Rajammal Duraisamy Educational & Health Trust, CHENNAI V. DDIT, CHENNAI

ITA 1087/CHNY/2015

• Counselvise Citation: 108721714 RSA 2015
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 22-06-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 11-05-2015
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: S SRIDHAR
• Keywords: Revision of order; Condonation of delay
• Section: 263; 2; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI . . . , . ! , ' # $ [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] ./ I.T.A.NO.1087/MDS/2015 / ASSESSMENT YEAR : 2010-11 M/S RAJAMMAL DURAISAMY EDUCATIONAL & HEALTH TRUST (PRESENTLY KNOWN AS CHARTIAN EDUCATIONAL & HEALTH TRUST) NO.19, (OLD 11/1) AZEEZ NAGAR KODAMBAKKAM CHENNAI 600 024 VS. THE DY. DIRECTOR OF INCOME- TAX(EXEMPTIONS) CHENNAI [PAN AAATC 3700 B] ( %& / APPELLANT) ( '(%& /RESPONDENT) / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE /RESPONDENT BY : SHRI P. RADHAKRISHNAN, JCIT / DATE OF HEARING : 22 - 0 6 - 2015 ! / DATE OF PRONOUNCEMENT : 03 - 0 7 - 2015 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-17, CHENNA I, DATED 27.3.2015 AND PERTAINS TO ASSESSMENT YEAR 2010-11. ITA NO.1087/15 :- 2 -: 2. SHRI S. SRIDHAR, LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE ASSESSEE FILED RETURN OF INCOME CLAIMING EXEMP TION U/S 11 OF THE ACT. HOWEVER, THERE WAS A DELAY IN FILING FORM NO. 10 FOR ACCUMULATION OF INCOME. THE ASSESSEE SUBSEQUENTLY FILED FORM N O.10 AND THE CIT(EXEMPTIONS) BY AN ORDER DATED 12.12.2014 CONDON ED THE DELAY IN FILING THE FORM NO.10. ACCORDING TO THE LD. COUNSE L, FORM NO.10 HAS TO BE FILED ALONGWITH THE RETURN OF INCOME WITHIN THE DUE DATE FOR FILING OF THE RETURN U/S 139(1) OF THE ACT. THOUGH THE A SSESSEE HAS TO FILE FORM NO.10 WITHIN THE PRESCRIBED TIME, ACCORDING TO THE LD. COUNSEL, FORM NO.10 HAS TO BE FILED BEFORE COMPLETION OF THE ASSESSMENT PROCEEDINGS. THEREFORE, THE DELAY, IF ANY, IN FILI NG FORM NO.10 WOULD NOT VITIATE THE ASSESSMENT PROCEEDINGS AT ALL. RE FERRING TO THE ORDER OF THE CIT(A), THE LD. COUNSEL SUBMITTED THAT AFTER THE DELAY WAS CONDONED THE ASSESSEE, IN FACT, INTENDED TO WITHDRA W THE APPEAL PENDING BEFORE THE CIT(A). THE CIT(A) REFUSED TO P ERMIT THE ASSESSEE TO WITHDRAW THE APPEAL AND PROCEEDED TO EN HANCE THE ASSESSMENT. REFERRING TO THE CIT(A)S ORDER, THE L D. COUNSEL SUBMITTED THAT THE CIT(A) FOUND THAT IN CONDONING THE DELAY O F FILING FORM NO.10, THE PROVISIONS OF THE INCOME-TAX ACT, 1961 WERE MIS USED. THEREFORE, HE REFUSED TO ADMIT THE ORDER OF THE CIT(EXEMPTIONS ) WHEREIN THE DELAY WAS CONDONED. ITA NO.1087/15 :- 3 -: 3. WE HEARD SHRI P. RADHAKRISHNAN, THE LD. DEPARTMENTA L REPRESENTATIVE ALSO. 4. FOR THE PURPOSE OF CLAIMING EXEMPTION U/S 11 OF TH E ACT, THE ASSESSEE HAS TO FILE FORM NO.10 WITHIN THE DUE DATE PRESCRIBED U/S 139(1) OF THE ACT. UNDER SEC. 119 THE CENTRAL BOAR D OF DIRECT TAXES BEING THE APEX BODY TO ADMINISTER THE INCOME-TAX AC T, 1961, DELEGATED ITS POWER TO THE CIT TO CONDONE THE DELAY NOT ONLY IN FILING THE RETURN OF INCOME BUT ALSO IN FILING FORM NO.10 . IN EXERCISE OF THE DELEGATED POWER, THE CIT(EXEMPTIONS) BY AN ORDER DA TED 12.12.2014 CONDONED THE DELAY IN FILING FORM NO.10 BY THE ASS ESSEE. FROM THE ORDER OF THE CIT(A) IT APPEARS THAT THE ASSESSEE H AS FILED THE COPY OF THE ORDER OF THE CIT(EXEMPTIONS) BEFORE HIM. THE C IT(A) FOUND THAT THE STORY OF FORM NO.10 IS AN AFTERTHOUGHT TO EVADE THE TAX. HE ALSO OBSERVED THAT FILING OF FORM NO.10 FOR ACCUMULATION OF INCOME U/S 11(2) OF THE ACT WAS MADE TO DERAIL THE INVESTIGATI ON AND THE FINDING OF THE ASSESSING OFFICER. ACCORDINGLY, THE CIT(A) ENHA NCED THE ASSESSMENT WITHOUT EVEN GIVING A NOTICE FOR ENHANCE MENT. 5. UNDER THE SCHEME OF THE INCOME-TAX ACT, 1961, JUDIC IAL AND ADMINISTRATIVE POWERS ARE SEPARATED. THE ASSESSING OFFICER HAS TO ACT NOT ONLY AS AN ADJUDICATING AUTHORITY BUT ALSO AS A N INVESTIGATION/ ENQUIRY OFFICER AND PRESENTING OFFICER FOR THE DEPA RTMENT. THE ITA NO.1087/15 :- 4 -: ASSESSING OFFICER HAS ALSO NEED TO PERFORM THE ADMI NISTRATIVE FUNCTIONING. THIS IS BECAUSE OF THE SCHEME OF THE INCOME-TAX ACT, 1961. ONCE THE ASSESSING OFFICER PASSED AN ORDER, THE ASSESSEE WAS GIVEN AN OPPORTUNITY TO CONTEST THE APPEAL BEFORE T HE CIT(A). THE ASSESSEE WAS ALSO GIVEN OPPORTUNITY TO FILE A REVIS ION U/S 264 OF THE ACT BEFORE THE ADMINISTRATIVE COMMISSIONER. SECTIO N 263 OF THE ACT EMPOWERS THE CIT TO REVISE THE ORDER OF THE ASSESSI NG OFFICER IN CASE HE FINDS THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. UNDER THE SCHEME OF THE ACT, THE CBDT BEING THE APEX BODY, HAS TO ADMINISTE R THE PROVISIONS OF THE ACT FOR THE PURPOSE OF COLLECTION OF TAXES. HO WEVER, NO DIRECTION COULD BE GIVEN BY CBDT IN JUDICIAL MATTERS. IN OTH ER WORDS, THE CIT(A) HAS TO DECIDE THE APPEAL INDEPENDENTLY IN RESPECT O F THE MATTER WHICH WAS BROUGHT BEFORE HIM. THE CONDONATION OF DELAY I N FILING THE RETURN OF INCOME AND FORM NO.10 IS THE ADMINISTRATIVE FUNC TION EXCLUSIVELY ASSIGNED TO THE CBDT. THE CBDT IN EXERCISE OF ITS POWER U/S 119 DELEGATED THE SAME TO THE CIT. THE ADMINISTRATIVE COMMISSIONER BEING A DELEGATEE OF THE CBDT EXERCISED HIS POWER A ND CONDONED THE DELAY. NO APPEAL IS PROVIDED UNDER THE ACT AGAINST THE ORDER OF CIT CONDONING THE DELAY IN FILING FORM NO.10. THEREFOR E, THE CIT(A) BEING A JUDICIAL AUTHORITY EMPOWERED TO DISPOSE OF THE APPEAL ONLY IN RESPECT OF THE ISSUES RAISED BEFORE HIM, CANNOT TRA VEL BEYOND HIS ITA NO.1087/15 :- 5 -: POWER TO COMMENT UPON THE CO-ORDINATE AUTHORITY REG ARDING CONDONATION OF DELAY. IN OTHER WORDS, THE CONDONAT ION OF DELAY IN FILING FORM NO.10 IS THE ADMINISTRATIVE FUNCTION CO NFERRED ON THE ADMINISTRATIVE COMMISSIONER. THE APPELLATE JURISDI CTION WAS CONFERRED ON THE CIT(A). THERE IS A CLEAR DEMARCATION OF THE POWERS BETWEEN THE ADMINISTRATIVE COMMISSIONER AND THE COMMISSIONE R OF INCOME- TAX(APPEALS). THEREFORE, ONCE THE ADMINISTRATIVE CO MMISSIONER CONDONES THE DELAY IN FILING FORM NO.10, THE CIT(A) HAS TO EXAMINE THE APPEAL ON MERITS AS IF THE FORM NO.10 WAS FILED WITHIN THE PRESCRIBED PERIOD. IF THE DEPARTMENT FEELS THAT TH E CIT ARBITRARILY EXERCISED HIS POWER AND CONDONED THE DELAY IN FILIN G FORM NO.10, IT IS FOR THE DEPARTMENT TO TAKE UP THE MATTER BEFORE THE HIGHER AUTHORITY IN THE MANNER KNOWN TO THE LAW. A CO-ORDINATE AUTH ORITY WHO WAS CONFERRED ONLY JUDICIAL POWER CANNOT COMMENT UPON T HE ADMINISTRATIVE FUNCTION OF THE ADMINISTRATIVE COMMISSIONER. THERE FORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(A) IS NOT WITHIN HIS POWER TO COMMENT UPON THE ADMINISTRATIVE COMMISSIONER IN CON DONING THE DELAY. BE THAT AS IT MAY, THE DELAY IN FILING FORM NO.10 IS NOW CONDONED AND THE DEPARTMENT HAS NOT CHALLENGED THE ORDER PASSED BY THE ADMINISTRATIVE COMMISSIONER. THEREFORE, THIS T RIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE REEX AMINED BY THE ASSESSING OFFICER ON MERITS BY TAKING THE FACT THA T FORM NO.10 WAS ITA NO.1087/15 :- 6 -: FILED BY THE ASSESSEE AND THE DELAY, IF ANY, IS CO NDONED. ACCORDINGLY, THE ORDER OF THE LOWER AUTHORITY IS SE T ASIDE AND THE ENTIRE ISSUE RAISED BY THE ASSESSEE IS REMANDED BACK TO TH E FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE- EXAMINE THE ISSUES AND DECIDE THE SAME IN THE LIGHT OF THE PROVISIONS OF SECTIONS 11,12 AND 13 OF THE ACT. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03 RD OF JULY, 2015, AT CHENNAI. SD/- SD/- ( . ! ) (A. MOHAN ALANKAMONY) ' / ACCOUNTANT MEMBER ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER #$ / CHENNAI %& / DATED: 03 RD JULY, 2015 RD &' ()*) / COPY TO: 1 . / APPELLANT 4. + / CIT 2. / RESPONDENT 5. ),- . / DR 3. +/' / CIT(A) 6. -01 / GF