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TMI Blog2015 (9) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... ue and kept pending on the other issues. The Tribunal under the Act is the final fact finding authority and has to consider all question that are raised before it arising from orders of Authorities under the Act. Thus, this piecemeal disposal of an appeal under Section 254(1) of the Act is not normally resorted to for the reasons pointed out in question (b) above. Moreover, such approach on the part of the Tribunal would lead to confusion viz: can an appeal be filed from such an order as the appeal is still pending with the Tribunal. Therefore, normally all Appellate Authorities dispose of the appeal before them at one stage and not at different stages. If during the pendency of the appeal there is an urgency to decide an issue, the same is decided by an interim order, pending the final disposal of the appeal. - Income Tax Appeal No. 726 of 2015 - - - Dated:- 9-9-2015 - M. S. Sanklecha And G. S. Kulkarni, JJ. For the Petitioner : Mr S E Dastur, Sr. Adv. with Mr. Madhur Agarwal and Mr. Atul Jasani For the Respondent : Mr Suresh Kumar ORDER P. C. This Appeal under Section 260A of the Income Tax Act, 1961 (the Act), challenges the order dated 10th April, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the matter would be refixed to argue the other grounds? (C) Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in referring Ground No.(i) to the President of the Tribunal for constitution of Special Bench to decide the Ground? (D) Whether on the facts and in the circumstances of the case and in law, the order of the Tribunal is perverse and bad in law? 4. As the issue is within a narrow compass coupled with the fact that the finding of the Tribunal on issue (ii) would affect all pending assessments as the same would conclude the issue of exemption before the Assessing Officer. Thus, at the request of the Counsel, the appeal itself is being disposed of at the stage of admission. Brief facts:- 5. The Appellant is authority established under the Mumbai Metropolitan Regional Development Authority (MMRDA) Act, 1974. Its main object is, inter alia, to secure the development of Mumbai Metropolitan Region. 6. On 22nd July, 2002, the Appellant was granted registration under Section 12A of the Act on the ground that its activities are charitable in nature. Consequent to the same, the Appellant has filed its Return of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f its power under Section 12AA(3) of the Act. This is so as the withdrawal only can be done when the Appellant's activities are not genuine or are not being carried out in accordance with its objects. As neither of the two above condition precedents were satisfied, the Respondent could not have exercised jurisdiction under Section 12AA(3) of the Act; (ii) Without prejudice to (a) above, in any event, the activities of the Appellants are not business activities and thus not excluded from the definition of charitable purposes as provided under Section 2(15) of the Act read with proviso thereto; and (iii) Without prejudice to (a) and (b) above, the Respondent has no jurisdiction to withdraw the registration under Section 12AA(3) of the Act with retrospective effect from Assessment Year 2009-10. 10. At the hearing before the Tribunal, the Appellant urged only one ground i.e. the jurisdiction of the Respondent under Section 12AA(3) of the Act to withdraw the registration granted under Section 12AA of the Act. The issue raised in grounds (b) and (c) were not urged, this was for the reason that if the first issue is decided in favour of the Appellant, the other issue wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 2015 which deals with the Appellants' substantive Appeal, in terms of Section 254(1) of the Act from paragraph 6 onwards. Therefore, the order dated 10th April, 2015 is in effect a consolidated order dealing with an application under Section 254(2) of the Act and also an appeal under Section 254(1) of the Act. The challenge in this appeal is to the order dated 10th April, 2015 of the Tribunal to the extent it deals with the appeal under Section 254(1) of the Act. 14. We shall now deal with each of the above substantial questions as admitted. 15. Regarding Question A (a) The challenge here is to the order dated 10th April, 2015 to the extent it is passed under Section 254(1) of the Act by deciding ground (ii) in the memorandum of appeal which was taken without prejudice to issue (i) which dealt with the jurisdiction of the Respondent to pass an order under Section 12AA(3) of the Act. Without prejudice to issue (i), the Appellant had taken up issue (ii) contending that the activity carried out by it is not hit by the proviso to Section 2 (15) of the Act from being a charitable purpose; (b) Mr. Suresh Kumar, learned Counsel appearing for the Respondent-Revenue su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th law. In the alternative, the tribunal can, where the parties consent thereto, it having already heard the parties at length, proceed to decide assessee's Ground No.1, which it refrained to while passing the impugned order. Besides, during the hearing of its Rectification/ Miscellaneous Application, the Appellant had filed a summary of its arguments and from which it is very clear that the submissions were made by the Appellants only in respect of ground (i) and not with regard to ground (ii). Yet, the Tribunal disposed of the issue with regard to ground (ii) when the same was not argued before the Tribunal as it evident from the above. (c) The ground of appeal urged in the memorandum of appeal before the Tribunal has been reproduced in paragraph 4.1 of the order dated 10th April, 2015 of the Tribunal. It is very clearly stated therein that ground (ii) is without prejudice to ground (i) viz-the jurisdiction of the Respondent to exercise its power of withdrawal under Section 12AA(3) of the Act. In spite of the aforesaid position, the impugned order proceeds to decide the ground Nos. (i) and (ii) by holding that both are taken without prejudice to the other. This is fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). It is true that the order places reliance upon the decision of this Court in CIT v/s. Thane Electricity Supply Ltd. 206 ITR 727 which has observed to the effect that a decision of nonjurisdictional High Court is not binding upon the Tribunal. It appears prima facie to be rendered in the context of the question whether this Court is bound by a decision of another High Court. However, in the present facts, there were seven decisions of the Tribunal including of the Mumbai Bench in favour of the Appellant. Amongst the above decisions of the Tribunal is the decision in the Maharashtra Housing Area Development Authority v/s. ADIT(E) 58 SOT 196 and Rajasthan Housing Board v/s. CIT 51 SOT 383 which were authored by the learned Member who scripted the impugned order. Further, these decisions were also noticed by the Tribunal in the impugned order but not communicated upon. There ought to have been consideration of those decisions and only thereafter it ought to have come to the conclusion to refer to the President of the Tribunal the issues raised therein for constitution of a Larger Bench. We are unable to understand as to how the Tribunal could completely overlook the same and more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the order dated 10th April, 2015 has disposed of the Appellant's appeal under Section 254(1) of the Act finally on one issue and kept pending on the other issues. The Tribunal under the Act is the final fact finding authority and has to consider all question that are raised before it arising from orders of Authorities under the Act. Thus, this piecemeal disposal of an appeal under Section 254(1) of the Act is not normally resorted to for the reasons pointed out in question (b) above. Moreover, such approach on the part of the Tribunal would lead to confusion viz: can an appeal be filed from such an order as the appeal is still pending with the Tribunal. Therefore, normally all Appellate Authorities dispose of the appeal before them at one stage and not at different stages. If during the pendency of the appeal there is an urgency to decide an issue, the same is decided by an interim order, pending the final disposal of the appeal. (d) Therefore, in view of the above, question (D) is answered in the affirmative to the extent it deals with the substantive appeal under Section 254(1) of the Act. 19. For all the above reasons, we find that the order dated 10th April, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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