# Dr. Bhim Rao Ambedkar Educational Society, Faizabad Road, Lucknow v. Commissioner of Income Tax (Exemption), Ashok Marg, Lucknow - **Citation:** (2016) 3 ILRA 618 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-03-29 - **Bench:** Amreshwar Pratap Sahi, Attau Rahman Masoodi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-bhim-rao-ambedkar-educational-society-faizabad-road-lucknow-v-commissioner-43491 - **Pages:** 4 ## Text 618 INDIAN LAW REPORTS ALLAHABAD SERIES 32. In view thereof, even if defendant-appellant is co-sharer in the present case, Court below has rightly decreed the suit of plaintiff-respondent granting permanent injunction that defendant-appellant shall not interfer in possession of plaintiff-respondent but we clarify hereat that this injunction is subject to further order which may be passed by any Court of competent jurisdiction, if any co-sharer including defendant-appellant brings appropriate action in law for partition of co-owned property by metes and bounds and thereafter claim possession over part of property which comes to their share. 33. The questions no. 2 and 3 formulated above are answered against appellant which question 1 is returned in affirmative i.e. in favour of appellant. 34. Subject to aforesaid clarification/observation, we find no merit in this appeal. 35. It is accordingly dismissed. -------- APPELLATE JURISDICTION CIVIL SIDE DATED: LUCKNOW 29.03.2016 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. THE HON'BLE ATTAU RAHMAN MASOODI, J. Income Tax Appeal No. - 25 of 2016 Dr. Bhim Rao Ambedkar Educational Society, Faizabad Road, Lucknow ...Appellant Versus Commissioner of Income Tax (Exemption), Ashok Marg, Lucknow ...Respondent Counsel for Appellant: Dhananjay Awasthi, Ashish Raj Shukla, R.B. Shukla Counsel for Respondent: Alok Mathur Proceedings The appellant challenged the dismissal of a time-barred appeal by the Income Tax Appellate Tribunal, which had rejected the appeal against the Chief Commissioner's order dated 26.12.2008 denying exemption under Sections 10(23C)(vi) and (via) of the Income Tax Act, 1961. The appellant contended that no delay had occurred because the statutory right of appeal was only created with effect from 01.06.2015 by the Finance Act, 2015. Procedure Appellant sought registration under Section 12AA(1) of the Income Tax Act, 1961 to claim exemption under Section 11. Initial application rejected on 19.10.2007; appellant filed an appeal against refusal of registration. Tribunal allowed the appeal on 31.08.2008; registration certificate issued on 01.05.2008. 3 All. Dr. Bhim Rao Ambedkar Educational Society, Faizabad Road, Lucknow Vs Commissioner Of Income Tax (Exemption), Ashok Marg, Lucknow 619 Appellant filed application under Section 10(23C); rejected on 26.12.2008 (served on 06.01.2009). No statutory right of appeal existed at that time; right of appeal under Section 253(1)(f) emerged only on 01.06.2015. Appellant requested condonation of delay based on bona fide pursuit of litigation. Statutory Provisions Section 12AA, Income Tax Act, 1961 - Registration of charitable institutions. Section 10(23C)(vi) & (via), Income Tax Act, 1961 - Exemption for educational institutions. Section 253, Income Tax Act, 1961 - Appeals to Appellate Tribunal (amended by Finance Act 2015). Case Law / Principles Commissioner of Income Tax vs. Vatika Township P. Ltd., [2014] 367 ITR 466 (SC) - Bona fide conduct does not create retrospective right of appeal; appeal must be filed within prescribed limitation. Right of appeal is procedural, created by statute; cannot retrospectively affect orders for which appeal did not exist at the time. Head Notes An appeal against an order under the Income Tax Act is subject to the limitation prescribed by the statute. The subsequent creation of a statutory right of appeal cannot be invoked retrospectively to condone delay in filing an appeal against an order that was issued before the enactment. Bona fide pursuit of litigation does not extend the limitation period for such appeals. Facts Appellant-educational society sought registration and exemption under Income Tax Act, 1961. Initial registration refused, appeal allowed; certificate issued in May 2008. Application under Section 10(23C) rejected in Dec 2008. No statutory appeal existed then; right of appeal under Section 253(1)(f) emerged only from 01.06.2015. Appellant contended delay was excusable due to subsequent statutory right. Contentions Appellant: Right of appeal created in 2015 should allow condonation of delay for order passed in 2008; bona fide pursuit of litigation. Respondent: Statutory limitation bars retrospective condonation; appeal rightly dismissed by Tribunal. Analysis Right of appeal is a statutory procedural right; cannot be applied retroactively. Tribunal correctly rejected appeal as barred by limitation. Appellant could have approached the High Court via writ in 2008-09 if remedy sought. Reliance on bona fide conduct not sufficient to extend statutory limitation. Apex Court authority in Vatika Township P. Ltd. confirms that subsequent statutory rights cannot revive time-barred appeals. 