Tirupati Meal Producers (P) Ltd., Kolkata V. I.T.O.,Ward-2(4), Kolkata

ITA 904/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3489 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 24-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SIDDHARTH AGARWAL ASSESSE
• Keywords: Retrospective amendment; Cancellation of registration
• Section: 12A; 12AA; 250; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA [BEFORE SHRI J. SUDHAKAR REDDY, HONBLE ACCOUNTANT MEMBER & SHRI ABY T. VARKEY, HONBLE JUDICIAL MEMBER] I.T.A. NO. 904/KOL/2019 ASSESSMENT YEAR: 2014-15 TIRUPATI MEAL PRODUCERS (P) LTD.............................APPELLANT C/O. SUBASH AGARWAL & ASSOCIATES, ADVOCATES SIDDHA GIBSON 1, GIBSON LANE SUITE 213 2 ND FLOOR KOLKATA 700 069 [PAN: AAECT 0620 N] VS. INCOME TAX OFFICER, WARD-2(4), KOLKATA.......................RESPONDENT APPEARANCES BY: SHRI SIDDHARTH AGARWAL, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI SUPRIYO PAL, JCIT, SR. D/R, APPEARING ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : OCTOBER 31 ST , 2019 DATE OF PRONOUNCING THE ORDER : NOVEMBER 29 TH , 2019 O R D E R PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 10, KOLKATA, (HEREINAFTER THE LD.CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 31/01/2019, FOR THE ASSESSMENT YEAR 2014-15. 2. AT THE OUTSET WE FIND THAT THERE IS A DELAY OF 23 (TWENTY THREE) DAYS IN FILING OF THIS APPEAL. AFTER PERUSING THE PETITION FOR CONDONATION, WE ARE CONVINCED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE APPEAL ON TIME. HENCE THE DELAY IS CONDONED AND THE APPEAL IS ADMITTED. 3. WE FIND THAT THIS ISSUE THAT THE ASSESSEE HAS RECEIVED A REQUEST LETTER FOR DONATION ON 14/02/2014 FROM HERBICURE HEALTHCARE BIO-HERBAL RESEARCH FOUNDATION. THE ASSESSEE MADE A DONATION FOR THE PURPOSE OF UNDERTAKING SCIENTIFIC RESEARCH WHICH IS COVERED U/S 35(1)(II) OF THE ACT. HERBICURE HEALTHCARE BIO-HERBAL RESEARCH FOUNDATION, VIDE LETTER DT. 10/03/2014, HAD ACKNOWLEDGED THE RECEIPT OF THE DONATION AND HAS FURNISHED THE FOLLOWING DOCUMENTS TO THE ASSESSEE:- A) COPY OF THE REGISTRATION CERTIFICATE ISSUED U/S 12AA OF THE ACT B) COPY OF THE RENEWAL OF SIRO BY MINISTRY OF SCIENC GOVT. OF INDIA ALONGWITH THE TYPED COPY C) NOTIFICATION NO. (S.O. 798) 35/2008 DT. 14.03.2008 U/S 35 (1)(II) OF THE I.T. ACT. 3.1. THE ASSESSING OFFICER MADE THE ADDITION ON THE GROUND THAT THIS IS AN ACCOMMODATION ENTRY. THE LD. CIT(A) RELI CONFIRMED THE ADDITION. 4. WE FIND THAT THE ISSUE IS COVERED BY A NUMBER OF DECISIONS OF THE KOLKATA BENCH OF THE TRIBUNAL. IN THE CASE OF LTD. IN ITA NO. 16/KOL/2017, ORDER DT. HELD AS FOLLOWS:- 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THIS TRIBUNAL IN ITA NO. 16/KOL/2017 DATED 14.3.2018 WHEREIN IT WAS HELD AS UNDER: 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE BRIEF FACTS PERTAINING TO HHBHRF ARE AS UNDER: A) HHBHRF WAS REGISTERED U/S 12AA OF THE ACT BY THE LD DIT(EXEMPTIONS), KOLKATA WITH EFFECT FROM 26.12.2003. B) HHBHRF WAS ALSO RECOGNIZED IN THE YEAR 2006 SCIENTIFIC INDUSTRIAL RESEARCH ORGANIZATION (SIRO) BY MINISTRY OF SCIENCE & TECHNOLOGY, GOV RECOGNITION AS SIRO BY THE DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL RESEARCH UNDER THE SCHEME ON RECOGNITION OF SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION , 1988 WAS MADE FOR THE PERIOD FROM 1.4.2012 TO 31.3.2015 VIDE C OMMUNICATION IN F.NO. 14/444/2006 C) HHBHRF WAS RECOGNIZED VIDE GAZETTE NOTIFICATION NO. 35/2008 DATED 