Cwjc/17760/2011 Of Ishan International Educationa v. Chief Commissioner Of Income Tax-1, Patna

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.17760 of 2011 ====================================================== Ishan International Education, a Society Registered under the Societies Act,1860 having its office at South end of Doctor's Colony, Malahi Pakri,Kankarbagh, Patna 800020 through its President, Dr. Arbind Kumar, Son ofLate Durga Singh, Resident of South end of Doctor's Colony, Malahi Pakri,Kankarbagh Patna-800020. ... ... Petitioner/s Versus 1.Chief Commissioner of Income Tax-1, Patna having its office at CentralRevenue Building, Bir Chand Patel Path, PatnaRevenue Building, Bir Chand Patel Path, Patna 2.Commissioner of Income Tax-1, Patna having its office at Central RevenueBuilding, Bir Chand Patel Path, PatnaBuilding, Bir Chand Patel Path, Patna ... ... Respondent/s ======================================================Appearance :For the Petitioner/s: Mr.D.V.Pathy, Advocate For the Respondent/s: Mrs. Archana Sinha, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT(Per: HONOURABLE THE CHIEF JUSTICE) Date : 15-09-2020 Petitioner has prayed for the following relief(s): “i) the order dated 26.8.2011 for theassessment year 2002-03 (as contained inAnnexure-4) passed by the respondent no. 1 underSection 10 (23C) (vi) or (via) of the Act bequashed; ii) the respondent no. 1 be directed toaccord approval under Section 10 (23C) (vi) or(via) of the Act for the assessment year 2002-03; iii) for granting any other relief(s) to which the petitioner is otherwise found entitled to.” In view of disputed question of fact, and the law laid down by Hon’ble the Apex Court in Commissioner of Income Tax & Anr. v. Karnataka Planters Coffee CuringWork Private Limited,(2016) 9 SCC 538, we are not inclinedto entertain the present petition, more so when we find that for alittle less than a decade, petitioner failed to pursue any remedyin accordance with law. We are concerned with the assessment proceedings pertaining to the Assessment Year 2002-03. Petitioner seeks toset up a claim for exemption under Section 10(23C) (vi) and(via) of the Income Tax Act, 1969. Seeking such benefit, purportedly, petitionersubmitted an application (Form No. 56D) before the authorityon 31[st] of October, 2002. On record there is another applicationstated to have been filed on 4[th] of February, 2003. The Chief Commissioner, Income Tax I, Patna hasdealt with the petitioner’s claim, seeking exemption, videimpugned order dated 26[th] of August, 2011 (Annexure-4) whichis extracted as under: “Ishan International Educational Society,Malahi Pakri, Kankarbagh, Patna-800020 (the applicant) has filed an application dated 12[th] May,2011 enclosing therewith photocopy of anapplication in Form No. 56D dated 30/10/2002 forgrant of exemption u/s 10(23C) (vi) & (via) of theIncome-tax Act, 1961 for the A.Y. 2002-03 filed on04/02/2003 before Commissioner of Income-tax,Patna-I, Patna. The Chief Commissioner, Income Tax I, Patna hasdealt with the petitioner’s claim, seeking exemption, videimpugned order dated 26[th] of August, 2011 (Annexure-4) whichis extracted as under: “Ishan International Educational Society,Malahi Pakri, Kankarbagh, Patna-800020 (the applicant) has filed an application dated 12[th] May,2011 enclosing therewith photocopy of anapplication in Form No. 56D dated 30/10/2002 forgrant of exemption u/s 10(23C) (vi) & (via) of theIncome-tax Act, 1961 for the A.Y. 2002-03 filed on04/02/2003 before Commissioner of Income-tax,Patna-I, Patna. The stipulation as per 14[th] proviso to section10(23C) inserted vide Finance Act, 2006 witheffect from 01[st] June, 2006, requires that anapplication made on or after 01[st] June, 2006 for thepurposes of grant of exemption or continuancethereof, is filed before the appropriate authority atany time during the financial year immediatelypreceding the assessment year from which theexemption is sought. Thus, the application in FormNo. 56D seeking exemption u/s 10 (23C)(vi) &(via) of the Income-tax Act, 1961 for the AY-2002-03 should have been filed in the office of ChiefCommissioner of Income-tax-I, Patna and not inthe office of Commissioner of Income-tax-I, Patna,as CCIT-I, Patna is the appropriate authority for thepurposes of grant of exemption u/s 10(23C)(vi) &(via) of the Income-tax Act, 1961. Further, theapplication of the assessee filed on 04/02/2003even if treated as a pending application could notbe proceeded with as the application is invalidbeing time barred as it should have been filed on orbefore 31/03/2002. The competent authority is notvested with power of condonation of delay. Hence, the application of the assessee filedon 12/05/2011 seeking grant of exemption u/s10(23C)(vi) & (via) for the A.Y. 2002-03 is rejectedbeing invalid and without considering the requeston merits. While disposing of the applications asaforesaid, the facts stated in the letter dated19/08/2011 filed suo motu by the applicant havealso been considered” From the material on record, it is evident thatsimilar application(s) filed by the petitioner for the subsequentperiods were dealt with by the competent authority. However, with respect to the year in question, it isthe case of the Revenue that the application filed, if any, was notbefore the competent authority, and as such, none otherthantheauthorized authority was under any obligation to deal with thesame. We are in agreement. That apart, we notice that even though thepetitioner diligently pursued similar application for the periodsubsequent to the one in question, but did not take any steps forpursuing the application purportedly filed on 31[st] of October,2002/ refiled on 4[th] of February, 2003. For more than eight yearspetitioner allowed the matter to be slept over. Here only we may clarify that the Revenue does not admit filing of the application (Annexures P-1 and P-2), butonly avers that neither any application was filed nor was itpending with the competent authority. For all the aforesaid reasons, more so in view ofdisputed question of fact, applying the ratio laid down inCommissioner of Income Tax & Anr. v. Karnataka PlantersCoffee Curing Work Private Limited (supra) we refrain frompassing any order which the petitioner so desires. Hence, theinstant petition, instituted on 30.09.2011 is dismissed in theaforesaid terms. (Sanjay Karol, CJ) ( S. Kumar, J) K.C.Jha/- AFR/NAFRCAV DATEUploading Date22.09.2020Transmission Date