (a) any sums paid by the assessee in the previous year as donations to- (ii)........ (iii)........ (iv) any other fund or any institution to which this section applies; (v)........ (vi)........ (vii)........ (3)........ (4)........ (5) This section applies to donations to any institution or fund referred to in sub-clause (iv) of clause (a) of sub-section (2), only if it is established in India for a charitable purpose and if fulfils the following conditions, namely :- (i) where the institution or fund derives any income, such income would not be liable to inclusion in its total income under the provisions of sections 11 and 12 or clause (22) [or clause (22A)] [or clause (23)] [or clause 23AA) or clause (23C)] of section 10; [Provided that where an institution or fund derives any income, being profits and gains of business, the condition that such income would not be liable to inclusion in its total income under the provisions of section 11 shall not apply in relation to such income if, - (a) the institution or fund maintains separate books of account in respect of such business; (b) the donations made to the institution or fund are not used by it, directly or indirectly, for the purposes of such business; and (c) the institution or fund issues to the person making the donation a certificate to the effect that it maintains separate books of account in respect of such business and that the donations received by it will not be used, directly or indirectly, for the purposes of such business;] (ii) the instrument under which the institution or fund is constituted does not, or the rules governing the institution or fund do not, contain any provision for the transfer or application at any time of the whole or any part of the income or assets of the institution or fund for any purpose other than a charitable purpose; (iii) the institution or fund is not expressed to be for the benefit of any particular religious community or caste; (iv) the institution or fund maintains regular accounts of its receipts and expenditure; (v) the institution or fund is either constituted as a public charitable trust or is registered under the Societies Registration Act, 1860, or under any law corresponding to that Act in force in any part of India or under section 25 of the Companies Act, 1956 (1 of 1956), or is a University established by law, or is any other educational institution recognized by the Government or by a University established by law, or affiliated to any University established by law, [or is an institution approved by the Central Government for the purposes of clause (23) of section 10,] or is an institution financed wholly or in part by the Government or a local authority, [and] [(vi) in relation to donations made after the 31st day of March, 1992, the institution or fund is for the time being approved by the Commissioner in accordance with the rules made in this behalf: Provided that any approval shall have effect for such assessment year or years, not exceeding [five assessment years], as may be, specified in the approval] [(5A) Where a deduction under this section is claimed and allowed for any assessment year in respect of any sum specified in sub-section (2), the sum in respect of which deduction is so allowed shall not qualify for deduction under any other provision of this Act for the same or any other assessment year.]" 6. Shri Purohit, learned senior counsel contended that the exemption under section 80G was earlier granted to the petitioner from 1-1-1998 to 31-3-2000 as revealed in Annexure A/7 dated 31-3-1998 and the petitioner has not undergone any change thereafter. Consequently, renewal of exemption could not have been denied to the petitioner for the subsequent period vide the impugned order contained in Annexure A/6. It is further contended by the learned senior counsel that the visit was performed by the Commissioner of Income Tax on 26-4-2001 in the presence of the concerning officials of the petitioner. Learned Commissioner of Income Tax did not seek any explanation from them with regard to any doubt and did not prepare the proceedings at the time of visit. If he entertained any doubt about the entitlement of petitioner, he ought to have sought explanation or ought to have given an opportunity to the petitioner to furnish explanation or to furnish proof with regard to entitlement of the petitioner. 7. Per contra, Shri Rohit Arya, learned senior counsel for the Income Tax Department submitted that the petitioner has been rightly denied the exemption under section 80G and the findings of the learned Commissioner of Income Tax being based on the material supplied by the petitioner itself do not warrant interference. 