Commissioner Of Income Tax(Exemption), Kolkata v. St. Jhon Diocesan Girls’ Highersecondary School

OD-1 ITAT/408/2017 IA No.GA/1/2017 (Old No.GA/3784/2017)IA No.GA/2/2017 (Old No.GA/3785/2017)IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE COMMISSIONER OF INCOME TAX(EXEMPTION), KOLKATA -Versus- ST. JHON DIOCESAN GIRLS’ HIGHERSECONDARY SCHOOL Appearance:Mr. Prithu Dudheria, Adv....for the appellant.Mr. Bhaskar Sengupta, Adv....for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Date : 12[th] April, 2022. The Court : We have heard Mr. Prithu Dudheria, learnedstanding counsel appearing for the appellant/revenue and Mr.Bhaskar Sengupta, learned Advocate appearing for therespondent/assessee. There is a delay of 39 days in filing the appeal. Wehave perused the affidavit filed in support of the applicationfor condonation of delay. We are satisfied with the reasonsgiven therein. Accordingly, the delay in filing the appeal iscondoned and the application for condonation of delay (IANo.GA/1/2017 (old No.GA/3784/2017) is allowed. Re: ITAT/408/2017: This appeal filed by the revenue under Section 260A ofthe Income Tax Act, 1961 (the ‘Act’ in brevity) is directedagainst the order dated 2[nd] June, 2017 passed by the Income TaxAppellate Tribunal, “C” Bench, Kolkata (the ‘Tribunal’ in short)ITA No.1079/Kol/2013 for the assessment year 2009-10. The revenue has raised for the following substantialquestions of law for consideration: “a) Whether on the facts and circumstances of the case and inlaw the said Tribunal erred in granting relief to theassessee u/s II (2) of the Income Tax Act, 1961, in acase of “Under application” of income and where theassessee failed to comply with the terms of section11(2)of the Income Tax Act, 1961 in respect of itsrevised claim, before completion of assessment u/s.143(3) of the Income Tax Act, 1961 ?law the said Tribunal erred in granting relief to theassessee u/s II (2) of the Income Tax Act, 1961, in acase of “Under application” of income and where theassessee failed to comply with the terms of section11(2)of the Income Tax Act, 1961 in respect of itsrevised claim, before completion of assessment u/s.143(3) of the Income Tax Act, 1961 ? b) Whether on the facts and circumstances of the case and inlaw the said Tribunal erred in not abiding by thedecision of the Hon’ble Supreme Court in the case of CITvs. Nagpur Hotel Owners’ Association [247 ITR 201] whereon similar set of facts it was held by the Apex Courtthat for availing benefit of Section 11(2) of the IncomeTax Act, 1961, Form No.10 along with the resolution forset apart must be furnished before the assessing officer,prior to completion of assessment and not aftercompletion of assessment ?law the said Tribunal erred in not abiding by thedecision of the Hon’ble Supreme Court in the case of CITvs. Nagpur Hotel Owners’ Association [247 ITR 201] whereon similar set of facts it was held by the Apex Courtthat for availing benefit of Section 11(2) of the IncomeTax Act, 1961, Form No.10 along with the resolution forset apart must be furnished before the assessing officer,prior to completion of assessment and not aftercompletion of assessment ?c) Whether on the facts and circumstances of the case and inlaw the said Tribunal was correct in upholding revisedclaim of exemption u/s. 11(2) of the Income Tax Act, 1961made before the said Commissioner, over and aboveexemption allowed during assessment under the saidsection in accordance with the claim made in the Returnby the assessee, disregarding the decision of the Hon’blelaw the said Tribunal was correct in upholding revisedclaim of exemption u/s. 11(2) of the Income Tax Act, 1961made before the said Commissioner, over and aboveexemption allowed during assessment under the saidsection in accordance with the claim made in the Returnby the assessee, disregarding the decision of the Hon’ble Supreme Court of India in the case of Goetze India vs.CIT [284 ITR 323] ?” Supreme Court of India in the case of Goetze India vs.CIT [284 ITR 323] ?” We have heard Mr. Prithu Dudheria, learned standingcounsel for the appellant/revenue and Mr. Bhaskar Sengupta,learned Advocate for the respondent/assessee. Learned counselfor the appellant submitted that the tax effect involved in thisappeal is Rs.37,08,509/-. If that be so, the revenue cannot pursue this appeal on the ground of low tax effect. Accordingly, the appeal(ITAT/408/2017) stands dismissed on the ground of low taxeffect. Consequently, the substantial questions of lawsuggested by the revenue are left open. In the result, the connected application for stay IANo.GA/2/2017 (Old No.GA/3785/2017) also stands dismissed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) S.Pal/As.