(i) Whether the ITAT, after recording a categorical finding that the impugned communication/order dated 28 December 2009 did not amount to any order of cancellation of BCCI’s registration under Section 12A of the IT Act, 1961 and further holding that since there was no cancellation, no appeal was maintainable against the impugned communication/order dated 28 December 2009 under Section 253 of the IT Act, 1961, was justified in nevertheless examining the impugned communication/order dated 28 December 2009 on merits and recording observations or findings virtually upholding the reasons and perhaps even the conclusion in the impugned communication/order dated 28 December 2009?

(ii) Whether solely based on the impugned communication/order dated 28 December 2009, which the revenue styled (or accepted the styling) as an advisory or a non-statutory letter, could any action to deny exemption or cancel Section 12A registration be initiated by the Revenue?

HELD:

(a) Applying the ratio of the decisions of the Hon’ble Supreme Court in Tin Plate Co. of India Ltd. Vs. State of Bihar (1998) 8 SCC 272, Sri Athmanathaswami Devasthanam Vs. K. Gopalaswami Ayyangar AIR 1965 SC 338 and Nusli Neville Wadia Vs. Ivory Properties (2020) 6 SCC 557, once the ITAT concluded that the Appeal before it against the impugned communication/order dated 28 December 2009 was not “maintainable”, there was no question of the ITAT evaluating the impugned communication/order on its merits or making any observations or recording any findings regarding its validity or otherwise. Therefore, such observations and findings are without jurisdiction and should not have been made.

(b) Based on the contention that the impugned communication/order dated 28 December 2009 was not statutory and that it was only an advisory or further, that the impugned communication/order dated 28 September 2012 was not an order cancelling or withdrawing the BCCI’s registration, the Revenue even persuaded the ITAT in holding that the BCCI’s Appeal against the impugned communication/order was not maintainable. At the same time, based on such advisory/non-statutory exercise, the Revenue cannot proceed on the premise that the BCCI’s registration stands cancelled or that the BCCI is not entitled to any exemption under Section 11 of the IT Act, 1961. The impugned communication/order dated 28 December 2009 cannot be non-statutory or an advisory to defeat an assessee’s right of appeal. Still, based upon the same non-statutory order or advisory, the assessee’s rights cannot be affected, or a situation created in which the assessee cannot claim an exemption or is liable to have its registration cancelled. The revenue cannot adopt such contradictory stances or blow hot and cold in the same breath.