Harshit Foundation.,Jaunpur, Lucknow V. Commissioner of Income Tax, Faizabad

ITA 104/LKW/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3218 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-06-2013
• Assessment Year: misc
• Appeal Filed On: 07-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA D R PER PRAM
• Section: 80G; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW [BEFORE SHRI S.K.YADAV, JUDICIAL MEMBER & SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ] I.T.A. NOS.104 & 105/LUC/2012 ASSESSMENT YEAR : N.A. HARSHIT FOUNDATION, JAUNPUR -VS- COMMISSIONER OF INCOME TAX, (PAN: AAATH-7199D) FAIZABAD ( APPELLANT ) ( RESPONDENT ) DATE OF CONCLUDING THE HEARING : 04.06.2013 DATE OF PRONOUNCING THE ORDER : 28.06.2013 APPEARANCES : FOR THE APPELLANT : SHRI ABHIN AV MEHROTRA : FOR THE RESPONDENT : SHRI ALOK MITRA, D R O R D E R PER PRAMOD KUMAR 1. 104/LUC/2012 : BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HAS RAISED GRIEVANCE AGAINST DENIAL OF REGISTRATION U/S. 12AA OF THE INCOME TAX ACT 1961, VIDE ORDER DATED 28 TH OCTOBER, 2011 PASSED BY THE LEARNED COMMISSIONER O F INCOME TAX, FAIZABAD. 2. WHEN THIS CALLED OUT FOR HEARING, SHRI ABHINAV M EHROTRA, LEARNED COUNSEL FOR THE ASSESSEE RAISED A PRELIMINARY LEGAL ISSUE. HE POINTED OUT THAT WE ARE AT PRESENT IN SECOND ROUND OF PROCEEDINGS BEFORE THIS TRIBUNAL, AND THAT, IN THE FIRST ROUND OF PROCEEDINGS, MATTER WAS REMITTED TO THE FI LE OF THE LEARNED COMMISSIONER FOR FRESH ADJUDICATION ON MERITS. IT IS ALSO POINTE D OUT THAT EVEN THOUGH THE TRIBUNAL HAD PASSED THE ORDER, SO REMITTING THE MAT TER TO THE FILE OF THE CIT ON 12.12.2008, LEARNED CIT PASSED THE ORDER ONLY ON 28 .10.2011. THIS INORDINATE DELAY, ACCORDING TO THE LEARNED COUNSEL, IS CONTRAR Y TO THE SCHEME OF THINGS 2 ITA NO.104&105/LU C/2012 HARSHIT FOUNDATION VISUALIZED UNDER THE LAW. OUR ATTENTION WAS THEN PO INTED OUT TO SPECIAL BENCH DECISION IN CASE OF BHAGWAT SARUP SHRI SHRI DEVRAHA BABA MEMORIAL VS CIT (111 ITD SB 175), WHICH IS, IN PRINCIPLE, APPROVED BY HO NBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SOCIETY FOR THE PROMOTION OF E DUCATION, ADVENTURE SPORTS AND CONSERVATION OF ENVIRONMENT VS CIT (216 CTR 167). I T WAS THUS CONTENDED THAT WHEN A DECISION IS NOT TAKEN ON THE REQUEST FOR REG ISTRATION U/S.12AA WITHIN A PERIOD OF SIX MONTHS, THE REGISTRATION IS DEEMED TO HAVE BEEN GRANTED. BY THE SAME LOGIC, ACCORDING TO THE LEARNED COUNSEL, WHEN LEARN ED COMMISSIONER DOES NOT DECIDE THE MATTER ONE WAY OR THE OTHER WITHIN SIX M ONTHS EVEN AFTER THE MATTER IS RESTORED TO HIM, THE REGISTRATION SHOULD BE DEEMED TO HAVE BEEN GRANTED. IN THE PRESENT CASE, LEARNED COMMISSIONER HAS TAKEN ALMOST THREE YEARS TO DISPOSE OF THE REMANDED MATTER. FOR THIS SHORT REASON ALONE, WE AR E URGED TO GRANT THE REGISTRATION U/S. 12AA. 3. LEARNED DEPARTMENTAL REPRESENTATIVE DOES NOT DIS PUTE THE FACTUAL ELEMENTS EMBEDDED IN THE ABOVE CONTENTIONS BUT SUBMITS THAT IT WILL BE UNREALISTIC TO PROCEED ON THIS BASIS DUE TO HEAVY WORK LOAD ON THE COMMISSIONER, AND IT WILL SERIOUSLY AFFECT LEGITIMATE INTERESTS OF REVENUE. W E ARE THUS URGED TO DEAL WITH THE MATTER ON MERITS. 4. IN OUR CONSIDERED VIEW, PLEA OF THE ASSESSEE DES ERVES TO BE ACCEPTED IN THE LIGHT OF HONBLE JURISDICTIONAL HIGH COURTS JUDGME NT IN THE CASE OF SOCIETY FOR PROMOTION OF EDUCATION, ADVENTURE SPORTS AND CONSER VATION OF ENVIRONMENT ( SUPRA ), WHEREIN THEIR LORDSHIPS HAVE, INTER ALIA , OBSERVED AS FOLLOWS:- THE APEX COURT HAS ALSO APPLIED DOCTRINE OF PURPOSI VE INTERPRETATION IN FISCAL STATUTES THAT WOULD BE EVIDENT FROM ITS DEC ISION IN CIT VS. ANJUM M.H.GHASWALA & ORS. (2001) 171 CTR (SC) 1 : JT 200 1 (9) SC 61. CONSIDERING THE PROS AND CONS OF THE TWO VIEWS, WE ARE OF THE OPINION THAT BY FAR THE BETTER INTERPRETATION WOULD BE TO HOLD THAT THE EFFECT OF NON- CONSIDERATION OF THE APPLICATION FOR REGISTRATION WITHIN THE TIME FIXED BY SECTION 12AA(2) WOULD BE A DEEMED GRANT OF REGISTR ATION. WE DO NOT FIND 3 ITA NO.104&105/LU C/2012 HARSHIT FOUNDATION ANY GOOD REASON TO MAKE THE ASSESSEE SUFFER BECAUS E THE IT DEPARTMENT IS NOT ABLE TO KEEP ITS OFFICERS UNDER CHECK AND CONT ROL, SO AS TO TAKE TIMELY DECISIONS IN SUCH SIMPLE MATTERS SUCH AS CONSIDERA TION OF APPLICATIONS FOR REGISTRATION EVEN WITHIN THE LARGE SIX MONTH PERIO D PROVIDED BY S. 12AA(2) OF THE ACT. WE ACCORDINGLY DIRECT THE RESPONDENTS, SUBJECT TO ANY ORDER WHICH MAY BE PASSED UNDER S. 12AA(3), TO TREAT THE PETITIONER S OCIETY AS AN INSTITUTION DULY APPROVED AND REGISTERED UNDER S. 12AA AND TO RECOM PUTED ITS INCOME BY APPLYING THE PROVISION OF S.11 OF THE ACT. ACCORDI NGLY, A FORMAL CERTIFICATE OF APPROVAL WILL BE ISSUED FORTHWITH TO THE PETITIONE R BY THE RESPONDENT NO.2. 5. APPLYING THE PRINCIPLE SO LAID DOWN, WHERE COMMI SSIONER DOES NOT PASS ANY ORDERS EVEN AFTER SIX MONTHS FROM RECEIPT OF TR IBUNALS ORDER REMITTING THE MATTER TO HIM. THE REGISTRATION WILL BE DEEMED TO H AVE BEEN GRANTED. OF COURSE, THIS IS SUBJECT TO EXERCISE OF COMMISSIONERS POWER U/S.12AA(3) IN APPROPRIATE CASES, BUT THE REGISTRATION WILL BE DEEMED TO HAVE BEEN GRANTED. 6. FOR THE REASONS SET OUT ABOVE, WE UPHOLD THE PRE LIMINARY OBJECTION RAISED BY THE ASSESSEE AND DIRECT THE COMMISSIONER TO ISSUE A PPROVAL OF REGISTRATION FORTHWITH. IN THIS VIEW OF THE MATTER, WE SEE NO NE ED TO DEAL WITH OTHER LEGAL AND FACTUAL ISSUES RAISED BY THE ASSESSEE. 7. IN THE RESULT, THE APPEAL IN ITA NO.104/LUC/2012 IS ALLOWED. 105/LUC/2012 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HA S CHALLENGED DENIAL OF APPROVAL U/S. 80G OF THE INCOME TAX ACT 1961, VIDE LEARNED COMMISSIONERS ORDER DATED 28 TH OCTOBER, 2011. 2. THE SHORT REASON FOR DENYING 80G APPROVAL WAS DE NIAL OF REGISTRATION U/S.12AA. NOW THAT, VIDE OUR ORDER OF EVEN DATE, RE GISTRATION U/S.12AA IS GRANTED. 4 ITA NO.104&105/LU C/2012 HARSHIT FOUNDATION THE VERY FOUNDATION FOR DENIAL OF APPROVAL U/S.80G THUS CEASES TO HOLD GOOD IN LAW. 3. IN VIEW OF THE ABOVE, THE ORDER DENYING APPROVAL U/S.80G IS REVERSED. LEARNED CIT IS DIRECTED TO GRANT THE APPROVAL. 4. IN THE RESULT, THIS APPEAL IN ITA NO.105/LUC/201 2 IS ALSO ALLOWED. ORDER PRONOUNCED IN THE COURT ON 28 TH JUNE, 2013. SD/- SD/- (S. K. YADAV) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 28 TH JUNE, 2013 TALUKDAR COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2 RESPONDENT 3. THE CIT(A), 4. CIT, 5. DR, LUCKNOW BENCHES, LUCKNOW TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT 5 ITA NO.104&105/LU C/2012 HARSHIT FOUNDATION