2016 (7) TMI 332 - HC - Income Tax

Rectification of mistake - Held that - The first respondent has issued the impugned corrigendum in exercise of powers under Section 154 of the Act and it has to be seen whether notice is required to be issued to the petitioner in terms of sub-section (3) of Section 154 of the Act. The stand taken by the first respondent is that such notice is required to be issued only if the rectification has the effect of enhancing an assessment or reducing the refund. Further, in terms of Section 246(1)(c), and 246(2)(d), opportunity has been provided and ordered under Section 154 of the Act. In the light of the above, this Court is of the view that it would be in fitness of things and appropriate for the petitioner to pursue the matter before the Appellate Authority. Apart from the discussion in the preceding paragraphs, the issue as to whether the assessment orders are made on best of judgment basis or otherwise is a factual issue to be gone into by examining the assessment orders and the background facts and this has to be done by the petitioner before the appellate authority in the pending appeals. The effect of the rectification by way of the impugned corrigendum is equally an issue relatable and touching upon whether the assessment orders were passed on best judgment basis. Therefore, the petitioner should pursue their challenge to the impugned corrigendums before the Commissioner of Income Tax (Appeals)-II, before whom the appeals filed against the assessment orders are pending, since April 2013. In the light of the above, the Writ Petitions are dismissed and the petitioner is permitted to challenge the correctness of the impugned corrigendums by raising additional grounds before the Commissioner of Income Tax (Appeals) in the appeal petitions which were filed on 22.04.2013, against the assessment orders dated 28.03.2013, for the years 2010-11 and 2011-12 and the Commissioner of Income Tax (Appeals) is directed to consider the additional grounds raised along with the other grounds already raised in the appeals and after hearing the parties, dispose of the appeals as expeditiously as possible preferably, within a period of three months from the date of receipt of a copy of this order

Summary

Issues Involved:
1. Legality of the assessment orders and corrigendums issued under Sections 143(3), 153A, and 144 of the Income Tax Act.
2. Validity of the withdrawal of exemption under Section 10(23C)(vi) of the Income Tax Act.
3. Requirement of notice under Section 154(3) of the Income Tax Act for rectification.
4. Jurisdiction of the Assessing Officer in denying exemption without intimation to the Central Government or prescribed authority.

Detailed Analysis:

1. Legality of the Assessment Orders and Corrigendums:
The petitioner, a public Charitable Trust, was subjected to a search under Section 132 of the Income Tax Act. Subsequent notices under Sections 153A, 143(2), and 142(1) were issued. The first respondent passed assessment orders for the years 2010-11 and 2011-12, concluding that amounts were diverted to interested parties, rendering the petitioner ineligible for exemptions under Sections 11 and 10(23C). The petitioner filed appeals and stay applications, which were rejected. A corrigendum was later issued, changing the assessment section from 143(3) read with 153A to Section 144, claiming it was a best judgment assessment due to non-cooperation from the petitioner.

2. Validity of the Withdrawal of Exemption:
The fifth respondent issued a show cause notice for withdrawal of approval under Section 10(23C)(vi), citing that the petitioner collected capitation fees, violating the Act's provisions. The petitioner denied these allegations, stating all fees were accounted for and no capitation fees were collected. Despite the petitioner's reply and reliance on Supreme Court decisions, the fifth respondent withdrew the exemption, holding that the petitioner was engaged in profit-making activities contrary to its stated educational purpose.

3. Requirement of Notice under Section 154(3) for Rectification:
The petitioner argued that notice under Section 154(3) should have been issued before the corrigendum, as it affected their assessment. The respondent countered that such notice is only required if the rectification enhances the assessment or reduces a refund. The Court noted that the power under Section 154 is to correct mistakes, not to review, and the corrigendum was issued within the prescribed limitation period.

4. Jurisdiction of the Assessing Officer in Denying Exemption:
The petitioner contended that the Assessing Officer could not deny the exemption without informing the Central Government or prescribed authority of the contravention, as required under the first proviso to Section 143(3). This issue was also raised in the pending appeals before the Commissioner of Income Tax (Appeals). The Court refrained from adjudicating this point to avoid prejudicing the pending appeals.

Conclusion:
The Court dismissed the writ petitions, directing the petitioner to raise additional grounds in their pending appeals before the Commissioner of Income Tax (Appeals). The appeals should address whether the assessment orders were best judgment assessments and the impact of the corrigendums. The Commissioner is instructed to expedite the appeal process and consider all grounds raised by the petitioner.