Vijayalakshmi Educational Society, Eluru V. The CIT, Rajahmundry,

ITA 133/VIZ/2012

• Counselvise Citation: 13325314 RSA 2012
• Duration Of Justice: 2 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-07-2014
• Assessment Year: misc
• Appeal Filed On: 20-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K V N CHARYA
• Section: 12A; 12AA; 12; 11

Judgement Text

ITA NO.133/VIZAG/2012 VIJAYALAKSHMI EDUCATIONAL SOCIETY, ELURU IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 133 /VIZAG/ 2012 ASSESSMENT YEAR : N.A. VIJAYALAKSHMI EDUCATIONAL SOCIETY ELURU VS. CIT RAJAHMUNDRY (APPELLANT) (RESPONDENT) PAN NO.AAAAV 7083P ASSESSEE BY: SHRI G.V.N. HARI, ADVOCATE REVENUE BY: SHRI K.V.N. CHARYA, CIT DATE OF HEARING : 08.07.2014 DATE OF PRONOUNCEMENT : 08.07.2014 ORDER PER BENCH:- THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 21.2.2012 PASSED BY THE CIT(A) RAJAHMUNDRY GRANTING REGISTRATION U/S 12AA OF THE INCOME-TAX ACT SUBJECT TO THE CONDITION THAT ASSESSEE IS ALSO REGISTERED U/S 43(1) OF THE ANDHRA PRADESH RELIGIOUS INSTITUTI ONS AND ENDOWMENTS ACT, 1987. 2. BRIEFLY THE FACTS ARE, THE ASSESSEE WAS REGISTER ED AS A SOCIETY UNDER THE ANDHRA PRADESH SOCIETIES REGISTRATION ACT ON 6. 11.2008. IT FILED AN APPLICATION IN FORM NO.10A FOR GRANT OF REGISTRATIO N U/S 12A OF THE ACT BEFORE THE CIT ON 3.11.2010. AS CAN BE SEEN FROM RECORD, THE APPLICATION FILED BY THE ASSESSEE WAS INITIALLY REJECTED BY THE CIT VIDE ORDER DATED 9.5.2011 ON THE GROUND THAT THE ASSESSEE IS REQUIRED TO BE REGI STERED U/S 43(1) OF THE ANDHRA PRADESH CHARITABLE & HINDU RELIGIOUS INSTITUT IONS AND ENDOWMENTS ACT. ASSESSEE CHALLENGED THIS DECISION OF THE CIT BEFORE THE ITAT. THE ITAT VIDE ORDER DATED 27.8.2010 SET ASIDE THE AFORESAID ORDER OF THE CIT AND RESTORED THE MATTER BACK TO HIS FILE WITH A DIRECTI ON TO ADJUDICATE THE ISSUE AFRESH BY PASSING A REASONED ORDER. AS A CONSEQUEN CE OF THE DIRECTION OF THE ITA NO.133/VIZAG/2012 VIJAYALAKSHMI EDUCATIONAL SOCIETY, ELURU 2 ITAT, THE CIT AGAIN INITIATED PROCEEDING AFRESH. I N COURSE OF THE PROCEEDING ASSESSEE APPEARED AND PRODUCED BOOKS OF ACCOUNTS FO R THE PRECEDING 3 YEARS AND OTHER DOCUMENTS AS WERE CALLED FOR BY THE CIT. THE CIT AFTER EXAMINING THE BOOKS OF ACCOUNTS AND BEING SATISFIED WITH THE OBJECTS OF THE ASSESSEE SOCIETY AS WELL AS GENUINENESS OF ITS ACTIVITIES WA S OF THE VIEW THAT REGISTRATION U/S 12A OF THE ACT IS REQUIRED TO BE G RANTED TO THE ASSESSEE WITH EFFECT FROM THE ASSESSMENT YEAR COMMENCING FROM 1.4 .2010 I.E. ASSESSMENT YEAR 2010-11 PROVIDED THE ASSESSEE GETS ITSELF REGI STERED U/S 43(1) OF THE ANDHRA PRADESH CHARITABLE & HINDU RELIGIOUS INSTITUT IONS AND ENDOWMENTS ACT, 1987. 3. BEING AGGRIEVED OF THE AFORESAID ORDER OF THE CI T, THE ASSESSEE IS BEFORE US. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI ALS ON RECORD. AT THE OUTSET THE LD. A.R. SUBMITTED BEFORE US THAT TH E ISSUE IS SQUARELY COVERED BY THE DECISION OF THE ITAT VIZAG BENCH IN SRI SARA SWATHI EDUCATIONAL SOCIETY VS. CIT RAJAHMUNDRY IN ITA NO.202/VIZAG/2012. ON A PERUSAL OF THE ORDER OF THE COORDINATE BENCH IN CASE OF SRI SARASWATHI EDUC ATIONAL SOCIETY VS. CIT RAJAHMUNDRY (SUPRA), WE FIND THAT ON CONSIDERING ID ENTICAL FACTS AND SIMILAR NATURE OF DISPUTE, THE TRIBUNAL HAS HELD AS UNDER: HAVING CONSIDERED THE SUBMISSIONS OF THE PARTIES, W E ARE OF THE VIEW THAT SO FAR AS THE OBJECT OF THE SOCIETY A ND GENUINENESS OF THE ACTIVITIES ARE CONCERNED, THERE CANNOT BE ANY D OUBT IN RESPECT OF THE SAME AS THE CIT HAS GRANTED REGISTRATION TO THE ASSESSEE U/S 12AA OF THE ACT. HOWEVER, THE ISSUE BEFORE US IS W HETHER THE CIT WAS CORRECT IN GRANTING REGISTRATION W.E.F. 1.4.201 0 I.E. ASSESSMENT YEAR 2010-11? IT IS NOT DISPUTED THAT THE ASSESSEE HAS FILED THE APPLICATION FOR GRANT OF REGISTRATION IN THE PRESCR IBED MANNER BEFORE THE CIT ON 18.12.2009. AS PER CLAUSE (II) OF THE F IRST PROVISO TO SECTION 12A (1)(A) OF THE ACT IN A CASE WHERE THE A PPLICATION FOR REGISTRATION IS NOT FILED BEFORE THE COMMISSIONER B EFORE THE EXPIRY OF A PERIOD OF 1 YEAR FROM THE DATE OF CREATION OF THE TRUST OR THE ESTABLISHMENT OF THE INSTITUTION, THEN THE REGISTRA TION SHALL BE GRANTED FROM THE FIRST DAY OF FINANCIAL YEAR IN WHI CH THE APPLICATION IS MADE. HOWEVER, AS PER THE SECOND PROVISO THE CL AUSE SHALL NOT APPLY IN RELATION TO ANY APPLICATION MADE ON OR AFT ER THE FIRST DAY OF ITA NO.133/VIZAG/2012 VIJAYALAKSHMI EDUCATIONAL SOCIETY, ELURU 3 JUNE, 2007. SIMILARLY, SUB-SECTION 2 OF SECTION 12 A OF THE ACT WHICH WAS INSERTED INTO THE STATUTE FROM 1.6.2007 MANDATE S THAT IN A CASE WHERE APPLICATION FOR REGISTRATION IS MADE AFTER TH E FIRST DAY OF JUNE, 2007, THE PROVISIONS OF SECTION 11 & 12 SHALL APPLY IN RELATION TO THE INCOME OF SUCH TRUST OR INSTITUTION FROM THE ASSESS MENT YEAR IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH S UCH APPLICATION IS MADE. THEREFORE, IN VIEW OF THE CLEAR STATUTORY PR OVISION AS CONTAINED U/S 12A(2) OF THE ACT WHICH IS APPLICABLE TO APPLICATIONS FOR REGISTRATION MADE AFTER 1.6.2007 WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT IN GRANTING REGISTRATION FOR T HE ASSESSMENT YEAR 2010-11. THEREFORE, ASSESSEES CONTENTION IN THIS RESPECT CANNOT BE ACCEPTED. IN ANY CASE OF THE MATTER, INCOME EARNED BY THE ASSESSEE IN FINANCIAL YEAR 2009-10 WILL BE ELIGIBLE FOR EXEM PTION U/S 11 SUBJECT TO FULFILLMENT OF OTHER CONDITIONS. SO FAR AS THE SECOND ISSUE OF REQUIREMENT OF REGISTRATION U/S 43(1) OF THE AND HRA PRADESH CHARITABLE & HINDU RELIGIOUS INSTITUTIONS AND ENDOW MENTS ACT, 1987 IS CONCERNED, WE ARE NOT ABLE TO AGREE WITH TH E VIEW OF THE CIT IN THIS REGARD. LAW IS NOW FAIRLY WELL SETTLED THA T FOR REGISTRATION U/S 12A OF THE ACT THE SOCIETY IS NOT REQUIRED TO B E REGISTERED U/S 43(1) OF THE ANDHRA PRADESH CHARITABLE & HINDU RELI GIOUS INSTITUTIONS AND ENDOWMENTS ACT, 1987. FURTHER, IT IS A FACT ON RECORD THAT THE ASSESSEE HAD APPLIED FOR REGISTRATI ON U/S 43(1) OF THE ANDHRA PRADESH CHARITABLE & HINDU RELIGIOUS INS TITUTIONS AND ENDOWMENTS ACT, 1987 BEFORE THE ASSISTANT COMMISSIO NER, ENDOWMENTS DEPARTMENT. HOWEVER, ASSESSEES APPLICA TION FOR REGISTRATION WAS NOT ACTED UPON AND THE ASSESSEE WA S INFORMED THAT AS THERE IS A BAN ON NEW REGISTRATIONS, ASSESSEES APPLICATION CANNOT BE ACCEPTED. THAT BEING THE CASE, WHEN THE AUTHORI TIES ARE NOT GRANTING REGISTRATION UNDER THE ANDHRA PRADESH CHAR ITABLE & HINDU RELIGIOUS INSTITUTIONS AND ENDOWMENTS ACT, 1987, RE GISTRATION U/S 43(1) CANNOT BE MADE A CONDITION PRECEDENT FOR GETT ING REGISTRATION U/S 12AA OF THE ACT. ASSESSEE CANNOT BE EXPECTED T O PERFORM AN IMPOSSIBLE ACT. EVEN OTHERWISE ALSO THE COORDINATE BENCH OF THIS TRIBUNAL IN CASE OF DDIT VS. SOCIETY FOR INTEGRATED DEVELOPMENT IN URBAN AND RURAL AREAS ITA NO.674/HYD/2011 DATED 3.1 .2014 HAS HELD THAT NON-REGISTRATION U/S 43(1) OF THE ANDHRA PRADESH CHARITABLE & HINDU RELIGIOUS INSTITUTIONS AND ENDOW MENTS ACT, 1987 WILL NOT BE A BAR FOR THE ASSESSEE IN GETTING EXEMPTION U/S 11 OF THE ACT WHEN THERE IS NO SUCH RESTRICTION PUT U/ S 11, 12 & 13 OF THE ACT. THEREFORE, RESPECTFULLY FOLLOWING THE AFO RESAID VIEW OF THE COORDINATE BENCH, WE HOLD THAT REGISTRATION U/S 12A A OF THE ACT CANNOT BE SUBJECT TO THE CONDITION THAT THE ASSESSE E GETS ITSELF REGISTERED U/S 43(1) OF THE ANDHRA PRADESH CHARITAB LE & HINDU RELIGIOUS INSTITUTIONS AND ENDOWMENTS ACT, 1987. I N VIEW OF THE AFORESAID WE DIRECT THE CIT TO GRANT REGISTRATION U /S 12AA OF THE ACT TO THE ASSESSEE WITHOUT INSISTING UPON REGISTRATION U/S 43(1) OF ANDHRA PRADESH CHARITABLE & HINDU RELIGIOUS INSTITU TIONS AND ENDOWMENTS ACT, 1987. ITA NO.133/VIZAG/2012 VIJAYALAKSHMI EDUCATIONAL SOCIETY, ELURU 4 5. ISSUE IN THE PRESENT APPEAL BEING MATERIALLY SAME , RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THE COORDINATE BENCH, WE DIRECT THE LD. CIT TO GRANT REGISTRATION U/S 12AA OF THE ACT TO TH E ASSESSEE WITHOUT INSISTING UPON REGISTRATION U/S 43(1) OF THE A.P. RELIGIOUS I NSTITUTIONS AND ENDOWMENT ACT, 1987. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 8 TH JULY14 SD/- SD/- (J. SUDHAKAR REDDY) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 8 TH JULY, 2014 COPY TO 1 THE CIT, RAJAHMUNDRY 2 VIJAYALAKSHMI EDUCATIONAL SOCIETY, D.NO.2-76, VID YA KOKILA BUILDING, VATLURU, ELURU-534 007 3 THE CIT(A), RAJAHMUNDRY 4 THE DR, ITAT, VISAKHAPATNAM. 5 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM