TMI Blog2017 (11) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds raised by the revenue for the Asst Years 2002-03 , 2003-04 , 2007-08 , 2010-11 , 2011-12 & 2012-13 , are dismissed. - Decided in favour of assessee. - I.T.A No. 1300/Kol/2010, I.T.A Nos. 2131-2137/Kol/2016 - - - Dated:- 2-8-2017 - Hon ble Shri A.T.Varkey, JM And Shri M.Balaganesh, AM For the Assessee : Shri Soumitra Choudhury, Advocate For the Revenue : Shri Sital Chandra Das, Addl.CIT(DR) ORDER Per M.Balaganesh, AM 1. This appeal by the assessee arises out of the order of the Learned Commissioner of Income Tax (Appeals)-XIV, Kolkata [ in short the ld CITA] in Appeal No. 581/CIT(A)- XIV, Kolkata dated 26.02.2010 against the order passed by the DDIT(E)-II, Kolkata [ in short the ld. AO] under section 143(3) of the Income Tax Act, 1961 ( in short the Act ) dated 30.12.2008 for the Asst Year 2006-07. These appeals by the Revenue arise out of the common order in the following manner: Assessment Year Arising out of common order of CIT(A) with date Order of Ld. AO with date 1998-99 I.T.A. No. 2131/Kol/2016 04.08.2016 143(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the issues against which appeal is intended to be filed (hereinafter referred to as disputed issues ). However, the tax will not include any interest thereon, except where chargeability of interest itself is in dispute. In case the chargeability of interest is the issue under dispute, the amount of interest shall be the tax effect. In cases where returned loss is reduced or assessed as income, the tax effect would include notional tax on disputed additions. In case of penalty orders, the tax effect will mean quantum of penalty deleted or reduced in the order to be appealed against. 5. The Assessing Officer shall calculate the tax effect separately for every assessment year in respect of the disputed issues in the case of every assessee. If, in the case of an assessee, the disputed issues arise in more than one assessment year , appeal, can be filed in respect of such assessment year or years in which the tax effect in respect of the disputed issues exceeds the monetary limit specified in para 3. No appeal shall be filed in respect of an assessment year or years in which the tax effect is less than the monetary limit specified in para 3. In other words, hencefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issed in terms of low tax effect vide Circular No.21 / 2015 dated 10.12.2015. Accordingly, this being a low tax effect case, we dismiss the appeal of the revenue in limine , as unadmitted, without going into the merits of the case. 2.1. The appeal preferred by the revenue in ITA No. 2131/Kol/2016 for the Asst Year 1998-99 is dismissed. 3. Now let us take up the appeals of the revenue for the Asst Years 2002-03 , 2003-04, 2007-08 , 2010-11 , 2011-12 2012-13 . The common issue involved in all these appeals is as to whether the assessee could be treated as an educational institution and that its income would be exempt u/s 10(23C)(iiiad) of the Act in the facts and circumstances of the case. 4. The brief facts of this issue is that the assessee is a society imparting education in classical ballet dance, dance drama, music, choreography and related subjects, holding examinations thereon, arranging social and cultural functions, performances, promotion of the arts and culture etc mainly of the Uday Shankar style of dance / udayan. The society is registered under the Society Act of West Bengal since the year 1984. It is recognized by the Ministry of Human Resource Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he concluded the assessment by bringing the surplus to tax after treating the development fees and 50% of performance fees as revenue receipts (which were not routed through the income and expenditure account by the assessee). 4.4. The ld CITA granted relief to the assessee by observing as under:- This order: A Y 1997-98 and 1998-99 concerning section 10(22) treated as covered by Hon ble High Court order in assessee s case in Income Tax Act, 1961 No. 23/2003- in assessee s favour; remaining other A Ys concerning section 10(23C)(iiiad) treated as allowed for statistical purposes. Thus, as stated earlier and as briefed in preceding Para above, as the issue(s) had already been deliberated and adjudicated by the higher appellate forums- by the Hon ble ITAT (though conflicting decision for different AYs); and by the Hon ble High Court in AYs 1999-00 and 2000-01 is pending before the Hon ble High Court, as are also appeals for other AYs in between pending before the ITAT. I therefore: A. As regards AYs 1997-98 and 1998-99 concerning the then extant section 10(22), I treat the appeals as covered in appellant s favour by Hon ble High Court order in assessee s case in ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal is confined only to issues arising out of the appeal before the Commissioner (Appeals) is too narrow a view to take of the powers of the Tribunal. Undoubtedly, the Tribunal has the discretion to allow or not to allow a new ground to be raised. But where the Tribunal is only required to consider the question of law arising from facts which are on records in the assessment proceedings, there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. 7.1. We find that the ground raised by the assessee at the time of hearing is purely legal being impinging upon the Assessing Officer s jurisdiction while issuing intimation and, therefore, in view of the decision of the Hon'ble Supreme Court(supra), we entertain the same. 6. Respectfully following the same, we admit this legal argument of the Ld. Counsel of the assessee . 6.1. Respectfully following the same, we accept the arguments of the ld AR since the final decision of the ld CITA creates some ambiguity as it states that the appeals are allowed for statistical purposes . We find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved person has the right, statutorily provided, of filing an appeal. The rules framed by the Court describe such an appeal as a tax appeal to distinguish the same from other appeals, like first appeal and second appeal. In fact, an appeal gets filed with the registry of the High Court as a matter of fact and the person filing the appeal is not required to seek any leave from any authority, much less the High Court, prior to filing of the appeal. The provisions of the Act, with special reference to section 260A, do not require any such prior permission. Therefore, the only jurisdiction that the High Court exercises under section 260A is the appellate jurisdiction. Merely because the High Court decided in the first instance, whether or not, a substantial question of law arose from the order of the Tribunal, it cannot be stated that the High Court does not exercise the appellate powers or that no appeal lies, or that there is no decision on appeal, when the High Court dismisses an appeal holding that no substantial question of law arises from the order of the Tribunal. Therefore, it is not possible to bifurcate the jurisdiction or powers available to the High Court while dealing wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affirm and confirm are synonymous. Both the terms denote notification of a judgment. Therefore, the view expressed by the Tribunal in the impugned order that when the High Court dismisses the appeal by holding that no substantial question of law arises, the High Court does not render any decision is an incorrect proposition and could not be accepted. [Paras 16 and 17] When on talks of merger of a judgment, order or a decision of a subordinate court or forum into the judgment, order or decision of a superior court or forum the merger may be of the entire order, i.e., the reasons and the conclusion, or only a part, viz., only the conclusion by a different process of reasoning. In that event what merges is the operative part after the confirmation, reversal or modification, but in any event, the order of the lower court or the forum does not have any independent existence thereafter. This would be a merger in a case where the reasoning of the subordinate forum is either expressly not approved, or a different reasoning is given by the Supreme Court or forum. However, in a case where the superior court either adopts or reiterates the reasoning, or records an express approval o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s agitated by the assessee before the High Court stands merged in the order of the High Court, and for all intents and purposes it is the decision of the High Court which is operative and which is capable of being given effect to. It was not open to any person to contend that there was no decision of the High Court and the subordinate forum was entitled to take a contrary view than the one adopted in the earlier proceedings which have been affirmed by the High Court by a process of dismissal of the appeal simpliciter. [Para 26] 6.2. We find that the activities of the assessee society during the years under appeal before us at present were one and the same as that of those decided by this tribunal in the aforesaid years, which has been later confirmed by the Hon ble Calcutta High Court . Hence respectfully following the co-ordinate bench decision of this tribunal in assessee s own case for the Asst Years 1986-87 to 1993-94 dated 11.7.2002 , which has been confirmed by the Hon ble Jurisdictional High Court, and in view of the fact that there is no change in the facts and circumstances of the case during the years under appeal, we hold that the assessee society is an educational i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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