1 IN SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S).1070/2019 (Arising out of Special Leave Petition(C) No(s). 30475/2018) SHRI SAIBABA SANSTHAN TRUST(SHIRDI) APPELLANT(s) VERSUS UNION OF INDIA & ORS. RESPONDENT(s) ORDER Leave granted. appeal arises from judgment of High Court of Judicature at Bombay dated 24 October 2018. High Court disposed of writ petition instituted by appellant for challenging notice dated 23 March 2018 issued by Deputy Commissioner of Income Tax (Exemption) (2) (1) Mumbai under Section 148 of Income Tax Act 1961 for reopening assessment for Assessment Year 2013-14. Signature Not Verified Digitally signed by ASHWANI KUMAR issue pertaining to taxability of anonymous Date: 2019.01.24 17:08:53 IST Reason: donations received in Hundies maintained by temple trust under Section 115BBC of Income Tax Act, 1961 is 2 pending determination before Commissioner of Income Tax (Appeals) for Assessment Year 2015-16. When High Court was moved in writ proceedings for challenging reopening of assessment for Assessment Year 2013-14, Court observed that objections to reopening of assessment are same as those before Commissioner of Income Tax (Appeals) for Assessment Year 2015-16. Observing that any expression of opinion on reopening of assessment will affect pending appeal before Commissioner of Tax (Appeals), High Court disposed of writ petition, keeping open challenge to be raised in appropriate legal proceedings. Mr. S. Ganesh, learned senior counsel appearing on behalf of appellant submits that issue which is raised falls in narrow frame. According to appellant, Sections 19 and 21 of Shri Saibaba Sansthan Trust (Shirdi) Act, 2004 indicates that appellant is both religious as well as charitable trust and is, therefore, trust of mixed character. Hence, it has been submitted that having regard to provisions of Clause (b) of sub-Section (2) of Section 3 115BBC read with Circular of CBDT dated 20 December 2006, anonymous donations which are received in Hundies without any specific directions for use for medical-and educational purposes do not fall within ambit of statutory provisions. On other hand, Mr. Vikramjit Banerjee, learned Additional Solicitor General appearing on behalf of Union of India has supported judgment of High Court. Mr. Banerjee urged that any determination on issue whether there was reason to believe that appellant's income for Assessment Year 2013-14 had escaped assessment would inevitably lead to final determination of issue which is pending before Commissioner of Income Tax (Appeals). Hence, it is urged that appellant should be left to pursue its remedies after assessment is completed for Assessment Year 2013-14. grievance that High Court ought to have dealt with challenge to reopening of assessment on ground that there was no reason to believe that income had escaped assessment has to be appreciated in context of facts of present case. 4 applicability of Section 115BBC is central issue which is pending before Commissioner of Income Tax (Appeals) for Assessment Year 2015-16. In this view of matter, we are of view that High Court has justifiably held that it would not be appropriate to exercise jurisdiction under Article 226 when same issue is already pending before Commissioner of Income Tax (Appeals) for Assessment Year 2015-16. Mr. Ganesh urged that if order of assessment is passed in present case, appellant would inevitably be relegated to pursue remedies to seek stay of recovery and hence it would be appropriate if High Court is directed to decide issue afresh. We are not inclined to accede to that submission. We find that High Court was justified in deciding not to enter upon decision on issue which is pending before Commissioner of Income Tax (Appeals). For Assessment Year 2015-16, Division Bench of High Court passed order on 27 March, 2018 in Writ Petition No. 939 of 2018 in following terms on issue of stay of recovery: "In above view, we set aside order dated 23rd March, 2018 passed by CIT(A) 5 on Petitioner's stay application. We direct respondent-Revenue not to initiate any recovery proceedings against Petitioner till such time as CIT(A)-Respondent No. 3 disposes of Petitioner's appeal from order dated 31st December, 2017 of Assessing Officer-Respondent No. 2 ad for period of two weeks after communication of order of CIT(A) to Petitioner." above order was passed in petition challenging refusal of Commissioner of Income Tax (Appeals) to stay recovery during pendency of appellate proceedings. appellant would be sufficiently protected, if same protection which was granted by High Court in order dated 22 March 2018 for Assessment Year 2015-16, is granted in event that order of assessment is passed for Assessment Year 2013-14. Hence, we direct as follows: i). Assessing Officer shall complete assessment for Assessment Year 2013-14 pursuant to notice for reassessment which has been issued on 23 March 2018, in accordance with law; ii). issue as to whether notice under Section 148 for reopening assessment for Assessment Year 6 2013-14 is valid is kept open to be urged in appropriate proceedings after assessment order is passed; iii). Upon passing of order of assessment for Assessment Year 2013-14 and in order to enable assessee to pursue its remedies before Commissioner of Income Tax (Appeals) there shall be interim protection in terms of order dated 27 March 2018 that was passed by Division Bench of Bombay High Court in Writ Petition No. 939 of 2018; iv). Both appeals for Assessment Years 2013-14 and 2015-16 shall be heard together by Commissioner of Income Tax (Appeals); v). appellant shall be at liberty to pursue its remedies in accordance with law. appeal is disposed of in above terms. No costs. .J. [DR.DHANANJAYA Y. CHANDRACHUD] .J. [M.R. SHAH] NEW DELHI; JANUARY 18, 2019. 7 ITEM NO.56 COURT NO.11 SECTION IX SUPREME COURT OF INDIA RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s). 30475/2018 (Arising out of impugned final judgment and order dated 24-10-2018 in WPL No. 3278/2018 passed by High Court Of Judicature At Bombay) SHRI SAIBABA SANSTHAN TRUST(SHIRDI) Petitioner(s) VERSUS UNION OF INDIA & ORS. Respondent(s) Date : 18-01-2019 This petition was called on for hearing today. CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE M.R. SHAH For Petitioner(s) Mr. S. Ganesh, Sr. Adv. Mr. R. P. Gupta, AOR For Respondent(s) Mr. Vikramjit Banerjee, ASG Mr. Shekhar Vyas, Adv. Mr. S.A. Haseeb, Adv. Ms. Swarupama Chaturvedi, Adv. Mrs. Anil Katiyar, AOR UPON hearing counsel Court made following ORDER Leave granted. appeal is disposed of in terms of signed order. Pending application(s), if any, stands disposed of accordingly. (ASHWANI THAKUR) (SAROJ KUMARI GAUR) COURT MASTER (SH) BRANCH OFFICER (Signed order is placed on file) Shri Saibaba Sansthan Trust (Shirdi) v. Union of India & Or