Income Tax Appellate Tribunal - Chandigarh
Baba Amarnath Educational Society ... vs Department Of Income Tax on 28 October, 2015
IN THE INCOME TAX APPELLATE TRIBUNAL
DIVISION BENCH, CHANDIGARH
BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER
AND Ms. RANO JAIN, ACCOUNTANT MEMBER
MA No.9/CHD/2014
In ITA No. 825/CHD/2011
The CIT-III, Vs Baba Amarnath Educational
Ludhiana. Society (Regd.) Satya Yog Niwas,
Gill Road, Moga.
PAN : AAAAB7523L
(Appellant) (Respondent)
Appellant by : Shri S.K. Mittal
Respondent by : Shri P.N.Arora
Date of Hearing : 16.10.2015
Date of Pronouncement : 28.10.2015
O R D E R
PER BHAVNESH SAINI,JM The present Miscellaneous Application is filed by CIT-III, Ludhiana for recalling of the earlier order of the ITAT, Chandigarh Bench in ITA 825/2011 dated 29.12.2011.
2. The brief facts of the case are that the assessee filed the appeal before ITAT Chandigarh Bench against the order of CIT-III Ludhiana dated 28.06.2011 whereby CIT refused to grant registration to assessee under section 12AA of the Act. The ITAT Chandigarh Bench decided the 2 appeal of the assessee in ITA 825/2011 vide order dated 29.12.2011 and directed the CIT to grant registration under section 12AA of the Act.
3. In the present departmental Miscellaneous Application, it is stated that in compliance to the order dated 29.12.2011 of ITAT Chandigarh Bench, registration under section 12AA of the Income Tax Act was allowed to the assessee vide order dated 09.02.2012, copy of the order of the CIT-III Ludhiana is placed on record. It is further explained that the territorial jurisdiction over the case pertaining to the office of Moga Range, Moga lies with ITAT Amritsar Bench and as such, assessee was required to file petition before ITAT Amritsar Bench. It is also explained that vide order dated 04.09.2013, the President ITAT directed that cases of the present assessee shall be heard by ITAT Amritsar Bench. Copy of the order of the President is also placed on record. It was, therefore, submitted that the jurisdiction over the case of the assessee lies with ITAT Amritsar Bench, therefore, the order passed by the ITAT Chandigarh Bench lacks jurisdiction and hence void abinitio.
4. The ld. DR relied upon the contents of the Miscellaneous Application and submitted that ITAT Chandigarh Bench did not have jurisdiction over the registration matter in case of assessee, therefore, should not have passed the order dated 29.12.2011 because the matter should have been decided by ITAT Amritsar Bench. 3
5. On the other hand, ld. counsel for the assessee submitted that the Departmental Representative on behalf of the revenue department appeared before the Tribunal at the time of hearing of the appeal filed by assessee but the ld. DR did not raise any objection regarding jurisdiction of ITAT Chandigarh Bench. He has submitted that assessee has disclosed the correct address of the assessee in the appeal before the Tribunal which was also correctly noted in the impugned order of the Ld. Commissioner of Income Tax-III Ludhiana dated 28.06.2011. Therefore, if department was having objection that the appeal should have been heard by Amritsar Bench, then the objection of jurisdiction should have been raised at the time of hearing of the appeal by the Chandigarh Bench. He has, therefore, submitted that issue of jurisdiction does not arise from the order of the Tribunal in reference. He has further submitted that the revenue department has accepted the order of the Tribunal dated 29.12.2011 and in response to the same, Ld. Commissioner of Income Tax- III Ludhiana has granted registration under section 12AA of the Act w.e.f. assessment year 2011-12 vide order dated 09.02.2012 and in all the subsequent years, assessee has been granted exemption/deduction under section 11 of the Income Tax Act in accordance with law. Since the order of the Tribunal has been accepted by the department by not filing appeal before the High Court, therefore, no prejudice is caused to the Revenue Department. 4
6. The ld. counsel for the assessee also filed copy of the letter dated 13.01.2015 issued by Assistant Public Information Officer of ITAT Mumbai Bench giving the details of territorial jurisdiction of the Benches of the Tribunal. In reply filed by Asstt. Public Information Officer of ITAT Mumbai Bench, details of territorial jurisdiction of the Benches have been provided in which at S.No. 19, the territorial jurisdiction of Chandigarh Benches have been provided, which reads, "Punjab ( excluding the Districts of Amritsar, Bathinda, Faridkot, Firozepur, Gurdaspur, Hoshiarpur, Jalandhar and Kapurthala). In the same RTI information also, the territorial jurisdiction of Amritsar Bench have been explained i.e. (Districts of Amritsar, Bathinda, Faridkot, Mansa, Muktsar, Moga, Firozepur, Gurdaspur, Hoshiarpur, Jalandhar, Nawashahar and Kapurthala of Punjab'). The ld. counsel for the assessee, by referring to this RTI information, has explained that the assessee is situated at Moga which fact was correctly disclosed before Ld. Commissioner of Income Tax-III Ludhiana as well as before ITAT Chandigarh Bench. While assigning territorial jurisdiction of the Benches, though in the case of Amritsar Bench, the District of Moga falls with Amritsar Bench as per Notification but when territorial jurisdiction to Chandigarh Bench was provided, District of Moga was not excluded. Thus, ITAT Amritsar Bench as well as ITAT Chandigarh Bench will have concurrent jurisdiction over the District of Moga. The ld. counsel for the assessee, 5 therefore, submitted that since there is an ambiguity in the territorial jurisdiction and both the Benches were having jurisdiction over District of Moga as per RTI information, therefore, Chandigarh Bench was also having jurisdiction over District of Moga. Therefore, when such a matter was not raised at the time of hearing of the appeal by Chandigarh Bench, the department should not be allowed to raise the issue of jurisdiction in the Miscellaneous Application. This issue requires detailed reasoning and the matter is wholly debatable, therefore, Miscellaneous Application may be dismissed.
7. The ld. DR also placed on record copy of the letter dated 25.11.2014 issued by Ld. Commissioner of Income Tax-III Ludhiana confirming therein that no appeal has been filed by the Department against the order of the Tribunal granting registration in the case of the assessee M/s Baba Amarnath Educational Society as well as ACE Educational & Charitable Society.
8. We have heard the rival contentions and perused the material on record. It is admitted fact that assessee filed appeal before ITAT Chandigarh Bench against the order of Ld. Commissioner of Income Tax-III Ludhiana on 26.06.2011 refusing to grant registration under section 12AA of the Act. The address of the assessee in the impugned order was of Moga. In the appeal filed before the Tribunal also, assessee has disclosed the correct address of Moga. Thus, at the time of hearing of the 6 appeal of the assessee, department was well aware of the fact that assessee is situated at Moga. Therefore, the department, if wanted to rise issue of jurisdiction, should have raised the objection regarding jurisdiction of Chandigarh Bench at the time of hearing of the appeal by the Chandigarh Bench itself. It is also admitted fact that at the time of hearing of the appeal by ITAT Chandigarh, the department did not raise the issue of lack of jurisdiction by ITAT Chandigarh Bench. In the order of the Tribunal dated 29.12.2011 also, there is no mention of the issue of jurisdiction raised by the ld. DR. Thus, it stands established on record that issue of jurisdiction was never raised before ITAT Chandigarh Bench at the time of hearing of the appeal of the assessee. It is also admitted fact that order of the Tribunal dated 29.12.2011 has been accepted by the revenue department because no appeal has been filed before High Court. This fact is also confirmed in the letter of the CIT-III Ludhiana, copy of which is placed on record. The CIT-III Ludhiana in pursuance of the order of the Tribunal dated 29.12.2011 has granted registration under section 12AA of the Act vide order dated 09.02.2012 w.e.f. assessment year 2011- 12 and as per contentions of ld. counsel for the assessee, the assessee has been granted exemption/deduction under section 11 of the Income Tax Act in all the subsequent years. Thus, in principle, the order of the Tribunal has been accepted and nothing has been explained as to what prejudice have been caused to the revenue department, 7 even if the order is passed by ITAT Chandigarh Bench. Section 21 of the Code of Civil Procedure, 1908 reads as under :
" 21. Objections to jurisdiction.- (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(2) No objection as to the competence of a Court with reference to the pecuniary limits of jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure justice.
(3) No objection as to the competence of the executing court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing court at the earliest possible opportunity, and unless there has been a consequent failure of justice."
9. Since no express provisions have been provided in the Income Tax Act, therefore, aid of Code of Civil Procedure could be taken and in Section 21 of CPC as reproduced above, it is clearly mentioned that no objection as to the competence of the Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the court of the first instance at the earliest opportunity and unless there has been a consequent failure of justice. In the present case, Revenue Department has not raised any objection of 8 jurisdiction of Chandigarh Bench before the Chandigarh Bench at the time of hearing of the appeal of the assessee and it is also not explained as to how there has been a consequent failure of justice because the order of the Tribunal has been accepted by the Revenue Department. It may also be noted here that the ITAT Chandigarh Bench, while deciding the appeal of the assessee in ITA 825/2011 has also decided the appeal of other assessees in ITA 826/2011 in case of ACE Educational & Charitable Society (Regd.), 48/8, New Town, Moga V CIT-III Ludhiana through the common order dated 29.12.2011. In he case of another assessee also, the address is of District Moga but the Revenue Department has no filed any Miscellaneous Application in this case and virtually accepted the same order of the Tribunal by not challenging the same in another Miscellaneous Application.
10. It may also be noted here that ld. counsel for the assessee has placed on record the RTI Information dated 13.01.2015 obtained from Asstt. Public Information Officer, ITAT Mumbai wherein details of territorial jurisdiction of the Benches have been provided. The details of territorial jurisdiction of Chandigarh Benches and Amritsar Benches have been provided. As noted above, though the jurisdiction over District of Moga have been provided to Amritsar Bench but while assigning the jurisdiction to Chandigarh Benches, though for Punjab, certain districts have been excluded from the jurisdiction 9 of Chandigarh Benches, but there is no mention of excluding the District of Moga from the jurisdiction of Chandigarh Benches. Thus, ld. counsel for the assessee is justified in contending that the jurisdiction over District of Moga lies with both the Benches of Chandigarh and Amritsar. Atleast both these Benches would have concurrent jurisdiction over the District of Moga as per RTI Information. We may also note here that on consideration of these facts, there may be some ambiguity while excluding the Districts of Punjab for assigning jurisdiction to Chandigarh Bench but the information so provided support the contention of ld. counsel for the assessee that there is a concurrent jurisdiction over the District of Moga with Amritsar Bench as well as Chandigarh Benches. Thus, the issue is wholly debatable and requires long drawn process of reasoning on the point in issue with regard to jurisdiction over District of Moga by Chandigarh Bench as well as Amritsar Bench. Hon'ble Supreme Court in the case of T.S.Balram, ITO V Volkart Brothers & Ors. 82 ITR 50 held as under :
" A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record- "
11. The ld. DR also contended that the President, ITAT vide order dated 04.09.2013 directed the cases of the assessee for assessment year 2009-10 be transferred from 10 Chandigarh Bench to Amritsar Bench. It is a later administrative order of the President, ITAT and would not support the contention of ld. DR. It is well settled law that "No rectification could be done on debatable issue". Hon'ble Punjab & Haryana High Court in the case of CIT V Investment Trust of India Ltd. 184 Taxman 381 held that "No rectification lies under section 154 on debatable issue". Hon'ble Bombay High Court in the case of Earnest Exports Ltd. 323 ITR 577 held that 'Order passed after considering material and decisions cited, order cannot be recalled". Hon'ble Calcutta High Court in the case of Anamika Builders 251 ITR 585 held that "Tribunal should not change the view already taken on merits" Hon'ble Andhra Pradesh High Court in the case of Ideal Engineers 251 ITR 743 and Madhya Pradesh High Court in the case of Aggarwal Warehousing 257 ITR 235 held that "Tribunal has no power to review its orders". Hon'ble Madras High Court in the case of Adyar Gate Hotel 294 ITR 155 held that "Rectification not on debatable issues". Hon'ble Calcutta High Court in the case of Hindustan Liver Ltd. 284 ITR 44 held that "The mistake must be so obvious that it can be easily be corrected, to wit an arithmetical mistake, wrong quotation of sections etc. and not on debatable issues".
12. Considering the above discussions, it is clear that Revenue Department did not raise any objection to the jurisdiction of the Chandigarh Bench at the time of 11 hearing of the appeal. The assessee disclosed all the facts correctly before CIT-III Ludhiana as well as before ITAT Chandigarh Bench regarding address of the assessee. The RTI information placed on record supports the contention of the assessee that the issue is wholly debatable because in the jurisdiction to the Chandigarh Bench the District of Moga is not excluded. Therefore, we do not find if there is any mistake apparent on record which could be rectified in the present Miscellaneous Application.
13. In view of the above discussion, we do not find any mistake apparent on record. Therefore, we do not find any merit in the Miscellaneous Application filed by the revenue.
14. In the result, Miscellaneous Application filed by the revenue is dismissed.
Order pronounced in the Open Court.
Sd/- Sd/-
(RANO JAIN) (BHAVNESH SAINI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 28 t h October,2015.
'Poonam'
Copy to:
The Appellant, The Respondent, The CI T(A), The CI T,DR Assistant Registrar, ITAT/CHD