The Tax Publishers2020 TaxPub(DT) 2562 (Mum-Trib) : (2020) 183 ITD 0883 : (2020) 206 TTJ 0137

INCOME TAX ACT, 1961

Section 254(1) Section 154(2) Sections 250 & 255(3)

Where issue was affecting all stakeholders all over country and as the fact that the stay petitions have been referred to the President, ITAT for consideration of constitution of a Larger Bench, this Bench of Tribunal deemed it fit and proper to grant a conditional interim stay of collection/recovery of the aggregate amounts of tax and interest, etc.

Appeal (Tribunal) - Power to grant stay - Issue affecting all stakeholders over country -

Assessee was a public charitable trust registered under Bombay Public Trust Act, 1950 (now known as Maharashtra Public Trust Act, 1950), as also as charitable institution under section 12A of the IT Act, 1961. In both of these assessment years, assessee had returned NIL income, but had also claimed amounts remitted to educational universities outside India as application of income under section 11(1)(c). AO noticed that as no approval from the CBDT had been granted, the amounts remitted abroad for application of trust funds were required to be included in the income of assessee. These amounts were thus added to the income of the assessee trust. As the appeal was pending before the CIT(A), the CBDT Order, dated 10-11-2015, granted approval under section 11(1)(c), which was specifically 'stated to have effect for the period covered by assessment years 2009-10 to 2016-17' and it permitted application of funds, by the trust, 'for charitable purposes. CIT(A) proceeded to hold that the CBDT's approval dated 10-11-2015 'is not retrospective in nature', that 'the said order of the CBDT had been passed in response to assessee's application dated 31-3-2015, and, therefore, it cannot apply to the assessment year 2011-12 (and 2012-13)'. The impugned additions were thus, in effect, restored by the Commissioner (Appeals). Held: The Tribunal refrained from making any observations. The issues were of vital importance to all the stakeholders all over the country, and in Tribunal's considered understanding, on such important pan India issues of far reaching consequence, it was desirable to have the benefit of arguments from stakeholders in different parts of the country. The issues coming up for consideration in these stay applications involve larger questions on which well considered call is required to be taken by the Bench. Considering all these factors, this Tribunal deemed it fit and proper to refer the instant Stay Applications to the President of Income Tax Appellate Tribunal for consideration of constitution of a Larger Bench and to frame the questions for the consideration by such a Larger Bench, under section 255(3). The fact that the stay petitions have been referred to President of ITAT for consideration of constitution of a larger bench, this Bench of Tribunal deemed it fit and proper to grant an conditional interim stay on collection/recovery of the aggregate amounts of tax and interest, etc.

REFERRED : Gestetner Duplicators Pvt. Ltd. v. CIT (1979) 117 ITR 1 (SC) : 1979 TaxPub(DT) 0852 (SC), Narang Overseas Pvt. Ltd. v. ITAT (2007) 295 ITR 22 (Bom) : 2007 TaxPub(DT) 1412 (Bom-HC), PML Industries Ltd. v. CCE 2013 (3) ECS (45) (P&H-HC) : 2013 TaxPub(EX) 356 (P&H) and Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh AIR 1953 SC 221.

FAVOUR : Matter referred for constitution of Special Bench.

A.Y. : 2011-12 & 2012-13



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