Auto Cluster Development & Research Institute, Pune V. DCIT, Circle 1(1), Pune

ITA 1989/PUN/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 72514 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-02-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 12-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Charitable institution; Opportunity of being heard; Competent authority; Capital expenditure
• Section: 143(3); 12A; 12AA; 148; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NOS. 1987 TO 1990/PN/2012 (A. YS. : 2005-06, 2006-07, 2008-09 & 2009-10) AUTO CLUSTER DEVELOPMENT & RESEARCH INSTITUTE, (FORMERLY KNOWN AS AUTO CLUSTER DEVELOPMENT & RESEARCH INSTITUTE LTD.), H BLOCK, PLOT NO. C 181, CHINCHWAD, PUNE 411 019. PAN : AAFCA0558D . APPELLANT VS. DY. COMMISSIONER OF INCOME TAX, CIRCLE 1(1), PUNE . RESPONDENT ITA NOS. 2262 TO 2265/PN/2012 (A. YS. : 2005-06 TO 2006-07) DY. COMMISSIONER OF INCOME TAX, CIRCLE 1(1), PUNE . APPELLANT VS. AUTO CLUSTER DEVELOPMENT & INVESTMENT, H BLOCK, PLOT NO. C 181, CHINCHWAD, PUNE 411 019. PAN : AAFCA0558D . RESPONDENT APPELLANT BY : MR. KISHORE PHADKE DEPARTMENT BY : MR. S. P. WALIMBE DATE OF HEARING : 13-12-2013 DATE OF PRONOUNCEMENT : 30-12-2013 ORDER PER G. S. PANNU, AM ALL THE CAPTIONED CROSS-APPEALS OF THE ASSESSEE AS WELL AS THE REVENUE RELATE TO SAME ASSESSEES INVOLVING CERTAIN COMMON I SSUES AND THEREFORE, THEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLID ATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. FIRST, WE MAY TAKE-UP THE CROSS-APPEALS PREFERRE D BY THE ASSESSEE AND THE REVENUE FOR ASSESSMENT YEAR 2005-06 VIDE ITA NO . 1987/PN/2012 AND ITA NOS. 1987 TO 1990/PN/2012 ITA NOS. 2262 TO 2265/PN/2012 ITA NO. 2262/PN/2012 RESPECTIVELY, WHICH ARE DIRECT ED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, PUNE DA TED 28.06.2012 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 30.12.2010 PASSED BY THE ASSESSING OFFICER, U/S 143(3) R.W.S. 147 OF THE INCOME-TAX AC T, 1961 (IN SHORT THE ACT). 3. IN ORDER TO APPRECIATE THE RIVAL STANDS IN THE P RESENT APPEALS, THE BACKGROUND OF THE CASE CAN BE SUMMARIZED AS FOLLOWS . THE ASSESSEE IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE CO MPANIES ACT, 1956 AND IT HAS ALSO BEEN ISSUED A LICENSE U/S 25(3) OF THE COM PANIES ACT, 1956 BY THE REGISTRAR OF COMPANIES, PUNE VIDE A COMMUNICATION D ATED 28.06.2012. NOTABLY, THE ASSESSEE COMPANY IS INCORPORATED AT TH E INITIATIVE OF THE CENTRAL GOVERNMENT FOR THE DEVELOPMENT OF RESEARCH AND PROV IDING ENGINEERING SERVICES TO THE AUTO SECTOR IN AND AROUND PUNE. IT MAY ALSO BE PERTINENT TO NOTE THAT ON ACCOUNT OF THE ASSESSEE BEING GRANTED A LICENSE U/S 25(3) OF THE COMPANIES ACT, 1956 ASSESSEE IS TO APPLY ITS PROFIT S IF ANY, OR OTHER INCOME IN PROMOTING ITS OBJECTS ONLY AND THE PAYMENT OF ANY D IVIDENDS TO ITS MEMBERS IS PROHIBITED. THE MEMORANDUM OF ASSOCIATION OF THE AS SESSEE EXHIBITS OBJECTS WHICH ENTAIL DEVELOPMENT OF INFRASTRUCTURE, FACILIT ATION RESEARCH & DEVELOPMENT AND SETTING-UP OF EXHIBITION CENTRES IN AUTO SECTOR IN AND AROUND PUNE. THE MEMORANDUM OF ASSOCIATION PRESCRIBES THE CLASS OF M EMBERS, NAMELY, GOVERNMENT MEMBERS, CORPORATION MEMBERS, CHAMBER ME MBERS AND GENERAL MEMBERS AND THE MANAGEMENT IS VESTED IN A G OVERNING COUNCIL WITH THE MUNICIPAL COMMISSIONER, PCMC, PUNE BEING THE EX -OFFICIO CHAIRMAN. THE COMPOSITION OF THE GOVERNING COUNCIL IS ALSO PRESCR IBED AS FIVE MEMBERS OUT OF CORPORATION MEMBERS, FOUR MEMBERS OUT OF THE GOV ERNMENT MEMBERS AND THREE EACH FROM THE CATEGORY OF CHAMBER MEMBERS AND GENERAL MEMBERS. THE CORPORATION MEMBERS MEAN THE MUNICIPAL CORPORAT ION OR MUNICIPALITIES OR DEPARTMENTS OF MUNICIPAL CORPORATION OR MUNICIPALIT IES. THE GOVERNMENT MEMBERS MEAN THE CENTRAL OR STATE GOVERNMENT OR THE IR DEPARTMENTS. THE CHAMBER MEMBERS MEAN ONE OR MORE CHAMBERS OF COMMER CE OR THE ASSOCIATION OF INDUSTRIES ESTABLISHED ANYWHERE IN I NDIA. GENERAL MEMBERS ITA NOS. 1987 TO 1990/PN/2012 ITA NOS. 2262 TO 2265/PN/2012 MEAN A MEMBER OTHER THAN THE GOVERNMENT MEMBER, COR PORATION MEMBER AND CHAMBER MEMBER. WE ARE POINTING OUT THAT THE A FORESAID FEATURES ONLY WITH THE PURPOSE OF SHOWING THAT THERE IS NO PRIVAT E PROFIT-MOTIVE INVOLVED, AND THE ASSESSEE IS AN INSTITUTION WHICH HAS BEEN SPONS ORED AND FORMED AT THE INITIATIVE OF THE CENTRAL GOVERNMENT WITH THE PARTI CIPATION OF THE LOCAL MUNICIPAL CORPORATION FOR THE DEVELOPMENT OF RESEARCH AND PRO VIDING SERVICES TO THE AUTO SECTOR IN AND AROUND PUNE. 4. BE THAT AS IT MAY, FOR THE ASSESSMENT YEAR UNDER CONSIDERATION I.E. 2005-06, ASSESSEE FILED ITS RETURN OF INCOME ON 29. 10.2005 DECLARING NIL INCOME. SUBSEQUENTLY, A NOTICE U/S 148 OF THE ACT DATED 29.03.2010 WAS ISSUED FOR REOPENING THE ASSESSMENT ON THE GROUND T HAT ASSESSEE WAS NOT ELIGIBLE FOR THE CLAIM OF EXEMPTION U/S 11 AND 12 O F THE ACT IN THE ABSENCE OF THE REGISTRATION U/S 12A OF THE ACT. THE ISSUANCE OF NOTICE U/S 148 OF THE ACT WAS BASED ON AN ASSESSMENT FINALIZED BY THE ASSESSI NG OFFICER IN THE CASE OF THE ASSESSEE U/S 143(3) OF THE ACT FOR ASSESSMENT Y EAR 2007-08 VIDE ORDER DATED 30.12.2009. 5. IN THE CONSEQUENT ASSESSMENT MADE BY THE ASSESSI NG OFFICER U/S 143(3) R.W.S. 147 OF THE ACT, THE TOTAL INCOME OF T HE ASSESSEE HAS BEEN DETERMINED AT RS.18,73,970/-. IN THIS REGARD, THE ASSESSING OFFICER NOTED THAT IN THE INCOME & EXPENDITURE ACCOUNT FURNISHED, ASSE SSEE HAD DECLARED AN INTEREST INCOME OF RS.18,73,970/- AGAINST WHICH EXP ENDITURE CLAIMED WAS RS.20,33,166/-. AS PER THE ASSESSING OFFICER, SINC E THE ASSESSEE COMPANY WAS NOT REGISTERED U/S 12A OF THE ACT, A FINDING WH ICH WAS ARRIVED AT BY HIM IN THE COURSE OF ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2007-08, HE PROCEEDED TO HOLD THAT ASSESSEE WAS NOT ELIGIBLE FO R EXEMPTION UNDER SECTIONS 11 AND 12 OF THE ACT. FURTHER, THE ASSESSING OFFIC ER NOTED THAT THE BUSINESS OF THE ASSESSEE HAS NOT COMMENCED OR SET-UP AND THEREF ORE, THE EXPENDITURE OF RS.20,33,166/- CLAIMED IN THE INCOME & EXPENDITURE ACCOUNT WAS LIABLE TO BE TREATED AS CAPITAL EXPENDITURE AND THE INCOME CRE DITED OF RS.18,73,970/- ITA NOS. 1987 TO 1990/PN/2012 ITA NOS. 2262 TO 2265/PN/2012 REPRESENTING INTEREST INCOME WAS TREATED AS INCOME FROM OTHER SOURCES. IN THIS MANNER, THE TOTAL INCOME OF THE ASSESSEE WAS D ETERMINED AT RS.18,73,970/- UNDER THE HEAD INCOME FROM OTHER SO URCES. OSTENSIBLY, THE ACTION OF THE ASSESSING OFFICER WAS PRIMARILY BASED ON THE ASSESSMENT FINALIZED BY HIM ON 30.12.2009 FOR ASSESSMENT YEAR 2007-08 WHEREIN ASSESSEE WAS FOUND NOT ELIGIBLE FOR EXEMPTION U/S 1 1 AND 12 OF THE ACT. 6. ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) WHO HAS ULTIMATELY DISMISSED THE APPEAL OF THE ASSESSEE FOL LOWING HIS OWN DECISION IN THE CASE OF ASSESSEE FOR ASSESSMENT YEAR 2007-08. FIRSTLY, AS PER THE CIT(A), THE APPEAL OF THE ASSESSEE WAS FILED BELATEDLY AND ACCORDING TO HIM THERE WAS NO VALID REASONS ADVANCED FOR THE DELAY AND HE DISM ISSED THE APPEAL AS NOT ADMITTED. SECONDLY, WITHOUT PREJUDICE TO THE ABOV E, THE CIT(A) FURTHER NOTED THAT THE ISSUE WITH REGARD TO THE DENIAL OF EXEMPTI ON U/S 11 AND 12 OF THE ACT WAS CONSIDERED BY HIM IN ASSESSEES OWN CASE FOR AS SESSMENT YEAR 2007-08 VIDE ORDER DATED 21.07.2011 WHEREIN HE HAD UPHELD T HE STAND OF THE ASSESSING OFFICER THAT THE ASSESSEE WAS NOT ENGAGED IN CARRYING OUT ANY CHARITABLE ACTIVITIES AND THEREFORE, THE ASSESSEE W AS INELIGIBLE FOR THE CLAIM OF EXEMPTION U/S 11 AND 12 OF THE ACT. THIRDLY, THE C IT(A) NOTED THAT ASSESSEE HAD APPLIED FOR REGISTRATION U/S 12A OF THE ACT ON 31.03.2005 AND SUCH APPLICATION WAS NOT DISPOSED-OFF BY THE CONCERNED C OMMISSIONER OF INCOME TAX WITHIN THE PRESCRIBED PERIOD OF SIX MONTHS LAID DOWN U/S 12AA(2) OF THE ACT AND THEREFORE FOLLOWING THE DECISION OF THE SPE CIAL BENCH OF THE TRIBUNAL IN THE CASE OF BHAGWAD SWARUP SHRI SHRI DEVRAHA BABA M EMORIAL SHRI HARI PARMARTH DHAM TRUST VS. CIT, (2008) 111 ITD 175 (DE L) (SB) AND ALSO THE JUDGMENT OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF SOCIETY FOR THE PROMOTION OF EDUCATION ADVENTURE SPORT & CONSERVATI ON OF ENVIRONMENT VS. CIT, (2008) 216 CTR 167 (ALL) IT WAS HELD THAT THE REGISTRATION IS DEEMED TO BE AVAILABLE AND THEREFORE DID NOT FIND ANY MERIT IN T HE ACTION OF THE ASSESSING OFFICER IN REJECTING THE CLAIM OF EXEMPTION U/S 11 AND 12 OF THE ACT ON THE BASIS THAT THERE WAS NO REGISTRATION U/S 12A OF THE ACT. HOWEVER, THE DECISION ITA NOS. 1987 TO 1990/PN/2012 ITA NOS. 2262 TO 2265/PN/2012 OF THE CIT(A) ON THE THIRD POINT DID NOT ALTER THE ULTIMATE RESULT IN THE ASSESSEES APPEAL, AS THE CIT(A) HAD ALREADY HELD T HE ASSESSEE INELIGIBLE FOR EXEMPTIONS U/S 11 AND 12 OF THE ACT AND THUS, THE A PPEAL WAS ULTIMATELY DISMISSED. 7. NOW, IN SO FAR AS THE POINTS NO. 1 AND 2 WERE CO NCERNED, ASSESSEE IS IN APPEAL BEFORE US WHEREAS ON THE ISSUE OF POINT NO.3 REVENUE IS IN APPEAL, BEING AGGRIEVED WITH THE ORDER OF THE CIT(A). 8. AT THE TIME OF HEARING, IT WAS A COMMON POINT BE TWEEN THE PARTIES THAT THE ISSUES DECIDED BY THE CIT(A) WITH REGARD TO THE POINT NO. 2 AND 3 ABOVE WHAT WAS A SUBJECT-MATTER OF CONSIDERATION BY THE T RIBUNAL IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2007-08 VIDE CROSS-APP EALS OF THE ASSESSEE AND THE REVENUE IN ITA NOS. 20 & 265/PN/2012 DATED 27.11.2013. SO, HOWEVER, BEFORE WE PROCEED TO DISPOSE-OFF THE AFORE SAID POINTS IT IS IN THE FITNESS OF THINKS THAT THE PRELIMINARILY ISSUE RAIS ED BY THE ASSESSEE TO THE EFFECT THAT THE CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE WITHOUT CONDONING THE DELAY, IS TO BE ADJUDICATED. 9. ON THIS ASPECT, LEARNED COUNSEL POINTED OUT THAT , BEFORE THE CIT(A), ASSESSEE HAD FURNISHED A COMMUNICATION DATED 05.01. 2001, A COPY OF WHICH HAS BEEN PLACED ON RECORD, WHEREBY THE REASONS FOR THE DELAY IN FILING OF APPEAL BEFORE THE CIT(A) WERE EXPLAINED. THE LEARN ED COUNSEL POINTED OUT THE DELAY WAS FOR A PERIOD OF APPROXIMATELY 12 MONTHS. ACCORDING TO THE LEARNED COUNSEL, THE REASONS FOR THE DELAY WERE BONAFIDE AN D THE REFUSAL TO CONDONE THE DELAY HAS PERPETUATED TECHNICAL CONSIDERATIONS WHEREAS IT IS JUDICIALLY WELL- SETTLED THAT WHERE TECHNICAL AND SUBSTANTIVE CONSID ERATIONS ARE PITTED AGAINST EACH OTHER, THE SUBSTANTIVE CONSIDERATIONS BE UPHEL D, A REFERENCE WAS MADE TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KAJIJI, 167 ITR 471 (SC). ITA NOS. 1987 TO 1990/PN/2012 ITA NOS. 2262 TO 2265/PN/2012 10. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REP RESENTATIVE HAS REFERRED TO THE ORDER OF THE CIT(A) TO POINT OUT TH AT THE DELAY WAS NOT CONDONED ON ACCOUNT OF THE FACT THAT THERE WAS NO VALID REAS ONS ADVANCED FOR THE DELAY. 11. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. IN OUR CONSIDERED OPINION, IN MATTERS CONCERNING THE CONDONATION OF D ELAY, ESPECIALLY IN SITUATIONS LIKE THE PRESENT, IT IS IMPERATIVE TO KE EP IN MIND THE BONAFIDES OF THE REASONS SOUGHT TO BE ADVANCED. AS NOTED EARLIER BY US, ASSESSEE IS AN INSTITUTION FORMED AND SPONSORED AT THE INITIATIVE OF CENTRAL GOVERNMENT ALONGWITH THE LOCAL MUNICIPAL CORPORATION FOR DEVEL OPMENT OF RESEARCH IN THE AUTO SECTOR IN AND AROUND PUNE. THE GOVERNING COUN CIL IS ALSO COMPRISING OF PERSONS DRAWN FROM THE CENTRAL GOVERNMENT OR THE ST ATE GOVERNMENT OR LOCAL MUNICIPAL CORPORATION AND REFLECTS A GOVERNMENTAL C ONTROL AND SUPERINTENDENCE. NO DOUBT, A MERE PRESENCE OF AN E LEMENT OF GOVERNMENTAL CONTROL IN AN INSTITUTION CANNOT IPSO FACTO JUSTIFY DELAY IN COMPLYING WITH THE STATUTORY TIME FRAMES BUT IN THE PRESENT CASE, WE A RE DEALING WITH THE TIME- LIMITATION OF FILING OF AN APPEAL AGAINST A TAX ADJ UDICATION. IN SUCH MATTERS, IN OUR VIEW, THE BONAFIDES OF THE ASSESSEE CANNOT BE D OUBTED AND INDEED THERE IS NOTHING ON RECORD TO SUGGEST THAT THE REASONS AD VANCED LACKED BONAFIDES. IN OUR CONSIDERED OPINION, THE CIT(A) OUGHT TO HAVE CONDONED THE DELAY IN FILING OF THE APPEAL. AS A RESULT, WE SET-ASIDE TH E ORDER OF THE CIT(A) ON THIS ASPECT. SO, HOWEVER, SINCE THE CIT(A) HAS DECIDED THE ISSUES ON MERITS ALSO, WE, THEREFORE, PROCEED TO ADJUDICATE THE RIVAL GROU NDS RAISED RELATING TO THE MERITS OF THE ISSUE. 12. IN THE ASSESSMENT YEAR 2007-08, THE TRIBUNAL CO NSIDERED THE DECISION OF THE CIT(A) WHEREBY THE ASSESSEE WAS HELD ELIGIBL E TO THE GRANT OF REGISTRATION ON DEEMING BASIS ON ACCOUNT OF THE FAC T THAT THE CONCERNED COMMISSIONER OF INCOME TAX DID NOT PASS THE ORDER O N APPLICATION OF THE ASSESSEE SEEKING REGISTRATION U/S 12A OF THE ACT WI THIN THE PERIOD OF SIX ITA NOS. 1987 TO 1990/PN/2012 ITA NOS. 2262 TO 2265/PN/2012 MONTHS PROVIDED IN SECTION 12AA(2) OF THE ACT. THE TRIBUNAL DISAGREED WITH THE STAND OF THE CIT(A) BY WAY OF THE FOLLOWING DIS CUSSION : WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOT H THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. IN THE INSTANT CASE, TH E ASSESSEE HAS FILED APPLICATION FOR REGISTRATION U/S 12A ON 31.03.2005 WHICH IS STILL PENDING. NO ORDER EITHER ALLOWING OR REFUSING THE REGISTRATION U/S 12A HAS BEEN PASSED BY THE CONCERNED CIT. WE FIND THE LD. CIT(A) HELD THA T THE REGISTRATION WILL BE DEEMED TO BE AVAILABLE TO THE ASSESSEE AS NO ORDER REFUSING REGISTRATION WAS PASSED BY THE COMPETENT AUTHORITY. HOWEVER, WE DO NOT AGREE WITH THE ABOVE REASONING OF THE CIT(A). IN OUR OPINION, THE PERIO D OF 6 MONTHS PROVIDED IN SECTION 12AA(2) FOR DISPOSAL OF APPLICATION SEEKING REGISTRATION IS ONLY DIRECTORY. THERE IS NO AUTOMATIC OR DEEMED REGISTR ATION IF THE APPLICATION FILED U/S 12AA IS NOT DISPOSED OF WITHIN THE STIPULATED P ERIOD OF 6 MONTHS. 13. BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE POI NTED OUT THAT THE CIT(A) HAD FOLLOWED THE JUDGMENTS OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF SOCIETY FOR THE PROMOTION OF EDUCATION ADVENTURE SP ORT & CONSERVATION OF ENVIRONMENT (SUPRA) AND ALSO THAT THE OF SPECIAL BE NCH OF THE TRIBUNAL IN THE CASE OF BHAGWAD SWARUP SHRI SHRI DEVRAHA BABA MEMOR IAL SHRI HARI PARMARTH DHAM TRUST (SUPRA) IN CONCLUDING THAT NON- PASSING OF ORDER BY THE COMMISSIONER WITHIN THE TIME-FRAME FIXED BY SECTION 12AA(2) OF THE ACT WOULD AMOUNT TO DEEMED GRANT OF REGISTRATION. ON THIS AS PECT, A CONTRARY VIEW TAKEN BY THE HONBLE MADRAS HIGH COURT IN THE CASES OF CI T VS. KARIMANGALAM ONRIYA PENGAL SEMIPU AMAIPU LTD., (2013) 32 TAXMANN .COM 292 (MADRAS) AND CIT VS. SHEELA CHRISTIAN CHARITABLE TRUST (2013 ) 32 TAXMANN.COM 242 (MADRAS) HAS ALSO BEEN REFERRED TO BEFORE US. THE PLEA OF THE LEARNED COUNSEL FOR THE ASSESSEE IS THAT IN A SITUATION WHERE TWO D IVERGENT VIEWS HAVE BEEN EXPRESSED BY TWO DIFFERENT HIGH COURTS OTHER THAN T HE JURISDICTIONAL HIGH COURT, THEN A VIEW FAVOURABLE TO THE ASSESSEE-SUBJE CT BE ADOPTED. NO DOUBT WE FIND WEIGHT IN THE PROPOSITION SOUGHT TO BE CANV ASSED BY THE ASSESSEE SO HOWEVER IN THE PRESENT CASE, WE ARE UNABLE TO ACQUI CISE TO THE SAID PROPOSITION IN VIEW OF THE DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2007-08 (SUPRA) RENDERED BY OUR CO-ORDINATE BENCH UNDER AN IDENTICAL SITUATION. THEREFORE, WITHOUT E XPRESSING ANY OPINION INDEPENDENTLY ON THE MERIT OF THE CONTROVERSY, FOR THE SAKE OF CONSISTENCY, THE ITA NOS. 1987 TO 1990/PN/2012 ITA NOS. 2262 TO 2265/PN/2012 PLEA OF THE ASSESSEE IS NEGATED ON ACCOUNT OF THE D ECISION OF THE TRIBUNAL DATED 27.11.2013 (SUPRA) IN ASSESSEES OWN CASE. 14. NOW, IN SO FAR AS THE DECISION OF THE CIT(A) TO THE EFFECT THAT THE ACTIVITIES OF THE ASSESSEE CANNOT BE CONSIDERED CHA RITABLE IN NATURE IS CONCERNED, IT WAS A COMMON POINT BETWEEN THE PARTIE S THAT SIMILAR ISSUE WAS DECIDED BY THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2007-08 (SUPRA) WHEREBY THE ISSUE HAS BEEN RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTIONS TO DECIDE IT AFRE SH IN ACCORDANCE WITH LAW. THE TRIBUNAL NOTED THAT LICENSE U/S 25(3) OF THE CO MPANIES ACT, 1956 ISSUED BY THE REGISTRAR, COMPANIES DATED 28.06.2012 WAS NO T PLACED BEFORE THE LOWER AUTHORITIES AND THEREFORE IT WAS DEEMED FIT T O RESTORE THE ENTIRE ISSUE FOR CONSIDERATION AFRESH BY THE ASSESSING OFFICER. IN VIEW OF THE AFORESAID DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2007-08 (SUPRA) IN THE PRESENT ASSESSMENT YEAR ALSO , WE RESTORE THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WITH DIRE CTION TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFTER ALLOWING A REA SONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 15. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT A PIQUANT SITUATION. ACCORDING TO HIM, THE TRIBUNA L REVERSED THE ORDER OF THE CIT(A) GRANTING REGISTRATION ON THE FAILURE OF THE COMMISSIONER TO PASS AN ORDER WITHIN THE SIX MONTHS PROVIDED IN SECTION 12A A(2) OF THE ACT. THE LEARNED COUNSEL POINTED OUT THAT THE RESTORATION OF THE ISSUE BACK TO THE ASSESSING OFFICER FOR DECISION AFRESH WOULD OBVIOUS LY NOT ENABLE THE ASSESSEE TO HAVE ANY EFFECTIVE REMEDY TO SEEK EXEMPTION U/S 11 AND 12 OF THE ACT AS THE ASSESSING OFFICER IS BOUND TO PROCEED ON THE BA SIS THAT THERE IS NO REGISTRATION U/S 12A OF THE ACT ALTHOUGH THE ASSESS EE MADE APPLICATION TO THE COMMISSIONER ON 31.03.2005, AS NOTED BY THE TRIBUNA L IN ITS ORDER DATED 27.11.2013 AND THE SAME HAS YET NOT BEEN DISPOSED-O FF. IT WAS, THEREFORE, CONTENDED THAT ASSESSEE WOULD BE IN A PIQUANT SITUA TION IN THE REMAND ITA NOS. 1987 TO 1990/PN/2012 ITA NOS. 2262 TO 2265/PN/2012 PROCEEDINGS BEFORE THE ASSESSING OFFICER AND SUBMIT TED THAT SUITABLE DIRECTIONS BE GIVEN TO THE COMMISSIONER OF INCOME T AX TO CONSIDER AND DECIDE ASSESSEES APPLICATION SEEKING REGISTRATION U/S 12A OF THE ACT SO THAT THE ENSUING REMAND CAN MEANINGFULLY FRUCTIFY. 16. OSTENSIBLY, THE EXEMPTION U/S 11 AND 12 OF THE ACT IS ALLOWABLE TO THE ASSESSEE SUBJECT TO THE CONDITIONS PRESCRIBED THERE IN. ONE OF THE CONDITION IS THAT THE ASSESSEE MUST BE REGISTERED WITH THE COMMI SSIONER OF INCOME TAX U/S 12A OF THE ACT. IN THE PRESENT CASE, THE APPLI CATION OF THE ASSESSEE SEEKING REGISTRATION U/S 12A OF THE ACT IS STATED T O HAVE BEEN MADE BEFORE THE CONCERNED COMMISSIONER OF INCOME TAX ON 31.03.2005 WHICH IS NOT BEEN DISPOSED OF, AS NOTED BY OUR CO-ORDINATE BENCH IN I TS ORDER DATED 27.11.2013 (SUPRA). OSTENSIBLY, THE NON-CONSIDERATION OF APPL ICATION FOR THE REGISTRATION U/S 12A WITHIN THE TIME-FRAME FIXED SECTION 12AA(2) HAS AN ADVERSE CONSEQUENCE IN THE PRESENT CASE AS ASSESSEE CANNOT BE CONSIDERED ELIGIBLE FOR EXEMPTION U/S 11 & 12 OF THE ACT. STRICTLY SPE AKING, THIS ASPECT OF THE MATTER RELATING TO NON-CONSIDERATION OF ASSESSEES APPLICATION FOR REGISTRATION U/S 12A OF THE ACT BY THE COMMISSIONER OF INCOME TA X IS NOT AN ISSUE FOR DETERMINATION BEFORE US, AND THUS WE ARE NOT INCLIN ED TO ISSUE ANY DIRECTIONS TO THE COMMISSIONER OF INCOME TAX ON NON-CONSIDERATION OF ASSESSEES APPLICATION SEEKING REGISTRATION U/S 12A OF THE ACT . THE REMEDY TO THE ASSESSEE, ON THIS ASPECT, LIES ELSEWHERE. SO HOWEV ER, WE UNDERSTAND ASSESSEES PREDICTMENT IN THE ENSUING REMAND PROCEE DINGS BEFORE THE ASSESSING OFFICER DUE TO NON-CONSIDERATION OF ASSES SEES APPLICATION BY THE COMMISSIONER. THEREFORE, HAVING REGARD TO THE PECU LIAR CIRCUMSTANCES OF THE PRESENT CASE, WE DIRECT THE ASSESSING OFFICER TO PU T-UP THIS MATTER BEFORE THE CONCERNED COMMISSIONER OF INCOME TAX WITH WHOM ASSE SSEE IS STATED TO HAVE FILED THE APPLICATION U/S 12A OF THE ACT ON 31 .03.2005 AND AWAIT THE RESPONSE FOR A REASONABLE PERIOD OF TIME AND ONLY T HEREAFTER PROCEED TO COMPLETE THE ENSUING REMAND PROCEEDINGS IN ACCORDAN CE WITH LAW. ITA NOS. 1987 TO 1990/PN/2012 ITA NOS. 2262 TO 2265/PN/2012 17. IN THE RESULT, FOLLOWING THE DECISION OF THE TR IBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2007-08 (SUPRA), THE CROSS -APPEALS OF THE ASSESSEE AND THE REVENUE FOR ASSESSMENT YEAR 2005-06 VIDE IT A NO. 1987/PN/2012 AND ITA NO. 2262/PN/2012 RESPECTIVELY ARE ALLOWED F OR STATISTICAL PURPOSES. 18. IN SO FAR AS, CROSS-APPEALS OF THE ASSESSEE AND THE REVENUE FOR ASSESSMENT YEAR 2006-07 VIDE ITA NO. 1987/PN/2012 A ND ITA NO. 2264/PN/2012 RESPECTIVELY ARE CONCERNED, THE ISSUE INVOLVED IS IDENTICAL TO THAT CONSIDERED IN ASSESSMENT YEAR 2005-06 (SUPRA) AND THUS OUR DECISION IN ITA NOS. 1987 & 2262/PN/2012 SHALL APPLY MUTATIS-MUTANDIS IN ITA NO. 1988/PN/2012 AND ITA NO. 2264/PN/2012 FOR ASSESSMEN T YEAR 2006-07 ALSO. ACCORDINGLY, CROSS-APPEALS OF THE ASSESSEE AND THE REVENUE VIDE ITA NO. 1988/PN/2012 AND ITA NO. 2264/PN/2012 FOR ASSESSMEN T YEAR 2006-07 ARE ALLOWED FOR STATISTICAL PURPOSES. 19. THE APPEALS OF THE ASSESSEE IN ITA NOS.1989 & 1 990/PN/2012 FOR ASSESSMENT YEARS 2008-09 & 2009-10 RESPECTIVELY ALS O INVOLVE SIMILAR ISSUES AS DECIDED BY US FOR ASSESSMENT YEAR 2005-06 (SUPRA ) AND THEREFORE, IN THESE ASSESSMENT YEARS ALSO THE MATTER IS REMANDED BACK T O THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION AFRESH IN THE LI GHT OF THE DIRECTION OF THE TRIBUNAL CONTAINED IN ITS ORDER FOR ASSESSMENT YEAR 2007-08 DATED 27.11.2013 (SUPRA). 20. IN THE RESULT, APPEALS OF THE ASSESSEE IN IN IT A NOS.1989 & 1990/PN/2012 FOR ASSESSMENT YEARS 2008-09 & 2009-10 RESPECTIVELY ARE ALLOWED FOR STATISTICAL PURPOSES. 21. NOW, WE MAY TAKE-UP THE APPEALS OF THE REVENUE IN ITA NOS. 2263 & 2265/PN/2012 FOR ASSESSMENT YEARS 2005-06 & 2006-07 RESPECTIVELY WHICH RELATE TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. IN BRIEF, THE FACTS ARE THAT CONSEQUENT TO THE ASSESSMENTS FINALIZED U/S 143(3) R.W.S. 147 OF THE ACT FOR ITA NOS. 1987 TO 1990/PN/2012 ITA NOS. 2262 TO 2265/PN/2012 THE TWO ASSESSMENT YEARS IN QUESTION, ASSESSEE WAS HELD GUILTY OF CONCEALMENT/FURNISHING INACCURATE PARTICULARS OF IN COME WITHIN THE MEANING OF SECTION 271(1)(C) OF THE ACT ON THE INCOME ASSESSED AS A RESULT OF DENIAL OF EXEMPTION UNDER SECTIONS 11 & 12 OF THE ACT. ACCOR DINGLY, THE ASSESSING OFFICER LEVIED PENALTIES U/S 271(1)(C) OF THE ACT F OR ASSESSMENT YEARS 2005-06 AND 2006-07 OF RS. 6,55,900 AND RS.26,59,700/- RESP ECTIVELY. 22. THE CIT(A) DELETED THE PENALTIES ON THE GROUND THAT THE DENIAL OF EXEMPTION U/S 11AND 12 OF THE ACT WAS MERELY FOR A TECHNICAL REASON OF NON- GRANTING OF REGISTRATION U/S 12A OF THE ACT WHICH, ACCORDING TO HIM, COULD NOT BE ENTIRELY ATTRIBUTED TO THE ASSESSEE. AGAINST TH E ACTION OF THE CIT(A) IN DELETING THE PENALTIES, REVENUE IS IN APPEAL BEFORE US. 23. IN OUR CONSIDERED OPINION, THE PRESENT APPEALS OF THE REVENUE DO NOT HAVE ANY MERIT INASMUCH AS THE ASSESSMENTS WHICH HA VE RESULTED IN INVOKING OF SECTION 271(1)(C) OF THE ACT BY THE ASSESSING OF FICER HAVE BEEN SET-ASIDE AND THE MATTER REMANDED BACK TO THE FILE OF THE ASS ESSING OFFICER FOR ADJUDICATION AFRESH VIDE OUR ORDER IN THE EARLIER P ARAGRAPHS. THEREFORE, PENALTIES LEVIED CONSEQUENT TO SUCH ASSESSMENTS DO NOT SURVIVE AND ACCORDINGLY, THE ULTIMATE DECISION OF THE CIT(A) IN DELETING THE PENALTY IS HEREBY AFFIRMED. 24. IN THE RESULT, APPEALS OF THE REVENUE IN ITA NO S. 2263 & 2265/PN/2012 FOR ASSESSMENT YEARS 2005-06 & 2006-07 RESPECTIVELY ARE DISMISSED. 25. RESULTANTLY, THE CAPTIONED CROSS-APPEALS OF THE ASSESSEE AND THE REVENUE ARE DISPOSED-OFF, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DECEMBER, 2013. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 30 TH DECEMBER, 2013 ITA NOS. 1987 TO 1990/PN/2012 ITA NOS. 2262 TO 2265/PN/2012 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-I, PUNE; 4) THE CIT-I, PUNE; 5) THE DR, B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE