CMJ Foundation, Shillong. V. Pr, CIT., Shillong

ITA 36/GTY/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5537 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 28-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANDIP SENGUPTA
• Section: 12A; 12AA; 263; 11

Judgement Text

1 ITA NO.36/GAU/2018 CMJ FOUNDATION AY- 2010-11 IN THE INCOME TAX APPELLATE TRIBUNAL G AUHATI, E COURT AT KOLKATA () . . , . , ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 36/GAU/2018 ASSESSMENT YEAR: 2010-11 CMJ FOUNDATION [PAN: AAATC 6117 A] VS. PRINCIPAL COMMISSIONER OF INCOME TAX, SHILLONG APPELLANT RESPONDENT DATE OF HEARING 16.05.2019 DATE OF PRONOUNCEMENT 03.06.2019 FOR THE APPELLANT SHRI AKKAL DUDHWEWALA, FCA FOR THE RESPONDENT SHRI SANDIP SENGUPTA, JCIT, DR ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL PREFERRED BY THE ASSESSEE FOUNDAT ION AGAINST THE ORDER OF PR. CIT SHILLONG ORDER U/S 263 PASSED ON 02.03.2015. 2. AT THE OUTSET, WE NOTE THAT THERE IS A DELAY OF 668 DAYS, SO THE LEARNED DR DOES NOT UNDERSTAND TO ATTEMPT THIS APPEAL. THE LEARNED AR O F THE ASSESSEE SHRI AKKAL DUDHWEWALA DREW OUR ATTENTION TO THE AFFIDAVIT FILED BY THE LE ARNED AR, SHRI DEEPAK BHATTARAI, CA WHO APPEARED FOR THE ASSESSEE FOUNDATION BEFORE THE LEA RNED PR. CIT, SHILLONG. IN THE AFFIDAVIT SHRI DEEPAK BHATTARAI HAS ADMITTED THAT HE HAD ADVI SED THE ASSESSEE FOUNDATION NOTE TO PREFER AN APPEAL AGAINST THE ORDER OF THE PR. CIT, SHILLONG. ACCORDING TO THE LEARNED AR, APPEARING BEFORE US, SHRI AKKAL DUDHWEWALA BECAUSE OF THE ADVISED RENDERED BY THE THEN CA, SHRI DEEPAK BHATTARAI, THE ASSESSEE FOUNDATION DID NOT PREFER AN APPEAL BEFORE THE TRIBUNAL AND THE ASSESSEE FOUNDATION UNDER A BONAFI DE BELIEF THAT APPEAL SHOULD NOT BE FILED. HOWEVER, LATER ON WHEN THE LEGAL OPINION WAS SOUGHT FROM ANOTHER SR. COUNSEL. HE ADVISED THE ASSESSEE FOUNDATION TO PREFER AN APPEAL BEFORE THE TRIBUNAL AND THAT TOO BY RAISING A JURISDICTIONAL ISSUE AGAINST THE IMPUGNED ORDER. THEREFORE, THE DELAY WAS NOT 2 ITA NO.36/GAU/2018 CMJ FOUNDATION AY- 2010-11 INTENTIONAL OR HAPPENED DUE TO NEGLIGENT ON THE PAR T OF THE ASSESSEE FOUNDATION. THE LEARNED DR OPPOSED IN THE CONDONATION OF DELAY. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. WE NOTE THAT THE IMPUGNED ORDER IS STATED ON 02.03.2015 ON THE DATE, SHRI DEE PAK BHATTARAI, CA APPEARED ON BEHALF OF THE ASSESSEE FOUNDATION BEFORE THE LD. PR. CIT, SHI LLONG AND AFTER OPPOSING THE IMPUGNED ORDER, SHRI DEEPAK BHATTARAI, CA HAS ADVISED THE AS SESSEE PREFER AN APPEAL AGAINST THE COMMISSIONER APPEAL AND, THEREFORE, THE ASSESSEE FO UNDATION DID NOT PREFER AN APPEAL BEFORE THE TRIBUNAL. HOWEVER, WHEN THE ASSESSEE FOUNDATION RECEIVED A SECOND OPINION FROM A SR. COUNSEL THAT APPEAL SHOULD BE PREFERRED AND THAT TO O ON A JURISDICTIONAL ISSUE THE ASSESSEE FOUNDATION PROMPTLY AS FILED THIS APPEAL AND WE NOT E THAT THE DELAY CAUSED NOT BECAUSE THE ASSESSEE WAS NEGLIGENT OR DID NOT INTENTIONALLY FIL ED THE APPEAL. THE MISTAKE ON THE PART OF THE AR CANNOT COME IN THE WAY OF SUBSTANTIAL JUSTIC E AND, THEREFORE, TAKING NOTE OF THE AFFIDAVIT OF SHRI DEEPAK BHATTARAI, CA. WE CONDONED THE DELAY AND PROCEED TO HEAR THE APPEAL ON MERITS. 4. THE MAIN GRIEVANCE OF THE ASSESSEE FOUNDATION IS AGAINST THE JURISDICTION OF THE PR. CIT, SHILLONG TO PASS THE ORDER U/S 263 FOR THAT TH EY HAVE PREFERRED ADDITIONAL GROUNDS OF APPEAL WHICH IS AS UNDER: 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER U/S 263 DATED 02.03.2015 PASSED BY THE PCIT, SHILLONG BE HELD TO BE BAD AND BE THEREFORE QUASHED BECAUSE AT THE TIME OF PASSING OF THE REVISION ORDER; THE SAID PCIT DID NOT HOLD JURISDICTION OVER THE ASSESSEES CASE. 2. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE PCIT, SHILLONG OUGHT TO HAVE APPRECIATED THAT THE ASSESSEE WAS A CHARITABLE TRUS T GIVES RECOGNITION U/S. 12AA OF THE I.T. ACT AND THEREFORE IN TERMS OF THE NOTIFICATION S.O. 275 4 DATED 22.10.2014 ISSUED BY THE CBDT; CIT (EXEMPTION) KOLKATA WAS GIVEN ADMINISTRATIVE JURISD ICTION OVER THE ASSESSEES CASE WITH EFFECT FROM 15.11.2014 AND IN THAT VIEW OF THE MATTER PCIT , SHILLONG COULD NOT HAVE EXERCISED HIS POWER OF PASSING REVISION ORDER IN ASSESSEES CASE. 3. FOR THAT THE APPELLANT CRAVES LEAVE TO FILE ADDI TIONAL GROUNDS AND/OR AMEND OR ALTER THE GROUNDS ALREADY TAKEN EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 5. BRIEF FACTS OF THE CASE IS THAT THE ASSESSEE IS A TRUST ENJOYING SECTION 12A REGISTRATION AND WAS ASSESSED BY THE ASSESSING OFFICER ITO, WARD 1, SHILLONG FOR ASSESSMENT YEAR 3 ITA NO.36/GAU/2018 CMJ FOUNDATION AY- 2010-11 2010-11ON 30.03.2013. THEREAFTER, THE PR. CIT, SHIL LONG ISSUED A NOTICE DATED 26.02.2015 FIXING THE CASE FOR HEARING ON 02.03.2015 AND HAS P ASSED THE IMPUGNED ORDER ALSO ON THE SAME DATE I.E. 02.03.2015 AFTER HEARING THE LEARNED AR SHRI DEEPAK BHATTARAI. SO ONE NOTICE WAS ISSUED ON 26.02.2015 FIXING THE SAID DAT E OF HEARING AND 02.03.2015 (4 DAYS) AND ON THE SAME DAY I.E. 02.03.2015 HAS PASSED THE IMPUGNED ORDER. THOUGH THE ASSESSEE HAS RAISED IN THE ORIGINAL GROUNDS OF APPEAL LACK O F OPPORTUNITY OF NOT GIVING PROPER OPPORTUNITY WE DO NOT LIKE TO ADJUDICATE THE SAME F OR THE SIMPLE REASON THAT THE ADDITIONAL GROUNDS RAISED BEFORE US IF FOUND TO BE CORRECT THE N IT WILL GO TO THE ROOT OF THE MATTER THEREFORE, WE ARE ADJUDICATING THE JURISDICTIONAL I SSUE. OUR ATTENTION WAS DRAWN TO THE NOTIFICATION NO. 2754 DATED 02.10.2015 BY THE CBDT WHICH IS EFFECTIVE FROM 15.11.2014 WHICH FOUND PLACED AT PAGE 14-18 OF THE PAPER BOOK. AS PER THE SAID NOTIFICATION WHICH HAS BEEN PASSED BY THE CBDT IN EXERCISE OF POWERS CONFE RRED BY SUB-SECTION (1) AND (2) OF SECTION 120 OF THE INCOME TAX ACT, 1961 (HEREIN AFT ER REFERRED TO AS THE ACT) AND IN SUPERSESSION OF THE NOTIFICATION OF THE GOVERNMENT OF INDIA, CBDT NUMBER S.O. 880(E) DATED 14 TH SEPTEMBER, 2001 THEY HAVE PUBLISHED THIS NOTIFICAT ION VIDE S.O. NO. 2754(E) IN THE GAZETTE OF INDIA DATED 14.09.2001 WHEREIN SUB-C LAUSE 8 READS AS UNDER: DIRECTS THAT THE COMMISSIONERS OF INCOME-TAX SPECI FIED IN COLUMN (2) OF THE SCHEDULE ANNEXED HERETO HAVING HEADQUARTERS AT THE PLACES SPECIFIED IN THE CORRESPONDING ENTRIES IN COLUMN (3) OF THE SAID SCHEDULE SHALL EXERCISE THE POWERS AND PER FORM ALL THE FUNCTIONS IN RESPECT OF SUCH CASES OR CLASSES OF CASES AS SPECIFIED IN COLUMN (5 ), IN SUCH TERRITORIAL AREAS SPECIFIED IN THE CORRESPONDING ENTRIES IN COLUMN (4) OF THE SAID SCH EDULE. S. NO. DESIGNATION HEADQUARTERS TERRITORIAL AREA CASES OR CLASSES OF CASES 1 COMMISSIONERS OF INCOME-TAX (EXEMPTION) KOLKATA KOLKATA STATE OF WEST BENGAL, ASSAM, MEGHALAYA, ARUNACHAL PRADESH, NAGALAND, MANIPUR, MIZORAM, TRIPURA, SIKKIM AND UNION TERRITORY OF ANDAMAN AND ALL CASES OF PERSONS IN THE TERRITORIAL AREA SPECIFIED IN COLUMN (4) CLAIMING EXEMPTION UNDER CLAUSES (21), (22), (22A), (22B), (23)), (23A), (23AAA), (23B), (23C), (23F), (23FA), (24), (46) AND (47) OF SECTION 10, SECTION 11, SECTION 12, SECTION 13A AND SECTION 13B OF THE INCOME-TAX ACT, 1961 AND ASSESSED OR ASSESSABLE BY AN 4 ITA NO.36/GAU/2018 CMJ FOUNDATION AY- 2010-11 NICOBAR ISLANDS INCOME-TAX AUTHORITY AT SERIAL NUMBERS 158 TO 181 SPECIFIED IN THE NOTIFICATION OF GOVERNMENT OF INDIA BEARING NUMBER S.O. 2752 DATED THE 22 ND OCTOBER, 2014. 6. WE NOTE FROM THE AFORESAID NOTIFICATION OF CBDT TO TAKE EFFECT FROM 15.09.2014. WE NOTE THAT FROM 15.09.2014, THE COMMISSIONER OF INCO ME TAX (EXEMPTION) KOLKATA SHALL EXERCISE THE POWERS AND PERFORMS ALL THE FUNCTIONS IN RESPECT OF SUCH CASES OR CLASSES OF CASES OF SPECIFIED IN COLUMN (5) WHICH ARE IN THE T ERRITORIAL AREA SPECIFIED IN STATE OF MEGHALAYA. SO AN ASSESSEE CLAIMING EXEMPTION U/S 11 , 12, 13A AND SECTION 13B AND SECTION 10(21), 22 ETC. WHICH FALL IN CLASSES OF CASES SPEC IFIED IN (COLUMN 5) AND ASSESSED UNDER THE INCOME TAX AUTHORITIES CASES WILL BE PERFORMING THE IR FUNCTIONS UNDER THE COMMISSIONER OF INCOME TAX SPECIFIED IN COLUMN-2 THAT IS IN THIS CA SE COMMISSIONER OF INCOME TAX KOLKATA. SO, ONCE THIS NOTIFICATION HAS COME INTO F ORCE WITH EFFECT FROM 15.09.2014, THE CASES OF THE ASSESSEE BEING IN THE CATEGORY SPECIFI ED IN COLUMN 5 (REGISTERED U/S 12A OF THE ACT) FUNCTIONING FROM THE STATE OF MEGHALAYA WILL C OME UNDER THE JURISDICTION OF THE COMMISSIONER OF INCOME TAX (EXEMPTION), KOLKATA. WE NOTE THAT THIS FACT HAS BEEN ACKNOWLEDGED ALSO LATER BY THE OFFICE OF THE PR. CO MMISSIONER OF INCOME TAX, SHILLONG VIDE LETTER DATED 12.02.2019 WHEREIN THEY HAVE REPLIED T O THE COUNSEL OF THE ASSESSEE, SHRI INDER MOHAN SINGH, ADVOCATE THAT THE JURISDICTION OF ASSE SSEE I.E. M/S. CMJ FOUNDATION LIES WITH THE CIT(EXEMPTION), KOLKATA AND THEY HAVE FORWARDED ALL THE DOCUMENTS / FOLDERS OF M/S. CMJ FOUNDATION TO THE OFFICE OF THE CIT(EXEMPTION), KOLKATA. SO FROM THE AFORESAID DOCUMENTS DISCUSSED, IT IS CLEAR THAT THE NOTICE IS SUED BY THE PR. CIT, SHILLONG DATED 26.02.2015 ITSELF WAS WITHOUT JURISDICTION. THEREFO RE, WE FIND FORCE IN THE APPEAL AND ADDITIONAL GROUNDS RAISED AFORESAID. WE NOTE THAT W .E.F. 15.09.2014 THE PR. CIT, SHILLONG DID NOT ENJOY JURISDICTION IN THE CASE OF ASSESSEE FOUN DATION WHEN HE ISSUED NOTICE I.E. ON 26.02.2015 AND THE IMPUGNED ORDER PASSED U/S 263 IS WITHOUT JURISDICTION. SINCE THE USURPATION OF REVISIONAL JURISDICTION U/S 263 BY PR . CIT SHILLONG AGAINST THE ASSESSEE WAS WITHOUT JURISDICTION, THE ORDER IS NULL IN THE EYES OF LAW AND THE ADDITIONAL GROUND 5 ITA NO.36/GAU/2018 CMJ FOUNDATION AY- 2010-11 CHALLENGING THE JURISDICTION OF THE PR. CIT, SHILLO NG GOES TO THE ROOT OF THE IMPUGNED ORDER AND THEREFORE, IS NULL IN THE EYES OF LAW. THEREFOR E, THE ASSESSEE SUCCEEDS ON THE LEGAL ISSUE RAISED BEFORE US. THEREFORE, THE OTHER GROUNDS WHIC H ARE RAISED ON MERITS HAS BECOME ACADEMIC IN NATURE AND SO THE ASSESSEES APPEAL IS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 3RD JUNE, 2019 SD/- SD/- (DR. A. L. SAINI) (ABY T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 3RD JUNE, 2019 BISWAJIT (SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT CMJ FOUNDATION, MODRINA MANSION, LAITUM KHRAH, SHILLONG. 2 RESPONDENT PR. CIT, SHILLONG. 3 . THE CIT(A), 4. 5. CIT , DR, / TRUE COPY, BY ORDER, SR. P.S./H.O.O ITAT, GAUHATI BENCHES