Commissioner of Income-tax -1, (Exemptions), Pune V. S E T U., Ahmednagar

MA 30/PUN/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5506 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 30-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARI KRISHAN
• Keywords: Opportunity of being heard; Question of law
• Section: 12A; 12AA; 12; 11

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO, AM M.A. NO.30/PUN/2019 (ARISING OUT OF ITA NO.1610/PUN/2014) ASSESSMENT YEAR : N.A. CIT-1 (EXEMPTIONS), PUNE. . /APPELLANT VS. SETU AHMEDNAGAR, C/O COLLECTOR OFFICE COMPOUND, AHMEDNAGAR. PAN : AAHTS3279C . / RESPONDENT / RESPONDENT BY : SHRI PANKAJ GARG / APPELLANT BY : SHRI HARI KRISHAN / DATE OF HEARING : 26.07.2019 / DATE OF PRONOUNCEMENT: 19.08.2019 / ORDER PER D. KARUNAKARA RAO, AM : THE REVENUE FILED THE PRESENT MISCELLANEOUS APPLICATION AND THE SAME ARISES FROM THE ORDER OF THE TRIBUNAL IN ITA NO.1610/PUN/2014 DATED 25.04.2018. 2. IN THIS CASE, THE ASSESSEE FILED AN APPLICATION FOR REGISTRATION U/S 12AA OF THE ACT ORIGINALLY ON 04.05.2006. HOWEVER, NO ORDER WAS PASSED BY THE CONCERNED CIT WITHIN SIX MONTHS FROM THE DATE OF THE SAID APPLICATION. SUBSEQUENTLY, ACTING ON THE DUPLICATE OF THE SAID APPLICATION DATED 16.03.2009 FILED ON 31.01.2009, THE REGISTRATION U/S 12AA OF THE ACT WAS GRANTED PROSPECTIVELY FROM THE SAID DATE OF APPLICATION INSTEAD OF W.E.F. 04.05.2006. THE CIT IGNORED THE FACT THAT THE APPLICATION DATED 16.03.2009 IS NOTHING BUT TRUE COPY OF THE EARLIER APPLICATION DATED M.A. NO.30/PUN/2019 2 04.05.2006. ON THESE FACTS, THE TRIBUNAL ORIGINALLY ALLOWED THE APPEAL OF THE ASSESSEE. WHILE GIVING EFFECT TO THE SAID ORDER OF THE TRIBUNAL (SUPRA), THE CIT GRANTED REGISTRATION AND HOWEVER, COMMENTING ON THE ORIGINAL APPLICATION DATED 04.05.2006, THE CIT MENTIONED THAT THE SAID APPLICATION CONSTITUTES REDUNDANT. IN EFFECT, THE ASSESSEE DOES NOT HAVE THE BENEFITS OF REGISTRATION FROM THE DATE OF ORIGINAL APPLICATION TILL THE DUPLICATE APPLICATION DATED MARCH, 2009. 3. AGGRIEVED WITH THE SAME, THE ASSESSEE FILED THE APPEAL VIDE ITA NO.1610/PUN/2014. THE TRIBUNAL CONSIDERED THE ASSESSEES REQUEST FOR REMANDING THIS ISSUE TO THE FILE OF THE CIT FOR FRESH ADJUDICATION AND FOR WANT OF A SPEAKING ORDER OF THE ISSUE OF REDUNDANCY OF THE ORIGINAL APPLICATION DATED 04.05.2006. ON THE FATE OF THE ORIGINAL APPLICATION DATED 04.05.2006, THE TRIBUNAL ALSO NOTED THE FACT THAT THE CIT NEEDS TO PASS A REPEATING ORDER ON SAID ORIGINAL APPLICATION. CONSIDERING THE APEX COURT JUDGMENT IN THE CASE OF CIT VS. SOCIETY FOR THE PROMOTION OF EDUCATION IN CIVIL APPEAL NO.1478 OF 2016 (RELATING TO DEEMED REGISTRATION) AND ALSO OTHER DECISION OF THE TRIBUNAL, THE MATTER STANDS REMANDED FOR FRESH ADJUDICATION. 