Shri Mathuradasji Ayodhyabai Rathi Charitable Trust, Hyderabad v. DIT, Hyderabad

MA 74/HYD/2010 | misc
Pronouncement Date: 23-07-2010 | Result: Dismissed

Appeal Details

RSA Number 7422524 RSA 2010
Assessee PAN AAFTS3414F
Bench Hyderabad
Appeal Number MA 74/HYD/2010
Duration Of Justice 2 month(s) 25 day(s)
Appellant Shri Mathuradasji Ayodhyabai Rathi Charitable Trust, Hyderabad
Respondent DIT, Hyderabad
Appeal Type Miscellaneous Application
Pronouncement Date 23-07-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 23-07-2010
Assessment Year misc
Appeal Filed On 28-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A HYDERABAD BEFORE SHRI G.C. GUPTA VICE PRESIDENT AND SHRI CHANDRA POOJARI ACCOUNTANT MEMBER MA.NO.74/HYD/2010 A.Y. NIL ARISING OUT OF ITA NO.1067/HYD/2009 SRI MATHURADASJI AYODHYABAI RATHI CHARITABLE TRUST HYDERABAD (PAN AAFTS 3414 F) VS THE DIT(E) HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI K.C. RATHI RESPONDENT BY: SHRI K.V.N. CHARYA DR O R D E R PER CHANDRA POOJARI ACCOUNTANT MEMBER: THROUGH THIS MISCELLANEOUS APPLICATION THE ASSESSEE REQUESTS THE TRIBUNAL TO RECALL ITS ORDER IN ITA NO.1067/HYD/2009 D ATED 26 TH MARCH 2010. 2. SHRI K.C. RATHI LEARNED COUNSEL FOR THE ASSESSEE SUBM ITTED THAT CERTAIN VITAL AND FUNDAMENTAL ISSUES RAISED IN THE GROUNDS OF APPEAL AS WELL AS AT THE TIME OF HEARING WERE REMAINED UNDIS POSED OF WHILE DISMISSING THE ASSESSEES APPEAL. HE DREW OUR ATTENTION TO THE FOLLOWING GROUNDS RAISED IN THE APPEAL: THE ORDER OF DIT(E) IS FURTHER BAD IN LAW AS MUCH A S THE REGISTRATION GRANTED U/S 12A HAS NOT BEEN WITHDRAWN DESPITE SUCH POWER I S VESTED IN HIM U/S 3 OF SEC.12AA. THEREFORE THIS IS A PATENT CONTRADICTION FOR THE PURPOSES OF 80G(5) AND THE TRUST CONTINUES TO REMAIN CHARITABLE BUT FO R THE PURPOSE OF SEC.80G(5) IT CEASES TO BE CHARITABLE THEREFORE C ONSIDERED FROM ANY POINT OF VIEW THE ACTION OF DIT(E) IS OUT AND OUT ILLEGAL AN D UNSUSTAINABLE IN LAW. MA.74/2010 IN ITA NO.1067/2009 SRI MATHURADASJI AYODHYABAI RATHI CHARITABLE TRUST HYDER ABAD 2 3. THE AUTHORISED REPRESENTATIVE SUBMITTED THAT HE H AS FILED TWO HEAD NOTES OF SUPREME COURT DECISION AT THE TIME O F HEARING. THE FIRST CASE LAW IS IN THE CASE OF SURAT CITY GYMKHANA W HEREIN THE SUPREME COURT HAS VERY MUCH IN CLEAR WORDS HELD THAT IF THE TRUST IS REGISTERED U/S 12A OF THE IT ACT THE QUESTION OF FURT HER PROBE INTO THE OBJECTS OF THE TRUST DOES NOT ARISE. HERE IS ALSO THE TRU ST HAS BEEN REGISTERED U/S 12A AND THIS REGISTRATION HAS NOT BEEN WI THDRAWN OR CANCELLED WHILE REFUSING TO RENEW THE APPROVAL FOR THE PURPOSES OF 70G(5). THEREFORE THIS PROVES THIS SUPREME COURT CASE HAS NOT BEEN TAKEN INTO CONSIDERATION OR FOLLOWED. 