Judgment:
1. The Revenue is aggrieved by an order dated October 19, 2004, passed by the Income-tax Appellate Tribunal, Delhi Bench 'C' in I.T.A. Nos. 4497 and 4498/Del/2000 relevant for the assessment years 1996-97 and 1997-98.
2. The only question that arises is whether the assessed is entitled to the benefit of Sections 10(22A) and 11 of the Income-tax Act, 1961.
3. Learned Counsel for the Revenue has taken us through the assessment order. It appears that the assessed entered into two agreements with M/s. Escorts Heart Institute and Research Center (EHIRC). Though the date of two agreements is not mentioned, we have been told (and it appears to be correct) that both the agreements were entered into on April 1, 1989. In terms of these agreements, the assessed carries out laboratory tests and investigations as per the requirement of EHIRC for which it receives payment.
4. The Assessing Officer took the view that on these broad facts the assessed was carrying on its activities for its own profit and not for charitable purposes and so was not entitled to the benefit of Sections 10(22A) and 11 of the Act.
5. Feeling aggrieved by the order passed by the Assessing Officer, the assessed preferred an appeal which was accepted by the Commissioner of Income-tax (Appeals). The Revenue appealed against the order passed by the Commissioner of Income-tax (Appeals) and that appeal was dismissed by the Tribunal which has given rise to the present appeal under Section 260A of the Act.
6. Learned Counsel for the assessed has brought to our notice that from the assessment years 1988-89 to 1994-95 there was no change in the facts and throughout this period, the two agreements dated April 1, 1989, were subsisting and the assessed was carrying on its activities in accordance with these agreements with EHIRC. For all these assessment years, the Assessing Officer had given the benefit of Sections 10(22A) and 11 of the Act to the assessed.
7. For the first time, in the assessment order for the year 1995-96, the Assessing Officer took the view that the assessed was carrying on its activities with a profit motive and, thereforee, he denied exemption to the assessed. For that year, that is, 1995-96, the assessed took up the matter before the Commissioner of Income-tax (Appeals) and succeeded before him. The Revenue then appealed to the Tribunal which dismissed the appeal and gave the benefit of the exemption to the assessed. The Revenue accepted the order passed by the Tribunal and did not challenge it any further.
8. Thereafter, for the assessment year 1998-99 the Assessing Officer again denied the exemption to the assessed and that view was upset by the Tribunal. Against the order passed by the Tribunal for that assessment year, that is, 1998-99, the Revenue preferred an appeal which we have dismissed today since no substantial question of law arises.
9. For the middle two assessment years, that is, 1996-97 and 1997-98, the Assessing Officer again decided against the assessed by passing an assessment order on February 25, 1999. We are concerned with appeals for these assessment years.
10. We have seen the assessment order passed by the Assessing Officer for 1 the assessment year 1995-96. There too, the Assessing Officer relied upon two agreements dated April 1, 1989, to deny the exemption to the assessed. On an interpretation of the agreements and taking into account the activities of the assessed, the Tribunal took the view that the assessed was entitled to the benefit of exemption.
11. There is absolutely no change in the facts and circumstances in the case 1 of the assessed from the year 1988-89 till 1997-98.
12. The agreements dated April 1, 1989 were subsisting and the activities of the assessed had remained the same. The only change that has occurred is that the Assessing Officer had earlier granted the exemption to the assessed but for some reason he has now decided to deny the exemption to the assessed.
13. The Tribunal has consistently taken the view that the assessed is entitled to exemption and as noticed above, the first order of the Tribunal in this regard relevant for the assessment year 1995-96 has been accepted by the Revenue. There is absolutely no reason why the Revenue should choose to file an appeal under Section 260A of the Act in respect of the subsequent assessment years.
14. Learned Counsel for the Revenue submits that the principle of rest judicata would not apply and that each assessment order has to be considered on its own merits.
15. We are in agreement with this but when there is absolutely no change in facts, a mere change of opinion will not entitle the Revenue to pick and choose the assessment year in which an appeal should be filed. The principle of consistency, which was propounded by the Supreme Court in Radhaswami Satsang v. CIT : [1992]193ITR321(SC) has been followed by this Court in several cases.
16. Since there is no change in the facts and circumstances from the assessment year 1988-89 till 1997-98, we are of the view that the Revenue must follow a consistent pattern and when it has granted the benefit of exemption under Sections 10(22A) and 11 of the Act, it cannot be permitted to change its opinion merely on the whims and fancies of the Assessing Officer without any noticeable change in circumstances.
17. Consequently, we are of the view that no substantial question of law arises.
Dismissed.