IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1958 OF 2017 Indian Plastics Institute Petitioner Vs. Director of Income tax (Exemption) Mumbai & Ors. Respondents .Mr. V. Sridharan, Senior Advocate a/w Mr. P. S. Sriram i/b. Mr. B.V. Jhaveri for Petitioner. Mr. Ashok Kotangle a/w Mr. Prabhakar Ranshur for Respondents. WITH INCOME TAX APPEAL NO. 100 OF 2015 Indian Plastics Institute Appellant Vs. Director of Income tax (Exemption), Mumbai Respondent .. Mr. V. Sridharan, Senior Advocate a/w Mr. P. S. Sriram i/b. Mr. B.V. Jhaveri for Appellant. Mr. Charanjeet Chanderpal a/w Ms. Namita Shirke for Respondent. CORAM : S. C. DHARMADHIKARI & PRAKASH D. NAIK, JJ. DATE : SEPTEMBER 11, 2017. P.C. : 1. This Petition under Article 226 of Constitution of India seeks following relief: 12 WP 1958 2017.odt "a. that this Honourable Court may be pleased to issue writ of Certiorari, or writ in nature of Certiorari, or any other appropriate writ, order or direction under article 226 of Constitution of India, directing that Revenue, Appellate Authorities and Petitioner itself are not bound by decision of Respondent No.2 dated 21st February, 2014 for Assessment Year 2009 10, in so far as it holds that Petitioner was carrying on 'any activities in nature of trade commerce or business' as contemplated in proviso to section 2(15) of Act, as it was passed without jurisdiction by Respondent No.2." 2. There is accompanying Appeal also. But petitioner assessee was called upon to satisfy this Court as to how Appeal would lie against order of Tribunal when final conclusions are in favour of petitioner assessee/appellant. Possibly convinced that such Appeal would not be tenable, this Writ Petition has been filed. 3. Looked at from any angle, both sides agree that disposal of Writ Petition would result in Appeal not surviving. It also can be disposed of. 4. petitioner claims to be Technical Professional Body for plastics in India. It is successor to Plastics and Rubber Institution, London (Indian Section) and it started its activities in India. objects are set out in paragraph 6 (page 3) of petition and it is submitted that activities cover large spectrum. main activities are education, training and manpower development for plastic industry and that is ::: Uploaded on - 15/09/2017 ::: Downloaded on - 19/09/2017 12:03:27 ::: vikrant 3/7 12 WP 1958 2017.odt achieved by holding lectures, seminars and workshops and organizing programmes. 5. petitioner is not carrying on any activity which can be termed as commercial or in nature of trade, commerce or business. 6. petitioner states that it filed its return of income for assessment year 2009 2010 on August 27 th, 2009 alongwith audit report declaring total income at Rs. Nil. Annexure "A" is copy of balance sheet as on 31st March, 2009 and Income and Expenditure Account for year ended 31st March, 2009. 7. authority under Income Tax Act, 1961 (for short, IT Act ) issued show cause notice dated 3 rd March, 2011 to petitioner asking why registration granted to it earlier under Section 12AA of IT Act should not be withdrawn. petitioner filed its reply to this notice, whereafter, order was passed by respondent on 16th December, 2011 (Exhibit "D") withdrawing registration under Section 12A of IT Act with effect from assessment year 2009 2010. Appeal was filed to Tribunal against this order. This Appeal was allowed on 21st February, 2014. 8. Mr. Sridharan learned Senior Counsel appearing for petitioner assessee would submit that in allowing Appeal by ::: Uploaded on - 15/09/2017 ::: Downloaded on - 19/09/2017 12:03:27 ::: vikrant 4/7 12 WP 1958 2017.odt Tribunal, Bench made certain observations. Our attention is invited to paragraph 7 of Tribunal's order dated 21st February, 2014. 9. Miscellaneous Application was filed terming this as obvious and apparent mistake. Tribunal partly accepted this Application on 7th October, 2014, but in meanwhile, Revenue filed Appeal against order, namely, substantive order dated 21st February, 2014 of Tribunal. That Appeal was dismissed by this Court on 14th February, 2017 (Annexure "J"). 10. Though Petition was filed accompanying Appeal, but Mr. Sridharan would submit that any order and clarifying position or keeping contentions open would satisfy petitioner. 11. apprehension of petitioner is that pursuant to Tribunal's order, now, substantive assessment was undertaken and order was passed by Assessing Officer. That is challenged by petitioner in Tribunal. That Appeal is pending. It is in these circumstances, findings or observations in passing made by Tribunal be appropriately clarified is request. 12. We have heard Mr. Kotangle, as also Mr. Chanderpal on this Petition. ::: Uploaded on - 15/09/2017 ::: Downloaded on - 19/09/2017 12:03:27 ::: vikrant 5/7 12 WP 1958 2017.odt 13. It is common ground that Tribunal had before it Income Tax Appeal No. 308/Mum/2012 for assessment year 2009 2010 of petitioner assessee. That Appeal was filed challenging order dated 16th December, 2011 of Director of Income Tax (Exemption), Mumbai, passed under Section 12AA(3) of IT Act cancelling Registration granted to assessee under Section 12A thereof. 14. main thrust of argument was that said Director had no jurisdiction to cancel registration and secondly, that receipts of income of assessee were not in nature of business income and therefore, proviso to Section 2(15) is not attracted to its case. object of assessee being charitable in nature, registration earlier granted has been erroneously cancelled. 15. Tribunal heard both sides and examined record. It also observed that such issue came up for consideration before co ordinate Bench of Tribunal on 4th February, 2014 in Income Tax Appeal No. 496/Mum/2012 and it passed detailed order. Tribunal concluded that registration was granted under Section 12A of Act. There is Circular issued by Central Board of Direct Taxes which binds Department. registration already granted under Section 12A can be cancelled only for assessment year 2011 2012 and subsequent years ::: Uploaded on - 15/09/2017 ::: Downloaded on - 19/09/2017 12:03:27 ::: vikrant 6/7 12 WP 1958 2017.odt by considering amended provision which is applicable from 1st June, 2010. Hence, cancellation of registration by Director for assessment year 2009 2010 was not justified. 16. Tribunal followed this view and then noted also argument of petitioner assessee that proviso to Section 2(15) is not attracted bearing in mind objects and they being charitable in nature. Paragraph 7 of order of Tribunal refers to certain activities of petitioner assessee. Tribunal also refers to observations of Director of Income Tax and in paragraph 8, another argument of assessee's representative, that even if objects of trust fall in category of advancement of any other objects of general public utility , then as well, it is entitled to exemption, has been considered. 17. Once Tribunal came to conclusion that Director had no jurisdiction to cancel exemption for assessment years prior to amendment, which came in Act from 1st June, 2010, that being essential conclusion, other two arguments noted by Tribunal and dealt with may have been found in same order which was not interfered with by this Court, but what we find is that decision of co ordinate Bench which was followed in rendering subject decision by Tribunal and essentially on point of jurisdiction, was enough to conclude controversy. arguments of assessee's representative on applicability of proviso to Section 2 Clause ::: Uploaded on - 15/09/2017 ::: Downloaded on - 19/09/2017 12:03:27 ::: vikrant 7/7 12 WP 1958 2017.odt (15), therefore, were strictly not required. They were not necessary for decision on point involved. Once on jurisdiction, petitioner was on sound footing, then, we do not think that observations of Tribunal would have any bearing on assessments that have been framed for same and subsequent assessment year. In challenging that assessment orders if they are adverse to petitioner's interest, and if such challenge is raised and is indeed pending, Tribunal shall decide issues or grounds in such Appeals pending before it on their own merits and in accordance with law. Tribunal should not influence itself solely by observations that have been made in paragraphs 7 and 8 of order passed in Income Tax Appeal No.308/Mum/2012 for assessment year 2009 2010. We clarify that all arguments and of both sides, therefore, can be considered by Tribunal. Once Writ Petition is disposed of with this clarification, Income Tax Appeal No. 100 of 2015 does not survive and same is disposed of. (PRAKASH D. NAIK, J.) (S. C. DHARMADHIKARI, J.) IndianPlasticsInstitute v. DirectorofIncome-tax(Exemption) Mumbai&Or