NAMINATH JAIN MANDIR TRUST, MUMBAI V. CIT (E), MUMBAI

ITA 4499/MUM/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9981 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 25-01-2017
• Assessment Year: misc
• Appeal Filed On: 29-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'E' BENCH, MUMBAI BEFORE SHRI P K BANSAL, VICE PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.4499 /MUM/2016 SHRI NAMINATH JAIN MANDIR TRUS T VS. COMMISSIONER OF IT (EXEMPTIONS) 33, GROUND FLOOR, PLOT NO. 29 KAMATHIPURA, 8TH LANE MUMBAI 400008 6TH FLOOR, PIRAMAL CHAMBERS PAREL, MUMBAI 400012 PAN AABTN3116H APPELLANT RESPONDENT APPELLANT BY: SHRI BHUPENDRA SHAH RESPONDENT BY: SHRI ANAND MOHAN DATE OF HEARING: 15.06.2017 DATE OF PRONOUNCEMENT: 10.07.2017 O R D E R PER P.K. BANSAL, VICE PRESIDENT THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT (EXEMPTIONS) DATED 28.04.2016 BY WHICH THE CIT HAS DENIED REGISTRATION TO THE ASSESSEE UNDER SECTION 12A OF THE INCOME TAX AC T. 2. THE FACTS RELATING TO THIS APPEAL ARE THAT THE ASSE SSEE APPLIED FOR REGISTRATION UNDER SECTION 12A OF THE INCOME TAX AC T IN FORM NO.10A ON 01.10.2005. THE ASSESSEE TRUST WAS CONSTITUTED BY T HE TRUST DEED DATED 03.02.1967 AND REGISTERED WITH THE ASSISTANT CHARIT Y COMMISSIONER, MUMBAI ON 20.09.1973 VIDE REGISTRATION NO. A-3033. THE CIT (EXEMPTION) SENT A NOTICE TO THE ASSESSEE ASKING FOR CERTAIN DE TAILS ON 17.11.2015 AND AGAIN THE ASSESSEES MANAGING TRUSTEE WAS CALLED UP ON TO ATTEND THE OFFICE ON 10.12.2015. FINALLY ON 20.04.2016 ANOTHER SHOW C AUSE NOTICE WAS ISSUED ASKING AS TO WHY ITS APPLICATION SO FILED SH OULD NOT BE REJECTED. THE ASSESSEE VIDE ITS LETTER DATED 27.04.2016 RELIED ON THE ORDER OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SOCIETY FOR TH E PROMOTION OF EDUCATION IN C.A. NO. 1478 OF 2016 AND CONTENDED THAT IN VIEW OF THE AFORESAID DECISION THERE HAD BEEN DEEMED REGISTRATION AS ORDE R COULD NOT BE PASSED ITA NO. 4499/MUM/2016 SHRI NAMINATH JAIN MANDIR TRUST 2 WITHIN SIX MONTHS AS REQUIRED UNDER SECTION 12A OF THE INCOME TAX ACT. THE CIT (EXEMPTION) DID NOT AGREE WITH THE ASSESSEE AND ULTIMATELY REJECTED THE APPLICATION OF THE ASSESSEE VIDE LETTER DATED 28.04 .2006. 3. WE HEARD THE RIVAL SUBMISSIONS AND GONE THROUGH THE ORDERS OF THE TAX AUTHORITIES BELOW. WE NOTED THAT IN THIS CASE T HE ASSESSEE HAS APPLIED FOR REGISTRATION UNDER SECTION 12A ON 01.10.2015. A S PER THE PROVISIONS OF SECTION 12A(2), THE ORDER FOR GRANTING OR REFUSING REGISTRATION UNDER SECTION 12AA(1)(3) MUST HAVE PASSED BEFORE THE EXPIRY OF SI X MONTHS FROM THE END OF THE MONTH IN WHICH THE APPLICATION HAS BEEN MADE BY THE ASSESSEE FOR REGISTRATION UNDER SECTION 12A. IN THE CASE OF THE ASSESSEE WE NOTED THAT THE CIT (EXEMPTION) DID NOT PASS ANY ORDER TILL 31 ST MARCH, 2016. THE APPLICATION OF THE ASSESSEE FOR REGISTRATION HAS BE EN REJECTED VIDE ORDER DATED 28.04.2016. THIS MEANS THAT NO ORDER FOR GRAN TING OR REFUSING REGISTRATION HAS BEEN PASSED TILL 28 TH APRIL, 2016. THEREFORE, NO ORDER FOR REJECTING REGISTRATION WAS PASSED WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE APPLICATION FOR REGISTRATION WAS RECEIVE, I.E. WITHIN SIX MONTHS FROM 31 ST OCTOBER, 2015. WE HAVE GONE THROUGH ORDER OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SOCIET Y FOR THE PROMOTION OF EDUCATION, ALLAHABAD IN CIVIL APPLICATION NO. 1478 OF 2016. WE NOTED THAT IN THAT CASE THE HON'BLE SUPREME COURT VIDE ITS ORD ER DATED 16.02.2016 PASSED THE FOLLOWING ORDER: - 1. LEAVE GRANTED. 2. THERE IS NO APPEARANCE ON BEHALF OF THE SOLE RES PONDENT DESPITE SERVICE OF NOTICE AND ADJOURNMENT SOUGHT FOR ON A C OUPLE OF OCCASIONS EARLIER. 3. THE SHORT ISSUE IS WITH REGARD TO THE DEEMED REG ISTRATION OF AN APPLICATION UNDER SECTION 12AA OF THE INCOME TAX AC T. THE HIGH COURT HAS TAKEN THE VIEW THAT ONCE AN APPLICATION IS MADE UNDER THE SAID PROVISION AND IN CASE THE SAME IS NOT RESPONDED TO WITHIN SIX MONTHS, IT WOULD BE TAKEN THAT THE APPLICATION IS REGISTERED U NDER THE PROVISION. 4. THE LEARNED ADDITIONAL SOLICITOR GENERAL APPEARI NG FOR THE APPELLANTS, HAS RAISED AN APPREHENSION THAT IN THE CASE 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. ITA NO. 4499/MUM/2016 SHRI NAMINATH JAIN MANDIR TRUST 3 5. WE SEE NO BASIS FOR SUCH AN APPREHENSION SINCE T HAT IS THE ONLY LOGICAL SENSE IN WHICH THE JUDGMENT COULD BE UNDERS TOOD. THEREFORE, IN ORDER TO DISABUSE ANY APPREHENSION, WE MAKE IT C LEAR 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. SUBJECT TO THE ABOVE CLARIFICATION AND LEAVING A LL OTHER QUESTIONS OF LAW OPEN, THE APPEAL IS DISPOSED OF WITH NO ORDER A S TO COSTS. 4. FROM THE ORDER IT IS APPARENT THAT IN CASE AN APPLI CATION MADE UNDER SECTION 12AA IS NOT RESPONDED TO WITHIN SIX MONTHS IT WOULD BE TAKEN THAT THE APPLICATION IS REGISTERED UNDER THE PROVISIONS. IN THAT CASE THE ASSESSEE HAS MADE THE APPLICATION FOR REGISTRATION ON 24.02. 2003. THE SAME WAS NOT RESPONDED WITHIN SIX MONTHS. THEREFORE THE HON'BLE SUPREME COURT TOOK THE VIEW THAT REGISTRATION OF APPLICATION WAS DEEMED TO HAVE TAKEN EFFECT FROM 24.08.2003. FROM THE SAID ORDER OF THE HON'BLE SUPR EME COURT IT IS APPARENT THAT THE APPLICATION FOR REGISTRATION SHOULD HAVE B EEN DISPOSED OFF WITHIN SIX MONTHS WHILE THE PROVISIONS OF SECTION 12AA(2), WHI CH WAS APPLICABLE DURING THE IMPUGNED ASSESSMENT YEAR, TALKS OF PASSING OF T HE ORDER GRANTING OR REFUSING THE REGISTRATION BEFORE THE EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE APPLICATION WAS RECEIVED. WE HAV E ALSO GONE THOUGH THE ORDER OF THE HON'BLE HIGH COURT IN THE CASE REPORTE D IN 372 ITR 222. WE NOTED THAT IN THAT CASE THE ASSESSEE HAS FILED THE APPLICATION FOR REGISTRATION ON JUNE 24, 2003 BUT NO ORDER WAS PASSED BY THE CIT FOR GRANTING OR REFUSING REGISTRATION TO THE ASSESSEE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 12AA(2). THEREFORE THE HON'BLE HIGH COURT TOOK THE VIEW THAT FAILURE TO CONSIDER THE APPLICATION WITH THE SAID PERIOD WOULD DEEMED TO GRANTING OF REGISTRATION. SINCE THE DECISION OF THE HON'BLE SUP REME COURT TALKS OF DEEMED GRANTING OF THE REGISTRATION AFTER THE EXPIRY OF SI X MONTHS, I.E. FROM 24.08.2003 WHICH IS BINDING ON US, WE SET ASIDE THE ORDER OF THE CIT (EXEMPTION) AND DIRECT HIM TO GRANT REGISTRATION TO THE ASSESSEE UNDER SECTION 12AA. EVEN OTHERWISE ALSO WE NOTED THAT THE CIT (EXEMPTION) UNDER PARA 12 OF ITS ORDER HAD REJECTED THE APPLICATION O F THE ASSESSEE DENYING REGISTRATION TO THE ASSESSEE UNDER SECTION 12AA AS IN HIS OPINION THE TRUST IS RELIGIOUS IN NATURE. IN THIS REGARD WE MAY POINT OU T THAT SECTION 12AA DOES NOT PROHIBIT REGISTRATION TO RELIGIOUS TRUSTS RATHE R RULE 17A SPECIFICALLY ITA NO. 4499/MUM/2016 SHRI NAMINATH JAIN MANDIR TRUST 4 PROVIDES THAT APPLICATION UNDER [CLAUSE ( AA ) OF SUB-SECTION (1)] OF SECTION 12A FOR REGISTRATION OF A CHARITABLE OR RELIGIOUS TRUST OR INSTITUTION SHALL BE MADE IN DUPLICATE IN FORM NO. 10A ..... IN VIEW OF THIS SPECIFIC PROVISION UNDER RULE 17A R.W.S. 12A WE SET ASIDE THE ORDER OF THE C IT (EXEMPTION) AND DIRECT HIM TO ISSUE CERTIFICATE TO THE ASSESSEE TRUST GRAN TING REGISTRATION UNDER SECTION 12A WITHIN 30 DAYS FROM THE DATE OR RECEIPT OF THIS ORDER. 3. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JULY, 2017. SD/ - SD/ - (PAWAN SINGH) (P.K. BANSAL) JUDICIAL MEMBER VICE PRESIDENT MUMBAI, DATED: 10 TH JULY, 2017 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT (EXEMPTIONS) 4. THE DR, E BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.