MAHARAJA SHIVCHATRAPATI PRATISHTHAN,PUNE V. TAX RECOVERY OFFICER (EXEMPTIONS) PUNE, PUNE

MA 304/PUN/2023

AI Insights

The case involves the Maharaja Shivchatrapati Pratishthan Trust, which sought to recall an earlier Tribunal order concerning the tax exemption status of their activities under the Income Tax Act, 1961. The Trust argued that their activities, which include staging educational dramas about Chhatrapati Shivaji Maharaj, qualify as 'education' and thus should be exempt from taxation. The Tribunal had previously ruled against the Trust, stating their activities did not fall under the educational purposes as defined in Section 2(15) of the ITA. The Trust's request for a recall was based on the belief that the Tribunal had erred in not considering their activities as educational. However, the Tribunal, referencing a Supreme Court decision, held that it could not re-adjudicate its own orders and that any perceived errors should be addressed by an appeal to the High Court.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 32444 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-10-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Next Hearing Date: 25-10-2024
• Assessment Year: 2010-2011
• Appeal Filed On: 24-11-2023
• Other Referred Cases: CIT Vs. M/s. Reliance Telecom Ltd.
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAMNATH MURKUNDE
• Assessee Lawyers: KISHOR B. PHADKE
• Keywords: Set aside
• Section: 254(2); 11

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “A”, PUNE BEFORE SHRI R. K. PANDA, VICE PRESIDENT AND MS. ASTHA CHANDRA, JUDICIAL MEMBER MA Nos. 304 and 318/PUN/2023 (Arising out of ITA Nos.407/PUN/2020 and ITA No.2640/PUN/2017) Assessment Years : 2010-11 and 2013-14 Maharaja Shivchatrapati Pratishthan Trust, Shivsrushti, S.No.13, Katraj Byepass Road, Ambegaon Budruk, Pune 411 046 PAN : AAATM5937E Vs. Tax Recovery Officer, (Exemptions), Pune (Applicant) (Respondent) Assessee by : Shri Kishor B. Phadke Department by : Shri Ramnath Murkunde Date of hearing : 25.10.2024 Date of pronouncement : 30.10.2024 O R D E R PER R. K. PANDA, VICE PRESIDENT : The assessee through these Miscellaneous Applications has requested the Tribunal to recall the order passed by it on the ground that certain errors have crept in the order of the Tribunal. 2. Since identical issues have been raised by the assessee in both the Miscellaneous Applications, therefore, for the sake of convenience, these were heard together and are being disposed of by this common order. 2 MA Nos.304 and 318/PUN/2023 3. First, we take up M.A.No.304/PUN/2023. The ld. Counsel for the assessee drew the attention of the Bench to the contents of the Miscellaneous Applications which read as under : “1. Appellant's above appeal, was adjudicated by the \"A\" bench of Honourable ITAT, Pune vide appellate order dated 14/02/2023. A copy of the said appellate order is attached herewith and marked as Annexure-1. The present Miscellaneous Application relates to a prima facie error crept into the said appellate order. The brief factual matrix and contentions of the Applicant are as under. 2. Appellant is an educational trust registered u/s.12A of the ITA, 1961 on 20/06/1974. Since its inception, appellant trust has been engaged in highlighting the life of Chhatrapati Shivaji Maharaj by the staging of drama 'Janata Raja', demonstrating the life and values of Chhatrapati Shivaji Maharaj. Appellant Trust is invited by various organizations across the country to stage the drama. 3. Appellant has been filing tax returns by claiming exemption u/s.11 of ITA, 1961 regularly in all the past years. Appellant's claim as to a charitable activity has always been accepted in past years. 4. During the assessment year under consideration, the gross receipts of the appellant trust were Rs.2,22,43,219. Considering the educational object, the appellant trust filed its claiming exemption u/s. 11 of the ITA, 1961, as in the past years. 5. Later, the case of the appellant trust was reopened for assessment u/s.147. The learned AO passed the assessment order on 27/11/2017 thereby assessing the total income of Rs.64,82,390. While doing so, the learned AO observed that- -Activities undertaken are not within the meaning of 'Education' as envisaged by Section 2(15) of the ITA, 1961. - Activities are not within the ambit of the fourth limb of Section 2(15) of the ITA, 1961 i.e. any other object of general public utility. 6. Aggrieved by the actions of the learned AO, the appellant contested before the learned CIT(A). The learned CIT(A) echoed the assessment order as passed by the learned AO. 7. Aggrieved by the order of the CIT(A), the appellant contested before the Hon. ITAT, Pune. The grounds of appeal are as follows: “1. In the facts and circumstances of the case and in law, it may please be held that the activity of the appellant trust in performing the shows of drama \"Janata Raja\" falls within the definition and meaning of word education as appearing in the main limb of the provisions of Section 2[15] of the I.T. Act 1961 and therefore the income earned from said activity is exempt from taxation. 3 MA Nos.304 and 318/PUN/2023 2. In the facts and circumstances of the case and in law, the finding of the learned C.I.T.[A] that the activity of the appellant trust in performing the shows of drama \"Janata Raja\" amounts to commercial activity with profit motive is contrary to the facts and same being arbitrary, perverse, devoid of merits and being based on no evidence the same may please be vacated. In any case none of the objects involve carrying on of any activity for profit. 3. In the fact and circumstances of the case and in law, the finding of the learned C.I.T.[A] that the activity of the appellant trust in performing the shows of drama \"Janata Raja\" falls under residual category of any other object of general public utility within the meaning and provisions of section 2[15] of I.T. Act 1961, being patently illegal, bad in law, arbitrary, perverse, devoid of merits and based on no evidence the same may please be vacated. 4. In the fact and circumstances of the case and in law, unless registration u/s.12AA is cancelled, the AO and the learned CIT[A] have no jurisdiction to hold that the activities of the Trust are not charitable and that too retrospectively. 5. In the fact and circumstances of the case and in law, the AO and the learned CIT [A] are wrong in interpretation of the contract which is not a commercial contract, but merely safeguards interest of the Trust and its properties. Further, it uses the word 'honorarium' (मानधन (and not the words fees or remuneration, 6. It may please be held that the income of the appellant trust is exempt u/s .11 of I.T. Act 1961.” 8. From the above grounds of appeal, it transpires, two aspects were raised vide the above six grounds of appeal, i.e. whether appellant's activity involves \"education\" and whether, appellant's activity involves \"advancement of any other object of general public utility\". 9. Hon'ble ITAT Pune confirmed the actions of lower I-T authorities stating that the appeal is covered against the assessee by the order of Tribunal in appellant's own case for AY 2013-14 in ITA No. 2640/PUN/2017 vide its order dated 19/01/2023. 10. While adjudicating appellant's grounds, the Honorable ITAT has considered, whether, the appellant's case falls under the scope of residuary limb of section 2(15) i.e. \"advancement of any other object of general public activity\". Further, the Honourable ITAT, vide para-5, para-6 and para-7 held that, appellant's case falls under the proviso to section 2(15). Further, while coming to the said conclusion, Honourable ITAT relied upon the appellate order in Appellant's own case for AY 2013-14 (having ITA No.2640/PUN/2017), a copy of which is enclosed herewith and marked as Annexure-2. 11. Perusal of the said appellate order for AY 2013-14 reveals that, two aspects were decided therein, i.e. whether appellant's activity falls under the limb of \"education\" u/s.2(15) and secondly, whether appellant's activity falls under the residuary limb of \"advancement of any other object of general public activity\". Considering the elaborate discussion in the order of Honourable ITAT for AY 4 MA Nos.304 and 318/PUN/2023 2010-11 vide para-5, para-6 and para-7, it transpires, the grounds relating to the residuary limb of section 2(15) i.e. \"advancement of any other object of general public activity\" were indeed deliberated. But, grounds relating to the aspect \"education\" remained to be so decided. 12. Appellant carries a belief that, appellant's activity involves \"education\" as so clarified in the wider meaning of the said word \"education\" emanating from various decisions of Honorable Courts. 13. Further, against the order of Honourable ITAT for AY 2010-11, Appellant preferred an appeal before the Honourable Bombay High Court bearing Interim Application (L) No. 28570 of 2023. A copy of the said Interim Application is also enclosed and marked as Annexure-3. 14. During the hearing before the Honourable Bombay High Court, Appellant sought a leave to withdraw the said appeal with a liberty to file Miscellaneous Application before the Honourable ITAT. Said leave was granted by Honourable Bombay high Court vide order dated 1 November 2023, with a condition that, the MA be filed within four weeks. Copy of the said order is enclosed and marked as Annexure-4. 15. Present Miscellaneous Application is being filed before the Honourable ITAT with folded hands and with a request for adjudication of grounds relating to the aspect of Appellant's activity having \"education\" as the object. 16. The appellant therefore prays that the Hon'ble Appellate Tribunal may be pleased to recall the Appellate order dated 14th February 2023 and reconsider the matter for fresh adjudication for the above prayers.” He submitted that the contents of the Miscellaneous Application are self- explanatory and therefore, appropriate order should be passed by the Tribunal by recalling the order and adjudication of the issue afresh. 4. The ld. DR on the other hand strongly opposed the Miscellaneous Applications filed by the assessee. He submitted that the Tribunal after thoroughly examining the submissions made by the assessee has passed a detailed order and there is no apparent error in it. The assessee through these Miscellaneous Applications is requesting the Tribunal to re-adjudicate the issue afresh which amounts to review of its own order by the Tribunal, which is not permissible in law. 5 MA Nos.304 and 318/PUN/2023 4.1 Referring to the decision of Hon’ble Supreme Court in the case of CIT Vs. M/s. Reliance Telecom Ltd. vide Civil Appeal No.7110 & 7111/2021 dated 03.12.2021, he submitted that the Hon’ble Supreme Court in the said order has held that if the assessee is of the opinion that the order passed by the Tribunal is erroneous, either on facts or in law, in that case, the only remedy available to the assessee is to prefer an appeal before the Hon’ble High Court. He accordingly submitted that the Miscellaneous Applications filed by the assessee deserve to be dismissed. 5. We have heard the rival arguments made by both the sides and perused the record. It is the grievance of the assessee through this Miscellaneous Application that although the Tribunal has elaborately discussed the issue on the grounds relating to the residuary limb of section 2(15), i.e., “advancement of any other object of General Public Utility”, however, the grounds relating to the aspect of Education remained to be so decided. It is his argument that assessee’s activity involves Education which has a wider meaning and therefore, the Tribunal has fell in error in deciding the issue against the assesssee. We do not find any merit in the above arguments of the ld. Counsel for the assessee. A perusal of the order of the Tribunal shows that the Tribunal has thoroughly discussed the issue from para 5 onwards. The ld. Counsel for the assessee could not point out any apparent error in the order of the Tribunal so as to take a different view than the view taken by the Tribunal on this issue. 6 MA Nos.304 and 318/PUN/2023 5.1 We find the Hon’ble Supreme Court in the case of M/s. Reliance Telecom Ltd. (supra) while deciding the power of the Tribunal in rectifying its order has observed as under : “3.1 We have considered the order dated 18.11.2016 passed by the ITAT allowing the miscellaneous application in exercise of powers under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013 as well as the original order passed by the ITAT dated 06.09.2013. 3.2 Having gone through both the orders passed by the ITAT, we are of the opinion that the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is beyond the scope and ambit of the powers under Section 254(2) of the Act. While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013, it appears that the ITAT has re- heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under Section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. 4. In the present case, a detailed order was passed by the ITAT when it passed an order on 06.09.2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under Section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 06.09.2013 which has been passed in exercise of powers under Section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under Section 254 (2) of the Act. Therefore, the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is unsustainable, which ought to have been set aside by the High Court. 5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by Section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but 7 MA Nos.304 and 318/PUN/2023 ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2) of the Act. As observed hereinabove, the powers under Section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 7. In view of the above and for the reasons stated above, the impugned common judgment and order passed by the High Court as well as the common order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 deserve to be quashed and set aside and are accordingly quashed and set aside. The original orders passed by the ITAT dated 06.09.2013 passed in the respective appeals preferred by the Revenue are hereby restored. 8. Considering the fact that the Assessee had earlier preferred appeal/s before the High Court challenging the original order passed by the ITAT dated 06.09.2013, which the Assessee withdrew in view of the subsequent order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013, we observe that if the Assessee/s prefers/prefer appeal/s before the High Court against the original order dated 06.09.2013 within a period of six weeks from today, the same may be decided and disposed of in accordance with law and on its/their own merits and without raising any objection with respect to limitation. 9. Both the appeals are accordingly allowed in the aforesaid terms. However, there shall be no order as to costs.” 6. Since in the instant case also, a detailed order has been passed by the Tribunal, therefore, respectfully following the decision of the Hon’ble Supreme Court (cited supra), we are of the considered opinion that if the assessee is aggrieved by the order of the Tribunal, either on facts or in law, then the only remedy available to the assessee is to prefer an appeal before the Hon’ble High Court. A perusal of the contents of the Miscellaneous Application shows that the assessee through this Miscellaneous Application is 8 MA Nos.304 and 318/PUN/2023 trying to persuade the Tribunal to re-adjudicate the issue which is nothing but review of its own order by the Tribunal, which is not permissible in law. In view of the above discussion, we are of the considered opinion that the Miscellaneous Application filed by the assessee being devoid of any merit is liable to be dismissed. Accordingly, the same is dismissed. MA No.318/PUN/2023 : 7. After hearing both the sides, we find the issue raised by the assessee in this Miscellaneous Application is identical to the issue raised in M.A.No.304/PUN/2023. We have already decided the issue and the Miscellaneous Application filed by the assessee has been dismissed. Following similar reasoning, the Miscellaneous Application filed by the assessee is dismissed. 8. In the result, both the Miscellaneous Applications filed by the assessee are dismissed. Order pronounced in the open Court on 30th October, 2024. Sd/- Sd/- (ASTHA CHANDRA) (R. K. PANDA) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; \u000bदनांक Dated : 30th October, 2024 Satish 9 MA Nos.304 and 318/PUN/2023 आदेश की \u0007ितिलिप अ\rेिषत/Copy of the Order is forwarded to: 1. अपीलाथ\u0007 / The Appellant; 2. \b\tथ\u0007 / The Respondent 3. 4. The concerned Pr.CIT, Pune DR, ITAT, ‘A’ Bench, Pune 5. गाड\f फाईल / Guard file. आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune "