Association Of Indian Management Schools, Hyderabad V. Commissioner Of Income Tax(Exemptions), Hyderabad

ITA 7/Hyd/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7062 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Assessment Year: 2019-2020
• Appeal Filed On: 12-01-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SAMUEL NAGDESI
• Keywords: Opportunity of being heard
• Section: 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIRTUAL CONFERENCE) BEFORE S MT. P. MADHAVI DEVI , JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER IT A NO. 7 /H/20 21 ASSESSMENT YEAR: 2 0 1 9 - 20 ASSOCIATION OF INDIAN MANAGEMENT SCHOOLS, HYDERABAD. PAN AAAAA 2599R VS. COMMISSIONER OF INCOME - TAX (EXEMPTIONS), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI SAMUEL NAGDESI REVENUE BY: S HRI ROHIT MUJUMDAR DATE OF HEARING: 1 1 /0 8 /2021 DATE OF PRONOUNCEMENT: 30 /0 8 /2021 O R D E R PER L.P. SAHU, A.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST CIT( E ), HYDERABAD S ORDER DATED 14 / 09 /20 20 FOR AY 20 1 9 - 20 INVOLVING PROCEEDINGS U/S 12AA(1)(B)(II) OF THE INCOME - TAX ACT, 1961; IN SHORT THE ACT ON THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ORDER OF THE LEARNED COMMISSIONER IS ERRONEOUS IN LAW AND FACTS OF THE CASE. I TA NO. 7 / /HYD /20 21 ASSOCIATION OF INDIAN MANAGEMENT SCHOOLS, HYDERABAD. : - 2 - : 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER ERRED IN LAW AND FACTS OF THE CASE IN RE JECTING THE APPLICATION OF THE APPELLANT AND REFUSAL TO GRANT OF REGISTRATION UNDER SECTION 12A OF THE ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER ERRED IN LAW AND FACTS OF THE CASE IN NOT FOLLOWING THE DUE PROCESS OF LAW AS MANDATED BY THE PROVISO TO SECTION 12AA(1)(B)(II) AS SUCH THE IMPUGNED ORDER IS ARBITRARY, UNLAWFUL AND PASSED WITHOUT GIVING THE REASONABLE OPPORTUNITY OF BEING HEARD AS MANDATED BY LAW. 2. WE NOTICE AT THE OUTSET THAT ASSESSEE S INSTANT APPEAL SUFFERS FROM 16 DAYS DELAY IN FILING. TO THIS EFFECT, THE ASSESSEE FILED AN AFFIDAVIT WHEREIN IT WAS AFFIRMED THAT DUE TO THE CLOSURE OF ITS LD. AR DUE TO COVIP PANDEMIC AND CONSEQUENT LOCKDOWN DECLARED BY THE GOVT. OF INDIA AND THE STATE GOVT., CAUSED THE IMPUGNED DELAY IN FILING OF THE INSTANT APPEAL. CASE LAW COLLECTOR LAND ACQUISITION VS MST. KATIJI & ORS, 1987 AIR 1353 (SC) AND UNIVERSITY OF DELHI VS. UNION OF INDIA, CIVIL APPEAL NO. 9488 & 9489/2019 DATED 17 DECEMBER, 2019, HOLD TH AT SUCH A DELAY; SUPPORTED BY COGENT REASONS, DESERVES TO BE CONDONED SO AS TO MAKE WAY FOR THE CAUSE OF SUBSTANTIAL JUSTICE. WE ACCORDINGLY HOLD THAT REVENUE S IMPUGNED DELAY OF 16 DAYS IS NEITHER INTENTIONAL NOR DELIBERATE BUT DUE TO THE CIRCUMSTANCES B EYOND ITS CONTROL. THE SAME STANDS CONDONED. CASE IS NOW TAKEN UP FOR ADJUDICATION ON MERITS. I TA NO. 7 / /HYD /20 21 ASSOCIATION OF INDIAN MANAGEMENT SCHOOLS, HYDERABAD. : - 3 - : 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED - E APPLICATION IN FORM NO. 10A SEEKING REGISTRATION U/S 12A OF THE ACT ON 22/01/2020, WHICH WAS RE JECTED BY THE CIT(E) FOR THE REASONS THAT I) DISCREPANCIES IN THE MEMORANDUM OF ASSOCIATION, II) AMENDMENT CLAUSE IS NOT PROPER, AND III) AIMS AND OBJECTS AND ACTIVITIES ARE NOT CHARITABLE IN NATURE. 