CIT (Exemption) Kolkata, Kolkata v. Jha Educational Trust,

MA 80/KOL/2017 | misc
Pronouncement Date: 30-11-2017 | Result: Dismissed

Appeal Details

RSA Number 8023524 RSA 2017
Assessee PAN AAATJ5401C
Bench Kolkata
Appeal Number MA 80/KOL/2017
Duration Of Justice 6 month(s) 14 day(s)
Appellant CIT (Exemption) Kolkata, Kolkata
Respondent Jha Educational Trust,
Appeal Type Miscellaneous Application
Pronouncement Date 30-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 30-11-2017
Assessment Year misc
Appeal Filed On 16-05-2017
Judgment Text
B IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI ABY. T. VARKEY JUDICIAL MEMBER AND SHRI WASEEM AHMED ACCOUNTANT MEMBER (MISC. APPLICATION) M.ANO.79-81/KOL/2017 (ARISING OUT ITA NO.931 TO 933/KOL/2017 ) CIT (EXEMPTION) KOLKATA 10B MIDDLETON ROW 6 TH FLOOR KOLAKATA-71 / V/S . JHA EDUCATIONAL TRUST C/O CALCUTTA PUBLIC SCHOOL P.O. ASWINI NAGAR BAGUIHATI KOLKATA-159 [ PAN NO. AAATJ 5401 C ] (ORIGINAL RESPONDENT) (ORIGINAL APPELLANT) (APPLICANT) .. (RESPONDENT) / BY REVENUE SHRI SAURABH KUMAR ADDL. CIT-DR / BY ASSESSEE SHRI J.P KHAITAN SR. COUNSEL / DATE OF HEARING 22-09-2017 / DATE OF PRONOUNCEMENT 30-11-2017 / ORDER PER WASEEM AHMED ACCOUNTANT MEMBER:- BY WAY OF THESE THREE MISCELLANEOUS APPLICATION (MA ) FILED BY THE REVENUE IS SEEKING TO RECTIFY MISTAKE IN THE ORDER OF TRIBUNAL IN ITA NO.931- 933/KOL/2016 DATED 17-03-2017. 2. THE LD. DR BEFORE US SUBMITTED THAT A SURVEY OPE RATION U/S 133A OF THE INCOME TAX ACT 1961 WAS CONDUCTED IN THE CASE OF M /S BATANAGAR EDUCATION AND RESEARCH TRUST (BERT FOR SHORT) DATED 03.09.201 5. AS A RESULT OF SURVEY A STATEMENT U/S 133A OF THE MANAGING TRUSTEE NAMELY SHRI RABINDRANATH LAHIRI WAS RECORDED WHEREIN IT WAS ADMITTED THAT IT IS ENGAGED IN RECEIVING BOGUS DONATION FROM VARIOUS CORPORATE/INDIVIDUALS/F IRMS AND REPAYMENT OF THE SAME IN CASH THROUGH THE WEB OF FINANCIAL TRANSACTI ONS. THE ASSESSEE DURING THE FINANCIAL YEAR 2011-12 HAS GIVEN A DONATION OF 5 LAKH TO M/S BERT. MA NO.79-81/KOL/2017 CIT(EX) KOL V. JHA EDUCATIONAL TRUST PAGE 2 THEREFORE THE LD. CIT (EX) CONSIDERED THAT THE ASSE SSEE IS ENGAGED IN MONEY LAUNDERING ACTIVITIES. THUS THE ACTIVITIES OF THE A SSESSEE-TRUST ARE NOT GENUINE AND NOT CARRIED OUT IN ACCORDANCE WITH THE AIM AND OBJECT FOR WHICH IT WAS ESTABLISHED. IT WAS ALSO ADMITTED BY THE MANAGING T RUSTEE OF BERT THAT A PERSON NAMELY SHRI GULAB PINCHA WAS THE KEY PERSON FOR ARRANGING THE LARGE AMOUNT OF BOGUS DONATION. THE ASSESSEE WAS GIVEN OP PORTUNITY OF CROSS- EXAMINATION OF THE MANAGING TRUSTEE OF THE BERT BUT THE ASSESSEE FAILED TO AVAIL THE SAME. ACCORDINGLY LD. CIT(EX) CANCELLED THE REGISTRATION CERTIFICATE OF THE ASSESSEE-TRUST U/S 12AA/80G/10(23C) OF THE A CT VIDE ORDER DATED 10.03.2016. HOWEVER HON'BLE TRIBUNAL IN ITS ORDER DATED 17.03. 