8. Before entering into merits of the claim of the petitioner, it would be proper to have a view of other relevant provisions of the Income Tax Act, 1961 which are reproduced below with certain relevant facts :- (1) The petitioner was registered under section 12A of the Income Tax Act, 1961 which is reproduced below :- "Section 12A : Conditions as to registration of trusts, etc. Provisions of section 11 and section 12 shall not apply in relation to the income of any trust or institution unless the following conditions are fulfilled, namely :- (a) the person in receipt of the income has made an application for registration of the trust or institution in the prescribed form and in the prescribed manner to the Commissioner before the 1st day of July, 1973, or before the expiry of a period of one year from the date of the creation of the trust or the establishment of the institution, [whichever is later and such trust or institution is registered under section 12AA]: [Provided that where an application for registration of the trust or institution is made after the expiry of the period aforesaid, the provisions of sections 11 and 12 shall apply in relation to the income of such trust or institution, - (i) from the date of the creation of the trust or the establishment of the institution if the Commissioner is, for reasons to be recorded in writing, satisfied that the person in receipt of the income was prevented from making the application before the expiry of the period aforesaid for sufficient reasons; (ii) from the 1st day of the financial year in which the application is made, if the Commissioner is not so satisfied;] (b) where the total income of the trust or institution as computed under this Act without giving effect to the provisions of section 11 and section 12 exceeds (fifty) thousand rupees in any previous year, the accounts of the trust or institution for that year have been audited by an accountant as defined in the Explanation below sub-section (2) of section 288 and the person in receipt of the income furnishes along with the return of income for the relevant assessment year the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed.]" In view of the registration of the petitioner under section 12A as revealed in Annexure A/1, it is undisputedly clear that the petitioner would be admitted to the beneficiaries emerging from section 12A. (2) Section 10(23)(c) reads as under :- "10. Incomes not included in total income :- (1) to (22)...... (2) Section 10(23)(c) reads as under :- "10. Incomes not included in total income :- (1) to (22)...... (23) Any income of an association or institution established in India which may be notified by the Central Government in the Official Gazette having regard to the fact that the association or institution has as its object the control, supervision, regulation or encouragement in India of the games of cricket, hockey, football, tennis or such other games or sports as the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided that the association or institution shall make an application in the prescribed form and manner to the prescribed authority for the purpose of grant of the exemption, or continuance thereof, under this clause: Provided further that the Central Government may, before notifying the association or institution under this clause call for such documents (including audited annual accounts) or information from the association or institution as it thinks necessary of the activities of the association or institution and that Government may also make such inquiries as it may deem necessary in this behalf: Provided also that the association or institution, - (a)...... (b)...... (b)...... (c) does not distribute any part of its income in any manner to its members except as grants to any association or institution affiliated to it: Provided also that the exemption under this clause shall not be denied in relation to any funds invested or deposited before the 1st day of April, 1989 otherwise than in any one or more of the forms or modes specified in sub-section (5) of section 11 if such funds do not continue to remain so invested or deposited after the [30th day of March, [1993]: [Provided also that the exemption under this clause shall not be denied in relation to voluntary contribution, other than voluntary contribution in cash or voluntary contribution of the nature referred to in clause (b) of the third proviso to this clause, subject to the condition that such voluntary contribution is not held by the association or institution, otherwise than in any one or more of the forms or modes specified in sub-section (5) of section 11, after the expiry of one year from the end of the previous year in which such asset is acquired or the 31st day of March, 1992, whichever is later:] Provided also that nothing contained in this clause shall apply in relation to any income of the association or institution, being profits and gains of business, unless the business is incidental to the attainment of its objectives and separate books of accounts are maintained by it in respect of such business: Provided also that any notification issued by the Central Government under this clause in relation to any association or institution shall, at any one time, have effect of for such assessment year or years, not exceeding three assessment years (including an assessment year or years commencing before the date on which such notification is issued) as may be specified in the notification;]" (3) Section 10(23C)(iiiab) and (iiiad) reads as under :- "(23C) any income received by any person on behalf of- (O...... (ii)..... (iii)...... (iiia)...... (iiiab) any university or other educational institution existing solely for educational purposes and not for purposes of profit, and which is wholly or substantially financed by the Government; or (iiiac)........ (ii)..... (iii)...... (iiia)...... (iiiab) any university or other educational institution existing solely for educational purposes and not for purposes of profit, and which is wholly or substantially financed by the Government; or (iiiac)........ (iiiad) any university or other educational institution existing solely for educational purposes and not for purposes of profit if the aggregate annual receipts of such university or educational institution do not exceed the amount of annual receipts as may be prescribed;" (4) Section 11 of the Income Tax Act, 1961 lays down that subject to the provisions of sections 60 to 63 income enumerated in section 11 shall not be included in the total income of the previous year of the person in receipt of the income. (5) Charitable purpose has been defined in clause (15) of section 2 of the Income Tax Act, 1961 so as to include the relief of the poor, education, medical relief and the advancement of any other object of general public utility. (6) The memorandum of association of the petitioner was annexed with the application for renewal of exemption, marked as Annexure A/2. Clause-14 thereof is reproduced below :- "14. Procedure for dissolving the association :- (i) The procedure for dissolving the Association shall be as for alternation of any articles of the Memorandum of Association or Rules and Regulations, as under section 13/i-v. (ii) On dissolution of the Association if any immovable property or assets should remain over, after satisfaction of debts and liabilities the same shall not be paid or distributed amongst the members of the General Body. (iii) Movable assets shall be handed over to the parent body, the M. P. Jesuit Society or can be given to other registered Societies having objectives similar to those of XIDAS." From the aforesaid clause, it is clear that the individual members of the society are not likely to be benefited even after dissolution of the society. Thus, there is no provision for making any personal gain by the members of the petitioner society. It would be meaningful to look in to the objects of the petitioner which are enumerated in clause-4 as under:- "04. Thus, there is no provision for making any personal gain by the members of the petitioner society. It would be meaningful to look in to the objects of the petitioner which are enumerated in clause-4 as under:- "04. Objects :- (i) To conduct research, training, and education in fields of development, especially rural development, General Management, anti-poverty action, project planning and management, administration of NGOs, environmental management, watershed management, rural health, income generation projects, culture and all subjects that have a bearing on the integral human social, and economic development of rural people and their organizations, (ii) To promote development and institution building of Non-Governmental Organisations (NGOs), People's Organizations, Panchayat Structures, Women Groups. (iii) To offer opportunities to Government Officers and functionaries to upgrade their managerial skills through training programmes, workshops, (iv) To function as a nodal centre for communication, information, data documentation, on development problems, for the public, (v) To seek co-operation with, and offer assistance to, institutions of higher learning, research and training especially in Madhya Pradesh. (vi) To interface with industrial managers, Government Officials, researchers, communicators, regarding problems of resettlement and rehabilitation, impoverisation of local inhabitants, deterioration of the environment, that often occur as a result of industrialization, urbanization. These activities will be in view of finding positive and viable solutions to such problems. (vii) To draw up research reports, papers, documents for sponsoring agencies/donors Government and to publish newsletters and scientific findings for the public. (viii) To undertake administrative actions that are needed for attaining the abovementioned objects. (ix) To raise funds, through charging of fees, receiving grants from agencies in India or abroad. To incur expenditures as per needs of the Institute or for goods or services delivered to XIDAS. To invest funds and execute financial transactions, as permitted by law. (x) To undertake all such actions which are needed or incidental to the attainment of the objects, of the Association, and which are in consonance with the laws of the land. Also to refuse to commit actions, or to accept commitments, or funds which are opposed to the spirit and object of the Association." 9. (x) To undertake all such actions which are needed or incidental to the attainment of the objects, of the Association, and which are in consonance with the laws of the land. Also to refuse to commit actions, or to accept commitments, or funds which are opposed to the spirit and object of the Association." 9. In the light of the aforesaid, it is contended by Shri Purohit, learned senior counsel that the petitioner cannot be held not entitled to the exemption under the provisions of the Income Tax Act, 1961 and that there was no material before the Commissioner of Income Tax to infer otherwise. If he entertained any doubt after the visit to the petitioner institution, he ought to have granted an opportunity to the petitioner to furnish explanation or at least ought to have granted opportunity of hearing to the petitioner before passing the impugned order since application for renewal of exemption was submitted vide Annexure A/2 with all the relevant documents. 