14.3.2008 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT IN SHORT), MINISTRY OF FINANCE, GOVERNMENT OF INDIA, U/S 35(1)(II) OF THE ACT. 8.1. THE BRIEF FACT PERTAINING TO SGHPH ARE AS A) SGHPH WAS RECOGNIZED VIDE GAZETTE NOTIFICATION DATED 28.1.2009 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT IN SHORT), MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), GOVERNMENT OF INDIA, U/S 35(1)(II) OF THE ACT. B) SGHPH WAS ALSO RECOGNIZE RESEARCH ORGANIZATION (SIRO) BY MINISTRY OF SCIENCE & TECHNOLOGY, GOVERNMENT OF INDIA. THE RENEWAL OF RECOGNITION AS SIRO BY THE DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL RESEARCH UNDER THE SCHEME ON RECOGNITION OF SCIENTIFIC AND 2 COPY OF THE RENEWAL OF SIRO BY MINISTRY OF SCIENC E AND TECHONLOGY, GOVT. OF INDIA ALONGWITH THE TYPED COPY NOTIFICATION NO. (S.O. 798) 35/2008 DT. 14.03.2008 U/S 35 (1)(II) OF THE ASSESSING OFFICER MADE THE ADDITION ON THE GROUND THAT THIS IS AN ACCOMMODATION ENTRY. THE LD. CIT(A) RELI ED ON CIRCUMSTANTIAL EVIDENCE AND WE FIND THAT THE ISSUE IS COVERED BY A NUMBER OF DECISIONS OF THE KOLKATA BENCH OF THE TRIBUNAL. IN THE CASE OF DCIT VS. M/S. MACO CORPORATION (INDIA) PVT. LTD. IN ITA NO. 16/KOL/2017, ORDER DT. 14/03/2018, FROM PARA 8 ONWARDS, IT WAS 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THIS TRIBUNAL IN ASSESSEE'S OWN CASE FOR THE ASST YEAR 2013 ITA NO. 16/KOL/2017 DATED 14.3.2018 WHEREIN IT WAS HELD AS UNDER: - 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE BRIEF FACTS PERTAINING TO HHBHRF ARE AS UNDER: - A) HHBHRF WAS REGISTERED U/S 12AA OF THE ACT BY THE LD DIT(EXEMPTIONS), KOLKATA WITH EFFECT FROM 26.12.2003. B) HHBHRF WAS ALSO RECOGNIZED IN THE YEAR 2006 - 07 AS A SCIENTIFIC INDUSTRIAL RESEARCH ORGANIZATION (SIRO) BY MINISTRY OF SCIENCE & TECHNOLOGY, GOV ERNMENT OF INDIA. THE RENEWAL OF RECOGNITION AS SIRO BY THE DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL RESEARCH UNDER THE SCHEME ON RECOGNITION OF SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION , 1988 WAS MADE FOR THE PERIOD FROM 1.4.2012 TO 31.3.2015 VIDE OMMUNICATION IN F.NO. 14/444/2006 -TU- V DATED 13.8.2012. C) HHBHRF WAS RECOGNIZED VIDE GAZETTE NOTIFICATION NO. 35/2008 DATED 14.3.2008 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT IN SHORT), MINISTRY OF FINANCE, GOVERNMENT OF INDIA, U/S 35(1)(II) OF THE ACT. 8.1. THE BRIEF FACT PERTAINING TO SGHPH ARE AS UNDER:- A) SGHPH WAS RECOGNIZED VIDE GAZETTE NOTIFICATION DATED 28.1.2009 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT IN SHORT), MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), GOVERNMENT OF INDIA, U/S 35(1)(II) OF THE ACT. B) SGHPH WAS ALSO RECOGNIZE D AS A SCIENTIFIC INDUSTRIAL RESEARCH ORGANIZATION (SIRO) BY MINISTRY OF SCIENCE & TECHNOLOGY, GOVERNMENT OF INDIA. THE RENEWAL OF RECOGNITION AS SIRO BY THE DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL RESEARCH UNDER THE SCHEME ON RECOGNITION OF SCIENTIFIC AND I.T.A. NO. 904/KOL/2019 ASSESSMENT YEAR: 2014-15 TIRUPATI MEAL PRODUCERS (P) LTD E AND TECHONLOGY, NOTIFICATION NO. (S.O. 798) 35/2008 DT. 14.03.2008 U/S 35 (1)(II) OF THE ASSESSING OFFICER MADE THE ADDITION ON THE GROUND THAT THIS IS AN ED ON CIRCUMSTANTIAL EVIDENCE AND WE FIND THAT THE ISSUE IS COVERED BY A NUMBER OF DECISIONS OF THE KOLKATA DCIT VS. M/S. MACO CORPORATION (INDIA) PVT. FROM PARA 8 ONWARDS, IT WAS 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY ASSESSEE'S OWN CASE FOR THE ASST YEAR 2013 -14 IN 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON A) HHBHRF WAS REGISTERED U/S 12AA OF THE ACT BY THE LD 07 AS A SCIENTIFIC INDUSTRIAL RESEARCH ORGANIZATION (SIRO) BY MINISTRY ERNMENT OF INDIA. THE RENEWAL OF RECOGNITION AS SIRO BY THE DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL RESEARCH UNDER THE SCHEME ON RECOGNITION OF SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION , 1988 WAS MADE FOR THE PERIOD FROM 1.4.2012 TO 31.3.2015 VIDE V DATED 13.8.2012. C) HHBHRF WAS RECOGNIZED VIDE GAZETTE NOTIFICATION NO. 35/2008 DATED 14.3.2008 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT IN SHORT), MINISTRY OF FINANCE, A) SGHPH WAS RECOGNIZED VIDE GAZETTE NOTIFICATION DATED 28.1.2009 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT IN SHORT), MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), D AS A SCIENTIFIC INDUSTRIAL RESEARCH ORGANIZATION (SIRO) BY MINISTRY OF SCIENCE & TECHNOLOGY, GOVERNMENT OF INDIA. THE RENEWAL OF RECOGNITION AS SIRO BY THE DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL RESEARCH UNDER THE SCHEME ON RECOGNITION OF SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION , 1988 WAS MADE FOR THE PERIOD FROM 1.4.2010 TO 31.3.2013 VIDE COMMUNICATION IN F.NO. 14/473/2007 8.2. AT THE OUTSET, WE FIND THAT THE 2006 WITH RETROSPECTIVE EFFECT FROM 1.4.2006 HAD INTRODUCED AN EXPLANATION IN SECTION 35 SECTION 35( ENTITLED IN RESPECT OF ANY SUM PAID TO A RESEARCH ASSOCIATION, UNIVERSITY, COLLEGE OR OTHER INSTITUTION TO WHICH CLAUSE (II) OR CLAUSE (III) APPLIES, SHALL NOT BE DENIED MERELY ON THE GROUND THAT SUBSEQUENT TO THE PAYMENT OF SUCH SUM BY THE ASSESSEE, THE APPROVAL GRANTED TO THE ASSOCIATION, UNIVERSITY, COLLEGE OR OTHER INSTITUTION REFERRED TO IN CLAUSE (II) OR CLAUSE (III) HAS BEEN WITHDRAWN. HENCE THE AFORESAID PROVISIONS OF THE ACT ARE VERY CL THE PAYER (THE ASSESSEE HEREIN) WOULD NOT GET AFFECTED IF THE RECOGNITION GRANTED TO THE PAYEE HAD BEEN WITHDRAWN SUBSEQUENT TO THE DATE OF CONTRIBUTION BY THE ASSESSEE. HENCE NO DISALLOWANCE U/S 35(1)(II) OF THE ACT COULD BE MADE IN THE INSTANT C 8.3. WE FIND THAT THERE IS NO PROVISION IN WITHDRAW THE RECOGNITION GRANTED TO THE ASSESSEE THEREIN. WHEN THERE IS NO PROVISION FOR WITHDRAWAL OF RECOGNITION IN THE AC THE REVENUE IN WITHDRAWING THE RECOGNITION WITH RETROSPECTIVE EFFECT FROM 1.4.2007 IS UNWARRANTED. IN THIS REGARD, THE RECENT DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF DEVELOPMENT CORPORATION (GWALIOR) M.P. LTD VS CIT GWALIOR IN (2018) 90 TAXMANN.COM 281 (SC) WHEREIN IT WAS HELD THAT : 21. IN OUR CONSIDERED OPINION, THE CIT HAD NO EXPRESS POWER OF CANCELLATION OF THE REGISTRATION CERT ASSESSEE UNDER FIRST, THERE WAS NO EXPRESS PROVISION IN THE ACT VESTING THE CIT WITH THE POWER TO CANCEL THE REG 12A OF THE ACT. SECOND, THE ORDER PASSED UNDER IS A QUASI JUDICIAL ORDER AND BEING QU WITHDRAWN/RECALLED BY THE CIT ONLY WHEN THERE WAS EXPRESS POWER VESTED IN HIM UNDER THE ACT TO DO SO. IN THIS CASE THERE WAS NO SUCH EXPRESS POWER. 22. INDEED, THE FUNCTIONS EXERCISABLE BY THE CIT UNDER NEITHER LEGISLATIVE AND NOR EXECUTIVE BUT AS MENTIONED ABOVE THEY ARE ESSENTIALLY QUASI JUDICIAL IN NATURE. 23. THIRD, AN ORDER OF THE CIT PASSED UNDER IN THE CATEGORY OF 'ORDERS' MENTIONED IN CLAUSES ACT. THE EXPRESSION 'ORDER' EMPLOYED IN SHOW THAT SUCH 'ORDER' MUST BE IN THE NATURE OF A 'NOTIFICATION', 'RULES' AND 'BYE LAWS' ETC. (SEE INSTITUTE OF SOCIAL WELFARE 24. IN OTHER WORDS, APPLYING WHEREAS THE ORDER, WHICH THE CIT IS REQUIRED TO PASS UNDER 3 INDUSTRIAL RESEARCH ORGANISATION , 1988 WAS MADE FOR THE PERIOD FROM 1.4.2010 TO 31.3.2013 VIDE COMMUNICATION IN F.NO. 14/473/2007 -TU-V DATED 17.6.2010. 8.2. AT THE OUTSET, WE FIND THAT THE TAXATION LAW S (AMENDMENT) ACT 2006 WITH RETROSPECTIVE EFFECT FROM 1.4.2006 HAD INTRODUCED AN SECTION 35 OF THE ACT WHICH READS AS UNDER:- SECTION 35( 1)(II) - EXPLANATION THE DEDUCTION, TO WHICH THE ASSESSEE IS ENTITLED IN RESPECT OF ANY SUM PAID TO A RESEARCH ASSOCIATION, UNIVERSITY, COLLEGE OR OTHER INSTITUTION TO WHICH CLAUSE (II) OR CLAUSE (III) APPLIES, SHALL NOT BE DENIED MERELY ON THE GROUND THAT SUBSEQUENT TO THE PAYMENT OF SUCH SUM BY THE ASSESSEE, THE APPROVAL GRANTED TO THE ASSOCIATION, UNIVERSITY, COLLEGE OR OTHER INSTITUTION REFERRED TO IN CLAUSE (II) OR CLAUSE (III) HAS BEEN WITHDRAWN. HENCE THE AFORESAID PROVISIONS OF THE ACT ARE VERY CL THE PAYER (THE ASSESSEE HEREIN) WOULD NOT GET AFFECTED IF THE RECOGNITION GRANTED TO THE PAYEE HAD BEEN WITHDRAWN SUBSEQUENT TO THE DATE OF CONTRIBUTION BY THE ASSESSEE. HENCE NO DISALLOWANCE U/S 35(1)(II) OF THE ACT COULD BE MADE IN THE INSTANT C ASE. 8.3. WE FIND THAT THERE IS NO PROVISION IN SECTION 35(1)(II) OF THE ACT TO WITHDRAW THE RECOGNITION GRANTED TO THE ASSESSEE THEREIN. WHEN THERE IS NO PROVISION FOR WITHDRAWAL OF RECOGNITION IN THE AC T, THE ACTION OF THE REVENUE IN WITHDRAWING THE RECOGNITION WITH RETROSPECTIVE EFFECT FROM 1.4.2007 IS UNWARRANTED. IN THIS REGARD, THE RECENT DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION (GWALIOR) M.P. LTD VS CIT GWALIOR REPORTED IN (2018) 90 TAXMANN.COM 281 (SC) WHEREIN IT WAS HELD THAT : - 21. IN OUR CONSIDERED OPINION, THE CIT HAD NO EXPRESS POWER OF CANCELLATION OF THE REGISTRATION CERT IFICATE ONCE GRANTED BY HIM TO THE ASSESSEE UNDER SECTION 12A TILL 01.10.2004. IT IS FOR THE REASONS THAT, FIRST, THERE WAS NO EXPRESS PROVISION IN THE ACT VESTING THE CIT WITH THE POWER TO CANCEL THE REG ISTRATION CERTIFICATE GRANTED UNDER OF THE ACT. SECOND, THE ORDER PASSED UNDER SECTION 12A BY THE CIT IS A QUASI JUDICIAL ORDER AND BEING QU ASI JUDICIAL IN NATURE, IT COULD BE WITHDRAWN/RECALLED BY THE CIT ONLY WHEN THERE WAS EXPRESS POWER VESTED IN HIM UNDER THE ACT TO DO SO. IN THIS CASE THERE WAS NO SUCH EXPRESS POWER. 22. INDEED, THE FUNCTIONS EXERCISABLE BY THE CIT UNDER SECTION 12A NEITHER LEGISLATIVE AND NOR EXECUTIVE BUT AS MENTIONED ABOVE THEY ARE ESSENTIALLY QUASI JUDICIAL IN NATURE. 23. THIRD, AN ORDER OF THE CIT PASSED UNDER SECTION 12A DOES NOT FALL IN THE CATEGORY OF 'ORDERS' MENTIONED IN SECTION 21 OF THE GENERAL CLAUSES ACT. THE EXPRESSION 'ORDER' EMPLOYED IN SECTION 21 SHOW THAT SUCH 'ORDER' MUST BE IN THE NATURE OF A 'NOTIFICATION', 'RULES' AND 'BYE LAWS' ETC. (SEE - INDIAN NATIONAL CONGRESS(I) V. INSTITUTE OF SOCIAL WELFARE [2002] 5 SCC 685. 24. IN OTHER WORDS, THE ORDER, WHICH CAN BE MODIFIED OR RESCINDED BY APPLYING SECTION 21 , HAS TO BE EITHER EXECUTIVE OR LEGISLATIVE IN NATURE WHEREAS THE ORDER, WHICH THE CIT IS REQUIRED TO PASS UNDER I.T.A. NO. 904/KOL/2019 ASSESSMENT YEAR: 2014-15 TIRUPATI MEAL PRODUCERS (P) LTD INDUSTRIAL RESEARCH ORGANISATION , 1988 WAS MADE FOR THE PERIOD FROM 1.4.2010 TO 31.3.2013 VIDE COMMUNICATION IN F.NO. S (AMENDMENT) ACT , 2006 WITH RETROSPECTIVE EFFECT FROM 1.4.2006 HAD INTRODUCED AN EXPLANATION THE DEDUCTION, TO WHICH THE ASSESSEE IS ENTITLED IN RESPECT OF ANY SUM PAID TO A RESEARCH ASSOCIATION, UNIVERSITY, COLLEGE OR OTHER INSTITUTION TO WHICH CLAUSE (II) OR CLAUSE (III) APPLIES, SHALL NOT BE DENIED MERELY ON THE GROUND THAT , SUBSEQUENT TO THE PAYMENT OF SUCH SUM BY THE ASSESSEE, THE APPROVAL GRANTED TO THE ASSOCIATION, UNIVERSITY, COLLEGE OR OTHER INSTITUTION HENCE THE AFORESAID PROVISIONS OF THE ACT ARE VERY CL EAR THAT THE PAYER (THE ASSESSEE HEREIN) WOULD NOT GET AFFECTED IF THE RECOGNITION GRANTED TO THE PAYEE HAD BEEN WITHDRAWN SUBSEQUENT TO THE DATE OF CONTRIBUTION BY THE ASSESSEE. HENCE NO DISALLOWANCE U/S 35(1)(II) OF THE ACT COULD BE MADE IN THE OF THE ACT TO WITHDRAW THE RECOGNITION GRANTED TO THE ASSESSEE THEREIN. WHEN THERE T, THE ACTION OF THE REVENUE IN WITHDRAWING THE RECOGNITION WITH RETROSPECTIVE EFFECT FROM 1.4.2007 IS UNWARRANTED. IN THIS REGARD, THE RECENT DECISION OF THE INDUSTRIAL INFRASTRUCTURE REPORTED 21. IN OUR CONSIDERED OPINION, THE CIT HAD NO EXPRESS POWER OF IFICATE ONCE GRANTED BY HIM TO THE TILL 01.10.2004. IT IS FOR THE REASONS THAT, FIRST, THERE WAS NO EXPRESS PROVISION IN THE ACT VESTING THE CIT WITH ISTRATION CERTIFICATE GRANTED UNDER SECTION BY THE CIT ASI JUDICIAL IN NATURE, IT COULD BE WITHDRAWN/RECALLED BY THE CIT ONLY WHEN THERE WAS EXPRESS POWER VESTED IN HIM UNDER THE ACT TO DO SO. IN THIS CASE THERE WAS NO SUCH SECTION 12A ARE NEITHER LEGISLATIVE AND NOR EXECUTIVE BUT AS MENTIONED ABOVE THEY ARE DOES NOT FALL OF THE GENERAL SECTION 21 WOULD SHOW THAT SUCH 'ORDER' MUST BE IN THE NATURE OF A 'NOTIFICATION', INDIAN NATIONAL CONGRESS(I) V. THE ORDER, WHICH CAN BE MODIFIED OR RESCINDED BY , HAS TO BE EITHER EXECUTIVE OR LEGISLATIVE IN NATURE WHEREAS THE ORDER, WHICH THE CIT IS REQUIRED TO PASS UNDER SECTION 12A OF THE ACT, IS NEITHER LEGISLATIVE NOR AN EXECUTIVE ORDER BUT IT IS A 'QUASI JUDICIAL ORDER'. IT IS FOR THIS REASON, APPLICATION IN THIS CASE. 25. THE GENERAL POWER, UNDER RESCIND A NOTIFICATION OR ORDER HAS TO BE UNDERSTOOD IN THE LIGHT OF THE SUBJECT MATTER, CONTEXT AND THE EFFECT OF THE RELEVANT PROVIS STATUTE UNDER WHICH THE NOTIFICATION OR ORDER IS ISSUED AND THE POWER IS NOT AVAILABLE AFTER AN ENFORCEABLE RIGHT HAS ACCRUED UNDER THE NOTIFICATION OR ORDER. MOREOVER, OR AMEND OR REVIEW A QUASI JUDICIAL ORDER. A QUASI JUDICIAL ORDER CAN BE GENERALLY VARIED OR REVIEWED WHEN OBTAINED BY FRAUD OR WHEN SUCH POWER IS CONFERRED BY THE ACT OR RULES UNDER WHICH IT IS MADE. (SEE INTERPRETATION OF STATUTES, NINTH ED 26. ............ 27. IT IS NOT IN DISPUTE THAT AN EXPRESS POWER WAS CONFERRED ON THE CIT TO CANCEL THE REGISTRATION FOR THE FIRST TIME BY ENACTING SUB (3) IN SECTIO (NO.2) ACT EXERCISED BY THE CIT ONLY ON AND AFTER 01.10.2004, I.E., (ASSESSMENT YEAR 2004 RETROSPECTIVE BUT WAS PROSPECTIVE IN NATURE. 28. THE ISSUE INVOLVED IN THIS APPEAL HAD ALSO COME UP FOR CONSIDERATION BEFORE THREE HIGH COURTS, NAMELY, DELHI HIGH COURT IN THE CASE OF [2011] 11 TAXMANN.COM 42/199 TAXMAN 1/339 ITR 622, UTTARANCHAL HIGH COURT IN THE CASE OF 285 ITR 74/[2007] 158 TAXMAN 199 AND ALLAHABAD HIGH COURT IN THE CASE OF OXFORD ACADEMY FOR CAREER DEVELOPMENT V. CHIEF CIT [2009] 315 ITR 382. 