Cwjc/5967/2019 Of Radha Govind Public Welfare Society v. The Commissioner Of Income Tax (Exemption), Patna

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.5576 of 2019 ====================================================== Radha Govind Public Welfare Society Jara Tola Near Ramgarh College,Ramgarh Cantt. Hazaribagh (Jharkhand) through its Secretary Sri BaijnathSah, Son of late Govind Sah, Resident of Gaushala Road, Vikashnagar,Opposite Ramgarh Railway Station, Police Station- Ramgarh, District-Ramgarh(Jharkhand). ... ... Petitioner/s Versus 1.The Commissioner of Income Tax (Exemption), Patna. 2.The Deputy Commissioner of Income Tax, Exemption Circle, Ranchi. 3.The Commissioner of Income Tax (Appeals)-1, Ranchi. ... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 5967 of 2019 ====================================================== Radha Govind Public Welfare Society Jara Tola Near Ramgarh College,Ramgarh Cantt. Hazaribagh (Jharkhand) through its Secretary, Sri BaijnathSah, male, aged about 51 years, son of Late Govind Sah, resident of GaushalaRoad, Vikashnagar, Opposite Ramgarh Railway Station, Police Station-Ramgarh, Distt.- Ramgarh (Jharkhand) ... ... Petitioner/s Versus 1.The Commissioner of Income Tax (Exemption) Patna 2.The Deputy Commissioner of Income Tax Exemption Circle, Ranchi 3.The Commissioner of Income Tax (Appeals)-1 Ranchi ... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 5577 of 2019 ====================================================== Radha Govind Public Welfare Society Jara Tola Near Ramgarh College,Ramgarh Cantt. Hazaribagh (Jharkhand) through its Secretary Sri BaijnathSah, male, aged about 51 years, son of late Govind Sah, resident of GaushalaRoad, Vikashnagar, Opposite Ramgarh Railway Station, P.S.-Ramgarh,District-Ramgarh (Jharkhand) ... ... Petitioner/s Versus 1.The Commissioner of Income Tax (Exemption) Patna 2.The Deputy Commissioner of Income Tax Exemption Circle, Ranchi 3.The Commissioner of Income Tax (Appeals)-1 Ranchi ... ... Respondent/s ====================================================== Appearance :(In Civil Writ Jurisdiction Case No. 5576 of 2019)For the Petitioner/s: Mr.Ajay Kumar Rastogi, Adv.For the Respondent/s: Mr.Archana Sinha @ Archana Shahi, Adv.(In Civil Writ Jurisdiction Case No. 5967 of 2019)For the Petitioner/s: Mr.Ajay Kumar Rastogi, Adv.For the Respondent/s: Mr.Archana Sinha @ Archana Shahi, Adv.(In Civil Writ Jurisdiction Case No. 5577 of 2019)For the Petitioner/s: Mr.Ajay Kumar Rastogi, Adv.For the Respondent/s: Mr.Archana Sinha @ Archana Shahi, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN and HONOURABLE MR. JUSTICE ARVIND SRIVASTAVAORAL JUDGMENT(Per: HONOURABLE MR. JUSTICE JYOTI SARAN) Date : 29-03-2019 Since all these writ petitions raise common issuesof law that they have been taken up together and are beingdisposed of by a common judgment. The petitioner in each of the three writ petitions, isthe same and is aggrieved by the order of the Commissioner,Income Tax(Exemptions) whereby, pending disposal of theappeal arising from an order passed by the assessing authoritythat he has been directed to make a deposit of 20% of thedisputed amount before he can be allowed the benefit of adinterim stay of the demand. The three writ petitions relate to the assessment year 2014-15, 2015-16, 2016-17 and in each of the cases theDeputy Commissioner, Income Tax Exemptions Circle, Ranchi,by the impugned order at Annexure-2 has while revoking theexemption granted to the petitioner under Section 11 and 12 ofthe Income Tax Act, 1961(hereinafter referred to as 'the Act') byvirtue to their registration under Section 12AA of 'the Act', hasassessed the society, with penalty proceedings, sought to beinitiated. The three writ petitions relate to the assessment year 2014-15, 2015-16, 2016-17 and in each of the cases theDeputy Commissioner, Income Tax Exemptions Circle, Ranchi,by the impugned order at Annexure-2 has while revoking theexemption granted to the petitioner under Section 11 and 12 ofthe Income Tax Act, 1961(hereinafter referred to as 'the Act') byvirtue to their registration under Section 12AA of 'the Act', hasassessed the society, with penalty proceedings, sought to beinitiated. Mr. A.K. Rastogi, learned counsel appears for thepetitioner while the writ petition is resisted by Ms. ArchanaSinha, learned counsel for the Income Tax Department. The short submission made by Mr. Rastogi, is thatuntil such time that the petitioner society would enjoy thebenefit of registration under Section 12AA and until it isinterfered with by a competent authority, the DeputyCommissioner, Income Tax has no jurisdiction to revoke thebenefit to which the petitioner is entitled under Section 11 and12 of 'the Act' by virtue of the registration so given and any suchattempt by the Deputy Commissioner, Exemption Circle, wouldbe without jurisdiction because such power is exclusivelyreserved for the Commissioner. We are certainly not entering into the merits of the contest as to whether the computation of income is correctbecause the appeal arising from the orders passed for therespective assessment years, is yet pending consideration beforethe Appellate authority. What we are concerned presently iswhether in the circumstances discussed, there is any requirementof a pre-deposit where undisputedly the registration of thepetitioner under Section 12AA of 'the Act' has not beeninterfered with by a competent authority. For ascertaining as towhether the petitioner enjoys registration under Section 12AA ofthe Act, we had allowed time to learned counsel for the IncomeTax Department to clarify as to the source of power for theDeputy Commissioner, Income Tax to revoke the registrationunder Section 12AA of 'the Act'. A supplementary counteraffidavit is filed and which is silent on any such order ofrevocation. In such view of the matter and without expressingany opinion on the merits of the case, we are certainly satisfiedto interfere with the order passed by the Commissioner, IncomeTax(Exemptions) in so far as it requires the petitioner to make apre-deposit of 20% of the tax assessed amount before theappeal(s) can be heard and which order is hereby set aside. Wealso hereby issue direction to the Commissioner (Appeals) to consider the appeal preferred by the petitioner for the respectiveyears and dispose of the same in accordance with law within amaximum period of 6 weeks from today and until such disposal,the respondents are restrained from taking coercive measures forrealization of the demand which are subject matter of appeals. As a consequence of decision above, theattachment orders if any issued, stands removed. The writ petition is allowed with the direction above. (Jyoti Saran, J) ( Arvind Srivastava, J) Bibhash AFR/NAFRAFRCAV DATENAUploading Date12.04.2019Transmission DateNA