10. Countering this, Shri Rohit Arya, learned senior counsel submitted that an opportunity of hearing was given to the petitioner as revealed in Annexure A/3 dated 14-2-2001 and 26-2-2001. Thus, it cannot be said that due opportunity was not given to the petitioner. He placed reliance for this purpose on the judgment reported in AIR 1980 SC 387 , Additional Commissioner of Income Tax, Gujarat vs. Surat Art Silk Cloth Manufacturers Association, Surat. Learned counsel has expressly made reference to the following lines of paragraph No. 5 of the aforesaid judgment :- "The law is well settled that if there are several objects of a trust or institution, some of which are charitable and some non-charitable and the trustees or the managers in their discretion are to apply the income or property to any of those objects, the trust or institution would not be liable to be regarded as charitable and no part of its income would be exempt from tax. In other words, where the main or primary objects are distributive, each and everyone of the objects must be charitable in order that the trust or institution might be upheld as a valid charity, vide Mohd. Ibrahim vs. Commr. of Income Tax, (1930) 57 Ind App 260 (PC) and East India Industries (Madras) Ltd. vs. Commr. of Income Tax, (1967) 65 ITR 611 (SC). Ibrahim vs. Commr. of Income Tax, (1930) 57 Ind App 260 (PC) and East India Industries (Madras) Ltd. vs. Commr. of Income Tax, (1967) 65 ITR 611 (SC). But if the primary or dominant purpose of a trust or institution is charitable, another object which by itself may not be charitable but which is merely ancillary or incidental to the primary or dominant purpose would not prevent the trust or institution from being a valid charity : vide Commr. of Income Tax, Madras vs. Andhra Chamber of Commerce, (1965) 55 ITR 722 (SC). The test which has, therefore, to be applied is whether the object which is said to be non-charitable is a main or primary object of the trust or institution or it is ancillary or incidental to the dominant or primary object which is charitable. It was on an application of this test that in Commr. of Income Tax vs. Andhra Chamber of Commerce (supra), the Andhra Chamber of Commerce was held to be a valid charity entitled to exemption from tax. The Court held that the dominant or primary object of the Andhra Chamber of Commerce was to promote and protect trade, commerce and industry and to aid, stimulate and promote the development of trade, commerce and industry and to watch over and protect the general commercial interests of India or any part thereof and this was clearly an object of general public utility and though one of the objects included the taking of steps to urge or oppose legislation affecting trade, commerce or manufacture, which, standing by itself, may be liable to be condemned as non-charitable, it was merely incidental to the dominant or primary object and did not prevent the Andhra Chamber of Commerce from being a valid charity. The Court pointed out that if "the primary purpose be advancement of objects of general public utility, it would remain charitable even if an incidental entry into the political domain for achieving that purpose e.g. promotion of or opposition to legislation concerning that purpose, was contemplated." The Court also held that the Andhra Chamber of Commerce did not cease to be charitable merely because the members of the chamber were incidentally benefited in carrying out its main charitable purpose. The Court relied very strongly on the decisions in Commr. The Court relied very strongly on the decisions in Commr. of Inland Revenue vs. Yorkshire Agricultural Society, (1928) 1 KB 611 = 13 Tax Cases 58 and Institution of Civil Engineers vs. Commr. of Inland Revenue, (1931) 16 Tax, Cases 156 (CA) for reaching the conclusion that merely because some benefits incidentally arose to the members of the society or institution in the course of carrying out its main charitable purpose, it would not by itself prevent the association or institution from being a charity. It would be a question of fact in each case "whether there is so much personal benefit, intellectual or professional, to the members of the society or body of persons as to be incapable of being disregarded"." 11. It may be seen that the petitioner applied for renewal of exemption vide Annexure A/2. Since the Income Tax Department had no sufficient material before it to reject the claim of the petitioner, it issued a letter dated 14-2-2001 expressing its desire to visit the petitioner institute. Another letter dated 26-2-2001 was issued by the Income Tax Department in the nature of reminder as revealed in the Annexure A/3. Petitioner was quite co-operative and offered to facilitate the visit. Accordingly, the visit was performed as mentioned in Annexure A/6. It is not the case of the respondent that during the visit any proceeding was prepared in the presence of the representatives of the petitioner which provided basis for denying the exemption. On the contrary, if the learned Commissioner of Income Tax entertained any doubt about the entitlement of petitioner, he ought to have sought explanation and/or clarification by giving an opportunity of hearing to the petitioner or otherwise. 12. Definition of "charitable purpose" is of inclusive nature. Object of the petitioner institute may be said to be covered by the definition of the charitable purpose. The words "not involving the carrying on of any activity for profit" were omitted from the definition of the charitable purpose in section 2(15) of the Act w.e.f. 1-4-1984. It being so, the institute may involve in an activity for profit and still it may be termed as for charitable purpose within the ambit of definition under section 2(15) of I.T. Act. Learned Commissioner of Income Tax has not given specific finding as to why the petitioner is not charitable under the provisions of the Income Tax Act, 1961. It being so, the institute may involve in an activity for profit and still it may be termed as for charitable purpose within the ambit of definition under section 2(15) of I.T. Act. Learned Commissioner of Income Tax has not given specific finding as to why the petitioner is not charitable under the provisions of the Income Tax Act, 1961. The impugned order is short one: C.I.T. has written the following passage in the impugned order before arriving at the conclusion that the petitioner is not for charitable purpose under the Income Tax Act :- "The institution has filed Minutes of the General Body meeting held on 2nd December, 2000 which gives details of the activities. It runs a MBA course in Rural Management, conducted an exchange programme between January-March, 2000 in Watershed Management Projects which was undertaken in Karondi. A new campus is being constructed at Tilhari village from grant from Sir Dorabji Tata Trust. The MBA course is through competitive examination open for Graduates. Fee of Rs. 58,500/- per year is charged, although deserving students from less privileged strata of the society i.e. S.C./S.T./OBC would be helped through scholarship from Govt. and other sources. 20 candidates are free seat quota (exemption from tuition fees of Rs. 13500/-), 18 under the payment seats amounting to Rs. 42,500/- and the balance 2 candidates would be NRI sponsored with a fee of US$ 3000 per year. The Pamphlet of the XIDAS in the preamble shows that it would achieve its objective through the intermediaries of NGOs, religious groups and Church related bodies etc.. The account position is shown in the annexure." This conclusion has been arrived at without even referring to the definition of the charitable purpose contained in clause (15) of section 2 of the Income Tax Act, 1961. The Privy Council had an occasion to discuss the concept of "charitable purpose" in the case of In Re. vs. The Trustees of the Tribune, (1939) 7ITR 415 (PC), wherein, it has been held as under :- "10. In the High Court, stress was laid by the learned Chief Justice and by Addison, J., on the fact that the Tribune newspaper charges its readers and advertisers at ordinary commercial rates for the advantages which it affords. vs. The Trustees of the Tribune, (1939) 7ITR 415 (PC), wherein, it has been held as under :- "10. In the High Court, stress was laid by the learned Chief Justice and by Addison, J., on the fact that the Tribune newspaper charges its readers and advertisers at ordinary commercial rates for the advantages which it affords. As against this, the evidence or finding do not disclose that any profit was made by the newspaper or press before 1918 and it is at least certain that neither was founded for private profit whether to the testator or any other person. By the terms of the trust it is not to be carried on for profit to any individual. It cannot in their Lordships' opinion be regarded as an element necessarily present in any purpose of general public utility; that it should provide something for nothing or for less than it costs or for less than the ordinary price. An eleemosynary element is not essential even in the strict English view of charitable uses CIT vs. University College of North Wales, (1909) 5 Tax Cases 408, 414. There seems to be no solid distinction to be taken under the phrase "general public utility" between a school founded by a testator but charging fees to its pupils and a paper founded by a testator and sold to its readers. The purpose of providing the poor or the community in general with some useful thing without price or at a low price may doubtless be in itself a purpose of general public utility. But if another object be independently in itself of general public utility the circumstance that the testator's (sic) bounty was only in respect of the initial capital assets, or had only to meet a working loss temporarily and not permanently will not, necessarily at least, alter the character of the object." 