2017 REVERSED THE ORDER OF LD. CIT(EX) BY OBSERVING AS UNDER:- (I) THE STATEMENT OF SHRI GULAB PINCHA WHO WAS ACTI NG AS MIDDLEMAN FOR ARRANGING THE BOGUS DONATION WAS NOT RECORDED DURING PROCEEDINGS OF CANCELLATION OF REGISTRATION CERTIFICATE GRANTED TO ASSESSEE U/S. 12AA.80G/10(23C) OF THE AC T BY THE LD. CIT(EX) (II) THE NAME OF THE ASSESSEE IS NOT APPEARING IN T HE LIST OF BOGUS DONATION AS PROVIDED IN THE STATEMENT FURNISHED BY THE MANAGING TRUSTEE BERT. LD. DR IN VIEW OF THE ABOVE SUBMITTED THAT NON REC ORDING THE STATEMENT OF THE MIDDLEMAN SHRI GULAB PINCHA DOES NOT IMPACT THE DE CISION TAKEN BY THE LD. CIT(EX) AS IT WAS EVIDENT FROM THE STATEMENT OF MAN AGING TRUSTEE OF BERT THAT THE ASSESSEE TRUST IS ENGAGED IN PROVIDING THE BOGUS DONATION. SIMILARLY THE NAME OF THE ASSESSEE WAS VERY MUCH A PPEARING IN THE LIST OF BOGUS DONATION PROVIDED BY THE ASSESSEE. IN VIEW OF THE ABOVE LD. DR FURTHER SUBMITTED THAT A APPARENT MISTAKE HAS CROPP ED UP IN THE FINDING OF HON'BLE TRIBUNAL WHICH NEEDS TO BE RECTIFIED AS PER THE PROVISION OF SECTION 254(2) OF THE INCOME TAX ACT AND RULE 25 OF APPELLA TE TRIBUNAL RULE 1963. ON THE OTHER HAND LD. AR SUBMITTED THAT THE CONTEN TIONS OF THE REVENUE IN THE MISCELLANEOUS APPLICATIONS ARE AS FOLLOWS : MA NO.79-81/KOL/2017 CIT(EX) KOL V. JHA EDUCATIONAL TRUST PAGE 3 1. THAT THE FINDING OF THIS HON'BLE TRIBUNAL IS THA T 'THERE IS NO EVIDENCE AVAILABLE ON RECORD SUGGESTING THE NAME OF THE ASSE SSEE IN THE LIST OF BOGUS DONORS.' IS ERRONEOUS. 2. IT HAS BEEN FURTHER CONTENDED THAT THE ASSESSEE WAS PROVIDED OPPORTUNITY FOR CROSS- EXAMINATION WHICH THE ASSESS EE ALLEGEDLY DID NOT AVAIL. HOWEVER IN THIS REGARD IT WAS SUBMITTED THAT BOTH T HE CONTENTIONS OF THE REVENUE ARE WITHOUT SUBSTANCE. HE FURTHER SUBMITTED THAT THE ASSESSEE IN COURSE OF THE PROCEEDINGS BEFORE THE COMMISSIONER OF INCOME TAX (EXEMPTIONS) WAS PR OVIDED WITH ONLY A COPY OF THE STATEMENT DATED SEPTEMBER 3 2015 OF ONE SRI RABIRIDRANATH LAHIRI VICE CHAIRMAN BATANAGAR EDUCATION AND RESEARCH TRU ST. THE ASSESSEE WAS NOT PROVIDED WITH ANY OTHER DOCUMENT REFERRED IN SU CH STATEMENT. LD. AR FURTHER SUBMITTED THAT THE ASSESSEE IN COURS E OF THE PROCEEDINGS BEFORE THE