Nilackal St.Thomas Church and Ecumenical centre trust, Kottayam V. CIT, Kottayam

MA 68/COCH/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7196 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 26-08-2011
• Assessment Year: misc
• Appeal Filed On: 22-11-2010
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: K I JOHN
• Keywords: Charitable institution
• Section: 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY AR ORA, AM M.P. NO. 68/COCH/2010 (ARSG. OUT OF I.T.A. NO. 943/COCH/2008) ASSESSMENT YEAR: - NILACKAL ST. THOMAS CHURCH AND ECUMENICAL CENTRE TRUST, DEVALOKAM, KOTTAYAM. [PAN:AAATN 2375F] VS. THE COMMISSIONER OF INCOME-TAX, KOTTAYAM. (ASSESSEE-APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI K.I. JOHN, CA REVENUE BY MS. S. VIJAYAPRABHA, DR DATE OF HEARING 26/08/2011 DATE OF PRONOUNCEMENT 25/11/2011 O R D E R PER SANJAY ARORA, AM: THIS MISCELLANEOUS PETITION (M.P.) BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER BY THE TRIBUNAL IN ITS CASE DATED 25/2/2010. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE ES APPLICATION FOR APPROVAL U/S. 80G(5)(VI) OF THE INCOME-TAX ACT, 1961 (THE 'ACT' H EREINAFTER) STOOD REJECTED VIDE HIS ORDER DATED 30/9/2008 . THE ASSESSEE APPEALED THEREAGAINST BEFORE THE TRI BUNAL, CHALLENGING THE ORDER APPEALED AGAINST ON MERITS AS WELL AS ON THE GROUND OF MAINTAINABILITY; THE SAME HAVING BEEN PASSED AFTER SIX MONTHS OF THE RECEIPT OF APPLICATION IN THE PRESCRIBED FORM ON 11/3/2008 . THE APPELLATE TRIBUNAL, RELYING ON THE DECISION BY THE HONBLE HIGH COURT OF ORISSA IN THE CASE OF BHAKTA VEDANTA SWAMI M.P. NO. 68/COCH/2010 2 CHARITABLE TRUST VS. CIT (IN WP(C) 12347/2005 DATED 09/5/006), REJECTED THE ASSESSEES LEGAL GROUND. ON MERITS OF ITS APPLICATION, HOWEVER , THE ASSESSEES CLAIM WAS ALLOWED, SO THAT IT WAS SUCCESSFUL IN APPEAL. 3. THE ASSESSEE HAS NOW MOVED THE M.P. BEFORE THE T RIBUNAL CONTENDING ITS ORDER TO BE BEARING A MISTAKE IN-AS-MUCH AS RELIANCE STANDS PLACED ON THE DECISION IN THE CASE OF UNREPORTED DECISION, NOT CITED BY EITHER PARTY, AND OF WHICH IT WAS NOT AWARE. AS SUCH, FOLLOWING THE DECISION BY THE BOMBAY HIGH COURT IN THE CASE OF NARESH K. PAHUJA VS. ITAT (2009) 224 CTR (BOM.) 284 AS WELL AS IN THE CASE O F INVENTURE GROWTH & SECURITIES LTD. VS. ITAT (2010) 233 CTR (BOM.) 172, THE ORDER BY THE TRIBUNA L IS LIABLE TO BE RECALLED FOR A DECISION AFRESH AFTER HEARING THE PARTIES IN THE MATTER. FURTHER, THE DECISION BY THE APEX COURT IN THE CASE OF CIT VS. ANJUM M.H. GHASWALA ((2001) 252 ITR 1 (SC), ON WHICH RELIANCE WAS SPECIFICALLY PLACED, HAS BEEN OMITTED TO BE CONSIDERED BY THE TRIBUNAL IN DECIDING THE SUBJECT MATTER OF THE APPEAL. RELIANCE HAS ALSO BEEN PLACED ON THE DECISION IN THE CASE OF CTT VS. ANKIT TRADERS (2008) 18 VST 149 (ALL.) AS WELL AS IN THE CASE OF SOCIETY FOR THE PROMOTION OF EDUCATION ADVENTURE SP ORT & CONSERVATION OF ENVIRONMENT VS. CIT (2008) 216 CTR (ALL.) 167, WHEREIN IT HAS BEEN HEL D THAT THE NON- CONSIDERATION OF THE REGISTRATION APPLICATION WITHI N THE TIME FIXED U/S. 12AA(2) WOULD RESULT IN ITS DEEMED REGISTRATION. FOURTHLY, RELIA NCE HAS BEEN PLACED ON THE DECISIONS AS IN THE CASE OF DEPUTY COMMISSIONER (LAW), COMMERCIAL TAX ERNAKULAM VS. K.N.S MOHAMMED IYOOB LABBAI SAHIB & SONS (2006) 144 STC (KER.) (FB) 189; CIT V. TARA AGENCIES (2007) 292 ITR 444 (SC); AJMERA HOUSING CORPORATION V. CIT (2010) 326 ITR 642 (SC); AND PADMASUNDARA RAO (DECD.) VS. STATE OF TAMIL NADU ( 2002) 255 ITR 147 (SC) TO THE EFFECT THAT THE INTENTION OF LEGISLATIO N HAS TO BE GATHERED FROM THE LANGUAGE USED, WHICH MEANS THAT THE ATTENTION SHOULD BE PAID TO WHAT HAS BEEN SAID AS ALSO TO WHAT HAS NOT BEEN SAID. THAT IT IS THE BOUNDEN DUTY AND THE OBLIGATION OF THE COURT TO INTERPRET THE STATUTE AS IT IS. IT IS CONTRARY TO ALL RULES OF CONSTRUCTION TO READ WORDS INTO THE STATUTE WHICH THE LEGISLATURE IN ITS WISDOM HAS DELIBERATEL Y NOT INCORPORATED. THAT IS, THE LEGISLATIVE CASUS OMISSUS CANNOT BE SUPPLIED BY THE JUDICIAL INTERPRETATION PROCESS. THERE IS REFERENCE ALSO TO DECISIONS, AS IN THE CASE OF LACHMAN DASS BHATIA HINGWALA (P.) LTD. M.P. NO. 68/COCH/2010 3 V. CIT , 330 ITR 243 (DEL.)(FB); CIT V. S.K. GUPTA , 327 ITR 267 (ALL.) TO THE EFFECT THE THE POWER U/S. 254(2) CONTEMPLATES THE RECALL OF IT S ORDER BY THE APPELLATE TRIBUNAL FOR HEARING IN THE MATTER. 4. BEFORE US, THE MATTER WAS ARGUED VEHEMENTLY BY B OTH SIDES. WHILE THE LD. AR REITERATED THE CONTENTIONS RAISED BY THE ASSESSEE P ER ITS APPLICATION AND WRITTEN ARGUMENTS, THE REVENUES CASE IS THAT THE IMPUGNED ORDER HAS B EEN PASSED UPON DUE APPLICATION OF MIND BY THE TRIBUNAL, AS APPARENT THEREFROM, PLACIN G RELIANCE ON THE DECISION BY A HIGHER COURT OF LAW AND, THUS, BEARS NO `MISTAKE AS ENVIS AGED U/S. 254(2) OF THE ACT, AND THE ASSESSEE IN THE GUISE OF RECTIFICATION CANNOT SEEK REVIEW OF ITS ORDER BY THE TRIBUNAL, WHICH IT IS INCOMPETENT IN LAW TO DO. RELIANCE STOOD ALS O PLACED BY IT ON CASE LAW IN SUPPORT OF THE SAID PROPOSITION. 5. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD, AS WELL AS THE CASE LAW CITED. 5.1 WE SHALL CONSIDER EACH OF THE OBJECTIONS AS RAISED BY THE ASSESSEE AND EXAMINE THEM FOR THEIR VALIDITY IN TERMS OF S. 254(2) OF TH E ACT. THE FIRST OBJECTION, MADE WITH REFERENCE TO THE DECISIONS BY THE HONBLE BOMBAY HI GH COURT IN THE CASE OF NARESH K. PAHUJA VS. ITAT (SUPRA) AND INVENTURE GROWTH & SECURITIES LTD. VS. ITAT (SUPRA), THAT NON-CONSIDERATION OF A CITED DECISION, EVEN BY A CO -ORDINATE BENCH, WOULD LEAD TO A RECTIFICATION U/S. 254(2), ACCORDS WITH THE LAW IN THE MATTER AS SETTLED BY THE APEX COURT IN THE CASE OF HONDA SIEL PRODUCTS LTD. V. CIT (2007) 295 ITR 466 (SC). HOWEVER, THIS IS NOT THE CASE HERE. THE TRIBUNAL NOTES THE DECISION RELIED UPON BY THE ASSESSEE IN THE MATTER, REPORTED AT BHAGWAD SWARUP SHRI SHRI DEVRAHA BABA MEMORIAL SHRI HARI PARMARTH DHAM TRUST VS. CIT , 111 ITD 175 ( DEL.) (SB) VIDE PARA 3.1 OF ITS ORD ER, BUT FINDS IT DISTINGUISHABLE, AS ALSO THAT THE PROPOSIT ION/S CANVASSED THEREIN, BEING THE SAME AS THAT BY THE COUNSEL REPRESENTING THE PETITIONER BEF ORE IT, STANDS NEGATIVED BY A HIGHER COURT OF LAW, I.E., IN THE CASE OF BHAKTA VEDANTA SWAMI CHARITABLE TRUST VS. CIT (SUPRA), THE RELEVANT PART OF WHICH IS REPRODUCED AT PARA 3. 1 OF ITS ORDER.. THE OTHER DECISION RELIED UPON BY THE ASSESSEE IN THE MATTER, I.E., IN THE CA SE OF VELIMALAI RUBBER CO. LTD. VS. M.P. NO. 68/COCH/2010 4 INSPECTING ASSISTANT COMMISSIONER (1991) (1) KLT 275, WAS ALSO CONSIDERED AND FOUND DISTINGUISHABLE INASMUCH AS THE SAME COULD NOT BE O F ASSISTANCE IN DECIDING THE NATURE, MANDATORY OR DIRECTORY, OF THE PROVISION UNDER REFE RENCE, BEING IN RELATION TO A DIFFERENT STATUTE, AND RENDERED UNDER A DIFFERENT FACT SETTIN G. IN FACT, IN RATIO, THE SAID DECISION WAS FOUND TO BE SUPPORTIVE OF THE REVENUES CASE (REFER PARA 3.1 OF THE IMPUGNED ORDER). COULD THIS BY ANY STRETCH OF IMAGINATION BE CONSIDE RED AS NON-CONSIDERATION ? 5.2 THE ASSESSEES CLAIM THAT THE DECISION RELIED UPON WAS NEITHER CITED BY THE REVENUE NOR PUT ACROSS TO IT DURING HEARING, SO THAT IT AMO UNTS TO DECIDING THE ISSUE AT ITS BACK. THIS IS NOT CORRECT, AS THE SAID DECISION AND ITS P ROPOSITION STOOD ADVERTED TO DURING HEARING, EVEN AS OBSERVED AT PARA 3.1 OF THE IMPUGN ED ORDER; THE SAID DECISION BEING REGULARLY RELIED AND BEING FOLLOWED BY THE CUTTACK BENCH OF THE TRIBUNAL, WHERE ONE OF THE MEMBERS CONSTITUTING THE BENCH (AM) WAS A MEMBE R FOR SOME TIME. AS SUCH, THE ASSESSEE STATING THE ISSUE AS HAVING BEEN DECIDED A T ITS BACK IS TOTALLY WITHOUT MERIT; THE DECISION BEING RELIED UPON BEING SQUARELY ON THE PO INT, AND QUA THE SAME PROVISION AND ISSUE, IN RESPECT OF WHICH IT RELIES ON THE DECISIO N BY THE SPECIAL BENCH OF THE TRIBUNAL. 5.3. THE SECOND OBJECTION RAISED BY THE ASSESSEE IS WITH REFERENCE TO THE DECISION IN THE CASE OF CIT VS. ANJUM M.H. GHASWALA (SUPRA), STATING THAT IT HAS BEEN CLARIFIED BY THE APEX COURT THAT THE WORD SHALL CANNOT BE CONSTRUE D AS MAY, AND THAT THE NORMAL RULE OF CONSTRUCTION IS THAT WHEN THE STATUTE VESTS CERTAIN POWER IN AN AUTHORITY TO BE EXERCISED IN A PARTICULAR MANNER, THEN THE AUTHORITY HAS TO EXER CISE IT IN THE MANNER PROVIDED UNDER THE STATUTE ITSELF. THE DECISION BY THE APEX COURT IS ENTIRELY IN A DIFFERENT CONTEXT, WHICH HAS NOTHING TO DO WITH THE INTERPRETATION OF ANY PROVIS ION OF LAW RELATING TO `TIME LIMIT EITHER UNDER RULE 11AA OF THE INCOME-TAX RULES, 1962 (THE 'RULES' HEREINAFTER), I.E., THE PROVISION UNDER REFERENCE, OR U/S. 12AA OF THE ACT, THE COGNATE PROVISION, OR EVEN GENERALLY AND, AS SUCH, STATING THE APEX COURT TO H AVE DECIDED THE ISSUE UNDER REFERENCE OR EVEN COVERING IT IS INAPPOSITE, SO MUCH SO THAT EXT ENDING ITS ARGUMENT FURTHER WOULD IMPLY THAT THE DECISION BY THE HONBLE ORISSA HIGH COURT RELIED UPON IS ALSO A MISTAKEN ONE, LIABLE FOR RECTIFICATION.. THERE HAS BEEN NO N ON-CONSIDERATION OF THE SAID DECISION, M.P. NO. 68/COCH/2010 5 WHICH CONCERNS THE GENERAL PRINCIPAL APPLICABLE IN INTERPRETING THE WORD `SHALL, AND IF APPLICABLE WOULD NOT REQUIRE REFERENCE TO THE SPECI AL BENCH ON THE ISSUE, AND WHICH ITSELF DOES NOT REFER TO THE SAME. THIS WOULD ALSO APPLY T O THE ASSESSEES FOURTH OBJECTION MADE WITH REFERENCE TO A HOST OF CASE LAW, ON WHICH LEGA L PROPOSITIONS AND PRINCIPLES AS LAID OUT THEREIN, THERE IS NO OR COULD NOT POSSIBLY BE ANY Q UARREL. SO, HOWEVER, THE HONBLE HIGH COURT HAS RENDERED THE DECISION SPECIFICALLY WITH R EFERENCE TO THE NATURE OF THE PROVISION, I.E., MANDATORY OR OTHERWISE, GIVING CLEAR REASONS FOR THE SAME. EACH OF THE LEGAL PRINCIPLES ON WHICH THE SAME IS BASED, ARE WELL SET TLED, AND NOT DISPUTED, EITHER BY THE ASSESSEE OR IN ANY OF THE DECISIONS IT NOW REFERS T O. IT STANDS EXPLAINED THAT IN ASCERTAINING THE NATURE OF THE PROVISION, THE WORD SHALL IS NOT ALWAYS DECISIVE, AND WHETHER A PROVISION IS MANDATORY OR DIRECTORY, HAS TO BE ASCE RTAINED NOT ONLY ON THE BASIS OF THE WORDING OF THE STATUTE, BUT ALSO FROM ITS NATURE AN D DESIGN AND THE PURPOSE IT SEEKS TO ACHIEVE. EXPLAINING FURTHER, IT STATES THAT THE TIM E FRAME STIPULATED IS NOT COUCHED IN THE NEGATIVE WORDS, SO THAT IT CANNOT BE CONSIDERED TO INDICATE A MANDATORY INTENT. THE TIME LIMIT SEEKS TO EXCLUDE THE DELAY OR LETHARGIC APPRO ACH IN THE MATTER OF DEALING WITH SUCH APPLICATIONS. FINALLY, IT STATES THAT WHEN THE CON SEQUENCE OF NON-COMPLIANCE TO THE SAID TIME FRAME HAS NOT BEEN SPELT OUT IN THE STATUTE, T HE SAME CANNOT BE CONSIDERED AS MANDATORY, I.E., IN THE ABSENCE OF ANY EXPRESS STAT UTORY INTENT OR ONE THAT FOLLOWS BY THE NECESSARY IMPLICATION, MAKING REFERENCE TO THE DECI SION IN THE CASE OF MONTREAL STREET RAILWAY COMPANY VS. NORMANDIN , AIR 1917 PRIVY COUNCIL 142 AT PAGE 144. THE SAME IN FACT ALSO FIND CLEAR EXPRESSION IN THE DECISION BY THE APEX COURT IN THE CASE OF BHAVNAGAR UNIVERSITY V. PALITANA SUGAR MILLS , REPORTED AT (2003) (2) SCC 111. IN FACT, AS OBSERVED DURING HEARING, THE WORD SHALL IN RULE 1 1AA QUALIFIES THE PASSING OF THE ORDER AND NOT THE TIME LIMIT. THE PROVISION ENVISAGES THE PASSING OF THE ORDER EITHER OF APPROVAL OR OF DISAPPROVAL TO THE ASSESSEES APPLICATION AND , WHICH, THEREFORE, CANNOT BE A MATTER OF PRESUMPTION. CLEARLY, THERE IS NO CASE OF LATCHE S IN THE INSTANT CASE. UNDER THE CIRCUMSTANCES, WE ARE UNABLE TO SEE, AND NEITHER IT HAS BEEN SHOWN BY THE ASSESSEE IN ANY MANNER, AS TO HOW THE DECISION RELIED UPON IS NOT D IRECTLY APPLICABLE, OR THE PRINCIPLES LAID DOWN BY THE APEX COURT AS WELL AS THE JURISDIC TIONAL HIGH COURT IN THE DECISIONS CITED HAVE BEEN IGNORED OR HAVE NOT BEEN OBSERVED BY THE TRIBUNAL IN RENDERING ITS DECISION. M.P. NO. 68/COCH/2010 6 FOLLOWING THE LAW OR THE SETTLED LEGAL PRINCIPLES, WHICH IS AGAIN A DECISION ON MERITS, DRAWING SUPPORT FROM THE INTERPRETATION OF A COGNAT E PROVISION BY A HIGHER COURT OF LAW, CANNOT, AGAIN, BY ANY STRETCH OF IMAGINATION, BE CO NSIDERED AS LEADING TO A PREJUDICE TO THE ASSESSEE. THE ASSESSEE CAN, AT BEST, SEEK A REV IEW OF THE TRIBUNALS DECISION BY THE HONBLE HIGH COURT. 5.4 THE DECISIONS BY THE ALLAHABAD HIGH COURT IN TH E CASE OF CTT VS. ANKIT TRADERS (SUPRA) AND SOCIETY FOR THE PROMOTION OF EDUCATION ADVENTURE SP ORT & CONSERVATION OF ENVIRONMENT VS. CIT (SUPRA) WERE NOT CITED DURING THE COURSE OF HEARING . REFERENCE THERETO BY THE ASSESSEE IN THE PRESENT PROCEEDINGS IS, THUS, AGAIN, MISCONCEIVED. 5.5 IN VIEW OF THE FOREGOING, WE ARE, THEREFOR E, UNABLE TO AGREE WITH THE ASSESSEE THAT THE IMPUGNED ORDER IS LIABLE TO BE RECALLED U/S. 25 4(2) OF THE ACT FOR BEING HEARD QUA THE SAID ISSUE. THE ASSESSEES APPLICATION IS NOT MAINT AINABLE U/S. 254(2) OF THE ACT. IN RENDERING THIS DECISION WE HAVE PERUSED ALL THE DEC ISIONS RELIED UPON BY THE ASSESSEE, EVEN THERE MAY BE AN OMISSION IN MAKING REFERENCE T O, OR SPECIFICALLY DISCUSS, EACH OF THEM IN THIS ORDER. WE DECIDE ACCORDINGLY. 6. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APP LICATION IS DISMISSED. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 25 TH NOVEMBER, 2011 GJ COPY TO: 1. NILACKAL ST. THOMAS CHURCH AND ECUMENICAL CENTRE TRUST, DEVALOKAM, KOTTAYAM. 2 THE COMMISSIONER OF INCOME-TAX, KOTTAYAM. 3. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 4. GUARD FILE .