4. THE RELEVANT LINES FROM THE SAID ORDER OF THE TRIBUNAL (SUPRA) ARE EXTRACTED AS UNDER :- THEREFORE, WE FIND IT RELEVANT TO DIRECT THE CIT-1, PUNE TO CONSIDER THE SAID JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. SOCIETY FOR THE PROMOTION OF EDUCATION (SUPRA) AS WELL AS THE DECISIONS OF THE TRIBUNAL AND ADJUDICATE THE ISSUE AFTER GRANTING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS SETTLED LEGAL ISSUE THAT THE CIT IS UNDER OBLIGATION TO PASS AN ORDER WITHIN SIX MONTHS REJECTING OR ACCEPTING THE REQUEST OF REGISTRATION. M.A. NO.30/PUN/2019 3 5. FURTHER, THE ASSESSEE FILED A MA SEEKING SPECIFIC DIRECTION WITH REFERENCE TO THE GRANT OF REGISTRATION FROM THE DATE OF THE ORIGINAL APPLICATION DATED 04.05.2006 FILED U/S 12A OF THE ACT. HOWEVER, THE SAID MA WAS DISMISSED BY THE TRIBUNAL MENTIONING THAT ANY AMENDMENT TO THE ABOVE DIRECTION (ALREADY EXTRACTED ABOVE) CONSTITUTES A REVIEW OF THE ORDER OF THE TRIBUNAL. 6. IN THE BACKGROUND OF THE ABOVE FACTS AND DEVELOPMENTS BEFORE THE TRIBUNAL, THE REVENUE FILED THE PRESENT MA STATING THAT THE TRIBUNAL RELIED ON THE HONBLE SUPREME COURT JUDGEMENT IN THE CASE OF SOCIETY FOR THE PROMOTION OF EDUCATION (SUPRA) IN THE ORDER DATED 25.04.2018. CONSIDERING THE CHANGES THAT HAPPENED TO THE SAID JUDGMENT OF ALLAHABAD HIGH COURT SUBSEQUENTLY, THE SAME NO LONGER A GOOD LAW. REQUESTING FOR AMENDMENT OF THE ORDER OF THE TRIBUNAL, THE REVENUE IN THE MA GAVE THE FOLLOWING REASONS FOR RECTIFICATION. RELEVANT PARAS ARE EXTRACTED AS UNDER :- A) .. HOWEVER, THE HONBLE ITAT A BENCH PUNE, WHILE STATING THE ABOVE AND DECIDING THE ISSUE OF DEEMED APPROVAL, HAS ERRED IN ARRIVING AT THE CONCLUSION THAT NON-ACTION ON PART OF CIT WITHIN 6 MONTHS RESULTS INTO BENEFIT OF DEEMED REGISTRATION, WITHOUT APPRECIATING THE FACT THAT THE SAID JUDGMENT WAS BASED ON THE DECISION OF DIVISION BENCH OF ALLAHABAD HIGH COURT IN THE CASE OF SOCIETY FOR THE PROMOTION OF EDUCATION ADVENTURE SPORT AND CONSERVATION OF ENVIRONMENT VS CIT, 261 CTR (ALL) 167 AND THE SAME JUDGMENT OF DIVISION BENCH WAS OVERTURNED BY FULL BENCH OF ALLAHABAD HIGH COURT IN THE CASE OF CIT VS MUZAFAR NAGAR DEVELOPMENT AUTHORITY REPORTED IN (2018) 372 ITR 209 (AII)(FB). B) THE HONBLE TRIBUNAL HAS ALSO ERRED IN NOT CONSIDERING THE DECISION OF THE HONBLE HIGH COURT OF ALLAHABAD, LUCKNOW BENCH IN THE CASE OF CIT FAIZABAD