Rama Educational Society, Kanpur v. CIT, Kanpur

MA 8/LKW/2010 | misc
Pronouncement Date: 21-01-2011 | Result: Partly Allowed

Appeal Details

RSA Number 823724 RSA 2010
Assessee PAN AAATR3928A
Bench Lucknow
Appeal Number MA 8/LKW/2010
Duration Of Justice 10 month(s) 25 day(s)
Appellant Rama Educational Society, Kanpur
Respondent CIT, Kanpur
Appeal Type Miscellaneous Application
Pronouncement Date 21-01-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 21-01-2011
Date Of Final Hearing 10-12-2010
Next Hearing Date 10-12-2010
Assessment Year misc
Appeal Filed On 26-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH LUCKNOW. BEFORE SHRI H.L.KARWA HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI ACCOUNTANT MEMBER M.A.NO.8(LKW)/2010 (IN I.T.A.NO.552(LKW.)/2009) M/S. RAMA EDUCATIONAL SOCIETY VS. THE CIT(CENTRAL) 117/K/SARVODAYA NAGAR KANPUR. KANPUR. PAN AAATR 3928A (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI AMIT SHUKLA ADVOCATE RESPONDENT BY : SHRI ANADI VERMA SR.D.R. O R D E R PER N.K.SAINI ACCOUNTANT MEMBER THIS MISCELLANEOUS APPLICATION ARISING OUT OF THE ORDER DATED 29.1.2010 PASSED IN I.T.A.NO.552(LUC.)/209 HAS BEEN FILED BY THE ASSESSEE. THE ASSESSEE VIDE THIS MISCELLANEOUS APPLICATION HA S STATED AS UNDER : SIRS IN THE AFORESAID MATTER THE ABOVE NAMED ASSESSEE/A PPELLANT BEGS FOR LEAVE TO MAKE THIS PETITION FOR FAVOUR OF CONSIDERATION BY YOUR HONOUR. 2. THE ABOVE REFERRED APPEAL HAD BEEN FILED AGAINST THE ORDER DATED 11.8.2009 PASSED BY THE LD. CIT CENTRAL KANPUR R EFUSING RENEWAL OF REGISTRATION UNDER SECTION 80G(5) OF THE ACT ON TH E GROUND THAT THE ASSESSEE HAD NOT MAINTAINED REGULAR BOOKS OF ITS R ECEIPTS AND EXPENSES . THE SAID INFERENCE WAS BASED SOLELY ON THE REASON ING THAT THE APPLICANT HAD SURRENDERED AN AGGREGATE INCOME O F RS.11 25 000 2 FOR THE ASSESSMENT YEARS 1999-2000 TO 2005-06 BEFOR E THE HONBLE INCOME-TAX SETTLEMENT COMMISSION WHICH HAD NOT BEE N ACCOUNTED FOR IN THE BOOKS OF ACCOUNT. 3. DURING THE COURSE OF HEARING OF APPEAL IT WAS C ONTENDED THAT ON SIMILAR GROUND AND REASONING THE REGISTRATION UNDE R SECTION 12A HAD ALSO BEEN REVOKED BY THE LD. CIT CENTRAL KANPUR W .E.F. 1.4.2005 VIDE ORDER DATED 28.4.2009 AS PASSED BY HIM (THE LD. CIT CENTRAL KANPUR) UNDER SECTION 12AA(3) WHICH HAD SINCE BEEN QUASHED BY THE HONBLE ITAT VIDE ORDER DATED 30.12.2009 PASSED IN ITA NO.3 88/LUC/09. THE RESULT IS THAT THE VERY BASIS OF THE ORDER DATED 11.8.2009 (IMPUGNED ORDER IN THIS APPEAL) REFUSING RENEWAL OF REGISTRA TION UNDER SECTION 80G(5) HAD BECOME NON EXISTENT. 4. IN VIEW OF THE AFORESAID IT WAS FURTHER PLEADED THAT ALL THE FOUNDATIONAL FACTS BEING AVAILABLE ON RECORD THE C ITS ORDER DATED 11.8.2009 (IMPUGNED ORDER) SHOULD BE QUASHED AND TH E APPEAL SHOULD BE ALLOWED ON SUBSTANTIVE BASIS BY THE HONBLE ITAT ITSELF. MISTAKE - I 5. WHILE DECIDING THE ABOVE MENTIONED APPEAL VIDE O RDER DATED 29.1.2010 WHICH IS THE SUBJECT MATTER OF THIS PETITION THE HONBLE ITAT TOOK DUE NOTE OF ITS EARLIER ORDER DATED 30.12 .2009 (SUPRA). HOWEVER INSTEAD OF ALLOWING THE APPEAL ON SUBSTANT IVE BASIS FROM ITS OWN END THE MATER HAS BEEN RESTORED TO THE FILE OF THE CIT CENTRAL KANPUR FOR RE-DECISION AND THAT TOO WITHOUT LAYING DOWN ANY TIME LIMIT FOR SUCH A RE-DECISION. A COPY OF THE ORDER DATED 29.1.2010 WHICH IS THE SUBJECT MATTER OF THIS MISC. APPLICATION IS ENCLOSED AND THE SAME HAS BEEN MARKED AS ANNEXURE I HERETO. 6. IT IS A SETTLED LAW THAT POWER OF REMAND SHOULD BE EXERCISED SPARINGLY AND ONLY IN A SITUATION WHERE ALL THE FOU NDATIONAL FACTS AS ARE NECESSARY FOR DECIDING THE ISSUE ARE NOT AVAILABLE. RELIANCE IN THIS REGARD IS PLACED ON THE DECISION OF HONBLE ALLAHAB AD HIGH COURT LUCKNOW BENCH LUCKNOW IN THE CASE OF KANPUR PLASTIPACK LTD. VS. CIT-II WHEREIN AFTER REFERRING TO AND RELYING UPON THE DE CISION OF 3 APEX COURT IN THE CASE OF K. KRISHNA REDDY THEIR L ORDSHIPS HAVE OBSERVED AND HELD AS UNDER:- HONBLE THE SUPREME COURT IN THE CASE OF K. KRISHNA REDDY AND OTHERS VS. THE SPECIAL DY. COLLECTOR LAND ACQ UISITION UNIT II REPORTED IN 1988 AIR 2123 HAS HELD THAT THE APPELLATE POWER OF REMAND OUGHT NOT TO BE EXERCISED LIGHTLY A ND IT SHALL NOT BE EXERCISED UNLESS THERE IS TOTAL LACK OF EVID ENCE. THE COMMISSIONER INCOME TAX (APPEALS) HAS GIVEN THE FI NDING TO THE FACT THAT THE LIMITATION OF TIME FOR FINALIZING THE ASSESSMENT WAS 31.3.2005. ALTHOUGH THE APPELLANT HAS SPECIFICA LLY STATED BEFORE THE ASSESSING OFFICER THAT THE NOTICE DATED 27.3.2003 WHICH WAS SENT BY SPEED POST ON 31.3.2003 WAS SERVE D ON HIM ON 31.3.2003 ITSELF. THE ENTIRE MATERIAL WAS BEFORE THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH LUCKNOW WHEN THE IMPUGNED ORDER WAS PASSED. WE ARE OF THE VIEW THAT THERE WAS SUFFICIENT MATERI AL BEFORE THE TRIBUNAL TO DECIDE THE ISSUE WHETHER THE NOTICE WAS SERVED UPON THE APPELLANT ON 31 ST MARCH 2003 OR NOT AND THERE WAS NO OCCASION FOR REMITTING BACK THE MATTER TO THE COMMI SSIONER INCOME TAX (APPEALS). A COPY OF THE SAID JUDGEMENT AND ORDER 30.3.2007 IS ENCLOSED AND THE SAME HAS BEEN MARKED AS ANNEXURE II HERETO. 7. THUS THE ORDER DATED 29.1.2010 IS AT VARIANCE W ITH THE BINDING PRESIDENT OF THE HONBLE JURISDICTIONAL HIGH COURT. SUCH A VARIANCE ITSELF CONSTITUTES A MISTAKE RECTIFIABLE UNDER SECT ION 254(2) AS PER THE PRINCIPLE LAID DOWN BY THE ALLAHABAD HIGH COURT IN THE CASE OF OMEGA SPORTS & RADIO WORKS VS. CIT REPORTED IN (1 982) 134 ITR PAGE 28. MISTAKE - II 8. IT IS ALSO VERY SIGNIFICANT TO MENTION HERE THAT EARLIER ALSO THE LD. CIT CENTRAL KANPUR HAD REJECTED THE APPELLANT S CLAIM FOR RENEWAL OF REGISTRATION UNDER SECTION 80G(5) VIDE O RDER DATED 28.1.2009 AND THE SAID ORDER HAD BEEN SET ASIDE BY THE HONBLE ITAT VIDE ORDER DATED 19.5.2009 PASSED IN ITA NO.194/LUC /09 (COPY OF 4 WHICH WAS PLACED IN THE PAPER BOOK ON PAGES 19 TO 29 ) WITH THE SPECIFIC DIRECTION. IT WAS PLEADED WITH REFERENCE TO THE VERY FIRST GROUND OF GROUNDS OF APPEAL READING AS UNDER:- 1. BECAUSE THE ORDER DATED 11 TH AUGUST 2009 STANDS WHOLLY VITIATED FOR THIS REASON ALONE THAT THE SAME IS VIOLATIVE OF THE DIRECTIONS GIVEN BY THE HONBLE ITAT VIDE ITS O RDER DATED 19.5.2009 WITH THE RESULT THAT THE SAME DESERVES T O BE QUASHED AND THE APPELLANTS CLAIM FOR RENEWAL OF EARLIER REGISTRATION DESERVES TO BE UPHELD. THAT THE SECOND ORDER DATED 11.8.2009 (IMPUGNED IN APPEAL NO.552/LUC/09) STOOD WHOLLY VITIATED AS THE DIRECTI ONS OF THE HONBLE ITAT WERE NOT CARRIED OUT. IN ANY CASE LOOKING TO MATERIAL AND INFORMATION ON RECORD AS HAS BEEN REFERRED TO ABOVE THE MATTER DESERVES TO BE DECIDED FINALLY BY THE HONBLE ITAT ITSELF. 9. WHILE DECIDING THE APPEAL VIDE ORDER DATED D19.1 .2010 (WHICH IS SUBJECT MATTER OF THIS PETITION) THE SAID PLEA HAS ALTOGETHER BEEN OMITTED FROM BEING CONSIDERED AND DECIDED. 10. FILING FEE AMOUNTING TO RS.50/- HAS BEEN DEPOSI TED VIDE CHALLAN NO. DATED.. RECEIPTED COPY OF WHICH IS ENCLOSED AND THE SAME HAS BEEN MARKED AS ANNEXURE-III HERETO. P R A Y E R 11. IT IS RESPECTFULLY PRAYED THAT THE HONBLE BENC H BE PLEASED TO MODIFY THE ORDER DATED 29.1.2010 AS PASSED BY IT I N ITA NO. 552/LUC/09 IN THE CASE OF RAMA EDUCATIONAL SOCIETY VS. CIT CENTRAL KANPUR SO AS TO HAVE THE EFFECT OF ALLOWI NG THE APPEAL IN FAVOUR OF THE APPELLANT ON SUBSTANTIVE BASIS WITH OUT BEING REMANDED TO THE RESPONDENT FOR A FRESH DECISION THEREON. RESPECTFULLY SUBMITTED; YOURS FAITHFULLY FOR RAMA EDUCATIONAL SOCIETY SD. (MRS.) RAMA KUSHWAH ENCL.: AS STATED ABOVE. SECRETARY 5 2. DURING THE COURSE OF HEARING THE LD. COUNSEL FO R THE ASSESSEE REITERATED THE CONTENTS OF THE AFORESAID MISCELLAN EOUS APPLICATION AND FURTHER SUBMITTED THAT INSPITE OF A CLEAR DIRECTION FROM THE I.T.A.T. THE LD.CIT(A) IS NOT DECIDING THE APPEAL OF THE ASSESSE E THEREFORE CERTAIN CLEAR DIRECTIONS MAY BE GIVEN TO DISPOSE OF THE APPEAL OF THE ASESSEE EXPEDITIOUSLY. 3. IN HIS RIVAL SUBMISSIONS THE LD.D.R. SUBMITTED THAT THE ASSESSEE VIDE THIS MISCELLANEOUS APPLICATION WANTS TO GET THE ORD ER PASSED BY THE TRIBUNAL REVIEWED WHICH IS NOT PERMISSIBLE UNDER SECTION 2 54(2) OF THE I.T.ACT 1961. HE FURTHER SUBMITTED THAT A JUST DEC ISION HAS BEEN TAKEN VIDE PARA 5.1 OF THE ORDER DATED 29.1.2010 AND THE ASSE SSEE HAD NOT POINTED OUT ANY GLARING MISTAKE WHICH COULD BE RECTIFIED UNDER SECTION 254(2) OF THE I.T.ACT. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOTICED THAT IN THE SAID APPEAL IN I.T.A.NO.552(LUC.)/2009 THE GRIEVANCE OF THE ASSESSEE WAS RELATED TO THE REFUSAL FOR GRANT OF RENEWAL OF REGI STRATION UNDER SECTION 80G(5) OF THE I.T.ACT AND AFTER DISCUSSING THE ISS UE IN DETAIL THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 5.1 OF THE SAID OR DER DATED 29.1.10 WHICH READS AS UNDER: 5.1 FROM THE AFORESAID OBSERVATIONS OF THE CIT AND AS IS EVIDENT FROM THE LAST PARAGRAPH ALSO IT IS REVEALED THAT T HE ASSESSEES REQUEST WAS REFUSED ONLY BECAUSE THE SURRENDER OF INCOME O F RS.11.25 LACS BY THE ASSESSEE BEFORE THE SETTLEMENT COMMISSION WHIC H WAS ACCEPTED BUT SINCE EFFECT OF THIS FACT HAS BEEN CONSIDERED BY THE TRIBUNAL WHILE DECIDING THE ASSESSEES APPEAL ITA NO.388(LUC .)/2009 AGAINST 6 THE ORDER OF THE CIT REVOKING REGISTRATION GRANTED UNDER SECTION 12AA OF THE ACT RETROSPECTIVELY WE ARE OF THE OPI NION THAT THE REGISTRATION UNDER SECTION 12A HAVING BEEN ALLOWED BY THE TRIBUNAL THE CONSEQUENTIAL ISSUE RELATING TO GRANT OF BENEF ITS UNDER SECTION 80G IS TO BE DECIDED IN THE LIGHT OF THE TRIBUNALS OR DER. IT IS SO BECAUSE WHEN THE CIT DENIED THE ASSESSEES REQUEST THE TRI BUNALS ORDER WAS NOT THERE. IN VIEW OF THESE FACTS WE RESTORE THE I SSUE RELATING TO GRANT OF BENEFITS OF SECTION 80G OF THE ACT BACK TO THE F ILE OF THE CIT(A) WITH THE DIRECTION THAT THE SAME MAY BE DECIDED AFR ESH IN ACCORDANCE WITH LAW KEEPING IN VIEW THE TRIBUNALS ORDER REST ORING THE REGISTRATION UNDER SECTION 12A OF THE ACT. 4.1 FROM THE ABOVE IT WOULD BE CLEAR THAT A CATEG ORICAL FINDING HAS BEEN GIVEN BY THE TRIBUNAL THAT THE CONSEQUENTIAL ISSUE RELATING TO GRANT OF BENEFIT UNDER SECTION 80G IS TO BE DECIDED IN THE LIGHT OF THE TRIBUNALS ORDER PASSED IN THE APPEAL RELATING TO REGISTRATION UNDER SECTI ON 12A OF THE I.T.ACT SINCE THE SAID ORDER WAS NOT AVAILABLE TO THE LD.CIT. FOR THAT REASON THE ISSUE WAS REMANDED BACK TO THE LD.CIT (IT HAS BEEN WRONGLY ME NTIONED AS CIT(A). WE RECTIFY THE SAID ORDER TO THIS EXTENT THAT THE WORD CIT(A) IS TO BE READ AS CIT. WE ALSO FIND SUBSTANCE IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ISSUE BE DECIDED BY THE LD.CIT EX PEDITIOUSLY. WE THEREFORE DIRECT THE LD. CIT TO DECIDE THE ISSUE R ELATING TO GRANT OF RENEWAL UNDER SECTION 80G OF THE I.T.ACT WHICH HAS BEEN RE STORED TO HIS FILE VIDE ORDER DATED 29.1.2010 IN I.T.A.NO.552 (LUC.)/2009 W ITHIN TWO MONTHS FROM THE RECEIPT OF THIS ORDER. 5. IN THE RESULT THE MISCELLANEOUS APPLICATION IS ALLOWED AS INDICATED ABOVE. THE ORDER PRONOUNCED IN THE OPEN COURT ON 21.1.11 . SD. SD. (H.L.KARWA) (N.K.SAINI) VICE PRESIDENT ACCOUNTANT MEMBER JANUARY 21ST 2011. 7 COPY TO THE : 1. APPLICANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R. ITAT LUCKNOW. SRIVASTAVA.