Thunchan Memorial Trust, Malappuram V. CIT, Calicut

ITA 535/COCH/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52328 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-12-2011
• Assessment Year: misc
• Appeal Filed On: 10-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAYAPRABHA
• Assessee Lawyers: C R HARISH
• Section: 80G; 12A; 12AA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S.GANESAN (JM) & SHRI SANJAY ARORA (AM) I.T.A.NO. 535/COCH/2009) THUNCHAN MEMORIAL TRUST THUNCHAN PARAMBU TIRUR 676 101 MALAPPURAM VS. CIT, CALICUT (APPLICANT) (RESPONDENT) APPELLANT BY SHRI C.R HARISH RESPONDENT BY MS. VIJAYAPRABHA, JR DR DATE OF HEARING 0 1 - 12 - 2011 DATE OF PRONOUNCEMENT 2 2 - 12 - 2011 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE ADMINISTRATIVE COMMISSIONER DATED 10-09-2009 REFUSI NG TO GRANT RECOGNITION U/S 80G OF THE I.T. ACT. 2. SHRI C.R. HARISH, THE LD.REPRESENTATIVE FOR THE A SSESSEE SUBMITTED THAT THE ADMINISTRATIVE COMMISSIONER REFU SED TO RECOGNIZE 2 THE TRUST U/S 80G ON THE GROUND THAT NO REGISTRATIO N WAS OBTAINED U/S 12A OF THE ACT. ACCORDING TO THE LD.REPRESENTATIVE , THE ASSESSEE HAS FILED AN APPLICATION FOR REGISTRATION U/S 12A BEFO RE THE ITO, WD.(1), TIRUR ON 26-11-2001 AND NO ORDER HAS BEEN PASSED SO FAR. ON A QUERY FROM THE BENCH, AS TO WHO IS THE COMPETENT AUTHORIT Y TO GRANT APPROVAL U/S 12A, THE LD.COUNSEL VERY FAIRLY SUBMIT TED THAT ONLY THE ADMINISTRATIVE COMMISSIONER HAS TO GRANT APPROVAL U /S 12A. HOWEVER, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED TH AT IT IS THE PRACTICE IN THAT PART OF THE STATE TO FILE APPLICATION BEFOR E ITO FOR REGISTRATION U/S 12A OF THE ACT AND THE ITO USED TO FORWARD THE SAME TO THE CONCERNED ADMINISTRATIVE COMMISSIONER FOR FURTHER A CTION. AS PER THE PRACTICE, THE ASSESSEE FILED THE APPLICATION U/S 12 A BEFORE THE ITO HOPING THAT IT WILL BE FORWARDED TO THE CONCERNED A DMINISTRATIVE COMMISSIONER FOR FURTHER ACTION. HOWEVER, UNFORTUNA TELY, THE APPLICATION WAS NOT FORWARDED TO THE CONCERNED ADMI NISTRATIVE COMMISSIONER. 3. ON A QUERY FROM THE BENCH AS TO WHAT IS THE MATE RIAL AVAILABLE ON RECORD TO SUGGEST THAT THE ASSESSEE HAS FILED TH E APPLICATION BEFORE THE ITO, THE LD.COUNSEL SUBMITTED THAT THE ACKNOWLE DGEMENT WAS AVAILABLE IN THE PEON BOOK OF THE CONCERNED CHARTER ED ACCOUNTANT, COPY OF WHICH WAS SHOWN TO THE BENCH. IN THE COPY SHOWN TO THE BENCH, ONLY AN INITIAL WAS THERE IN PLACE OF RECIPI ENT. HOWEVER, FROM THAT INITIAL IT COULD NOT BE MADE OUT AS TO WHO ACT UALLY RECEIVED THE 3 APPLICATION. ON A FURTHER QUERY FROM THE BENCH WHE THER THE APPLICATION COULD BE SAID TO BE PRESENTED BEFORE TH E ITO ON THE BASIS OF COPY OF THE PEON BOOK, THE LD.REPRESENTATIVE SUB MITTED THAT THIS IS ALSO IN PRACTICE IN THAT PART OF THE STATE. 4. ON THE CONTRARY, MS. VIJAYAPRABHA, THE LD.DR SUB MITTED THAT NO OTHER MATERIAL IS AVAILABLE ON RECORD TO SHOW THAT THE ASSESSEE FILED AN APPLICATION FOR REGISTRATION U/S 12A EITHER BEFORE THE ADMINISTRATIVE COMMISSIONER OR BEFORE THE ITO. ACCORDING TO THE L D.DR, THE APPLICATION HAS TO NECESSARILY BE FILED BEFORE THE ADMINISTRATIVE COMMISSIONER AND NOT BEFORE THE ITO. THEREFORE, TH E ADMINISTRATIVE COMMISSIONER HAS RIGHTLY REJECTED THE RECOGNITION U /S 80G OF THE ACT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND HAVE ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. FOR THE PURPOSE OF GRANT OF RECOGNITION U/S 80G THE ASSESSEE HAS TO NE CESSARILY OBTAIN REGISTRATION U/S 12A OF THE ACT. FOR THE ASSESSMEN T YEAR UNDER CONSIDERATION, ADMITTEDLY, THE ASSESSEE WAS NOT REG ISTERED U/S 12A OF THE ACT. THE CONTENTION OF THE LD.REPRESENTATIVE F OR THE ASSESSEE IS THAT AN APPLICATION FOR REGISTRATION U/S 12A WAS FI LED BEFORE THE ITO, WD.1, TIRUR. EVEN THOUGH THE LD.REPRESENTATIVE FOR THE ASSESSEE SHOWED A COPY OF THE PEON BOOK SAID TO BE THE ACKNO WLEDGEMENT BY THE ITO FOR RECEIPT OF THE APPLICATION U/S 12A, IT DOES NOT CONTAIN THE DESIGNATION OF THE OFFICER WHO HAS ACTUALLY INITIAL ED AS A TOKEN OF 4 RECEIPT OF THE APPLICATION. FROM THE COPY OF THE P EON BOOK SHOWN TO THE BENCH WE CANNOT SAY THAT THE ASSESSEE, IN FACT, HAS FILED THE APPLICATION BEFORE THE ITO FOR REGISTRATION U/S 12A OF THE ACT. MOREOVER, SECTION 12AA SPECIFICALLY PROVIDES FOR FI LING OF APPLICATION BEFORE THE COMMISSIONER FOR REGISTRATION U/S 12A OF THE ACT. IF ANY APPLICATION IS RECEIVED BY THE ITO, IT HAS TO BE NE CESSARILY FORWARDED TO THE CONCERNED ADMINISTRATIVE COMMISSIONER, WHO IS E MPOWERED TO GRANT REGISTRATION U/S 12A OF THE ACT. EVEN THOUGH THE ASSESSEE CLAIMS THAT AN APPLICATION U/S 12A HAS BEEN FILED, NO MATERIAL IS AVAILABLE ON RECORD TO SUGGEST THAT THE ASSESSEE, I N FACT, HAS FILED THE APPLICATION FOR REGISTRATION U/S 12A OF THE ACT BEF ORE THE ITO. IN THE ABSENCE OF ANY MATERIAL, WE HAVE TO NECESSARILY CON CLUDE THAT NO APPLICATION WAS FILED BY THE ASSESSEE FOR REGISTRAT ION U/S 12A OF THE ACT. IN THE ABSENCE OF ANY REGISTRATION U/S 12A, T HE ASSESSEE CANNOT BE RECOGNIZED U/S 80G. THEREFORE, WE DO NOT FIND A NY INFIRMITY IN THE ORDER OF LOWER AUTHORITY. WE, THEREFORE, DISMISS T HE APPEAL FILED BY THE ASSESSEE. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND DECEMBER, 2011 SD/- SD/- (SANJAY ARORA) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER ERNAKULAM, DT : 22 ND DECEMBER, 2011 PK/- 5 COPY FORWARDED TO: 1. THUNCHAN MEMORIAL TRUST, THUNCHAL PARAMBU, TIRUR 67 6 101 2. THE CIT,CALICUT 3. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL , COCHIN