V/S.income Tax Officer (Exemptions) 2 (4 v. Amit B. Borkar, Jj

Digitallysigned by1/3PURTIPURTIPRASADPRASADPARABPARABDate:2021.12.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY18:20:22+0530ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 973 OF 2020 Universal Education Foundation ….Petitioner V/s.The Income Tax Appellate Tribunal Mumbai& Ors. …Respondents ALONGWITH INCOME TAX APPEAL NO. 3212 OF 2019 M/s. Universal Education Foundation V/s.Income Tax Officer (Exemptions) 2 (4) ….Appellant …Respondent ---- Dr. K. Shivaram, Senior Advocate i/b Mr. Rahul K. Hakani for Petitioner/ Appellant.Mr. Sham V. Walve for Respondent-Revenue. ---- CORAM : K.R. SHRIRAM &AMIT B. BORKAR, JJ. DATED : 2[nd] DECEMBER, 2021 AMIT B. BORKAR, JJ. P.C. : 1.Dr. Shivaram submitted that tribunal has erred in holding thatappellant received the entire consideration of Rs.3,55,45,600/- in theAssessment Year 2011-12 though in fact it was received only during theAssessment Year 2015-16. Dr. Shivaram submits that documentary evidenceto that effect was submitted to Income Tax Appellate Tribunal but same hasnot been considered. Dr. Shivaram further submitted that in fact petitioneralso exercise its option under Clause 2 of Explanation to Section 11 (1) ofthe Income Tax Act, 1961 (the Act) but the tribunal in its order impugned in the petition has not answered whether petitioner exercised the option.Dr.Shivaram further states that even assuming for the sake of argumenttribunal had come to a conclusion that petitioner did not exercise the optionwithin the time prescribed under Clause 2 of Explanation to Section 11 (1)of the Act, but after the time prescribed, the tribunal will have to answer theconsequences of not meeting the deadline. 2.Mr. Walve submitted that the tribunal has referred to Clause 2of Explanation to Section 11 (1) of the Act and also has come to aconclusion that petitioner received Rs.3,55,45,600/- through Financial Year2011-12. What Mr. Walve states is correct but we would agree withDr.Shivaram that the tribunal has not answered the queries as submittedabove by Dr.Shivaram. 3.In the circumstances, in our view, we would set aside theimpugned order dated 26[th] June, 2019 passed in ITA No.1097/MUM/2016and 20[th] March, 2020 passed in MA No.584/MUM/2019 and remand thematter for denovo consideration and would request the tribunal to answer,inter-alia, (a) When did petitioner receive entire consideration of Rs.3,55,45,600/-; Rs.3,55,45,600/-; (b) Whether petitioner exercised the option under Clause 2 of Explanation to Section 11 (1) of the Act; (c) If petitioner has exercised but beyond time prescribed in Clause (2) of Explanation to Section 11 (1) of the Act, the consequences thereof? 4.Petition is disposed in the above terms. 5.In view of the above, Dr. Shivaram seeks leave to withdrawIncome Tax Appeal No.3212 of 2019 with liberty to approach this courtshould the Income Tax Appellate Tribunal hold against petitioner in theremanded matter. 6.All rights and contentions are kept open to be raised before the Income Tax Appellate Tribunal. 7. Income Tax Appeal No.3212 of 2019 stands dismissed aswithdrawn with liberty as prayed. 8.Refund of court fee, if any, be paid in accordance with rules. (AMIT B. BORKAR, J.) (K.R. SHRIRAM, J.)