Oswal Bandhu Samaj, Pune V. CIT-II PUNE, Pune

ITA 1561/PUN/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 2255 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-07-2015
• Assessment Year: 2012-2013
• Appeal Filed On: 17-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K RASTOGI
• Assessee Lawyers: NILESH KHANDELWAL
• Keywords: Gift; Charitable institution; Benefit of exemption
• Section: 80G; 12A; 12AA; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , , !'!! # , $ % BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 1561/PN/2012 $& ' !(' / ASSESSMENT YEAR : OSWAL BANDHU SAMAJ MZSK & ASSOCIATES, CHARTERED ACCOUNTANTS, LEVEL 3, BUSINESS BAY, PLOT NO. 84, WELLESLEY ROAD, NEAR RTO, PUNE 411001 PAN: ....... / APPELLANT )& / V/S. COMMISSIONER OF INCOME TAX-II, PUNE / RESPONDENT / ITA NOS. 203 & 1840/PN/2014 $& ' !(' / ASSESSMENT YEAR : OSWAL BANDHU SAMAJ MZSK & ASSOCIATES, CHARTERED ACCOUNTANTS, LEVEL 3, RIVERSIDE BUSINESS BAY, PLOT NO. 84, WELLESLEY ROAD, NEAR RTO, PUNE 411001 PAN: ....... / APPELLANT )& / V/S. COMMISSIONER OF INCOME TAX-II, PUNE / RESPONDENT 2 ITA NO. 1561/PN/2012 & ITA NOS. 203 & 1840/PN/2014 ASSESSEE BY : SHRI NILESH KHANDELWAL REVENUE BY : SHRI S.K. RASTOGI / DATE OF HEARING : 02-11-2015 / DATE OF PRONOUNCEMENT : 18-12-2015 * / ORDER PER VIKAS AWASTHY, JM : THESE THREE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGA INST THE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS) IN REJECTING THE APPLICATION FOR RENEWAL OF APPROVAL U/S. 80G(5), GRANT OF CONT INUATION OF REGISTRATION U/S. 12A OF THE ACT AND REJECTING THE APPLICA TION FOR FRESH REGISTRATION U/S. 12A. THE APPEAL IN ITA NO. 1561/PN/2012 FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONE R OF INCOME TAX-II, PUNE DATED 07-06-2012 REJECTING THE APPLICATION OF ASSESSEE FOR APPROVAL U/S. 80G(5)(VI) OF THE ACT R.W. RULE 11AA OF THE IN COME TAX RULES. ITA NO. 203/PN/2014 IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX-II, PUNE DATED 19-09-2013 R EJECTING THE APPLICATION SEEKING CONTINUATION OF REGISTRATION U/S. 12A OF T HE ACT. ITA NO. 1840/PN/2014 BY THE ASSESSEE IS AGAINST THE OR DER OF COMMISSIONER OF INCOME TAX-II, PUNE DATED 29-09-2014 R EJECTING THE APPLICATION OF THE ASSESSEE FOR GRANT OF FRESH REGISTRATION U/S. 12A(A) OF THE ACT. SINCE, THE ISSUES INVOLVED IN ALL THE THREE APPEA LS ARE INTERCONNECTED AND ARE ARISING FROM THE SAME FACTS, THE A PPEALS ARE TAKEN UP TOGETHER FOR ADJUDICATION. 2. ITA NO. 203/PN/2014 HAS BEEN FILED WITH A DELAY OF 72 DAYS. THE ASSESSEE HAS FILED AN AFFIDAVIT CITING REASONS FOR DELAY IN FILING OF THE APPEAL. AFTER PERUSAL OF THE SAME, WE ARE SATISFIED THAT TH E DELAY IN FILING OF APPEAL IS NOT INTENTIONAL OR DELIBERATE. THE DELAY IN F ILING OF THE 3 ITA NO. 1561/PN/2012 & ITA NOS. 203 & 1840/PN/2014 APPEAL IS CAUSED FOR THE REASON STATED IN THE AFFIDAVIT, W HICH SEEMS TO BE QUITE PLAUSIBLE. SINCE, THE ASSESSEE HAS BEEN ABLE TO E XPLAIN THE REASON FOR DELAY IN FILING OF THE APPEAL, THE DELAY OF 72 DA YS IS CONDONED AND THE APPEAL IS ADMITTED TO BE HEARD ON MERITS. 3. THE FACTS OF THE CASE AS EMANATING FROM THE RECORDS A RE : THE ASSESSEE IS A PUBLIC CHARITABLE TRUST FORMED IN THE YEAR 1 970. THE ASSESSEE HAS BEEN ENJOYING THE BENEFIT OF EXEMPTION U/S. 80G SINCE, 1978. DURING THE SCRUTINY ASSESSMENT PROCEEDINGS FOR TH E ASSESSMENT YEAR 2010-11, THE ASSESSING OFFICER ASKED THE ASSESSEE T O PRODUCE REGISTRATION CERTIFICATE GRANTED U/S. 12A OF THE ACT. SINCE , THE ASSESSEE COULD NOT PRODUCE THE REGISTRATION CERTIFICATE ISSUED U/S. 12A, THE ASSESSING OFFICER DENIED THE BENEFIT OF SECTION 80G TO THE ASSESSEE. THE ASSESSMENT WAS FRAMED BY TREATING THE ASSESSEE AS AOP VIDE ASSESSMENT ORDER DATED 28-03-2013. THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE TRIED LEVEL BEST TO LOCATE THE REGISTR ATION CERTIFICATE, HOWEVER, THE SAME WAS NOT TRACEABLE. IT IS AN UNDISPUTE D FACT THAT THE ASSESSEE HAS BEEN RECEIVING BENEFIT U/S. 80G(5) YEAR AFTER YEAR SINCE, 1978. THE CONTENTION OF THE ASSESSEE IS THAT BENEFIT OF SECTION 80G(5) CANNOT BE GRANTED IN THE ABSENCE OF REGISTRATION U/S. 1 2A OF THE ACT. SINCE, THE DEPARTMENT HAS BEEN EXTENDING THE BENEFIT U/S . 80G(5), THE ASSESSEE MUST HAVE BEEN REGISTERED U/S. 12A OF THE ACT. FACED WITH THIS SITUATION, THE ASSESSEE MADE AN APPLICATION ON 23-12-2011 BEFORE THE COMMISSIONER OF INCOME TAX FOR GRA NT OF APPROVAL U/S. 80G. THE SAID APPLICATION OF THE ASSESSEE W AS REJECTED BY THE COMMISSIONER OF INCOME TAX VIDE IMPUGNED ORDER DA TED 07-06-2012 ON THE GROUND THAT THE ASSESSEE HAS NOT BEEN ABLE TO SHOW THAT IT IS REGISTERED U/S. 12A. SINCE, THE FOREMOST AND MANDATORY CONDITION FOR OBTAINING APPROVAL U/S. 80G(5) WAS NOT ESTABLI SHED, THE 4 ITA NO. 1561/PN/2012 & ITA NOS. 203 & 1840/PN/2014 COMMISSIONER OF INCOME TAX REJECTED THE APPLICATION OF ASS ESSEE. THEREAFTER, THE ASSESSEE MADE AN APPLICATION DATED 22-03 -2013 FOR EXTENSION/CONTINUATION OF REGISTRATION U/S. 12A. THE APPLICATION O F THE ASSESSEE FOR EXTENSION/CONTINUATION OF REGISTRATION U/S. 1 2A WAS ALSO REJECTED BY THE COMMISSIONER OF INCOME TAX VIDE IMPUGNED ORDER DATED 19-09-2013 FOR THE REASON THAT THE ASSESSEE HAS FAILED TO FURNISH EA RLIER CERTIFICATE OF REGISTRATION U/S. 12A GRANTED TO THE ASSESS EE. THEREAFTER, THE ASSESSEE FILED AN APPLICATION ON 28-03-2014 FOR GRANT OF FRESH REGISTRATION U/S. 12AA OF THE ACT. THE COMMISSIONER OF IN COME TAX REJECTED THE SAID APPLICATION FOR GRANT OF FRESH REGISTRATI ON ON THE GROUND THAT THE ASSESSEE IS NOT CARRYING ON CHARITABLE ACTIVITIES. MOST OF THE OBJECTS OF THE ASSESSEE ARE NOT CHARITABLE IN NA TURE. THE ACTIVITIES CARRIED OUT BY THE ASSESSEE ARE COMMERCIAL IN N ATURE AND THE ASSESSEE IS EARNING HUGE INCOME FROM SUCH ACTIVITIES. AGGRIEVED BY THE FINDINGS OF COMMISSIONER OF INCOME TAX, T HE ASSESSEE HAS FILED THE PRESENT APPEALS BEFORE THE TRIBUNA L ASSAILING THE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS) REJECTING TH E APPLICATIONS OF THE ASSESSEE. 