M/s. Sinhagad Technical Education Society, Pune V. Deputy Commissioner of Income tax, Pune

MA 219/PUN/2022

AI Insights

The case involves M/s. Sinhagad Technical Education Society, which filed Miscellaneous Applications seeking recall of an order passed by the Income Tax Appellate Tribunal concerning the assessment years 2008-09 to 2014-15. The applications were based on grounds that certain issues were left un-adjudicated in the original order. The Tribunal examined the applications in light of a substantial question of law admitted by the Bombay High Court and found that the issues were debatable and thus not eligible for rectification under section 254(2) of the Income Tax Act. Consequently, all the applications were dismissed.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 137094 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-04-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-04-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 02-08-2022
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; Maximum Marginal Rate; Question of law
• Section: 56; 11; 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “A”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S. S. VISWANETHRA RAVI, JUDICIAL MEMBER M.A. Nos.214 to 220/PUN/2022 (Arising out of IT(SS)A Nos.44 to 50/PUN/2017) िनधाᭅरण वषᭅ / Assessment Years : 2008-09 to 2014-15 M/s. Sinhagad Technical Education Society, S.No.44/1, Vadgaon (Bk.), Off. Sinhgad Road, Pune- 411041. PAN : AABTS9900Q Vs. DCIT, Central Circle-2(2), Pune. Appellant Respondent आदेश / ORDER PER INTURI RAMA RAO, AM: These are the Miscellaneous Applications filed by the assessee seeking the recall of order passed by this Tribunal in IT(SS)A Nos.44 to 50/PUN/2017 for A.Ys. 2008-09 to 2014-15 dated 01.04.2022 on the ground that the following grounds of appeal remain un-adjudicated by this Tribunal :- “a. Ground No.1 of Concise Grounds of Appeal Assessee by : Shri Suhas P. Bora Revenue by : Shri Ganesh B. Budruk Date of hearing : 21.04.2023 Date of pronouncement : 24.04.2023 MA Nos.214 to 220/PUN/2022 2 On the facts and in the circumstances of the case CIT(A) has grossly erred in overlooking the fact that the assessment of this Assessment Year having been completed in the past u/s 143(3), it doesn’t get abated and consequently original assessment cannot be tampered and addition can be made only on the basis of assessment year specific incriminating documents found in the course of search. b. Ground No.8 of Concise Grounds of Appeal On the facts and in the circumstances of the case and without prejudice to the above, the CIT(A) has erred in not only holding the acceptance of capitation fees but further erred in sustaining and taxing the alleged amount of Rs 24.20 crores siphoned by Mr. M N Navale in his hands on substantive basis erroneously relying on the provisions of section 56 overlooking the fact that these provisions do not apply to the appellant and therefore such sustaining and taxing again on substantive basis in the hands of the appellant accounts to double taxation.” 2. When the Miscellaneous Petitions were called on, ld. AR submits that in appeal filed u/s 260A of the Income Tax Act, 1961 (‘the Act’) before the Hon’ble High Court of Judicial at Bombay, the following substantial question of law has been admitted :- “1. Whether in the facts and circumstances of the case and in law, the ITAT was right in holding that receipt of fee in the nature of capitation fee by the Appellant Trust in excess of the permissible fee would rendered the Appellant Trust ineligible for deduction under Section 11 of the Income Tax Act, 1961? 2. Whether in the facts and circumstances of the case and in law the ITAT was right in holding that the whole of the income of the Appellant Trust was liable to be taxed at the maximum marginal rate contrary to Section 164(2) of the Income Tax Act, 1961?” 3. Therefore, ld. AR submits that the grounds of appeal no.1, which is sought to be rectified in the present Miscellaneous MA Nos.214 to 220/PUN/2022 3 Petitions, the Hon’ble Bombay High Court had framed the substantial question of law (extracted above) and submits that ground of appeal no.8 remain unadjudicated. 4. We heard the rival submissions and perused the material on record. We had carefully gone through the order of the Hon’ble Bombay High Court, we find that when the Hon’ble High Court had framed the substantial question of law on the grounds based on which the rectification order was sought by the assessee trust, it indicates the existence of debate on the issues which are sought to be rectified. It is well settled position of law that the issues which are debatable questions cannot be subject matter of rectification u/s 254(2) of the Act. Hence, the ground of appeal no.1 raised by the assessee in the Miscellaneous Petitions stands dismissed. 5. As regards to the ground of appeal no.8, this Tribunal had disposed of the ground of appeal no.8 vide para 34 of the impugned order, which are as under :- “34. The ground no.8 challenges the findings of the lower authorities that the appellant society violated the provisions of section 13(1)(c) of the Act. It is unnecessary to deal with this ground of appeal for the reasons that in the foregoing paragraphs, we held that the appellant’s income is not eligible for exemption u/s 11 of the Act for the breach of trust committed by the management by diverting the income of the appellant society to their personal enrichment. Thus, we uphold the MA Nos.214 to 220/PUN/2022 4 denial of exemption u/s 11 of the Act. This ground of appeal 8 becomes academic.” 6. Thus, this ground of appeal no.8 was disposed by this Tribunal on merits and it cannot be reviewed in the guise of rectification of the mistake. Hence, the ground of appeal no.8 raised by the assessee in the Miscellaneous Petitions stands dismissed. 7. In the results, all the above captioned seven Miscellaneous Applications filed by the assessee stands dismissed. Order pronounced on this 24 th day of April, 2023. Sd/- Sd/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 24 th April, 2023. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A)-12, Pune. 4. The Pr. CIT Central, Pune. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “A” बᱶच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.