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TMI Blog2017 (11) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... iiad) of the Act as the aggregate annual receipts in each of the years under appeal were less than 1 crore. Accordingly, the grounds raised by the revenue for the Asst Years 2002-03 , 2003-04 , 2007-08 , 2010-11 , 2011-12 & 2012-13 , are dismissed. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... of every assessee. If, in the case of an assessee, the disputed issues arise in more than one assessment year , appeal, can be filed in respect of such assessment year or years in which the tax effect in respect of the disputed issues exceeds the monetary limit specified in para 3. No appeal shall be filed in respect of an assessment year or years in which the tax effect is less than the monetary limit specified in para 3. In other words, henceforth, appeals can be filed only with reference to the tax effect in the relevant assessment year. However, in case of a composite order of any High Court or appellate authority, which involves more than one assessment year and common issues in more than one assessment year, appeal shall be filed in respect of all such assessment years even if the 'tax effect' is less than the prescribed monetary limits in any of the year(s), if it is decided to file appeal in respect of the year(s) in which 'tax effect' 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mparting education in classical ballet dance, dance drama, music, choreography and related subjects, holding examinations thereon, arranging social and cultural functions, performances, promotion of the arts and culture etc - mainly of the Uday Shankar style of dance / udayan. The society is registered under the Society Act of West Bengal since the year 1984. It is recognized by the Ministry of Human Resource Department , Government of India, and had been receiving Government Grants and assistance in promoting its activities. The assessee since the beginning has been running dance schools under the name 'Udayan' in different places in the city of Kolkata for the purpose of imparting dance education. More than 700 students were on the rolls of the said school run by the assessee during the relevant assessment year. In the school run by the assessee, dance education is taught to its students through 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icting decision for different AYs); and by the Hon'ble High Court in AYs 1999-00 and 2000-01 is pending before the Hon'ble High Court, as are also appeals for other AYs in between pending before the ITAT. I therefore: A. As regards AYs 1997-98 and 1998-99 concerning the then extant section 10(22), I treat the appeals as covered in appellant's favour by Hon'ble High Court order in assessee's case in ITA No. 23/2003. B. As regards the other AYs 2002-03, 2003-04, 2007-08, 2010-11, 2011-12 and 2012-13, as the section 10(23C)(iiiad) w.e.f. 01.04.1999 is in essence and substance the erstwhile section 10(22), I treat the appeals as allowed for statistical purposes. The eventual outcome will be consequential when the Hon'ble High Court disposes the ITA No. 65 of 2009." 5. Aggrieved, the revenue is in appeal before us for the Asst Years 2002-03 , 2003-04 , 2007-08 , 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the Hon'ble Supreme Court(supra), we entertain the same. 6. Respectfully following the same, we admit this legal argument of the Ld. Counsel of the assessee". 6.1. Respectfully following the same, we accept the arguments of the ld AR since the final decision of the ld CITA creates some ambiguity as it states that the 'appeals are allowed for statistical purposes'. We find that this tribunal had treated the assessee society as an educational institution existing solely for educational purposes and not for purposes of profit 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. It was further held that all other points regarding receipt of salary etc are not important and in any way, they do not prove that the society for 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, it cannot be stated that the High Court does not exercise the appellate powers or that no appeal lies, or that there is no decision on appeal, when the High Court dismisses an appeal holding that no substantial question of law arises from the order of the Tribunal. Therefore, it is not possible to bifurcate the jurisdiction or powers available to the High Court while dealing with an appeal under section 260A. The view expressed by the Tribunal that there was no decision on appeal, when the High Court held that no substantial question of law arose from the order of the Tribunal when the High Court dismissal on appeal, was not a correct reading of law. [Paras 11 and 12] The contention that the powers exercised by the High Court at the stage of admission of appeal are akin to powers 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 appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the lower court or the forum does not have any independent existence thereafter. This would be a merger in a case where the reasoning of the subordinate forum is either expressly not approved, or a different reasoning is given by the Supreme Court or forum. However, in a case where the superior court either adopts or reiterates the reasoning, or records an express approval of the reasoning, the merger is in relation to both the operative part and the reasons. [Para 18] The net effect is that the order of the subordinate court or the forum merges with the order of the superior Court or forum and has no independent existence in relation to the issue which was carried before the appellate court or forum. If the merger is issue specific, there is fusion of the orders 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 foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -ordinate bench decision of this tribunal in assessee's own case for the Asst Years 1986-87 to 1993-94 dated 11.7.2002 , which has been confirmed by the Hon'ble Jurisdictional High Court, and in view of the fact that there is no change in the facts and circumstances of the case during the years under appeal, we hold that the assessee society is an educational institution existing solely for educational purposes and not for purposes of profit entitled for exemption u/s 10(23C)(iiiad) of the Act as the aggregate annual receipts in each of the years under appeal were less than ₹ 1 crore. Accordingly, the grounds raised by the revenue for the Asst Years 2002-03 , 2003-04 , 2007-08 , 2010-11 , 2011-12 & 2012-13 , are dismissed. 7. Now let us come to the assessee appeal for the Asst Year 2006-07 in ITA No. 1300/Kol/2010. For the Asst Year 2006-07, the ld AO, though placed the fact that the earlier years decision for the Asst Years 1986-87 to 1993-94 were decided in favour of the assessee, observed that for the Asst Year 1999-2000, the tribunal had decided the issue against the assessee. He also observed in his order that the appeal preferred by the assessee against the said tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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