TMI Blog2018 (11) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... ained. Any expression of opinion on disputed factual matters would prejudice the case of either side. The issues are not purely legal, but are mixed, namely, of fact and law. Whether the ingredients of section 115BBC(2) are fulfilled or satisfied will have to be considered in the backdrop of the factual assertions of the petitioner. Similarly, the language of section 80G (5) and section 11 has any bearing on the case will have to be decided in the backdrop of the petitioner's activities. The petitioner itself is asserting that its activities are mixed. It is a mixed purpose Trust. The writ petition is, therefore, disposed of by clarifying that this Court has kept open the challenge to be raised in appropriate legal proceedings. The writ petition stands disposed of accordingly. - WRIT PETITION (L) NO. 3278 OF 2018 - - - Dated:- 24-10-2018 - S.C. DHARMADHIKARI B.P. COLABAWALLA, JJ. Mr. S. Ganesh, senior advocate with Mr. Ashwin Shete, Mr. Abhay Dhadiwal i/b Junnarkar Associates for the Petitioner. Mr. Anil C. Singh, Addl. Solicitor General with Mr. Abhay Ahuja, Ms. Geetika Gandhi, Mr. P.A Narayanan and Ms. Sangeeta Yadav i/b P.A. Narayanan for the Respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otee, who donates money, to avail deduction. 5. Once the petitioner is squarely and fully covered by section 115BBC (3)(d) of the IT Act 1961 because it is a religious and charitable institution and the offerings/donations treated as anonymous donations in question have been received without any specific direction, then, there was no warrant in initiating the subject proceedings. The petitioner places reliance upon a view taken by the Income Tax Appellate Tribunal, Bench at Mumbai, in the case of Gurudev Siddhapeeth vs. Income Tax Officer. They claim that this judgment unequivocally lays down that section 115BBC was enacted only for capturing and taxing unaccounted income which is sought to be laundered and legitimized being shown as donations received by education and medical institutions run by a charitable / religious trust. That is how the petitioner expected the authorities not to question the donations or treat them in any manner, otherwise than in terms of the view taken by the Tribunal. 6. However, a notice was issued to the petitioner seeking to re-open the assessment for the Assessment Year 2013-14. That notice, copy of which is annexed to the petition, reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of the assessment carried out. Thus, this is a case of absence of tangible material. The income has not escaped assessment, but there is a mere change of opinion. 10. On such a writ petition, there is a reply filed by the respondents. They deny the contentions of the petitioner. In the affidavit-in-reply the Deputy Commissioner of Income-tax (respondent No.2) in categorical terms states that the original return of income for the Assessment Year 2013-14 was filed by the petitioner on 26th February, 2013. A revised return of income was filed on 13th November, 2013. The case proceeded under section 143(1) of the IT Act. As the case was not picked up for scrutiny, the Assessing Officer did not have any occasion to apply his mind to various issues. The Assessing Officer passed an order for Assessment Year 2015-16 on 31st December, 2017. That order was passed after taking recourse to sub-section (3) of section 143 of the Income-tax Act. In that order, there is a detailed discussion on sections 80G and 115BBC of the IT Act in the backdrop of objections of the trust and the decision of the Tribunal s Nagpur Bench in the case of Shivmandir Devasthan Panch Committee Sansthan vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner cannot maintain this writ petition. Even otherwise, on merits the arguments canvassed are that there is reason to believe that income chargeable to tax has escaped assessment. For all these reasons, it is submitted that the writ petition be dismissed. 12. In support of this writ petition, we have heard Mr. S. Ganesh, learned senior counsel and Mr. Anil Singh, learned Additional Solicitor General in opposition. 13. In the Memo of this Writ Petition itself, the petitioners have not disputed the fact that they were in receipt of a similar notice and seeking to re-open the assessment for the Assessment Year 2015-16. To challenge the re-assessment proceedings / notice and order rejecting the objections to the re-opening of that assessment, they filed a writ petition being Writ Petition No. 295 of 2018 in this Court and a copy of the order passed in that writ petition has been annexed to this writ petition as Exhibit-E. That order was passed on 9th February, 2018. The petitioner had filed its return of income for the Assessment Year 2015-16 on 30 th September, 2015 and a revised return of income for that very assessment year on 31st May, 2016. On 31st December, 2017, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pure question of law i.e. interpretation. In the above circumstances, it is submitted that this Court should exercise its extra ordinary jurisdiction and entertain the Petition. In support of the above two submissions the Petitioner relied upon the decision of the Apex Court in the case of AIRCEL Ltd. Anr. Vs. The Commercial Tax Officer Anr. Writ Petition (Civil) No. 1055 of 2013 decided on 22nd April 2016 , and the decision of this Court in the case of Bank of Baroda Vs. H.C. Srivastava 256 ITR 285. 4. Mr. Mohanty, the learned counsel for the Revenue submits that an alternative remedy is available under the Act. Further he submits that factual dispute arises as the Petitioner had first claimed it is only a religious trust and on being confronted it made a claim of being a mixed purpose trust i.e. religious and charitable. Thus this issue also requires to be determined. 5. It is axiomatic that our jurisdiction under Article 226 of the Constitution of India is plenary. Therefore, there is no bar in our entertaining this Petition. However, the Courts have over a period of time evolved unwritten terms / rules to not exercise our discretion to entertain a Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeking to distinguish the views of the Tribunal on facts. Hence, it held that this very petitioner should have challenged the order dated 31st December, 2017, by way of an appeal. It is in these circumstances, though the appeal was delayed, it allowed the petitioner to approach the Commissioner of Income Tax (Appeals) and until that appeal was filed and, if filed, duly considered and decided in accordance with law, no coercive measures be initiated to recover the amount of tax. 15. The petitioners have also referred to an order passed by this Court on 27th March, 2018 in Writ Petition No. 939 of 2018 . In that writ petition, the petitioner sought to question the method and procedure adopted by the Commissioner of Income Tax in dealing with their appeal filed under section 246A of the IT Act. There, the grievance was that the Commissioner having heard the petitioners' case on merits, decided to take up the stay application and pass an order thereon. That action was impugned on the ground that it is contrary to law. Once again, this Court referred to the petitioners' challenge to the order dated 31st December, 2017 and the prior proceedings before this Court. This Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate proceedings. The petitioner cannot be relegated to the remedies as are now stated to be available and in terms of the affidavit of the Revenue. 17. Mr. Ganesh would, therefore, submit that this writ petition cannot be thrown out on the ground of maintainability. This writ petition questions the very notice seeking to re-open the assessment for there is no reason to believe and the objections of the petitioner have been rejected in a perfunctory manner. They merit serious consideration and particularly in the backdrop of the legal provisions. Hence, this is a pure legal issue and we must proceed to entertain the writ petition. 18. Mr. Ganesh has relied upon the Circular issued by the Revenue being Circular No.14 of 2006 dated 28th December, 2006. Mr. Ganesh also brought to our notice, the view taken by the High Court of Delhi in Income Tax Appeal No.269 of 2015 decided on 7th September, 2015 and the judgment of the High Court reported in the case of Commissioner of Income Tax (Exemptions) vs. Bhagwan Shree Laxmi Naraindham Trust, (2005) 378 ITR 222. Mr. Ganesh also places reliance on a judgment rendered by this Court in the case of Director of Income Tax (Exemptions) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the appeal is pending. The stand of the petitioner is common. On merits, it is urged that the petitioner-assessee is a trust or institution established for charitable as well as religious purposes having regard to the provisions of the Act of 2004 by which it is governed. That statute lays down the religious as well as charitable purposes which the assessee is required to fulfill. The very sections to which our attention has been invited by Mr. Ganesh in this writ petition have been relied upon by the assessee's representative in the pending appeal. The argument is the same and that the provisions of this Act cannot be disregarded. They cannot be disregarded on the ground that the assessee is registered under section 80-G of the IT Act. Secondly, the enormous donations received by the assessee are not accompanied by any specific direction that the donation is for any university or other educational institutions or any hospital or medical institutions run by the Trust. If the assessee fulfills all conditions of sub-section (2) of section 115BBC, that provision would not apply. Thus, there is no escapement of income from tax. Then reliance is placed on the view of the Mumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as above. In the event we say that the notice is legal and valid that may effect the petitioner's pending appeal. In the event we hold that the notice does not survive and it is not legal and valid, still, the petitioner cannot succeed only on this ground and on merits it will have to satisfy the Appellate Authority in the pending appeal that the assessment order for the Assessment Year 2015-16 needs to be interfered with. Once they have accepted this Court's verdict and have followed up the matter in appeal, then, we do not see why it should bring a writ petition and allege that no income chargeable to tax has escaped assessment. All the more, when they rely upon the very legal provisions and factual aspects which are involved in the pending appeal. This is one more reason why we are disinclined to examine the merits of the rival contentions in the present proceedings. Let the petitioner comply with the requisition in the letters and file a return of income. In the event the reassessment proceedings result in an order adverse to the petitioner, the petitioner is not going to be prejudiced for it can challenge such an order in appeal before the First Appellate Authority an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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