M/S. KADAKKAL EDUCATIONAL TRUST vs. THE COMMISSIONER OF INCOME TAX

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935 WA.No. 873 of 2013 () --------------------------- AGAINST THE ORDER/JUDGMENT IN WP(C).NO. 12755/2012 DATED 05-12-2012. ....... APPELLANT/PETITIONER: ----------------------------------------- M/S. KADAKKAL EDUCATIONAL TRUST, 'AMINAS', T/C/NO.12/1050, JAI NAGAR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011, REP BY SHRI MOHAMMED RASHEED, MANAGING TRUSTEE. BY SRI.T.M.SREEDHARAN, SENIOR ADVOCATE. ADVS. SRI.V.P.NARAYANAN, SMT.BOBY M.SEKHAR. RESPONDENT/RESPONDENT: --------------------------------------------- THE COMMISSIONER OF INCOME TAX, AYYAKAR BHAVAN, KOWDIAR P.O., THIRUVANANTHAPURAM-695 003. BY ADV. SRI.JOSE JOSEPH, SC, INCOME TAX. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs.

MANJULA CHELLUR, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * * W.A.No.873 of 2013 ---------------------------------------- Dated this the 8th day of January 2014

J U D G M E N T SHAFFIQUE,J The petitioner in the writ petition is the appellant. The writ petition is filed challenging Exts.P5, P11 and P13 and for a direction to the respondent to consider the application in Form No.10A dated 30/05/2007 produced as Ext.P2 along with the amended documents submitted by the petitioners. 2. The appellant is an educational trust. They applied for registration under Section 12A of the Income tax Act 1961. Ext.P2 is such an application submitted by them. There were certain defects in the application which were directed to be rectified and on resubmission also certain defects were noticed. In the meantime, the appellant submitted an application under Section 10(23)(C)(vi) of the Income Tax Act which was later on rejected by the

W.A.No.873/2013 2 Commissioner of Income Tax. The petitioner thereafter submitted a fresh application under Section 12A which was allowed as per Ext.P8 order dated 20/01/2011. Therefore, as far as petitioner is concerned, the Trust is registered under Section 12A for the assessment year 2010-2011 onwards. 3. The issue is with reference to the financial years starting from 2007-2008 for which Ext.P2 application was filed. The learned Single Judge did not interfere with the orders passed by the authorities on the basis that the issue had already been covered by earlier judgments of this Court by which it was found that the application submitted by the petitioner as Ext.P2 was no longer in force. 4. The learned counsel for the appellant however would argue that though it is stated that the earlier application submitted by the petitioner as Ext.P2 was withdrawn, in effect, the appellant did not withdraw the said application. The said application was pending consideration and no final orders were passed. In the meantime, the petitioners had applied under Section 10(23)(C)(vi) of the

W.A.No.873/2013 3 Act which was rejected by the respondent authority. Even if the said application is rejected, the authority concerned ought to have considered the application for registration under Section 12A which was resubmitted on 20/09/2007. 5. Heard learned counsel for the appellant as well as the learned Standing counsel appearing for the department. In fact, the petitioner had taken up this matter in an earlier proceedings in W.P.C.No.28008/2009 and the learned Single Judge of this Court had come to a finding at paragraph 5 as under: “From the contentions as narrated above, it is evident that the stand taken by the petitioner regarding pendency of the application for registration under Section 12A, is not true and correct. Since such an application is not pending disposal before the authority concerned, the relief sought for could not be granted.” 6. However, this Court observed that the petitioner can seek appropriate remedy for applying for registration

W.A.No.873/2013 4 under Section 12A with respect to the period prior to the assessment year 2010-2011. It is also observed that the petitioner could challenge the dismissal of exemption under Section 10(23A)of the Act. Since the appellant was not satisfied with the said judgment, review petition was filed and in the review petition this Court did not interfere with the earlier judgment and it is inter alia observed that the directions contained in judgment dated 28/01/2011 to the extent of permitting the petitioner to file fresh application for registration under Section 12A, need not be interfered. The main question involved in the review petition was whether the observation of the Court that the application is withdrawn should be modified or not. The learned Single Judge did not interfere with the said order. 7. Pursuant to Ext.P9 judgment and the review order at Ext.P10, Ext.P11 order was passed on 24/10/2011 by the Commissioner of Income Tax clearly indicating that Ext.P2 application is not pending. In fact, in the counter affidavit filed by respondent authority also they have relied upon a

W.A.No.873/2013 5 communication issued by the Assistant Commissioner of Income Tax, Thiruvananthapuram on 02/12/2009 which inter alia reads as under: “Another application for Registration under Section 12A dated 28/11/2007 was received on 30/11/2007. That also was defective and a deficiency letter was issued to the assessee on 23/1/2008. The case was posted for hearing before Commissioner of Income Tax, Trivandrum on 05/05/2008. The time limit for disposal of the application for 12A registration was on 30/05/2009. The applicant informed that as it was going to apply for approval under Section 10(23C)(vi) before the Chief Commissioner of Income Tax, Trivandrum, it was not pursuing registration u/s 12A. The applicant did file an application for approval u/s 10(23C)(vi) before CCIT on 15/5/2008. Under these circumstances it was presumed that the applicant was not pursuing registration u/s 12A and though no order was passed by the CIT the pendency was considered as disposed with the remarks “Application

W.A.No.873/2013 6 withdrawn” in the 12A register, in No.116/2008-08.” 8. Since it is clearly indicated that though an application was filed under Section 12A dated 28/11/2007 which was received on 30/11/2007, there were certain defects and deficiencies for which the assessee was called upon to cure the same. The case was also posted for hearing on 05/05/2008. The time limit for disposal of application was on 30/05/2009. In the meantime, the applicant had filed an application under Section 10(23)(C) (vi) before the Commissioner of Income Tax on 15/06/2008. Under such circumstances, the official records indicate that the application under Section 12A is withdrawn. 9. When the time limit for considering the said application is already complete and the matter has been considered by this Court in the earlier judgment which is extracted above, we do not think that the learned Single Judge has committed any error of law in dismissing the writ petition filed by the petitioner.

W.A.No.873/2013 7 10. In the result, we do not find any ground to interfere with the findings of the learned Single Judge. But it is made clear that if the appellant had preferred any appeal against the application for exemption under Section 10(23A) before the Appellate Tribunal, the said authority shall consider the same and dispose of it untrammelled by any of the findings or observations made in the present proceedings. Writ appeal is dismissed. (sd/-)

(MANJULA CHELLUR, CHIEF JUSTICE) (sd/-) (A.M.SHAFFIQUE, JUDGE) jsr 09/01/2014

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