Wp(C)/12755/2012 Of M/S.kadakkal Educational Trust v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC WEDNESDAY, THE 5TH DAY OF DECEMBER 2012/14TH AGRAHAYANA 1934 WP(C).No. 12755 of 2012 (T) --------------------------- PETITIONER(S): --------------------------- M/S.KADAKKAL EDUCATIONAL TRUST ''AMINAS'', T/C NO.12/1050, JAI NAGAR, MEDICAL COLLEGE.P.O.,THIRUVANANTHAPURAM-695 011. REPRESENTED BY SHRI. MOHAMMED RASHEED, MANAGING TRUSTEE. BY SRI.T.M.SREEDHARAN,SENIOR ADVOCATE ADVS. SMT.NISHA JOHN SRI.V.P.NARAYANAN SMT.BOBY M.SEKHAR RESPONDENT(S): ------------------------------ THE COMMISSIONER OF INCOME TAX, AYYAKAR BHAVAN, KOWDIAR.P.O., THIRUVANANTHAPURAM-695 003. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.12755/2012 APPENDIX PETITIONER(S) EXHIBITS EXT.P1TRUE COPY OF THE CERTIFICATE NO. AC.B1/21586/2002-03 DATED 17-5-2003 ISSUED BY THE RESPONDENT. 17-5-2003 ISSUED BY THE RESPONDENT. EXT.P2TRUE COPY OF THE APPLICATION DATED 30-5-2007 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT.PETITIONER BEFORE THE RESPONDENT. EXT.P3TRUE COPY OF THE COMMUNICATION NO.301/ADIT(E)/45/0708 DATED 10-7-2007 RECEIVED BY THE PETITIONER FROM THE RESPONDENT.10-7-2007 RECEIVED BY THE PETITIONER FROM THE RESPONDENT. EXT.P4TRUE COPY OF THE AEMENDED TRUST DEED DATED 16-11-2007 EXECUTED BY THE PETITIONER TRUST.EXECUTED BY THE PETITIONER TRUST. EXT.P5TRUE COPY OF THE PROCEEDINGS C. NO. 301/ADIT/E/45/2007-08 DATED 26-9-2007 ISSUED BY THE RESPONDENT.26-9-2007 ISSUED BY THE RESPONDENT. EXT.P6TRUE COPY OF THE REPLY DATED 28-11-2007 GIVEN BY THE PETITIONERTO THE RESPONDENT.TO THE RESPONDENT. EXT.P7TRUE COPY OF THE COMMUNICATION C.301/ADIT(E) 116/07-08 DATED 23-1-2008 RECEIVED FROM THE RESPONDENT.23-1-2008 RECEIVED FROM THE RESPONDENT. EXT.P8TRUE COPY OF THE ORDER C. NO.301/12A/43/TRIVANDRUM/2010-2011(EDUCATION TRUST) DATED 20-1-2012 ISSUED BY THE RESPONDENT.(EDUCATION TRUST) DATED 20-1-2012 ISSUED BY THE RESPONDENT. EXT.P9TRUE COPY OF THE JUDGMENT DATED 28-1-2011 IN WPC NO. 28008 2009 OF THIS HON'BLE COURT.OF THIS HON'BLE COURT. EXT.P10TRUE COPY OF THE ORDER IN R.P. NO. 180 OF 2011 IN WPC NO. 28008 2009 DATED 16-3-2011 OF THIS HON'BLE COURT2009 DATED 16-3-2011 OF THIS HON'BLE COURT EXT.P11TRUE COPY OF THE ORDER C. NO. 301/43/10-11/11-12 DATED 24-10-2011 ISSUED BY THE RESPONDENT.ISSUED BY THE RESPONDENT. EXT.P12TRUE COPY OF THE REPRESENTATION DATED 30-11-2011 GIVEN BY THE PETITIONER TO THE RESPONDENT.PETITIONER TO THE RESPONDENT. EXT.P13TRUE COPY OF THE ORDER C. NO. 301/43/10-11/11-12 DATED 17-2-2012 ISSUED BY THE RESPONDENT.ISSUED BY THE RESPONDENT. RESPONDENTS' EXHIBITS : EXT.R1TRUE COPY OF THE LETTER C.301/ADIT(E)45/07-08/2009-10 DATED 2/12/2009 ADDRESSED TO COMMISSIONER OF INCOME TAX, TRIVANDRUM.2/12/2009 ADDRESSED TO COMMISSIONER OF INCOME TAX, TRIVANDRUM. /TRUE COPY/ sts P.A.TO.JUDGE ANTONY DOMINIC,J -------------------------------- W.P.(c)No.12755 of 2012 ------------------------------------- Dated this the 05[th ] day of December, 2012 JUDGMENT The petitioner is a Trust which has been established an Engineering College by name Shahul Hameed MemorialEngineering College. They submitted Ext.P2 application forregistration under Section 12A of the Income Tax Act. Onits receipt, the respondent issued Ext.P3 communicationrequiring the petitioner to rectify the defects mentionedtherein. For non-compliance of Ext.P3, Ext.P2 applicationwas rejected by Ext.P5 order issued on 26.09.2007. /TRUE COPY/ sts P.A.TO.JUDGE ANTONY DOMINIC,J -------------------------------- W.P.(c)No.12755 of 2012 ------------------------------------- Dated this the 05[th ] day of December, 2012 JUDGMENT The petitioner is a Trust which has been established an Engineering College by name Shahul Hameed MemorialEngineering College. They submitted Ext.P2 application forregistration under Section 12A of the Income Tax Act. Onits receipt, the respondent issued Ext.P3 communicationrequiring the petitioner to rectify the defects mentionedtherein. For non-compliance of Ext.P3, Ext.P2 applicationwas rejected by Ext.P5 order issued on 26.09.2007. 2. Subsequently, the petitioner submitted Ext.P6application dated 28.11.2007 stating that the defects wererectified and requesting for reconsideration of theirapplication. On its receipt, they were issued Ext.P7communication to cure the defects mentioned therein and also requiring them to attend this office on 16.02.2008. Itis stated in paragraph 5 of the statement filed by therespondent at that stage, the petitioner filed an applicationfor the benefit under Section 10(23C)(vi) before the ChiefCommissioner of Income Tax and that in view of the saidapplication, it was presumed that the petitioner was notpursuing Ext.P6. It is also stated that on the aforesaidbasis, the application was closed as withdrawn. 3. In the meanwhile, the petitioner applied for registration under Section 12A for the year 2010-2011,which was granted as per Ext.P8. It also appears that atthat stage, the petitioner filed writ petition before thisCourt as W.P.(c) No.28008 of 2009 contending that Ext.P2application was pending. The writ petition was disposed ofby Ext.P9 judgment. In that judgment, this Court heldthus: “5. From the contentions as narratedabove, it is evident that the stand taken bythe petitioner regarding pendency of theapplication for registration under Section 12Ais not true and correct. Since such anapplication is not pending disposal before theauthority concerned, the relief sought forcould not be granted. 6. However, it is brought to my notice bythe learned counsel for the petitioner thatregistration under Section 12A has alreadybeen granted on the basis of a subsequentapplication, with effect from the assessmentyear 2010-2011 onwards. Therefore, I am ofthe view that if the petitioner is intending topursue for registration under Sec.12A withrespect to the previous periods, it is left openfor him to approach the third respondent bysubmitting appropriate applications. Thepetitioner will be also at liberty to challengethe dismissal of exemption under Section 10(23A) in appropriate proceedings. I am of theview that reserving such remedies to the petitioner, this writ petition can be disposedof. 7. Therefore, the writ petition is disposed of relegating the petitioner to the thirdrespondent to seek appropriate remedy forapplying for registration under Section 12Awith respect to the periods prior to theassessment year 2010-2011. It is also leftopen to the petitioner to challenge thedismissal of applications for exemption filedunder Section 10(23A). Needless to say thatthe authority concerned will considerapplications if any filed in this regard and shalltake appropriate decision in accordance withlaw at the earliest possible. 4. Therefore, the petitioner sought review of the judgment by filing R.P.No.180 of 2011. That R.P. wasdisposed of by Ext.P10 order, which was held thus: “In the review petition it is stated thatthe respondents are taking a stand thatExt.P10 application was not disposed of asprovided under Section 12(AA)(b) (ii) and 4. Therefore, the petitioner sought review of the judgment by filing R.P.No.180 of 2011. That R.P. wasdisposed of by Ext.P10 order, which was held thus: “In the review petition it is stated thatthe respondents are taking a stand thatExt.P10 application was not disposed of asprovided under Section 12(AA)(b) (ii) and therefore a fresh application is notmaintainable. However, it is not necessary torender any decision regarding maintainabilityof a fresh application. I am of the view thatinterest of justice will be served if amodification is made in the directions,contained in the judgment dated 28.01.2011to the extent of permitting the petitionereither to file fresh application for registrationunder Section 12A or to seek appropriateremedy to restore Ext.P10, if permissibleunder law.” 5. Reading of Exts.P9 and P10 therefore, shows that this Court accepted the case of the respondents thatExt.P2 application was no longer pending. It wastherefore, that this Court gave liberty to the petitioner tomake a fresh application for the period covered by Ext.P2or seek restoration of Ext.P2, if it was permissible in law.In pursuance to Exts.P9 and P10, the matter wasconsidered and the respondent passed Ext.P11 order holding that the application cannot be restored in law.Seeking reconsideration of this order, the petitioner filedExt.P12 an that representation was also rejected byExt.P13. 6. Heard the counsel on both sides. The only issue that arises for consideration is whether the view taken inExts.P11 and P13 is illegal. Ext.P9 judgment has attainedfinality. In that judgment, it has been specifically foundthat Ext.P2 application was not pending. It was thereforethat the petitioner sought restoration of Ext.P2. Thatrequest was considered by this Court and in Ext.P10 order,it was directed that the petitioner can seek restoration andthe same will be considered if permissible in law. Theauthority has held in Ext.P11, that such a request is notpermissible. The correctness of this conclusion of therespondent will depend upon the provisions of Section 12A of the Income Tax Act. Having gone through this statutoryprovision, I am unable to find any authority for therespondent to restore an application under Section 12Aonce rejected. If that be so, it is not permissible to restorean application and if so, the conclusion in Exts.P11 andP13 that the petitioner's request for restoration of Ext.P2application is impermissible, cannot be said to be faulted.In that view of the matter, I do not find any tenablegrounds justifying interference in the impugned orders. The writ petition fails and it is dismissed. Sd/- ANTONY DOMINIC, JUDGE