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Padmashree Krutarth Acharya Institute of Engineering and Technology Vs. Chief Commissioner of Income-tax - Court Judgment

SooperKanoon Citation

Subject

Direct Taxation

Court

Orissa High Court

Decided On

Judge

Reported in

(2009)222CTR(Ori)516; [2009]309ITR13(Orissa)

Appellant

Padmashree Krutarth Acharya Institute of Engineering and Technology

Respondent

Chief Commissioner of Income-tax

Disposition

Petition disposed of

Excerpt:


.....appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a..........bhubaneswar. by the said order, the chief commissioner has rejected the petitioner's application for grant of approval for exemption under section 10(23c)(vi) of the income-tax act, 1961, on the ground that the said application was filed beyond time.2. learned counsel for the petitioner submits that since the said application was filed on june 1,2006, consideration has been made on the basis of the proviso added to section 10(23c)(vi) of the income-tax act.3. according to the chief commissioner, the proviso does not give any room for him to condone the delay and, as such, the application was not considered and rejected on the ground that it was filed after a particular time.4. this court is of the opinion that since the application for grant of approval for exemption which has been filed by an educational institution though belatedly filed should have been considered on the merits. in deciding such questions the commissioner decides the rights of the parries and, therefore, has to act in a quasi-judicial capacity. he has to decide the rights of the parties after a hearing. any authority exercising such quasi-judicial function should also have the incidental power of.....

Judgment:


1. The petitioner has filed this writ petition challenging an order dated January 25, 2008, passed by the Chief Commissioner of Income-tax, Bhubaneswar. By the said order, the Chief Commissioner has rejected the petitioner's application for grant of approval for exemption under Section 10(23C)(vi) of the Income-tax Act, 1961, on the ground that the said application was filed beyond time.

2. Learned Counsel for the petitioner submits that since the said application was filed on June 1,2006, consideration has been made on the basis of the proviso added to Section 10(23C)(vi) of the Income-tax Act.

3. According to the Chief Commissioner, the proviso does not give any room for him to condone the delay and, as such, the application was not considered and rejected on the ground that it was filed after a particular time.

4. This Court is of the opinion that since the application for grant of approval for exemption which has been filed by an educational institution though belatedly filed should have been considered on the merits. In deciding such questions the Commissioner decides the rights of the parries and, therefore, has to act in a quasi-judicial capacity. He has to decide the rights of the parties after a hearing. Any authority exercising such quasi-judicial function should also have the incidental power of condoning de}ay if there is justifiable ground for such condonation. There is no clear statutory bar preventing such condonation. .

5. In view of the above, this Court directs that the Chief Commissioner may condone the delay on the basis of an application which is to be filed by the petitioner explaining the circumstances for delay. If such application has already been filed, the same may be considered by the Chief Commissioner. We do not make any observation whether the delay should be condoned or not. We merely direct that the application for condonation should be considered on the merits. Then the application for grant of exemption may be considered on the merits. If the Chief Commissioner finds that sufficient ground is made out for condonation of delay, the same shall be considered in accordance with law. The entire exercise is left to the discretion of the Chief Commissioner and he should pass order on the petition for condonation of delay within a period of three months from the date of receipt of this order.

6. In this matter, counter has been filed on behalf of the Revenue.

7. The writ petition is accordingly disposed of.

8. In view of the disposal of the writ petition, Miscellaneous Case No. 4165 of 2008 stands disposed of. A free copy of this order to be supplied to the learned Counsel for the Revenue.




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