Ma/948/2010 Of Bihar State Text Book Publishi v. The Commissioner Of Income Tax-I, Patna

IN THE HIGH COURT OF JUDICATURE AT PATNAMiscellaneous Appeal No.948 of 2010 ====================================================== Bihar State Text Book Publishing Corporation Ltd., a Corporation incorporated under the Companies Act, 1956 having its office at Budh Marg, PS Kotwali, District Patna, through its Registrar cum Secretary Basant Kumar son of Shri Satrughan Prasad Kunwar resident of Budh Marg, PS Kotwali District Patna .... .... Appellant/s Versus 1.The Commissioner of Income Tax-I, Patna having its office at Central Revenue Building, Birchand Patel Marg, Patna-800001 2.The Joint Commissioner of Income Tax, Range-2, having its office at Central Revenue Building (Annexe), Birchand Patel Marg, Patna-800001 .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. D.V.Pathy, advocate Mr. Abhi Sarkar, advocate Mr. Uttam Kumar Mishra, advocate For the Respondent/s : Mr. Harshwardhan Prasad, Sr. S.C. Mr. Rishi Raj Sinha, Jr. S.C. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH and HONOURABLE MR. JUSTICE VIKASH JAINORAL ORDER (Per: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH) Heard the parties. 5 23-04-2012 This appeal arises out of an order of Income Tax Appellate Tribunal, Patna Bench, Patna dated 04-04-2008 passed in ITA No. 649/PAT/2007 for the assessment year 2004-05. Learned counsel for the appellant submits that appellant had preferred M.A. No. 425/2010 with respect to assessment year 2005-2006 and the said appeal has been finally decided by a Division Bench of this court on 01-04-2011. He placed the said judgement to highlight that besides answering two other questions of law formulated in paragraph 3 of the judgement another question of law decided in favour of the appellant is that the Tribunal erred in not appreciating that sale of text book was an educational activity exempt from tax. The Division Bench has given finding in paragraph 7 of the judgement that the activity of the assessee are exempted by Section 10(23C)(iiiab) of the Income Tax Act. Learned counsel for the department advanced a submission that out of the four substantial questions of law only three were answered by the Division Bench and the 3[rd] question of law as appearing in paragraph 3 of the judgement was left unanswered. He further submitted that before giving a finding in favour of the assessee that the activity of sale of text book was an educational activity exempt from tax, some relevant statutory provisions were not taken into account. Once the Division Bench answered the substantial question No.4 in favour of the assessee that its activities were non profit making and an education activity exempt from tax, it was not necessary to answer the question No.3 which was only to the following effect- Whether the Tribunal was in error in holding that the subsidy receivable from the State Government of Bihar on sale of text books was taxable on mercantile system of accounting without an appropriate consideration of the fact that such subsidy not having been received was not real income and, therefore, not liable to tax. The other submission also is not fit to be considered when admittedly the Division Bench judgement has been accepted by the department and no challenge was made to that judgement. In fact the judgement of the Division Bench is based upon a Supreme Court judgement in the case of Assam State Text Book Production and Publication Corporation Ltd. Vs. CIT reported in 319 ITR 317 (SC). Following the aforesaid Division Bench judgement, this appeal is allowed in similar terms. (Shiva Kirti Singh, J) BKS/- (Vikash Jain, J)