Little Angels shiksha samiti, Gwalior v. CIT, Gwalior

ITA 230/AGR/2009 | 2003-2004
Pronouncement Date: 09-03-2011 | Result: Allowed

Appeal Details

RSA Number 23020314 RSA 2009
Assessee PAN AAAAL1225D
Bench Agra
Appeal Number ITA 230/AGR/2009
Duration Of Justice 1 year(s) 9 month(s) 19 day(s)
Appellant Little Angels shiksha samiti, Gwalior
Respondent CIT, Gwalior
Appeal Type Income Tax Appeal
Pronouncement Date 09-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 09-03-2011
Date Of Final Hearing 09-03-2011
Next Hearing Date 09-03-2011
Assessment Year 2003-2004
Appeal Filed On 21-05-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER AND SHRI H.S. SIDHU JUDICIAL MEMBER ITA NOS. 229 & 230/AGR/2009 ASST. YEARS: 2006-07 & 2003-04 RESPECTIVELY LITTLE ANGELS SHIKSHA SAMITI VS. COMMISSIONER OF INCOME TAX NEAR BOMBAY BAKERY GWALIOR. DAL BAZAR LASHKAR GWALIOR. (PAN : AAAAL 1225 D). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NAVIN GARGH ADVOCATE RESPONDENT BY : SHRI VINOD KUMAR JR. D.R. ORDER PER H.S. SIDHU J.M. : THE ASSESSEE HAS FILED THESE TWO APPEALS AGAINST DI FFERENT ORDERS DATED 31.03.2009 PASSED BY THE LD. CIT AAYAKAR BHAWAN C ITY CENTRE GWALIOR FOR THE ASSESSMENT YEARS 2006-07 AND 2003-04. THE LD. CIT GWALIOR HAS PASSED ALMOST SIMILARLY WORDED ORDERS BECAUSE COMMON ISSUES ARE I NVOLVED IN BOTH THE ASSESSMENT YEARS. THEREFORE WE ARE DISPOSING OF T HESE APPEALS BY PASSING ONE COMMON ORDER FOR THE SAKE OF CONVENIENCE. THE ASSE SSEE HAS ALSO TAKEN ALMOST SIMILAR GROUNDS OF APPEAL IN BOTH THE APPEALS. FOR THE SAKE OF CONVENIENCE WE ARE 2 REPRODUCING THE GROUNDS TAKEN BY THE ASSESSEE IN IT A NO.229/AGR/2009 WHICH ARE AS UNDER :- 1.1 BECAUSE THE PROCEEDINGS U/S 263 WERE STAYED BY THE HONBLE M.P. HIGH COURT ON 04.02.2008 THUS THE ORDER PASSE D U/S 263 DT. 31.03.2009 DURING STAY PERIOD IS VOID WITHOUT JUR ISDICTION PERVERSE AND BAD IN LAW. 1.2 BECAUSE IN VIEW OF THE FACTS AND CIRCUMSTANCES THE COST BE ALLOWED. 2. BECAUSE IN ANY VIEW THE ORDER U/S 263 IS WRONG ILLEGAL VITIATED BAD IN LAW AND AGAINST THE FACTS AND LAW. 3. BECAUSE IN ANY VIEW THE ASSESSMENT ORDER DT. 31. 12.2008 U/S 143(3) IS WRONGLY CANCELLED TO BE MADE AFRESH. 4. BECAUSE WITHOUT PREJUDICE TO THE AFORESAID GROUN DS THE ORDER U/S 263 IS WITHOUT PROPER OPPORTUNITY WRONG AND ILLEGA L. 2. THE BRIEF FACTS RELATING TO THE ISSUE IN DISPUTE ARE THAT THE ASSESSEE IS A SOCIETY AND FILED ITS RETURN OF INCOME FOR THE ASSESSMENT Y EAR 2006-07 ON 12.12.2006 DECLARING A TOTAL PROFIT AT ` NIL AND SIMILARLY THE ASSESSEE HAS ALSO DECLARED T OTAL PROFIT AT ` NIL FOR THE ASSESSMENT YEAR 2003-04. THE ASSESSIN G OFFICER COMPLETED THE ASSESSMENT AND ACCEPTED THE RETURNS FILED BY TH E ASSESSEE FOR BOTH THE ASSESSMENT YEARS. THE LD. CIT GWALIOR EXAMINED TH E AFORESAID ASSESSMENTS AND FOUND THAT THE ASSESSING OFFICER DID NOT EXAMINE AN D TAKE INTO ACCOUNT THE GROSS RECEIPTS EXCEEDING ` 1 CRORE APPEARING AS PER INCOME AND EXPENDITURE ACC OUNT FURNISHED BY THE ASSESSEE WHICH WAS LIABLE TO BE TA XED FOR WANT OF REGISTRATION UNDER 3 SECTION 12AA OR APPROVAL UNDER SECTION 10(23C) OF T HE INCOME TAX ACT 1961 (THE ACT HEREINAFTER). HENCE THE INCOME ABOVE ` 1 CRORE IS CHARGEABLE TO TAX. THE LD. CIT GWALIOR ISSUED A NOTICE DATED 21.01.2009 UNDER SECTION 263 OF THE ACT TO THE ASSESSEE FIXING THE DATE OF HEARING ON 29.01.2009 STATING THAT WHILE PASSING THE ASSESSMENT UNDER SECTION 143(3) DATED 31.12.2008 FO R THE ASSESSMENT YEAR 2006-07 THE ASSESSING OFFICER DID NOT EXAMINE AND TAKE INTO ACCOUNT THE GROSS RECEIPTS EXCEEDING ` 1 CRORE APPEARING AS PER INCOME AND EXPENDITURE AC COUNT FURNISHED BY THE ASSESSEE WHICH WAS LIABLE TO BE TAXED FOR WANT OF REGISTRATION UNDER SECTION 12AA OR APPROVAL UNDER SECTION 10(23C) OF THE ACT. SIMILARLY THE LD. CIT HAS ALSO ISSUED NOTICE DATED 21.01.2009 UNDER SECTION 263 OF THE ACT TO THE ASSESSEE FIXING THE DATE OF HEARING ON 29.01.2009 FOR THE ASSESSMEN T YEAR 2003-04 STATING THAT DROPPING OF REASSESSMENT PROCEEDINGS ALSO AMOUNTS T O PASSING OF AN ORDER WHICH CAN VERY WELL BE REVISED. IN RESPONSE TO THE NOTICES I SSUED BY THE LD. CIT THE LD. AUTHORISED REPRESENTATIVE (A.R.) OF THE ASSESSEE AP PEARED AND FILED AN ADJOURNMENT APPLICATION AND THE CASE WAS ADJOURNED FOR 04.02.20 09. ON 04.02.2009 THE LD. A.R. OF THE ASSESSEE FILED WRITTEN SUBMISSION. AFTER CO NSIDERING THE WRITTEN SUBMISSION FILED BY THE LD. A.R. OF THE ASSESSEE THE LD. CIT AGAIN ISSUED A NOTICE UNDER SECTION 263 OF THE ACT ON 30.03.2009 TO THE ASSESSEE WHICH WAS DULY SERVED UPON THE ASSESSEE ON 30.03.2009 FIXING THE DATE OF HEARING O N 31.03.2009. AS STATED BY THE LD. CIT GWALIOR IN THE IMPUGNED ORDER THAT ON 31.0 3.2009 NEITHER THE ASSESSEE NOR 4 THE LD. A.R. APPEARED AND THE LD. CIT GWALIOR CONS IDERED THE WRITTEN SUBMISSION FILED BY THE ASSESSEE AND OBSERVED THAT THE ASSESSI NG OFFICER DID NOT EXAMINE AND TAKE INTO ACCOUNT THE GROSS RECEIPTS EXCEEDING ` 1 CRORE APPEARING AS PER INCOME AND EXPENDITURE ACCOUNT FURNISHED BY THE ASSESSEE WHICH WAS LIABLE TO BE TAXED FOR WANT OF REGISTRATION UNDER SECTION 12AA OR APPROVAL UNDE R SECTION 10(23C) OF THE ACT AND THE EXCESS INCOME OVER EXPENDITURE TO THE EXTENT OF ` 31 42 610/- FOR THE ASSESSMENT YEAR 2006-07 IS LIABLE TO BE TAXED AND THE ASSESSM ENT ORDER DATED 31.12.2008 IS HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE INTERES T OF REVENUE AND SHE CANCELLED THE ASSESSMENT ORDER DATED 31.12.2008 FOR THE ASSESSMEN T YEAR 2006-07. SHE ALSO CANCELLED THE ASSESSMENT ORDER IN THE CASE OF THE A SSESSEE FOR THE ASSESSMENT YEAR 2003-04 HOLDING THAT THE ASSESSING OFFICER DID NOT EXAMINE AND TAKEN INTO ACCOUNT THE GROSS RECEIPTS OF ` 99 44 000/- APPEARING AS PER INCOME AND EXPENDITURE ACCOUNT FURNISHED BY THE ASSESSEE AND IN ABSENCE OF ANY GRA NT OF REGISTRATION UNDER SECTION 12AA OR APPROVAL UNDER SECTION 10(23C) OF THE ACT THE SURPLUS I.E. EXCESS OF INCOME OVER EXPENDITURE TO THE EXTENT OF ` 1 57 458/- IS CHARGEABLE TO TAX. SHE FURTHER HELD THAT DROPPING OF REASSESSMENT PROCEEDI NGS ALSO AMOUNTS TO PASSING OF AN ORDER WHICH CAN VERY WELL BE REVISED AND ACCEPTANCE OF CLAIM OF ASSESSEE FOR EXEMPTION BY THE ASSESSING OFFICER IN THE ASSESSMEN T YEAR 2003-04 IS HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E AND SHE CANCELLED THE SAME UNDER SECTION 263 OF THE ACT BY PASSING THE IMPUGNE D ORDER DATED 31.03.2009 FOR 5 ASSESSMENT YEAR 2003-04. AGGRIEVED BY THE IMPUGNED ORDERS THE ASSESSEE FILED THE PRESENT APPEALS. 3. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE IMPUGNED ORDERS PASSED BY THE LD. CIT GWALIOR ARE AGAINST THE LAW AND FACTS ON THE FILE THUS DESERVES TO BE CANCELLED BECAUSE THE ASS ESSEE HAS FILED WRIT PETITION NO.510/2009 IN THE HONBLE HIGH COURT OF MADHYA PRA DESH (MP) BENCH AT GWALIOR AGAINST ISSUANCE OF NOTICES DATED 21.01.2009 FOR HE ASSESSMENT YEARS IN DISPUTE UNDER SECTION 263 OF THE ACT ISSUED BY THE LD. CIT GWALIOR AND THE HONBLE M.P. HIGH COURT ORDERED FOR STAYING THE REVISION PROCEED INGS INITIATED VIDE ABOVE NOTICES. HE FURTHER STATED THAT THE ASSESSEE HAS FILED AN AP PLICATION BEFORE THE LD. CIT GWALIOR ON 05.02.2009 ALONG WITH COPY OF STAY ORDER DATED 04.02.2009 INFORMING THE LD. CIT GWALIOR REGARDING THE STAY ORDER DATED 04.02.2009 GRANTED BY THE HONBLE HIGH COURT OF M.P. GWALIOR BENCH FOR STAYI NG THE REVISION PROCEEDINGS INITIATED IN RESPONSE TO THE NOTICES ISSUED BY HER UNDER SECTION 263 OF THE ACT. 4. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSEE HAS ALSO GIVEN COPY OF THE STAY ORDER TO ACIT RANGE-2 GWALIOR FOR INFORM ATION AND HAS ALSO TAKEN A RECEIPT AGAINST THE SAME FROM THE OFFICE OF LD. CIT GWALIOR ON 05.02.2009. 6 5. LD. COUNSEL FOR THE ASSESSEE STATED THAT INSPITE OF STAY ORDER DATED 04.02.2009 GRANTED BY THE HONBLE HIGH COURT OF M.P. GWALIOR BENCH FOR STAYING THE REVISION PROCEEDINGS INITIATED IN RESPONSE TO THE NOTICES DA TED 21.01.2009 ISSUED BY THE LD. CIT GWALIOR THE LD. CIT GWALIOR PASSED THE IMPUG NED ORDER ON 31.03.2009 WHICH IS CONTRARY TO THE STAY ORDER DATED 04.02.2009 GRAN TED BY THE HONBLE HIGH COURT OF M.P. AND AMOUNTS TO CONTEMPT OF COURT. THE LD. CIT OUGHT TO HAVE STAYED THE PROCEEDING PENDING BEFORE HER TILL THE DECISION OF HONBLE HIGH COURT. BUT INSPITE OF THE STAY ORDER DATED 04.02.2009 WHICH WAS COMMUN ICATED TO HER AGAINST RECEIPT FROM HER OFFICE SHE HAS PASSED THE IMPUGNED ORDER WITHOUT BOTHERING THE STAY ORDER GRANTED BY THE HONBLE HIGH COURT OF M.P. GWALIOR BENCH. HE ALSO STATED THAT ON THE DATE OF PASSING THE IMPUGNED ORDER I.E. 31.03.2 009 THE ASSESSEE HAS ALSO FILED AN APPLICATION ON THE SAME DATE INFORMING THE LD. CIT GWALIOR ABOUT THE STAY ORDER DATED 04.02.2009 STATING THEREIN THAT THE ASSESSEE HAS ALREADY FILED THE STAY ORDER IN HER OFFICE ON 05.02.2009 AND COPY OF STAY ORDER IS AGAIN ENCLOSED FOR READY REFERENCE AND THE ASSESSEE ALSO AGAIN SUPPLIED A COPY OF THE STAY ORDER FOR HER READY REFERENCE. SIMILARLY THE ASSESSEE HAS AGAIN FILED A LETTER DA TED 09.04.2009 TO LD. CIT INFORMING THE STAY ORDER DATED 04.02.2009 AND REQUESTING FOR RECONSIDERATION/REVIEW/RECALL THE IMPUGNED ORDER DATED 31.03.2009 BUT NO ACTION HAS B EEN TAKEN BY THE LD. CIT ON THE REPEATED REQUESTS OF THE ASSESSEE WHICH AMOUNTS TO WILLFUL DISOBEDIENCE OF THE ORDER OF THE HONBLE JURISDICTIONAL HIGH COURT. HE REQUE STED THAT THE IMPUGNED ORDERS 7 MAY BE CANCELLED BY ACCEPTING THE APPEALS OF THE AS SESSEE WITH COST. IN SUPPORT OF HIS ARGUMENTS HE HAS ALSO FILED A PAPER BOOK FOR B OTH THE ASSESSMENT YEARS CONTAINING PAGE NOS. 1 TO 53 IN WHICH HE HAS ATTACH ED THE FOLLOWING DOCUMENTS :- S.NO. DESCRIPTION 1. EXEMPTION ORDER U/S 10(23C)(VI) DT. 26.03.2009 2. ASSESSMENT ORDER FOR ASSESSMENT YEAR 1998-1999 1999- 2000 2000-2001 2003-2004 2006-2007. 3. WRITTEN SUBMISSION FILED BEFORE THE LD. CIT DT. 09.04.2009 4. LETTER FILED BEFORE THE LD. C.I.T. DT. 31.03.200 9 5. COPY OF NOTICE U/S 263 DT. 30.03.2009 6 LETTER FILED BEFORE THE LD. C.I.T. DT. 05.02.2009 7. COPY OF HIGH COURT STAY ORDER DT. 05.02.2009 8. WRITTEN SUBMISSION FILED BEFORE THE LD. CIT DT. 04.02.2009 9. COPY OF NOTICE U/S 263 DT. 21.01.2009 10. WRITTEN SUBMISSION BEFORE LD. A.C.I.T. DT. 05.0 1.2006 11. NOTICE U/S 142(1) OF THE I.T. ACT DT. 11.08.08. 12. NOTICE U/S 143(2) OF THE I.T. ACT DT. 11.08.200 8 05.07.2007 & 24.09.2004. 13. COPY OF RETURN OF INCOME COMPUTATION AUDITOR REPORT AUDITED BALANCE SHEET AND INCOME & EXPENDITURE A/C ALONG WITH ANNEXURE FOR 31.03.2003. 14. LIST OF MEMBERS REGISTRATION CERTIFICATE MEMO RANDUM OF BYE-LAWS AND SOCIETY. 6. THE LD. D.R. EVEN HAS NOT CONTROVERTED A SINGLE ARGUMENT ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE AND ONLY RELIED UPON THE I MPUGNED ORDER. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US ESPECIALLY THE IMPUGNED ORDERS ALONG WITH THE D OCUMENTARY EVIDENCES FILED BY 8 THE ASSESSEE IN THE SHAPE OF PAPER BOOK CONTAINING PAGE NOS.1 TO 53. AS WE STATED ABOVE THE LD. CIT GWALIOR HAS ISSUED NOTICES DATE D 21.01.2009 UNDER SECTION 263 OF THE ACT AND CANCELLED THE ASSESSMENT IN DISPUTE BY PASSING ALMOST SIMILARLY WORDED IMPUGNED ORDERS DATED 31.03.2009. FOR THE SAKE OF CONVENIENCE WE ARE REPRODUCING THE IMPUGNED ORDER DATED 31.03.2009 PAS SED IN THE ASSESSMENT YEAR 2006-07 :- OFFICE OF THE COMMISSIONER OF INCOME TAX AAYAKAR BHAWAN CITY CENTRE GWALIOR 474 011 NAME OF THE ASSESSEE : LITTLE ANGELS SHIKSHA SAMIT I DAL BAZAR LASHKAR GWALIOR ASSESSMENT YEAR : 2006-07 F.NO. : CIT/GWL/TECH/263/11 /08-09 35 DATE OF ORDER : 31.03.2009 ORDER U/S 263 OF THE INCOME TAX ACT 1961 NOTICE DATED 21.01.2009 UNDER SECTION 263 OF THE A CT WAS ISSUED TO THE ASSESSEE FIXING THE DATE OF HEARING ON 29.01 .2009 STATING THAT WHILE PASSING THE ORDER U/S 143(3) DATED 31.12.2008 THE ASSESSING OFFICER DID NOT EXAMINE AND TAKE INTO ACCOUNT THE G ROSS RECEIPTS EXCEEDING ` 1 CRORE APPEARING AS PER INCOME AND EXPENDITURE AC COUNT FURNISHED BY THE ASSESSEE WHICH WAS LIABLE TO BE TA XED FOR WANT OF REGISTRATION U/S 12AA OR APPROVAL U/S 10(23C) OF TH E INCOME-TAX ACT. HENCE THE INCOME ABOVE ` 1 CRORE IS CHARGEABLE TO TAX. THEREFORE THE ASSESSMENT ORDER DATED 31.12.2008 IS HELD TO BE ERR ONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. I THEREFO RE PROPOSE TO CANCEL THE ASSESSMENT ORDER UNDER SECTION 263 OF THE ACT. 2. ON 29.01.2009 SHRI GIRISH MALPANI CA ATTENDED AND FILED AN APPLICATION FOR ADJOURNMENT. THE CASE WAS ADJOURNE D FOR 4.2.2009. 9 4. ON 04.02.2009 SHRI RAKESH MALPANI ADVOCATE ATT ENDED AND FILED WRITTEN SUBMISSIONS WHICH HAVE DULY BEEN CON SIDERED. 5. FURTHER ON 30.3.2009 NOTICE U/S 263 WAS ISSUED DULY SERVED ON 30.3.2009 FIXING THE DATE OF HEARING ON 31.3.2009. 6. ON 31.3.2009 NEITHER ANYBODY ATTENDED NOR ANY W RITTEN SUBMISSIONS WERE FILED. 7. HAVING CONSIDERED ALL THE FACTS AVAILABLE ON REC ORD AND WRITTEN SUBMISSIONS FILED BY THE ASSESSEE IT IS OBSERVED T HAT THE ASSESSING OFFICER DID NOT EXAMINE AND TAKE INTO ACCOUNT THE G ROSS RECEIPTS EXCEEDING ` 1 CRORE APPEARING AS PER INCOME AND EXPENDITURE ACCOUNT FURNISHED BY THE ASSESSEE WHICH WERE LIAB LE TO BE TAXED FOR WANT OF REGISTRATION U/S 12AA OR APPROVAL U/S 10(23 C) OF THE INCOME- TAX ACT. HENCE THE EXCESS INCOME OVER EXPENDITURE TO THE EXTENT OF ` 31 42 610/- IS LIABLE TO BE TAXED. THEREFORE THE ASSESSMENT ORDER DATED 31.12.2008 IS HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. 8. ORDER U/S 143(3) PASSED BY THE ASSESSING OFFICER ON 31.12.2008 IS THEREFORE CANCELLED UNDER SECTION 263 OF THE A CT TO BE FRAMED AFRESH. SD/- (SMT. REKHA VISHNOI) COMMISSIONER OF INCOME-TAX GWALIOR 8. AFTER GOING THROUGH THE AFORESAID ORDER DATED 31 .03.2009 FOR BOTH THE YEARS IN DISPUTE THE LD. CIT GWALIOR CANCELLED THE ASSESSM ENT ORDER BY USING HER POWER UNDER SECTION 263 OF THE ACT. IT IS ALSO AN ADMITT ED FACT THAT THE LD. CIT HAS ISSUED A NOTICE DATED 21.01.2009 TO THE ASSESSEE INVITING FO R OBJECTIONS FROM THE ASSESSEE ON PROPOSITION TO CANCEL THE ASSESSMENT ORDER DATED 31 .12.2008 PASSED BY THE ASSESSING 10 OFFICER FOR THE ASSESSMENT YEARS IN DISPUTE AND DIR ECTING THE ASSESSEE TO APPEAR IN HER OFFICE AT AAYAKAR BHAWAN CITY CENTRE GWALIOR ON 29.01.2009. IN COMPLIANCE OF THE SAME THE LD. A.R. OF THE ASSESSEE APPEARED AND REQUESTED FOR ADJOURNMENT WHICH WAS ACCEPTED BY HER AND THE CASES WERE ADJOUR NED FOR 04.02.2009. ON 04.02.2009 AGAIN THE LD. A.R. OF THE ASSESSEE APPE ARED BEFORE HER AND FILED HIS WRITTEN SUBMISSION AND THE CASE WAS ADJOURNED FOR 3 1.03.2009. BUT IN THE MEANTIME THE ASSESSEE APPROACHED TO THE HONBLE HI GH COURT OF M.P. BENCH AT GWALIOR BY WAY OF FILING WRIT PETITION NO.510/2009 WHICH CAME UP FOR HEARING BEFORE THE HONBLE HIGH COURT ON 04.02.2009 AND THE HONBLE HIGH COURT PASSED THE FOLLOWING ORDER:- HIGH COURT OF MADHYA PRADESH CASE NO. WP 510/09 ORDER SHEET (CONTINUATION) ORDER 4/2/2009 SHRI ANKUR MODY ADVOCATE FOR PETITIONERS. IT IS SUBMITTED BY SHRI MODY THAT ON THE BASIS OF T HE ORDER ANNEXURE P/3 DATED 18.2.2008 THE RESPONDENT NO.2 I SSUED TWO SHOW CAUSE NOTICES ANNEXURES P/6 AND P/7 DATED 21.1.2009 UNDER SECTION 263 OF THE INCOME TAX ACT 1961 FOR THE ASSESSMENT Y EAR 2003-04 AND 2006-07. THE ORDER DATED 18.2.2008 WAS CHALLENGED BY THE PETITIONER BY FILING WRIT PETITION BEARING NO.1733/08 IN WHIC H ON 7.5.2008 THIS COURT STAYED THE OPERATION OF THE ORDER DATED 18.2. 2008. A COPY OF THE SAID ORDER IS AVAILABLE ON RECORD AS ANNEXURE P/5 A T PAGE 26 AND 26-A. STATING AFORESAID IT IS SUBMITTED THAT ISSUANCE OF SHOW CAUSE NOTICES ANNEXURES P/6 AND P/7 WHICH ARE BASED ON ORDER DAT ED 18.2.2008 WHICH WAS STAYED BY THIS COURT IS WITHOUT JURISDIC TION. 11 CONSIDERING THE AFORESAID THIS PETITION IS ADMITTE D FOR FINAL HEARING. ISSUE NOTICES TO THE RESPONDENTS. STEPS WITHIN PERIOD OF ONE WEEK BY REGD. A/D MODE FAILING WHICH THIS PETITION SHALL SAND DISMISSED WITHOUT RE FERENCE TO THE COURT. TILL THE NEXT DATE OF HEARING FURTHER ACTION IN CO NTINUATION TO SHOW CAUSE NOTICES; ANNEXURES P/6 AND P/7 SHALL REM AIN STAYED. C.C. AS PER RULES SD/- SD/- (K.K. LAHOTI) (B.M. GUPTA) JUDGE JUDGE 9. THE ASSESSEE HAS ATTACHED THE AFORESAID ORDER PA SSED BY THE HONBLE HIGH COURT AT PAGE NO.16 OF ASSESSEES PAPER BOOK (APB). THE ASSESSEE OBTAINED THE AFORESAID ORDER FROM THE HONBLE HIGH COURT AND FIL ED AN APPLICATION DATED 05.02.2009 BEFORE THE LD. CIT GWALIOR INFORMING H ER ABOUT THE STAY ORDER DATED 04.02.2009 GRANTED BY THE HONBLE HIGH COURT OF M.P . GWALIOR BENCH FOR STAYING THE REVISION PROCEEDINGS INITIATED BY THE ABOVE NOT ICES. THE ASSESSEE HAS ALSO TAKEN A RECEIPT OF ITS APPLICATION FROM THE OFFICE OF THE LD. CIT GWALIOR VIDE RECEIPT DATED 05.02.2009. A COPY OF THE APPLICATION THE ASSESSE E HAS ATTACHED AT PAGE NO.14 OF ITS PAPER BOOK. THE CONTENTS OF THE SAME IS REPRODUCED AS UNDER :- BEFORE THE HONBLE COMMISSIONER OF INCOME TAX AAYAKAR BHAWAN CITY CENTRE GWALIOR 12 IN THE MATTER OF : LITTLE ANGEL SHIKSHA SAMITI DAL BAZAR GWALIOR ASSESSMENT YAEAR : 2003-04 & 2006-07 SUB: NOTICE U/S 263 OF THE INCOME TAX ACT 1961 MADAM PLEASE FIND ENCLOSED HEREWITH COY OF STAY ORDER DAT ED 04.02.2009 GRANTED BY THE HONBLE HIGH COURT OF MADHYA PRADESH GWALIOR BENCH FOR STAYING THE REVISION PROCEEDINGS INITIATED VIDE ABOVE NOTICE. KINDLY TAKE APPROPRIATE ACTION AND OBLIGE. SUBMITTED SD/- ASSESSEE COPY TO THE LEARNED ACIT RANGE 2 GWALIOR FOR INFORM ATION. 10. AFTER GETTING THE STAY ORDER THE LD. CIT GWAL IOR HAS NOT COMPLIED THE SAME BUT SHE AGAIN ISSUED NOTICE DATED 30.03.2009 TO THE ASSESSEE INFORMING THE NEXT DATE OF FIXATION OF THE CASE I.E. ON 31.03.2009 AT AAYAK AR BHAWAN CITY CENTRE GWALIOR AT 11.00 A.M. AND DIRECTED THE ASSESSEE TO ATTEND T HE HEARING ON THE STIPULATED DATE PERSONALLY OR THROUGH LD. A.R. A COPY OF THE NOTIC E DATED 30.03.2009 UNDER SECTION 263 OF THE ACT IS ATTACHED BY THE ASSESSEE AT PAGE NO.13 OF THE APB THE SAME IS REPRODUCED AS UNDER :- OFFICE OF THE COMMISSIONER OF INCOME TAX AAYAKAR ABHAWAN CITY CENTRE GWALIOR (M.P.) --------------------------------------------------- ----------------------------------- 13 F NO.CIT/GWL/263/TECH/08-09/ DATED 30.03 .2009 TO LITTLE ANGELS SHIKSHA SAMITI DAL BAZAR LASHKAR GWALIOR. SUB: NOTICE U/S 263 OF THE INCOME-TAX ACT 1961 ASSESSMENT YEAR 2006-07- REGARDING - PLEASE REFER TO THE ABOVE. IN THIS CONNECTION YOU ARE INFORMED THAT YOUR CASE HAS BEEN FIXED ON 31-03-09 AT AAYAKAR BHAWAN CITY CENTRE GWALIOR AT 11.00 A.M. YOU ARE THEREFORE REQUESTED TO ATTEND THE HEARING ON THE STIPULATED DATE PERSONALLY OR THROUG H AUTHORISED REPRESENTATIVE. SD/- (SMT. REKHA VISHNOI) COMMISSIONER OF INCOME-TAX GWALIOR 11. THE ASSESSEE AGAIN FILED AN APPLICATION BEFORE THE LD. CIT GWALIOR ON 31.03.2009 AND GOT THE RECEIPT FROM HER OFFICE INFO RMING HER ABOUT THE STAY ORDER DATED 04.02.2009 AND REQUESTED FOR GRANTING STAY FO R REVISION PROCEEDINGS INITIATED IN PURSUANCE OF THE NOTICES DATED 21.01.2009. THE ASSESSEE HAS ALSO INFORMED THAT THE ASSESSEE HAS ALREADY INFORMED ABOUT THE SAID ST AY ORDER ON 05.02.2009 BY ENCLOSING THE COPY OF STAY ORDER DATED 04.02.2009 G RANTED BY THE HONBLE HIGH COURT OF M.P BENCH GWALIOR. THE ASSESSEE HAS ATTA CHED A COPY OF LETTER DATED 31.03.2009 AT PAGE NO.12 IN THE APB THE CONTENTS O F THE SAME IS REPRODUCED AS UNDER :- BEFORE THE HONBLE COMMISSIONER OF INCOME TAX 14 AAYAKAR BHAWAN CITY CENTRE GWALIOR IN THE MATTER OF : LITTLE ANGEL SHIKSHA SAMITI DAL BAZAR GWALIOR ASSESSMENT YEAR : 2003-04 & 2006-07 REF: YOUR LETTER F.NO.CIT/GWL/263/TECH/08-09 SUB: NOTICE U/S 263 OF THE I.T. ACT 1961 RESPECTED MADAM IT IS SUBMITTED THAT THE NOTICEE HAS BEEN GRANTED S TAY FOR THIS REVISION PROCEEDINGS INITIATED VIDE NOTICE DATED 21.01.2009 BY THE HONBLE HIGH COURT OF MADHYA PRADESH BENCH GWALIOR VIDE STAY OR DER DATED 04.02.2009. COPY OF STAY ORDER HAS ALREADY BEEN FI LED IN YOUR KIND OFFICE ON 05.02.2009. COPY OF STAY ORDER IS AGAIN ENCLOSED HEREWITH FOR READY REFERENCE. THE NOTICEE HAS ALSO FILED WRITTEN SUBMISSION SUBMITTED ON 04.02.2009. KINDLY TAKE THE ABOVE INFORMATION ON RECORD AND OBL IGE. DATE: 31.03.2009 SUBMITTED PLACE:GWALIOR SD/- NOTICEE 12. INSPITE OF THE REPEATED REMINDERS GIVEN BY THE ASSESSEE TO THE LD. CIT GWALIOR REQUESTING FOR STAY OF PROCEEDINGS INITIATED IN PUR SUANCE OF THE NOTICE DATED 21.01.2009 THE LD. CIT GWALIOR HAS PASSED THE IMP UGNED ORDER ON 31.03.2009 FOR THE ASSESSMENT YEAR IN DISPUTE AND CANCELLED THE AS SESSMENT ORDERS BY USING THE POWER GRANTED UNDER SECTION 263 OF THE ACT. AFTER RECEIVING THE IMPUGNED ORDER DATED 31.03.2009 THE ASSESSEE AGAIN REPRESENTED TO THE LD. CIT GWALIOR ON 09.04.2009 BY WAY OF FILING THE REPRESENTATION FOR WHICH THE ASSESSEE HAS TAKEN THE 15 RECEIPT FROM HER OFFICE AND REQUESTED THE LD. CIT T O RECONSIDER/REVIEW/RECALL HER ORDER DATED 31.03.2009 BUT THE LD. CIT HAS NOT CON SIDERED THE SAME TILL THE FINALIZING DATE OF THESE CASES I.E. 09.03.2011 AS STATED BY TH E LD. COUNSEL OF THE ASSESSEE. 13. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSESSEE MADE A STATEMENT THAT TILL TODAY THE HONBLE HIGH COURT HAS NOT PASSED TH E FINAL ORDER IN THE WRIT PETITION FILED BY THE ASSESSEE AND STAY OF THE OPERATION OF THE IMPUGNED NOTICES DATED 21.01.2009 ISSUED BY THE LD. CIT GWALIOR UNDER SEC TION 263 OF THE ACT IS STILL IN OPERATION. 14. KEEPING IN VIEW OF THE AFORESAID FACTS AND CIRC UMSTANCES OF THE PRESENT CASE WE ARE OF THE CONSIDERED OPINION THAT THE LD. CIT H AS PASSED THE IMPUGNED ORDER DATED 31.03.2009 UNDER SECTION 263 OF THE ACT IN VI OLATION OF THE ORDER DATED 04.02.2009 OF THE HONBLE HIGH COURT OF M.P. BENCH AT GWALIOR. AS STATED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE MATTER IS STI LL PENDING FOR FINAL DECISION ON VALIDITY OF THE NOTICES DATED 21.01.2009 (SUPRA) BE FORE THE HONBLE HIGH COURT OF M.P. THEREFORE THE ACTION IN CONTINUATION TO THE SHOW CAUSE NOTICES TAKEN BY THE LD. CIT GWALIOR DESERVES TO BE CANCELLED. WE CANC EL THE IMPUGNED ORDERS DATED 31.03.2009 BY ACCEPTING THE APPEALS FILED BY THE AS SESSEE AND ISSUE DIRECTIONS TO THE LD. CIT GWALIOR TO DECIDE THE ISSUE IN DISPUTE ACC ORDING TO THE DECISION OF HONBLE 16 HIGH COURT OF M.P. GWALIOR BENCH PENDING IN WRIT PETITION NO.510/2009 FILED BY THE ASSESSEE. 15. AFTER GOING THROUGH THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE UNDER WHICH THE IMPUGNED ORDERS HAVE BEEN PASSED WE ARE OF THE CONSIDERED OPINION THAT THE IMPUGNED ORDERS PASSED BY THE LD. CIT GWALIOR IS CONTRARY TO THE LAW AND FACTS ON THE FILE AND ESPECIALLY IN VIOLATION OF THE ORDE R OF THE HONBLE HIGH COURT OF M.P. GWALIOR BENCH DATED 04.02.2009. 16. IT IS WELL SETTLED PROPOSITION THAT THE ORDERS OF THE HONBLE HIGH COURTS ARE BINDING UPON THE TRIBUNAL AS WELL AS UPON THE REVEN UE AUTHORITIES AND SINCE THEY ACT IN A QUASI-JUDICIAL CAPACITY THE DISCIPLINE OF SUCH FUNCTIONING DEMANDS THAT THEY SHOULD FOLLOW THE DECISION OF THE HONBLE HIGH COUR TS. THEY CANNOT IGNORE IT UNTIL THE AUTHORITY IS IN POSSESSION OF ANY STAY ORDER OF THE SAME FROM THE HIGHER COURTS. THEY HAVE TO FOLLOW THE ORDERS OF THE HONBLE HIGH COURTS EVEN IF THEY HAVE SOME RESERVATION ON THE ISSUE IN DISPUTE BEFORE THEM. I N THE PRESENT CASE WE FOUND THAT THE LD. CIT GWALIOR HAS PASSED THE IMPUGNED ORDERS INSPITE OF THE FACT THAT THE ASSESSEE HAS PRODUCED THE STAY ORDER OF THE HONBLE HIGH COURT DATED 04.02.2009 VARIOUS TIMES AGAINST THE VALID RECEIPT TAKEN BY TH E ASSESSEE WHICH IS ATTACHED WITH THE APB. THIS VIEW IS SUPPORTED BY VARIOUS HONBLE HIGH COURTS WHICH INCLUDES 17 THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF K.N. AGARWAL VS. CIT 189 ITR 769 (ALL.) CIT VS. LATE SUNDERLAL (THROUGH BANKEY BEHARI LAL) 96 ITR 310 (ALL.) AND THE DECISION OF HONBLE CALCUTTA HIG H COURT IN THE CASE OF RUSSELL PROPERTIES PVT. LTD. VS. A. CHOWDHURY ADDL. CIT W EST BENGAL AND OTHERS 109 ITR 229 (CAL.). 17. KEEPING IN VIEW OF THE AFORESAID DISCUSSIONS W E ARE OF THE CONSIDERED OPINION THAT THE PRESENT CASE IS FIT FOR IMPOSING COST UPON THE DEPARTMENT UNDER SECTION 254(2B) OF THE ACT. THEREFORE WE IMPOSE THE COST OF ` 2 000/- ON EACH OF THE APPEAL UPON THE DEPARTMENT WHICH SHALL BE PAID TO T HE ASSESSEE. 18. IN THE RESULT APPEALS FILED BY THE ASSESSEE AR E ALLOWED WITH COST FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 09.03.201 1). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 9 TH MARCH 2011 PBN/* 18 COPY OF THE ORDER FORWARDED TO: 1. THE CHIEF COMMISSIONER OF INCOME TAX BHOPAL (M. P.) 2. THE COMMISSIONER OF INCOME TAX GWALIOR (M.P.) 3. APPELLANT 4. RESPONDENT BY ORDER 5. CIT (APPEALS) CONCERNED 6. D.R. ITAT AGRA BENCH AGRA 7. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRI BUNAL AGRA TRUE COPY