The Commissioner Of Income Taxsalem v. M/S.indian Educational Trustgopinathapuram Cross Roadparayampatty Pudurharur, Dharmapuri District

IN THE HIGH COURT OF JUDICATURE AT MADRAS THE HONOURABLE MR. JUSTICE R.SUDHAKARANDTHE HONOURABLE MR. JUSTICE R.KARUPPIAH The Commissioner of Income TaxSalem. .. Appellant/Respondent in both the appeals- Vs - M/s.Indian Educational TrustGopinathapuram Cross RoadParayampatty PudurHarur, Dharmapuri District... Respondent/Appellant in both the appeals Appeals filed under Section 260-A of the Income Tax Act againstthe common order dated 4.8.2011 passed by the Income Tax AppellateTribunal, Madras 'C' Bench, Chennai, made in ITA Nos.1177 &1178/Mds/2009 against the separate orders of the Commissioner ofIncome Tax Salem 7 dated 08.06.2009 C.No.9755(80) SlM/ 2008-2009. Aggrieved by the order of the Tribunal in allowing the appealfiled by the assessee/respondent herein, the Revenue is before thisCourt by filing the present appeal by raising the following questionsof law for consideration:- “a) Whether on the facts and circumstances of thecase was the Tribunal right in remanding the issueback to the CIT especially when the documentavailable on record and that the accounts of theassessee had not been properly maintained and the https://hcservices.ecourts.gov.in/hcservices/ returns of income filed were belated and when wrongclaims have been made by the assessee? b) Whether on the facts and circumstances of thecase was the Tribunal right in not considering thefact that under Section 12AA Commissioner isempowered to reject the application after perusingthe documents produced before him which he did? c) Whether on the facts and circumstances of thecase was the Tribunal right in remanding the issueback to the CIT, when application under Section 12AAdated 7.11.08 was properly rejected as per law sincethe applicant had failed to provide documentaryevidences sought for?” 2. These appeals are a consequence of the order passed by theCommissioner of Income Tax, Salem, dated 23.11.07 and 29.5.09,whereby the respondent/assessee's application for registration underSection 12AA was denied and exemption sought for under Section 80Gwas also rejected. 3. The brief facts, shorn of unnecessary details, are that theassessee filed application in Form 10A on 7.11.08 under Section 12 AA(1) (aa) of the Income Tax Act for registration and also filedapplication for exemption under Section 80 G (5) (vi) of the IncomeTax Act. Along with Form 10A, certified copy of trust deed and deedof amendment were also filed. Initially the Trust had applied forregistration and exemption, which was rejected by the Commissioner.Thereafter, the Trust, once again on 7.11.08, applied forregistration and exemption. Hearing notices were issued by theDepartment on several dates and since none appeared on behalf of theTrust, the registration under Section 12AA was dismissed for defaultand, consequently, exemption under Section 80G (5) (vi) was alsorejected. Though the assessee contended that they were under thebona fide belief that the registration sought for under Section 12AAoriginally dated 14.8.02 was not rejected and, therefore, presumedthe same has been granted notwithstanding the subsequent rejection on23.11.07, however, the said contention was not accepted by theCommissioner due to the fact that two subsequent applications forregistration were filed by the assessee. 4. Aggrieved by the said orders of the Commissioner of IncomeTax, the assessee filed appeals before the Tribunal. The Tribunal,on a consideration of the matter and on perusal of the documentaryevidences produced before it, remanded the matter back to theCommissioner of Income Tax for fresh consideration. Aggrievedagainst the said order of the Tribunal, the Revenue is before thisCourt by filing the present appeals. 5. Heard Mr.Narayanaswamy, learned standing counsel appearingfor the appellant/Department. 4. Aggrieved by the said orders of the Commissioner of IncomeTax, the assessee filed appeals before the Tribunal. The Tribunal,on a consideration of the matter and on perusal of the documentaryevidences produced before it, remanded the matter back to theCommissioner of Income Tax for fresh consideration. Aggrievedagainst the said order of the Tribunal, the Revenue is before thisCourt by filing the present appeals. 5. Heard Mr.Narayanaswamy, learned standing counsel appearingfor the appellant/Department. 6. It is evident from the records that the main plea taken by theassessee/respondent herein before the Tribunal appears to be onviolation of principles of natural justice stating that documents andevidence produced by the assessee/respondent have not been consideredby the authority. In such view of the matter, the Tribunal, on goingthrough the documents and typed set of papers, was of the view thatthe case requires reconsideration of the entire issues by theCommissioner of Income Tax and, accordingly, remanded the matter backfor reconsideration. For better clarity, para-4 of the order of theTribunal, is extracted hereinbelow :- “We have visualized the rival stands and have alsocarefully treaded through the Trust Deed and otherrelevant documents enclosed in the paper book. We areconvinced that this is a fit case for remanding backto the file of the ld. CIT so that he can re-examinethe entire issue(s) in the light of the evidence(s)available before him as well as the oral submissions,if any, which can be made. Consequently, we restoreboth these appeals to the file of the ld. CIT for hisfresh decision. Consequently, both the appeals areallowed for statistical purposes.” 7. It is clear from the order passed by the Tribunal that it isan open remand without any fetters on the department and, therefore,no grievance can be addressed in these appeals. The questions of lawraised by the appellant, in the facts of the present cases, are notrequired to be adjudicated upon. 8. In the result, the appeals fails and the same are dismissed. Sd/-Assistant Registrar //True Copy// Sub Assistant Registrar GLN To 1. The Commissioner of Income Tax No.3 Gandhi Road, Salem.7 Salem.7 2. The Income Tax Appellate Tribunal 'C' Bench, Chennai. 'C' Bench, Chennai. + 1 cc to Mr.J. Narayanasamy, Advocate SR.4194 T.C.A. NOS.1071 & 1072 OF 2014 MG(CO) Eu 21.02.15