SLUM REHABILITATION AUTHORITY vs. THE DEPUTY DIRECTOR OF INCOME-TAX EXEMPTION 1 (2) MUMBAI AND 3 ORS.
What did the High Court hold?
The High Court held that while the Petitioner's activities in rehabilitating slum dwellers are likely to be considered for charitable purposes and it has made out a fairly arguable case, an unconditional stay of the demand is not warranted. This is primarily because the Petitioner's Section 12A registration, which enables it to claim exemption under Section 11, has been cancelled for the subject Assessment Year 2011-12, and an appeal against this cancellation is pending before the Tribunal. The Court acknowledged that previous decisions were based on the definition of 'charitable purpose' prior to the introduction of the proviso to Section 2(15), and the impact of this amendment requires detailed examination. The Court also noted that the Petitioner's activities are not entirely devoid of commercial elements, as indicated by the Assessing Officer's assessment order. Therefore, the interest of justice would be met by directing the Petitioner to deposit 10% of the demand (Rs. 53.71 Crores) within six weeks. Upon this deposit, a complete stay of the recovery of the balance demand would be granted till the disposal of the Petitioner's appeal by the CIT(A). The Court clarified that its observations were confined to the stay application and would not prejudice the pending appeal.
What were the facts?
The Petitioner, Slum Rehabilitation Authority, challenged orders dated May 30, 2014, and July 25, 2014, which rejected its application for a stay of a demand of Rs. 53.71 Crores. This demand arose from an assessment order dated February 19, 2014, for Assessment Year 2011-12. The Petitioner, a statutory authority established under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, has been claiming exemption under Section 11 of the Income Tax Act, 1961, since Assessment Year 2003-04. Previous appeals by the Revenue for earlier assessment years regarding exemption under Section 11 were dismissed by the Tribunal and upheld by the High Court. However, a proviso added to Section 2(15) of the Act by the Finance (No. 2) Act, 2009, effective from April 1, 2009, introduced a restriction on 'charitable purpose' if it involved trade, commerce, or business.
What were the issues?
1. Whether the Petitioner is entitled to an unconditional stay of the demand of Rs. 53.71 Crores till the disposal of its appeal by the CIT(A), considering its activities of slum rehabilitation are for a charitable purpose under Section 2(15) of the Income Tax Act, 1961, and not hit by the proviso to Section 2(15). Assessee's Arguments: The Petitioner argued that its activities of slum rehabilitation are for a charitable purpose, falling under 'relief to the poor' and are not in the nature of trade, commerce, or business, thus the proviso to Section 2(15) is inapplicable. It relied on previous Tribunal and High Court decisions upholding its claim for exemption and CBDT Instruction No. 1949. It contended that a prima facie case warrants an unconditional stay. Revenue's Arguments: The Revenue argued that previous decisions were rendered before the introduction of the proviso to Section 2(15), and the amendment necessitates a detailed examination of its impact on the Petitioner's activities. The Assessing Officer concluded that the Petitioner's activity is commercial and hit by the proviso. The Revenue also noted that the Petitioner's Section 12A registration was cancelled.
Which sections of the Income-tax Act were involved?
Section 11,Section 2(15),Section 220(6),Section 263,Section 12A,Section 156
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Cause title — parties, addresses and appearances
by the authority in its order. (c) In cases where the assessee relies upon financial difficulties, the authority concerned can briefly indicate whether the assessee is financially sound and viable to deposit the amount if the authority wants the assessee to so deposit. (d) The authority concerned will also examine whether the time to prefer an appeal has expired. Generally, coercive measures may not be adopted during the period provided by the statute to go in appeal. However, if the authority concerned comes to the conclusion that the assessee is likely to defeat the demand, it may take recourse to coercive action for which brief S.R.JOSHI 6 of 12 Uploaded on - 21/08/2020 wp-2542-2014.sxw reasons may be indicated in the order. (e) We clarify that if the authority concerned complies with the above parameters while passing orders on the stay application, then the authorities on the administrative side of the Department like respondent No.2 herein need not once again give reasoned order. The above parameters are not exhaustive. They are only recommendatory in nature.” The aforesaid directions were reiterated by this Court in UTI Mutual Funds v/s. ITO 345 ITR 71 while laying additional parameters in respect of disposal of stay applications, are as under: “1. …. …. …. …. 2. …. …. …. ….
