TaxTMI 
TaxTMI 
2017 (11) TMI 956
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....6 143(3)/ 147/ 254 of Income Tax Act, 1961 23.12.2008 2002-03 I.T.A. No. 2132/Kol/2016 04.08.2016 143(3) of Income Tax Act, 1961 18.12.2009 2003-04 I.T.A. No. 2133/Kol/2016 04.08.2016 143(3) of Income Tax Act, 1961 18.12.2009 2007-08 I.T.A. No. 2134/Kol/2016 04.08.2016 143(3) of Income Tax Act, 1961 18.12.2009 2010-11 I.T.A. No. 2135/Kol/2016 04.08.2016 143(3) of Income Tax Act, 1961 18.12.2009 2011-12 I.T.A. No. 2136/Kol/2016 04.08.2016 143(3) of Income Tax Act, 1961 18.12.2009 2012-13 I.T.A. No. 2137/Kol/2016 04.08.2016 143(3) of Income Tax Act, 1961 18.12.2009 2. ITA No. 2131/Kol/2016 - Asst Year 1998-99 - Revenue Appeal During the course of hearing, the ld AR stated that the total addition made by the ld AO in this year was only Rs. 4,12,170/- where the tax effect is only Rs. 92,329/-. We find that the same falls within the low tax effect circular issued by the CBDT vide Circular No. 21/2015 dated 10.12.2015, wherein the CBDT had categorically stated as under:- 3. Henceforth, appeals / SLPs shall not be filed in cases where the tax effect do....
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....t' exceeds the monetary limit prescribed. In case where a composite order / judgement involves more than one assessee, each assessee shall be dealt with separately. 8. Adverse judgements relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect: (a) Where the Constitutional Validity of the provisions of an Act or Rule are under challenge, or (b) Where Board's order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or (c) Where Revenue Audit Objection in the case has been accepted by the Department, or (d) Where the addition relates to undisclosed foreign assets / bank accounts. 10. This instruction will apply retrospectively to pending appeals and appeals to be filed henceforth in High Courts/ Tribunals. Pending appeals below the specified tax limits in para 3 above may be withdrawn / not pressed. Appeals before the Supreme Court will be governed by the instructions on this subject, operative at the time when such appeal was filed. We find that the Circular mak....
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....rough the process of training and developing the knowledge and skill by normal schooling and it is thereafter perfected through stage performance. The ld AO observed in his assessment order that the assessee is registered u/s 12A of the Act. 4.1. Since the beginning , the assessee was claiming exemption of its income u/s 10(22) of the Act proclaiming it to be an educational institution not existing for the purpose of profit upto Asst Year 1998-99. This claim of exemption u/s 10(22) of the Act was upheld by the order of this tribunal in ITA Nos. 1728 to 1731/Cal/1999 & ITA Nos. 519 to 522/Cal/1999 dated 11.7.2002 for Asst Years 1986-87 to 1993-94 respectively. Against this order of tribunal, the revenue preferred an appeal before the Hon'ble Calcutta High Court which dismissed the same by holding that no substantial question of law was involved in these appeals vide its order in ITA No. 23 of 2003 dated 14.8.2006. 4.2. Meanwhile this tribunal for the Asst Years 1999-2000 and 2000-01 in ITA Nos. 1806 & 1807/Kol/2002 dated 11.5.2004 had negatived the contention of the assessee that it is an educational institution and brought the surplus to tax. Against this order, the assessee ....
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....07-08 , 2010-11 , 2011-12 and 2012-13. 6. We have heard the rival submissions and perused the materials available on record. We find that though the assessee had not preferred any appeal for the abovementioned asst years before us, the ld AR argued that he is entitled to make oral submissions on any observation / issue /ground that has been held / decided against him by the ld CITA. In this regard, he placed reliance on the decision of the co-ordinate bench of this tribunal in the case of DDIT(E) vs S.K.S.Educational and Social Trust in ITA No. 381/Kol/2014 dated 31.5.2017 wherein it was held as under:- "5. After hearing the rival contentions, I find that the co-ordinate bench of the Tribunal in the case of Assistant Commissioner of Income Tax Circle-29, Kolkata vs. Ricky Chandra (supra), has at para 7, held as follows: 7. We have heard the rival submissions and perused the records of the case. The Hon'ble Supreme Court in the case of CIT, Madras vs. S. Nelliappan [66 ITR page 722] has observed as under: In hearing an appeal the Tribunal may give leave to the assessee to urge grounds not set forth in the memorandum of appeal and in deciding the app....
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....those reasons can be termed as a business organization of either Smt Mamata Shankar Ghosh or Sri Chandradoy Ghosh. It further held that they have merely worked as Teacher and Choreographer and as signatory to the Memorandum of Association and they are running the organization. It was held that they ofcourse received salary and obtained certain benefits but that is because that they have worked for the society. Accordingly it was held that the assessee society could not be considered as a business organization. We find that against this order , the revenue had preferred further appeal before the Hon'ble Calcutta High Court which was dismissed vide order in ITA No. 23 of 2003 dated 14.8.2006 on the ground that no substantial question of law was involved in the said appeals. It is already well settled that eventhough the Hon'ble Calcutta High Court had held that no substantial question of law was involved in these appeals, it tantamounts to exercise of the appellate powers by the Hon'ble High Court and the tribunal order stands confirmed and the order of the lower authorities gets merged with the order of the Hon'ble High Court. We would like to place reliance in this regard on the de....
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....s exercised by the Apex Court under article 136 deserved to be rejected. As far as the provisions of section 260A are concerned, there is no such dichotomy of powers. Nor does the Court have any powers which can be equated with the powers exercised by the Supreme Court under article 136. The only jurisdiction that the High Court has, while hearing the appeal, filed under section 260A is the appellate jurisdiction, it has no discretionary jurisdiction which would permit the High Court to prevent a party from filing an appeal. There is no provision which requires seeking of leave to file an appeal, nor is there any provision or rule whereby the High Court can grant or refuse leave to file an appeal. As a matter of fact that the appeals are filed with the registry, and after completion of the necessary formalities, including compliance with the rules of the High Court, the appeal is numbered as such and is placed for hearing only as an appeal, whereas before the Apex Court what is placed at the initial stage is a special leave petition seeking permission to file appeal. In absence of any such powers being available to the High Court under section 260A, the High Court cannot prevent an....
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....only to that limited extent. That is the reason why principle of merger is stated to be neither rigid nor of universal application. Therefore, it cannot be successfully contended that in the latter situation, i.e., where the appellate court or the forum merely accords approval to the reasoning of the lower court or forum, there is no decision of the appellate court or forum. [Para 19] The doctrine of merger is founded on principle of propriety in the hierarchy of justice delivery system, the underlying logic being that there cannot be more than one operative order governing same subject-matter at a given point of time. The only caveat to the doctrine of the merger is that the content or the subject-matter of challenge before the superior forum has to be borne in mind. [Para 20] In a case where the appeal is dismissed on account of - (i) being barred by limitation, (ii) being defective in nature, (iii) the appellant having no locus standi to prefer appeal, it cannot be stated that there is merger of the order of the subordinate forum in the order of the superior forum. The reason is: there is no 'order' made by the superior forum, i.e., on merits, the controversy b....