MUMBAI METROPLITITAN REGION DEVELOPMENT AUTHORITY, V. DIT (E),

MA 126/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3086 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 08-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP; RAJIV PAN TH
• Assessee Lawyers: S E DASTUR
• Keywords: Revision of order; Depreciation; Charitable institution; Retrospective amendment; Competent authority
• Section: 12A; 263; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . , , BEFORE SHRI D. MANMOHAN, VP AND SHRI SANJAY ARORA, AM . / MA NO. 12 6/MUM/2014 (ARISING OUT OF ITA NO. 625/MUM/2012 ) & ITA NO. 625/MUM/2012 ( / ASSESSMENT YEAR S : 200 9 - 10 ) MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY PLOT NO.C - 14 AND C - 15, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400 051 / VS. DIRECTO R OF INCOME TAX (EXEMPTION), MUMBAI ./ ./ PAN/GIR NO. AAATIM 7016 R ( APPLICANT ) : ( RESPONDENT ) / APPELLANT BY : SHRI S. E. DASTUR & SHRI MADHUR AGARWAL / RESPONDENT BY : SHRI RAJIV PAN TH & SHRI NEIL PHILIP / DATE OF HEARING : 08.08.2014 & 16.01.2015 / DATE OF PRONOUNCEMENT : 10 . 04 .201 5 / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCEL LANEOUS PETITION BY THE ASSESSEE , I.E., FOR ASSESSMENT YEA R (A.Y.) 2009 - 10 , IN RESPECT OF THE ORDER BY THE TRIBUNAL DATED 31.12.2013 IN ITS CASE FOR THE SAID YEAR. 2 . VIDE ITS INSTANT APPLICATION THE ASSESSEE SEEKS A RECALL OF ITS ORDER AFORE - REFERRED BY THE TRIBUNAL FOR DECIDING ITS APPEAL AFRESH IN ACCORDANC E WITH LAW. IN THE ALTERNATIVE, THE TRIBUNAL CAN, WHER E THE PARTIES CONSENT TH ERETO ; IT HAV ING ALREADY HEARD THE PARTIES AT 2 MA NO. 126/MUM/2014 & ITA NO. 625/MUM/2012 (A.Y. 2009 - 10) MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY VS. DIT(E) LENGTH, PROCEED TO DECIDE ASSESSEES G ROUND # 1, WHICH IT REF RAINED TO WHILE PASSING THE IMPUGNED ORDER. 3 . 1 THE ASSESSEES CASE, AS PROJECTED BY THE LD. S ENIOR C OUNSEL , SH. S.E. DASTUR, BEFORE US, WAS THAT THE SOLE AND THE ONLY REASON FOR THE REVENUE I N WITHDRAWING ITS REGISTRATION U/S. 12A OF THE ACT AS A CHARITABLE INSTITUTION , GRANTED ON 22.07.2002 (PB PG.3 9 ) , WITH EFFECT FROM AS SESSMENT YEAR (AY ) 2009 - 10 , IS THE INVOCATION OF SECTION 2(15), I.E., READ WITH PROVISO THERETO, EFFECTIVE FROM THE SAID ASSESSMENT YEAR , CONTENDING THAT THE PROVISO TO SECTION 2(15) IS APPLICABLE TO IT AND, THEREFORE, IT IS NO LONGER A CHARITABLE INSTITUT ION. THE ASSESSEE APPEAL ED THER E - AGAINST, CONTESTING THE SAID WITHDRAWAL (U/S.12AA( 3 )) ON BOTH COUNTS. FIRSTLY, THE PROPOSITION PER SE THAT INFORM S THE WITHDRAWAL UNDER REFERENCE, SO THAT AN APPLICATION OF PROVISO SECTION 2(15) WOULD ITSELF OPERATE TO BE A GROUND FOR THE WITHDRAWAL OF REGISTRATION (PER G D . # 1). VIDE G ROUND 2, THE ASSESSEE, WITHOUT PREJUDICE , DISPUTED THE APPLICABILITY OF THE PROVISO TO SECTION 2(15), I.E., ON FACT S . THIS WAS FOR THE REASON THAT IF THE ASSESSEES CASE IS DECIDED IN ITS FAVOU R ON THE LEGAL PLEA RAISED PER GD.1 , THERE WOULD BE NO NECESSITY TO DECIDE ITS G D . 2. THE T RIBUNAL, HOWEVER, WITHOUT DECIDING ITS GROUND NO. 1 , PROCEEDED TO DECIDE GD. 2, I.E., THE ALTERNATE GROUND. TH I S, DESPITE AS MANY AS S IX DECISIONS BEING RELIED UPON B Y THE ASSESSEE IN ITS FAVOUR ON THAT GROUND (GD. # 1) , WHICH THOUGH STAND DULY REPORTED A T PARA 3.1 O F ITS ORDER. IN FACT, IT DOES NOT EVEN DECIDE THE SAME (GD.2), RESTORING THE MATTER BACK TO THE FILE OF LD. DIT(E) TO DECIDE THE SAME. IT WAS NOT PERMISSIB LE FOR THE T RIBUNAL TO DO SO, I.E., WITHOUT DECIDING GD.1. CONTINUING FURTHER, MAKING REFERENCE TO THE SHOW CAUSE NOTICE DATED 13 .12. 2011 (AT PB PG. 40 ); THE ASSESSEES REPLY THERETO IN THE PROCEEDINGS BEFORE THE LD. DIT(E) DTD. 26 . 12 . 2011 (PB PGS. 41 - 55 ) , AS WELL AS HIS ORDER U/S. 12AA(3) WITHDRAWING REGISTRATION, IT WAS ARGUED THAT THE T RIBUNAL IN REQUIRING THE LD. DIT(E) TO EXAMINE THE ISSUE OF THE SAID WITHDRAWAL WITH REFERENCE TO THE CONDITIONS OF SECTION 12AA(3), I.E., THAT THE ACTIVITIES OF TRUST OR INSTITUTION ARE GENUINE OR A R E BEING CARRIED OUT IN ACCORDANCE WITH SUBJECTS, TRAVELED OUTSIDE THE SCOPE OF THE APPEAL AND , THUS, EXCEEDED ITS JURISDICTION. THE POWER OF THE T RIBUNAL U/S.254(1) , HOWSOEVER W IDE , IS NOT ABSOLUTE AND IS CONFINED TO THE GROU NDS 3 MA NO. 126/MUM/2014 & ITA NO. 625/MUM/2012 (A.Y. 2009 - 10) MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY VS. DIT(E) RAISED, AND FOR WHICH RELIANCE WAS PLACED ON DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF POKHRAJ HIRACHAND V . CIT [1963] 49 ITR 293 (BOM) AND J.B. GREAVES IT V . C IT [1963] 49 ITR 107 ( BOM ). ON HIS ATTENTION BEING DRAWN TO THE RULE 11 OF TH E APPELLATE TRIBUNAL RULE S, 1963, WHICH PROVIDE S FOR THE T RIBUNAL BEING NOT CONFINED TO THE GROUNDS RAISED BEFORE IT PER THE MEMO OF APPEAL , SO THAT IT CAN , WHERE DEEMED FIT AND PROPER, CONSIDER A GROUND DEEMED RELEVANT , OF COURSE AFTER ALLOWING PARTIES OP PORTUNITY TO STATE THEIR CASE REFERENCE THERETO, IT WAS EXPLAINED BY HIM THAT THE CITED DECISIONS CONSIDERED THE AMBIT OF THE RELEVANT RULES, I.E., RULES 11,12 AND 27, WHICH ARE PARA M A TERIA TO RULES 11 AND 27 OF THE APPELLATE TRIBUNAL RULES , 1963. TOWARD THE SAME, COPY OF THE RELEVANT RULES (BEING UNDER THE 1922 ACT ), WERE ALSO PLACED ON RECORD. THE T RIBUNAL, HE CONTINUED, CAN DECIDE IN THE APPELLANT S FAVOUR ON ANY OTHER GROUND . RE FERENCE WAS FURTHER MADE BY HIM TO THE DECISIONS IN THE CASE OF JASMINE CO MMERCIALS LTD. VS. CIT [ 2011 ] 56 DTR 159/ 200 TAXMAN 338 (CAL) (PAGES 5,6) ; ACIT V . SA U RASHTRA KUTCH STOCK EXCHANGE LIMITED [2008] 30 5 ITR 227 (SC) ; AND M. VISVESVARAYA INDUSTRIAL RESEARCH & DEVELOPMENT CENTRE VS. ITAT & OTHERS [ 2001 ] 251 ITR 852 (BOM) (PAG ES 855 AND 856) AND 54 SOT 74 (AT PAGE 85). G ROUND NOT CONSIDERED IS ALSO A MISTAKE APPARENT FROM RECORD, FOR WHICH REFERENCE WAS MADE BY HIM TO THE DECISIONS IN THE CASE OF CIT V . KESHAV FRUIT MART [1993] 199 ITR 771 (ALL); COMMISSIONER OF INCOME TAX V. K .M. SUGAR MILLS (P . ) LTD. [2005] 275 ITR 247 (ALL) ; AND CIT VS. RAMESH C HAND MODI [2001] 249 ITR 323 (RAJ.) . IN KANSAI NEROLAC PAINT S. DY. CIT (IN ITA NO. 1030 OF 2011 DATED 06.05.2014/COPY ON RECORD), THE HONBLE JURISDICTIONAL COURT HELD THAT WHERE THER E WAS THE MATERIAL BEFORE THE TRIBUNAL TO DECIDE THE ISSUE, IT WOULD BE JUSTIFIED IN DECIDING THE SAME, RATHER THAN SETTING IT ASIDE TO THE FILE OF A LOWER AUTHORIT Y/S TO DECIDE AFRESH. 3 . 2 THE L D. DR, ON THE OTHER HAND, DID NOT RAISE ANY SPECIFIC OBJE CTION, BEING CONTEN T IN RELYING ON THE IMPUGNED ORDER , STATING THAT IT WAS A CONSIDERED DECISION BY THE T RIBUNAL, NOT LIABLE FOR ANY MODIFICATION WHATSOEVER. 4 . WE HAVE HEARD THE PARTIES AND PERUSED THE RELEVANT MATERIAL ON RECORD. 4.1 WE MAY, TO BEG I N W ITH, REPRODUCE THE RELEVANT G ROUNDS , AS UNDER: 4 MA NO. 126/MUM/2014 & ITA NO. 625/MUM/2012 (A.Y. 2009 - 10) MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY VS. DIT(E) GROUND I : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE DIRECTOR OF INCOME TAX (EXEMPTION) ('DIT(E)') ERRED IN WITHDRAWING THE REGISTRATION GRANTED U/S . 12A WITH RETROSPECTIVE EFFECT FROM A.Y. 2009 - 10 ON THE ALLEGED GROUND THAT THE ACTIVITIE S OF THE ASSESSEE WERE NOT FOR CHARITABLE PURPOSE CONSIDERING THE PROVISO TO SECTION 2(15) OF THE INCOME TAX ACT, 1961( THE ACT ). 2. HE FAILED TO APPRECIATE AND OUGHT TO HAVE HELD THAT THE POWER O F WITHDRAWAL U/S . 12AA(3) COULD ONLY BE ON VIOLATION OF TWO CONDITIONS STIPULATED UNDER THE SAID SECTION AND NOT OTHERWISE. 3. THE APPELLANT THEREFORE, PRAYS THAT IN ABSENCE OF SUCH VIOLATION, THE WITHDRAWAL OF REGISTRATION GRANTED U/S . 12A OF THE ACT B Y INVOKING POWERS U/S . 12AA(3) BE HELD AS AB - INITIO VOID AND BAD - I N - LAW. WITHOUT PREJUDICE TO GROUND I : GROUND II : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE DIT(E) ERRED IN HOLDING THAT THE INCOME FROM THE ACTIVITIES OF THE APPEL LANT OF GRANTING LOANS TO PUBLIC BODIES AND THE LEASING ACTIVITIES OF THE APPELLANT ARE BUSINESS ACTIVITIES AND ACCORDINGLY, PROVISO TO SECTION 2(15) APPLIES. 2. HE FAILED TO APPRECIATE AND OUGHT TO HAVE HELD THAT THE ACTIVITIES CARRIED OUT BY THE APPEL LANT ARE IN FULFILLMENT OF ITS OBJECTS AS REQUIRED BY THE STATUTE (MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY ACT, 1974) AND HENCE CANNOT BE HELD THAT SUCH ACTIVITIES AMOUNT TO CARRYING ON OF BUSINESS ACTIVITIES. . 3. THE APPELLANT THEREFORE PRAYS THAT IT BE HELD THAT THE PROVISION OF SECTION 2(15) DOES NOT APPLY TO THE APPELLANT AND ACCORDINGLY THE ACTIVITIES PER SE DOES NOT AMOUNT TO CARRYING ON ANY NATURE OF TRADE, COMMERCE OR BUSINESS, OR ANY ACTIVITY OF RENDERING ANY SERVICE IN RELATION TO ANY TRADE, COMMERCE OR BUSINESS. WITHOUT PREJUDICE TO GROUND I & II GROUND III 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE DIT(E) ERRED IN WITHDRAWING THE REGISTRATION GRANTED U/S 12A RETROSPECTIVELY FROM A.Y. 2009 - 10. 5 MA NO. 126/MUM/2014 & ITA NO. 625/MUM/2012 (A.Y. 2009 - 10) MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY VS. DIT(E) 2. THE APPELL ANT PRAYS THAT EVEN IF IT IS HELD THAT THE DIT(E) HAS VALIDLY WITHDRAWN THE REGISTRATION GRANTED U/S 12A OF THE ACT, SUCH ORDER OF WITHDRAWAL SHOULD BE APPLICABLE PROSPECTIVELY AND NOT RETROSPECTIVELY WITH EFFECT FROM APRIL 1, 2009. 4 . 2 THE ASSESSEES CA SE HAS , IN OUR VIEW , TWO PARTS TO IT . VIDE THE FIRST, THE ASSESSEE MAKES OUT A CASE THAT THE TRIBUNAL COULD NOT HAVE TRAVELED TO G ROUND 2, THE WITHOUT PREJUDICE GROUND, WITHOUT FIRST ANSWERING ITS G D . 1. IT WAS NOT OPEN FOR IT TO DO SO, IS THE ASSESSEES CA SE . THIS IS FOR THE SIMPLE REASON THAT BEING A LEGAL GROUND , WHERE DECIDED IN ITS FAVOUR , T HERE SHALL BE NO NECESSITY TO DECIDE G ROUND 2, CHALLENGING THE APPLICATION OF THE PROVISO TO SECTION 2(15), I.E., ON FACTS . IT WAS EVEN OTHERWISE INCUMBENT ON THE AS SESSEE TO ASSUME THE SAID GROUND , LEST IT BE ARGUED THAT THE ASSESSEE ADMITS THE APPLICATION OF PROVISO AND, THUS, SECTION 2(15) , TO IT. THE ARGUMENT S BY THE ASSESSEE DURING THE HEARING (OF THE APPEAL) QUA THIS GROUND WERE TOWARD THIS END, EVEN AS IT WAS I MPERMISSIBLE FOR THE TRIBUNAL TO PROCEED TO DECIDE G D . 2 WITHOUT FIRST ADJUDICATING G D . 1. TH I S ALSO BROADLY DEFINES THE ASSESSEES CASE. THE SECOND LIMB OF THE ASSESSEES ARGUMENT I S THAT T HE TRIBUNAL HAS IN TAKING UP THE ISSUE OF WITHDRAWAL OF REGISTRATI ON U/S.12AA(3), ON THE GROUND OF EITHER NON - GENUINENESS OF ITS ACTIVITIES OR NOT BEING CARRIED OUT IN ACCORDANCE WITH ITS O BJECT S , TRAVELED OUTSIDE THE SCOPE OF THE APPEAL AND, THUS, ACTED WITHOUT JURISDICTION. 4 . 3 THE DECISION OF THE T RIBUNAL IS CONT AI N ED AT PARA 5 O F ITS ORDER, WHICH READS AS UNDER: 5. THE ISSUE OF APPLICABILITY OR OTHERWISE OF SECTION 12AA(3) IN THE INSTANT CASE BEING FACTUALLY INDETERMINATE, W E ONLY CONSIDER IT FIT AND PROPER IN THE FACTS AND CIRCUMSTANCES OF THE CASE TO RESTORE THI S MATTER BACK TO THE LD. DIT(E) FOR ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY TO PRESENT ITS CASE IN THIS REGARD BEFORE HIM, TO BE DECIDED PER A SPEAKING ORDER AND IN ACCORDANCE WITH LAW. THE LD. DIT(E), THOUGH NOT RESTRICTED TO THE FACTS AND FIGURES FOR A PARTICULAR YEAR, SHALL RESTRICT HIS INQUIRY TO THE FACTUAL ASPECT OF THE CASE, I.E., QUA THE SATISFACTION OF THE CONDITION/S OF SECTION 12AA(3) ON FACTS. THAT IS, THE FACT THAT THE FIRST PROVISO TO SECTION 2(15) GETS ATTRACTED SHALL NOT INFLUENCE OR COLOUR THE LD. DIT(E)S FACTUAL FINDINGS NOR BY ITSELF BE CONSIDERED AS A GROUND FOR CONSIDERING THE ASSESSEES ACTIVITIES AS NOT 6 MA NO. 126/MUM/2014 & ITA NO. 625/MUM/2012 (A.Y. 2009 - 10) MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY VS. DIT(E) GENUINE OR NOT IN ACCORDANCE WITH ITS OBJECTS ; THE SAME BEING THE SUBJECT MATTER OF THE LEGAL ASPECT AFORE - NOTED . WE DO SO AS THE ASSESSEES CASE WOULD REQUIRE BEING EXAMINED BY THE TRIBUNAL THEREON ONLY IF THE SAME SURVIVES AN EXAMINATION ON FACTS, I.E., SATISFIES THE TEST OF S. 12AA(3) ON FACTS . WE DECIDE ACCORDINGLY. THE T RIBUNAL HAS, AS APPARENT, NOT DECIDE D G D .1 FOR THE RE ASON THAT I N ITS VIEW THE QUESTION AS TO WHETHER THE CONDITIONS F OR THE WITHDRAWAL OF REGISTRATION U/S.12AA(3) STANDS SATISF IED ARE NOT , I.E., DE HORS SECTION 2(15) , NEEDS TO BE DETERMINED FIRST. FINDING THE FACTS ON RECORD AS NOT LEADING TO THE SAID DETE RMINATION, IT RESTORED THE MATTER BACK TO FILE OF THE LD. DIT(E) . IT IS THIS DECISION THAT IS SOUGHT TO BE IMPUGNED AS WITHOUT JURISDICTION . FIRSTLY, THEREFORE, IT IS INCORRECT TO SAY THAT THE T RIBUNAL PROCEEDED TO DECIDE THE G D . 2 WITHOUT FIRST ADDRESSING G ROUND 1 . BOTH GD. 1 & 2 RELAT E TO DIFFERENT A S PECTS OF SECTION 2(15), AND HAVE NOT BEEN DECIDED BY THE T RIBUNAL , ALBEIT FOR DIFFERENT REASONS. IT CLEARLY STA TES THAT THE ISSUE OF APPLICATION (OR OTHERWISE) OF SECTION 2(15) SHALL NOT INFLUENCE THE DETERMIN ATION OF THE ISSUE AS TO WHETHER THE PRE CEDENT CONDITIONS OF SECTION 12AA(3) ARE, IN FACTS AND CIRCUMSTANCES OF THE CASE , MET OR NOT. THE ASSESSEES FIRST CHARGE IS, THUS, WITHOUT BASIS. 4 . 4 WE , NEXT , COME TO THE SECOND ASPECT OF THE MATTER, WHEREBY WITH REFERENCE TO SCOPE OF THE POWERS OF THE T RIBUNAL, ITS DECISION IS CHALLENGE D AS INC OMPETENT . THE T RIBUNAL S POWER I S , AGAIN WITH REFERENCE TO CASE LAW, PLEADED AS CON FIN E D TO THE GROUNDS OF APPEAL BEFORE IT, SO THAT THE T RIBUNAL S ACTION IN THE PRESENT C ASE IN TRAVELING OUTSIDE THE SPECIFIC GROUND S RAISE D BEFORE IT, EXCEEDED ITS JURISDICTION. THESE BEING RECTIFICATION PROCEEDINGS , SO THAT ANY CONTENT IOUS ISSUE IS PRECLUDED, WE SHALL , EVEN AS INDICATED DURING THE COURSE OF HEARING, STA TE THE POSITION OF LA W IN THE MATTER WITH REFERENCE TO THE DECISIONS BY THE A PEX C OURT , SETTLING THE SAME . I N THE CASE OF HUKUMCHAND MILLS LTD. VS. CIT [ 1 967 ] 63 ITR 232 (SC) , THE SUBJECT MATTER OF APPEAL , IN THE OPINION OF THE H ONBLE A PEX C OURT, WAS RIGHTLY DISCERNED BY THE T RIBUNAL AS THE WDV OF THE BUILDING, MACHINERY , ETC. OF THE ASSESSEE FOR CALCULATING THE DEPRECIATION ALLOWANCE U/S.10(2)(VI) OF THE ACT (INCOME T AX ACT , 1922). IT WAS CLARIFIED THAT IT WAS OPEN FOR THE R EVENUE TO RAISE A 7 MA NO. 126/MUM/2014 & ITA NO. 625/MUM/2012 (A.Y. 2009 - 10) MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY VS. DIT(E) CONTENTION IN THIS REGARD BEFORE T HE T RIBUNAL FOR THE FIRST TIME, SUPPORT ING THE FINDING OF THE APPELLATE ASSISTANT COMMISSIONER (AAC) O N ANY GROUND DECIDE D AGAINST IT. EVEN ASSUMING RULES 12 AND 27 OF THE APPELLATE TRIBUNAL RULES WERE NOT S TRICTLY APPLICABLE, THE SAME ARE PROCEDUR AL IN C H ARACTER AND NOT EX HAUSTIVE OF THE POWER S OF THE T RIBUNAL, SO THAT THEY DO NOT IN ANY W AY CIRCUM SCRIBE OR CONTROL ITS POWER U/S.33(4). THE T RIBUNAL WAS ACCORDINGLY WITHIN ITS JURISDICTION TO ENTERTAIN THE ARGUMENT AS TO DEPRECIATION AND DIRECT THE ITO TO FI ND WHETHER ANY DEPRECIATION WAS ACTUALLY ALLOW ED UNDER THE INDUSTRIAL TAX RULES AND , FURTHER, WHE THER SUCH DEPRECIATION SH OULD BE TAKEN IN THE CONSIDERATION FOR COMPUT ING THE WDV UNDER THE ACT. IN CIT VS. S. NELLIAPPAN [1967] 66 ITR 722 (SC), THE APEX CO URT AGAIN HAS CLARIFIED THAT IN DECIDING THE APPEAL, THE TRIBUNAL HAS NOT RESTRICTED TO THE GROUNDS SAID FORTH IN THE MEMORANDUM OF APPEAL OR TAKEN BY THE LEAVE OF THE TRIBUNAL. F OLLOWING THE SAID DECISION , THE APEX COURT IN CIT VS. ASSAM TRAVELS SHIPPING SERVICE [1 993 ] 199 ITR 1 (SC) CONFIRMED THE DECISION OF THE T RIBUNAL IN REMANDING THE MATTER BACK TO THE FILE OF THE AAC TO LEVY PENALTY IN ACCORDANCE WITH LAW , WHICH THE SAID AUTHORITY F OU ND TO HAVE BEEN LEVIED BY THE AO AT BELOW THE STATUTORY M INIMUM AMO UNT PRESCRIBED . THOUGH THE T RIBUNAL DID NOT HAVE POWER TO E NHANCE , IT WAS CERTAINLY COMP ETENT F OR IT TO REMAND THE MATTER BACK FOR THE P URPOSE TO THE FILE OF THE AAC , WHO HAD THE NECESSARY POWER BUT HAD DECLINED TO EXERCISE IT ON THE MISTAKEN GROUND THAT H E HAD NO SUCH POWER. THE PENALTY LEVIABLE IN ACCORDANCE WITH LAW WAS , THUS, CONFIRMED BY THE A PEX C OURT TO BE ISSUE BEFORE THE T RIBUNAL . IN MARTIN BURN LTD. VS. CIT [ 1993 ] 199 ITR 606 (SC) , THE ACTION OF THE T RIBUNAL IN REMANDING THE MATTER BACK TO THE A CIT FOR PASSING ORDER U/S.263 AFTER MAKING FURTHER INVESTIGATION WAS UPHELD. THE QUESTION ARISING BEFORE THE TRIBUNAL WAS PERCEIVED AS NOT LIMITED TO WHAT HAD BEEN CONSIDERED BY THE CIT, BUT AS ALSO WHAT HAD NOT BEEN, BUT OUGHT TO HAVE BEEN , IN THE EXERCIS E OF HIS POWER IN THE MATTER. IN CIT VS. NATIONAL TAJ TRADERS [ 1980 ] 121 ITR 535 (SC), THE A PEX C OURT CLARIFIED THAT THE TIME LIMIT OF TWO YEARS PRESCRIBED FOR PASSING AN ORDER U/S.33B BY THE CIT (CORRESPONDING TO SECTION 263 OF THE 8 MA NO. 126/MUM/2014 & ITA NO. 625/MUM/2012 (A.Y. 2009 - 10) MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY VS. DIT(E) ACT), IS ONLY FOR SUO M OT U REVISION ORDERS PASSED BY THE SAID AUTHORIT Y, AND NOT APPLICABLE TO THAT PASSED ON THE DIRECTION BY THE T RIBUNAL. THE HONBLE JURISDICTIONAL HIGH COURT IN UGAR SUGAR WORKS LTD. [ 1983 ] 141 ITR 326 (BOM) EXPLAINED THAT TH E POWER OF THE T RIBUNAL IS NOT CO NFINED TO THE GROUNDS OF APPEAL RAISED BEFORE IT BUT TO THE SUBJECT MATTER OF THE APPEAL . THE DECISION, EXPRESS OR IMPLIED, OF THE AAC , IS THE SUBJECT MATTER OF APPEAL, AND TO WHICH THEREFORE THE POWER OF THE TRIBUNAL IS RESTRICTED TO . SUBSEQUENTLY, THE H ONBLE COURT, VIDE ITS FULL BENCH DECISION IN THE CASE OF AHMEDABAD ELECTRICITY CO. LTD. VS. CIT [1993] 199 ITR 351 (BOM) (FB), UPON AN EXTENSIVE REVIEW OF PRECEDENTS, CLARIFIED THAT THE POWER OR PURVIEW OF THE TRIBUNAL SHALL, AS IN THE CASE OF FIRST APPEL LATE AUTHORITY, EXTEND TO THE WHOLE ASSESSMENT, AND IS NOT CONFINED TO MATTERS RAISED BY THE ASSESSEE; THE WHOLE PREMISE OF THE APPELLATE PROCEDURE UNDER THE ACT BEING ASCERTAINMENT OF THE CORRECT TAX LIABILITY OF THE ASSESSEE, I.E., IN ACCORDANCE WITH TH E LAW. THE SUBJECT MATTER OF APPEAL WAS, IN ITS VIEW, TO BE CONSTRUED AS THE SUBJECT MATTER OF THE ASSESSMENT. REFERENCE IN THIS CONTEXT MAY ALSO BE MADE TO ITS DECISION IN THE CASE OF CIT VS. PARTHASARATHY [1995] 125 CTR 17 4 (MAD) . THE T RIBUNAL IS , THUS, FULLY EMPOWER ED IN LAW TO FRAME ISSUE / S R A ISING DIFFERENT ASPECT /S OF THE MATTER BEFORE IT , DECIDED EXPRESSLY OR IMPLIEDLY BY THE AUTHORITIES BELOW , WHOSE ORDERS ARE UNDER CHALLENGE BEFORE IT , I.E., IS THE SUBJECT MATTER OF THE TAX PROCEEDINGS . 4 . 5 THE N EXT QUESTION BEFORE US IS WHETHER THE WITHDRAWAL U/S.12AA(3), I.E., DE HORS SECTION 2(15) , WAS OR COULD BE CONSIDERED AS ARISING OUT OF THE ORDER UNDER APPEAL BEFORE THE T RIBUNAL. TOWARD TH I S, WE HAVE PER USED THE ASSESSEES REPLY , TO THE SHOW CAUSE NOTICE; THE ORDER U/S. 12AA(3) , AND THE ASSESSEES ARGUMENTS BEFORE US ; THE SHOW CAUSE NOTICE ISSUED BY THE L D. DIT(E) (PB P AGE 40 ) BEING NOT REFERRED TO DURING THE COURSE OF HEARING (OF THE APPEAL) AND, THUS, NOT A PART OF THE T RIBUNAL S RECORD (REFER RULE 18(6) OF THE APPELLATE TRIBUNAL RULES). A FAIR READING OF THE SAID ORDER; WE BEING ACUTEL Y CONSCIOUS THAT THESE ARE RECTIFICATION PROCEEDINGS, REVEALS THAT THE ONLY ISSUE ARISING BEFORE THE T RIBUNAL WA S THE INVOCATION OF SECTION 12AA(3) CONSEQUENT TO THE FINDIN G OF THE 9 MA NO. 126/MUM/2014 & ITA NO. 625/MUM/2012 (A.Y. 2009 - 10) MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY VS. DIT(E) APPLICATION OF PROVISO TO SECTION 2(15). THE ISSUE , WHICH THE TRIBUNAL CONSIDERED AS THE SECOND LIMB OF THE MATTER BEFORE IT, I.E ., THE APPLICATION OF S. 12AA(3) INDEPENDENT OF S. 2(15), WAS THUS NOT A SUBJECT MATTER OF APPEAL, AND THE T RIBUNAL HA D WRONGLY ASSUMED JURISDICTION IN ITS RESPECT . THE T RIBUNAL , AS IT APPEARS TO US , WAS MOVED BY THE ASSESSEES REPLY BEFORE THE LD. DIT(E), STATING ITS ACTIVITIES AS GENUINE AND CARRIED OUT IN ACCORDANCE WITH IT O BJECTS (PB P GS . 41 - 55 ) AS WELL AS ITS ARGUME NT BEFORE IT TO THE SAME EFFECT (REFER PARA 3.2 OF THE IMPUGNED ORDER). HOWEVER, NOT WITHSTANDING T HE ASSESSEES ARGUMENTS AND PLEADINGS, THE SUBJECT MATTER OF APPEAL CANNOT EXCEED THE VERY BASIS ON WHICH SECTION 12AA(3) IS SOUGHT TO BE INVOKED BY THE REVEN UE IN THE PRESENT CASE, I.E., ATTRACTION OF SECTION 2(15) , AND WHICH SHALL COMPRISE THE SUBJECT MATTER OF APPEAL , OR THE CONTROVERSY ATTENDING IT. WHE THER THE SAME IS , IN FACT , ATTRACTED OR NOT , IS AGAIN A PART THERE OF - THE SAID BASIS - SPECIFICALLY COVER ED BY THE ASSESSEES G D . 2. N O DOUBT, THE R EVENUE IS NOT BARRED IN LAW FROM RAISING, AND IS AT LIBERTY TO RAISE , THE SAID ISSUE I N ANOTHER PROCEEDINGS, EVEN AS ARGUED BEFORE US BY THE LD. AR; THERE BEING EVEN OTHERWISE NO ESTOPPEL AGAINST LAW. BUT , ON A FA IR LOOK AT THE ORDER U/S. 12AA(3) , DO ING SO IN THE INSTANT PROCEEDINGS, I.E., THE APPELLATE PROCEEDINGS BEFORE THE T RIBUNAL , WOULD AMOUNT TO EXTENDING THE SCOPE THEREO F INASMUCH AS THE SAME NOT CONTEMPLATED BY THE SAID ORDER . THE T RIBUNAL HAD CLEARLY EXCEE DED ITS JURISDICTION IN DIRECTING IN T HE MANNER IT DOES PER PARA 5 O F ITS ORDER. THE SAID DIRECTIONS ARE THEREFORE, MISTAKE N, AND ARE HEREBY WITHDRAWN . THE IMPUGNED ORDER IS ACCORDINGLY RECALLED FOR DECI DING THE ASSESSEES GD S . I & II. WE DECIDE ACCORDINGL Y. 5 . THE NEXT QUESTION THAT CONFRONTS IS AS TO H OW TO P ROCEED IN THE MATTER TO DECIDE THE PRESENT APPEAL, I.E., GIVEN OUR ADMISSION OF A MISTAKE APPARENT FROM RECORD AND, CONSEQUENTLY, THE WITHDRAWAL AFORE - STATED, WHICH IN FACT CONSTITUTED THE TRIBUNAL S DECISION , SO THAT IT IS ALSO INCORRECT TO STATE THAT THE SAME DID NOT CONS TITUTE A DECISION. THOUGH OF NO CONSEQUENCE IN VIEW OF OUR ACCEPTANCE OF A MISTAKE BY THE TRIBUNAL IN INFERRING THE SUBJECT MATTER OF APPEAL , THE ASSESSEE HAV ING RELIED ON KANSAI NEROLAC PAINT (SUPRA) TOWARD THE SAME, WE MAY MEET THE SAID RELIANCE . T HE SAID DECISION IS DISTINGUISHABLE INASMUCH AS IN THAT CASE THE T RIBUNAL DECIDED LIKEWISE, RESTORING THE 10 MA NO. 126/MUM/2014 & ITA NO. 625/MUM/2012 (A.Y. 2009 - 10) MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY VS. DIT(E) MATTER BACK TO THE FILE OF THE FIRST APPELLATE AUTHORITY, MERELY FOR THE REASON OF THE RELEVANT ISSUE HAVING NOT BEEN DECIDED BY THE AUTHORITIES BELOW. IT IS I N TH O S E CIRCUMSTANCES THAT THE H ONBLE C OURT HELD THAT THE ISSUE BEFORE THE T RIBUNAL BEING ONLY A LEGAL ISSUE , WITH ALL THE FACTS ON RECORD, IT OUGHT TO HAVE DECIDE D THE SAME I TSELF RATHER THAN BY RESTORING THE MATTER BACK. BY IMPL ICATION , EVEN IF , THEREFORE, THE TWO DOCUMENTS ON WHICH RELIANCE WAS PLACED BY THE ASSESSEE IN THAT CASE REMAIN ED TO BE VERIFIED, THE T RIBUNAL COULD HAVE MADE ITS DECISION IN THE SAID CASE AS SUBJECT T O THE VALIDITY, I.E., THE VERACITY OF THE SAID DOCUMENTS, BY THE REVENUE. IN THE PRESENT CASE, ON THE CONTRARY, RESTORATION BY THE T RIBUNAL WAS AFTER CONSIDERATION THE FACTS OF THE CASE, FINDING THE FACTS ON RECORD AS INDETERMINATE , SO THAT IT CANNOT BE SA ID THAT ALL THE FACTS ARE ON RECORD OR ESTABLISHED. THE SAID DECISION WOULD THUS BY ITSELF BY OF NO CONSEQUENCE IN THE INSTANT CASE. ORDER U/S. 254(1) 6 . CONTINUING FURTHER, TH I S , THEREFORE, LE A VES US TO DECIDE THE ASSESSEES , I.E., APPEAL GROUNDS 1 AND 2 , BOTH WITHOUT PREJUDICE TO THE OTHER. THE PARTIES HAVING DURING THE COURSE OF THE HA V ING A CCORDED CON SE N T TO OUR DECID ING THE SAME, I.E., RATHER THAN BEING HEARD AGAIN ; THE APPEAL HAVING BEEN HEARD AT LENGTH IN THE FIRST INSTAN CE , WE PROCEED TO DECIDE T HE SAID GROUNDS. THE ASSESSEE IN THIS REGARD CLAIMS THAT ITS G ROUND # 1 WOULD F A L L TO BE DECIDED FIRST INASMUCH AS IF DECIDE D IN ITS FAVOUR, G ROUND # 2 SHALL BECOME REDUNDANT . T RUE , B U T THEN , EQUALLY, G ROUND # 1 SHALL ARISE FOR CONSIDERATION ONLY IT IS F OU N D AS A FACT THAT SECTION 2(15) IS APPLICABLE THERETO. IT IS POINTLESS TO DECIDE G ROUND 1 , I.E., THE IMPACT OF SECTION 2(15) ON REGISTRATION OF AN ENTITY AS A CHARITABLE INSTITUTION, WITHOUT FIRST CONSIDERIN G IF SECTION 2(15) , INCLUDING PROVISO THERETO , IS AT ALL AT TRACTED IN THE FACTS OF THE CASE. WE SHALL , THEREFORE, PROCEED TO DECIDE G ROUND # 2 FIRST. SECTION 2(15) READS AS UNDER : DEFINITIONS. 2 . IN THIS ACT, UNLESS THE CONTEXT OTHERWISE REQUIRES, - (1) .. (2) (15) CHARITABLE PURPOSE INCLUDES RE LIEF OF THE POOR, EDUCATION, MEDICAL RELIEF, PRESERVATION OF ENVIRONMENT (INCLUDING WATERSHEDS, FORESTS AND WILDLIFE AND PRESERVATION OF MONUMENTS OR PLACES OR OBJECTS OF ARTISTIC OR 11 MA NO. 126/MUM/2014 & ITA NO. 625/MUM/2012 (A.Y. 2009 - 10) MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY VS. DIT(E) HISTORIC INTEREST, AND THE ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUB LIC UTILITY. PROVIDED THAT THE ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUBLIC UTILITY SHALL NOT BE A CHARITABLE PUROSE, IF IT INVOLVES THE CARRYING ON OF ANY ACTIVITY IN THE NATURE OF TRADE, COMMERCE OR BUSINESS, OR ANY ACTIVITY OF RENDERING ANY SERVICE IN RELATION TO ANY TRADE, COMMERCE OR BUSINESS, FOR A CESS OR FEE OR ANY OTHER CONSIDERATION, IRRESPECTIVE OF THE NATURE OF USE OR APPLICATION, OR RETENTION, OF THE INCOME FROM SUCH ACTIVITY: PROVIDED FURTHER THAT THE FIRST PROVISO SHALL NOT APPLY, IF THE AGGREGATE VALUE OF THE RECEIPTS FROM THE ACTIVITIES REFERRED TO THEREIN IS TWENTY - FIVE LAKH RUPEES OR LESS IN THE PREVIOUS YEAR; 7 . THE ASSESSEES PRINCIPAL OBJECT IS THE DEVELOPMENT OF THE MUMBAI METROPOLITAN REGION ACCORDING TO THE REGIONAL PLAN. T HE SAME INVOLVES A NUMBER OF INTERRELATED ACTIVITIES, VIZ. REVIEW OF PLANS PHYSICAL, ECONOMIC AND FINANCIAL; PROJECTS OR SCHEMES OF DEVELOPMENT (INCLUDING PREPARATION THEREOF); THEIR EXECUTION, SUPERVISION, FINANCING, AS WELL AS CO - COORDINATING THE EXECU TION AMONGST, AND RENDERING ADVISE TO, DIFFERENT AUTHORITIES ENGAGED IN FORMULATION AND UNDERTAKING SUCH SCHEMES IN DIFFERENT AREAS, VIZ. AGRICULTURAL, HORTICULTURAL, DIARY, FISHERY, CATTLE BREEDING, ETC. IF THIS IS NOT AN ECONOMIC ACTIVITY, CARRIED ON IN AN ORGANIZED MANNER, WHAT WE WONDER IT IS ? IT IS ALSO NOT THE CASE THAT THE ASSESSEE DOES NOT CHARGE ANY SUM FOR ITS ACTIVITIES . THAT IS , GENERATES REVENUE THERE - FROM . THE EXPRESSION BUSINESS IS WELL KNOWN IN THE INCOME - TAX LAW, BEING IN FACT DEFINED U /S.2(13) THEREOF TO INCLUDE TRADE, COMMERCE OR MANUFACTURE OR ANY ADVENTURE OR CONCERN IN RELATION THERETO. AS OBSERVED BY THE APEX COURT AS FAR BACK AS IN NARAIN SWADESHI WEAVING MILLS VS. COMMISSIONER OF EXCESS PROFITS TAX [1954] 26 ITR 765 (SC), THE WOR D BUSINESS CONNOTES SOME REAL, SUBSTANTIAL AND SYSTEMATIC OR ORGANIZED COURSE OF ACTIVITY OR CONDUCT WITH A SET PURPOSE. IT GOES ON TO EXPLAIN THAT EVEN A SINGLE AND ISOLATED TRANSACTION IS CONCEIVABLY CAPABLE OF FALLING WITHIN THE DEFINITION OF BUSINES S AS BEING AN ADVENTURE IN THE NATURE OF TRADE PROVIDED THE TRANSACTIONS BEARS CLEAR INDICIA OF TRADE (PG. 773 ). T HE PRINCIPLE/S OF LAW BEING CLEAR, T HE DETERMINATION R ESTS ON THE FINDING /S OF FACT, WHICH IS TO BE ARRIVED AT BY TAKING THE TOTALITY OF THE F ACTS AND CIRCUMSTANCES INTO ACCOUNT. AS EXP LAINED, BUSINESS IS A TERM OF WIDE IMPORT, 12 MA NO. 126/MUM/2014 & ITA NO. 625/MUM/2012 (A.Y. 2009 - 10) MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY VS. DIT(E) ENCOMPASSING WITHIN IT THE DIFFERENT FORMS AND SHADES OF TRANSACTIONS, VIZ . TRADE, COMMERCE, ETC., WHICH ARE AGAIN TERMS OF CONSIDERABLE AMPLITUDE. THE IMPORT OR EVEN T HE COMM ON PARLANCE MEANING OF ALL THESE TERMS IS NOT IN DISPUTE OR IN DOUBT. REFEREN CE IN THIS CONTEXT MAY BE MADE INTER ALIA TO DECISIONS IN THE CASE OF BENGAL & ASSAM INVESTORS LTD. V. CIT [1966] 59 ITR 547 (SC); KHAN BAHADUR AHMED ALLADIN & SONS V. CIT [1968] 68 ITR 573 (SC); P.M. MOHAMMED MEERA KHAN V. CIT [1969] 73 ITR 735 (SC); KARAM CHAND THAPAR & BROS. (P) LTD. VS. CIT [1971] 82 ITR 899); D ALMAI CEMENT LTD. V. CIT [1976] 105 ITR 633 (SC), BESIDES SEVERAL BY THE HIGH COURTS, AS RECENTLY IN INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA (ICAI) V. DIRECTOR GENERAL OF IT [2012] 347 ITR 99 (DEL), WHERE THE TERM HAS BEEN ELUCIDATED BY THE HONBLE COURTS. THE LANGUAGE OF PROVISO TO SECTION 2(15) EXTENDS TO ANY ACTIVITY THAT MAY BE IN THE NATURE OF TRADE, COM MERCE OR BUSINESS ALL TERMS OF WIDE AMPLITUDE, OR ANY ACTIVITY OF RENDERING ANY SERVICES IN RELATION TO THE SAME. WE, ACCORDINGLY, HAVE NO HESITATION IN HOLDING THAT THE ASSESSEES ACTIVITIES ARE COVERED BY THE PROVISO TO SECTION 2(15); THE GROSS RECEIPT FOR THE CURRENT YEAR EXCEEDING THE MINIMUM THRESHOLD LIMIT WHICH EXCEEDS THE APPLICATION OF THE FIRST PROVISO . GROUND 2 OF THE ASSESSEE IS, THUS, STAND DECIDED AGAINST IT. 8 . WE MAY NEXT PROCEED TO DECIDE THE ASSESSEES G ROUND # 1, RAISING THE ISSUE OF T HE LEGAL CONSEQUENCE / S OF THE APPLICABILITY OF PROVISO TO SECTION 2(15) ON THE REGISTRATION OF AN ENTITY A S A CHARITABLE INSTITUTION. THE ARGUMENTS OF BOTH THE PARTIES STAND LISTED IN DETAIL AT PARA S 3.1 TO 3.4 O F THE ORDER DATED 31 . 12 . 2013, WHICH WOULD CO NTI NUE TO HOLD , AND SHALL THEREFORE F O RM PART OF THIS ORDER, AS INDEED SHALL THE OTHER PART S OF THIS ORDER , SAVE AS NOT SPECIFICALLY MODIFIED OR WITHDRAWN PER THIS ORDER . BOTH THE P A R TIES HAVE, AS SHALL BE EVIDENT THERE - FROM (REFER PARA S 3. 1 & 3.4 ) RELIED ON SEVERAL DECISIONS BY THE T RIBUNAL. NO DOUBT, THE ASSESSEE HAS RELIED ON ONE DECISION BY THE H ONBLE H IGH C OURT [ CIT V. SARVYODAYA ILAKKIYA PANNAI [2012] 343 ITR 300 (MAD)] , BUT THEN THE SAID DECISION STAND S ALSO CONSIDERED BY THE T RIBUNAL IN THE CASE OF ENTERTAINMENT SOCIETY OF GOA V. CIT [2013] 23 ITR (TRIB) 636 (PANAJI) , RELIED UPON BY THE REVENUE, HOLDING , WITH REFERENCE TO DECISION BY THE H ONBLE J URISDICTION AL H IGH C OURT IN CIT V. THANE ELECTRIC ITY SUPPLY LTD . 13 MA NO. 126/MUM/2014 & ITA NO. 625/MUM/2012 (A.Y. 2009 - 10) MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY VS. DIT(E) [1994] 206 ITR 727 (BOM) , THE DECISION BY THE NON - JURISDICTIONAL H IGH C OURT AS NOT BINDING. THE RULE OF PRECEDENCE, IN CASE OF CONFLICTING VIEWS BY THE HIGH COURTS, NONE OF WHICH IS JURISDICTIONAL, IS FOR THE TRIBUNAL TO FOLLOW THAT WHICH APPEALS TO ITS CONSCIOUS I N OUR CONSIDERED OPINION, THE REFORE, THE APPROPRIATE COURSE UNDER THE CIRCUMSTANCES , EVEN AS INDICATED DURING THE HEARING IN THE INSTANT PROCEEDINGS TO NO OBJECTION BY EITHER PARTY, IS THAT THE MATTER BE REFERRED TO THE H ONBLE PRESIDENT OF THE TRIBUNAL FOR CONSTITUT ING A LARGER B EN CH OF THE T RIBUNAL TO DECIDE TH E HIGHLY CONTENTI OUS ISSUE RAISED BY THE ASSESSEES G ROUND N O.1 , DECIDE D DIFFERENTLY BY DIFFERENT COORDINATE B ENCH ES OF TH IS T RIBUNAL , FOR UNIFORM APPLICATION ACROSS THE TRIBUNAL, OF COURSE AFTER HEARING THE PARTIES. THE STAT EMENT OF THE CASE FOR THE PURPOSE OF THE SAID REFERENCE , IS IN OUR VIEW AS LISTED PER PARA 3 OF THE TRIBUNAL S ORDER DATED 31.12. 2013 , DELINEATING THE RESPECTIVE CASES OF BOTH THE SIDES. THE LARGER B ENCH OF THE T RIBUNAL, IN THE CASE THE REFERENCE MA DE HERE BY IS ACCEPTED BY THE H ONBLE PRESIDENT , SHALL , APART FROM THE OTHER ARGUMENTS AND CASE LAW AS MAY BE CANVASSED BEFORE IT BY THE PARTIES, CONSIDER THE SAME. WE SUPPORT OUR DECISION FOR THE REFERENCE AFORESAID , APART FROM THE CLEAR PROVISION OF SECTION 255( 4) OF THE ACT, ON THE SETTLED LAW ON PRECEDENCE AS EXPLAINED BY SEVERAL CELEBRATED DE CISION S IN THE HIGHER COURTS OF LAW, AS FOR EXAMPLE IN THE CASE OF CIT V. B.R. CONSTRUCTIONS [1993] 202 ITR 222 (AP) (FB) . 9 . WE ARE UNABLE TO UNDERSTAND THE IMPORT OF TH E ASSESSEES GROUND III, RAISED WITHOUT PREJUDICE TO ITS G ROUNDS I & II, IN - AS - MUCH AS THE COMPETENT AUTHORITY HAD WITHDRAWN THE APPROVAL U/S.12AA(3) ONLY WITH EFFECT FROM A.Y. 2009 - 10, THE CURRENT YEAR. AS REGARDS THE RETROSPECTIVE APPLICATION OF THE SAID PROVISION, THE SAME STANDS DECIDED BY THE TRIBUNAL VIDE PARA 4.1 O F ITS ORDER DATED 31.12.2013 WITH REFERENCE TO THE BINDING DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT, AND QUA WHICH THE ASSESSEE HAS NOT R AISED ANY OBJECTION PER ITS MA. THE SAME SH ALL, THEREFORE, OBTAIN . NO GROUND QUA THE NON - ADJUDICATION OF ITS GD. III HAS BEEN TAKEN BY THE ASSESSEE EITHER PER ITS MA OR DURING THE COURSE OF ITS ARGUMENT S BOTH IN THE APPELLATE AS WELL AS THE RECTIFICATION PROCEEDINGS. WE HOLD ACCORDINGLY. 14 MA NO. 126/MUM/2014 & ITA NO. 625/MUM/2012 (A.Y. 2009 - 10) MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY VS. DIT(E) 1 0 . TH E MATTER IS ACCORDINGLY REFERRED TO THE HONBLE PRESIDENT FOR CONSTITUTING A LARGER BENCH TO DECIDE THE ASSESSEE S G ROUND I . WE DECIDE ACCORDINGLY. 11. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPLICATION IS ALLOWED, WHILE THE ASSESSEES APPEAL IS DISP OSED OF ON THE AFORE - SAID TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 10 , 201 5 SD/ - SD/ - ( D. MANMOHAN ) (S ANJAY ARORA) / VICE PRESIDENT / A CCOUNTANT MEMBER MUMBAI ; DATED : 10 .04.2015 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE AP PLICANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI