TaxTMI 
TaxTMI 
2018 (11) TMI 52
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....eing Maharashtra Act No.14 of 2004. It is known as Shri Saibaba Sansthan Trust (Shirdi) Act, 2004. 3. The petitioner says that the second respondent to this writ petition is the Deputy Commissioner of Income Tax (Exemptions) (2)(1), Mumbai and is the Assessing Officer. The return of income filed by the petitioner for the Assessment Year 2013-14 was filed before him. The third respondent to this petition is the Commissioner of Income Tax (Exemptions). 4. The petitioner has stated in the writ petition that it is a well known religious and charitable Trust. It was registered under the provisions of the Maharashtra Public Trusts Act, 1950, but now governed by the Act of 2004. It is a mixed purpose Trust. The petitioner manages the affairs of this Trust at Shirdi. It receives millions of worshippers and devotees every year from all over the world. The petitioner manages and makes provisions for the religious activities and services conducted at the shrine and also for the welfare, protection and convenience of the pilgrims and worshippers at the shrine. It carries on various charitable activities by utilising the donations received at the shrine from devotees and worshippers. These ch....
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....on 147 of the Income Tax Act, 1961. I, therefore, propose to assess/re-assess the income/loss for the said Assessment Year and I hereby require you to deliver to me within 30 days from the service of this notice, a return in the prescribed form for the said Assessment Year. This notice is being issued after obtaining the necessary satisfaction of the EXEMPTIONS RANGE 2, MUMBAI AKHILESH SRIVASTAVA EXEM, CIRCLE 2, MUMBAI 7. On receipt of this notice and the reasons, based on which the same has been issued, the petitioner raised objections. The objections raised by the petitioner are to the effect that the activities of the trust are known to the authorities. There was never any issue or question, much less, a dispute raised by the respondents. 8. The petitioner's stand was set out in the letter of their Chartered Accountants M/s. Kelkar & Associates. The petitioner pointed out that the Assessing Officer, therefore, could never have doubted the position, factual and legal, as enumerated in the petitioner's Chartered Accountant's letter. There is no basis to infer escapement of income in relation to the assessee, namely, the petitioner. The detailed objections to the notice are,....
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....der section 115BBC of the IT Act. Once the registration under section 80G of the Act shows that the petitioner is a charitable organisation in whose case such an enormous donation is taxable, then, the Assessing Officer recorded his reasons for the belief that the income chargeable to tax has escaped assessment. It is in these circumstances that he issued the notice after believing that the income of the petitioner has escaped assessment. The reasons were despatched to the Additional Commissioner of Income Tax (Exemptions) Range 2, Mumbai - respondent No.3, who accorded sanction as required by section 151(3) of the IT Act, vide his approval dated 6th March, 2018. That is how the notice under section 148 of the Income Tax Act was issued on 23rd March, 2018 for re-opening the assessment. A reference is, therefore, made to all this in the order impugned in this petition and stating to be rejecting the objections. Further, the deponent relies upon the fact that in relation to a similar notice issued by the authorities and served on the petitioner, the petitioner had brought a writ petition in this Court. It is stated that the Writ Petition No.395 of 2018 was not entertained by this Cou....
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....the Petitioner in 'dakshina boxes' are held to be taxable under Section 115 BBC of the Act as the exclusion provided in Sub-Section (2) thereof would not be available to it. This he submits is contrary to the plain reading of the provision. In support he states the Assessing Officer has refused to follow binding decision in Gurudev Siddha Peeth Vs. ITO 2015 (59) Taxmann.com 400 of the Mumbai Bench of the Tribunal. In the above case it has been held that a mixed purpose trust (both charitable and religious object) would not be hit by Section 115 BBC of the Act unless the anonymous donations made were accompanied with a specific directions that such donation is for educational and medical institution run by the Trust. Besides, two other decisions of the Tribunal have taken the same view. Mr. Ganesh submits that the Petitioner trust is a mixed purpose trust as is evident from the regulating Act namely Shri Saibaba Sansthan Trust (Shirdi) Act, 2004 and the donations made did not carry any specific directions with regard to the user of the donation. Therefore the anonymous donations are excluded from the impact of Section 115 BBC of the Act. It is also submitted that the impugne....