13. There are certain other judgments dealing with the question involved herein which have been cited during arguments. I will be doing injustice if I do not refer to them ignoring pains taken by the learned arguing counsel. They are as follows :- (1) (2005) 278 ITR 262 (P and H), Sonepat Hindu Educational and Charitable Society vs. Commissioner of Income-Tax and another :- "14. I will be doing injustice if I do not refer to them ignoring pains taken by the learned arguing counsel. They are as follows :- (1) (2005) 278 ITR 262 (P and H), Sonepat Hindu Educational and Charitable Society vs. Commissioner of Income-Tax and another :- "14. From the afore extracted provisions, it is evident that the first and foremost requirement which the institution or fund has to satisfy is that it is established in India for a charitable purpose. The conditions contemplated by els. (i) to (vi) of section 80G(5) are the conditions which the institution or the fund must additionally fulfil so as to be entitled to the approval of the CIT. It is well settled that for the purpose of construing the purpose of a trust, it is not necessary that one remains confined to the objects of the society or the trust, as set out in the memorandum of association or the trust deed, as the case may be. What is required to be found is the real purpose of establishment of the trust. There can be no quarrel with the proposition that the CIT, conferred with the power to grant exemption, is fully competent to find out the real purpose, as distinguished from the ostensible purpose of establishment of the society or the trust. If the CIT is convinced that the purpose of the society or the trust is not charitable, nothing debars him from denying the approval but, at the same time, if he is satisfied that the objects of the trust, as set out in the deed of declaration, were charitable, then having regard to the object of the provision, the approval should not be denied on mere technicalities. As a matter of fact, the power to grant or negative the claim for approval is coupled with a duty. 15. We may now examine the case in hand on the touchstone of the aforenoted broad principles. In the instant case, the CIT has not found that the objects of the petitioner-society, established in India, as set out in its memorandum of association, are not for a charitable purpose or that the society is not carrying on its activities in furtherance of its objects. In the instant case, the CIT has not found that the objects of the petitioner-society, established in India, as set out in its memorandum of association, are not for a charitable purpose or that the society is not carrying on its activities in furtherance of its objects. As a matter of fact, registration of an institution under section 12A(a) of the Act by itself is a sufficient proof of the fact that the trust or the institution concerned is created or established for charitable or religious purposes. Furthermore, as noted above, the grounds which have weighed with the CIT to negative petitioner's claim is that it should have applied for fresh registration under section 12A(a) of the Act because of change in its objects on 17th September, 1989; its memorandum should have been got amended as per the procedure prescribed in section 92 of the Civil Procedure Code; petitioner's institution has not been notified under section 10(23C) of the Act for the asst yr. 2000-01; separate books of account should have been maintained for purchase and sale of books and it had spent substantial amounts as entertainment expenditure on visitors and examiners, but no supporting evidence had been produced. 16. We are of the opinion that, in view of the fact that the petitioner had enjoyed approval under section 80G of the Act from the year 1991 to 31st March, 1999 i.e. even after the amendment of its objects on 17th September, 1999 and after the insertion of cl. (vi) w.e.f. 1st October, 1991, the CIT was not justified in holding that either fresh registration under section 12A(a) of the Act was required or the memorandum should have been amended as per the procedure laid down in section 92 of the Civil Procedure Code. In Radhasoami Satsang vs. CIT, (1991) 100 CTR (SC) 267 : (1992) 193 ITR 321 (SC), their Lordships of the Supreme Court, inter alia, observed that though strictly speaking, res judicata does not apply to income tax proceedings, but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be, at all, appropriate to allow the position to be changed in a subsequent year. We feel that these observations are quite apposite in the present case. We feel that these observations are quite apposite in the present case. The ratio of the decision of the Apex Court in Nizam's case (supra) is not attracted in this case." (2) (2007) 212 CTR (All) 394, Commissioner of Income Tax vs. Red Rose School :- "32. A provision has also been made with respect to underprivileged children providing for their protection and rehabilitation and also physical development through exercise and sports, besides providing library and reading room for the development of the students. The objects, therefore, cannot be said to be the objects, which run against public policy or do not fall within the category of activities, which are for charitable purposes. Education in itself is a charitable purpose and activities related thereto, which include, both physical and mental development and also instilling of a feeling of self-confidence through exercise, sports and extensive reading of good books, cannot, in any manner, be described as a non-charitable purpose or much less a non-educational activity. Education means and includes not only knowledge of text books or prescribed educational courses but overall development of the child, which includes personality development and his physical fitness, apart from his capacity to analyse things and reach to logical conclusion on a given issue. Schools may, for the purpose, organize various cultural and educational entertainment programmers, sports meet, debates and seminars etc. and all such activities shall form part of the education. 40. So far the charge of fee is concerned, it was on record that the fee was being charged, which was prevailing in other schools and tuition fee etc. ranged from Rs. 225 to Rs.700, excluding conveyance allowance, which cannot be said to be arbitrary and excessive." (3) (2005) 274 ITR 443 (P and H), Bhagat Dharam Chand Prem Sagar Charitable vs. CIT :- "Learned counsel for the respondents has produced the files of the case. A perusal of the same shows that respondent No. 2 on being asked by respondent No. 1 to furnish his comments on the application filed by the petitioner for grant of exemption under section 80G of the Act had called upon the petitioner to produce the material before him to substantiate his claim for grant of exemption under section 80G of the Act. The proceedings before respondent No. 2 thus assume significance and the report submitted by him on November 13, 2002, i.e. even before the date fixed, viz., November, 21, 2002, shall render the proceedings violative of the principles of natural justice. Accordingly, we hold that no proper opportunity of hearing had been provided to the petitioner and hearing provided by respondent No. 1 would amount to only a post-decisional hearing in the facts and circumstances of the case and the same would thus, be in violation of the basic principles of natural justice." (4) (2001) 251 ITR 849 (AP), Tirumala Tirupathi Devasthanam vs. Chief Commissioner of Income Tax and another :- "4. While exercising the power under section 80G of the Act, the CIT acts as a quasi-judicial authority. Therefore, the conclusion arrived at by him is expected to be supported by valid and cogent reasons. It is also expected that he should apply his mind to the facts of each case and give reasons either to grant or refuse recognition. This requirement is very much imperative on the part of the second respondent, particularly having regard to the statutory provisions under which he functions. Sub-section (1) of section 80G of the Act provides for deduction of certain income from the total income. Sub­section (5) of section 80G provides that section 80G applies to donations to any institution or fund referred to in sub-cl. (iv) of cl. (a) of sub-section (2), only if it is established in India for a charitable purpose and if it fulfils the following conditions, among others, namely, the instrument under which the institution or fund is constituted does not, or the rules governing the institution or fund do not contain any provision for the transfer or application at any time of the whole or any part of the income or assets of the institution or fund for any purpose other than a charitable purpose. This condition No. (ii) of sub-section (5) if read with Expln.3 makes it clear that the CIT can refuse to grant recognition under section 80G of the Act only in the event of finding that the claimed charitable purpose includes any purpose the whole or substantially the whole of which is of a religious nature. This condition No. (ii) of sub-section (5) if read with Expln.3 makes it clear that the CIT can refuse to grant recognition under section 80G of the Act only in the event of finding that the claimed charitable purpose includes any purpose the whole or substantially the whole of which is of a religious nature. Therefore, it has become absolutely necessary for the CIT to refer to and consider the multifarious activities carried on by the Tirumala Tirupathi Devasthanam administration and to come to the said conclusion. Unfortunately, in this case, the CIT does not seem to have applied his mind to the facts pleaded by the petitioner in its application. At any rate, the impugned order does not reflect either application of mind by the CIT or the factors or reasons that weighed with him in passing the impugned order." (5) 246 ITR 188 (year of reporting 2000), Hiralal Bhagwati vs. Commissioner of Income Tax :- "It is required to be noted that the registration of a charitable trust under section 12A is not an idle or empty formality. This is apparent from the tenor of the provisions of section 12A. It requires that not only an application should be filed in the prescribed form, setting out the details of the origin of the trust, but also the names and addresses of the trustees and/or managers should be furnished. The Commissioner of Income Tax has to examine the objects of creation as well as an empirical study of the past activities of the applicant. The Commissioner of Income Tax has to examine that it is really a charitable trust or institution eligible for registration. It is required to be noted that the trust is granting benefits to the staff of 16 different institutes, the names of which are appearing at page 44. The staff working in these institutes, on becoming members, are getting the benefits of the scheme. Thus, the staff members of all these institutes become entitled to get the benefit of the scheme. The object beneficial to a section of the public is an object of "general public utility" To serve as a charitable purpose, it is not necessary that the object must be to serve the whole of mankind or all persons living in a country or province. The object beneficial to a section of the public is an object of "general public utility" To serve as a charitable purpose, it is not necessary that the object must be to serve the whole of mankind or all persons living in a country or province. It is required to be noted that even if a section of the public is given benefit, it cannot be said that it is not a trust for charitable purpose in the interest of the public. It is not necessary that the public at large must get the benefit. It is required to be noted that considering the objects of general public utility, the matter is to be decided." 14. It may be seen that as per the Apex Court, there is no such limitation so far as Indian law is concerned even if a purpose is not within the spirit and intendment of the preamble to the statute of Elizabeth, it would be charitable if it falls within the definition of "charitable purpose" given in the statute. Every object of general public utility would, therefore, be charitable under the Indian Law. More so, with the omission of the words "not involving the carrying on of any activity for profit" omitted w.e.f. 1-4-1984. 15. On the aforesaid parameters, it is clear that the learned Commissioner of Income Tax has not given his specific reasons to hold that the petitioner is not a "charitable institution" under the Income Tax Act, 1961. The High Court of Andhra Pradesh in case of (2001) 251 ITR 849 (AP), Tirumala Tirupathi Devasthanam vs. Chief Commissioner of Income Tax and another has observed as under :- "4. While exercising the power under section 80G of the Act, the CIT acts as a quasi-judicial authority. Therefore, the conclusion arrived at by him is expected to be supported by valid and cogent reasons. It is also expected that he should apply his mind to the facts of each case and give reasons either to grant or refuse recognition. This requirement is very much imperative on the part of the second respondent, particularly having regard to the statutory provisions under which he functions. Sub­section (1) of section 80G of the Act provides for deduction of certain income from the total income. Sub-section (5) of section 80G provides that section 80G applies to donations to any institution or fund referred to in sub-cl. Sub­section (1) of section 80G of the Act provides for deduction of certain income from the total income. Sub-section (5) of section 80G provides that section 80G applies to donations to any institution or fund referred to in sub-cl. (iv) of cl. (a) of sub-section (2), only if it is established in India for a charitable purpose and if it fulfils the following conditions, among others, namely, the instrument under which the institution or fund is constituted does not, or the rules governing the institution or fund do not contain any provision for the transfer or application at any time of the whole or any part of the income or assets of the institution or fund for any purpose other than a charitable purpose. This condition No. (ii) of sub-section (5) if read with Expln.3 makes it clear that the CIT can refuse to grant recognition under section 80G of the Act only in the event of finding that the claimed charitable purpose includes any purpose the whole or substantially the whole of which is of a religious nature. Therefore, it has become absolutely necessary for the CIT to refer to and consider the multifarious activities carried on by the Tirumala Tirupami Devasthanam administration and to come to the said conclusion. Unfortunately, in this case, the CIT does not seem to have applied his mind to the facts pleaded by the petitioner in its application. At any rate, the impugned order does not reflect either application of mind by the CIT or the factors or reasons that weighed with him in passing the impugned order." 16. Likewise, in the instant case, the learned Commissioner of Income Tax after visiting the petitioner's institution ought to have assigned the cogent and valid reasons for holding that the petitioner does not fall within the definition as contained in section 2 (15) of the Act. In the absence of any such material, he ought to have either allowed the exemption or ought to have granted opportunity to the petitioner to clarify the doubts entertained by him. This having not been done, the impugned order is not sustainable in law. In the absence of any such material, he ought to have either allowed the exemption or ought to have granted opportunity to the petitioner to clarify the doubts entertained by him. This having not been done, the impugned order is not sustainable in law. The impugned order (Annexure A/6) is hereby set aside, with direction that the learned Commissioner of Income Tax shall grant opportunity of hearing to the petitioner and may seek clarification of doubts entertained by him with respect to the status of the petitioner with reference to the definition clause contained in section 2(15) of the Income Tax Act, 1961. The application of the petitioner for exemption shall be decided afresh by passing reasoned order in the light of the above observations. 17. Writ Petition is accordingly, allowed in part and the learned Commissioner of Income Tax is directed to decide the application of the petitioner afresh in the light of this order and by reasoned order after giving opportunity of hearing to the petitioner, within a period of two months from the date of receipt of the copy of this order. Petitioner is also permitted to file additional statements and additional material in support of its claim if so desires. No order as to costs. Writ petition partly allowed.