Shri Saurashtra Lohana Mahajan, Anand V. The CIT-II, Baroda

ITA 3700/AHD/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8664 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-03-2010
• Assessment Year: misc
• Appeal Filed On: 19-09-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV AGARWAL
• Keywords: Charitable institution; Rule of consistency; Onus to prove; Ignorance of law; Set aside
• Section: 80G; 12A; 12AA; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI T.K.SHARMA, JUDICIAL MEMBER AND SHRI D.C.AGRAWAL, ACCOUNTANT MEMBER DATE OF HEARING : 23/03/2010 DRAFTED ON: 24/03 /2010 ITA NO.3700/AHD/2007 ASSESSMENT YEAR : -- SHRI SAURASHTRA LOHANA MAHAJAN AMRUTWADI NEAR GOPI CINEMA ANAND 388 001 VS. THE CIT-II BARODA PAN/GIR NO. : AAGTS 6385 N (APPELLANT) .. (RESPONDENT) APPELLANT BY : - NONE - RESPONDENT BY: SHRI RAJEEV AGARWAL, CIT-DR O R D E R PER SHRI T.K.SHARMA, JUDICIAL MEMBER :- THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER DATED 28/08/2007 PASSED BY THE COMMISSIONER OF INCOME TA XII, BARODA-390 007 ON THE FOLLOWING GROUNDS:- 1. THAT THE LEARNED CIT-II, BARODA HAS ERRED IN RE JECTING THE APPLICATION OF THE TRUST FOR REGISTRATION U/S.12A(A ) ON THE BASIS OF PROVISIONS OF SECTION 13(1)(B) OF THE ACT WHICH IS NOT APPLICABLE FOR REGISTRATION U/S.12A(A). 2. THAT THE LEARNED CIT-II, BARODA HAS ERRED IN TAK ING THE SHELTER ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT V/S. PALGHAT SHADI MAHAL TRUST (254 ITR 212) REJECTED THE APPLICATION FILED BY THE APPELLANT U/S .12A(A). 3. THAT THE APPELLANT PRAYS THAT THE REGISTRATION U /S.12A(A) APPLIED BY THE APPELLANT TRUST MAY BE ORDERED TO BE ALLOWED. ITA NO. 3700/AHD/2007 SHRI SAURASHTRA LOHANA MAHAJAN VS. CIT-II BARODA - 2 - 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE- TRUST WAS CREATED ON 21/10/2005. IT WAS REGISTERED WITH THE ASSISTANT C HARITY COMMISSIONER, ANAND. ON 05/04/2007, IT MADE AN APPLICATION FOR A REGISTRATION U/S.12AA OF THE I.T. ACT, 1961. THE SAID APPLICAT ION MADE WAS BEYOND THE STATUTORY PERIOD OF ONE YEAR FORM THE DATE OF T HE CREATION OF THE TRUST. THE TRUST ALSO MADE A REQUEST FOR CONDONATION OF DE LAY OF ABOUT 6 MONTHS ON THE GROUNDS THAT DUE TO IGNORANCE OF LAW AND NON -AWARENESS OF THE PROVISIONS OF INCOME TAX ACT, APPLICATION COULD NOT BE FILED IN TIME. 2.1. IN THE IMPUGNED ORDER, THE CIT-II, BARODA REJ ECTED THE APPLICATION FOR THE DETAILED REASON GIVEN IN PARAGRAPH NO.2 OF HIS ORDER, WHICH ARE IN THE FOLLOWING TERMS:- 2. ON PERUSAL OF THE APPLICATION AND ITS ENCLOSU RE IT WAS NOTICED THAT THE OBJECTS OF THE TRUST ARE TO HELP THE PEOPL E OF A PARTICULAR CASTE/COMMUNITY (LOHANA CASTE). AS PER THE PROVISI ONS OF SECTION 13(1)(B) OF THE ACT IN CASE THE TRUST OR INSTITUTIO N IS CREATED OR ESTABLISH FOR THE BENEFITS OF ANY PARTICULAR RELIGI OUS COMMUNITY OR CASTE AFTER THE COMMENCEMENT OF THIS ACT, THE PROVI SIONS OF SECTION 11 AND/OR 1W WILL NOT OPERATE. IN VIEW OF THE ABOVE, VIDE LETTER DATED 15.06.2007 THE ASSESSEE WAS ASKED TO S HOW CAUSE AS TO WHY ITS APPLICATION FOR REGISTRATION OF THE TRUST S HOULD NOT BE REJECTED. HEARING IN THE MATTER WAS FIXED ON 04.0 7.2007. IN RESPONSE, THE APPLICANT RELYING ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF RANA CAST ASSOCIATION VS. CIT GUJARAT DATED 16.09.2001 HAS REQUESTED TO GRANT REGISTRATION U/S. 12AA. THE APPLICANT CLAIMED THAT THE OBJECT BENEFICIAL TO A S ECTION OF PUBLIC IS AN OBJECT OF GENERAL PUBLIC UTILITY. THE SUBMISSI ON OF THE APPLICANT AS WELL AS FACTS OF THE CASE IS DULY CONS IDERED. AS MENTIONED ABOVE, THE MAIN OBJECTS OF THE TRUST ARE TO HELP THE PEOPLE OF A PARTICULAR CASTE/COMMUNITY (LOHNA CASTE ). THE DECISION ON WHICH THE APPLICANT RELIES IS NO MARE A PPLICABLE DUE TO SUBSEQUENT CHANGE MADE IN THE PROVISIONS OF SECTION 13 OF THE I T ACT. THE FACTS OF THIS CASE ARE SIMILAR TO THAT OF COMMISSIONER OF ITA NO. 3700/AHD/2007 SHRI SAURASHTRA LOHANA MAHAJAN VS. CIT-II BARODA - 3 - INCOME TAX VS. PALGHAT SHADI MAHAL TRUST (254 ITR 2 12). IN THE AFORESAID CASE, THE HON'BLE SUPREME COURT HAS HELD THAT THE ASSESSEE IS NOT ENTITLED FOR EXEMPTION U/S.11 BY VI RTUE OF THE PROVISIONS OF THE SECOND EXPLANATION TO SECTION 13 OF THE ACT. IN VIEW OF THE ABOVE, I DO NOT FIND IT A FIT CASE FOR REGISTRATION U/S.12AA OF THE ACT. THE APPLICATION IS ACCORDINGL Y REJECTED. 3. AGGRIEVED BY THE ORDER OF THE LD.CIT(APPEALS), T HE ASSESSEE IS IN APPEAL BEFORE US. 4. ON THE DATE OF HEARING BEFORE US, NONE WAS PRESE NT ON BEHALF OF ASSESSEE. HOWEVER, WRITTEN SUBMISSION DATED 18/12/ 2007 WERE FILED, WHICH READS AS UNDER:- ON THE DATE OF HEARING OF THIS APPEAL ON 19-11 -20 07 HON'BLE MEMBERS OF THE BENCH ASKED ME TO SUBMIT FURTHER SUBMISSION ON THE QUESTION OF PROVISION OF SECTION 12AA AND SECTION 13(L)(B) CONS IDERING THE OBJECTS OF THE TRUST SO THAT THEY CAN DECIDE THE CASE AFTER CO NSIDERING THE MATERIAL ON RECORD. ON THIS APPEAL FOR DECISION OF THE QUESTION MENTION ED IN THE GROUNDS OF APPEAL I HAVE FORMULATED FOLLOWING QUESTION TO BE C ONSIDERED BY HON'BLE MEMBERS. WHETHER ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE, CIT IS RIGHT IN REJECTING THE APPLICATION OF THE APPELL ANT TRUST FOR REGISTRATION U/S. 12 AA ON THE BASIS OF PROVISION U /S. 13(L)(B) OF THE ACT TAKING SHELTER OF HON'BLE SUPREME COURT DECISIO N IN THE CASE OF CIT V/S. PALGHAT SHADI MAHAL TRUST DISREGARDING THE APPLICABLE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF AH MEDABAD RANA CASTE ASSOCIATION V/S. CIT (GUJARAT) AND ALSO CIT H AS NOT FOUND ANY WRONG ABOUT GENUINENESS OF THE TRUST, ITS OBJEC TS OF THE TRUST AND APPLICATION OF FUNDS OF THE APPELLANT TRUST. FIRST OF ALL I HAVE TO STATE THAT THE SAID COMMISSI ONER OF INCOME TAX SHRI RAJ GURU HAS PASSED THE ORDER U/S. 12AA(L)(B)(I) IN THE CASE OF SHRI (835) TRIVEDI MEWADA KELAVANI MANDAL, DAKOR ON 28-9-2007 GRANTING REGISTRATION OF THE TRUST UNDER SIMILAR CIRCUMSTANC ES WITH SIMILAR OBJECTS ITA NO. 3700/AHD/2007 SHRI SAURASHTRA LOHANA MAHAJAN VS. CIT-II BARODA - 4 - AFTER EXACTLY ONE MONTH ON 28-8-2007 OF PASSING OF THE ORDER REJECTING THE REGISTRATION OF THE APPELLANT TRUST. XEROX COPY OF ONE OF SUCH ORDER AND OBJECTS OF THE TRUST IS ANNEXED HEREWITH AS ANNEXUR E-A. THIS IS TOTALLY DOUBLE STANDARD. HE CAN NOT HAVE ONE STANDARD FOR O NE TRUST AND ANOTHER STANDARD FOR ANOTHER TRUST. WE RELY UPON THE DECIS ION OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT V/S. LEADER V ALVES LTD. (295ITR 273) IN WHICH IT IS CLEARLY MENTIONED THAT RULE OF CONSISTENCY HAS TO BE KEPT IN MIND FOR PASSING THE ORDER IN CASE OF ONE ASSESS EE IN SIMILAR SITUATION. HE CAN NOT TAKE ONE VIEW REJECTING APPLICATION AND TAKE ANOTHER VIEW ALLOWING APPLICATION U/S. 12AA UNDER SIMILAR CIRCUM STANCES AND IF HE HAS NOT KEPT IN MIND THIS FACT OF RULE OF CONSISTENCY T HEN ORDER PASSED BY THE SAID CIT REJECTING THE APPLICATION IS BAD IN LAW. X EROX COPY OF THE SAID ORDER AND COPY OF THE OBJECTS OF THE SAID TRUST ARE ANNEXED HEREWITH AS ANNEXURE-B. HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF FIFTH G ENERATION EDUCATION SOCIETY V/S. CIT (185 ITR 634) IT IS HELD AS FOLLOW S:-(ANNEXURE-C) A READING OF SECTION 12A OF THE INCOME-TAX ACT, 196 1, SHOWS THAT REGISTRATION UNDER THE SECTION IS A PRECONDITION FO R AVAILING OF THE BENEFIT UNDER SECTION 11 AND 12. SECTION 11 PROVIDE S FOR EXEMPTION OF INCOME WHICH IS APPLIED FOR CHARITABLE PURPOSES. SECTION 12 IS IN THE NATURE OF AN EXPLANATION TO SECTION 11. BEFORE A PERSON CAN CLAIM THE BENEFIT OF SECTION 11 OR SECTION 12, AS T HE CASE MAY BE, HE MUST OBTAIN REGISTRATION UNDER SECTION 12A. THE APP LICATION FIR REGISTRATION UNDER SECTION 12A HAS TO BE MADE INFOR M NO. 1OA PRESCRIBED BY RULE 17A OF THE INCOME-TAX RULES, 196 2, BEFORE THE EXPIRY OF ONE YEAR FROM THE DATE OF CREATION OF THE TRUST OR THE ESTABLISHMENT OF THE INSTITUTION, WHICHEVER IS LATE R. IT HAS TO BE MADE BY THE PERSON IN RECEIPT OF THE INCOME OF THE TRUST. AT THAT STAGE, THE COMMISSIONER IS NOT REQUIRED TO EXAMINE THE APPLICATION OF INCOME. ALL THAT HE MAY EXAMINE IS WHETHER THE A PPLICATION IS MADE IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 12A READ WITH RULE 17A OF THE INCOME-TAX RULES, 1962, AND WHETHER FORM NO. 10A HAS BEEN PROPERLY FILLED UP. HE MAY ALSO SEE WHETHE R THE OBJECTS OF THE TRUST ARE CHARITABLE OR NOT. ALSO HON'BLE MADRAS HIGH COURT IN THE CASE OF NEW L IFE IN CHRIST EVANGELISTIC ASSOCIATION V/S. CIT (246 ITR 532) HAS HELD AS FOLLOWS :- (ANNEXURE-D) A PERUSAL OF THE PROVISIONS OF SECTION 12A OF THE I NCOME-TAX ACT, 1961, WOULD SHOW THAT UNLESS A SOCIETY OR TRUST, AS THE CASE MAY BE, IS REGISTERED UNDER SECTION 12A OF THE ACT, IT WOUL D NOT BE ENTITLED TO CLAIM THE BENEFITS UNDER SECTIONS 11 AND 12 OF T HE ACT. THE ITA NO. 3700/AHD/2007 SHRI SAURASHTRA LOHANA MAHAJAN VS. CIT-II BARODA - 5 - CAPTION OF THE SECTION SAYS 'CONDITIONS AS TO THE R EGISTRATION OF THE TRUST'. THE TWO CONDITIONS WHICH ARE PROVIDED ARE, FIRSTLY, THAT THE PERSON CONCERNED SHOULD HAVE MADE AN APPLICATION FO R REGISTRATION IN THE PRESCRIBED FORM AND IN THE PRESCRIBED MANNER TO THE AUTHORITIES NAMED IN THAT SECTION BEFORE THE FIRST DAY OF JULY, 1973, OR BEFORE THE EXPIRY OF THE PERIOD OF ONE YEAR FROM THE DATE OF THE CREATION OF THE TRUST OR ESTABLISHMENT OF THE INSTI TUTION. THE SECOND CONDITION PROVIDES FOR THE KEEPING OF THE ACCOUNTS IN A PARTICULAR MANNER AND FURTHER THAT SUCH ACCOUNTS SHOULD BE AUD ITED. THE LANGUAGE OF THE SECTION DOES NOT SHOW THAT IN ORDER TO BE ABLE TO GET REGISTRATION UNDER SECTION 12A OF THE ACT, THERE IS NECESSITY OF FIRST ESTABLISHING AS TO HOW THE CONCERNED INSTITUTION OR , AS THE CASE MAY BE, THE SOCIETY WOULD BE ABLE TO CLAIM THE EXEMPTIO NS UNDER SECTIONS 11 AND 12 OF THE ACT. THERE IS NOTHING IN THE LANGUAGE TO SUGGEST THAT AN INSTITUTION OF A RELIGIOUS NATURE I S PRECLUDED FROM GETTING REGISTRATION UNDER SECTION 12A OF THE ACT. THE QUESTION OF EXEMPTIONS UNDER SECTIONS 11 AND 12 OF THE ACT OR, AS THE CASE MAY BE, UNDER SECTION 80G OF THE ACT, WOULD COME ONLY W HEN THE SAID EXEMPTIONS ARE CLAIMED BY THE SOCIETY AT THE TIME W HEN IT IS ASSESSED TO TAX. TO CONSIDER -WHETHER THE SAID SOCI ETY WOULD BE ENTITLED TO THE BENEFITS UNDER SECTIONS 11 AND 12 O F THE ACT OR, AS THE CASE MAY BE, UNDER SECTION 80G OF THE ACT WOULD BE PREJUDGING THE ISSUE BEFORE THE GRANT OF THE CERTIFICATE. AT THE S TAGE OF GRANT OF CERTIFICATE UNDER SECTION 12 A OF THE ACT, THE ONLY ENQUIRY 'WHICH COULD POSSIBLY BE MADE WOULD BE WHETHER THE SOCIETY HAS ACTUALLY MADE AN APPLICATION IN TIME AND WHETHER THE ACCOUNT S OF THE SOCIETY ARE MAINTAINED IN THE MANNER AS SUGGESTED BY THE SA ID SECTION. BEYOND THAT, THE SCOPE OF ENQUIRY WOULD NOT GO. LOOKING TO THE ABOVE DECISION AND THE DECISION IN T HE CASE OF AGGARWAL MITRA MANDAL TRUST V/S. DIRECTOR OF INCOME-TAX (EXE MPTION)(106 ITD 531) IT IS CLEARLY MENTIONED THAT CIT HAS NO POWER TO GO BEYOND THE POWERS VESTED IN HIM U/S. 12A. RATIONALE OF DECISIONS MENTIONED IN MY PREVIOUS WRI TTEN SUBMISSION SUBMITTED AND IN THIS WRITTEN SUBMISSION IS AS FOLL OWS :- (1) AN OBJECT BENEFICIAL TO A SECTION OF THE P UBLIC IS AN OBJECT OF GENERAL PUBLIC UTILITY. TO SERVE A CHARITABLE PURPO SE, IT IS NOT NECESSARY THAT THE OBJECT SHOULD BE TO BENEFIT THE WHOLE OF MANKIND OR ALL PERSONS IN A COUNTRY OR STATE. (2) AN OBJECT BENEFICIAL TO THE SECTION OF THE PUBLIC IS AN OBJECT OF GENERAL PUBLIC UTILITY AND TO SERVE A CHARITABLE PURPOSE, IT IS SUFFICIENT IF THE INTENTION IS TO BENEFIT A SECTION OF THE PUBLIC AS ITA NO. 3700/AHD/2007 SHRI SAURASHTRA LOHANA MAHAJAN VS. CIT-II BARODA - 6 - DISTINGUISHED FROM A SPECIFIED INDIVIDUAL. THUS THE PROVISIONS SECTION 13(1) ARE NOT DIRECTLY RELEVANT IN THIS REG ARD. THE PROVISIONS CAN BE APPLIED OR INVOKED ONLY AT THE TIME OF COMPU TATION OF TOTAL INCOME OF THE PREVIOUS YEAR OF THE PERSON WHO IS CL AIMING EXEMPTION UNDER SECTION 11 OR SECTION 12 BY THE ASS ESSING OFFICER AND NOT BY THE COMMISSIONER WHILE CONSIDERING THE A PPLICATION FOR REGISTRATION UNDER SECTION 12AA. (3) A TRUST OR INSTITUTION TO CLAIM THE BENEFITS O F SECTION 11 MUST APPLY FOR REGISTRATION WHICH WILL BE ACCORDED OR REJECTED AS PER THE PROCEDURE CONTAINED IN SECTION 12A. (4) THE COMMISSIONER OR DIRECTOR OF INCOME-TAX (EX EMPTIONS) MUST CONSIDER THE OBJECTS OF THE TRUST AND GENUINENESS O F THE ACTIVITIES OF THE TRUST AT THE TIME OF REGISTRATION. HE NEED NOT LOOK INTO VIOLATIONS LISTED IN SECTION 13. (5) NOTWITHSTANDING ANY BREACH OF THE LEGAL REQUI REMENT OR SATISFACTION OF ANY OF THE CONDITIONS CONTAINED IN SECTION 13, THE AUTHORITY GRANTING REGISTRATION NEED NOT TAKE COGNI ZANCE OF THE SAME WHILE DECIDING THE ISSUE OF REGISTRATION UNDER SEECTION 12 A. (6) SECTION 13 BEGINS WITH THE WORDS 'NOTHING CONT AINED IN SECTION 11 OR SECTION 12 SHALL OPERATE SO AS TO EXCLUDE FROM T HE TOTAL INCOME OF THE PREVIOUS YEAR OF THE PERSON', WHICH MEANS THE O PERATION OF SECTIONS 11 AND 12 BEFORE SECTION 13 COMES INTO PLA Y. SECTION 13 COULD BE APPLIED ONLY WHILE COMPUTING THE TOTAL INC OME OF THE PERSON WHO CLAIMS EXEMPTION UNDER SECTION 11. (7) ONLY IF THE REGISTRATION IS GRANTED UNDER SECT ION 12 A, THE PROVISIONS OF SECTION 13 COULD BE APPLIED IN THE AB SENCE OF REGISTRATION, THE APPLICATION OF SECTION 13 WOULD B E IMPOSSIBLE AS THE QUALIFICATION IN SECTION 13 BY MAKING REFERENCE TO SECTION 11 WOULD ALSO BECOME REDUNDANT. (8) EVEN WHERE SOME OF THE OBJECTS OF THE TRUST SA TISFY THE REQUIREMENTS OF CHARITABLE NATURE AND SOME OF THE OBJECTS DO NOT SATISFY THE SAME, THE BENEFIT OF REGISTRATION MUST BE GRANTED AND ONL Y WHILE COMPUTING THE INCOME, THE BENEVOLENCE OF SECTION 11 COULD BE DENIED BASED ON THE ACTUALITIES OF THE CASE. IF REG ISTRATION IS DEPRIVED IN THE FIRST INSTANCE AND THE ACTUAL PERFO RMANCE IS CHARITABLE IN NATURE, THEN THE APPLICATION OF SECTI ON 11 WOULD BECOME IMPOSSIBLE BECAUSE OF THE DENIAL OF REGISTRA TION WHICH IS NOT INTENDED BY THE LEGISLATURE. ITA NO. 3700/AHD/2007 SHRI SAURASHTRA LOHANA MAHAJAN VS. CIT-II BARODA - 7 - LASTLY IT IS SUBMITTED THAT CIT-II, BARODA CLEARLY ERRED IN REFUSING REGISTRATION OF THE APPELLANT TRUST U/S. 12AA ON TH E BASIS OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT V/S. PALGH AT SHADI MAHAL TRUST (254 ITR 212) DISREGARDING THE APPLICABLE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF AHMEDABAD RANA CASTE ASSOCIATI ON V/S. CIT (82, ITR 704). IT IS SUBMITTED THAT THE CIT MAY BE DIRECTED TO GRA NT REGISTRATION OF THE TRUST CONDONING THE DELAY FOR FILING OF APPLICATION OF REGISTRATION OF THE TRUST. SD/- PLACE : AHMEDABAD (JAYAMAL THAKORE ) DATE : 18/12/2007 CHARTERED ACCOUNTANT 4.1. SECOND WRITTEN SUBMISSION (DATED 18/12/2007) WAS ALSO FURNISHED BY THE ASSESSEE, WHICH READS AS UNDER:- AFTER SUBMITTING FURTHER WRITTEN SUBMISSION ON 6-1 2-2007 I HAVE COME ACROSS THE BINDING DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF SHANTAGAURI RAMNIKLAL TRUST & OTHERS V/S. C IT (239 ITR 528) IN WHICH THE HEAD NOTES ARE AS FOLLOWS :- WHENEVER AN APPLICATION IS MADE FOR REGISTRATION UN DER SECTION 12A OF THE INCOME-TAX ACT, 1961, IT IS FOR THE COMM ISSIONER TO MAKE AN ENQUIRY AND REACH HIS CONCLUSION ABOUT THE NATURE OF THE COMMUNITY. HE CANNOT REJECT AN APPLICATION SIMP LICITER ON ABSTRACT DOCTRINE OF BURDEN OF PROOF TO BE ON THE A PPLICANT BY PRESUMING THE SAME TO BE A RELIGIOUS COMMUNITY UNLE SS OTHERWISE PROVED. IN ORDER TO REACH A CONCLUSION WH ETHER A COMMUNITY IS A RELIGIOUS COMMUNITY, THERE MUST BE S OMETHING TO SHOW THAT THE COMMUNITY DENOTES ABIDING BY A PARTIC ULAR FAITH TO BE CONSIDERED AS A MEMBER OF THAT COMMUNITY, OR ITS IDENTIFICATION IS ON ACCOUNT OF PRACTISING OR FOLLO WING CUSTOMS OR PRACTICES. MERELY BY ADHERING TO DISTINCT CULTURAL PRACTICES IN ITS SOCIAL INTERACTIONS MAY NOT BE SUFFICIENT TO TREAT A COMMUNITY, AS A RELIGIOUS COMMUNITY. THE QUESTION ALSO REQUIRES T O BE CONSIDERED WHETHER A CASTE IN ORDER TO BE EXCLUDED FROM THE BENEFIT OF REGISTRATION MUST BE ALSO A RELIGIOUS CA STE OR A PART OF A RELIGIOUS COMMUNITY AS AN IDENTIFIABLE MARK. WITH OUT ANY SUCH MATERIAL, IT IS NOT POSSIBLE TO REACH A CONCRETE CO NCLUSION. WHILE CONSIDERING AN APPLICATION FOR REGISTRATION OF A TR UST, THE COMMISSIONER MUST MAKE A CLEAR DISTINCTION BETWEEN THE ITA NO. 3700/AHD/2007 SHRI SAURASHTRA LOHANA MAHAJAN VS. CIT-II BARODA - 8 - REQUIREMENT OF REGISTRATION AND THE REQUIREMENTS FO R CLAIMING TAX BENEFIT. THE LATTER QUESTION FALLS SQUARELY TO BE CONSIDERED BY THE ASSESSING OFFICER. SECTION 12A NEITHER MAKES RE GISTRATION OF TRUST A CONDITION PRECEDENT FOR CLAIMING BENEFIT UN DER SECTIONS 11 AND 12 READ WITH SECTION 13, NOR DOES REGISTRATION OBVIATE ENQUIRY INTO THE CONDITIONS ENVISAGED UNDER SECTION 13 BY THE ASSESSING OFFICER BEFORE THE TAX BENEFIT CAN BE ALL OWED. IN THIS DECISION THE HON'BLE COURT HAS DISCUSSED TH E PROVISIONS OF SECTION 13(1)(B) AND SECTION 12AA. AS THIS DECISION IS FULLY APPLICABLE TO THE FACTS OF THE APPLICANT'S CASE WE RELY ON THI S DECISION ALONG WITH THE DECISIONS SUBMITTED IN THE PREVIOUS TWO WRITTEN SUBMISSIONS. XEROX COPY OF THE SAID DECISION IS ATTACHED HEREWITH. SD/- PLACE : (JAYAMAL THAKORE ) DATE : 18/12/2007 CHARTERED ACCOUNTANT 5. AFTER GOING THROUGH THE AFORESAID WRITTEN SUBMIS SIONS, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT CIT-II, BARODA PASSED THE ORDER U/S.12AA(1)(B)(I) R.W. PROVISO (II) TO SECTIO N 12A(A) OF THE IT ACT, AFTER CONSIDERING WHATEVER SUBMISSIONS WERE MADE BE FORE HIM. THE VIEW TAKEN BY THE LD.CIT-II BARODA THAT IT IS NOT A FIT CASE FOR REGISTRATION U/S.12AA BE UPHELD. 6. AFTER CONSIDERING THE SUBMISSIONS OF THE LEARNED DEPARTMENTAL REPRESENTATIVE, WE HAVE CAREFULLY GONE THROUGH THE REASONS SUBMITTED BEFORE US. IT IS PERTINENT TO NOTE THAT THE ASSES SEE HAS ALLEGED UNDER SIMILAR CIRCUMSTANCES WITH SIMILAR OBJECTS AFTER EX ACTLY ONE MONTH ON 28/08/2007 OF PASSING OF THE ORDER REJECTING THE RE GISTRATION OF THE ASSESSEE-TRUST, THE CIT HAS GRANTED REGISTRATION TO SHRI (835) TRIVEDI MEWADA KELAVANI MANDAL, DAKOR ON 28/09/2007. KEEPI NG IN VIEW THE TOTALITY OF THE FACTS IN WRITTEN SUBMISSIONS FILED BEFORE US, WE SET ASIDE ITA NO. 3700/AHD/2007 SHRI SAURASHTRA LOHANA MAHAJAN VS. CIT-II BARODA - 9 - THE IMPUGNED ORDER OF THE CIT-II BARODA U/S.12AA(1 )(B)(I) R.W. PROVISO (II) TO SECTION 12A(A) OF THE IT ACT, DIRECT THE AS SESSEE TO FURNISH WHATEVER WRITTEN SUBMISSIONS FILED BEFORE THE SAID COMMISSIONER, WHO WILL EXAMINE THE SAME AND PASS A FRESH ORDER U/S.12 AA(1)(B)(I) R.W. PROVISO (II) TO SECTION 12A(A) OF THE IT ACT, IN AC CORDANCE WITH LAW. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE AP PEAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 26/03/2010. SD/- SD/- ( D.C. AGRAWAL ) ( T.K.SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD; DATED 26 / 03 /2010 T.C. NAIR COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-CONCERNED 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD