Commissioner Of Income Tax [Central]-Iii, Kolkata v. Guru Nanak Educational Trust

Form No. IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE PRESENT: THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYA ITA/270/2009 IA NO: GA/1/2009, (Old No.GA/2658/2009) COMMISSIONER OF INCOME TAX -III, KOLKATAVERSUS GURU NANAK EDUCATIONAL TRUST For the appellant: Mr. Radha Mohan Roy, Adv., For the responden t: Mr. J. P. Khaitan, Sr. Adv., Mr. S. Kejriwal, Adv., Ms. Swapna Das, Adv., Heard on : January 17, 2022. Judgement on : January 17, 2022. T.S. SIVAGNANAM, J. : This application has been filed tocondone the delay of 42 days in filing the instant appeal. Heard Mr. Radha Mohan Roy, learned senior standing counselappearing for the appellant and Mr. Khaitan, learned senior counselappearing for the respondent/assessee. We are satisfied with the reasons assigned in the affidavit filed in support of the petition. Accordingly, the application for condonation of delay, IA NO: GA/1/2009, (Old No.GA/2658/2009), isallowed and the same is disposed of accordingly. This appeal by the revenue filed under Section 260A of theIncome Tax Act, 1961 [the Act, in brevity] is directed against the orderdated 20.03.2009 passed by the Income Tax Appellate Tribunal, “A”Bench, Kolkata [the Tribunal] in ITA no.96/Kol/2009 for theassessment year 2006-07. The revenue has raised the followingsubstantial questions of law for our consideration. a.Whether on the facts and in the circumstances of the casethe Income Tax Appellate Tribunal was justified in holdingthat no proper opportunity was afforded to the assessee asrequired under section 12AA[3] of the Act ?the Income Tax Appellate Tribunal was justified in holdingthat no proper opportunity was afforded to the assessee asrequired under section 12AA[3] of the Act ? b.Whether on the facts and in the circumstances of the casethe Income Tax Appellate Tribunal was justified in holdingthat the issue of Capitation Fees was not raised by theCommissioner of Income Tax in his notice dated 30[th]December, 2008 while initiating the cancellationproceedings?the Income Tax Appellate Tribunal was justified in holdingthat the issue of Capitation Fees was not raised by theCommissioner of Income Tax in his notice dated 30[th]December, 2008 while initiating the cancellationproceedings? We have heard Mr. Radha Mohan Roy, learned senior standingcounsel appearing for the appellant and Mr. Khaitan, learned seniorcounsel appearing for the respondent/assessee. The short issue which falls for consideration in this appeal iswhether the Commissioner of Income Tax, Central-III, Kolkata couldhave cancelled the registration granted to the appellant trust under We have heard Mr. Radha Mohan Roy, learned senior standingcounsel appearing for the appellant and Mr. Khaitan, learned seniorcounsel appearing for the respondent/assessee. The short issue which falls for consideration in this appeal iswhether the Commissioner of Income Tax, Central-III, Kolkata couldhave cancelled the registration granted to the appellant trust under Section 12AA of the Act on 31.10.2005 on grounds which were notcontained in the show cause notice dated 30.12.2008. The onlyallegation in the show cause notice was that the Commissioner onperusal of the accounts of the trust filed with the return for theassessment year 2006-07 found that the assessee trust has accepteddonation amounting to Rs.25,000/- which has been shown as boxcollection. The Commissioner was of the opinion that this donation isan anonymous donation within the meaning of Section 115BBC of theAct. Therefore, the assessee trust was called upon to show cause as towhy the registration could not be cancelled on the ground that theactivities of the trust are not being carried on in accordance with theobjects of the trust. The assessee submitted their explanation dated31.12.2008 contending that in the financial year 2005-06 relevant tothe assessment year 2006-07 the assessee trust received an amountof Rs.25,000/- as box collection and credited the same in the accountas donation. It was further contended that the provisions of Section115BBC of the Act are applicable only with effect from the assessmentyear 2007-08. Therefore, the assessee stated that all the activities ofthe trust are in accordance with the objects of the trust as mentionedin the deed of trust dated 05.08.1999. The Commissioner whileproceeding to pass the order dated 31.12.2008 and cancelling theregistration took into account certain issues which were not subjectmatter of the allegations in the show cause notice. The question waswhether the Commissioner could have done so. In our considered view, the Tribunal rightly took note of thefacts and pointed out that the Commissioner exceeded his jurisdictionby making certain observations, which were not subject matter ofallegations in the show cause notice. Thus, in our considered view, theTribunal after noting the facts has granted relief to the assessee.Thus, we find no question of law much less substantial questions oflaw arising for consideration in this appeal. Accordingly, the appealfails and is dismissed. (T.S. SIVAGNANAM, J.) I agree. (HIRANMAY BHATTACHARYYA, J.) pkd/S.PalAR(CR)