Ashwini Sah. Rugnalaya & Research Centre Niyamit, V. Dy. CIT, Cir.1, Solapur,

ITA 302/PUN/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7463 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 18-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S SINGH
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 143(3); 12A; 12AA; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO 302 & 316/PN/08 (ASSTT. YEAR: 2002-03) ASHWINI SAHAKARI RGUNALAYA & .. APPELLANT RESEARCH CENTRE NIYAMIT, PLOT NO 180, NORTH SADAR BAZAR, SOLAPUR- PAN:AAAJA0041K VS. DY. COMMISSIONER OF INCOME-TAX, CIR. 1, SOLAPUR, ITO, (TECH & JUD), .. RESPONDENT PUNE APPELLANT BY : SHRI PRAMOD SHINGTE RESPONDENT BY : SHRI A.S. SINGH, CIT ORDER PER G. S. PANNU, AM: SINCE BOTH THE CAPTIONED APPEALS RELATE TO THE SAM E ASSESSEE, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY A COMMON ORDER, FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. FIRST WE SHALL TAKE UP ITA NO 316/PN/08, WHICH I S AN APPEAL DIRECTED AGAINST ORDER DATED 14.12.2007 PASSED BY THE COMMIS SIONER OF INCOME-TAX- IV, PUNE WHEREBY THE ASSESSEE SOCIETY WAS GRANTED R EGISTRATION WITH EFFECT FROM 1.4.2003 CONSEQUENT TO THE ORDER OF THE INCOME -TAX APPELLATE TRIBUNAL IN ITA NO 885/PN/06 DATED 15.03.2007. 3. AS PER THE ASSESSEE, THE COMMISSIONER OF INCOME- TAX ERRED IN GRANTING REGISTRATION WITH EFFECT FROM 1.4.2003, WH EN THERE WAS NO SUCH ITA NO 302,316/PN/08 ASHWINI SAH.RUGNALAYA & RES.CENTRE NIYAMIT 2 DIRECTION IN RESPECT OF EFFECTIVE DATE OF REGISTRAT ION IN THE ORDER OF THE TRIBUNAL DATED 15.3.2007 (SUPRA), AND THE REGISTRATION SHOUL D HAVE BEEN GRANTED FROM THE DATE OF INCEPTION OF THE SOCIETY, AS THE ASSESS EE HAD SUFFICIENT REASONS FOR THE DELAY IN FURNISHING OF THE APPLICATION. 4. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ORIGINALLY THE APPLICATION SEEKING REGISTRATION WAS FILED WITH THE COMMISSIONER OF INCOME-TAX ON 13.5.2003 IN CONSEQUENCE TO WHICH THE COMMISSIONER OF INCOME-TAX DENIED REGISTRATION UNDER SECTION 12A OF THE ACT VIDE ORDER DATED 25.7.2006. THIS ORDER OF THE COMMISSIONER OF INCOME -TAX WAS SET ASIDE BY THE TRIBUNAL VIDE ORDER DATED 15.3.2007 (SUPRA) ON THE GROUND THAT THE COMMISSIONER OF INCOME-TAX COULD NOT PASS SUCH AN O RDER AFTER THE EXPIRY OF SIX MONTHS FROM THE RECEIPT OF THE APPLICATION, IN TERMS OF SECTION 12AA(2) OF THE ACT. THE TRIBUNAL HELD THAT THE APPLICATION OF THE ASSESSEE SEEKING REGISTRATION WOULD BE DEEMED TO HAVE BEEN ALLOWED. THE ONLY CONTROVERSY IS THAT WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUN AL, THE COMMISSIONER OF INCOME-TAX HAS OBSERVED AS UNDER: ACCORDINGLY, THE APPLICATION FILED BY THE ASSESSEE FOR REGISTRATION U/S 12A ON 13.5.2003 IS DEEMED TO HAVE BEEN REGISTERED ON 30.1 1.2003 I.E. THE DATE OF EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH OF THE RECE IPT OF APPLICATION U/S 12AA(2) OF THE IT ACT, 1961 WITH EFFECT FROM 01.04.2003. 5. AS PER THE APPELLANT, THE REGISTRATION HAS BEEN WRONGLY MADE EFFECTIVE FROM 1.4.2003 WHEN THE ASSESSEE HAD DULY STATED BEF ORE THE COMMISSIONER OF INCOME-TAX THAT THE DELAY IN FURNISHING THE APPL ICATION UNDER SECTION 12A OF THE ACT WAS FOR SUFFICIENT REASONS AND THE SAME WAS SOUGHT TO BE CONDONED. IN THIS REGARD, ATTENTION WAS INVITED TO PAGES 9 TO 31 OF THE PAPER BOOK WHICH CONTAINS WRITTEN SUBMISSIONS DATED 13.3.2004 ADDRES SED TO THE COMMISSIONER, CONTAINING THE REASONS FOR THE DELAY AND SEEKING CONDONATION OF DELAY IN FILING OF THE APPLICATION. APART THERE FROM, THE LEARNED COUNSEL HAS RELIED UPON THE ORDER OF THE TRIBUNAL IN THE CASE O F MAHARASHTRA STATE ITA NO 302,316/PN/08 ASHWINI SAH.RUGNALAYA & RES.CENTRE NIYAMIT 3 AGRICULTURAL MARKETING BOARD, PUNE V. ITO, WARD 11( 1), PUNE IN ITA NO 1318 DATED 11.1.2010 TO CONTEND THAT THE COMMISSIONER OF INCOME-TAX OUGHT TO HAVE GRANTED REGISTRATION WITH EFFECT FROM THE COMI NG INTO EXISTENCE OF THE SOCIETY AFTER ENTERTAINING THE APPLICATION SEEKING CONDONATION OF DELAY IN FURNISHING OF THE APPLICATION. 6. ON THE OTHER HAND, THE LEARNED CIT-DEPARTMENTAL REPRESENTATIVE CONTENDED THAT THE COMMISSIONER OF INCOME-TAX MADE NO MISTAKE IN GRANTING REGISTRATION WITH EFFECT FROM 1.4.2003 AS PER THE R EQUIREMENTS OF SECTION 12A(1)(A)(II) OF THE ACT. AS PER SECTION 12(1)(A)(I I), WHERE AN APPLICATION FOR REGISTRATION IS MADE AFTER THE EXPIRY OF THE PERIOD STATED IN 12A(1)(A), THE REGISTRATION SHALL BE GRANTED FROM THE FIRST DAY OF THE FINANCIAL YEAR IN WHICH THE APPLICATION IS MADE, IF THE COMMISSIONER OF INC OME-TAX IS NOT SATISFIED THAT THE ASSESSEE WAS PREVENTED FROM MAKING THE APP LICATION BEFORE THE EXPIRY OF THE PERIOD FOR SUFFICIENT REASONS. 7. IN REPLY, THE LEARNED COUNSEL POINTED OUT THAT T HE COMMISSIONER OF INCOME-TAX HAS NOT CONSIDERED THE APPLICATION SEEKI NG CONDONATION OF DELAY FILED ON 13.3.2004. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY. IN THE PRESENT APPEAL, THE SHORT CONTROVERSY REVOLVES AROUND THE D ATE OF EFFECT OF REGISTRATION GRANTED BY THE COMMISSIONER OF INCOME- TAX IN THE IMPUGNED ORDER WHILE CARRYING OUT THE DIRECTIONS OF THE TRIB UNAL CONTAINED IN THE ORDER DATED 15.3.207 (SUPRA). IT IS CLEAR FROM THE IMPUGN ED ORDER THAT THE SAME HAS BEEN PASSED BY THE COMMISSIONER OF INCOME-TAX UNDER SECTION 12AA(1)(B)(I) OF THE ACT. IT IS ALSO CLEAR THAT THE REGISTRATION HAS BEEN GRANTED BY THE COMMISSIONER OF INCOME-TAX IN TERMS OF THE ORDER OF THE TRIBUNAL DATED 15.3.2007 (SUPRA) ON DEEMED BASIS SINCE THE COMMISS IONER OF INCOME-TAX HAD ORIGINALLY FAILED TO DISPOSE OF THE APPLICATION OF THE ASSESSEE WITHIN THE ITA NO 302,316/PN/08 ASHWINI SAH.RUGNALAYA & RES.CENTRE NIYAMIT 4 TIME PRESCRIBED UNDER SECTION 12AA(2) OF THE ACT. I N OUR CONSIDERED OPINION, THE COMMISSIONER OF INCOME-TAX HAS WRONGLY MADE REG ISTRATION EFFECTIVE FROM 1.4.2003 WITHOUT CONSIDERING THE RELEVANT FACT S AND CIRCUMSTANCES. ADMITTEDLY, IN THE COURSE OF THE ORIGINAL PROCEEDIN GS THE ASSESSEE HAD FURNISHED AN APPLICATION SEEKING CONDONATION OF DEL AY IN FURNISHING OF THE APPLICATION. UNDER SECTION 12A(1)(A), WHERE AN ASS ESSEE MAKES AN APPLICATION FOR REGISTRATION BEYOND THE PERIOD PRES CRIBED, REGISTRATION IS LIABLE TO BE GRANTED FROM THE DATE OF CREATION OF THE TRUS T IF THE COMMISSIONER OF INCOME-TAX IS SATISFIED THAT THERE IS SUFFICIENT R EASONS FOR THE DELAY. IF THE COMMISSIONER OF INCOME-TAX WAS NOT SO SATISFIED, TH E REGISTRATION WAS TO BE GRANTED FROM THE FIRST DAY OF THE FINANCIAL YEAR IN WHICH THE APPLICATION IS MADE. IN THIS CASE, AS THE FACTS SHOW, IN THE COURS E OF ORIGINAL PROCEEDINGS, THE COMMISSIONER OF INCOME-TAX WAS SEIZED WITH THE APPLICATION OF THE ASSESSEE EXPLAINING THE REASONS FOR THE DELAY IN FU RNISHING OF THE APPLICATION SEEKING REGISTRATION. THUS, ON FACTS, THE COMMISSI ONER OF INCOME-TAX OUGHT TO HAVE CONSIDERED SUCH APPLICATION AND THEREAFTER ADJUDICATED THE EFFECTIVE DATE OF THE REGISTRATION. 9. EVEN OTHERWISE, AS NOTED EARLIER, THE IMPUGNED O RDER HAS BEEN PASSED BY THE COMMISSIONER OF INCOME-TAX UNDER SECT ION 12AA OF THE ACT AND IN THIS CONTEXT, THE FOLLOWING OBSERVATIONS OF OUR CO-ORDINATE BENCH IN THE CASE OF MAHARASHTRA STATE AGRICULTURAL MARKETING BO ARD, PUNE (SUPRA) ARE RELEVANT: WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S AND PERUSED THE RECORD. IT IS NOT IN DISPUTE THAT THE IMPUGNED ORDER WAS PA SSED UNDER SECTION 12AA OF THE ACT. PROVISO (II) TO SECTION 12A(1)(A) SPEAKS OF APPLICA TION OF PROVISIONS OF SECTION 12A OF THE ACT FROM THE FIRST DAY OF THE FI NANCIAL YEAR IN WHICH AN APPLICATION IS MADE IMPLYING THEREBY THAT IN THE CASE OF A BELA TED APPLICATION REGISTRATION OF THE TRUST CAN BE CURTAILED BY EXTENDING THE BENEFITS OF THE PROVISO FROM THE FIRST DAY OF THE FINANCIAL YEAR IN WHICH AN APPLICATION IS MADE. HOWEVER, SECTION 12AA DOES NOT CONTAIN ANY RESTRICTIVE PROVISION. IN OTHER WORDS, IF A DELAYED APPLICATION IS ITA NO 302,316/PN/08 ASHWINI SAH.RUGNALAYA & RES.CENTRE NIYAMIT 5 ENTERTAINED BY CONDONING THE DELAY, REGISTRATION HA S TO BE GRANTED FROM THE DATE OF COMING INTO EXISTENCE OF THE TRUST. HAVING REGARD T O THE CIRCUMSTANCES OF THE CASE, WE ACCEPT THE CONTENTION OF THE ASSESSEE AND DIRECT THE LEARNED COMMISSIONER TO GRANT REGISTRATION W.E.F. 23.3.1984. IN VIEW OF THE ABOVE OBSERVATIONS OF OUR CO-ORDINAT E BENCH IN THE CASE OF MAHARASHTRA STATE AGRICULTURAL MARKETING BOARD, PUN E (SUPRA) AND THE DISCUSSION MADE BY US ABOVE, WE SET ASIDE THE IMPUG NED ORDER OF THE COMMISSIONER OF INCOME-TAX AND RESTORE IT BACK FOR THE LIMITED PURPOSE OF DECIDING THE EFFECTIVE DATE OF GRANTING REGISTRATIO N IN ACCORDANCE WITH THE AFORESAID DISCUSSION AND IN ACCORDANCE WITH LAW, AF TER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THIS REGARD. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. 11. NOW WE TAKE UP APPEAL OF THE ASSESSEE IN ITA NO 302/PN/08, WHICH IS DIRECTED AGAINST THE ORDER OF THE CIT (A) DATED 12.11.2007 WHICH, IN TURN, HAS ARISEN FROM AN ORDER OF ASSESSMENT UNDER SECTIO N 143(3) OF THE ACT DATED 31.3.2005 PASSED BY THE ASSESSING OFFICER. I N THIS APPEAL, THE ISSUE PERTAINS TO THE DENIAL OF BENEFITS OF SECTIONS 11 A ND 12 OF THE ACT ON ACCOUNT OF THE COMMISSIONER OF INCOME-TAX HAVING GRANTED RE GISTRATION UNDER SECTION 12AA(1)(B) ONLY WITH EFFECT FROM 1.4.2003 AND NOT F OR THE PERIOD UNDER CONSIDERATION. AS IN ITA NO 316/PN/07 (SUPRA) THE S AID ORDER OF THE COMMISSIONER OF INCOME-TAX HAS SINCE BEEN SET ASIDE AND RESTORED BACK, THE IMPUGNED ISSUE IS LIABLE TO BE DECIDED CONSEQUE NTLY. FOR THAT PURPOSE, WE SET ASIDE THE IMPUGNED ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED AFRESH IN THE LIGHT OF THE ORDER OF THE COM MISSIONER OF INCOME-TAX TO BE PASSED IN CONSEQUENCE TO OUR ORDER OF EVEN DATE IN ITA NO 316/PN/08 (SUPRA). IN THE RESULT, APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ITA NO 302,316/PN/08 ASHWINI SAH.RUGNALAYA & RES.CENTRE NIYAMIT 6 12. RESULTANTLY BOTH THE APPEALS OF THE ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF MARCH, 2011. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G.S. PA NNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED:23 RD MARCH, 2011 COPY TO:- 1) ASHWINI SAHAKARI RUGNALAYA & RESEARCH CENTRE NIYAMIT, SOLAPUR 2) THE ITO (TECH & JUD) PUNE/DCIT CIR.1, SOLAPUR 3) THE CIT(A)-III PUNE 4) THE CIT-IV PUNE 5) THE D R, B BENCH, ITAT, PUNE BY ORDER TRUE COPY ASST. REGISTRAR, ITAT, PUNE B