M/s. Shelly School Samiti, Uttrakhand V. CIT(E), Lucknow

ITA 5990/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3657 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 04-11-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Charitable institution
• Section: 12A; 12AA; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SH. R.S. SYAL, VICE PRESIDENT AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER ITA NO. 5990/DEL/2015 : ASSTT. YEAR : SHELLY SCHOOL SAMITI KICHHA ROAD, SITARGANJ, U S NAGAR UTTRAKHAND VS CIT(E) INCOME TAX OFFICE, 5, ASHOK MARG LUCKNOW (APPELLANT) (RESPONDENT) PAN NO. AAETA1992P ITA NO. 2881/DEL/2016 : ASSTT . YEAR : SHELLY SCHOOL SAMITI KICHHA ROAD, SITARGANJ, U S NAGAR UTTRAKHAND VS CIT(EXEMPTIONS) HALDWANI UTTRAKHAND (APPELLANT) (RESPONDENT) PAN NO. AABAS3366D ASSESSEE BY : SH. K.V.S.GUPTA, ADV. REVENUE BY : SMT. SIMRAN BHULLAR, CIT- DR DATE OF HEARING : 30 . 0 1 .201 8 DATE OF PRONOUNCEMENT : 31 . 0 1 .201 8 ORDER PER R.S.SYAL, VICE PRESIDENT :- THESE TWO APPEALS BY THE ASSESSEE RELATE TO REFUSAL OF THE REGISTRATION U/S 12AA OF THE INCOME TAX ACT, 19 61 (HEREINAFTER REFERRED TO AS THE ACT). ITA NO. 5990/DEL/2015 ITA NO. 2881/DEL/2016 2 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE APPLIED FOR REGISTRATION U/S 12A OF THE AC T. THE LD. CIT(E) VIDE ORDER DATED 09.05.2013 REJECTED THE ASS ESSEES APPLICATION FOR REGISTRATION U/S 12A BY RELYING ON A REPORT SUBMITTED BY THE INCOME TAX OFFICER, KHATIMA. THE ASSESSEE FILED A FRESH APPLICATION FOR REGISTRATION BEFORE THE LD. CIT(E), WHICH ALSO CAME TO BE DISMISSED VIDE OR DER DATED 03.09.2015 BY OBSERVING THAT THE REGISTRATION WAS ORIGINALLY REFUSED VIDE ORDER DATED 09.05.2013 AND THE ASSESSEE, IF NOT SATISFIED, SHOULD HAVE FILED AN A PPEAL BEFORE THE TRIBUNAL. THE LATER APPLICATION FILED BY THE ASSESSEE WAS TREATED BY THE LD. CIT(E) AS THAT OF R EVIEW, WHICH WAS NOT MAINTAINABLE. THE INSTANT APPEALS HAV E BEEN FILED AGAINST THESE TWO ORDERS DATED 09.05.2013 AND 03.09.2015 RESPECTIVELY. 3. APPEAL FILED BY THE ASSESSEE AGAINST THE ORI GINAL ORDER OF CIT(E) PASSED ON 09.05.2013 IS DELAYED BY 1047 D AYS. THE ASSESSEE HAS FILED AN AFFIDAVIT OF SHRI RAKESH KUMAR AGARWAL, ADVOCATE, ASSERTING THAT THE LD. CIT(E), H ALDWANI, WHO PASSED THE ORDER AGAINST THE ASSESSEE, ADVISED IT NOT TO FILE APPEAL AGAINST THE REJECTION ORDER DATED 09 .05.2013 UNTIL ITS TOTAL INCOME EXCEEDED RS. 1 CRORE AND A F RESH APPLICATION MAY BE FILED AT THAT TIME ALONE AND EXE MPTION WOULD BE ALLOWED AFTER EXAMINING THE APPLICATION AF RESH AS WAS BEING DONE IN OTHER CASES. ITA NO. 5990/DEL/2015 ITA NO. 2881/DEL/2016 3 4. THE LD. AR HAS INVITED OUR ATTENTION TOWARDS CER TAIN ORDERS PASSED BY THE LD. CIT(E) ORIGINALLY REFUSING REGISTRATION AND THEN GRANTING AT A LATER DATE. COP IES OF BOTH SETS OF SUCH ORDERS IN THE CASE OF MAA SARASWA TI CHARITABLE TRUST AND DEV BHOMI SHIKSHAK PRASAR SAMI TI HAVE BEEN PLACED ON RECORD. IT WAS SUBMITTED THAT I T WAS ON THE SIMILAR ADVICE OF THE LD. CIT(E) THAT THE AS SESSEE DID NOT PREFER ANY APPEAL BEFORE THE TRIBUNAL AGAINST T HE FIRST ORDER REFUSING REGISTRATION. ONLY WHEN THE SECOND O RDER DATED 03.09.2015 WAS PASSED REFUSING REGISTRATION O N THE GROUND THAT THE ASSESSEE OUGHT TO HAVE FILED APPEAL BEFORE THE TRIBUNAL AGAINST THE FIRST ORDER REFUSING REGIS TRATION, THE ASSESSEE SWUNG INTO ACTION AND FILED THE APPEAL . CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES INCLUDING THE AFFIDAVIT FILED BY SH. RAKESH KUMAR A GARWAL, ADVOCATE, WHO ATTENDED THE PROCEEDINGS BEFORE THE L D. CIT(E) IN THE FIRST ROUND, WE ARE SATISFIED THAT DE LAY IN PRESENTING THE APPEAL WAS CAUSED DUE TO BONA FIDE REASONS. SUCH A DELAY IS CONDONED AND THE APPEAL IS ADMITTED FOR HEARING. 5. COMING TO THE MERITS, WE FIND THAT THE LD. CI T(E) VIDE ORDER DATED 09.05.2013 REFUSED REGISTRATION SIMPLY ON THE BASIS OF REPORT OF ASSESSING OFFICER, KHATIMA, WHIC H WAS ADMITTEDLY NOT CONFRONTED TO THE ASSESSEE. IT IS WO RTH MENTIONING THAT PURSUANT TO THE IMPUGNED ORDER, THE ITA NO. 5990/DEL/2015 ITA NO. 2881/DEL/2016 4 ASSESSING OFFICER INVOKED THE PROVISIONS OF SECTION 147 FOR THE ASSESSMENT YEAR 2012-13. IN SUCH FRESH ASSESSME NT, THE ASSESSEES CLAIM FOR EXEMPTION HAS BEEN ACCEPTE D VIDE ORDER DATED 03.11.2014 DETERMINING NIL INCOME. NOTI CE FOR SUCH YEAR WAS ISSUED AFTER THE IMPUGNED ORDER. A CO PY OF SUCH ORDER HAS BEEN PLACED ON RECORD. SIMILAR POSIT ION PREVAILS FOR THE ASSESSMENT YEAR 2013-14, WHOSE ORD ER HAS ALSO PLACED ON PAGE 30 OF THE PAPER BOOK. THE ASSES SING OFFICER COMPLETED THE ASSESSMENT AT NIL INCOME FOR THIS YEAR ALSO BY RECORDING THAT INCOME FROM SCHOOLS HAS BEEN APPLIED FOR EDUCATIONAL PURPOSES. THIS ORDER IS DAT ED 02.02.2016. THIS SHOWS THE ASSESSING OFFICER HIMSEL F ACCEPTED DURING THE COURSE OF ASSESSMENT PROCEEDING S, EVEN AFTER PASSING OF THE IMPUGNED ORDER, THAT THE ASSESSEE WAS ENGAGED IN CHARITABLE ACTIVITIES ONLY. THAT BEI NG THE POSITION, WE ARE CONSTRAINED TO UPHOLD THE STAND OF THE REVENUE IN REFUSING REGISTRATION. IN OUR CONSIDERED OPINION AND TAKING INTO ACCOUNT EVEN THE SUBSEQUENT ORDERS PASSED BY ASSESSING OFFICER HIMSELF, THERE REMAINS NO DOUB T THAT THE ASSESSEE IS ENTITLED TO REGISTRATION U/S 12AA. WE, THEREFORE, SET ASIDE THE ORDER DATED 09.05.2013 AND GRANT REGISTRATION TO THE ASSESSEE. 6. AS A CONSEQUENCE OF OUR DECISION, THE LATER A PPEAL REFUSING THE REGISTRATION BECOMES INFRUCTUOUS BECAU SE OF ITA NO. 5990/DEL/2015 ITA NO. 2881/DEL/2016 5 THE ASSESSEE GETTING THE BENEFIT OF REGISTRATION AG AINST THE FIRST ORDER OF THE LD. CIT(E). 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IN I TA NO. 2881.DEL.2016 IS ALLOWED AND APPEAL NO. 5990.DEL.20 15 IS DISMISSED AS INFRUCTUOUS. (ORDER PRONOUNCED IN THE COURT ON 31/01/2018) SD/- SD/- (BEENA A. PILLAI) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT DATED:31/01/2018 *BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO. 5990/DEL/2015 ITA NO. 2881/DEL/2016 6 DATE INITIAL 1. DRAFT DICTATED ON 30/01/2018 2. DRAFT PLACED BEFORE AUTHOR 30/01/2018 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 31/01/2018 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. *