COMMISSIONER OF INCOME TAX (EXEMPTIONS) WAS NOT GRANTED ANY OPPORTUNITY OF CROSS-EXAMINATION WITH THE SAID SRI RABINDRANATH LAHIRI. AS SUCH THE QUESTION FOR NOT AVAILING SUCH OPPORTUNITY DOES NOT ARISE. IN THIS CONNECTION REFERENCE IS INVITED TO THE AFFIDAVIT D ATED OCTOBER 4 2016 OF BHOGENDRA JHA A TRUSTEE OF THE ASSESSEE (AT PAGE 1 74 OF THE PAPER BOOK PARTICULARLY PARAGRAPHS 12 AND 13 AT PAGE 177) AND THE AFFIDAVIT DATED OCTOBER 17 2016 OF SRI SOMNATH GHOSH ADVOCATE AU THORIZED REPRESENTATIVE OF THE ASSESSEE (PARTICULARLY PARAGRAPHS 10 AND 11 ) WHICH WERE SUBMITTED BEFORE THIS HON'BLE TRIBUNAL ON MARCH 8 2017 IN CO URSE OF HEARING OF THE APPEAL WITH COPY TO THE LD. CIT(DR). THE ASSESSEE STATES THAT AFTER RECEIPT OF THE ORDERS DATED MARCH 10 2016 OF THE COMMISSIONER OF INCOME TAX (EXEMPTIONS) THE ASSESSEE BY ITS LETTER DATED MARC H 28 2016 HAD REQUESTED FOR INSPECTION OF THE FILE RELATING TO THE PROCEEDI NGS AND BY ANOTHER LETTER DATED MARCH 28 2016 IT HAD REQUESTED FOR INTER ALIA CO PY OF THE STATEMENT DATED SEPTEMBER 3 2015 OF THE SAID SRI RABINDRANATH LAHI RI ALONG WITH COPIES OF THE DOCUMENTS REFERRED TO THEREIN (PAGES 149 AND 149A O F THE PAPER BOOK). BY A LETTER DATED APRIL 4 2016 WRITTEN BY THE DEPUTY CO MMISSIONER OF INCOME TAX MA NO.79-81/KOL/2017 CIT(EX) KOL V. JHA EDUCATIONAL TRUST PAGE 4 HEADQUARTERS (EXEMPTIONS) IN REPLY TO THE SAID TWO LETTERS BOTH DATED MARCH 28 2016 (PAGE 151 OF THE PAPER BOOK) IT WAS STATE D THAT THE SAID STATEMENT OF THE SAID SRI RABINDRANATH LAHIRI WAS HANDED OVER TO THE ASSESSEE'S AUTHORIZED REPRESENTATIVE ON JANUARY 12 2016 AND A S SUCH THE SAME WAS NOT BEING PROVIDED AGAIN. IN SPITE OF REQUEST THE ASSE SSEE WAS NOT PROVIDED COPY OF ANY DOCUMENT REFERRED TO IN THE SAID STATEMENT D ATED SEPTEMBER 3 2015 OF THE SAID SRI RABINDRANATH LAHIRI. HE FURTHER STATED THAT THE SAID LETTER DATED APRIL 4 2016 OF THE DEPUTY COMMISSIONER THE ASSESSEE WAS ALSO ALLOWED INSPECT ION OF THE FILE. THE ASSESSEE'S AUTHORIZED REPRESENTATIVE DULY TOOK INSP ECTION OF THE FILE THEREAFTER BUT DID NOT FIND THEREIN ANY ALLEGED LEDGER COPY/LI ST OF DONORS OF BATANAGAR EDUCATION AND RESEARCH TRUST REFERRED TO IN THE STA TEMENT OF THE SAID SRI RABINDRANATH LAHIRI. IT WAS IN SUCH CIRCUMSTANCES THAT IT WAS SUBMITTED BEFORE THIS HON'BLE TRIBUNAL ON BEHALF OF THE ASSESSEE THAT THE ASSESSEE'S NAME DID NOT FEATURE IN ANY ALLEGED LIST OF BOGUS DONORS OF BATANAGAR EDUCATION AND RESEARCH TRUST. WITH REFERENCE TO QUESTION NO. 19 OF THE STATEMENT DATED SEPTEMBER 3 2015 OF THE SAID SRI RABINDRANATH LAHIRI IT WAS SUBMITTED THAT THE ASSESSEE HAD MADE THE DONATION OF RS.5 LAKH DURING THE FINANCIAL YEAR 201 1-12 AND AS SUCH THERE WAS NO QUESTION OF THE ASSESSEE'S NAME FEATURING IN ANY LEDGER COPY FOR THE PERIOD FROM APRIL 1 2014 TO SEPTEMBER 4 2014. THE LD DR APPEARING ON BEHALF OF THE REVENUE DID NOT CONTROVERT THE SAID SUBMISSION MADE ON BEHALF OF THE ASSESSEE. THE REVENUE DID NOT PRODUCE BEFORE THIS H ON'BLE TRIBUNAL ANY ALLEGED LEDGER COPY / LIST OF DONORS ADVERTED TO IN THE SAID STATEMENT OF SRI RABINDRANATH LAHAIRI AT THE TIME OF HEARING OF THE APPEAL. THE ASSESSEE STATES THAT THE ALLEGED LEDGER COPY/LIST OF DONORS REFERRED TO IN THE SAID STATEMENT DATED SEPTEMBER 3 2015 OF THE SAID SRI R ABINDRANATH LAHIRI WAS NEVER PROVIDED TO THE RESPONDENT ASSESSEE NOR PRODU CED BY THE REVENUE BEFORE THIS HON'BLE TRIBUNAL. THE ASSESSEE FURTHER STATES THAT THE TWO SHEETS OF PAPER ENTITLED 'DONATION-I' AND 'DONATION-IL' SU BMITTED BY THE REVENUE FOR THE FIRST TIME BEFORE THIS HON'BLE TRIBUNAL ALONG W ITH THE MISCELLANEOUS MA NO.79-81/KOL/2017 CIT(EX) KOL V. JHA EDUCATIONAL TRUST PAGE 5 APPLICATIONS DO NOT BEAR ANY SIGNATURE OF THE SAID SRI RABINDRANATH LAHIRI BY WAY OF AUTHENTICATION AND IT IS NOT APPARENT THERE FROM THAT THE SAID TWO SHEETS ARE THE ALLEGED LEDGER COPY/LIST OF DONORS REFERRED TO IN THE SAID STATEMENT DATED SEPTEMBER 3 2015 OF THE SAID SRI RABINDRANAT H LAHIRI. THE ASSESSEE DENIES AND DISPUTES THAT THE SAID TWO SHEETS ARE TH E ALLEGED LEDGER COPY/LIST OF DONORS REFERRED TO IN THE SAID STATEMENT DATED SEPT EMBER 3 2015 OF THE SAID SRI RABINDRANATH LAHIRI. THE ASSESSEE RESPECTFULLY STATES AND SUBMITS THAT THE FINDING OF THIS HON'BLE TRIBUNAL IN THE ORDER DATED MARCH 17 2017 THAT THERE WAS NO EVIDENCE AVAILABLE ON RECORD SUGGESTING THAT THE NAME OF THE ASSESSEE WAS IN THE LIST OF BOGUS DONORS IS CORRECT . THE SAID FINDING OF THIS HON'BLE TRIBUNAL CANNOT BE QUESTIONED BY THE REVENU E ON THE BASIS OF THE TWO SHEETS OF PAPER SUBMITTED FOR THE FIRST TIME BEFORE THIS HON'BLE TRIBUNAL ALONG WITH THE MISCELLANEOUS APPLICATIONS. HE RESPECTFULL Y STATES AND SUBMITS THAT THE MAS FILED ON BEHALF OF THE REVENUE ARE MISCONCE IVED AND ARE LIABLE TO BE REJECTED BY THIS HON'BLE TRIBUNAL. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACT IS THAT A SURVEY OPE RATION WAS CONDUCTED AT THE PREMISES OF BERT WHEREIN IT WAS ADMITTED THAT THE BERT IS ENGAGED IN PROVIDING BOGUS DONATION IN LIEU OF CASH. IT IS ALS O UNDISPUTED FACT THAT ASSESSEE HAS GIVEN DONATION OF 5 LAKH TO M/S BERT. 3.1 FROM THE ABOVE WE FIND THAT THE REVENUE HAS AS SAILED THE ORDER OF TRIBUNAL ON THE GROUND THAT APPARENT MISTAKE IN THE ORDER OF TRIBUNAL HAS OCCURRED ON THE FOLLOWING TWO GROUNDS:- I) THE STATEMENT OF THE MIDDLEMAN SHRI GULAB PINC HA DOES NOT PRODUCE THE CRUCIAL FINDING OF THE LD. CIT (EX) FOR HOLDING THE ACTIVITIES OF THE ASSESSEE IN-GENUINE. AND II) THE NAME OF ASSESSEE IS NOT APPEARING IN THE L IST OF BOGUS DONATION. MA NO.79-81/KOL/2017 CIT(EX) KOL V. JHA EDUCATIONAL TRUST PAGE 6 AFTER PERUSING THE MATERIAL AVAILABLE ON RECORD WE FIND THAT THE ALLEGATION MADE BY THE REVENUE THAT THE HON'BLE TRIBUNAL HAS R EVERSED THE ORDER OF LD. CIT (EX) ON THE BASIS OF TWO REASONS AS DISCUSSED A BOVE IS NOT CORRECT. IT IS BECAUSE RELIEF WAS GRANTED TO ASSESSEE NOT ONLY ON THE BASIS OF ABOVE TWO REASONS BUT ALSO IT WAS GRANTED AFTER CONSIDERING T HE OTHER MATERIAL FACTS AVAILABLE ON RECORD. THE RELIEF WAS GRANTED BY THE HONBLE TRIBUNAL BY O BSERVING THAT IN THE GIVEN FACTS & CIRCUMSTANCES AT THE MOST THE BENEFIT OF SE CTION 11 OF THE ACT CAN BE DENIED TO THE EXTENT OF BOGUS DONATION. THE FINDING OF HONBLE TRIBUNAL IS REPRODUCED BELOW:- WITHOUT PREJUDICE O THE ABOVE EVEN ASSUMING THAT T HE DONATION TO BERT IS BOGUS THEN THE AMOUNT OF BOGUS DONATION WILL NOT BE ELIGIBLE FOR EXEMPTIONS U/S.11OTA. UNDER SUCH CIRCUMSTANCES THE REGISTRATI ON CERTIFICATE ISSUED U/S.12A OF THE ACT CANNOT BE CANCELLED AS LONG AS T HE OBJECTS OF THE TRUST ARE WITHIN THE PROVISIONS OF LAW. THE OBJECTS/BYELAWS O F THE TRUST ARE PLACED ON PAGES 264TDO 283 OF THE PAPER BOOK AND ON THE BASIS OF SAME OBJECTS THE ASSESSEE WAS GIVEN REGISTRATION CERTIFICATE U/S 12A AND80G AND 10(23C) OF THE ACT. WHILE HOLDING SO WE FIND SUPPORT & GUIDAN CE FROM THE JUDGMENT OF HON'BLE HIGH COURT OF PUNJAB 7 HARYANA IN THE CASE OF CIT VS. APPEJAY EDUCATION SOCIETY REPORTED IN 59 TAXMANN.COM 102. IT WAS ALSO OBSERVED BY HONBLE TRIBUNAL THAT THERE IS NO DOCUMENTARY EVIDENCE SUGGESTING THAT THE BOGUS DONATION PROVIDE D BY THE ASSESSEE-TRUST HAS COME BACK TO IT. IT WAS ALSO OBSERVED THAT THE ASSESSEE HAS BEEN GIVEN DONATION TO VARIOUS ORGANIZATIONS DURING SEVERAL YE ARS AND IN NONE OF THE YEAR SUCH DONATION WAS TREATED AS BOGUS. MOREOVER THE AM OUNT OF DONATION GIVEN BY THE ASSESSEE IN COMPARISON TO ITS GROSS RECEIPTS IS NEGLIGIBLE. THE AMOUNT OF GROSS RECEIPTS SHOWN BY THE ASSESSEE HAS NOT BEE N DOUBTED BY THE LD. CIT(EX). THE RELEVANT FINDING OF HONBLE TRIBUNAL R EADS AS UNDER:- IT IS ALSO OBSERVED THAT THE DONATION GIVEN BY THE ASSESSEE OVER THE SEVERAL YEARS ARE NEGLIGIBLE TO THE GROSS RECEIPTS OF THE T RUST AS DETAILED UNDER:- F Y GROSS RECEIPT DONATION DONATION AS % OF GROSS RECEIPT 2010-11 42 296 282 2 010 000 5% 2011-12 46 450 797 500 000 1% 2012-13 51 353 957 1 400 000 3% MA NO.79-81/KOL/2017 CIT(EX) KOL V. JHA EDUCATIONAL TRUST PAGE 7 2013-14 60 157 202 1 000 000 2% 2014-15 67 355 336 11 000 0% THE HONBLE TRIBUNAL ALSO OBSERVED THE ACTIVITIES O F THE ASSESSEE-TRUST AS DETAILED UNDER :- THE DIRECTOR OF INCOME TAX (EXEMPTION) AFTER VERIF ICATION OF DOCUMENTS AND AFTER BEING SATISFIED ABOUT THE OBJECT OF THE TRUST AND GENUINENESS OF ITS ACTIVITIES GRANTED REGISTRATION EFFECTIVE FROM 01.0 4.2001 VIDE ORDER NO. DIT(E)/T-3/8E/437/2CCI-02 DATED 11.04.2002. A COPY OF THE SAID REGISTRATION IS ENCLOSED ON PAGES 4-6 OF THE PAPER BOOK. THE COM MISSIONER OF INCOME TAX (EXEMPTION) GRANTED APPROVAL UNDER SECTION 80G INITIALLY FROM 26.03.2002 TO 31.03.2005 AND THEN FOR ASSESSMENT YE AR 2006-07 TO ASSESSMENT YEAR 2008-09. FURTHER ON 23.09.2011 IT WAS EXTENDED IN PERPETUITY. A COPY OF THE CERTIFICATE GRANTING APPR OVAL UNDER SECTION 80G IS ENCLOSED ON PAGES 6 TO 6C OF THE PAPER BOOK. IT WA S ALSO OBSERVED THAT NO DONATION WHATSOEVER HAS BEEN RECEIVED BY JHA TRUST (IN SHORT) TILL DATE. JHA TRUST IS RUNNING SCHOOLS IN TWO CAMPUS SINCE LAST S EVERAL YEARS. ONE IS PRIMARY AND JUNIOR HIGH SCHOOL ON VIP ROAD BAGUIAT I KOLKATA-159 AND ANOTHER IS SECONDARY (ICSE) AND HIGHER SECONDARY (I SC) SCHOOL AT ASWINI NAGAR BAGUIATI KOLKATA-159. THE SCHOOL IS AFFILIA TED WITH COUNCIL FOR THE INDIAN SCHOOL CERTIFICATE EXAMINATIONS NEW DELHI (I CSE-X AND ISC-XII). THE TRUST HAS STARTED ANOTHER SCHOOL NEAR RANCHI WHICH IS SITUATED IN REMOTE AREA MAINLY WITH THE OBJECT OF IMPARTING EDUCATION TO GE NERAL AND TRIBAL POOR STUDENTS AND PROVIDING FREE TUITION AND/OR CHARGIN G CONCESSIONAL RATE OF TUITION FEES TO A LARGE NUMBER OF STUDENTS IN DESER VING CASES. THE SCHOOL IS OPERATIONAL SINCE APRIL 2015. THE ROLL STRENGTH OF STUDENTS AT PRESENT IS ABOUT 3000 IN ALL THE SCHOOLS TAKEN TOGETHER. AT PRESENT MORE THAN 200 STAFF MEMBERS ARE INVOLVED IN THE SCHOOL INCLUDING TEACHI NG AND NON-TEACHING STAFF. APART FROM STAFF SEVERAL OTHER PERSONS ARE DEPENDEN T ON SCHOOLS FOR THEIR LIVELIHOOD AS THEY ARE ASSOCIATED WITH RELATED ACTI VITIES OF SCHOOL SUCH AS CANTEEN TRANSPORTATION ETC. THE HIGHER SECONDARY SCHOOL IS IMPARTING GOOD EDUCATION. THE PASS RESULT IS BETWEEN 97% TO 100% A T CLASS X AND CLASS XII LEVELS WITH HIGHEST SCORE TOUCHING AS HIGH AS 98%. FURTHER EVERY YEAR MORE THAN 40 STUDENTS SCORE MORE THAN 90% AND MANY MERIT ORIOUS STUDENTS HAVE COME OUT FROM THIS SCHOOL WHO HAVE GONE FOR FURTHER HIGHER STUDIES IN ENGINEERING MEDICAL AND OTHER PROFESSIONAL DEGREES . EVERY YEAR A SCHOOL MAGAZINE DAWN IS PUBLISHED BY THE STUDENTS AND TEACHERS. TRUST ALSO PUBLISHES QUARTERLY NEWS BULLETINS FOR THE BENEFIT OF STUDENTS. A SAMPLE COPY WAS ALSO FILED DURING THE COURSE OF HEARING FOR THE PURPOSE OF THE RECORD. IN OTHER CO-CURRICULAR ACTIVITIES ALSO MAY STUDENTS HA VE REPRESENTED AT STATE AND NATIONAL LEVEL. THE VISION OF THE TRUST IS TO IMPAR T EDUCATION WHERE THE NEED IS MORE AND AS SUCH THE SCHOOLS ARE BEING OPENED IN RU RAL AREAS. LAST YEAR IT HAS ACQUIRED LAND AT RAHIKI IN MADHUBANI DISTRICT OF BIHAR AND IT PLANS TO START CONSTRUCTION IN THE NEXT YEAR. HOWEVER ON PERUSAL O F THE ORDER OF THE LD. CIT(EXEMPTION) HAS NO WHERE HIGHLIGHTED THE ABOVE A CTIVITIES OF THE ASSESSEE AND NO DEFECT HAS ALSO BEEN REPORTED. THEREFORE IT CAN SAFELY BE CONCLUDED THAT ALL THE ACTIVITIES ARE THE GENUINE ACTIVITIES. IT IS ALSO IMPORTANT TO NOTE THAT MA NO.79-81/KOL/2017 CIT(EX) KOL V. JHA EDUCATIONAL TRUST PAGE 8 THE ASSESSMENT FOR THE AY 2012-13 WAS CARRIED OUT U /S 143(3) OF THE ACT AND THE DONATION GIVEN BY THE ASSESSEE WAS DULY ACCEPTE D. THUS IN VIEW OF ABOVE IT CAN BE CONCLUDED THAT THE ORDER OF LD. CIT(EX) WAS REVERSED ON MANY OTHER FACTORS AS DISCUSSED ABOVE. THEREFORE IT CANNOT BE ALLEGED THAT THE ORDER OF TRIBUNAL CONTENTS APPAREN T MISTAKE AS SPECIFIED U/S. 254(2) OF THE ITAT RULES. THUS IT CAN BE SAID THAT THE ORDER WAS PASSED BY THE TRIBUNAL AFTER DUE VERIFICATION OF THE MATERIAL AVAILABLE ON RECORD. 3.2 WE ALSO FIND THAT THE ORDER OF TRIBUNAL CANNOT BE HELD CONTAINING APPARENT MISTAKE EVEN IF FAILED TO CONSIDER THE ARG UMENT MADE BY THE AAYAKAR PARTY. IN THIS REGARD WE FIND SUPPORT AND GUIDANCE FROM THE ORDER OF THIS TRIBUNAL IN MA NO.70/KOL/2016 DATED 20.07.2016 WHE REIN IT WAS HELD AS UNDER:- 28. AS RIGHTLY CONTENDED BY THE LEARNED COUNSEL FO R THE ASSESSEE THE POWER OF THEE TRIBUNAL UNDER S. 254(2) OF THE ACT IS CONF INED TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD. THE TRIBUNAL DOES NOT HAV E INHERENT POWER OF RECTIFICATION OR REVIEW OR REVISION. UNLESS THERE I S MISTAKE APPARENT FROM THE RECORD IN THE SENSE OF PATENT OBVIOUS CLEAR ERROR OR MISTAKE THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER. IF THE ERROR OR M ISTAKE IS ONE WHICH COULD BE ESTABLISHED ONLY BY LONG-DRAWN ARGUMENTS OR BY WAY OF PROCESS OF INVESTIGATION AND RESEARCH IT IS NOT A MISTAKE APP ARENT FROM THE RECORD. UNLESS THERE IS MANIFEST ERRORS WHICH ARE OBVIOUS CLEAR AND SELF EVIDENT THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATT EMPT TO REWRITE THE SAME. FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENTS AD VANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT O N THE RECORD ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE TRIBUNAL CANNOT IN EXE RCISE OF ITS POWER OF RECTIFICATION LOOK INTO SOME OTHER CIRCUMSTANCES WH ICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION. THE TRIBUNAL CANNOT RE-DECI DE THE MATTER AND IT HAS NO POWER TO REVIEW ITS ORDER. THE TRIBUNAL HAS NO POWE R TO RECTIFY A DECISION ON DEBATABLE POINT OF LAW. A DECISION ON DEBATABLE POI NT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD. 29. WHERE THE TRIBUNAL HAS OVERLOOKED THE RELEVANT MATERIAL ON RECORD THERE WOULD BE AN ERROR APPARENT FROM RECORD WHICH CAN BE RECTIFIED BY SETTING ASIDE THE ORDER FOR FRESH CONSIDERATION. WHERE A MATERIAL FACT BROUGHT TO THE NOTICE OF THE TRIBUNAL HAS BEEN LOST SIGHT OF THE TRIBUNA L HAS THE POWER TO RECTIFY THE MISTAKE SO COMMITTED; PROVIDED THE MATERIAL FACT HA S AN IMPORTANT BEARING ON THE ULTIMATE DECISION. THE MISTAKE POINTED OUT IN T HE APPLICATION U/S. 254(2)OF THE ACT BY THE REVENUE IN THE PRESENT CASE CANNOT B E SAID TO FALL NEITHER OF THE ABOVE CATEGORIES. MA NO.79-81/KOL/2017 CIT(EX) KOL V. JHA EDUCATIONAL TRUST PAGE 9 IN VIEW OF THE ABOVE WE HOLD THAT THERE IS NO MIST AKE APPARENT FROM THE ORDER OF TRIBUNAL AND THEREFORE THE QUESTION OF RECTIFICA TION FOR THE SAME UNDER THE PROVISION OF SECTION 254(2) OF THE ACT DOES NOT ARI SE. HENCE THE GROUND OF MAS FILED BY THE REVENUE STAND DISMISSED. 4. IN THE RESULT ALL THE THREE MAS OF REVENUE STAND D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/11/2017 . SD/- SD/- ($ ) ( ) (ABY T. VARKEY) (WASEE M AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA *DKP &- 30 / 11 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /REVENUE-CIT(EX) 10B MIDDLETON ROW 6 TH FLOOR KOLKATA-71 2. /RESPONDENT-JHA EDUCATIONAL TRUST C/O CALCUTTA PUB LIC SCHOOL P.O. ASWINI NAGAR BAGUIHATI KOLKATA-159 3. 1 2 / CONCERNED CIT 4. 2- / CIT (A) 5. 7$$1 1 KOLKATA / DR ITAT KOLKATA 6. : / GUARD FILE. BY ORDER/ /TRUE COPY/ SR. PRIVATE SECRETARY HEAD OF OFFICE/DDO 1