Wa/873/2013 Of M/S. Kadakkal Educational Trust v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935 WA.No. 873 of 2013 () --------------------------- AGAINST THE ORDER/JUDGMENT IN WP(C).NO. 12755/2012 DATED 05-12-2012........ APPELLANT/PETITIONER: ----------------------------------------- M/S. KADAKKAL EDUCATIONAL TRUST, 'AMINAS', T/C/NO.12/1050, JAI NAGAR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011, REP BY SHRI MOHAMMED RASHEED, MANAGING TRUSTEE. BY SRI.T.M.SREEDHARAN, SENIOR ADVOCATE. ADVS. SRI.V.P.NARAYANAN, SMT.BOBY M.SEKHAR. RESPONDENT/RESPONDENT: --------------------------------------------- THE COMMISSIONER OF INCOME TAX, AYYAKAR BHAVAN, KOWDIAR P.O., THIRUVANANTHAPURAM-695 003. BY ADV. SRI.JOSE JOSEPH, SC, INCOME TAX. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. MANJULA CHELLUR, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * * W.A.No.873 of 2013 ---------------------------------------- Dated this the 8[th] day of January 2014 J U D G M E N T SHAFFIQUE,J The petitioner in the writ petition is the appellant. The writ petition is filed challenging Exts.P5, P11 and P13 and fora direction to the respondent to consider the application inForm No.10A dated 30/05/2007 produced as Ext.P2 alongwith the amended documents submitted by the petitioners. 2.The appellant is an educational trust. Theyapplied for registration under Section 12A of the Income taxAct 1961. Ext.P2 is such an application submitted by them.There were certain defects in the application which weredirected to be rectified and on resubmission also certaindefects were noticed. In the meantime, the appellantsubmitted an application under Section 10(23)(C)(vi) of theIncome Tax Act which was later on rejected by the W.A.No.873/2013 Commissioner of Income Tax. The petitioner thereaftersubmitted a fresh application under Section 12A which was allowed as per Ext.P8 order dated 20/01/2011. Therefore, asfar as petitioner is concerned, the Trust is registered underSection 12A for the assessment year 2010-2011 onwards. 3.The issue is with reference to the financial yearsstarting from 2007-2008 for which Ext.P2 application wasfiled. The learned Single Judge did not interfere with theorders passed by the authorities on the basis that the issuehad already been covered by earlier judgments of this Courtby which it was found that the application submitted by thepetitioner as Ext.P2 was no longer in force. 4.The learned counsel for the appellant howeverwould argue that though it is stated that the earlierapplication submitted by the petitioner as Ext.P2 waswithdrawn, in effect, the appellant did not withdraw the saidapplication. The said application was pending considerationand no final orders were passed. In the meantime, thepetitioners had applied under Section 10(23)(C)(vi) of the Act which was rejected by the respondent authority. Even if the said application is rejected, the authority concernedought to have considered the application for registrationunder Section 12A which was resubmitted on 20/09/2007. 5.Heard learned counsel for the appellant as well asthe learned Standing counsel appearing for the department.In fact, the petitioner had taken up this matter in an earlierproceedings in W.P.C.No.28008/2009 and the learned SingleJudge of this Court had come to a finding at paragraph 5 asunder: “From the contentions as narrated above, it is evident that the stand taken bythe petitioner regarding pendency of theapplication for registration under Section12A, is not true and correct. Since such anapplication is not pending disposal before theauthority concerned, the relief sought forcould not be granted.” the said application is rejected, the authority concernedought to have considered the application for registrationunder Section 12A which was resubmitted on 20/09/2007. 5.Heard learned counsel for the appellant as well asthe learned Standing counsel appearing for the department.In fact, the petitioner had taken up this matter in an earlierproceedings in W.P.C.No.28008/2009 and the learned SingleJudge of this Court had come to a finding at paragraph 5 asunder: “From the contentions as narrated above, it is evident that the stand taken bythe petitioner regarding pendency of theapplication for registration under Section12A, is not true and correct. Since such anapplication is not pending disposal before theauthority concerned, the relief sought forcould not be granted.” 6.However, this Court observed that the petitionercan seek appropriate remedy for applying for registration W.A.No.873/2013 under Section 12A with respect to the period prior to the assessment year 2010-2011. It is also observed that thepetitioner could challenge the dismissal of exemption underSection 10(23A)of the Act. Since the appellant was notsatisfied with the said judgment, review petition was filedand in the review petition this Court did not interfere withthe earlier judgment and it is inter alia observed that thedirections contained in judgment dated 28/01/2011 to theextent of permitting the petitioner to file fresh applicationfor registration under Section 12A, need not be interfered.The main question involved in the review petition waswhether the observation of the Court that the application iswithdrawn should be modified or not. The learned SingleJudge did not interfere with the said order. 7.Pursuant to Ext.P9 judgment and the review orderat Ext.P10, Ext.P11 order was passed on 24/10/2011 by theCommissioner of Income Tax clearly indicating that Ext.P2application is not pending. In fact, in the counter affidavitfiled by respondent authority also they have relied upon a communication issued by the Assistant Commissioner ofIncome Tax, Thiruvananthapuram on 02/12/2009 which interalia reads as under: “Another application for Registrationunder Section 12A dated 28/11/2007 wasreceived on 30/11/2007. That also wasdefective and a deficiency letter was issuedto the assessee on 23/1/2008. The case wasposted for hearing before Commissioner ofIncome Tax, Trivandrum on 05/05/2008. Thetime limit for disposal of the application for12A registration was on 30/05/2009. Theapplicant informed that as it was going toapply for approval under Section 10(23C)(vi)before the Chief Commissioner of IncomeTax, Trivandrum, it was not pursuingregistration u/s 12A. The applicant did file anapplication for approval u/s 10(23C)(vi)before CCIT on 15/5/2008. Under thesecircumstances it was presumed that theapplicant was not pursuing registration u/s12A and though no order was passed by theCIT the pendency was considered asdisposed with the remarks “Application W.A.No.873/2013 withdrawn” in the 12A register, inNo.116/2008-08.” 8.Since it is clearly indicated that though an application was filed under Section 12A dated 28/11/2007which was received on 30/11/2007, there were certaindefects and deficiencies for which the assessee was calledupon to cure the same. The case was also posted forhearing on 05/05/2008. The time limit for disposal ofapplication was on 30/05/2009. In the meantime, theapplicant had filed an application under Section 10(23)(C)(vi) before the Commissioner of Income Tax on 15/06/2008.Under such circumstances, the official records indicate thatthe application under Section 12A is withdrawn. W.A.No.873/2013 withdrawn” in the 12A register, inNo.116/2008-08.” 8.Since it is clearly indicated that though an application was filed under Section 12A dated 28/11/2007which was received on 30/11/2007, there were certaindefects and deficiencies for which the assessee was calledupon to cure the same. The case was also posted forhearing on 05/05/2008. The time limit for disposal ofapplication was on 30/05/2009. In the meantime, theapplicant had filed an application under Section 10(23)(C)(vi) before the Commissioner of Income Tax on 15/06/2008.Under such circumstances, the official records indicate thatthe application under Section 12A is withdrawn. 9.When the time limit for considering the saidapplication is already complete and the matter has beenconsidered by this Court in the earlier judgment which isextracted above, we do not think that the learned SingleJudge has committed any error of law in dismissing the writpetition filed by the petitioner. W.A.No.873/2013 10.In the result, we do not find any ground tointerfere with the findings of the learned Single Judge. But it is made clear that if the appellant had preferred any appealagainst the application for exemption under Section 10(23A)before the Appellate Tribunal, the said authority shallconsider the same and dispose of it untrammelled by any ofthe findings or observations made in the presentproceedings. Writ appeal is dismissed. (sd/-) (MANJULA CHELLUR, CHIEF JUSTICE) (sd/-) (A.M.SHAFFIQUE, JUDGE) jsr 09/01/2014