IN HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.530 of 2008 1. Commissioner of Income Tax Central, Patna. 2. Deputy Commissioner of Income Tax, Central Circle-4, Patna. ... Assessing Officer/Appellant/s Versus M/s Takshila Education Society Branch Office Kashi Place, Patna, B-549, New Friends Colony, New Delhi. ...Assessee/Respondent/s with Miscellaneous Appeal No. 532 of 2008 1. Commissioner of Income Tax Central, Patna. 2. Deputy Commissioner of Income Tax, Central Circle-4, Patna. ... Assessing Officer ... Appellant/s Versus M/s Takshila Education Society Branch Office Kashi Place, Patna, B-549, New Friends Colony, New Delhi. ... Assessee... Respondent/s Appearance : (In Miscellaneous Appeal No. 530 of 2008) For Appellant/s : Ms. Archana Sinha, Sr. Standing Counsel Mr. Sanjeev Kumar, Adv. For Respondent/s : Mr. Ajay Kumar Rastogi, Adv. Mr. Smriti Singh, Adv. Mr. Parijat Saurav, Adv. (In Miscellaneous Appeal No. 532 of 2008) For Appellant/s : Ms. Archana Sinha, Sr. Standing Counsel Mr. Sanjeev Kumar, Adv. For Respondent/s : Mr. Ajay Kumar Rastogi, Adv. Mr. Smriti Singh, Adv. Mr. Parijat Saurav, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN and HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE JYOTI SARAN) Date : 14-02-2019 These appeals under Section 260A of Income Tax Act, 1961 (hereinafter referred to as Act ) are directed against order dated 18.03.2008 passed by Income Tax Appellate Tribunal, Patna Bench, Patna (hereinafter referred to as Patna High Court MA No.530 of 2008 dt.14-02-2019 2/6 Tribunal ) in ITA No.572/Pat/06 and ITA No.571/Pat/06 filed by appellant Department for assessment years 2003-04 and 2002-03 respectively, whereby appeals have been dismissed, thus confirming order passed by Commissioner of Income Tax (Appeals), Patna dated 27.10.2006. We have heard Ms. Archana Sinha, learned counsel appearing for Income Tax Department and Mr. Ajay Kumar Rastogi, learned counsel appearing for respondent- assessee and we have perused records. Since issues raised in these appeals are identical hence with consent of parties they have been taken up together with view to their final disposal at present stage itself. assessee is educational society and apparently enjoying exemption granted by statutory authority under section 10(23C)(vi) as well as exemption under section 11 of Act for which it is duly registered under section 12AA of Act . In so far as present appeals are concerned, it is exemption granted to society under section 11 of Act which is subject matter of dispute and to cut short matter it is because Commissioner, Income Tax (Appeals) has accepted position to differ with opinion of Assessing Authority Patna High Court MA No.530 of 2008 dt.14-02-2019 3/6 and which opinion of Commissioner, Income Tax (Appeals) has been endorsed by Tribunal by order impugned that feeling aggrieved Department is before us. While Ms. Sinha, learned counsel appearing for appellant-department has invited our attention to substantial question of law framed at paragraph (v) to submit that Income Tax Appellate Tribunal has erred in allowing exemption to assessee under section 11 of Act even when activities of society is neither charitable nor society is existing solely for education purposes but for profit, Mr. Rastogi, learned counsel appearing for assessee has invited our attention to order of Commissioner enclosed at Annexure R/5 to counter affidavit filed in present appeal to submit that similar issue raised by Assessing Authority i.e. Assistant Commissioner of Income Tax vide Annexure R/4 praying for withdrawal of exemption under section 11 and consequent cancellation of registration under section 12AA of Act has not found favour with Commissioner who after examining matter threadbare vide order passed on 27.10.2010 has dropped proceeding. He thus submits that even if any issue persuaded appellant herein to raise such question of law through appeals in question, it stands answered by order of Commissioner, Income Tax himself enclosed at Annexure R/5, whereby Patna High Court MA No.530 of 2008 dt.14-02-2019 4/6 recommendation made by Assessing Authority i.e. Assistant Commissioner of Income Tax at Annexure R/4 for withdrawal of exemption has been rejected and proceedings dropped. We have heard learned counsel for parties and we have perused records. status of educational society already stands discussed above and requires no further discussion, save and except, that it is running Educational Institution in name of Delhi Public School at Patna and at Pune and is registered under section 12AA of Act as at present and was also granted exemption under section 10(23C)(vi) of Act for assessment years 1999-2000, 2000-2001 and 2001-2002 under orders of Central Board of Direct Taxes dated 21.03.2002 which fact is not in dispute. present appeals relate to Assessment Year 2003- 2004 and Assessment Year 2002-03 respectively and thus we are not concerned with exemption discussed above rather it is exemption sought by assessee under section 11 of Act which is subject matter of present appeals and it is for this purpose that substantial question of law raised by Ms. Sinha at paragraph (v) of appeal is reproduced which runs under: (v) Whether on facts and in law ITAT was justified in directing Assessing Officer to allow exemption to assessee u/s 11 when assessee society has been found indulging in Patna High Court MA No.530 of 2008 dt.14-02-2019 5/6 activity which is primarily neither charitable nor existing solely for education purposes but for profit. Substantially, it is argued by Ms. Sinha that activity of society is neither charitable nor it is running exclusively for educational purposes rather it is business to gain profit that raising such very issue that Assessing Authority made his recommendation through letter dated 26.07.2007 addressed to Additional Commissioner of Income Tax, Central Range 1, Patna, whereby he prayed for withdrawal of exemption granted to assessee under section 10(23C)(vi) as well as exemption granted under section 11 of Act . assessing Authority raised five grounds to make such recommendation for withdrawal of exemption as well as for cancellation of registration under section 12AA of Act which in turn allowed benefit of section 11 to assessee. records transpire that matter was examined by Commissioner, Income Tax and who did not find any merit in recommendation for inviting cancellation of registration of respondent-assessee under section 12AA of Act for according to Commissioner of Income Tax, activities of society was not found true to invite such cancellation. proceeding was accordingly dropped vide order dated 27.10.2010 enclosed at Annexure R/5 to counter affidavit, filed in Patna High Court MA No.530 of 2008 dt.14-02-2019 6/6 appeals. In our opinion, considering fact that Commissioner, Income Tax (Central) himself having examined issues has chosen to drop proceeding for cancellation of registration under section 12AA of Act which permits assessee to enjoy exemption under section 11 of Act , he cannot be permitted to pursue appeals before this Court which in our opinion actually should have been withdrawn even otherwise. Having considered matter on contentions advanced, we do not find any question of law arising in these appeals much less substantial question of law inviting our opinion. These appeals are accordingly dismissed. (Jyoti Saran, J) ( Arvind Srivastava, J) Anjula/Skpathak AFR/NAFR AFR CAV DATE NA Uploading Date 05.03.2019 Transmission Date NA Commissioner of Income-tax Central, Patna / Deputy Commissioner of Income-tax, Central Circle-4, Patna v. Takshila Education Society