Wp(Md)/12031/2011 Of Dr. Patchaimal v. The Commissioner Of Income Tax

1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED :: 29.10.2011CORAM ::THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIANW.P.(MD)No.12031 of 2011andM.P.(MD)No.1 of 2011Dr. Patchaimal,S/o. P. Peria Thambi,Cendect,(Centre for Development and Communication Trust),Rep. by its Director cum Secretary,No.1/167, West Street,Kamatchipuram,Theni District. ...... Petitioner -Vs - The Commissioner of Income Tax,No.2, V. P. Rathinasamy Nadar Road,Bibikulam,Madurai - 625 002 ...... Respondents Writ Petition filed under Article 226 of the Constitution ofIndia, to call for the records pertaining to the impugned order passed bythe respondent in C.A.No.464/75/CIT - 1/1985-86 dated 13.06.2011 and quashthe same. For Petitioner :: Mr. E. SomasundaramFor Respondent :: Ms. S. Srimathi for Mr. R. Sathiamoorthy O R D E R The petitioner has come up with the above writ petition,challenging an order passed by the respondent, in exercise of the powersconferred under Section 293C of the Income Tax Act, 1961 (hereinafterreferred to as "the Act"), cancelling the Registration granted to thepetitioner under Section 12A(a) of the Act. 2. Heard Mr. E. Somasundaram, learned counsel for the petitionerand Ms. S. Srimathi, learned counsel, representing the learned StandingCounsel for the respondent. 3. The petitioner was granted Registration under Section 12AA ofthe Act by the respondent, way back on 05.06.1986. Consequently, anexemption under Section 80G of the Act was also granted and it was renewed. 4. However, the last application for renewal of the exemptionunder Section 80G of the Act was rejected by an order dated 29.01.2010 andthe petition for Review filed by the petitioner was also rejected later. https://hcservices.ecourts.gov.in/hcservices/5. In the meantime, the respondent issued a show cause noticeunder Section 12AA(3) of the Act on 25.04.2011, calling upon the petitionerto show cause as to why the Registration should not be cancelled. The reason stated by the respondent for the proposed action was that theamendments to the Deed of Trust were not effected through a decree ofCourt. 6. In response to the show cause notice, the AdministrativeOfficer of the petitioner appeared before the respondent on 10.05.2011 and13.06.2011. Thereafter, the respondent passed the order impugned in thewrit petition, holding that the activities of the Trust are not genuine andthat it is not being carried in accordance with the objects. Aggrieved bythe said order, the petitioner is before this Court. 7. As against the order impugned in this writ petition, thepetitioner has an effective alternative remedy of Appeal to the AppellateTribunal under Section 253(1)(c) of the Act. Under sub-section (3) ofSection 253 of the Act, the limitation for filing the Appeal is sixty daysfrom the date, on which the order is communicated to the assessee. Subsection (5) of Section 253 of the Act also empowers the Appellate Tribunalto admit the Appeal beyond the period of limitation, upon the appellantshowing sufficient cause. Therefore, the appropriate remedy for thepetitioner is to file an Appeal. 8. This is in view of the fact that the respondent appears tohave followed the principles of natural justice. Though by the notice dated09.06.2011, the respondent fixed the date of hearing as 20.06.2011, theAdministrative Officer of the petitioner seems to have appeared on13.06.2011 and made his submissions. 9. The learned counsel for the respondent produced the notesheet, wherein it is recorded as follows:- "Mr. R. Pachaikannan was present. The case was heard". 10. At the bottom of the above endorsement made on 13.06.2011,the Administrative Officer of the petitioner has also signed. Therefore, itis clear that there was no violation of principles of natural justice. 8. This is in view of the fact that the respondent appears tohave followed the principles of natural justice. Though by the notice dated09.06.2011, the respondent fixed the date of hearing as 20.06.2011, theAdministrative Officer of the petitioner seems to have appeared on13.06.2011 and made his submissions. 9. The learned counsel for the respondent produced the notesheet, wherein it is recorded as follows:- "Mr. R. Pachaikannan was present. The case was heard". 10. At the bottom of the above endorsement made on 13.06.2011,the Administrative Officer of the petitioner has also signed. Therefore, itis clear that there was no violation of principles of natural justice. 11. Once it is clear that the respondent had the jurisdiction topass the impugned order and once it is also clear that there was noviolation of Rules of procedure or the principles of natural justice, thepetitioner cannot bye-pass the alternative remedy. 12. However, I should also point out the fact that the amendmentsto a Deed of Trust do not necessarily require an approval by a Civil Court.Section 92 of the Code of Civil Procedure is the only provision, underwhich certain directions could be sought from a Civil Court. The directionsthat could be sought from a Civil Court are enlisted in clause (a) to (h)of sub-section (1) of Section 92 of the Code of Civil Procedure. Theamendment to the object clause of a Deed of Trust is not one of the mattersincluded under clauses (a) to (h) of Section 92(1) of the Act. Though aCivil Court has a parens patriae jurisdiction over public charitable trustsand is competent to issue any kind of direction for the properadministration of a public charitable trust, it is not necessary in allcases for the Trustees to go before the Civil Court to seek amendment tohttps://hcservices.ecourts.gov.in/hcservices/the objects of the Trust. Therefore, to this extent, the respondent appearsto have gone on a wrong footing, though on that ground I would not like tointerfere with the said order. 13. Therefore, this writ petition is dismissed. The petitioner isat liberty to file an Appeal before the Appellate Tribunal under Section253(1) of the Act. If the petitioner files an Appeal within two weeks fromthe date of receipt of a copy of this order, the Appellate Tribunal shallexercise the power under sub-section (5) of Section 253 of the Act andentertain the Appeal against the said order, without reference to theperiod of limitation. However, there will be no order as to costs.Consequently, the connected M.P.(MD)No.1 of 2011 is closed. Sd/-Assistant Registrar (RTI) To: /True copy/ Sub Assistant Registrar(C.S) The Commissioner of Income Tax,No.2, V. P. Rathinasamy Nadar Road,Bibikulam,Madurai - 625 002. +1. CC to Mr.E.Somasundaram, Advocate, SR.No. 37153Dpn/- W.P(MD)No.12031 of 2011 and M.P.(MD)No.1 of 2011 29.10.2011 TR :31.10.2011: 3p/3c : IT