Hitkarni Sabha, Jabalpur V. Commissioner Of Income Tax, Jabalpur

ITA 132/JAB/2013

• Counselvise Citation: 13222914 RSA 2013
• Duration Of Justice: 1 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-02-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 09-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHISHEK SHUKLA
• Assessee Lawyers: P C BARDIA
• Section: 12A; 12AA

Judgement Text

I.T.A. NO. 132/JAB/2013 PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR [CORAM: I C SUDHIR JM AND PRAMOD KUMAR AM] I.T.A. NO. 132/JAB/2013 HITKARNI SABHA, .APPELLANT JAGNESHGANJ, CIVIC CENTRE, JABALPUR, [PAN: AAAAH 0740 D] VS. COMMISSIONER OF INCOME TAX RANGE-II, JABALPUR. .RESPONDENT APPEARANCES BY: SHRI P.C. BARDIA FOR THE APPELLANT ABHISHEK SHUKLA FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING: 11 TH FEBRUARY, 2015 DATE OF PRONOUNCING THE ORDER: 27 TH MARCH, 2015 O R D E R PER PRAMOD KUMAR: 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AND IS T RIGGERED BY A LETTER DATED 18 TH APRIL, 2013 INFORMING THE ASSESSEE OF THE LEARNED COMMISSI ONERS VIEWS THAT THERE IS NO PROVISION FOR DEEMED APPROVAL OF REGISTRATION OF IN STITUTION U/S. 12A AND THAT ASSESSEE MAY BE ADVISED TO APPLY AGAIN. GRIEVANCES RAISED BY THE ASSESSEE ARE AS FOLLOWS : 1. IN VIEW OF THE FACT THAT :- I). THE SOCIETY FILED APPLICATION U/S. 12A ON 28.0 1.2000. I.T.A. NO. 132/JAB/2013 PAGE 2 OF 6 II). REPLIED/ATTENDED ALL THE QUERIES RAISED BY THE CI T VIDE LETTER DT. 30.08.2000 ETC., BUT NO ORDER WAS PASSED. III). THE DEPT ACCEPTING THE DEEMED REGISTRATION U/S. 12A FOR THE LAST SEVERAL YEARS AND SPECIFICALLY U/S. 144A FOR THE A.Y. 2010-1 1 THE JT. CIT DIRECTED THE A.O. TO BE TREATED AS REGISTERED U/S. 12A(A) OF THE ACT, AND A.O. PASSED THE ORDER DATED 22.03.2013 ACCORDINGLY. IV). EARLIER THE SOCIETY FILED APPLICATION DATED 14. 03.2005 FOR ISSUE OF REGISTRATION CERTIFICATE U/S 12A NOTHING RESPONDED , AND AGAIN ON 09.04.2013 REQUESTED FOR THE SAME TO AVOID EVERY YEA RS DISPUTE BUT THE LD. COMMISSIONER RESPONDED ADVERSELY. THUS THE COMMISSIONER ERRED IN LAW IN HOLDING THAT THERE IS NO PROVISION FOR DEEMED APPROVAL OF REGISTRATION OF INSTITUTION U/S. 12A. ASSESSEE MAY BE ADVISED TO APPLY AGAIN. 2. THE LD. COMMISSIONER ERRED IN LAW IN NOT FOLLOWIN G THE DECISION OF KARNATAKA GOLF ASSOCIATION VS. DIT (2004) 91 ITD-DEEMED REGIS TRATION IF NO ORDER PASSED BY THE DEPT WITHIN 6 MONTHS-THOUGH ACCEPTED IN THE PAST. AL SO RELIED ON BHAGWAD SWARUP SHRI SHRI DEBRAHA BABA MEMORIAL TRUST VS. CIT (2007) 111 TTJ (DELHI)(SB) 424. 2. WHEN THE APPEAL WAS CALLED UP FOR HEARING, THE L D. COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO SEVERAL DECISIONS OF HONB LE HIGH COURTS TO THE EFFECT THAT IN A SITUATION IN WHICH THE ASSESSEE HAS MOVED AN APPLIC ATION FOR REGISTRATION U/S 12AA AND THE SAME HAS NOT BEEN DISPOSED OF WITHIN A PERIOD O F SIX MONTHS, REGISTRATION WILL BE DEEMED TO HAVE BEEN GRANTED. HE RELIED ON THE DECIS IONS OF HONBLE MADRAS HIGH COURT IN THE CASES OF DIT(EXEMPTION) VS. ANJUMAN-E-KHYRKH AH-E-AAM [11 TAXMANN.COM 354 (MAD)] AND CIT VS. KARIMANGALAM ONRIYA PENAL SEMIPU AMAIPU LTD. [32 TAXMANN.COM 292(MADRAS)] AND OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF SOCIETY FOR THE I.T.A. NO. 132/JAB/2013 PAGE 3 OF 6 PROMOTION OF EDUCATION ADVENTURE SPORT & CONSERVATI ON OF ENVIRONMENT VS. CIT (216 CTR 167) . IT WAS SUBMITTED THAT THERE IS NO DISPUT E OR CONTROVERSY ABOUT THE FACT THAT THE APPLICATION FILED BY THE ASSESSEE SEEKING REGIS TRATION UNDER SECTION 12A WAS PENDING WITH THE LEARNED COMMISSIONER FOR MORE THAN SIX MONTHS. IT WAS SUBMITTED THAT IN VIEW OF THIS UNDISPUTED FACTUAL POSITION AND IN THE LIGHT OF THE JUDGMENTS OF HONBLE HIGH COURTS CITED ABOVE, THE ASSESSEE SHOULD BE DEE MED TO HAVE BEEN GRANTED REGISTRATION U/S. 12A. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, RELIED ON THE STAND OF LEARNED COMMISSIONER AND SUBMITTED THAT THERE IS NO PROVISION IN LAW TO THE EFFECT THAT IF THE APPLICATION IS NOT DISPOSED OF WITHIN A PERIOD OF SIX MONTHS, THE REGISTRATION WILL BE DEEMED TO HAVE BEEN GRANTED. THE LEARNED DE PARTMENTAL REPRESENTATIVE, HOWEVER, COULD NOT POINT OUT ANY DECISION CONTRARY TO THE DECISIONS CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE. 4. IN RESPONSE TO A QUESTION FROM THE BENCH, HE ALS O SUBMITTED THAT TO THE BEST OF HIS KNOWLEDGE THERE IS NO CONTRARY DECISION ON THIS ISSUE BY HONBLE JURISDICTIONAL HIGH COURT. IN ALL FAIRNESS OF LEARNED DEPARTMENTAL REPR ESENTATIVE, HOWEVER, WE MUST TAKE NOTE OF A RECENT DECISION OF FULL BENCH OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. MUZAFFARNAGAR DEVELOPMENT AUTHORITY (ITA NO. 34 8 OF 2008 ORDER DATED 05.02.2015) WHICH SUPPORTS THE STAND OF THE LEARNED COMMISSIONER. THIS DECISION WAS NOT CITED BEFORE US BY ANY OF THE AUTHORITIES AND I T IS ONLY SUBSEQUENT TO THE HEARING THAT WE HAVE COME TO KNOW OF THIS RECENT JUDICIAL DEVELO PMENT. AS ON NOW, THUS, ON ONE HAND I.T.A. NO. 132/JAB/2013 PAGE 4 OF 6 WE HAVE DECISIONS OF HONBLE MADRAS HIGH COURT IN T HE CASES OF DIT(EXEMPTION) VS. ANJUMAN-E-KHYRKHAH-E-AAM (SUPRA) AND CIT VS. KARIMA NGALAM ONRIYA PENAL SEMIPU AMAIPU LTD. (SUPRA) IN FAVOUR OF THE ASSESSEE AND, ON THE OTHER, OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. MUZAFFARNAGAR DEV ELOPMENT AUTHORITY (SUPRA) IN FAVOUR OF THE REVENUE, AS TO WHAT WE SHOULD PUT IN SUCH CIRCUMSTANCE, WE FIND SUPPORT FROM A DECISION OF THIS TRIBUNAL IN THE CASE OF TEJ INTERNATIONAL PVT. LTD. VS. DCIT ( 69 TTJ 615), WHEREIN OUR ESTEEMED COLLEAGUES, INTER ALIA, OBSERVED AS FOLLOWS : IN THE HIERARCHICAL JUDICIAL SYSTEM THAT WE HAVE, BETTE R WISDOM OF THE COURT BELOW HAS TO YIELD TO HIGHER WISDOM OF THE COURT ABOVE AND, T HEREFORE, ONCE AN AUTHORITY HIGHER THAN THIS TRIBUNAL HAS EXPRESSED AN OPINION ON THA T ISSUE, WE ARE NO LONGER AT LIBERTY TO RELY UPON EARLIER DECISIONS OF THIS TR IBUNAL EVEN IF WE WERE A PARTY TO THEM. SUCH A HIGH COURT BEING A NON-JURISDICTIONAL HIG H COURT DOES NOT ALTER THE POSITION AS LAID DOWN BY HONBLE BOMBAY HIGH COURT I N THE MATTER OF CIT VS. GODAVARI DEVI SARAF (1978) 113 ITR 589 (BOM). THEREFO RE, WE DO NOT CONSIDER IT PERMISSIBLE TO RELY UPON THE EARLIER DECISIONS OF THI S TRIBUNAL EVEN IF ONE OF THEM IS BY A SPECIAL BENCH. IT WILL BE WHOLLY INAPPROPRIATE FOR US TO CHOOSE VIEWS OF ONE OF THE HIGH COURTS BASED ON OUR PERCEPTIONS ABOUT REASON ABLENESS OF THE RESPECTIVE VIEWPOINTS, AS SUCH AN EXERCISE WILL DE FACTO AMOUNT TO SITTING IN JUDGMENT OVER THE VIEWS OF THE HIGH COURTS SOMETHING DIAMETRICALLY OPPOS ED TO THE VERY BASIC PRINCIPLES OF HIERARCHICAL JUDICIAL SYSTEM. WE HAVE T O, WITH OUR HIGHEST RESPECT OF BOTH THE HONBLE HIGH COURTS, ADOPT AN OBJECTIVE CRIT ERION FOR DECIDING AS TO WHICH OF THE HONBLE HIGH COURT SHOULD BE FOLLOWED BY US. 8. WE FIND GUIDANCE FROM THE JUDGMENT OF HONBLE SUPRE ME COURT IN THE MATTER OF CIT VS. VEGETABLE PRODUCTS LTD. 1973 CTR (SC) 177 : (1972) 88 ITR 192 (SC). HONBLE SUPREME COURT HAS LAID DOWN A PRINCIPLE THAT 'IF TWO REASONABLE CONSTRUCTIONS OF A TAXING PROVISIONS ARE POSSIBLE, THAT CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED'. THIS PRINCIPLE HAS BEEN CONSISTENTLY FOLLOWED BY THE VARIOUS AUTHORITIES AS ALSO BY THE HONBLE SUPREME CO URT ITSELF. IN ANOTHER SUPREME COURT JUDGMENT, PETRON ENGG. CONSTRUCTION (P) LTD. & ANR. VS. CBDT & ORS. (1988) 75 CTR (SC) 20 : (1989) 175 ITR 523 (SC), IT HAS BEEN REITERATED THAT THE ABOVE PRINCIPLE OF LAW IS WELL ESTABLISHED AND THERE IS NO DOUBT ABOUT THAT. HONBLE SUPREME COURT HAD, HOWEVER, SOME OCCASIONS TO DEVIATE FROM THIS GENERAL PRINCIPLE OF INTERPRETATION OF TAXING STATUTE WHICH CAN BE CONS TRUED AS EXCEPTIONS TO THIS GENERAL RULE. IT HAS BEEN HELD THAT THE RULE OF RESOLVI NG AMBIGUITIES IN FAVOUR OF TAX- PAYER DOES NOT APPLY TO DEDUCTIONS, EXEMPTIONS AND EXCEPTIONS WHICH ARE ALLOWABLE ONLY WHEN PLAINLY AUTHORISED. THIS EXCEPTION, LAID D OWN IN LITTMAN VS. BARRON 1952(2) AIR 393 AND FOLLOWED BY APEX COURT IN MANGAL ORE CHEMICALS & FERTILIZERS I.T.A. NO. 132/JAB/2013 PAGE 5 OF 6 LTD. VS. DY. COMMR. OF CT (1992) SUPPL. (1) SCC 21 AND NOVOPAN INDIA LTD. VS. CCE & C 1994 (73) ELT 769 (SC), HAS BEEN SUMMED UP IN THE W ORDS OF LORD LOHEN, 'IN CASE OF AMBIGUITY, A TAXING STATUTE SHOULD BE CONSTRUED I N FAVOUR OF A TAX-PAYER DOES NOT APPLY TO A PROVISION GIVING TAX-PAYER RELIEF IN CER TAIN CASES FROM A SECTION CLEARLY IMPOSING LIABILITY'. THIS EXCEPTION, IN THE PRESENT C ASE, HAS NO APPLICATION. THE RULE OF RESOLVING AMBIGUITY IN FAVOUR OF THE ASSESSEE DOE S NOT ALSO APPLY WHERE THE INTERPRETATION IN FAVOUR OF ASSESSEE WILL HAVE TO TR EAT THE PROVISIONS UNCONSTITUTIONAL, AS HELD IN THE MATTER OF STATE OF M .P. VS. DADABHOYS NEW CHIRMIRY PONRI HILL COLLIERY CO. LTD. AIR 1972 (SC) 614. THERE FORE, WHAT FOLLOWS IS THAT IN THE PECULIAR CIRCUMSTANCES OF THE CASE AND LOOKING TO THE NATURE OF THE PROVISIONS WITH WHICH WE ARE PRESENTLY CONCERNED, THE VIEW EXPRESSED B Y THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF KWALITY BISCUITS LTD. (SUPR A), WHICH IS IN FAVOUR OF ASSESSEE, DESERVES TO BE FOLLOWED BY US. 5. THE PRINCIPLE, THUS, IS AS FOLLOWS. WHEN NON JUR ISDICTIONAL HIGH COURTS HAVE EXPRESSED CONFLICTING VIEWS AND WHEN ONE DOES NOT H AVE THE BENEFIT OF GUIDANCE BY HONBLE JURISDICTIONAL HIGH COURT ON THAT ISSUE, TH E VIEW IN FAVOUR OF THE TAXPAYER IS TO BE ADOPTED. 6. WE MAY ALSO ADD THAT EVEN THOUGH ONE OF THE DECISIO NS OF HONBLE HIGH COURTS IS BY A FULL BENCH OF THAT HONBLE HIGH COURT, THAT AS PECT OF THE MATTER DOES NOT REALLY AFFECT OUR CONCLUSIONS BECAUSE WHETHER A DECISION OF ONE O F THE HIGH COURTS IS BY LARGER BENCH OR SMALLER BENCH DOES NOT REALLY AFFECT OR DILUTE T HE LAW LAID DOWN BY HIGH COURT IN ANOTHER JURISDICTION. THE FACT REMAINS THAT THERE A RE CONFLICTING VIEWS OF HONBLE HIGH COURTS ABOUT AND WHETHER ONE OF THESE VIEWS SO EXPR ESSED IS BY A LARGER BENCH OF THE HONBLE HIGH COURT, IT DOES NOT DILUTE THE LAW IN T HE OTHER JURISDICTION NOR DOES IT ENTITLE US TO SIT ON THE JUDGMENT OVER THE VIEWS EXPRESSED BY HONBLE HIGH COURT IN OTHER JURISDICTION. AS LONG AS THERE ARE CONFLICTING VIEW S OF HIGH COURTS AND AS LONG AS HONBLE JURISDICTIONAL HIGH COURT HAS NOT EXPRESSED ITS CON SIDERED VIEW ON THE SUBJECT, THIS TRIBUNAL, IN VIEW OF THE LEGAL POSITION REFERRED TO IN TRIBUNALS ORDER IN TEJ INTERNATIONAL PVT. LTD. (SUPRA) REPRODUCED ABOVE, CAN ONLY REFRAI N FROM EXPRESSING VIEW ON THIS I.T.A. NO. 132/JAB/2013 PAGE 6 OF 6 MATTER AND ADOPT A VIEW WHICH IS FAVOURABLE TO THE ASSESSEE. WE, THEREFORE, UPHOLD THE GRIEVANCES OF THE ASSESSEE AND DIRECT THE REVENUE A UTHORITIES TO PROCEED ON THE BASIS THAT THE ASSESSEE HAS BEEN GRANTED REGISTRATION U/S . 12A. THE ASSESSEE THUS SUCCEEDS IN APPEAL. 7. IN THE RESULT, APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT TODAY ON 27 TH MARCH, 2015. SD/- SD/- I C SUHDIR PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: THE 27 TH DAY OF MARCH, 2015 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR