The ACIT, Amritsar. V. The Improvement Trust, Bathinda

MA 43/ASR/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7678 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 9 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 25-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: K R JAIN
• Keywords: Rectification of order; Charitable institution; Opportunity of being heard; Competent authority
• Section: 12AA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A. NO.43(ASR)/2010 (ARISING OUT OF I.T.A. NO. 413(ASR)/2009) PAN: AAATE1563E THE COMMISSIONER OF INCOME TAX, VS. THE IMPROVEMENT TRUST, BATHINDA. BATHINDA. (APPLELLANT) (RESPONDENT) APPELLANT BY: SH. AMRIK CHAND, DR RESPONDENT BY: SH. K.R. JAIN, ADVOCATE DATE OF HEARING :23.03.2012 DATE OF PRONOUNCEMENT:23/03/2012 ORDER PERBENCH; THIS MISCELLANEOUS APPLICATION UNDER SECTION 254(2 ) OF THE INCOME- TAX ACT, 1961, HAS BEEN FILED BY SH. TARSEM LAL, AC IT (ITAT), AMRITSAR, ON 24.05.2010, THE CONTENTS OF THE SAME ARE REPRODUCED AS UNDER: APPLICATION U/S 254(2) OF THE I.T. ACT, 1961 IT IS SUBMITTED THAT THE HONBLE TRIBUNAL HAS PASSE D AN ORDER IN THE CASE OF IMPROVEMENT TRUST, BATHINDA IN ITA 2 NO.413(ASR)/2009 DATED 18.11.2009. IN THE SAID CASE , THE HONBLE BENCH HAD RESTORED THE MATTER BACK TO THE F ILE OF THE CIT WITH THE DIRECTION TO RECONSIDER THE DOCUMENTAR Y EVIDENCE FILED BY THE ASSESSEE BEFORE THE TRIBUNALS REGARDI NG THE ASSESSEES BEING ENGAGED IN CHARITABLE ACTIVITIES W HICH THE ASSESSEE HAD NOT PRODUCED BEFORE THE CIT DURING THE COURSE OF HEARING BEFORE THE CIT. THE HONBLE TRIBUNAL HAS OB SERVED THAT: WE ARE SENDING THE MATTER TO THE CIT TO DECIDE THE SAME AFRESH UNDER THE LAW AFTER GIVING OPPORTUNITY TO THE ASSESSEE AND KEEPING IN VIEW THE AFORESAID ADDITION AL EVIDENCES PRODUCED BEFORE US. WE ARE OF THE CONSIDE RED OPINION THAT THE EVIDENCES PRODUCED BY THE ASSESSEE ARE VERY MUCH NECESSARY FOR JUST AND PROPER DECISION IN THE PRESENT CASE. IT IS SUBMITTED THAT WHILE RESTORING THE MATTER BACK TO T HE FILE OF THE CIT, THE HONBLE TRIBUNAL DID NOT CONSI DER THE SUBMISSION OF THE DR AS RECORDED AT PARA 5 OF PAGE 4 OF THE SAID ORDER WHEREIN THE DR SUBMITTED THAT KEEPING IN VIEW THE AMENDMENT OF SECTION 2(15) OF THE INCOME-TAX ACT, 1 961 WHICH DEFINES CHARITABLE PURPOSES, THE CASE OF THE ASSESS EE IS NOT COVERED BY THE SAME. THEREFORE, THE LD. CIT HAS RIG HTLY REJECTED THE APPLICATION DATED 18.02.2009 FOR REGISTRATION U NDER SECTION 12AA OF THE INCOME-TAX ACT, 1961. IT MAY BE MENTIONED THAT THE AMENDING SECTION 2(15 ), IT HAS BEEN CLEARLY LAID DOWN IN THE PROVISO TO THE SA ID SECTION AS UNDER: PROVIDED THAT THE ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUBLIC UTILITY SHALL NOT BE CHARITABLE PURP OSE, IF IT INVOLVES THE CARRYING ON ANY ACTIVITY IN THE NATURE OF TRADE, COMMERCE OR BUSINESS OR ANY ACTIVITY OF RENDERING A NY SERVICE IN RELATION TO ANY TRADE, COMMERCE OR BUSIN ESS FOR A CESS OR FEE OR ANY OTHER CONSIDERATION IRRESPECTIVE OF THE NATURE OF USE OR APPLICATION, RETENTION OF THE INCO ME FROM SUCH ACTIVITY ( EMPHASIS SUPPLIED