Darul Yathama Hyderabad Deccan, Hyderabad V. Income Tax Officer(Exemption), Ward-2., Hyderabad

ITA 1112/Hyd/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6083 (ITAT-HYDERABAD)
• Duration Of Justice: 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-05-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 30-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GEETENDER MANN
• Assessee Lawyers: LAXMINIWAS SHAR MA
• Section: 12A; 12AA; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 1112/HYD/2017 ASSESSMENT YEAR: 2012-13 DARUL YATHAMA HYDERABAD DECCAN, HYDERABAD [PAN: AABTD3907A] VS INCOME TAX OFFICER (EXEMPTIONS), WARD-2, HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI LAXMINIWAS SHARMA AR FOR REVENUE : SMT. GEETENDER MANN, DR DATE OF HEARING : 23-05-2018 DATE OF PRONOUNCEMENT : 08-06-2018 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-9, HYDERABAD, DATED 03-03-2017 ON THE ISSUE OF EXTENDING THE BENEFIT OF SE CTION 12A OF THE INCOME TAX ACT [ACT] FOR THE IMPUGNED AY. 20 12-13. 2. BRIEFLY STATED, ASSESSEE FILED ITS RETURN OF INCOME FOR THE AY. 2012-13 ON 05-12-2012 DECLARING TOTAL INCOME AT NIL. ORIGINALLY, ASSESSEE REQUEST FOR REGISTRATION U/S. 12 A WAS DENIED BY THE DIT(EXEMPTIONS) VIDE ORDER DT. 27-02-201 3 AND ITA NO. 1112/HYD/2017 :- 2 - : AS THE ASSESSEE DOES NOT HAVE REGISTRATION, EXEMPTION U/ S. 11 WAS DENIED AND EXCESS INCOME OVER EXPENDITURE AMOUNTI NG TO RS. 9,17,395/- WAS ASSESSED TO TAX. DURING THE APPELL ATE PROCEEDINGS, CONSEQUENT TO THE ORDER OF ITAT DT. 20-01- 2016, THE DIT(EXEMPTIONS) HAS GRANTED REGISTRATION U/S. 12A OF THE ACT, HOWEVER, W.E.F. 08-08-2012. SINCE ASSESSEE IS NOT HAVING REGISTRATION U/S. 12A FOR ASSESSMENT YEAR UNDER CONSID ERATION IE. AY. 2012-13, LD.CIT(A) DID NOT FIND ANY INFIRMIT Y IN THE ORDER OF AO DENYING EXEMPTION U/S. 11 AND DISMISSED THE APPEAL OF ASSESSEE. ASSESSEE IS AGGRIEVED AND RAISE D THE FOLLOWING GROUNDS: 1. THE LEARNED CIT(A) ERRED IN FACTS AND LAW WHILE PASSING ORDER U/S. 250 OF THE INCOME TAX ACT, 1961. 2. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ORDER OF ASSESSING OFFICER DENYING EXEMPTION U/S. 11 ON THE BASIS THAT ASSESSEE IS NOT HAVING REGISTRATION U/S. 12A FOR THE RELEVANT ASSES SMENT YEAR IGNORING THE FACT THAT ASSESSEE HAS BEEN GRANTED RE GISTRATION BY DIT(E) VIDE ORDER DATED 26/12/2012, WHICH WOULD APP LY TO ALL THE PRECEDING ASSESSMENT YEARS FOR WHICH ASSESSMENT PRO CEEDINGS ARE PENDING AS ON THE DATE OF SUCH REGISTRATION AND THE OBJECTS AND ACTIVITIES OF SUCH TRUST OR INSTITUTION REMAIN THE SAME FOR SUCH PRECEDING ASSESSMENT YEAR. 3. THE LEARNED CIT(A) ERRED IN NOT CONSIDERING THE RETROSPECTIVE NATURE OF AMENDMENT IN SECTION 12A MADE BY FINANCE ACT 201 4 BY INSERTING FIRST PROVISO TO SECTION 12A(2) BASED ON WHICH ASSE SSEE IS ELIGIBLE FOR CLAIMING EXEMPTION U/S. 11 OF THE INCOME TAX ACT, 1 961. 3. IT WAS SUBMITTED THAT ASSESSEE ORIGINALLY FILED FORM NO. 10A AND 10G ON 14-12-2011, I.E., F.Y. 2011-12 W ITH RESPECT TO A.Y. 2012-13. THIS CONFIRMS VIDE NOTICE DA TED 27-03-2012 BY ITO (HQRS) O/O. DIRECTOR OF INCOME TAX ITA NO. 1112/HYD/2017 :- 3 - : (EXEMPTION) WHERE THEY HAVE ACKNOWLEDGED THE APPLICATIO N FILED IN FORM NO. 10A/10G ON 14-12-2011. THERE WAS ONE MORE NOTICE DATED 05-06-2012 IN WHICH THEY REFERRED APPLICATION FILED IN FORM NO. 10A/10G ON 14-12-2011. SINCE THEY COULD NOT LOCATE THE FILE, SUBSEQUENTLY ASSESSEE HAS ONCE AGAIN FILED THE APPLICATION ON 08-08-2012. AS THE SAI D APPLICATION WAS REJECTED, ASSESSEE FILED APPEAL BEFO RE ITAT VIDE ITA NO. 704/705/HYD/2013. HON'BLE ITAT HAS SET ASID E THE ORDER. SUBSEQUENTLY THE DIT(E) GRANTED THE REGISTRATION FROM 08-08-2012. SINCE THE REGISTRATION WAS GIVEN WITH EFFE CT FROM 08-08-2012, AO HAS NOT GIVEN THE BENEFIT OF REGISTRATION WITH EFFECT FROM 14-12-2011 WHERE THE FIRST APPLICATION WA S MADE. 3.1. IT WAS CONTENDED THAT THE REGISTRATION SHOULD BE MADE APPLICABLE FOR AY 2012-13 ALSO AS APPLIED DURI NG THAT YEAR AND ALSO FOR THE REASON THAT ASSESSMENT WAS PENDIN G AS ON THE DAY OF GRANTING REGISTRATION. LD. COUNSEL RELIE D ON THE CO-ORDINATE BENCH DECISION IN THE CASE OF SAHARA EDUC ATIONAL SOCIETY, WARANGAL IN ITA NO. 772/HYD/2016 AND SRI BHANUSHALI MITRA MANDAL TRUST IN ITA NO. 2515/AHD/201 5 IN THIS REGARD. 4. LD.DR RELIED ON THE ORDERS OF THE LD.CIT(A) TO SUBMIT THAT THERE IS NO REGISTRATION FOR AY. 2012-13. 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE DOCUMENTS PLACED ON RECORD. THERE IS EVID ENCE THAT ASSESSEE HAS ORIGINALLY APPLIED BY FILING FORM-1 0A AND ITA NO. 1112/HYD/2017 :- 4 - : 10G ON 14-12-2011. OFFICE OF THE DIT(EXEMPTIONS) HA S ISSUED NOTICES DT. 27-03-2012 AND ALSO ON 05-06-2012. THE FATE OF THOSE NOTICES AND PROCEEDINGS COULD NOT BE ASCERTAINED NOR CONTROVERTED BY THE LD.DR. SINCE THE DIT(EXEMPTIONS) G RANTED REGISTRATION ON THE REVISED APPLICATION FILED ON 08-08 -2012, WE ARE OF THE OPINION THAT THE DIT(EXEMPTIONS) COULD HAVE EXTENDED THE BENEFIT W.E.F. 14-12-2011 ON THE DATE ON WHICH ASSESSEE HAS ORIGINALLY FILED. NOT ONLY THAT SINCE THE LAW IS AMENDED, THE REGISTRATION GRANTED WOULD BE EFFECTIVE FOR ALL THE PENDING ASSESSMENT YEARS. 5.1. IN THE CASE OF SAHARA EDUCATIONAL SOCIETY, IT W AS HELD AS UNDER: AS PER THE AMENDED PROVISION, ANY PROCEEDING PENDI NG WITH AO ON THE DATE OF REGISTRATION, SUCH PENDING PROCEE DING/ASSESSMENT, THE ASSESSEE IS ELIGIBLE TO GET THE BENEFIT U/S 11 & 12 OF THE ACT. IN THE GIVEN CASE, THE ASSESSMENT FOR AY 2011-12 WAS C OMPLETED ON 18/03/2014, I.E. ON THE DATE OF REGISTRATION, THE A SSESSMENT FOR AY 2011-12 WAS PENDING WITH THE AO. ACCORDINGLY, WE DI RECT AO TO EXTEND THE BENEFIT OF DEDUCTION U/S 11 TO AY 2011-1 2 WHICH IS UNDER DISPUTE. MOREOVER, AS PER THE ITA NO. 772/H/16 SAHA SRA EDUCATIONAL SOCIETY AMENDED PROVISION, THE OBJECT OF THE SOCIET Y SHOULD REMAIN SAME IN THE PENDING YEAR OF PROCEEDINGS AND THE YEA R IN WHICH REGISTRATION IS GRANTED. IN THE CASE BEFORE US ALSO , THE OBJECTS OF THE SOCIETY REMAIN SAME. 5.2. IN THE CASE OF SRI BHANUSHALI MITRA MANDAL TRUS T, IT WAS HELD AS UNDER: 'WHEN SECTION 12A OF THE ACT WAS AMENDED BY INTRODU CING NEW PROVISOS TO SUBSECTION (2) OF SECTION 12A BY FINANC E ACT, 2014 WITH EFFECT FROM 01.10.2014, THE ASSESSMENT ORDERS ASST. YEAR 2011-12 PASSED BY THE ASSESSING OFFICER IN RESPECT OF THE P RESENT ASSESSEE ITA NO. 1112/HYD/2017 :- 5 - : WERE PENDING IN APPEAL BEFORE THE FIRST APPELLATE A UTHORITY. DURING SUCH PENDENCY, THE ASSESSEE WAS GRANTED REGISTRATIO N U/S. 12AA OF THE ACT ON 17.12.2013 W.E.F THE ASSESSMENT YEAR 201 3-14. THE APPEAL IS THE CONTINUATION OF THE ORIGINAL PROCEEDI NGS AND THAT THE POWER OF THE COMMISSIONER OF INCOME-TAX WAS CO-TERM INUS WITH THAT OF THE ASSESSING OFFICER WERE TWO WELL ESTABLISHED PRINCIPLES OF LAW. IN VIEW OF THE ABOVE AND GOING BY THE PRINCIPLE OF PURPOSIVE INTERPRETATION OF STATUES, AN ASSESSMENT PROCEEDING WHICH IS PENDING IN APPEAL BEFORE THE APPELLATE AUTHORITY SHOULD BE DEEMED TO BE 'ASSESSMENT PROCEEDINGS PENDING BEFORE THE ASSESSIN G OFFICER' WITHIN THE MEANING OF THAT TERM AS ENVISAGED UNDER THE PRO VISO. IT FOLLOWS THERE-FROM THAT THE ASSESSEE WHICH OBTAINED REGISTR ATION U/S 12AA OF THE ACT DURING THE PENDENCY OF APPEAL WAS ENTITLED FOR EXEMPTION CLAIMED U/S 11 OF THE ACT.' UNDER THE PROVISO TO SECTION 12A(2) THE ASSESSEE IS ELIGIBLE FOR THE BENEFIT OF REGISTRATION U/S 12A FOR A.Y. 2012-13. 5.3. RESPECTFULLY FOLLOWING THE CO-ORDINATE BENCH DECISIONS, WE ARE OF THE OPINION THAT THE BENEFIT OF S ECTION 11 CAN BE EXTENDED TO THE IMPUGNED ASSESSMENT YEAR AS ASSE SSEE HAS ORIGINALLY APPLIED DURING THE ASSESSMENT YEAR AS WELL AS THE REGISTRATION GRANTED IS ALSO EFFECTIVE. AO IS DIRECT ED TO GRANT THE BENEFIT U/S. 11 FOR THE IMPUGNED ASSESSMENT YEAR. GROUNDS ARE ALLOWED. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JUNE, 2018 SD/- SD/- (P. MADHAVI DEVI) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED 8 TH JUNE, 2018 TNMM ITA NO. 1112/HYD/2017 :- 6 - : COPY TO : 1. DARUL YATHAMMA HYDERABAD DECCAN, 22-2-780, NOOR KHAN BAZAR, NEW MALLEPALLY, HYDERABAD. 2. INCOME TAX OFFICER(EXEMPTIONS), WARD-2, HYDERABA D. 3. CIT(APPEALS)-9, HYDERABAD. 4. CIT(EXEMPTIONS)-HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.