If the Assessing Officer has taken a view contrary to what has been held in the preceding previous years without there being a material change in facts or law, that is a relevant consideration in deciding the application for stay. 4. …. …. …. ….
In exercising the powers of stay, the Income Tax Officer should not act as a mere tax gatherer but as a quasi judicial authority vested with the public duty of protecting the interest of the Revenue while at the same time balancing the need to mitigate hardship to the assessee. Though the assessing officer has made an assessment, he must objectively decide the application for stay considering that an appeal lies against his order: the matter must be considered from all its facets, balancing the interest of the assessee with the protection of the Revenue.” 13 We have considered the submissions. At the very outset, it must be pointed out that the manner in which the Assessing Officer has disposed of the application for stay by impugned order dated 30th May, 2014 is in complete breach of the directions of this Court as set out herein above. Besides in any event the tests applied to dispose of the stay S.R.JOSHI 7 of 12 Uploaded on - 21/08/2020 wp-2542-2014.sxw application by the impugned order dated 30th May, 2014 are not at all germane to disposing of the stay application. The first test applied is absence of financial hardship being pleaded. This issue was a subject matter of consideration by the Court in UTI Mutual Fund v/s. ITO in W. P. (L) No.523 of 2013 rendered on 6th March 2013 (Dr. D. Y. Chandrachud & A. A. Sayed, JJ.) and it was held that it is not the law that in the absence of financial hardship, no stay of recovery can be granted. The Court held that where a strong prima facie case is made out, a direction to deposit would itself cause financial hardship. Therefore, in our view, the Assessing Officer must deal with the prima facie merits of the Petitioner's case in appeal and if the same is covered against the revenue in view of a decision of a superior forum then the question of considering the issue of financial hardship may not arise. Financial hardship is relevant only when the assessee is unable to make out a case on merits for an unconditional stay of the demand. In this case, the Assessing Officer has not dealt with the prima facie case. Moreover, in the impugned order dated 30th May, 2014, the Assessing Officer has not dealt with the issue as it has already been dealt with in the Assessment Order. If this justification is to be accepted there is no reason for the Act to provide for a stay of demand by the Assessing officer till the disposal of the appeal by the CIT(A). This is also contrary to the guidelines laid down in UTI Mutual Funds (345 ITR 71) that 'though the Assessing Officer had made an assessment, he must objectively decide the application for stay considering that an appeal lies against his order..' Therefore, at one stage, we were considering to restore the issue for fresh consideration by the Assessing Officer. However, we find that the Director of Income Tax(Exemption) has by the impugned order dated 25th July, 2014 disposed of the application for stay on S.R.JOSHI 8 of 12 Uploaded on - 21/08/2020 wp-2542-2014.sxw consideration of relevant grounds unlike the Assessing Officer. Therefore, we decided to examine the impugned orders and dispose of the petition on merits.
14 We find that the orders of the Tribunal for the Assessment Years 200506, 200708 and 200809 as well as the order of the this Court disposing of the Revenue's appeal from the above orders of the Tribunal on which much reliance was placed upon by the Petitioner were all rendered in the context of Section 2(15) of the Act as then existing i.e. prior to the introduction of the proviso. Thus, there is admittedly a change in the law and above decisions may not apply without considering the impact of the amendment i.e. the proviso. This aspect has also been provided in the guidelines laid down in UTI Mutual Fund (345 ITR 71 ) (supra). The introduction of the proviso would be a matter requiring a detailed examination with regard to its effect/ impact on the Petitioner's activity claimed to be carried out for a charitable purpose. The Assessing Officer has reached the conclusion in the Assessment Order dated 19th February 2014 that the activity of the Petitioner is in the nature of a commercial activity and, therefore, hit by the proviso to Section 2(15) of the Act. 15 However, this does not mean that the petitioner has not made out even a fairly arguable case that rehabilitation of the slum dwellers would be a charitable purpose. Besides, we were taken by the Petitioner's counsel through the provisions of the Slum Act 1971 which again indicated that the activity of the Petitioner in rehabilitating the slum dwellers would be an object of general public utility. However, all these would be a matter which would require consideration at the final hearing. S.R.JOSHI 9 of 12 Uploaded on - 21/08/2020 wp-2542-2014.sxw Therefore, though we find some substance in the Petitioner's claim of Charitable purposes, keeping in view the fact that the Petitioner's registration under Section 12A of the Act has been canceled even for subject Assessment Year by the order dated 27th March 2014 and though appeal from the same is pending before the Tribunal, no stay is obtained at least, as of today, the Petitioner is not entitled to the benefit of exemption under Section 11 of the Act for the subject Assessment Year 201112. Therefore, in the above facts, unconditional grant of stay of the demand till the disposal of the appeal by the CIT(A) would not be warranted. 16 However it was urged on behalf of the petitioner that a prima facie case by itself would warrant an unconditional stay till the disposal of the appeal by the first appellate authority. A prima facie case would mean an an arguable case on first look/appearance. There are varying shades/degrees of a prima facie case. An issue which stands concluded by a decision of a higher forum in favour of the applicant, if not distinguishable on the face of it, would warrant an unconditional stay. Conversely, if the issue is covered against the applicant by a decision of an higher forum then complete deposit of amounts attributable to the issue would be justified. The fact that the issue is in further appeal would not by itself reduce the binding effect of the decision of the higher forum. Similarly another instance of strong prima facie case which would warrant an unconditional stay would be an instance where the order being appealled against is in breach of principles of natural justice. However where the issue is not concluded one way or the other by a decision of a higher forum, then the Authority considering the stay application would S.R.JOSHI 10 of 12 Uploaded on - 21/08/2020 wp-2542-2014.sxw have to prima facie consider on the face of the impugned order, the likelihood of the applicant succeeding in appeal. This need not be detailed examination but a first look examination and on that basis it is for the authority to exercise his discretion in law and grant such stay depending upon likelihood of success in appeal. At this stage various other factors such as financial hardship, balance of convenience etc would enter into consideration to decide the terms of the stay of demand, if any. These are general principles for guidance, illustrative in nature and the Authorities must exercise their discretion in law depending upon the facts before them. 17
Therefore on the application of the above tests bearing in mind that the Petitioner is working towards the rehabilitation of slum dwellers, it is very likely that the Appellate Authority may hold its activity to be for Charitable purposes. Therefore the interest of justice would be met if the Petitioner is directed to deposit 10% of the amount of Rs.53.71 Crores within six weeks from today and on the Petitioner making the deposit, there would be a complete stay of recovery of balance demand raised under Section 156 of the Act for the Assessment Year 201112, till the disposal of the Petitioner's appeal by the CIT(A). In case the order of CIT(A) is adverse to the Petitioner, then as laid down by this Court in UTI Mutual Fund 345 ITR 71 (supra) the stay would continue till the period of filing an appeal to a higher forum expires. Further if a stay application is filed before the higher forum in its pending appeal, then till the disposal of the stay application by the higher forum. 18 However, we must make it clear that the observations in the present judgment are confined only for the disposal of the application for S.R.JOSHI 11 of 12 Uploaded on - 21/08/2020 wp-2542-2014.sxw stay. The observations made in the present order would not prejudice the Petitioner and the RespondentRevenue in any manner in the pending appeal. 19 Accordingly, the Petition is disposed of in the above terms with no order as to costs. (M.S.SONAK,J.) (M.S.SANKLECHA,J.)
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