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TMI Blog2024 (5) TMI 1395X X X X Extracts X X X X X X X X Extracts X X X X ..... on or before 15.03.2024, but the assessee could file the appeals with the delay of 17 days due to the fact that the assessee being a statutory body, constituted for the purpose of planning and coordination of higher education in the state of Andhra Pradesh was to implement a 'edX Programme' for 4 lakh students of higher education during the period from 15.02.2024 to 27.03.2024, which required massive efforts from the secretary of the assessee council, in coordinating with the universities and all colleges in the State of Andhra Pradesh and the students. Also, the 'Model Code of Conduct' of General Elections 2024 has come into force w.e.f. 16.03.2024 and the assessee being a nodal agency for all universities was occupied in ensuring that all the stake holders adhere to the Model Code of Conduct. The assessee submitted a copy of the contract copy and copy of letter dated 15.03.2024 issued by the Chief Electoral Officer as proof and submitted that the delay in filing of the appeals was due to the fact that the assessee was pre-occupied with the reasons as narrated above, which were neither intentional nor deliberate. It has therefore, pleaded to condone the delay and admit the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. 3. Being aggrieved by the order of the Ld.AO, the assessee filed an appeal before the Ld.CIT(A). Before the Ld.CIT(A), the assessee contested reopening of the assessment u/s 147 of the Act, stating that the assessee is a statutory body and falls within the definition of 'State' as per Article 12 of the Constitution of India, and is exempted from filing of Income Tax Returns. Considering the submissions made by the Ld.AR, the Ld.CIT(A), by relying on the various judicial pronouncements as detailed in his order, dismissed the appeal of the assessee. 4. Aggrieved by the order of the Ld.CTI(A), the assessee is in appeal before us by raising the following revised grounds of appeal : 1. The order of the learned Commissioner of Income Tax (Appeals) is contrary to the facts and also the law applicable to the facts of the case. 2. The learned Commissioner of Income Tax (Appeals) ought to have held that the notice issued u/s 148 of the Act is not in accordance with law and ought to have quashed the consequent reassessment proceedings as void-ab initio. 3. (a) The learned Commissioner of Income Tax (Appeals) erred in holding that the appellant is not an instrumentality of st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the notices were not received by the assessee. The Ld.AR further submitted that the APSCHE is similar to other government departments. The Ld.AR submitted that as per section 4 of APSCHE Act, the Board consists of a Chairman, a Vice-Chairman to be appointed by the Government, the Secretary to Government, Education Department, the Secretary to Government, Finance Department, the Secretary to Government, Labour, Employment and Technical Education, the Secretary or any other officer of the University Grants Commission (UGC) not below the rank of a Joint Secretary nominated by the Chairman, University Grants Commission, other members to be appointed by the Government, including nominated members and technical experts. It was submitted that the functions of the Council is to coordinate and determine the standards in institutions of Higher Education or Research and Scientific and technical institutions in accordance with the guidelines issued by the UGC from time to time. The Ld.AR submitted that the functions of the Council include planning and coordination, academic functions, advisory functions to the Govt. of Andhra Pradesh. The Ld.AR submitted that from the above facts, the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of them such as, the Government, Parliament of India, the Government and Legislature of each of the States and all local authorities. The assessee also submitted that the expression 'other authorities' is wide enough to include all authorities created by the Constitution or Statute on whom powers are conferred by law, as held by the Hon'ble Apex Court in Electricity Board in Electricity Board, Rajasthan vs. Mohan Lal. The Ld.AR also further submitted that the assessee also made an application u/s 10(46) of the Act, which is pending before the revenue authorities. 7. Per contra, the Ld.DR fully supported the orders of the lower authorities and submitted that the assessee has not applied for exemption u/s 10(46) of the Act. He, therefore, pleaded that since the exemption is not granted to the assessee, the orders of the lower authorities may be upheld. 8. We have considered the submissions of both the parties and gone through the orders of the authorities below. Ground No.2 relates to invalidity of notice issued u/s 148. The Ld.AR has not made any submission with regard to ground no.2, therefore, the ground No.2 is treated as not pressed and dismissed as not pressed. With respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssembly of the State. The assessee is under obligation to furnish report and statement relating to any matter connected to its work as the Government may call for. From the above, we note that every activity of the assessee is governed subject to the superintendence, instruction and control of the State Government. Therefore, in our view the assessee has complete superintendence and control of the state government financially as well as administratively by the Government and thus falls under the definition of 'State' as per Article 12 of Constitution. The co-ordinate bench of Tribunal in Smt.Sapna Sanjay Roisoni (supra) while considering the scope of Article 12 of the Constitution of India gave the following finding : "11. The definition of the State under Article 12 has come for the consideration on number of occasions before the Hon'ble Supreme Court. The State consists of three departments, the Legislature, the Executive and the Judiciary. We need not go into all the limits of the State as only the limited issue before us is whether the term Government used in clause(b) to Rule 6DD includes even the autonomous bodies which partakes the character of instrumentalities of the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fying the corporation as an instrumentality or agency of the Government. 5. If a department of a Government is transferred to a corporation, it would be a strong factor supporting this inference of the corporation being an instrumentality or agency of the Government. After applying the cumulative effect of all the relevant factors mentioned above, if the body is found to be an instrumentality of the agency of the Government, it would be an authority included in term 'State' under Article 12 of the Constitution of India. However, the tests indicated by the Hon'ble Apex Court in the case of Som Prakash Rekhi are merely indicative and not absolute and thus, have to be applied discretely. If any Body or organisation falls within the criteria as laid down by the Hon'ble Apex Court it can be considered that it falls within the term "State". From the application of the above to the APSCHE, we observe that the assessee has satisfied majority of the conditions. We also further note that the assessee's Govt. Counsel has made an application, both for cancellation of PAN, which was issued wrongly as a partnership firm and also an application under 10(46) of the Act for exemption of specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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