Case Law Details

Case Name : M/s. Kadakkal Educational Trust Vs Commissioner of Income Tax (Kerala High Court)
Appeal Number : WP (C) NO. 12755 OF 2012
Date of Judgement/Order : 05/12/2012
Related Assessment Year :
Courts : All High Courts (3632) Kerala High Court (129)

HIGH COURT OF KERALA

Kadakkal Educational Trust

Versus

Commissioner of Income-tax

WP (C) NO. 12755 OF 2012

DECEMBER 5, 2012

JUDGMENT

1. The petitioner is a Trust which has been established an Engineering College by name Shahul Hameed Memorial Engineering College. They submitted Ext.P2 application for registration under Section 12A of the Income Tax Act. On its receipt, the respondent issued Ext.P3 communication requiring the petitioner to rectify the defects mentioned therein. For non-compliance of Ext.P3, Ext.P2 application was rejected by Ext.P5 order issued on 26.09.2007.

2. Subsequently, the petitioner submitted Ext.P6 application dated 28.11.2007 stating that the defects were rectified and requesting for reconsideration of their application. On its receipt, they were issued Ext.P7 communication to cure the defects mentioned therein and also requiring them to attend this office on 16.02.2008. It is stated in paragraph 5 of the statement filed by the respondent at that stage, the petitioner filed an application for the benefit under Section 10(23C)(vi) before the Chief Commissioner of Income Tax and that in view of the said application, it was presumed that the petitioner was not pursuing Ext.P6. It is also stated that on the aforesaid basis, the application was closed as withdrawn.

3. In the meanwhile, the petitioner applied for registration under Section 12A for the year 2010-2011, which was granted as per Ext.P8. It also appears that at that stage, the petitioner filed writ petition before this Court as W.P.(c) No.28008 of 2009 contending that Ext.P2 application was pending. The writ petition was disposed of by Ext.P9 judgment. In that judgment, this Court held thus:

“5. From the contentions as narrated above, it is evident that the stand taken by the petitioner regarding pendency of the application for registration under Section 12A is not true and correct. Since such an application is not pending disposal before the authority concerned, the relief sought for could not be granted.

6. However, it is brought to my notice by the learned counsel for the petitioner that registration under Section 12A has already been granted on the basis of a subsequent application, with effect from the assessment year 2010-2011 on wards. Therefore, I am of the view that if the petitioner is intending to pursue for registration under Sec.12A with respect to the previous periods, it is left open for him to approach the third respondent by submitting appropriate applications. The petitioner will be also at liberty to challenge the dismissal of exemption under Section 10 (23A) in appropriate proceedings. I am of the view that reserving such remedies to the petitioner, this writ petition can be disposed of.

7. Therefore, the writ petition is disposed of relegating the petitioner to the third respondent to seek appropriate remedy for applying for registration under Section 12A with respect to the periods prior to the assessment year 2010-2011. It is also left open to the petitioner to challenge the dismissal of applications for exemption filed under Section 10(23A). Needless to say that the authority concerned will consider applications if any filed in this regard and shall take appropriate decision in accordance with law at the earliest possible.

4. Therefore, the petitioner sought review of the judgment by filing R.P.No.180 of 2011. That R.P. was disposed of by Ext.P10 order, which was held thus:

“In the review petition it is stated that the respondents are taking a stand that Ext.P10 application was not disposed of as provided under Section 12(AA)(b) (ii) and therefore a fresh application is not maintainable. However, it is not necessary to render any decision regarding maintainability of a fresh application. I am of the view that interest of justice will be served if a modification is made in the directions, contained in the judgment dated 28.01.2011 to the extent of permitting the petitioner either to file fresh application for registration under Section 12A or to seek appropriate remedy to restore Ext.P10, if permissible under law.”

5. Reading of Exts.P9 and P10 therefore, shows that this Court accepted the case of the respondents that Ext.P2 application was no longer pending. It was therefore, that this Court gave liberty to the petitioner to make a fresh application for the period covered by Ext.P2 or seek restoration of Ext.P2, if it was permissible in law. In pursuance to Exts.P9 and P10, the matter was considered and the respondent passed Ext.P11 order holding that the application cannot be restored in law. Seeking reconsideration of this order, the petitioner filed Ext.P12 an that representation was also rejected by Ext.P13.

6. Heard the counsel on both sides. The only issue that arises for consideration is whether the view taken in Exts.P11 and P13 is illegal. Ext.P9 judgment has attained finality. In that judgment, it has been specifically found that Ext.P2 application was not pending. It was therefore that the petitioner sought restoration of Ext.P2. That request was considered by this Court and in Ext.P10 order, it was directed that the petitioner can seek restoration and the same will be considered if permissible in law. The authority has held in Ext.P11, that such a request is not permissible. The correctness of this conclusion of the respondent will depend upon the provisions of Section 12A of the Income Tax Act. Having gone through this statutory provision, I am unable to find any authority for the respondent to restore an application under Section 12A once rejected. If that be so, it is not permissible to restore an application and if so, the conclusion in Exts.P11 and P13 that the petitioner’s request for restoration of Ext.P2 application is impermissible, cannot be said to be faulted. In that view of the matter, I do not find any tenable grounds justifying interference in the impugned orders.

The writ petition fails and it is dismissed.

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Category : Income Tax (24916)
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Tags : high court judgments (3938) section 12a (64)

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