4 . AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE THE ITAT . 5 . BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ITS CASE IS SQUARELY COVERED BY THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR AYS 2010 - 11 TO 2017 - 18 IN ITA NO. 46/HYD/2016 AND OTHERS VIDE ITS CONSOLIDATE D ORDER DATED 29/03/2021. A COPY OF THIS ORDER IS PLACED ON RECORD. 6 . THE LD. DR, ON THE OTHER HAND, NEITHER CONTROVERTED THE SUBMISSION OF THE LD. AR NOR BROUGHT ANY CONTRARY DECISION IN THIS REGARD. 7 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD AS WELL AS GONE THROUGH THE ORDERS OF REVENUE AUTHORITIES. IN ASSESSEES CASE CITED SUPRA, THE COORDINATE BENCH HAS HELD AS UNDER: 2. WE NOTICE AT THE OUTSET DURING THE COURSE OF HEARING THAT THE ASSESSEE'S SIX APPEALS EXCEPT ITA I TA NO. 7 / /HYD /20 21 ASSOCIATION OF INDIAN MANAGEMENT SCHOOLS, HYDERABAD. : - 4 - : NO.49/HYD/2016 ARE DIRECTED AGAINST THE LEARNED LOWER AUTHORITIES' ACTION DENYING U/S.11 EXEMPTION FOR WANT OF SECTION 12AA REGISTRATION BY QUOTING HON'BLE APEX COURT'S DECISION IN UP FOREST CORPORATION VS. DCIT [297 ITR 1] (SC) THAT SUCH A REGISTRATION IS A MUST SO AS TO BE ELIGIBLE FOR SECTION 11 RELIEF. THE SOLE EXCEPTION HEREIN IS ASSESSEE'S APPEAL ITA NO.49/HYD/2016 WHEREIN IT HAS CHALLENGED THE DCIT, HQRS, EXEMPTIONS, O/O.CIT(EX), HYDERABAD'S ORDER DT.30 - 11 - 2015 R EADING AS UNDER: 'SUB: APPLICATION FOR GRANT OF REGISTRATION U/S.12A - M/S.ASSOCIATION OF INDIAN MANAGEMENT SCHOOLS, REKHA DELUXE ENCLAVE, PUNJAGUTTA, HYDERABAD - REG. *** YOU HAVE FILED A LETTER DT.15 - 05 - 2015 BEFORE THE CIT(E), HYDERABAD. IT IS MENTIONED THEREIN THAT THE ABOVE SOCIETY IS REGISTERED U/S.12AA OF THE ACT, 1961 BEFORE THE DIT(E)/BANGALORE VIDE NO.AACTS - 718 - 10A - VOL - AI - A665. IT IS ALSO STATED THEREIN THAT TH E SOCIETY WAS SHIFTED TO HYDERABAD SUBSEQUENTLY. AS PER THE APPLICANT SOCIETY, THEY HAVE NOTICED THAT COPY OF THE PROCEEDINGS GRANTING APPROVAL U/S.12AA WAS NOT AVAILABLE IN THEIR RECORDS AND THAT THEY HAVE MADE A REQUEST TO ISSUE A CERTIFIED COPY OF THE S AME BEFORE THE DIT(E), BANGALORE VIDE THEIR LETTER DT.15 - 05 - 2007. THUS, AS PER THE INFORMATION FILED BY THE APPLICANT, IT APPEARS THAT THEY HAVE MISPLACED THE COPY OF REGISTRATION PURPORTED TO HAVE BEEN GRANTED U/S.12AA OF THE ACT. THE ABOVE SOCIETY HAS NO W FILED WHAT IS CALLED BY THEM A CURATIVE APPLICATION IN FORM NO.12A. HOWEVER, THERE IS NO SUCH PROVISION LIKE GRANTING CURATIVE REGISTRATION UNDER THE ACT. UNDER THE CIRCUMSTANCES, THE PRESENT APPLICATION IN FORM NO.10A CANNOT BE ACTED UPON. THIS IS FOR Y OUR INFORMATION'. 3. LEARNED COUNSEL'S ONLY CASE AT THIS STAGE IS THAT THE DCIT DOES NOT HAVE ANY JURISDICTION TO DEAL WITH ITS SECTION 12AA REGISTRATION AND THEREFORE, THE SAME IS NOT SUSTAINABLE IN LAW THEREBY CONFERRING THE ASSESSEE AUTOMATIC REGISTRATION AS IT HAD PRAYED FOR BY WAY OF FILING THE CORRESPONDING APPLICATION. I TA NO. 7 / /HYD /20 21 ASSOCIATION OF INDIAN MANAGEMENT SCHOOLS, HYDERABAD. : - 5 - : 4. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE THAT THE JURISDICTION WHETHER OR NOT TO ACCEPT THE APPLICATION IN S ECTION 12AA PROCESS HAS ONLY BEEN CONFERRED ON THE CIT(E) AS PER THE LEGISLATIVE SCHEME IN THE ACT. 5. THE REVENUE'S NEXT VEHEMENT CONTENTION IS THAT THE ASSESSEE HAS CLAIMED ITSELF TO BE AN ALREADY REGISTERED INSTITUTION U/S.12AA IN BANGALORE AND THERE FORE ITS CURATIVE APPLICATION SEEKING VERY RELIEF IS NOT MAINTAINABLE. WE ARE OF THE VIEW THAT SUCH A COURSE OF ACTION DOES NOT DESERVE TO BE AGREED WITH PER SE. WE NOTICE FROM A PERUSAL OF THE REVENUE'S PAPER BOOK IN PAGES 1 TO 3 THAT THE CIT(E), HYDERABA D HAS FILED HIS CLARIFICATION THAT THE ASSESSEE'S RETURNS/ ACKNOWLEDGME NTS UPTO AY.2005 - 06 BEAR REGISTRATION NUMBER U/S.12A 2B - ACCTS - 718 - 10A - VOL - AI - 0665 WHICH COULD NOT BE TRACED DESPITE THE BEST OF THE EFFORTS MADE FROM THE DEPARTMENTAL AUTHORITIES' SIDE. THE FACT ALSO REMAINS THAT THIS IS NOT THE REVENUE'S CASE THAT THERE HAS BEEN ANY CHANGE IN ASSESSEE'S ACTIVITY UNDERTAKEN ALL ALONG. WE THEREFORE REVERSE THE DCIT'S ORDER UNDER CHALLENGE IN THE INSTANT 12AA REGISTRATION PROCESS FOR WANT OF JURISDICTION AND RESTORE SECTION 12AA ISSUE BACK TO THE CIT(EXEMPTIONS) FOR HIS APPROPRIATE ADJUDICATION AS PER LAW WITHIN THREE EFFECTIVE OPPORTUNITIES OF HEARING. IT IS MADE CLE AR THAT ASSESSEE SHALL BE AT LIBERTY TO FILE ALL THE RELEVANT EVIDENCE NOT ONLY QUA TO ITS ACTIVITIES CARRIED OUT THROUGHOUT BUT ALSO THAT PERTAINING TO THE EXEMPTION RELIEF GRANTED IN THE PRECEDING ASSESSMENT YEARS. THIS ASSESSEE'S APPEAL ITA NO.49/HYD/20 16 IS ACCEPTED FOR STATISTICAL PURPOSE IN ABOVE TERMS. 6. COMING TO ASSESSEE'S SECTION 11 EXEM PTION APPEALS ITA NOS.46, 47 AND 48/HYD/2016, 2137 & 2138/HYD/2018 AND 1158/HYD/2019, WE HOLD THAT THE SAME DESERVE TO BE RESTORED BACK TO THE CIT(A) TO GRANT THE FINAL OUTCOME OF CIT(E)'S ADJUDICATION ON ASSESSEE'S SECTION 12AA REGISTRATION ISSUE SO AS TO AVOID I TA NO. 7 / /HYD /20 21 ASSOCIATION OF INDIAN MANAGEMENT SCHOOLS, HYDERABAD. : - 6 - : MUTUALLY CONTRADICTORY FINDINGS. ORDERED ACCORDINGLY. IT IS MADE CLEAR THAT THE DELAY; IF ANY CALLED IN ALL THIS PROCESS SHALL NOT BE ATTRIBUTABLE TO THE DEPARTMENT AUTHORITIES IN ANY MANNER; WHATSOEVER. 7. THESE ASSESSEE'S APPEALS ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERMS. A COPY OF THIS COMMON ORDER BE PLACED IN THE RESP ECTIVE CASE FILES. 7 .1 RESPECTFULLY FOLLOWING THE ABOVE DECISION, WE REMIT THE ISSUE BACK TO THE FILE OF CIT(E) WITH A DIRECTION TO DECIDE THE APPEAL IN LINE OF THE ABOVE OBSERVATIONS OF THE COORDINATE BENCH. THUS, THE GROUNDS RAISED BY THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, APPE AL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERMS. PRONOUNCED IN THE OPEN COURT ON 30 TH AUGUST , 2021 . SD/ - SD/ - ( P. MADHAVI DEVI ) (L . P . SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDE RABAD, DATED : 30 TH AUGUST , 20 2 1 . K V I TA NO. 7 / /HYD /20 21 ASSOCIATION OF INDIAN MANAGEMENT SCHOOLS, HYDERABAD. : - 7 - : C OPY TO : 1 ASSOCIATION OF INDIAN MANAGEMENT SCHOOLS, 6 - 3 - 668/10/76, 1 ST FLOOR, DURGANAGAR COLONY, PUNJAGUTTA, HYDERABAD 500 0 82 2 CIT(E), 2 ND FLOOR (ANNEX BUILDING), AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD. 3 ITO(E) 1 , HYDERABAD. 4 ITAT, DR, HYDERABAD. 5 GUARD FILE.