ITXA1386.13.doc IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION rt INCOME TAX APPEAL NO. 1386 OF 2013 ou Commissioner of Income Tax II, Thane ... Appellant Vs Mumbai Metropolitan Regional Iron C & Steel Market Committee ... Respondent WITH INCOME TAX APPEAL NO. 1385 OF 2013 h Commissioner of Income Tax II, Thane ... Appellant Vs ig Mumbai Metropolitan Regional Iron & Steel Market Committee ... Respondent H Mr. Suresh Kumar for Appellants. y Ms. Aarti Sathe with Mr. Kalpesh Turalkar for Respondents. ba CORAM : S.C. DHARMADHIKARI & A.K. MENON, JJ. om WEDNESDAY, 1ST APRIL, 2015 P.C. : B 1. These two appeals of Revenue arise out of common order of Tribunal delivered in Income Tax Appeal Nos.931 of 2012 and 1569 of 2012. These appeals were dealt with by Pune Bench of SRP 1/6 ::: Uploaded on - 06/04/2015 ::: Downloaded on - 13/02/2016 10:51:40 ::: ITXA1386.13.doc Tribunal. assessments years are 2004-05 and 2005-06. rt 2. Mr. Suresh Kumar submits that appeals raise substantial ou questions of law. They are formulated at page 7 of paper-book. According to Mr. Suresh Kumar, Tribunal failed to appreciate that C assessee before us was local authority entitled to exemption under section 10(20) of Income Tax Act, 1961 (for short IT Act ), h upto assessment year 2002-03. Thereafter, it decided to take ig benefit of change in law and applied for grant of registration under H section 12A of IT Act, before competent authority. That would enable it to claim exemption under section 11 of IT Act. Though application was filed on 26th March, 2007, registration was y ba claimed with effect from 1st April, 2003. That application was allowed by Commissioner of Income Tax but registration was granted om prospectively, namely, from 1st April, 2006. assessee was not satisfied with this partial relief and approached Tribunal. Tribunal directed Commissioner of Income Tax to condone B delay in filing application and consider grant of registration with effect from 1st April, 2003. In compliance with this order, SRP 2/6 ::: Uploaded on - 06/04/2015 ::: Downloaded on - 13/02/2016 10:51:40 ::: ITXA1386.13.doc registration was granted by Commissioner of Income Tax with effect from 1st April, 2003, by his order dated 23rd April, 2008. In rt meanwhile, assessment for years 2005-06 was completed by ou Assessing Officer without allowing any exemption under section 11. assessee, after receipt of registration under section 12AA C obtained audit report as is required under section 12A(1)(b) for purpose and same was filed along with Form No.10 before h Commissioner of Income Tax (Appeals) and claim for exemption ig under section 11 was made for first time before Commissioner H of Income Tax (Appeals) in respect of assessment year 2005-06. Commissioner rejected this claim for exemption under section 11 mainly for reason that this claim was not made in original y ba return and that Form 10 and audit report in support of this claim are not filed before Assessing Officer. assessee carried matter om to Tribunal. Tribunal, by its order dated 15 th April, 2009, held that appellate proceedings before Commissioner of Income Tax are continuation of assessment and, therefore, late filing of these B documents would not disable assessee from benefits of section 11. assessment order was set aside by Income Tax Appellate SRP 3/6 ::: Uploaded on - 06/04/2015 ::: Downloaded on - 13/02/2016 10:51:40 ::: ITXA1386.13.doc Tribunal and Assessing Officer was directed to make de novo assessment. While doing so, Assessing Officer was directed by rt Income Tax Appellate Tribunal to take into account registration ou granted under section 12AA of IT Act with effect from 1 st April, 2003, and audit reports as well as other documents filed in C support thereof. h 3. Mr. Suresh Kumar submits that this view of Tribunal is not ig in consonance with law laid down by Hon'ble Supreme Court H in case of Commissioner of Income Tax vs. Nagpur Hotel Owners Association, 247 ITR 201. Further, there is no compliance made with Revenue circular as well. Mr. Suresh Kumar read out that portion y ba of Tribunal's order and circular to submit that this appeal be admitted as it raises substantial questions of law which are common om for both assessment years. 4. We are unable to agree with Mr. Suresh Kumar. Tribunal B has found that in light of these admitted facts, there is substance in assessee's arguments. Tribunal perused its own order for SRP 4/6 ::: Uploaded on - 06/04/2015 ::: Downloaded on - 13/02/2016 10:51:40 ::: ITXA1386.13.doc assessment year 2005-06 restoring matter to file of Assessing Officer and to make de novo assessment. It held that at that time rt Form 10, audit reports and documents were already on record of ou Assessing Officer. If assessee was required to file Form 10 and other documents before completion of assessment and in this C case there is only technical plea raised by Revenue, then, that should not take away benefit accruing to assessee in law. h Tribunal has neither disregarded judgment of Hon'ble Supreme ig Court nor has misapplied it. It found that case of assessee is H peculiar. It was not assessee's fault inasmuch as it got into legal tangle. Upto assessment year 2002-03, it was enjoying benefit under section 10(20) of IT Act by local authority. Later on it decided to y ba avail of benefit of section 11 and applied for registration. chequered history of case pertaining to registration has been noted om by us. It is that which enabled Tribunal to conclude that rigors of section have been somewhat diluted by Revenue's understanding and issuance of circular. Thus, circular B contemplates condonation of delay in filing above documents and which would enable assessee to avail of benefit. Filing of SRP 5/6 ::: Uploaded on - 06/04/2015 ::: Downloaded on - 13/02/2016 10:51:40 ::: ITXA1386.13.doc Form No.10 is not dispensed with. Commissioner is only vested with powers to accept it after specified period. This circular rt No.273 dated 3rd June, 1980 which has been relied upon to hold that ou assessee's claim for benefit of exemption under section 11 of Act deserved acceptance. It is in these circumstances and when C objects of trust were found to be genuine that Assessing Officer was directed to carry out de novo assessment in terms of h Tribunal's observations. We do not find such conclusion to be ig perverse or vitiated by any error of law apparent on face of H record. No larger question or wider controversy needs to be decided. 5. appeals are, therefore, devoid of merit. They are, y ba accordingly, dismissed. There shall be no order as to costs. om A.K. MENON, J. S.C. DHARMADHIKARI , J. B SRP 6/6 ::: Uploaded on - 06/04/2015 ::: Downloaded on - 13/02/2016 10:51:40 ::: Commissioner of Income-tax II, Thane v. Mumbai Metropolitan Regional Iron & Steel Market Committee