Commissioner of Income-tax Vs. Smt. Brij Bala - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - it is well settled that the circulars issued by the board are binding upon the authorities and, therefore, in any view of the matter, the commissioner was not justified in initiating proceedings under section 263 of the act in respect of the assessments completed under section 143(1) of the act.1. the income-tax appellate tribunal, new delhi, has referred the following two questions of law under section 256(1) and (2) of the income-tax act, 1961 (hereinafter referred to as 'the act'), for the opinion of this court : '1. whether, on the facts and in the circumstances of the case, the tribunal was right in holding that there were no material before the commissioner of income-tax to justify his finding that the assessment made under section 143(1) was erroneous in so far as it was prejudicial to the interests of the revenue ?2. whether the tribunal's order is wrong on facts and in law in taking into consideration incorrect fact and the facts not relevant to the case and in ignoring relevant facts and findings in the order under appeal ?'2. the reference relates to the assessment years 1983-84 to 1985-86.3. briefly stated the facts giving rise to the present reference are as follows :the return of income for the assessment years in question were filed by the respondent/assessee in the status of an individual on march 17, 1986, along with the return for the assessment year 1983-84. she had filed a statement of income in respect of her business started from april 15, 1981, and also furnished the details for the accounting period ending march 31, 1982. the returns were processed under section 143(1) of the act and the assessment was completed on march 14, 1986. the commissioner of income-tax on examination of assessment records was of the opinion that the assessment orders passed under section 143(1) of the act had been made without making any enquiry into the factum of loans and other items and, therefore, they were erroneous and prejudicial to the interests of the revenue. he accordingly after giving an opportunity of hearing, set aside the assessments and directed for making de novo assessments. feeling aggrieved, the respondent preferred separate appeals before the tribunal. the tribunal relying upon circular no. 176, dated august 28, 1987, had set aside the order passed under section 263 of the act. the tribunal was further of the opinion that on close perusal of the statement of income filed with the returns, the action of the commissioner was totally unjustified.4. we have heard sri shambhu chopra, learned standing counsel for the revenue. nobody has appeared on behalf of the respondent/assessee.5. it may be mentioned here that in circular no. 176 dated august 28, 1987, the board had given instructions to all commissioners of income-tax to the effect that no remedial action is necessary in summary assessment cases, as the revenue loss, if any, is consciously suffered by the government to utilise resources for scrutiny and investigation of larger cases. in such cases the commissioner of income-tax should only inform the audit that the cases are completed under the summary assessment scheme. accordingly, action under section 263 of the act was not to be taken. it is well settled that the circulars issued by the board are binding upon the authorities and, therefore, in any view of the matter, the commissioner was not justified in initiating proceedings under section 263 of the act in respect of the assessments completed under section 143(1) of the act.6. we accordingly answer the first question in the affirmative, i.e., in favour of the assessee and against the revenue and the second question in the negative, i.e, in favour of the assessee and against the revenue. there will be no order as to costs.