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....clause under Section 115 BBC (2) of the Act. This understanding of the nature of the trust not being religious but humanistic, of the Assessing Officer may be absolutely incorrect as contended by the Petitioner. However, there is no reason why it cannot be set right in the appeal under Section 246A by the CIT(A). It is an error, if at all within jurisdiction and not an exercise of power outside jurisdiction. 7. The remedy they seek here can be effectively obtained from the Appellate Authority under the Act. Even if we accept the Petitioners contention is correct that the impugned order is contrary to the binding decisions of the Mumbai Bench of the Tribunal and the circular of the CBDT, then the CIT(A) would on examination of the case certainly set it aside. The Petitioner could also approach the CIT(A) for a stay of the impugned order if the same is contrary to binding decisions of the Tribunal. So far the apprehension of recovery proceedings being commenced, the Petitioner can under Section 220(6) of the Act approach the Assessing Officer and thereafter the Commissioner of Income Tax as the administrative head to stay the recovery till the disposal of the appeal by the CIT(A). T....
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....e Central Board of Direct Taxes. 16. Once the petitioners do not dispute that an identical issue is pending before the First Appellate Authority, namely, the Commissioner of Income Tax (Appeals), then, we see no reason to entertain this writ petition. It is evident that self-same contentions would be raised before the First Appellate Authority. It is evident that the First Appellate Authority would have to deal with them and pass a speaking order, either allowing the appeal or otherwise. In the event that appeal is allowed, the issue would stand concluded in favour of the petitioner. In the event the petitioner's appeal is dismissed by the First Appellate Authority, then, the petitioner has an alternate and equally efficacious remedy of approaching the Income Tax Appellate Tribunal. What would hold good for the Assessment Year 2015-16 would also hold good for the subject proceedings. The only difference is that here the petitioner's claim to be aggrieved by a notice seeking to reopen the assessment. In their submission, there cannot be any reason to believe that income chargeable to tax has escaped assessment. Thus, the jurisdictional issue would enable them to approach th....
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....eply, we are unable to agree with Mr. Ganesh for more than one reason. 20. It may be that the challenge in this writ petition and in terms of the prayers is to the impugned notice dated 23rd March, 2017 issued by the second respondent. A copy of that notice is annexed to the writ petition and we have already reproduced the contents thereof. 21. Then, the petitioner objected to the re-opening of the assessment by their letter dated 23rd August, 2018. These objections have been rejected on 31st August, 2018. 22. That order is also under challenge. The Assessing Officer was of the view that income chargeable to tax for the Assessment Year 2013-14 has escaped assessment within the meaning of section 147 of the IT Act. He, therefore, proposes to re-assess the income of that assessment year and, therefore, he requires the petitioner to deliver to him, a return in the prescribed form for the said Assessment Year. There were objections raised by the petitioner and these objections are also on record. These objections are set out in a written communication of the petitioner's Chartered Accountant dated 23rd August, 2018, copy of which is at page 131 to 135 of the paper-book. A carefu....
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...., the issue has been examined from year to year and given the fact that the existence of the petitioner is undisputed from 1953 at least. The shrine is well known and throughout the world. It is visited by millions of people and there are donation boxes placed at strategic points in the premises of the Trust. There are donations received and the donations do not attract section 115BBC of the Act according to the petitioner. If we do not accept this stand, then, the petitioner's contentions before the Appellate Authority in the pending appeal would not survive. In the event we express any opinion that would definitely influence the outcome of the appeal. Once we are of the opinion that the identical issue on merits is being raised in the subject petition, then, examining the legality and validity of the impugned action will not serve any fruitful purpose, all the more when the petitioner has an appellate remedy to which it has taken recourse to for Assessment Year 2015-16. It has resisted the very action on grounds which are raised in the proceedings before us. In such circumstances, we are really surprised as to why the petitioner is prosecuting this petition. Ordinarily, a par....