Kadakkal Educational Trust vs Commissioner of Income Tax

A.M. Shaffique, J.—The petitioner in the writ petition is the appellant. The writ petition is filed challenging exhibits P5, P11 and P13 and for a direction to the respondent to consider, the application in, Form No. 10A dated May 30, 2007, produced as exhibit P2 along with the amended documents submitted by the petitioners. The appellant is an educational trust. They applied for registration under section 12A of the Income-tax Act 1961. Exhibit P2 is such an application submitted by them. There were certain defects in the application which were directed to be rectified and on resubmission also certain defects were noticed. In the meantime, the appellant submitted an application under section 10(23C)(vi) of the Income-tax Act which was later on rejected by the Commissioner of Income-tax. The petitioner, thereafter, submitted a fresh application under section 12A which was allowed as per exhibit P8 order dated January 20, 2011. Therefore, as far as the petitioner is concerned, the trust is registered under section 12A for the assessment year 2010-11 onwards.

The issue is with reference to the financial years starting from 2007-08 for which exhibit P2 application was filed. The learned single judge did not interfere with the orders passed by the authorities on the basis that the issue had already been covered by the earlier judgments of this court by which it was found that the application submitted by the petitioner as exhibit P2 was no longer in force.

The learned counsel for the appellant, however, would argue that though it is stated that the earlier application submitted by the petitioner as exhibit P2 was withdrawn, in effect, the appellant did not withdraw the said application. The said application was pending consideration and no final orders were passed. In the meantime, the petitioners had applied under section 10(23C)(vi) of the Act which was rejected by the respondent authority. Even if the said application is rejected, the authority concerned ought to have considered the application for registration under section 12A which was resubmitted on September 20, 2007.

Heard learned counsel for the appellant as well as the learned standing counsel appearing for the Department. In fact, the petitioner had taken up this matter in an earlier proceedings in W.P.C. No. 28008 of 2009 and the learned single judge of this court had come to a finding at paragraph 5 as under:

"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."

However, this court observed that the petitioner can seek appropriate remedy for applying for registration under section 12A with respect to the period prior to the assessment year 2010-11. It is also observed that the petitioner could challenge the dismissal of exemption under section 10(23A) of the Act. Since the appellant was not satisfied with the said judgment, review petition was filed and in the review petition this court did not interfere with the earlier judgment and it is, inter alia, observed that the directions contained in the judgment dated-January 28, 2011, to the extent of permitting the petitioner to file fresh application for registration under section 12A need not be interfered. The main question involved in the review petition was whether the observation of the court that the application is withdrawn should be modified or not. The learned single judge did not interfere with the said order.

Pursuant to exhibit P9 judgment and the review order at exhibit P10, exhibit P11 order was passed on October 24, 2011, by the Commissioner of Income-tax clearly indicating that exhibit P2 application is not pending. In fact, in the counter-affidavit filed by the respondent authority also they have relied upon a communication issued by the Assistant Commissioner of Income-tax, Thiruvananthapuram, on December 2, 2009, which, inter alia, reads as under:

"Another application for registration under section 12A dated November 28, 2007, was received on November 30, 2007. That also was defective and a deficiency letter was issued to the assessee on January 23, 2008. The case was posted for hearing before the Commissioner of Income-tax, Trivandrum, on May 5, 2008. The time limit for disposal of the application for section 12A registration was on May 30, 2009. The applicant informed that as it was going to apply for approval under section 10(23C)(vi) before the Chief Commissioner of Income-tax, Trivandrum, it was not pursuing registration under section 12A. The applicant did file an application for approval under section 10(23C)(vi) before the Chief Commissioner of Income-tax on May 15, 2008. Under these circumstances, it was presumed that the applicant was not pursuing registration under section 12A and though no order was passed by the Commissioner of Income-tax the pendency was considered as disposed with the remarks ''application withdrawn'' in the section 12A register, in No. 116/2008-08."

Since it is clearly indicated that though an application was filed under section 12A dated November 28, 2007, which Was received on November 30, 2007, there were certain defects and deficiencies for which the assessee was called upon to cure the same. The case was also posted for hearing on May 5, 2008. The time limit for disposal of application was on May 30, 2009. In the meantime, the applicant had filed an application under section 10(23C)(vi) before the Commissioner of Income-tax on June 15, 2008. Under such circumstances, the official records indicate that the application under section 12A is withdrawn.

When the time limit for considering the said application is already complete and the matter has been considered by this court in the earlier judgment which is extracted above, we do not think that the learned single judge has committed any error of law in dismissing the writ petition filed by the petitioner. In the result, we do not find any ground to interfere with the findings of the learned single judge. But it is made clear that if the appellant had preferred any appeal against the application for exemption under section 10(23A) before the Appellate Tribunal, the said authority shall consider the same and dispose of it untrammelled by any of the findings or observations made in the present proceedings.

The writ appeal is dismissed.