Delhi High Court
Director Of Income-Tax (Exemption) And ... vs Apparel Export Promotion Council (No. ... on 1 May, 2000
Equivalent citations: [2000]244ITR734(DELHI)
Bench: Arun Kumar, D.K. Jain
JUDGMENT
1. This appeal by the Revenue under Section 260A of the Income-tax Act, 1961 (for short "the Act"), is directed against the order of the Income-tax Appellate Tribunal passed on November 13, 1998, in the assessee's appeal in respect of the assessment year 1993-94.
2. Having heard Mr. R.D. Jolly, learned counsel for the Revenue, and Mr. B.B. Ahuja, learned senior counsel for the assessee, we are of the view that no substantial question of law arises out of the order of the Tribunal.
3. The respondent-assessee is a society registered under Section 25 of the Companies Act, 1956. It filed its return of income for the relevant assessment year in the status of association of persons and claimed exemption under Section 11 of the Act. Relying on the provisions of Section 11(4A) of the Act, initially inserted by the Finance Act, 1983, with effect from April 1, 1984, and later substituted by the Finance (No. 2) Act, 1991, with effect from April 1, 1992, the Assessing Officer denied the benefit under the said section. The Assessing Officer, while computing income for the relevant assessment year also added to the total income of the assessee the amount of earnest money deposits forfeited by it.
4. The assessee's appeal to the Commissioner of Income-tax (Appeals) was unsuccessful. However, in the assessee's second appeal, following its earlier order for the assessment year 1991-92, the Tribunal held that since the assessee did not carry on any "business" it was entitled to exemption under Section 11 of the Act.
5. Faced with the situation that the Revenue's applications under Section 256(2) of the Act in respect of the assessment years 1991-92 and 1992-93 already stand dismissed, Mr. Jolly has argued that the scope of the appeal under Section 260A of the Act being much wider than of reference under Section 256 of the Act, the appeal should be admitted as substantial questions of law arise out of the order of the Tribunal. It is urged that the Tribunal has failed to consider the relevant material relied upon by the Commissioner of Income-tax (Appeals) while dismissing, the assessee's appeal and, therefore, it was not justified in following its earlier orders for the aforenoted assessment years. To buttress the argument learned counsel has taken us through the order of the Commissioner of Income-tax (Appeals). Having perused the same we are unable to agree with learned counsel that some additional material facts, which were not on record for the assessment years 1991-92 and 1992-93 have been brought out by the learned Commissioner of Income-tax (Appeals) in his order for the present assessment year. Learned counsel has not been able to point, out any material change in the activities of the assessee as compared to the earlier years. The question of exemption to the assessee under Section 11 of the Act having been examined in the earlier years, and there being no change in either the objects or activities of the assessee-society, we are of the view that though the doctrine of res judicata does not strictly apply to the income-tax proceedings but in order to maintain consistency the Revenue cannot be permitted to rake up stale issues all over again, merely because the scope of appeal is wider than the reference.
6. Referring to certain passing observations in the order of the Commissioner of Income-tax (Appeals), it was also submitted by Mr. Jolly that the assessee has even failed to deposit in the public deposit account of the Government of India the amount forfeited by it and, therefore, there was no merit in the assessee's plea that this amount could not be treated as its income because it belonged to the Government. This fact is disputed by Mr. Ahuja, learned senior counsel for the assessee. He has placed before us the details of deposit of PH/EMD forfeited amount in the public deposit account. Be that as it may, in view of the fact that it has been held that the assessee is entitled to exemption under Section 11 of the Act, this issue would at best be of academic interest only.
7. For the foregoing reasons the appeal is dismissed with no order as to costs.