4. SHRI NILESH KHANDELWAL APPEARING ON BEHALF OF THE ASSESS EE SUBMITTED THAT THE DEPARTMENT HAS BEEN EXTENDING BENE FIT OF SECTION 80G TO THE ASSESSEE SINCE, 1983. THE BENEFIT U/S. 80G CA N ONLY BE GRANTED IF THE ASSESSEE IS REGISTERED U/S. 12A. THE TRU ST WAS ESTABLISHED WAY BACK IN THE YEAR 1970, IT MUST HAVE BEE N REGISTERED U/S. 12A. HOWEVER, THE SAID REGISTRATION CERTIFICATE GOT MIS PLACED. THEREFORE, THE ASSESSEE COULD NOT PRODUCE THE SAME BEFO RE THE ASSESSING OFFICER AT THE TIME OF ASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2010-11, REJECTED THE CONTENTION OF THE ASSESSEE THAT IT MUST HAVE BEEN 5 ITA NO. 1561/PN/2012 & ITA NOS. 203 & 1840/PN/2014 REGISTERED U/S. 12A IF THE ASSESSEE IS GETTING BENEFIT OF S ECTION 80G ON THE GROUND, THAT IT IS NOT NECESSARY THAT THE TRUST S HOULD BE REGISTERED U/S. 12A FOR GRANT OF APPROVAL U/S. 80G OF THE ACT. PRIOR TO THE OMISSION OF CLAUSES (22) AND (22A) OF SECTION 10 W.E.F. 01-04-199 9 AND CLAUSE (23) OF SECTION 10 W.E.F. 01-04-2003, THE BENEFIT OF SEC TION 80G WAS GRANTED UNDER THE PROVISIONS OF AFORESAID CLAUSES AS WELL. THE LD. AR SUBMITTED THAT THE ASSESSEE HAD NEVER CLAIMED ANY D EDUCTION EITHER U/S. 10(22) OR SECTION 10(23A) OF THE ACT. THE LD. AR FURTHE R SUBMITTED THAT A PERUSAL OF THE OBJECTS OF THE TRUST WOULD SHOW T HAT THE ASSESSEE IS ENGAGED IN CHARITABLE ACTIVITIES. THE LD. AR DRAWS OUR AT TENTION TO PAGES 46 TO 54 OF THE PAPER BOOK WHEREIN THE CERTIFICAT ES WERE GIVEN BY THE COMMISSIONER OF INCOME TAX, PUNE GRANTING DEDUCTION U /S. 80G. THE LD. AR ALSO REFERRED TO PAGES 60 TO 65 OF THE PAPER BOOK TO SHOW THAT THE ASSESSEE HAS BEEN RECEIVING REFUNDS AFTER GETT ING BENEFIT OF SECTION 80G. THE LD. AR CONTENDED THAT THE ASSESSEE H AD FILED APPLICATION UNDER THE RIGHT TO INFORMATION (RTI) ACT FOR OBT AINING THE COPY OF REGISTRATION CERTIFICATE ISSUED U/S. 12A. HOWEVER, T HE DEPARTMENT VIDE COMMUNICATION DATED 07-04-2015 INFORMED THAT NO SUCH INFORMATION IS AVAILABLE IN THE OFFICE. THE LD. AR REFERRED TO A COPY OF APPLICATION DATED 23-10-2013 MADE UNDER RTI ACT AND THE ORDER OF THE CENTRAL PUBLIC INFORMATION OFFICER (CPIO) DATED 18-11-201 3 AND APPELLATE AUTHORITY (UNDER RTI ACT, 2005) DATED 22-01-201 4 AT PAGES 117 TO 121 OF THE PAPER BOOK. THE ASSESSEE MADE APP LICATIONS UNDER RTI ACT TO VARIOUS OTHER CIRCLES/WARDS WHERE THE ASSES SEE WAS ASSESSED. THE CPIOS OF THE CONCERNED CIRCLES/WARDS IN THEIR RESPECTIVE ORDERS GAVE SIMILAR REPLY THAT NO SUCH INFORMATION IS AVAILA BLE IN THEIR OFFICE. THE LD. AR REFERRED TO PAGES 128 TO 132 OF THE PAP ER BOOK IN SUPPORT OF HIS CONTENTIONS. THE LD. AR SUBMITTED THAT IT IS THE DUTY OF THE DEPARTMENT TO MAINTAIN AND PRESERVE THE FILES. THE LD . AR REFERRED 6 ITA NO. 1561/PN/2012 & ITA NOS. 203 & 1840/PN/2014 TO THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF PHALTAN EDUCATION SOCIETY VS. COMMISSIONER OF INCOME TAX IN ITA NO . 188/PN/2008 FOR ASSESSMENT YEAR 2000-01 TO 2005-06. TO SUBMIT THAT ONCE REGISTRATION U/S. 12A HAS BEEN GRANTED THERE IS NO NEED FOR THE ASSESSEE TO APPLY FOR THE RENEWAL OF SAME IN CASE THE ASSESSEE HAS LOST THE ORIGINAL CERTIFICATE OF REGISTRATION RELIANCE WAS PLACE D ON THE DECISION OF AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF SARDAR BHAVAN TRUST VS. INCOME TAX OFFICER IN ITA NO. 876 TO 881 /AHD/2010 FOR ASSESSMENT YEARS 1999-2000 TO 2004-05 DECIDED ON 10-05-2013. THE ONUS IS ON REVENUE TO PROVE THAT THE TRUST WAS N OT REGISTERED U/S. 12A OF THE ACT. THE LD. AR ALSO REFERRED TO THE ORDER OF CHIEF COMMISSIONER OF INCOME TAX DATED 05-06-2009 GRANTING RE NEWAL OF EXEMPTION U/S. 80G IN THE CASE OF THE POONA BLIND MENS AS SOCIATION, WHERE ORIGINAL REGISTRATION CERTIFICATE U/S. 12A WAS NOT TRACEABLE. 4.1 THE LD. AR SUBMITTED THAT IF THE ASSESSEE HAS EARNED SOME INCOME WHILE CARRYING ON CHARITABLE ACTIVITIES, IT IS MERELY INC IDENTAL. THE REGISTRATION U/S. 12A CANNOT BE DENIED FOR THE REASO N THAT THE ASSESSEE HAS EARNED SOME INCOME WHILE PERFORMING CHARITAB LE ACTIVITIES. THE LD. AR FURTHER SUBMITTED THAT PROVISO TO A MENDED SECTION 2(15) OF THE ACT WOULD NOT DEBAR THE ASSESSEE FRO M REGISTRATION U/S. 12A ON THE GROUND THAT THE ASSESSEE HAS SOME SU RPLUS INCOME. THE PRE-DOMINANT OBJECTS OF THE ASSESSEE ARE CHARITABLE . TO SUPPORT HIS CONTENTIONS THE LD. AR PLACED RELIANCE ON THE FOLLOWING DECISIONS: I. DIRECTOR OF INCOME-TAX (EXEMPTION) VS. SABARMATI ASHRAM GAUSHALA TRUST, 44 TAXMANN.COM 141 (GUJRAT); II. COMMISSIONER OF INCOME-TAX VS. JANAKIAMMAL AYYANADAR CHARITABLE TRUST, 29 TAXMANN.COM 159 (MADRAS); 7 ITA NO. 1561/PN/2012 & ITA NOS. 203 & 1840/PN/2014 III. DIRECTOR OF INCOME TAX VS. WOMENS INDIA TRUST, 277 CTR (BOM) 180; IV. FRANCISCAN SISTERS OF ST. JOSEPH SOCIETY VS. JOINT COMMISSI ONER OF INCOME-TAX (EXEMPTIONS), 46 TAXMANN.COM 31 (CHENNAI-TRIB.) 4.2 THE LD. AR SUBMITTED THAT THE APPLICATION OF THE ASSESS EE FOR GRANT OF EXTENSION/CONTINUATION OF REGISTRATION U/S. 12A MA Y BE ACCEPTED OR IN ALTERNATE THE APPLICATION FOR GRANT OF FRESH REGISTRATION U/S. 12AA BE ALLOWED FROM THE DATE OF APPLICATION. THE LD. AR FURTHER PRAYED FOR GRANT OF APPROVAL U/S. 80G FROM RETROSPECTIVE DATE. 5. ON THE OTHER HAND SHRI S.K. RASTOGI REPRESENTING THE DEPARTMENT VEHEMENTLY SUPPORTED THE ORDER OF COMMISSIONER OF INCOM E TAX IN REJECTING THE APPLICATION FOR GRANT OF APPROVAL U/S. 80G AS WELL AS REJECTION OF REGISTRATION U/S. 12A OF THE ACT. THE LD. DR S UBMITTED THAT THE APPROVAL U/S. 80G COULD NOT BE GRANTED TO THE ASSE SSEE AS THE ASSESSEE HAS FAILED TO SHOW THAT IT IS REGISTERED U/S. 12A OF THE ACT. THE COMMISSIONER OF INCOME TAX WAS WELL WITHIN HIS RIGHT TO REJECT THE APPLICATION FOR GRANT OF APPROVAL U/S. 80G(5) OF THE ACT. IN SO FAR AS APPLICATION FOR EXTENSION OF REGISTRATION U/S. 12A IS CONCERN ED THE ASSESSEE WAS NOT ABLE TO SHOW FROM RECORDS THAT EARLIER THE ASSESSEE WAS REGISTERED UNDER THE PROVISION OF SECTION 12A OF THE ACT. IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE SUBSTANTIATING THE CLAIM OF ASSESSEE, THE COMMISSIONER OF INCOME TAX RIGHTLY REJECTE D THE APPLICATION OF ASSESSEE FOR GRANT OF EXTENSION OF REGISTRATIO N U/S. 12A OF THE ACT. 5.1 IN RESPECT OF REJECTION OF FRESH APPLICATION FOR REGISTR ATION U/S. 12A THE LD. DR SUBMITTED THAT THE COMMISSIONER OF INCOME TAX HAS 8 ITA NO. 1561/PN/2012 & ITA NOS. 203 & 1840/PN/2014 CATEGORICALLY OBSERVED IN THE IMPUGNED ORDER THAT THE P RE-DOMINANT OBJECTS OF THE ASSESSEE ARE COMMERCIAL IN NATURE. THE A SSESSEE IS EARNING INCOME FROM LETTING OUT OF HALLS AND BUILDINGS TO VARIO US INDIVIDUALS, MNCS AND OTHERS. THE ASSESSEE ALSO GENERATED INCOME BY PROVIDING VARIOUS FACILITIES SUCH AS DG SET, FURNITURE, RENTIN G OF FURNITURE AND INCOME FROM WASHING AND CLEANING. THE ACTIVITIE S CARRIED OUT BY THE ASSESSEE ARE CLEARLY IN THE NATURE OF BUSINE SS, TRADE OR COMMERCE OR RENDERING SERVICES RELATING TO BUSINESS. THU S, THE ASSESSEE IS HIT BY PROVISO TO SECTION 2(15) OF THE ACT. I F THE ASSESSEE WAS ACTUALLY PERFORMING ANY CHARITABLE ACTIVITIES NO FEE OR NOMINAL FEE SHOULD HAVE BEEN CHARGED FOR GIVING HALLS, FOR FUNCTIONS. THE LD. DR REFERRED TO INCOME AND EXPENDITURE ACCOUNT FOR THE YEAR ENDING 31-03- 2013 OF THE ASSESSEE WHICH IS AT PAGE 76 OF THE PAPER BOOK TO SHOW THAT THE ASSESSEE HAD RECEIVED RENTAL INCOME TO THE TUNE O F RS.1,59,40,234/- AND INCOME FROM OTHER SOURCES WHICH INCLUDE INCOME FROM RENTING OF CULTURAL HALL RS.39,03,000/- AND OTHER RECEIPT S RS.80,41,751/-. THE LD. DR SUBMITTED THAT IT IS CLEARLY EVIDE NT FROM THE FINANCIAL RECORDS OF THE ASSESSEE THAT THE ASSESSEE IS NOT PERFORMING ANY CHARITABLE ACTIVITY. IN SUPPORT OF HIS SUBMISSIONS THE LD . DR PLACED RELIANCE ON THE FOLLOWING DECISIONS: I. DIRECTOR OF INCOME-TAX (EXEMPTIONS) VS. TAMIL NADU CRICKET ASSOCIATION, 57 TAXMANN.COM 136 (SC); II. SINHAGAD TECHNICAL EDUCATION SOCIETY VS. COMMISSIONER OF INCOME-TAX (CENTRAL), 343 ITR 23 (BOM); III. IMPROVEMENT TRUST VS. COMMISSIONER OF INCOME-TAX, 56 SOT 106 (AMRITSAR-TRIB.); IV. AUROLAB TRUST VS. COMMISSIONER OF INCOME-TAX, 12 ITR (T) 74; V. ENTERTAINMENT SOCIETY OF GOA VS. COMMISSIONER OF INCOME-T AX, 34 TAXMANN.COM 210 (PANAJI-TRIB.) 9 ITA NO. 1561/PN/2012 & ITA NOS. 203 & 1840/PN/2014 5.2 THE LD. DR CONCLUDED BY SUBMITTING THAT EVEN IF REGISTRA TION HAS EARLIER BEEN GRANTED THE COMMISSIONER OF INCOME TAX HAS POWER TO WITHDRAW REGISTRATION IN VIEW OF THE AMENDED PROVISIONS OF S ECTION 2(15) OF THE ACT. THE LD. DR STRONGLY DEFENDED THE ACTION OF COMMISSIONER OF INCOME TAX IN REJECTING THE APPLICATIONS OF THE ASSESSEE. 6. THE LD. AR WHILE REBUTTING THE SUBMISSIONS MADE BY THE LD. DR SUBMITTED THAT ALL THE DECISIONS ON WHICH THE REVENUE HAS PLACED RELIANCE ARE DISTINGUISHABLE ON THE FACTS. THE LD. AR CONTE NDED THAT A PERUSAL OF INCOME AND EXPENDITURE ACCOUNT WOULD SHOW THA T DURING THE FINANCIAL YEAR ENDING I.E. 31-03-2013 THE ASSESSEE HAS SPEN T RS.77,70,000/- TOWARDS THE EDUCATION, RS.42,69,895/- TOWARDS MEDIC AL RELIEF, RS.12,48,348/- TOWARDS DONATIONS AND CHARITY, RS.2,26,5 33/- TOWARDS CONTRIBUTION TO CHARITY COMMISSIONER, RS.5,99,810/- TOWARDS MUNICIPAL TAXES AND RS.33,271/- ON INSURANCE. SINCE, THE B ENEFIT OF SECTION 80G HAS BEEN WITHDRAWN THE ASSESSEE HAS NOT B EEN RECEIVING ANY DONATIONS. THE ASSESSEE IS RENDERING CHARITABLE ACTIV ITIES TO THE CROSS SECTION OF THE SOCIETY. THE ASSESSEE HAD EXPLAINE D IN DETAIL REGARDING RENTAL INCOME, INTEREST INCOME AND AMENITY CHARG ES ETC. TO THE COMMISSIONER OF INCOME TAX VIDE LETTER DELIVERED IN THE OFFICE OF COMMISSIONER OF INCOME TAX ON 08-09-2014. A COPY OF SAI D LETTER/COMMUNICATION IS AT PAGES 35 TO 37 OF THE PAPER BOOK. 7. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AT LENGTH AND HAVE PERUSED THE IMPUGNED ORDE RS. WE HAVE ALSO CONSIDERED THE DECISIONS ON WHICH THE REPRESENTATIVE S OF BOTH THE SIDES HAVE PLACED RELIANCE IN SUPPORT OF THEIR RESPECTIVE C ONTENTIONS. THE COMMISSIONER OF INCOME TAX HAS REJECTED THE APPLICAT ION OF ASSESSEE FOR GRANT OF APPROVAL U/S. 80G AND EXTENSION/CO NTINUATION OF 10 ITA NO. 1561/PN/2012 & ITA NOS. 203 & 1840/PN/2014 REGISTRATION U/S. 12A ON THE GROUND THAT THE ASSESSEE HAS NOT BEEN ABLE TO SHOW THAT THE ASSESSEE WAS EARLIER GRANTED REG ISTRATION U/S. 12A OF THE ACT. THE TRUST IS IN EXISTENCE SINCE, 1970 WITH TH E FOLLOWING OBJECTS: 1. TO WORK FOR THE SOCIAL, EDUCATIONAL, PHYSICAL, CULT URAL & INDUSTRIAL PROGRESS OF SOCIETY. 2. TO IMPROVE INTERACTION & UNITY AMONGST VARIOUS SECT IONS OF SOCIETY. 3. TO SET UP ORGANIZE & MANAGE CULTURAL CENTERS, SANIT ORIUMS, DHARMASHALAS, HOSTELS, HALLS, INDUSTRIAL UNITS, LIB RARIES, READING ROOMS, HEALTH CENTERS AND OTHER CENTERS OF SOCIAL UTILITY FOR SOCIAL, CULTURAL & OVERALL USE. 4. TO BUY, TAKE ON [EASE, RENT, ACCEPT AS GIFT & THROU GH OTHER MODES LAND, PROPERTY OR ANY MOVABLE OR IMMOVABLE ASSETS. 5. TO ACCUMULATES EARN INCOME BY WAY OF DONATIONS, GIF TS, GRANTS, FEES, LOANS & OTHER MEANS. 6. TO BUILD & BUY HALLS ON RENT, ACCEPT HALLS ETC AS G IFT OR DONATION FOR THE ASSESSEE. 7. TO LET OUT ON RENT OR LEASE ITS MOVABLE OR IMMOVABLE PROPERTY, TO SELL OFF PROPERTY THAT IS NOT REQUIRED. 8. TO AID PEOPLE & INSTITUTIONS THAT ARE USEFUL TO THE ASSESSEE. 9. TO MORTGAGE THE MOVABLE & IMMOVABLE PROPERTY FOR TH E PURPOSE OF TAKING LOAN. 10. TO DONATE, GIFT, GIVE LOANS TO NEEDY CHILDREN FOR E DUCATIONAL PURPOSES. 11. TO HELP ORPHANS, HANDICAPPED, POOR AILING WIDOWS, O LD PEOPLE ETC. 12. TO ORGANIZE FINANCIAL HELPS, LOANS ETC FOR PEOPLE W HO WISH TO SET UP NEW INDUSTRIES, BUSINESS ETC. 13. TO GIVE FINANCIAL AID TO ORGANIZATIONS HAVING SIMIL AR OBJECTS. 14. TO BUY FURNITURES, VESSELS 7 OTHER MOVABLE PROPERTY AS PER NEED & TO SELL THEM WHEN NOT REQUIRED. 15. TO DO ALL SUCH THINGS AS WOULD AID THE ACHIEVEMENT OF THE ASSESSES OBJECTS. THE LD. AR OF THE ASSESSEE HAS DRAWN OUR ATTENTION TO P AGES 46 TO 54 OF THE PAPER BOOK TO SHOW THAT IN THE PAST THE DEP ARTMENT HAS GRANTED DEDUCTION U/S. 80G TO THE ASSESSEE. A PERUSAL OF THE CERTIFICATES PLACED ON RECORD SHOW THAT THE ASSESSEE WA S GRANTED THE BENEFIT OF SECTION 80G UP TO 31-03-2008. THE RELEVANT D ETAILS OF 11 ITA NO. 1561/PN/2012 & ITA NOS. 203 & 1840/PN/2014 CERTIFICATES/LETTERS FROM THE OFFICE OF COMMISSIONER OF INCOME TAX, PUNE VIDE WHICH THE BENEFIT OF SECTION 80G WAS GRANTED TO THE ASSESSEE IS AS UNDER: SL. NO. APPLICATION OF ASSESSEE DATED LETTER FROM DEPARTMENT PERIOD OF EXEMPTION U/S. 80G 1 30 - 09 - 1977 11 - 07 - 1983 01 - 04 - 1978 TO 31 - 03 - 1983 2 08 - 09 - 1984 14 - 10 - 1984 01 - 04 - 1983 TO 31 - 03 - 1986 3 03 - 08 - 1988 07 - 11 - 1988 01 - 04 - 1988 TO 31 - 03 - 1990 4 26 - 09 - 1990 07 - 01 - 1991 01 - 04 - 1990 TO 31 - 03 - 1993 5 11 - 11 - 1993 16 - 02 - 1994 11 - 11 - 1993 TO 31 - 03 - 1996 6 20 - 12 - 1996 27 - 06 - 1997 01 - 04 - 1996 TO 31 - 03 - 1999 7 31 - 03 - 2000 02 - 11 - 2000 01 - 04 - 1999 TO 31 - 03 - 2002 8 03 - 10 - 2003 03 - 02 - 2003 TO 31 - 03 - 2005 9 01 - 06 - 2005 30 - 09 - 2005 01 - 06 - 2005 TO 31 - 03 - 2008 THE DEPARTMENT HAS NOT DISPUTED THE ISSUANCE OF AFORESA ID CERTIFICATES/COMMUNICATIONS GRANTING/EXTENDING APPROVAL U/S . 80G FROM TIME TO TIME. 8. IN THE LIGHT OF ABOVE CERTIFICATES/COMMUNICATION FROM THE OFFICE OF COMMISSIONER OF INCOME TAX, PUNE, THE REASON FOR REJECTING APPROVAL U/S. 80G, THAT THE ASSESSEE HAS NOT BEEN ABLE TO SHOW FROM RECORDS THAT EARLIER REGISTRATION U/S. 12A WAS GRANTED IS NOT SUS TAINABLE. THE ASSESSEE HAS BEEN ABLE TO SHOW FROM RECORDS THAT IT HA S BEEN ENJOYING THE BENEFIT OF SECTION 80G FROM 1978 TO 2008. ONE OF TH E VITAL PRECONDITION FOR APPROVAL U/S. 80G IS REGISTRATION U/S. 12A OF THE ACT. ONE OF THE REASONS FOR DENYING THE BENEFIT OF SECTION 80G BY ASSESSING OFFICER TO THE ASSESSEE IN ASSESSMENT YEAR 2010-11 WAS THAT PROBABLY THE ASSESSEE WAS CLAIMING DEDUCTION U/S. 80G BECAUSE OF T HE BENEFIT CLAIMED UNDER CLAUSE (22) AND (22A) OF SECTION 10. THIS PRESU MPTION OF 12 ITA NO. 1561/PN/2012 & ITA NOS. 203 & 1840/PN/2014 THE ASSESSING OFFICER IS WITHOUT ANY BASIS. EVEN IF IT IS TAKE N TO BE CORRECT, CLAUSE (22) AND (22A) OF SECTION 10 WERE OMITTED BY THE FINANCE (NO. 2) ACT, 1998 W.E.F. 01-04-1999 AND THE ASSESSEE HAS B EEN ENJOYING THE BENEFIT OF SECTION 80G TILL 2008. THE DEPARTMENT CANNO T WASH AWAY ITS HANDS BY MERELY STATING THAT SINCE NO RECORDS ARE AVAILABLE IN THE OFFICE, REGISTRATION U/S. 12A WAS NOT GRANTED TO THE ASSES SEE. THE DEPARTMENT HAS TO BRING CORROBORATIVE EVIDENCE IN SUPPO RT OF ITS CONTENTIONS. THERE IS NO EVIDENCE ON RECORD THAT REGIS TRATION WAS NOT GRANTED TO THE ASSESSEE AT ANY STAGE OR WAS GRANTED AND SUBSEQUENTLY WITHDRAWN. ON THE CONTRARY THE ASSESSEE HAS BROUGHT ON RECORD EVIDENCE TO SHOW THAT IN THE PAST ASSESSEE WAS ENJOYIN G THE BENEFIT OF SECTION 80G OF THE ACT. THE EVIDENCE BROUGHT BY ASSES SEE HAS REMAINED UN-REBUTTED. 9. IN THE CASE OF SARDAR BHAVAN TRUST VS. INCOME TAX OFFICER (SUPRA), IN SIMILAR SITUATION WHERE THE DEPARTMENT REFUSED TO ISSUE DUPLICATE CERTIFICATE U/S. 12A ON THE GROUND THAT NO RECO RDS ARE AVAILABLE, THE TRIBUNAL HELD AS UNDER: 10. WE FIND THAT WHEN THE ASSESSEE HAS CLAIMED THA T IT WAS GRANTED REGISTRATION U/S. 12A/12AA BY THE DEPARTMENT AND TH E DEPARTMENT HAS FRAMED ASSESSMENT GRANTING THE EXEMPTION THE ONUS I S ON THE DEPARTMENT TO PROVE THAT THE ASSESSEE WAS NOT GRANT ED REGISTRATION U/S. 12A/12AA OF THE ACT. IN THE PRESENT CASE THE ASSESS EE HAS CLAIMED THAT IT WAS GRANTED REGISTRATION U/S. 12A AND THE ASSESS MENTS HAVE BEEN FRAMED ACCORDINGLY IN THE PAST. THERE IS NOTHING ON RECORD BROUGHT BY THE DEPARTMENT TO CONTRADICT THE SUBMISSION OF THE ASSE SSEE THAT IT WAS NOT GRANTED REGISTRATION AFTER ASSESSMENT YEAR 1983-84 OR THE CERTIFICATE GRANTED TO THE ASSESSEE HAS BEEN WITHDRAWN. THE ONU S CAST ON REVENUE TO PROVE THAT THE TRUST WAS NOT REGISTERED CANNOT B E SAID TO BE DISCHARGED BY MERELY STATING THAT THE RECORDS OF REGISTRATION ARE NOT AVAILABLE WITH IT AND THE ASSESSEE SHOULD PROVE THAT IT WAS REGISTERE D. THE REGISTRATION GRANTED U/S 12A/12AA IS PERMANENT IN NATURE AND NEE DS NO RENEWAL FROM TIME TO TIME ACCORDINGLY THE DEPARTMENT IS EXP ECTED TO MAINTAIN THE REGISTER RECORDS REGISTRATION OF TRUST ETC U/S 12A/ 12AA AT ALL POINTS OF TIME THE REGISTRAR IN WHICH THE REGISTRATION OF THE TRUST ETC ARE ENTERED IS AN IMPORTANT AND PERMANENT DOCUMENT WHICH SHOULD HA VE BEEN PRESSURED BY DEPARTMENT. THE ASSESSEE COULD NOT BE P ENALIZED FOR THE FAILURE OF THE DEPARTMENT IN MAINTAINING THE NECESSA RY RECORD WITH IT. IN OUR CONSIDERED VIEW IN A CASE OF CHARITABLE TRUST W HERE ASSESSMENT HAS 13 ITA NO. 1561/PN/2012 & ITA NOS. 203 & 1840/PN/2014 BEEN FRAMED AND EXEMPTION PROVIDED UNDER THE ACT HA S BEEN ALLOWED TO THE ASSESSEE, THE PRESUMPTION IS THAT THE ASSESSEE TRUST WAS REGISTERED U/S 12A 12AA OF THE ACT TILL THE SAME IS REBUTTED B Y THE DEPARTMENT BY ADDUCING DOCUMENTARY EVIDENCE TO THE CONTRARY. THE REVENUE COULD NOT BRING ANY EVIDENCE ON RECORD TO PROVE THAT THE ASSE SSEE WAS NOT GRANTED REGISTRATION U/S. 12A OF THE ACT. WE ARE THEREFORE OF THE VIEW THAT A MERE STATEMENT THAT THE RELEVANT REGISTERS ARE NOT AVAIL ABLE WITH THE DEPARTMENT COULD NOT BE CONSIDERED AGAINST THE ASSE SSEE. CONSIDERING THE TOTALITY OF THE FACTS, WE OF THE VIEW THAT THE ASSESSEE SHOULD BE CONSIDERED TO BE HAVING REGISTRATION U/S. 12A IN AL L THE ASSESSMENT YEARS UNDER APPEAL AND THEREFORE ALL THESE APPEALS ARE ALLOWED. 10. IN VIEW OF THE FACT THAT THE ASSESSEE HAD FURNISHED SUFFICIENT EVIDENCE IN SUPPORT OF HIS CLAIM THAT IT HAS BEEN EARLIER EN JOYING THE BENEFIT U/S. 80G IN THE PAST AND CATEGORIC STATEMENT OF T HE ASSESSEE THAT THE ORIGINAL REGISTRATION CERTIFICATE ISSUED U/S. 12A HA S BEEN MISPLACED, THERE WAS NO OCCASION FOR THE COMMISSIONER OF IN COME TAX TO ASK FOR ANY FURTHER DOCUMENT IN SUPPORT OF EARLIER REG ISTRATION GRANTED U/S. 12A OF THE ACT. THE REVENUE HAS NOT BEE N ABLE TO EXPLAIN AS TO HOW THE ASSESSEE WAS GRANTED APPROVAL/EXTENSION U/S. 80G ON REGULAR INTERVALS IN THE ABSENCE OF REGISTRATION U/S. 12A O F THE ACT. THUS, WE ARE OF THE CONSIDERED VIEW THAT THE COMMISSIONER OF INCOME TAX HAS ERRED IN REJECTING THE APPLICATION OF THE ASSESS EE FOR ISSUING CERTIFICATE OF REGISTRATION U/S. 12A OF THE ACT AS WELL AS REJECTING APPLICATION FOR APPROVAL/RENEWAL U/S. 80G OF THE ACT. IN VIEW OF THE FACT OF THE CASE, THE IMPUGNED ORDERS IN IT A NO. 1561/PN/2012 AND ITA NO. 203/PN/2014 ARE SET ASIDE. T HE COMMISSIONER OF INCOME TAX IS DIRECTED TO ISSUE REGISTRATIO N U/S. 12A AND APPROVAL U/S. 80G W.E.F. ASSESSMENT YEAR 2010-11, I.E. TH E ASSESSMENT YEAR IN WHICH THE BENEFIT OF SECTION 80G WAS FIR ST DENIED TO THE ASSESSEE BY THE ASSESSING OFFICER. 14 ITA NO. 1561/PN/2012 & ITA NOS. 203 & 1840/PN/2014 11. IN ITA NO. 1840/PN/2014 THE ASSESSEE HAS ASSAILED THE ORDER OF COMMISSIONER OF INCOME TAX IN REJECTING THE APPLICATION FOR GRANT OF FRESH REGISTRATION U/S. 12A(A) OF THE ACT. SINCE, THE APPEAL OF THE ASSESSEE FOR ISSUANCE OF EXTENSION/CONTINUATION OF REGISTRA TION CERTIFICATE U/S. 12A HAS BEEN ACCEPTED BY US, THE APPEAL OF THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX REJECTING THE FRESH APPLICATION FOR REGISTRATION U/S. 12A(A) HAS BECOME INFRUCTUOU S. THE ARGUMENTS MADE BY THE REPRESENTATIVES OF RIVAL SIDES ON THIS ISSUE HAVE BECOME ACADEMIC. ACCORDINGLY, THE APPEAL IN ITA NO. 1840/ PN/2014 IS DISMISSED AS HAVING BECOME INFRUCTUOUS. 12. IN THE RESULT, ITA NO. 1561/PN/2012 AND ITA NO. 203/ PN/2014 ARE ALLOWED AND ITA NO. 1840/PN/2014 IS DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED ON FRIDAY, THE 18 TH DAY OF DECEMBER, 2015. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 18 TH DECEMBER, 2015 RK *+,$-.'/'(- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' / THE CIT-II, PUNE 4. !() %%*+ , *+ , , -./ , / DR, ITAT, A BENCH, PUNE. 5. ) 0 12 / GUARD FILE. // ! % // TRUE COPY// #3 / BY ORDER, %4 */ / PRIVATE SECRETARY, *+ , / ITAT, PUNE