A P S Academy , Lucknow V. Commissioner of Income Tax-II, Lucknow

ITA 157/LKW/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4630 (ITAT-LUCKNOW)
• Duration Of Justice: 3 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 29-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 157/LKW/2012 ASSESSMENT YEAR: 2009 - 10 APS ACADEMY SENANI VIHAR RAEBARELI ROAD LUCKNOW V. CIT - II LUCKNOW T AN /PAN : AAATA7665H (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. A. K. SINGH, CIT (DR) DATE OF HEARING: 02 03 2016 DATE OF PRONOUNCEMENT: 21 03 2016 THIS APPEAL IS PREFERR ED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX, INTER ALIA, ON THE FOLLOWING GROUNDS: - O R D E R 1 . THE APPELLANT SHOULD BE DEEMED TO HAVE BEEN REGISTERED UNDER SECTION 12A BECAUSE THE LD. COMMISSIONER OF INCOME TAX FAILED TO PASS ORDER UNDE R SECTION 12AA OF THE INCOME TAX ACT, 1961 WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE MATTER OF REGISTRATION UNDER SECTION 12A WAS RESTORED BACK BY THE HONBLE TRIBUNAL, VIDE THEIR ORDER DATED 15.12.2009, TO THE FILE OF THE LD. COMMISSIONER O F INCOME TAX, LUCKNOW. 2 . WITHOUT PREJUDICE TO THE ABOVE, THE LD. COMMISSIONER OF INCOME TAX SHOULD HAVE ALLOWED THE REGISTRATION UNDER SECTION 12A OF THE ACT WHEN THERE WAS NO MATERIAL ON THE RECORD THAT THE : - 2 - : APPELLANT WAS NOT ENGAGED IN THE CHARITABLE ACTIVI T I ES AS PER THE SMRITI PATRA. 3 . THIS APPEAL WAS DISPOSED OF BY THE TRIBUNAL VIDE ITS ORDER DATED 10.9.2013 WHEREBY THE TRIBUNAL DIRECTED THE LD. COMMISSIONER OF INCOME TAX (EXEMPTION) TO GRANT REGISTRATION UNDER SECTION 12AA OF THE INCOME TAX ACT, 1961 (HE REINAFTER CALLED IN SHORT THE ACT') WITHIN A PERIOD OF SIX MONTHS . THIS ORDER OF THE TRIBUNAL WAS CHALLENGED BY THE REVENUE BEFORE THE HONBLE HIGH C OURT AND VIDE JUDGMENT DATED 22.5.2015, THE HONBLE HIGH C OURT HAS SET ASIDE THE ORDER OF THE TRIBUNAL IN THE LIGHT OF THE FULL BENCH DECISION OF THE HONBLE HIGH COURT OF ALLAHABAD IN THE CASE OF CIT VS. MUZAFAR NAGAR DEVELOPMENT AUTHORITY IN INCOME TAX APPEAL NO.348 OF 2008 WHEREIN IT HAS BEEN HELD THAT IF THE ORDER HAS NOT BEEN PASSED ON THE APPLICATION UN DER SECTION 12AA WITHIN A SPECIFIC PERIOD OF SIX MONTHS , TH ERE CANNOT BE A DEEMED REGISTRATION AND REMANDED THE MATTER BACK TO THE TRIBUNAL . CONSEQUENTLY THIS APPEAL WAS FIXED FOR HEARING ON 2.3.2016 AND DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR T HE ASSESSEE HAS INVITED OUR ATTENTION TO THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF CIT VS. SOCIETY FOR THE PROMOTION OF EDUCATION IN CIVIL APPEAL NO.1478 OF 2016 IN SPECIAL LEAVE PETITION NO.9705 OF 2009 , IN WHICH THE HONBLE APEX COURT HAS UPH ELD THE JUDGMENT OF THE HONBLE ALLAHABAD HIGH COURT , IN WHICH THE HONBLE HIGH COURT HAS HELD THAT THE BETTER INTERPRETATION OF PROVISIONS WOULD BE TO H O LD THAT THE EFFECT OF NON - CONSIDERATION OF THE APPLICATION FOR REGISTRATION WITHIN THE TIME FIXED UNDE R SECTION 12AA(2) OF THE ACT WOULD BE DEEMED GRANT OF REGISTRATION. THEREFORE, THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT WITH RESPECT TO THE DEEMED REGISTRATION ON ACCOUNT OF NON - CONSIDERATION OF THE APPLICATION FOR REGISTRATION WITHIN A PERIO D OF SIX MONTHS HAS BEEN APPROVED BY THE HONBLE APEX COURT. THE LD. COUNSEL FOR THE ASSESSEE : - 3 - : HAS FURTHER CONTENDED THAT IN THE LIGHT OF THESE FACTS, THE IMPUGNED APPEAL IS TO BE DECIDED FOLLOWING THE JUDGMENT OF THE HONBLE APEX COURT AND NOT THE JUDGMEN T OF THE FULL BENCH OF THE JURISDICTIONAL HIGH COURT. 4 . THE LD. D.R., ON THE OTHER HAND, HAS CONTENDED THAT THE HONBLE APEX COURT HAS NOT CATEGORICALLY APPROVED THE JUDGMENT OF THE HONBLE ALLAHABAD HIGH C OURT IN THE CASE OF CIT VS. SOCIETY FOR THE PROMOTIO N OF EDUCATION (SUPRA) . THEIR LORDSHIPS HAVE SIMPLY CLARIFIED THE POSITION THAT REGISTRATION WOULD BE APPLICABLE ONLY AFTER SIX MONTHS FROM THE DATE OF APPLICATION AND NOT PRIOR TO THAT. THEREFORE, THE TRIBUNAL HAS TO ADJUDICATE THE APPEAL IN THE LIGHT O F THE JUDGMENT OF THE FULL BENCH OF THE HONBLE JURISDICTIONAL HIGH COURT. 5 . HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE JUDGMENT S OF THE HONBLE APEX COURT AND JURISDICTIONAL HIGH COURT, WE FIND THAT UNDISPUTEDLY THE HO NBLE HIGH COURT OF ALLAHABAD HAS CATEGORICALLY HELD IN THE CASE OF SOCIETY FOR THE PROMOTION OF EDUCATION ADVENTURE SPORT & CONSERVATION OF ENVIRONMENT VS. CIT IN CIVIL MISC. WIRT PETITION (TAX) NO.109 OF 2008 VIDE ITS JUDGMENT DATED 3.4.2008 THAT ON ACCO UNT OF NON - CONSIDERATION OF THE APPLICATION FOR REGISTRATION WITHIN TIME FIXED BY SECTION 12AA(2) OF THE ACT WOULD BE DEEMED GRANT OF REGISTRATION. THE RELEVANT OBSERVATION OF THE HONBLE HIGH COURT IS EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE: - 17. 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 REGISTRATION. WE DO NOT FIND ANY GOOD REASON TO MAKE THE ASSESSEE SUFFER MERELY BECAUSE THE INCOME TAX DEPARTMENT IS NOT ABLE TO KEEP ITS OFFICERS UNDER CHECK AND : - 4 - : CONTROL, SO AS TO TAKE TIMELY DECISIONS IN SUCH SIMPLE MATTERS SUCH AS CONSIDERATI ON OF APPLICATIONS FOR REGISTRATION EVEN WITHIN THE LARGE SIX MONTH PERIOD PROVIDED BY SECTION 12AA(2) OF THE ACT. 6 . AGAINST THIS JUDGMENT, THE REVENUE HAS FILED AN SLP BEFORE THE HONBLE APEX COURT VIDE CIVIL APPEAL NO.1478 OF 2016 AND THE HONBLE APEX COU RT HAD DISPOSED OF THE CIVIL APPEAL AND THE SLP NO.9705 OF 2009 VIDE JUDGMENT DATED 16.2.2016 UPHOLDING THE JUDGMENT OF THE HONBLE HIGH COURT OF ALLAHABAD WITH REGARD TO THE ISSUE OF DEEMED REGISTRATION UNDER SECTION 12AA OF THE ACT, BUT THEIR LORDSHIPS H OWEVER CLARIFIED THAT APPLICATION FOR REGISTRATION UNDER SECTION 12AA OF THE ACT SHALL TAKE EFFECT ONLY AFTER SIX MONTHS FROM THE DATE OF APPLICATION. THOUGH THE REVENUE HAS TAKEN A STAND THAT THE HONBLE APEX COURT HAS NOT CATEGORICALLY UPHELD THE VIEW O F THE JURISDICTIONAL HIGH COURT WITH REGARD TO DEEMED REGISTRATION, BUT WE DO NOT FIND FORCE IN THIS ARGUMENT BECAUSE THE ISSUE INVOLVED BEFORE THE HONBLE APEX COURT IS WITH REGARD TO THE DEEMED REGISTRATION. FROM A CAREFUL PERUSAL OF THE JUDGMENT OF THE HONBLE APEX COURT , IT APPEARS THAT DURING THE COURSE OF HEARING OF THE SLP, THE REVENUE MIGHT HAVE CONCEDED T O AN ISSUE OF DEEMED REGISTRATION , AS THEIR LORDSHIPS OF THE HONBLE APEX COURT HAS NOT EXPRESSED ITS VIEW IN THIS REGARD, THOUGH SLP WAS FILED O N THIS ISSUE ALONE. THEIR LORDSHIPS HAVE SIMPLY CLARIFIED THROUGH THIS JUDGMENT THAT REGISTRATION UNDER SECTION 12AA OF THE ACT SHALL TAKE EFFECT ONLY AFTER SIX MONTHS FROM THE DATE OF APPLICATION . FOR THE SAKE OF REFERENCE, WE EXTRACT PARA 3 TO 6 OF THE JUDGMENT OF THE HONBLE APEX COURT AS UNDER: - 3. THE SHORT ISSUE IS WITH REGARD TO THE DEEMED REGISTRATION OF AN APPLICATION UNDER SECTION 12AA OF THE INCOME TAX ACT. THE HIGH COURT HAS TAKEN THE VIEW THAT ONCE AN APPLICATION IS MADE UNDER THE SAID PROVI SION AND IN CASE THE SAME IS NOT RESPONDED TO WITHIN : - 5 - : SIX MONTHS, IT WOULD BE TAKEN THAT THE APPLICATION IS REGISTERED UNDER THE PROVISION. 4. THE LEARNED ADDITIONAL SOLICITOR GENERAL APPEARING FOR THE APPELLANTS, HAS RAISED AN APPREHENSION THAT IN THE CAS E OF THE RESPONDENT, SINCE THE DATE OF APPLICATION WAS OF 24.02.2003, AT THE WORST, THE SAME WOULD OPERATE ONLY AFTER SIX MONTHS FROM THE DATE OF THE APPLICATION. 5. WE SEE NO BASIS FOR SUCH AN APPREHENSION SINCE THAT IS THE ONLY LOGICAL SENSE IN WHICH TH E JUDGMENT COULD BE UNDERSTOOD. THEREFORE, IN ORDER TO DISABUSE ANY APPREHENSION, WE MAKE IT CLEAR THAT THE REGISTRATION OF THE APPLICATION UNDER SECTION 12AA OF THE INCOME TAX ACT IN THE CASE OF THE RESPONDENT SHALL TAKE EFFECT FROM 24.08.2003. 6. SUBJEC T TO THE ABOVE CLARIFICATION AND LEAVING ALL OTHER QUESTIONS OF LAW OPEN, THE APPEAL IS DISPOSED OF WITH NO ORDER AS TO COSTS. 7 . NO DOUBT , THROUGH THE FULL BENCH JUDGMENT, THE JURISDICTIONAL HIGH COURT HAS REVERSED ITS OWN VIEW TAKEN IN THE CASE OF SOCIETY FOR THE PROMOTION OF EDUCATION ADVENTURE SPORT & CONSERVATION OF ENVIRONMENT VS. CIT (SUPRA), BUT THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SOCIETY FOR THE PROMOTION OF EDUCATION (SUPRA) HAS BEEN UPHELD BY THE HONBLE APEX COURT . IN THE LIGHT OF THESE FACTS WHEN THE VIEW OF THE HONBLE HIGH COURT HAS BEEN APPROVED BY THE HONBLE APEX COURT, WE ARE SUPPOSED TO FOLLOW THE JUDGMENT OF THE HONBLE APEX COURT INSTEAD OF THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT. UNDER TH ESE CIRCUMSTANCES, FOLLOWING THE VIEW TAKEN BY THE HONBLE APEX COURT, WE HOLD THAT REGISTRATION IS DEEMED TO HAVE BEEN GRANTED WHERE THE LD. COMMISSIONER OF INCOME TAX HAS NOT DISPOSED OF THE APPLICATION UNDER SECTION 12A OF THE ACT EVEN AFTER LAPSE : - 6 - : OF SI X MONTHS FROM THE RECEIPT OF THE ORDER OF THE TRIBUNAL. ACCORDINGLY WE DIRECT THE LD. COMMISSIONER OF INCOME TAX TO GRANT REGISTRATION UNDER SECTION 12AA OF THE ACT. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 ST 1 . APPELLANT MARCH , 2016 JJ: 1703 COPY FORWARDED TO: 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR