TMI Blog2019 (7) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... ewise by referring to these assessment years and the tax determined, withdrawing a sum of ₹ 10 lakh from the account of the petitioner-temple, is illegal, arbitrary, beyond the Act and unconstitutional? - HELD THAT:- The petitioner firstly is an institution under HR CE Act. Secondly, the petitioner satisfies the requirement of Section 10(23BBA) of the Act. Therefore, is not under obligation to file return under the Act. Even if the tax is paid erroneously, the respondents, de hors the statutory exemption, firstly could not have determined the total receipts received from the petitioner as income for the particular year and demand tax. Such determination of demand of income tax is contrary to Article 265 of Constitution and Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2019 - MR S. V. BHATTI, J. For The PETITIONER : ADVS. SRI. MAHESH V RAMAKRISHNAN AND SRI. K. PRAMOD For The RESPONDENT : ADVS. SRI. B. RAMACHANDRAN, CGC, SMT. P. K. RADHIKA, SC, MALABAR DEVASWOM BOARD, SRI. M. SASINDRAN, SC, KANNUR DISTRICT CO. OP. BANK, AND SRI. CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT JUDGMENT Payyanur Sree Subrahmanya Swami Temple, represented by its Executive Officer, is the petitioner. The petitioner prays for the following reliefs: i) To issue a Writ of Certiorari or any other appropriate Writ, order or direction to call for the entire documents culminated in Exts.P5, P6 P9 and to quash the same; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... societies for religious or charitable purposes registered as such under the Societies Registration Act, 1860 (21 of 1860) or any other law for the time being in force: Provided that nothing in this clause shall be construed to exempt from tax the income of any trust, endowment or society referred to therein. 3. The petitioner is an institution coming within the definition of Madras Hindu Religious Charitable Endowments Act, 1951 (for short HR CE Act ) and for administration and overseeing the function of the institution, Board of Trustees is constituted under the provisions of HR CE Act. The case of petitioner is that the petitioner is conforming to the mandate of HR CE Act and enjoys statutory exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents, on the contrary, shifts the error in this behalf on to petitioner by stating as follows: However the petitioner chose to file the returns in form no.ITR 7 based on erroneous advice even when the petitioner was not having registration under Section 12A of the Income Tax Act. In the absence of registration u/s. 12A, the CPC while processing the returns did not take into account the application of income claimed in the return and thereby treating the entire receipts of the petitioner as the total income and raised the impugned demands. In the above backdrop, the entire blame for creation of the tax demand falls on the petitioner. ( emphasis applied) 6. The admis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermination of demand of income tax is contrary to Article 265 of Constitution and Section 10(23BBA) of Act. The said position remains undisputed. The entitlement of petitioner in fact and law is not disputed by the respondents. On the other hand, without joining the issue with the petitioner, for the sake of resolving an issue, the factual and statutory position are fairly stated by the respondents. Therefore, the petitioner prays for appropriate orders. 9. With the above observations and by accepting the stand taken in the statement filed by the respondents, the writ petition could have been disposed of. Such course keeps alive the issue of refund of tax collected without authority from the petitioner. Therefore, this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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