IS MINE) 3 THE WORTHY CIT IN HIS ORDER AT PAGE 2 OF HIS ORDER HAS DILATED FIVE BASIS FOR HIS HOLDING THAT THE ASSESSEE IS ENG AGED IN BUSINESS ACTIVITIES AND AT PARA (D) PAGE 3 OF HIS O RDER, HE HAS MENTIONED THE CHARGES, FEES, FINE AND PENALTIES WHI CH THE ASSESSEE CHARGES. BOTH THE FINDINGS PATENTLY ATTRAC T THE AFORESAID PROVISO AND THUS WORTHY DISENTITLE THE ASSESSEE FRO M MAKING ANY CLAIM FOR REGISTRATION U/S 12AA WHICH HAD VERY RIGHTLY BEEN REJECTED BY THE WORTHY CIT. IN VIEW OF ABOVE, THE HONBLE TRIBUNAL DIRECTION T O THE CIT TO RECONSIDER SOME CHARITABLE ACTIVITIES OF THE ASSESSEE, IS NOT LEGALLY CORRECT AS THE ASSESSEE BEING ENGAGED IN THE ADVANCEMENT OF ANY OTHER OBJECTION OF GENERAL PUBLI C UTILITY AND CARRYING ON ACTIVITIES OF BUSINESS AND ALSO CHA RGING FEES, IS NOT EXISTING FOR CHARITABLE PURPOSES SO AS TO EARN THE PRIVILEGES OF SECTION 12AA. IT WOULD NOT BE OF ANY HELP TO THE ASSESSEE EVEN IF THE CIT CONSIDER THE ACTIVITIES AS MENTIONE D FOR THE FIRST TIME BEFORE THE HONBLE BENCH AND EVEN WHEN HE FIND S THE SAME OF THE NATURE OF CHARITABLE AS IT WOULD NOT EA RN FOR THE ASSESSEE THE SAID PRIVILEGES DUE TO ITS CASE BELONG ING TO THE CATEGORY OF ADVANCEMENT OF ANY OTHER OBJECT OF PUB LIC UTILITY AND BEING ENGAGED IN BUSINESS AND ALSO CHARGING FEE S FOR THE SERVICE PROVIDED BY IT. THEREFORE, IT IS HUMBLY AND WITH DUE RESPECT SUBMITTED THAT THE SAID ORDER OF THE HONBL E TRIBUNAL IS NOT A LEGALLY CORRECT ORDER AND MISTAKE HAS CREPT I N THE SAID ORDER ON ACCOUNT OF NON-CONSIDERATION OF DRS ABOVE SUBMISSIONS. IT IS, THEREFORE, PRAYED THAT THE AFOR ESAID ORDER MAY KINDLY BE RECALLED BY INVOKING SECTION 254(2) O F THE INCOME TAX ACT, 1961. IT IS FURTHER SUBMITTED THAT THE AFORESAID APPLICA TION UNDER SECTION 254(2) IS BEING MADE BY THE UNDERSIGNED AS PER THE MANDATE OF THE JUDGMENT OF THE HONBLE KERALA HIGH COURT IN THE CASE OF CIT VS. INCOME TAX APPELLATE TRIBUNAL R EPORTED AS 289 ITR 191. SD/- (TARSEM LAL) ACIT (ITAT), AMRITSAR 4 2. THE NOTICE OF HEARING OF THE SAID MISCELLANEOUS APPLICATION WAS ISSUED TO THE ASSESSEE FOR TODAY I.E. 23.03.2012. I N RESPONSE TO THE SAME, SH. K.R. JAIN, ADVOCATE, APPEARED FOR THE ASSESSEE AND RAISED PRELIMINARY OBJECTION THAT SH. TARSEM LAL, HAS FILED THE PRESEN T MISCELLANEOUS APPLICATION WITHOUT ANY AUTHORIZATION. HE STATED TH AT SH. TARSEM LAL, HAS NOT BEEN AUTHORIZED BY ANY COMP ETENT AUTHORITY TO FILE THE PRESENT MISCELLANEOUS APPLICATION. HE ALSO DREW OUR ATTENTION TO THE PROVISIONS OF SECTION 254(2) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) AND STATED THAT ANY APPLICATI ON FOR RECTIFICATION OF ANY ORDER PASSED UNDER SECTION (1) OF SECTION 254 OF TH E ACT CAN BE FILED BY THE ASSESSEE OR THE A.O. BUT THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE LD. DR, SH. TARSEM LAL FOR RECALLING O RDER DATED 13.11.2009 OF THIS BENCH PASSED IN ITA NO.413(ASR)/2009, BEING NO T MAINTAINABLE IN THE EYES OF LAW AND THE SAME DESERVES TO BE DISMISSED, BEING NOT MAINTAINABLE. 3. ON THE CONTRARY, THE LD. DR, SH. AMRIK CHAND, RE LIED UPON THE CONTENTS OF THE MISCELLANEOUS APPLICATION. 