4. THE SECOND CASE LAW IN THE CASE OF RADHASOAMI SATSANG VS. CIT (193 ITR 321) THE (HONBLE HON'BLE SUPREME COURT ) HAS HELD THAT : IN THE ABSENCE OF ANY MATERIAL CHANGE JUSTIFYING T HE DEPARTMENT TO TAKE A DIFFERENT VIEW FROM TAKEN IN EARLIER PROCEEDINGS T HE QUESTION OF THE EXEMPTION OF THE ASSESSEE SHOULD NOT HAVE BEEN REOP ENED. 5. HE FURTHER SUBMITTED THAT IN FACE OF THESE TWO FUN DAMENTAL AND IMPORTANT DECISIONS THE LAW LAID BY SUPREME COUR T HAS BEEN TOTALLY IGNORED AND THE DECISION OF THE HONBLE TRIBUNAL RUNS T OTALLY CONTRARY TO THE PRINCIPLE OF LAW LAID DOWN BY HONBLE SUPREME COU RT. NO DOUBT THE HONBLE TRIBUNAL ATTEMPTED TO DRAW THE DISTINCTION BET WEEN THE SC CASE CITED BY THE ASSESSEE THAT FURTHER THE RATIO LAID DOWN BY THE SUPREME COURT IN SPECIAL LEAVE PETITION IS NOT A RATIO DECENDI TO FOLLOW. ACCORDINGLY WE DISMISS THE APPEAL OF THE ASSESSEE. 6. THE AUTHORISED REPRESENTATIVE FURTHER SUBMITTED T HAT ALL THE PRINCIPLES OF LAW ARE LAID DOWN ONLY THROUGH SLP BECAU SE SUPREME COURT ONLY DECIDES THE QUESTIONS OF LAW AND NOT QUESTION OF FA CT SO QUESTION OF INVOKING THE PRINCIPLE OF RATIO DECENDI DOES NOT APPL Y OR ARISE. MA.74/2010 IN ITA NO.1067/2009 SRI MATHURADASJI AYODHYABAI RATHI CHARITABLE TRUST HYDER ABAD 3 7. HE FURTHER SUBMITTED THAT THE HON'BLE SUPREME COU RT HAS DECIDED ONLY PRINCIPLE OF LAW ON THE SLP FILED IT IS WORTH NOTING THAT WHERE THE SUBSTANTIAL QUESTION OF LAW ARISES THERE ONLY SLP IS GRANTED AND THEN THE LAW LAID DOWN IS BOUND TO BE FOLLOWED. THEREFORE THE HONBLE TRIBUNALS REJECTING HON'BLE SUPREME COURT CASES O N THE GROUND THAT THEY HAVE COME THROUGH SLP PETITION IS NOT FAIR NOR APPROPRIATE NOR JUDICIOUS. THE HONBLE TRIBUNAL IS BOUND TO FOLLOW THE PRINCIPLE OF LAW SO LAID DOWN IN THE DECISIONS CITED BY THE ASSESSEE. 8. THE AUTHORISED REPRESENTATIVE SUBMITTED THAT THE HOBBLE TRIBUNAL HAS EXPRESSED THE VIEW THAT THE DECISION OF HON' BLE SUPREME COURT REPORTED IN THE CASE OF GANGABAI CHARITIES VS. CI T & OTHERS (197 ITR 416) (HON'BLE SUPREME COURT) CITED BY THE DEPARTM ENT HAS BEEN APPLIED IN THE CASE. IN OTHER WORDS DESPITE THE DECISI ON CITED BY THE ASSESSEE IS OF MUCH LATER DATE THE SAME MUST HAVE TO BE FOLLOWED. APARTMENT FROM THIS THE HON'BLE SUPREME COURT DECISION 197 ITR 416 THE SAME INSTEAD OF COMING IN THE WAY OF THE ASSESSEE IT IN FACT COMES TO THE RESCUE OF THE ASSESSEE IN AS MUCH AS IN THE ABOVE DE CISION OF THE HON'BLE SUPREME COURT HAS NEVER STATED THAT A CHARITAB LE TRUST SHOULD HAVE SPECIFIC CHARITABLE OBJECT IN THE TRUST DEED BUT ONL Y BROAD OBJECTIVES HAVE TO BE MENTIONED I.E. THE TRUST IS FORME D FOR CHARITABLE PURPOSES. THIS PRINCIPLE OF LAW LAID DOWN BY HON'BLE SU PREME COURT HAS BEEN FOLLOWED BY MADRAS HIGH COURT IN THE CASE OF CIT/W EALTH TAX VS. BABULAL KHINCHAND TRUST ( 243 ITR 790) (MD. HC). 9. THE AUTHORISED REPRESENTATIVE FURTHER SUBMITTED T HAT IN THE HON'BLE SUPREME COURT DECISION CITED BY THE DEPARTMENT OBJECT OF FORMATION OF TRUST WAS NOT MENTIONED AT ALL IN TRUST D EED AND WHEREAS IN THIS ASSESSEES CASE THE OBJECTS WERE VERY MUCH MENTIONED IN CLAUSE MA.74/2010 IN ITA NO.1067/2009 SRI MATHURADASJI AYODHYABAI RATHI CHARITABLE TRUST HYDER ABAD 4 3 OF THE TRUST DEED THAT THEY ARE ONLY CHARITABLE AS D EFINED U/S 2(15) OF THE IT ACT 1961 AND THESE OBJECTS ARE MENTIONED PUREL Y IN LEGAL LANGUAGE IN AS MUCH AS EVEN IN SEVERAL STATUES WHERE IT A CT OR ANY OTHER ACTS IT IS NORMAL PRACTICE THAT IF A PARTICULAR IT EM IS COVERED BY ANY DEFINITION GIVEN IN THE ACT THE REFERENCE TO PAR TICULAR SEC. WILL ONLY BE THAT ITEM BY MENTIONED AS DEFINED U/S SO AND SO. AS FOR EXAMPLE THE CHARITABLE OBJECTS UNDER THE ACT CANNOT BE ANY OTHE R OBJECT OTHER THAN AS DEFINED U/S 2(15). THIS IS THE NORMAL PRACTICE W HILE PROVISION OF A STATUE IS MENTIONED IN PARTICULAR SEC. AS REGARDS TO O MISSION TO DEAL WITH ALL THE ABOVE POINTS AND GROUNDS OF APPEAL IS CONCE RNED THE HON'BLE SUPREME COURT HAS REPEATEDLY HELD THAT THE TR IBUNAL IS DUTY BOUND TO DECIDE ALL QUESTIONS OF FACT AND LAW. HE RELI ED ON THE FOLLOWING JUDGEMENTS: 10. ESTHURI ASWATHIAH VS. CIT (HON'BLE SUPREME COURT ) 66 ITR 478 WHEREIN IT WAS HELD THAT : THE FUNCTION OF THE APPELLATE TRIBUNAL IN HEARING A N APPEAL IS PURELY JUDICIAL. IT IS UNDER A DUTY TO DECIDE ALL QUESTIONS OF FACT AND LAW RAISED IN THE APPEAL BEFORE IT FOR THE PURPOSE IT MUST CONSIDER WHETHER ON THE MATERIALS RELIED UPON BY THE ASSESSEE HIS PLEA IS MADE OUT. 2. APEX COURT IN THE CASE OF UDHAVDAS KEWALRAM VS. CIT (66 ITR 462) (HON'BLE SUPREME COURT ) WHEREIN IT WAS HELD THAT: THE TRIBUNAL IS UNDOUBTEDLY COMPETENT TO DISAGREE W ITH THE VIEW OF THE APPELLATE ASST. COMMISSIONER BUT IN PROCEEDING TO D O SO IT HAS TO ACT JUDICIALLY I.E. TO CONSIDER ALL THE EVIDENCE IN F AVOUR OF AND AGAINST THE ASSESSEE. AN ORDER RECORDED ON A REVIEW OF ONLY A PART OF THE EVIDENCE AND IGNORING THE REMAINING EVIDENCE CANNOT BE REGARDED AS CONCLUSIVELY DETERMINING THE QUESTION OF FACT RAISED BEFORE THE TRIBUNAL. 3. IN THE CASE OF NAWABAGAN SUGAR MILLS CO. LTD. VS. CIT (86 ITR 44 (HON'BLE SUPREME COURT) WHEREIN IT WAS HELD THAT: MA.74/2010 IN ITA NO.1067/2009 SRI MATHURADASJI AYODHYABAI RATHI CHARITABLE TRUST HYDER ABAD 5 THE TRIBUNAL HAS TO ACT JUDICIALLY IN THE SENSE THA T IT HAS TO CONSIDER WITH DUE CARE ALL MATERIALS FACTS AND EVIDENCE IN FAVOUR OF AND AGAINST THE ASSESSEE AND RECORD ITS FINDINGS ON ALL THE CONTENTIONS RAIS ED BY THE ASSESSEE AND THE COMMISSIONER IN THE LIGHT OF THE EVIDENCE AND THE R ELEVANT LAW. 11. THE AUTHORISED REPRESENTATIVE FURTHER SUBMITTED THAT IN THE MEMO EXPLAINING THE PROVISION IN FINANCE BILL 2009 F OR AMENDMENT MADE IN SEC.80G(5) OF THE IT ACT AT PAGE 13 OF THE F IRST PAPER BOOK WHEREIN THE GOVERNMENT VERY MUCH REALIZED THAT THE ASSESSEE UNNECESSARILY BECOMES SUBJECT OF HARASSMENT FOR APPLYING OF THE RENEWAL FROM TIME TO TIME AND THIS PORTION IS VERY MU CH HIGHLIGHTED. THIS AMENDMENT WAS BROUGHT TO GIVE RELIEF TO THE GENU INE CHARITABLE INSTITUTIONS/TRUST. HE SUBMITTED THAT THIS BEING THE P OLICY OF THE GOVERNMENT FROM THIS POINT OF VIEW ALSO THE ASSESSEES CLAI M FOR RENEWAL OF APPROVAL IN TERMS OF SEC. 80G(5) SHOULD HAVE NOT BEE N DENIED AS IT RUNS AGAINST THE POLICY OF THE GOVT. 12. HE FURTHER SUBMITTED THAT POWER TO RECTIFY A WRO NG DOES NOT AMOUNT TO REVIEW OF THE DECISION. THE HONBLE TRIBUNA L (SPECIAL BENCH OF NAGPUR) IN THE CASE OF RAHUL BAJAJ VS. ITO (ITAT S EC.) (211 ITR 1) WHEREIN IT WAS HELD THAT: THE INHERENT POWER TO RECTIFY A WRONG COMMITTED BY ITSELF BY A COURT OR A TRIBUNAL IS NOT REALLY SPEAKING A POWER TO REVIEW. IT IS ATONEMENT TO THE WRONGED PARTY BY THE COURT OR THE TRIBUNAL FOR THE WRONG THAT IT HAS ITSELF COMMITTED. THE TWO POWERS OPERATE IN DIFFERENT FIE LDS AND ARE DIFFERENT IN ESSENTIAL QUALITY OR NATURE (SHEW PAPER EXCHANGE VS . ITO (93 ITR 186 (CAL.). 13. ON THE OTHER HAND SHRI K.V.N. CHARYA THE L EARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ORDER OF THE ITAT IS HAVING NO MISTAKE APPARENT ON RECORD. NOW THE CONSIDER ATION OF ARGUMENT OF THE ASSESSEES COUNSEL LEADS REVIEW OF THE ORDE R OF THIS MA.74/2010 IN ITA NO.1067/2009 SRI MATHURADASJI AYODHYABAI RATHI CHARITABLE TRUST HYDER ABAD 6 TRIBUNAL WHICH IS NOT PERMITTED BY LAW. HENCE THERE IS NO MERIT IN THE ARGUMENTS OF THE ASSESSEES COUNSEL. 14. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WHILE DISMISSING THE APPEAL OF THE ASSESSEE WI TH REFERENCE TO REJECTION OF THE APPLICATION FOR APPROVAL U/S 80G O F THE IT ACT THE TRIBUNAL HAD TAKEN INTO CONSIDERATION ALL RELEVANT MA TERIALS. THE FINDINGS OF THE TRIBUNAL ARE NOT LIABLE TO BE INTER FERED WITH UNLESS THE TRIBUNAL HAS TAKEN INTO CONSIDERATION ANY IRRELEVANT MATERIAL OR CONCLUSION ARRIVED AT BY THE TRIBUNAL IS NOT BASED ON TH E FACTS ON RECORD. IT IS TO BE NOTED THAT THE DECISION OF THE TRIBUNAL H AS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHET HER ALL THE FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR SOME I NCIDENTAL FACTS WHICH APPEARS ON THE RECORDS HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS ORDER. ON FAIR READING OF THE IMPUGNED ORDER OF TH E TRIBUNAL FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL AND H AS NOT TAKEN ANY IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS THE DECIS ION OF THE TRIBUNAL IS NOT LIABLE TO BE INTERFERED WITH BY PROCEEDINGS U/S 254 (2) OF THE IT ACT. IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN ITS ORDER SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CU MULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSIDERED THE TOTALITY OF THE FACTS AS IF THERE WERE A MAGIC FORMULA; IF THE JUDGEMENT OF THE TRIBUNAL SHOWS THAT IT HAS IN FACT DONE SO THERE IS NO REASON TO INTERFE RE WITH AND RECALL THE SAME U/S 254(2) OF THE IT ACT. IN OUR OPINION WHILE ADJUDICATING THE IMPUGNED ISSUE OF APPROVAL U/S 80G THE TRIBUNAL CONSIDE RED ENTIRE FACTS AND DECIDED THE ISSUE AGAINST THE ASSESSEE IN VIEW OF THE AVAILABLE JUDGEMENT OF THE HONBLE SUPREME COURT CITED IN THAT ORDER. THE ASSESSEE MAY NOT BE HAPPY WITH THE RESULT OF THE CASE THAT ITSELF CANNOT BE THE REASON FOR RECALLING THE ORDER OF THE TRIBUNAL . AS SUCH CONSIDERATION OF THE PRESENT ARGUMENT OF THE ASSESSEES COUN SEL IS MA.74/2010 IN ITA NO.1067/2009 SRI MATHURADASJI AYODHYABAI RATHI CHARITABLE TRUST HYDER ABAD 7 NOTHING BUT REVIEWING OF ITS OWN ORDER BY TRIBUNAL FOR WHICH THE TRIBUNAL HAS NO RIGHT. HENCE WE ARE DECLINED TO CONSIDE R THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE. 15. IN THE RESULT MA FILED BY THE ASSESSEE STANDS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT 23 .7.2010 SD/- SD/- G.C. GUPTA CHANDRA POOJARI VICE PRESIDENT ACCOUNTANT MEMBER DATED THE 23 RD JULY 2010 COPY FORWARDED TO: 1. SRI MATHURADASJI AYODHYABAI RATHI CHARITABLE TRU ST HYDERABAD C/O SHRI K.L. RATHI ADVOCATE 3-5-144/5 EDEN GARDEN HYDERABAD-1. 2. THE DIT(E) HYDERABAD 3. DIT HYDERABAD. 4. CIT HYDERABAD 5. THE D.R. ITAT HYDERABAD. NP