ITO, Tuticorin V. The Society of Mother of Sorrows servants of Mary, Tuticorin

ITA 96/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58062 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 16-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N DEVANATHAN
• Keywords: Question of law
• Section: 260A; 12AA; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ITA NOS.95, 96, 97 & 98(MDS)/2012 ASSESSMENT YEARS : 2002-03, 2003-04, 2004-05 & 2005 -06 AND C.O. NOS.26, 27, 28 & 29(MDS)/2012 IN ITA NOS.95 TO 98(MDS)/2012 THE INCOME-TAX OFFICER, WARD I(1), TUTICORIN. VS. THE SOCIETY OF MOTHER OF SORROWS SERVANTS OF MARY, MARIA NATCHATHIRA PROVINCE, 106J/23, MILLERPURAM, TUTICORIN. PAN AADTS6895A. (APPELLANT) ( RESPONDENT/CROSS OBJECTOR) APPELLANT BY : SHRI S.MOHARANA, IRS, COMMIS SIONER OF IT RESPONDENT BY: SHRI N.DEVANATHAN, ADVOCATE DATE OF HEARING : 21 ST MARCH, 2012 DATE OF PRONOUNCEMENT : 21 ST MARCH, 2012 O R D E R PER DR.O.K.NARAYANAN, VICE-PRESIDENT: THIS IS A BUNCH OF FOUR APPEALS AND FOUR CROSS OB JECTIONS. THE APPEALS ARE FILED BY THE REVENUE AND THE CROSS OBJECTIONS - - ITA 95 TO 98 OF 2012, ETC. 2 ARE FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEARS ARE 2002-03, 2003-04, 2004-05 AND 2005-06. 2. THE COMMON GROUND RAISED IN THE APPEALS FILED B Y THE REVENUE IS THAT THE COMMISSIONER OF INCOME-TAX( APPEALS) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO GRA NT EXEMPTION UNDER SECTION 11 OF THE INCOME-TAX ACT, 1961, ON TH E BASIS OF THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) PA SSED IN CONSEQUENCE OF THE ORDER AND DIRECTION OF THE INCOM E-TAX APPELLATE TRIBUNAL. IT IS THE CASE OF THE REVENUE THAT THE ORDER OF THE TRIBUNAL ON THE ISSUE HAS NOT BECOME FINAL. 3. ON THE ISSUE OF REGISTRATION UNDER SECTION 12AA IN THE CASE OF THE ASSESSEE, THE TRIBUNAL HAS HELD THA T THE ASSESSEE IS ENTITLED FOR REGISTRATION UNDER SECTION 12AA AND THUS ENTITLED FOR EXEMPTION AVAILABLE UNDER SECTION 11 O F THE INCOME- TAX ACT, 1961. THESE FINDINGS HAVE BEEN MADE IN TH E COMMON ORDER PASSED BY THE C-BENCH OF THIS TRIBUNAL IN THE CASE OF THE ASSESSEE IN ITA NO.375(MDS)/2011, READ WITH M.A. NO.131(MDS)/2011, DATED 30 TH AUGUST, 2011. IT IS IN THE LIGHT OF - - ITA 95 TO 98 OF 2012, ETC. 3 THE ABOVE ORDERS OF THE TRIBUNAL THAT THE COMMISSIO NER OF INCOME-TAX(APPEALS) HAS HELD THAT THE ASSESSEE SOCI ETY IS ENTITLED FOR ITS CLAIM FOR REGISTRATION UNDER SECTI ON 11. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE APP EALS FILED BY THE REVENUE ARE LIABLE TO BE DISMISSED. 4. THE GROUNDS RAISED BY THE ASSESSEE IN THE CROSS OBJECTIONS ARE EXTRACTED BELOW:- 1.A. THE REVENUE OUGHT TO HAVE APPRECIATED THAT NO APPEAL AGAINST THE ORDER OF THE CIT WOULD NOT LIE T O THE HONBLE HIGH COURT SINCE THERE IS NEITHER POINT OF LAW, OR QUESTION OF LAW MUCH LESS SUBSTANTIVE QUESTION OF L AW IN TERMS OF ARTICLE 260A OF THE ACT AND EVEN ASSUMING THAT THE REVENUE HAS FILED AN APPEAL STILL THE ITAT IS E NTITLED TO HOLD THAT THE APPEAL IS NOT MAINTAINABLE SINCE T HE ALLEGED FILING OF APPEAL INVOLVES EXERCISE OF DISCR ETION AND SUCH EXERCISE MUST BE CARRIED OUT JUDICIALLY AN D JUDICIOUSLY WHICH CONDITION WERE NOT SATISFIED IN T HE INSTANT CASE. - - ITA 95 TO 98 OF 2012, ETC. 4 B. THE LEARNED ASSESSING OFFICER OUGHT TO HAVE APPRECIATED THAT THERE CANNOT BE ANY APPEAL SINCE T HE LEARNED CIT HAD ACCEPTED THE ITATS ORDER BY RESPECTFULLY FOLLOWING THE DECISIONS OF THE ITAT AN D NO RESERVATION IS MADE THAT THE ORDER HAS BEEN GIVEN E FFECT WITHOUT PREJUDICE TO FILING OF APPEAL. C. THE LEARNED ASSESSING OFFICER OUT TO HAVE APPREC IATED AND FOLLOWED THE DECISION OF THE ITAT IN THE CASE O F SRI VARADARAJA TEXTILES (9ITD MAD) WHICH DECISION HAS B EEN ACCEPTED BY THE DEPARTMENT AND THE LEARNED ASSESSIN G OFFICER IS BOUND BY THE DECISION (SEE KAMALAKSHI FINANCE CORPORATION 72 TAXMAN EXCISE PART 43) AND FAILURE TO FOLLOW ATTRACTS CONTEMPT PROCEEDINGS. 2. THE COMMISSIONER OF INCOME-TAX(APPEALS) IS JUSTI FIED AND IS CORRECT IN FOLLOWING EXEMPTION U/S 12AA OF T HE IT ACT WITH EFFECT FROM 18-2-1999 RELEVANT TO ASST. YE AR - - ITA 95 TO 98 OF 2012, ETC. 5 1999-2000 ONWARDS BASED ON THE ORDERS PASSED BY THE COMMISSIONER OF INCOME-TAX, MADURAI. 3. THE ASSESSING OFFICER IS NOT JUSTIFIED IN PRAYIN G THAT THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS ) BE REVERSED AND THE ORDER OF THE ASSESSING OFFICER BE RESTORED. 4. THE ASSESSING OFFICER OUGHT HAVE APPRECIATED THE FACT THAT ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEAL S) IS BASED ON THE ORDER OF THE COMMISSIONER OF INCOME -TAX CONSEQUENT TO ORDER THE HONBLE INCOME-TAX APPELLAT E TRIBUNAL, CHENNAI WHEREIN IT IS STATED THAT ADVERSE FINDING HAS BEEN ARRIVED AT NOT ON THE BASED ON ANY SUBSTANTIAL LAW BUT ON THE BASIS OF TECHNICALITIES. 5. AS THE APPEALS FILED BY THE REVENUE HAVE BEEN DISMISSED, THE CROSS OBJECTIONS FILED BY THE ASSESS EE HAVE BECOME INFRUCTUOUS. ACCORDINGLY, THE CROSS OBJECTI ONS ARE ALSO LIABLE TO BE DISMISSED. - - ITA 95 TO 98 OF 2012, ETC. 6 ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON WEDNESDAY, THE 21 ST OF MARCH, 2012 AT CHENNAI. SD/- SD/- (CHALLA NAGENDRA PRASAD) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 21 ST MARCH, 2012. V.A.P. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT (4) CIT(A) (5) D.R. (6) G.F.