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09.01.2019
Heard Shri T.K. Satapathy, learned Senior Standing Counsel for the appellant and Shri P.R. Mohanty, learned counsel for the sole respondent.
By way of this appeal, the appellant has challenged the judgment and order dated 15.02.2011 passed by the Income Tax Appellate Tribunal, Cuttack Bench, Cuttack in I.T.A. No.395/CTK/2010 whereby the learned Tribunal has set aside the order of the Commissioner of Income Tax, Bhubaneswar dated 31.08.2010 in which the application filed by the assessee under Section 12AA for grant of registration was rejected on the ground of delay.
Learned counsel for the appellant contended that the learned Tribunal could not have directed for registration at best it could have condoned the delay and the matter could have been remitted back for re-consideration by the Commissioner.
The matter for 12AA registration was pertaining to the assessment years 2007-08 to 2009-10.
The Tribunal has allowed the following questions of law which were framed:
(i) The order passed by the CIT rejecting the registration u/s. 12AA on the basis of genuineness of the activities vis-à-vis books of account, is arbitrary, illegal and unjustified under law more so the order is passed without giving sufficient opportunity to the assessee to explain the figures in the auditors statement of accounts
ITA No. 41 of 2011
-2- to the particular facts and circumstances of the case.
(ii) The order passed by the CIT is wrong in observing that there is inadequate infrastructure development and huge expenditure towards advertisement without allocating towards charity on education is arbitrary, surmises and uncalled for in the light of the particular facts and circumstances of the case.
(iii) The order of the CIT in rejection of the condonation of delay petition filed by the assessee is illegal, arbitrary and unjustified in law in facts and circumstances of the case.”
The matter has now become academic inasmuch as the judgment has already been implemented. Even otherwise, the issues are covered by the decision of the Allahabad High Court in the case of Commissioner of Income Tax vs. Yamuna Expressway Industrial Development Authority, reported in
(2017) 395 ITR 18 (All). In paragraph-79 of the said judgment, the issue has been answered in favour of the assessee, which reads as under:
“79. One objection, which has been advanced seriously, is that Tribunal should not have directed to grant registration since competent authority is CIT, therefore, Tribunal should have directed CIT to consider registration. In our view, this submission also sans merit. Tribunal exercises co-extensive appellate power against the order of CIT. It is the last Court of fact. There is no restriction on the power to Tribunal. Sec. 254 of Act, 1961 empowers Tribunal to pass such orders as it deems fit. Therefore, in all the matters where appeal is provided to Tribunal, its power is co-extensive with
-3- the authorities whose orders are appealed before Tribunal. There is no reason to read power of Tribunal, in a manner so as to linger on a matter between different authorities, particularly when there is no such restriction under the statute and on the contrary, statute confers widest power upon Tribunal.”
Having heard learned counsel for the parties and considering the materials available on record, we are of the view that the issues raised in this appeal are covered by the decision of the Allahabad High Court in the case of Yamuna Expressway Industrial Development Authority (supra). Accordingly, this appeal stands disposed of in terms of the observations and directions passed by the Allahabad High Court in Yamuna Expressway Industrial Development Authority (supra).
The appeal is disposed of. All connected Misc. Cases/I.As. are also disposed of.
Urgent certified copy of this order be granted on proper application.
SKJ .…….......……………… ( K.S. Jhaveri ) Chief Justice
…………………..……… (K.R. Mohapatra) Judge