620 INDIAN LAW REPORTS ALLAHABAD SERIES Conclusion Appeal rejected. Tribunal's dismissal of time-barred appeal is affirmed. No substantial question of law arises. (Delivered by Hon'ble Amreshwar Pratap Sahi, J. & Hon'ble Attau Rahman Masoodi, J.) 1. This appeal questions the order of the Tribunal dated 31.12.2015 whereby the appellant's time barred appeal against the order of the Chief Commissioner of Income Tax dated 26.12.2008 has been dismissed on the ground of limitation. 2. Sri Dhananjay Awasthi, learned counsel for the appellant contends that no delay has been caused and since there has been a bona fide pursuit of litigation, the insertion of right of appeal subsequently will not bar the filing of the appeal in relation to the earlier cause of action. 3. The appeal has been vehemently opposed by Sri Alok Mathur, learned counsel for the Department contending that the order was passed by the Chief Commissioner in relation to the exemption being claimed under Section 10 (23C) (vi) and (via) of the Income Tax Act 1961 against which no appeal by when the order was passed in 2008. 4. The appellant contends that the appellant-educational Society had sought registration under Section 12AA (1) of 1961 Act in order to seek exemption from income of the Society under Section 11 of the Act. The said application was rejected and the exemption was refused, vide order dated 19.10.2007. The order dated 19.10.2007 is Annexure-4 to the affidavit. The appellant's counsel submits that the appellant was advised that since registration has been refused the appellant may file an application to the Prescribed Authority under Section 10 (23C) of the Act for grant of approval in the prescribed Form No.56D. 5. Simultaneously, the appellant had also filed an appeal against the order refusing to grant exemption under Section 12AA. The Income Tax Appellate Tribunal allowed the said appeal, vide judgment dated 31.08.2008 and in compliance thereof, a certificate of registration was issued to the Society on 01.05.2008. 6. Thus, becoming eligible for exemption, the application was moved under Section 10(23C) which came to be rejected on 26.12.2008 and the order was served on the appellant admittedly on 06.01.2009. At that point of time, no statutory right of appeal was available against such an order. The right of appeal emerged only with effect from 01.06.2015 under the Finance Act, 2015 that inserted Clause (f) in Sub-section (1) of Section 253. The appellant has urged that that cause having arisen with this right of appeal, the limitation against the order dated 26.12.2008 deserves to be waived. 3 All. Allama Zamir Naqvi Vs State Of U.P. & Ors. 621 7. We have considered the submissions raised and also the judgment in the case of Commissioner of Income Tax Vs. Vatika Township P. Ltd.: [2014] 367 ITR 466 (SC)). The only ground seeking condonation of delay is that since the right of appeal has now been created, therefore, the appellant has a right of appeal against the order passed in 2008. We are unable to agree with this proposition inasmuch as, a right of appeal is a matter of procedure that gets converted into a substantive right as a creature of statute. The appeal has to be filed within the limitation prescribed. It cannot create a retrospective right to file an appeal which did not exist in the year 2008 or even on 06.01.2009 when the order was served on the appellant. In the absence of existence of such a right, it was open to the appellant to have filed a writ petition challenging the same in 2008-09. The very same view has been taken by the Tribunal and it has declined to grant any benefit of a bona fide act as urged by the appellant. The statutory remedy of appeal having come into existence on 01.06.2015, cannot be stretched retrospectively for extending the benefit as claimed by the appellant for condoning the delay. The reliance placed on the judgment by the learned counsel for the appellant is misplaced and no substantial question of law having arisen, the appeal deserves to be rejected. 8. The appeal is accordingly rejected. -------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 29.03.2016 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. THE HON'BLE ATTAU RAHMAN MASOODI, J. Misc. Bench No. - 5085 of 2016 Allama Zamir Naqvi ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for Petitioner: Asok Pande Counsel for Respondents: C.S.C., A.S. Rakhra Proceedings The petition, in the form of a Public Interest Litigation, was filed seeking to quash the report of the Vishnu Sahai Commission, appointed under the Commissions of Inquiry Act, 1952 to inquire into the 2012 Muzaffarnagar Communal Riots. The petitioner challenged the eligibility of Justice Vishnu Sahai to head the Commission, citing disability under Section 24(3) of the Protection of Human Rights Act, 1993.