4. WE HAVE HEARD BOTH THE PARTIES AND THE PRELIMINA RY OBJECTION RAISED BY THE LD. COUNSEL FOR THE ASSESSEE AND HAVE ALSO T HOROUGHLY GONE THROUGH THE PROVISIONS OF SUB SECTION (1) AND (2) OF SECTIO N 254 OF THE ACT. FOR THE 5 SAKE OF CONVENIENCE, THE PROVISIONS OF SECTION 254 OF THE ACT ARE REPRODUCED HEREUNDER: 254.(1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS S UCH ORDERS THEREON AS IT THINKS FIT. (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYING AN Y MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BRO UGHT TO ITS NOTICE BY THE ASSESSEE OR THE [ASSESSING] OFFICER: 4.1. KEEPING IN VIEW THE PROVISIONS OF SUB-SECTION (2) OF SECTION 254 OF THE ACT, WE ARE OF THE CONSIDERED OPINION THAT THE TRIB UNAL MAY RECTIFY ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER P ASSED BY IT UNDER SUB- SECTION (1) OF SECTION 254 OF THE ACT AND SHALL MAK E SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE LEARNED D.R. WITHOUT TAKING CONSENT FROM THE HIGHER AUTHORITY AS WELL AS WITHOUT AUTHORIZATION FROM THE COMPETENT AUTHORITY. IN OUR CONSIDERED OPINION, THE LD. DR, IS NOT AUTHORIZED TO FILE THE PRESENT MISCE LLANEOUS APPLICATION UNDER SECTION 254(2) OF THE ACT. WE ARE OF THE VIEW THAT WITHOUT AUTHORIZATION BY THE COMPETENT AUTHORITY, SUCH APPL ICATION CAN NOT BE FILED. EVEN OTHERWISE ACCORDING TO SECTION 254(2) OF THE A CT, ONLY THE ASSESSING OFFICER CAN FILE THE MISCELLANEOUS APPLICATION FOR RECTIFICATION OF MISTAKE 6 APPARENT FROM THE RECORD, AMEND ANY ORDER, PASSED U NDER SUB-SECTION (1) OF SECTION 254 OF THE ACT. 4.2. THE LD. COUNSEL FOR THE ASSESSE HAS ALSO FILE A COPY OF ORDER DATED 19 TH OCT., 2010 PASSED BY THIS BENCH IN MA NO.64(ASR)/20 10 (ARISING OUT OF MA NO.81(ASR)/2009 ARISING OUT OF ITA NO.290(ASR) /2003) FOR THE ASSESSMENT YEAR 2001-02 IN THE CASE OF ASSTT. C.I.T . AMRITSAR VS. SHRI PRITPAL SINGH SACHEVA, AMRITSAR AND OTHERS, IN WHICH EXACTL Y SIMILAR ISSUE HAS BEEN ADJUDICATED AND DECIDED AGAINST THE DEPARTMENT BY D ISMISSING THE MAS FILED BY SH. TARSEM LAL, LD. DR , ON ACCOUNT OF NON-MAI NTAIBILITY. 4.3. WE HAVE THOROUGHLY GONE THROUGH THE ORDER DATE D 19 TH OCT., 2010 PASSED BY THIS BENCH (SUPRA) IN WHICH, THIS BENCH H AS DISMISSED 16 MISCELLANEOUS APPLICATIONS AS NOT MAINTAINABLE.] 4.4. KEEPING IN VIEW THE ABOVE DISCUSSIONS, WE ARE OF THE CONSIDERED OPINION THAT THE LD. DR HAS FILED THE PRESENT MISCE LLANEOUS APPLICATION UNDER SECTION 254(2) OF THE ACT WITHOUT AUTHORIZING HIM BY THE COMPETENT AUTHORITY. THEREFORE, WE DISMISS THE PRESENT MISCEL LANEOUS APPLICATION AS 7 NOT MAINTAINABLE WITH HOPE SUCH MISTAKE SHOULD NOT REPEAT AGAIN AND AGAIN IN FUTURE. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED BEING NOT MAINTAINABLE. ORDER PRONOUNCED IN THE OPEN COURT ON 23RD MARCH, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23RD MARCH , 2012 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE CIT, BATHINDA 2. RESPONDENT: THE IMPROVEMENT TRUST, BATHINDA. 3. THE SR DR, ITAT, ASR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH : AMRITSAR.