TaxTMI 
TaxTMI 
2010 (9) TMI 829
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....espective counsel but have not placed on record their respective counter affidavit(s). 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. The petitioner before us is in the capacity of individual assessee. It is stated in paragraph 5 of the writ petition that his source of income, inter alia, is by way of advisory fee from different charitable institutions which are duly registered under the provisions of the Societies Registration Act 1860, also as charitable institutions in terms of section 12A of the Act by appropriate orders of the Commissioner of Income Tax, and are respondent nos. 3 to 7 herein. The petitioner had rendered consultancy services to respondent nos. 3 to 7 during the assessment year 1994-95, and had received fees from them. The petitioner had submitted his returns where he disclosed all his income including the fees received from respondent nos. 3 to 7. The return was accepted and the order of assessment in terms of section 143(3) of the Act was passed by the learned Deputy Commissioner of Income Tax by his order dated 2.3.1995 (Annexure 1). 2.1) On the other hand, respondent no.3 to 7 had also sub....
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.... learned counsel for the petitioner submits that, in view of the appellate orders with respect to respondent nos. 3 to 7, the very foundation of the impugned notice is gone. He next submits that the petitioner's case is no longer hit by the provisions of section 13(1)(c) read with sub-section (3) of section 13 of the Act. He lastly submits that the appellate orders with respect to past periods have consistently held on the appeals preferred by respondent nos. 3 to 7 that those are charitable institutions and, therefore, the learned assessing officer should have followed the same position with respect to respondent nos. 3 to 7 relating to the period in question in the interest of uniformity and consistency of justice delivery system. He relies on the judgment of a Division Bench of this Court in the case of Dr. Narendra Prasad vs. Commissioner of Income Tax [(2010) 322 ITR 171]. 4. Learned Junior Standing Counsel for the Deptt. of Income Tax has taken us through the counter affidavit and the supplementary counter affidavit filed for and on behalf of respondent nos. 1 and 2, and submits that the former was placed on record before the appellate orders, and the latter was....
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....red by him, and those institutions are not benamidars of the petitioner. It is thus evident on the face of it that the very foundation for the impugned notice go. When the substratum is gone, where is the question of the super structure? In fact, respondent nos. 1 and 2 in their supplementary counter affidavit sworn on 12.2.2001, obviously filed after the appellate orders with respect to respondent nos. 3 to 7, takes notice of the same and fairly concedes the position that the very basis for the impugned notice is gone. The relevant portion of the supplementary counter affidavit is reproduced hereinbelow:- "4. That the proceedings under section 148 was stayed by the Hon'ble High Court with direction to mention before the Court when the appeals preferred by the following institutions held to be benami of the petitioner, namely, Dr. Bindeshwar Pathak are disposed of: Name of the Institution Appeal disposed of by CIT(A) Appeal No. Date of disposal 1. M/s Sulabh International 97/P/A-II/97-98 31.12.97 2. M/s Akhil Bhartiya Paryavaran and Gramin Vikas Sansthan 95/P/A-II/97-98 31.12.97 3. M/s International Instt. Of Sulabh System 114/P....
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....which are to the same effect as the appellate orders for the period in question. Looking at it from this angle, the view taken by the learned assessing authority in the present case with respect to the period in question seems to be without justification. There was no allegation against the petitioner, nor against respondent nos. 3 to 7, of suppression of income or material facts. A mere change of opinion on the self-same facts should not normally be the basis to alter the approach consistently followed in the previous years and later also. This would unsettle and discourage honest assessees. 7.1 The return of respondent no.5 herein for the period 1995-96, a later period, for example was allowed by the learned assessing officer by his order dated 5.3.98 (Annexure 9), whereby he held that Sulabh International is indeed a charitable society, its income is exempt under sections 11, 12 and 13 of the Act, it is not a benami organization of the petitioner, the fees payable to the petitioner was just and reasonable and for genuine and worth-while services. 7.2 Learned counsel has rightly relied on the judgment of a Division Bench of this Court in Dr. Narendra Prasad (s....