29. ALL THE THREE HIGH COURTS AFTER EXAMINING THE ISSUE, IN THE LIGHT OF THE OBJE CT OF CLAUSES ACT HELD THAT THE ORDER OF THE CIT PASSED UNDER QUASI JUDICIAL IN NATURE. SECOND, THERE WAS NO EXPRESS PROVISION IN THE ACT VESTING THE CIT WITH POWER OF CANCELLATION OF REGISTRATION TILL 01.10.2004; AND LASTLY, APPLICATION TO THE ORDER PASSED BY THE CIT UNDER THE ORDER IS QUASI JUDICIAL IN NATURE AND IT IS FOR ALL THESE REASONS THE CIT HAD NO JURISDICTION TO CANCE GRANTED BY HIM UNDER CONFERRED ON THE CIT BY WE HOLD THAT THE RATIO DECIDENDI OF THE AFORESAID JUDGEMENT OF THE HON'BLE APEX COURT WOULD SQUARELY BE APPLICABLE TO THE FACTS OF THE INSTANT CASE. INFACT THE ASSESSEE'S CASE HEREIN FALLS ON A MUCH BETTER FOOTING THAN THE FACTS BEFORE THE H COURT. IN THE CASE BEFORE HON'BLE APEX COURT, THE POWER OF CANCELLATION OF REGISTRATION US 12 THE ACT ON THE LD CIT W.E.F. 1.10.2004 AND THE HON'BLE APEX COURT HEL REGISTRATION COULD HAPPEN. BUT IN THE INSTANT CASE, THERE IS ABSOLUTELY NO PROVISION FOR WITHDRAWAL OF RECOGNITION U/S 35(1)(II) OF THE ACT . HENCE WE HOLD THAT THE WITHDRAWAL OF RECOGNITION U/S 35(1)(II) OF T 4 OF THE ACT, IS NEITHER LEGISLATIVE NOR AN EXECUTIVE ORDER BUT IT IS A 'QUASI JUDICIAL ORDER'. IT IS FOR THIS REASON, SECTION 21 APPLICATION IN THIS CASE. 25. THE GENERAL POWER, UNDER SECTION 21 OF THE GENERAL CLAUSES ACT, TO RESCIND A NOTIFICATION OR ORDER HAS TO BE UNDERSTOOD IN THE LIGHT OF THE SUBJECT MATTER, CONTEXT AND THE EFFECT OF THE RELEVANT PROVIS IONS OF THE STATUTE UNDER WHICH THE NOTIFICATION OR ORDER IS ISSUED AND THE POWER IS NOT AVAILABLE AFTER AN ENFORCEABLE RIGHT HAS ACCRUED UNDER THE NOTIFICATION OR ORDER. MOREOVER, SECTION 21 HAS NO APPLIC ATION TO VARY OR AMEND OR REVIEW A QUASI JUDICIAL ORDER. A QUASI JUDICIAL ORDER CAN BE GENERALLY VARIED OR REVIEWED WHEN OBTAINED BY FRAUD OR WHEN SUCH POWER IS CONFERRED BY THE ACT OR RULES UNDER WHICH IT IS MADE. (SEE INTERPRETATION OF STATUTES, NINTH ED ITION BY G.P. SINGH PAGE 893). 26. ............ 27. IT IS NOT IN DISPUTE THAT AN EXPRESS POWER WAS CONFERRED ON THE CIT TO CANCEL THE REGISTRATION FOR THE FIRST TIME BY ENACTING SUB SECTIO N 12AA ONLY WITH EFFECT FROM 01.10.2004 BY THE (NO.2) ACT 2004 (23 OF 2004) AND HENCE SUCH POWER COULD BE EXERCISED BY THE CIT ONLY ON AND AFTER 01.10.2004, I.E., (ASSESSMENT YEAR 2004 -2005) BECAUS E THE AMENDMENT IN QUESTION WAS NOT RETROSPECTIVE BUT WAS PROSPECTIVE IN NATURE. 28. THE ISSUE INVOLVED IN THIS APPEAL HAD ALSO COME UP FOR CONSIDERATION BEFORE THREE HIGH COURTS, NAMELY, DELHI HIGH COURT IN THE CASE OF DIT (EXEMPTIONS) V. MOOL CHAND KHAIRATI RAM TRUST [2011] 11 TAXMANN.COM 42/199 TAXMAN 1/339 ITR 622, UTTARANCHAL HIGH COURT IN THE CASE OF WELHAM BOYS' SCHOOL SOCIETY V. CBDT 285 ITR 74/[2007] 158 TAXMAN 199 AND ALLAHABAD HIGH COURT IN THE CASE OF OXFORD ACADEMY FOR CAREER DEVELOPMENT V. CHIEF CIT [2009] 315 ITR 382. 29. ALL THE THREE HIGH COURTS AFTER EXAMINING THE ISSUE, IN THE LIGHT OF CT OF SECTION 12A OF THE ACT AND SECTION 21 OF THE GENERAL CLAUSES ACT HELD THAT THE ORDER OF THE CIT PASSED UNDER SECTION 12A QUASI JUDICIAL IN NATURE. SECOND, THERE WAS NO EXPRESS PROVISION IN THE ACT VESTING THE CIT WITH POWER OF CANCELLATION OF REGISTRATION TILL 01.10.2004; AND LASTLY, SECTION 21OF T HE GENERAL CLAUSES ACT HAS NO APPLICATION TO THE ORDER PASSED BY THE CIT UNDER SECTION 12A THE ORDER IS QUASI JUDICIAL IN NATURE AND IT IS FOR ALL THESE REASONS THE CIT HAD NO JURISDICTION TO CANCE L THE REGISTRATION CERTIFICATE ONCE GRANTED BY HIM UNDER SECTION 12A TILL THE POWER WAS EXPRESSLY CONFERRED ON THE CIT BY SECTION 12AA(3) OF THE ACT W.E.F . 01.10.2004. WE HOLD THAT THE RATIO DECIDENDI OF THE AFORESAID JUDGEMENT OF THE HON'BLE APEX COURT WOULD SQUARELY BE APPLICABLE TO THE FACTS OF THE INSTANT CASE. INFACT THE ASSESSEE'S CASE HEREIN FALLS ON A MUCH BETTER FOOTING THAN THE FACTS BEFORE THE H ON'BLE APEX COURT. IN THE CASE BEFORE HON'BLE APEX COURT, THE POWER OF CANCELLATION OF REGISTRATION US 12 A OF THE ACT WAS CONFERRED BY THE ACT ON THE LD CIT W.E.F. 1.10.2004 AND THE HON'BLE APEX COURT HEL D THAT PRIOR TO THAT DATE , NO CANCELLATION OF REGISTRATION COULD HAPPEN. BUT IN THE INSTANT CASE, THERE IS ABSOLUTELY NO PROVISION FOR WITHDRAWAL OF RECOGNITION U/S 35(1)(II) OF THE ACT . HENCE WE HOLD THAT THE WITHDRAWAL OF RECOGNITION U/S 35(1)(II) OF T HE ACT IN THE HANDS OF THE PAYEE I.T.A. NO. 904/KOL/2019 ASSESSMENT YEAR: 2014-15 TIRUPATI MEAL PRODUCERS (P) LTD OF THE ACT, IS NEITHER LEGISLATIVE NOR AN EXECUTIVE ORDER BUT IT IS A SECTION 21 HAS NO OF THE GENERAL CLAUSES ACT, TO RESCIND A NOTIFICATION OR ORDER HAS TO BE UNDERSTOOD IN THE LIGHT OF THE IONS OF THE STATUTE UNDER WHICH THE NOTIFICATION OR ORDER IS ISSUED AND THE POWER IS NOT AVAILABLE AFTER AN ENFORCEABLE RIGHT HAS ACCRUED UNDER THE ATION TO VARY OR AMEND OR REVIEW A QUASI JUDICIAL ORDER. A QUASI JUDICIAL ORDER CAN BE GENERALLY VARIED OR REVIEWED WHEN OBTAINED BY FRAUD OR WHEN SUCH POWER IS CONFERRED BY THE ACT OR RULES UNDER WHICH IT IS MADE. (SEE ITION BY G.P. SINGH PAGE 893). 27. IT IS NOT IN DISPUTE THAT AN EXPRESS POWER WAS CONFERRED ON THE CIT TO CANCEL THE REGISTRATION FOR THE FIRST TIME BY ENACTING SUB -SECTION ONLY WITH EFFECT FROM 01.10.2004 BY THE FINANCE 2004 (23 OF 2004) AND HENCE SUCH POWER COULD BE EXERCISED BY THE CIT ONLY ON AND AFTER 01.10.2004, I.E., (ASSESSMENT E THE AMENDMENT IN QUESTION WAS NOT 28. THE ISSUE INVOLVED IN THIS APPEAL HAD ALSO COME UP FOR CONSIDERATION BEFORE THREE HIGH COURTS, NAMELY, DELHI HIGH COURT IN DIT (EXEMPTIONS) V. MOOL CHAND KHAIRATI RAM TRUST [2011] 11 TAXMANN.COM 42/199 TAXMAN 1/339 ITR 622, UTTARANCHAL SCHOOL SOCIETY V. CBDT [2006] 285 ITR 74/[2007] 158 TAXMAN 199 AND ALLAHABAD HIGH COURT IN THE CASE OF OXFORD ACADEMY FOR CAREER DEVELOPMENT V. CHIEF CIT [2009] 29. ALL THE THREE HIGH COURTS AFTER EXAMINING THE ISSUE, IN THE LIGHT OF OF THE GENERAL SECTION 12A IS QUASI JUDICIAL IN NATURE. SECOND, THERE WAS NO EXPRESS PROVISION IN THE ACT VESTING THE CIT WITH POWER OF CANCELLATION OF REGISTRATION TILL HE GENERAL CLAUSES ACT HAS NO SECTION 12A BECAUSE THE ORDER IS QUASI JUDICIAL IN NATURE AND IT IS FOR ALL THESE REASONS THE L THE REGISTRATION CERTIFICATE ONCE TILL THE POWER WAS EXPRESSLY . 01.10.2004. WE HOLD THAT THE RATIO DECIDENDI OF THE AFORESAID JUDGEMENT OF THE HON'BLE APEX COURT WOULD SQUARELY BE APPLICABLE TO THE FACTS OF THE INSTANT CASE. INFACT THE ASSESSEE'S CASE HEREIN FALLS ON'BLE APEX COURT. IN THE CASE BEFORE HON'BLE APEX COURT, THE POWER OF WAS CONFERRED BY THE ACT ON THE LD CIT W.E.F. 1.10.2004 AND THE HON'BLE APEX D THAT PRIOR TO THAT DATE , NO CANCELLATION OF REGISTRATION COULD HAPPEN. BUT IN THE INSTANT CASE, THERE IS ABSOLUTELY NO PROVISION FOR WITHDRAWAL OF RECOGNITION U/S 35(1)(II) OF THE ACT . HENCE WE HOLD THAT THE WITHDRAWAL OF HE ACT IN THE HANDS OF THE PAYEE ORGANIZATIONS WOULD NOT AFFECT THE RIGHTS AND INTERESTS OF THE ASSESSEE HEREIN FOR CLAIM OF WEIGHTED DEDUCTION U/S 35(1)(II) OF THE ACT. 8.4. WE ALSO FIND THAT THE CO SIMILAR FACT S HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE IN THE FOLLOWING CASES: A) RAJDA POLYMERS VS DCIT YEAR 2013 B) SAIMED INNOVATION VS ITO YEAR 2013 THE FINDINGS OF THOSE DECISIONS ARE NOT REITERATED HEREIN FOR THE SAKE OF BREVITY. 8.5. IN VIEW OF THE AFORESAID FINDINGS IN THE FACTS AND CIRCU THE CASE AND RESPECTFULLY FOLLOWING THE VARIOUS JUDICIAL PRECEDENTS RELIED UPON HEREINABOVE, WE HOLD THAT THE LD CITA HAD RIGHTLY DELETED THE DISALLOWANCE U/S 35(1)(II) OF THE ACT IN THE SUM OF RS 3,06,25,000/ MADE BY THE LD AO. ACCORDINGLY, T DISMISSED. 5. THIS BENCH OF THE TRIBUNAL IN THE CASE OF 2346/KOL/2018, ORDER DT. 13/03/2019, AFTER DETAILED DISCUSSION ALLOWED 6. CONSISTENT WITH THE VIEW TAKEN THEREIN, WE ALLOW THIS CLAIM OF DEDUCTION OF THE ASSESSEE AND DELETE THE ADDITION IN QUESTION. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE SD/- [ABY T. VARKEY] JUDICIAL MEMBER DATED : 29.11.2019 {SC SPS} 5 ORGANIZATIONS WOULD NOT AFFECT THE RIGHTS AND INTERESTS OF THE ASSESSEE HEREIN FOR CLAIM OF WEIGHTED DEDUCTION U/S 35(1)(II) OF THE ACT. 8.4. WE ALSO FIND THAT THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN EXACTLY S HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE IN THE FOLLOWING CASES: - RAJDA POLYMERS VS DCIT IN ITA NO. 333/KOL/2017 FOR ASST YEAR 2013 -14 DATED 8.11.2017. SAIMED INNOVATION VS ITO IN ITA NO. 2231/KOL/2016 FOR ASST YEAR 2013 -14 DATED 13.9.2017. THE FINDINGS OF THOSE DECISIONS ARE NOT REITERATED HEREIN FOR THE SAKE OF BREVITY. 8.5. IN VIEW OF THE AFORESAID FINDINGS IN THE FACTS AND CIRCU MSTANCES OF THE CASE AND RESPECTFULLY FOLLOWING THE VARIOUS JUDICIAL PRECEDENTS RELIED UPON HEREINABOVE, WE HOLD THAT THE LD CITA HAD RIGHTLY DELETED THE DISALLOWANCE U/S 35(1)(II) OF THE ACT IN THE SUM OF RS 3,06,25,000/ MADE BY THE LD AO. ACCORDINGLY, T HE GROUNDS RAISED BY THE REVENUE ARE THIS BENCH OF THE TRIBUNAL IN THE CASE OF RAJ KARAN DASANI VS. ITO. IN ITA NO. 2346/KOL/2018, ORDER DT. 13/03/2019, HAD CONSIDERED A SIMILAR TRANSA ALLOWED THE CLAIM OF THE ASSESSEE. CONSISTENT WITH THE VIEW TAKEN THEREIN, WE ALLOW THIS CLAIM OF DEDUCTION OF THE ASSESSEE AND DELETE THE ADDITION IN QUESTION. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 29 TH DAY OF NOVEMBER, 201 9 [ J. SUDHAKAR REDDY] ACCOUNTANT MEMBER I.T.A. NO. 904/KOL/2019 ASSESSMENT YEAR: 2014-15 TIRUPATI MEAL PRODUCERS (P) LTD ORGANIZATIONS WOULD NOT AFFECT THE RIGHTS AND INTERESTS OF THE ASSESSEE HEREIN FOR CLAIM OF WEIGHTED DEDUCTION U/S 35(1)(II) OF ORDINATE BENCH OF THIS TRIBUNAL IN EXACTLY S HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE IN THE IN ITA NO. 333/KOL/2017 FOR ASST IN ITA NO. 2231/KOL/2016 FOR ASST THE FINDINGS OF THOSE DECISIONS ARE NOT REITERATED HEREIN FOR THE MSTANCES OF THE CASE AND RESPECTFULLY FOLLOWING THE VARIOUS JUDICIAL PRECEDENTS RELIED UPON HEREINABOVE, WE HOLD THAT THE LD CITA HAD RIGHTLY DELETED THE DISALLOWANCE U/S 35(1)(II) OF THE ACT IN THE SUM OF RS 3,06,25,000/ - HE GROUNDS RAISED BY THE REVENUE ARE RAJ KARAN DASANI VS. ITO. IN ITA NO. HAD CONSIDERED A SIMILAR TRANSA CTION AND CONSISTENT WITH THE VIEW TAKEN THEREIN, WE ALLOW THIS CLAIM OF DEDUCTION OF 9 . SD/- J. SUDHAKAR REDDY] ACCOUNTANT MEMBER C OPY OF THE ORDER FORWARDED TO: 1. TIRUPATI MEAL PRODUCERS (P) LTD C/O. SUBASH AGARWAL & ASSOCIATES, ADVOCATES SIDDHA GIBSON 1, GIBSON LANE SUITE 213 2 ND FLOOR KOLKATA 700 069 2. INCOME TAX OFFICER, WARD- 2(4), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6 OPY OF THE ORDER FORWARDED TO: MEAL PRODUCERS (P) LTD C/O. SUBASH AGARWAL & ASSOCIATES, ADVOCATES 2(4), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, K OLKATA BENCHES I.T.A. NO. 904/KOL/2019 ASSESSMENT YEAR: 2014-15 TIRUPATI MEAL PRODUCERS (P) LTD TRUE COPY BY ORDER ASSISTANT REGISTRAR OLKATA BENCHES