VS HARSHIT FOUNDATION SEHMALPUR JALALPUR JANUPUR, ITAD NO. 24 OF 2013 DATED 31.01.2017 WHEREIN IT IS STATED THAT THE HONBLE SUPREME COURT IN ITS DECISION DATED 16.02.2016 IN SOCIETY FOR THE PROMOTION OF EDUCATION HAS LEFT ALL OTHER QUESTIONS OF LAW OPEN AND NOT DECIDED THE QUESTION OF LAW RAISED BY THE CIT AND HAS ACCORDINGLY DECIDED THE APPEAL IN FAVOUR OF REVENUE ON THE ISSUE OF DEEMED APPROVAL BY RELYING ON THE FULL BENCH DECISION IN THE CASE OF CIT VS MUZAFAR NAGAR DEVELOPMENT AUTHORITY (SUPRA). M.A. NO.30/PUN/2019 4 7. FROM THE ABOVE, IT IS EVIDENT THAT, IT IS THE CASE OF THE REVENUE THAT, WITH THE FULL BENCH JUDGEMENT OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. MUZAFAR NAGAR DEVELOPMENT AUTHORITY, 372 ITR 209 (ALL)(FB), THE SAID HONBLE ALLAHABAD HIGH COURT DIVISION BENCH JUDGEMENT IN THE CASE OF SOCIETY FOR THE PROMOTION OF EDUCATION ADVENTURE SPORT AND CONSERVATION OF ENVIRONMENT 261 CTR 167 (ALL) (DB), STANDS OVERTURNED. CONSEQUENTLY, THE PRINCIPLE OF DEEMED REGISTRATION APPROVED BY THE HONBLE SUPREME COURT JUDGEMENT IN THE CASE OF SOCIETY FOR THE PROMOTION OF EDUCATION ADVENTURE SPORT AND CONSERVATION OF ENVIRONMENT (SUPRA) QUA THE SAID JUDGEMENT OF THE DIVISION BENCH OF ALLAHABAD HIGH COURT, STANDS QUESTIONABLE. THEREFORE, THE PRESENT ORDER OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE IS REQUIRED TO BE AMENDED WITHDRAWING THE BENEFIT OF DEEMED REGISTRATION ALREADY ALLOWED IN THE ASSESSEES OWN CASE. 8. ON THE OTHER HAND, THE CASE OF THE ASSESSEE IS THAT, WITH ANY CHANGES THAT TAKES TO THE JUDGEMENTS AT THE LEVEL OF THE HONBLE ALLAHABAD HIGH COURT, WILL NOT ALTER THE EFFECT OF THE RATIO OF THE HONBLE SUPREME COURT IN THE CASE OF SOCIETY FOR THE PROMOTION OF EDUCATION ADVENTURE SPORT AND CONSERVATION OF ENVIRONMENT (SUPRA) ON THE ISSUE OF GRANTING OF DEEMED REGISTRATION. FURTHER, THE ASSESSEE RELIED ON THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF ASHWINI SAHAKARI RUGNALAYA ANI SANSHODHAN KENDRA NIYAMIT, SOLAPUR VS. DCIT, PUNE WHERE IN WRIT PETITION NO.1885 OF 2019 ALONG WITH OTHERS DATED 04 TH APRIL, 2019, IDENTICAL ISSUE WAS EXAMINED AND THE DEEMED REGISTRATION WAS ALLOWED. IN THIS CASE, THE DEEMED REGISTRATION WAS GRANTED ORIGINALLY AND THE TRIBUNAL REMANDED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR APPLYING THE PROVISIONS OF M.A. NO.30/PUN/2019 5 SECTIONS 11 AND 12 OF THE ACT. DISPLAYING INDISCIPLINE TO THE DIRECTION OF THE TRIBUNAL, THE ASSESSING OFFICER ATTEMPTED TO WITHDRAW THE DEEMED REGISTRATION ITSELF, WHICH WAS GRANTED BY THE TRIBUNAL ORIGINALLY. FOR WITHDRAWING THE DEEMED REGISTRATION, ASSESSING OFFICER RESORTED TO SAME REASON AS TAKEN BY THE ASSESSING OFFICER NOW IN THE MA. ON THESE FACTS, THE JURISDICTIONAL HIGH COURT HELD THAT THE FULL BENCH JUDGEMENT OF THE HONBLE ALLAHABAD HIGH COURT WILL NOT ALTER THE BINDING JUDGMENT OF THE HONBLE SUPREME COURT JUDGEMENT IN THE CASE OF SOCIETY FOR THE PROMOTION OF EDUCATION ADVENTURE SPORT AND CONSERVATION OF ENVIRONMENT (SUPRA). FOR THE SAKE OF CONVENIENCE, THE CONTENTS OF PARA 5 AND 6 OF THE JURISDICTIONAL HIGH COURT JUDGEMENT IN THE CASE OF ASHWINI SAHAKARI RUGNALAYA ANI SANSHODHAN KENDRA NIYAMIT, SOLAPUR (SUPRA) ARE EXTRACTED HEREUNDER :- 5. PERUSAL OF THE ORDER OF THE ASSESSING OFFICER AND IN PARTICULAR, THE QUOTED PORTION THEREOF, WOULD CONVINCE US THAT THE ASSESSING OFFICER HAS TRAVELLED FAR BEYOND THE SCOPE OF THE INQUIRIES BEFORE HIM AND HAS BREACHED ALL PROPRIETY OF JUDICIAL DISCIPLINE. THE ASSESSING OFFICER HAS HELD THAT THE TRIBUNAL WAS NOT CORRECT IN GRANTING DEEMED REGISTRATION TO THE PETITIONER. HE HAS, IN FACT, CRITICIZED THE JUDGMENT OF THE SUPREME COURT ON THE GROUND THAT SUCH JUDGMENT NOTES A DIVISION BENCH JUDGMENT OF THE HIGH COURT BUT NOT A LARGER BENCH JUDGMENT. 6. FOR HIS OWN SAKE, WE HOPE THE CONCERNED ASSESSING OFFICER DOES NOT INDULGE INTO SUCH BRAVADO IN FUTURE. FIRSTLY, IT WAS NOT WITHIN HIS SCOPE TO DECIDE WHETHER THE DECISION OF THE TRIBUNAL WAS CORRECT OR INCORRECT. FAR MORE SERIOUS IS HIS CONDUCT OF CRITICIZING THE SUPREME COURT JUDGMENT. THE ENTIRE HIERARCHY OF JUDICIAL SET UP WOULD BE DISTURBED IF A QUASI-JUDICIAL AUTHORITY OR FOR THAT MATTER, ANY COURT OR SUBORDINATE JUDICIAL OFFICER WERE ALLOWED TO DISREGARD QUESTIONING THE CORRECTNESS OF THE DECISION OF A HIGHER AUTHORITY, FORUM OR COURT. 9. FROM THE ABOVE, IT IS EVIDENT THAT THE JURISDICTIONAL HIGH COURT HELD THAT DISREGARDING AND QUESTIONING THE CORRECTNESS OF THE JUDGEMENT OF THE HIGHER AUTHORITY, FORUM OR COURT IS UNACCEPTABLE. THE ASSESSING OFFICER IS RESTRAINED FROM INDULGING INTO SUCH BRAVADO. CONSIDERING THE SAME, WE ARE M.A. NO.30/PUN/2019 6 OF THE OPINION, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE SHOULD BE STAND DISMISSED. 10. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 19 TH DAY OF AUGUST, 2019. SD/- SD/- (SUSHMA CHOWLA) (D. KARUNAKARA RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; DATED : 19 TH AUGUST, 2019. SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT-1, PUNE; 4. , , / DR A, ITAT, PUNE; 5. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE