BHAKTI KALA KSHETRA, MUMBAI V. DIT (E), MUMBAI

ITA 7041/MUM/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8606 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 23-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N P SINGH
• Assessee Lawyers: SHAYAM GOPES H DAS
• Keywords: Business income; Search and seizure; Charitable institution; Opportunity of being heard; Condonation of delay; Cancellation of registration
• Section: 12A; 12AA; 11

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO , A M AND SHRI RAVISH SOOD, J M IT A NO. 7041/MUM/2012 ( / ASSESSMENT YEAR: 2009 - 10 ) BHAKTI KALA KSHETRA C /O HARE KRISHNA LANE, JUHU , MUMBAI - 400049 / VS. D IRECTOR OF INCOME - TAX (EXEMPTIONS) 6 TH FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI - 400012 ./ ./ PAN NO. AA A TB1724G ( / APP LICANT ) : ( / RESPONDENT ) / APP LIC ANT BY : SHRI. SHAYAM GOPES H DAS / RESPONDENT BY : SHRI . N.P. SINGH (CIT DR) / DATE OF HEARING : 06.12 .2016 / DATE OF PRONOUNCEMENT : 08 .0 2 .2017 / O R D E R PER RAVISH SOOD , JM : THE PRESENT APPEAL HAD BEEN FILED BY THE ASSESSEE THEREIN ASSAILING THE ORDER PASSED BY THE DIT(EXEMPTION) UNDER SEC. 12AA(3) OF THE INCOME - TAX ACT, 1961 (FOR SHORT ACT), CANCELLING THE REGISTRATION GRANTED TO THE ASSESSEE U/S 12A, W.E.F A.Y. 2009 - 10. THE ASSESSEE HAD RAISED THE FOLLOWI NG GROUNDS OF APPEAL BEFORE US : - 2 1). THE LEARNED DIRECTOR OF INCOME TAX (EXEMPTIONS) HAD ERRED BY NOT PROVIDING A REASONABLE OPPORTUNITY O F BEING HEARD TO THE APPELLANT, WHICH NEEDS TO BE PROVIDED UNDER STIPULATED PROVISIONS AND UNDER THE COURT OF NA TURAL JUSTICE. 2). THE LEARNED D.I.T (EXEMPTIONS) HAS ERRED CANCELLING /WITHDRAWING THE REGISTRATION U/S 12AA W.E.F A.Y. 2009 - 10 BY HOLDING THE VIEW THAT THE ASSESSEE TRUST HAS BECOME NON - GENUINE FOR THE PURPOSE OF SECTION 11 BY : 2.1). CONSIDERING T HE REGULAR ACTIVITIES OF TRUST IN NATURE OF BUSINESS. 2.2).CONSIDERING THE RE NTAL INCOME OF PROPERTY HELD UNDER THE TRUST AS BUSINESS INCOME. 3). THE APPELLANT CRAVES/LEAVE TO ADD, TO AMEND, ALTER, DELETE ANY OF THE ABOVE GRO UNDS OF APPEAL EITHER IN FULL OR IN PART ON OR BEFORE THE FINAL HEARING OF THE APPEAL. 2. THE PRESENT APPEAL FILED BY THE ASSESSEE THEREIN ASSAILING THE ORDER PASSED BY THE DIT(EXEMPTION) UNDER SEC.12AA(3) INVOLVES A DELAY OF 237 DAYS. THE ASSESSEE HAD FILED AN APPLICATION SEEKING CONDONATION OF DELAY IN FILING OF THE APPEAL, WHICH IS SUPPORTED BY AN AFFIDAVIT OF THE CHIEF ACCOUNTANT OF THE ASSESSEE TRUST, VIZ SHRI MAHENDRA KAPADIA. IT IS CLAIMED BY THE ASSESSEE THAT THE ORDER OF THE DIT(EXEMPTION) WAS RECEIVED IN THE MONTH OF JANUARY, 2012/FEBRUARY, 2012 AND THE APPEAL WAS TO BE FILED WITHIN 60 DAYS FROM THE DATE OF RECEIPT OF SUCH ORDER, THAT IS LATEST BY THE FIRST WEEK OF APRIL, 2012. IT IS STATED THAT AS THE CHIEF ACCOUNTANT OF THE 3 ASSESSEE TRUST, VI Z SHRI. MAHENDRA KAPADIA WHO WAS LOOKING AFTER THE ACCOUNTS AND TAXATION MATTERS OF THE ASSESSEE TRUST HAD SUFFERED A BRAIN HEMORRHAGE AND HAD UNDERGONE THREE MAJOR OPERATIONS IN MARCH, 2011, AS A RESULT OF WHICH HE SUFFERED FROM POST - OPERATIVE MEMORY LOSS . THAT IN THE BACKDROP OF THE AFORESAID FACT S, IT IS SUBMITTED BY THE A SSESSEE THAT DUE TO THE AFORESAID POOR STATE OF HEALTH OF THE CHIEF ACCOUNTANT , THE ISSUE AS REGARDS FILING OF THE APPEAL SLIPPED FROM HIS MIND . IT IS STATED THAT IT WAS ONLY WHEN TWO V OLUNTARY SEWAKS OF THE ASSESSEE TRUST APPROACHED MR. KAPADIA, IT WAS ONLY THEN THAT HE RECOLLECTED THE LAPSE ON HIS PART AND IMMEDIATELY TOOK THE REQUISITE STEPS FOR RESTORATION OF THE REGISTRATIONS OF THE TRUST UNDER SEC.80G/12A WHICH HAD BEEN CANCELLED B Y THE DIT(EXEMPTION). IT IS CLAIMED BY THE ASSESSEE THAT THE ACCOUNTANT DUE TO HIS ILL HEALTH COULD NOT EVEN RECOLLECT THE EXACT DATE AS TO WHEN THE ORDER OF THE DIT(EXEMPTION) UNDER SEC.12AA(3) WAS RECEIVED BY HIM. THE ASSESSEE TRUST AFTER APPROACHING ITS COUNSEL IN THE WEEK OF NOVEMBER, 2012, HAD THUS WITHOUT INVOLVING ANY FURTHER DELAY FILED THE PRESENT APPEAL WITH THE TRIBUNAL AS ON 23.11.2012, WHICH BY THE TIME INVOLVED A DELAY OF 237 DAYS. THAT IN SUPPORT OF THE AFORESAID FACTS THE ASSESSEE TRUST HAD FILED ALONGWITH ITS APPLICATION SEEKING CONDONATION OF DELAY, AN AFFIDAVIT OF THE CHIEF ACCOUNTANT SHRI MAHENDRA KAPADIA WHO HAD DEPOSED THAT HE LOOKS AFTER THE ACCOUNTS AND TAXATION MATTER S OF THE MAIN TRUST ISKCON AND ITS SISTERS CONCERN INCLUDING THE A SSESSEE TRUST AND HAD DULY ADMITTED THAT THE DELAY IN FILING OF THE PRESENT APPEAL WAS PROMPTED BY THE REASON OF HIS SERIOUS ILL HEALTH. 2.1 WE HAVE DULY PERUSED THE APPLICATION FILED BY THE ASSESSEE TRUST THEREIN SEEKING CONDONATION OF DELAY IN FILING O F THE APPEAL, AS WELL AS 4 THE AFFIDAVIT OF THE CHIEF ACCOUNTANT, AND HAVE ALSO GONE THROUGH THE MEDICAL REPORTS WHICH HAVE BEEN ENCLOSED BY THE ASSESSEE TRUST TO SUBSTANTIATE THE FACTS AS CLAIMED IN ITS APPLICATION SEEKING CONDONATION OF DELAY. WE ARE OF TH E CONSIDERED VIEW THAT THE DELAY INVOLVED IN FILING OF THE PRESENT APPEAL BEFORE THE TRIBUNAL HAD OCCURRED ON ACCOUNT OF THE ILL HEALTH OF THE CHIEF ACCOUNTANT SHRI. MAHENDRA KAPADIA, AND NOT ON ACCOUNT OF ANY NEGLIGENCE , LAPSES OR LACHES ON THE PART OF TH E ASSESSEE TRUST. THAT IN LIGHT OF THE AFFIDAVIT FILED BY THE CHIEF ACCOUNTANT, THEREIN TAKING UPON HIMSELF THE ENTIRE RESPONSIBILITY LEADING TO THE DELAY IN FILING OF THE PRESENT APPEAL, WE FIND NO REASON TO DOUBT THE GENUINENESS OF THE FACT S AS HAVE BEEN AVERRED BEFORE US. WE ARE OF THE CONSIDERED VIEW THAT THE DELAY INVOLVED IN FILING OF THE PRESENT APPEAL IS ABSOLUTELY INADVERTENT AND NO FAULT CAN BE ATTRIBUTED TO THE ASSESSEE, AND THUS IN ALL FAIRNESS AND IN THE INTEREST OF JUSTICE, TAKING A LIBERAL VI EW THEREIN CONDONE THE DELAY OF 237 DAYS INVOLVED IN FILING OF THE APPEAL. THE APPLICATION FILED BY THE ASSESSEE TRUST S EEKING CONDONATION OF DELAY OF 237 DAYS IN FILING THE PRESENT APPEAL IS THUS ALLOWED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSE SSEE IS A PUBLIC CHARITABLE TRUST ESTABLISHED WITH THE OBJECTS FOR PROMOTING THE DEVELOPMENT OF VARIOUS ARTS AND WAS REGISTERED WITH THE CHARITY COMMISSIONER UNDER BOMBAY PUBLIC TRUST ACT, 1950 ON 20.04.1978. THE ASSESSEE TRUST WAS THEREAFTER REGISTERED UN DER SEC. 12A OF THE INCOME TAX ACT, 1961 (FOR SHORT ACT) WITH THE COMMISSIONER OF INCOME - TAX, BOMBAY CITY - IV, BOMBAY, WAY BACK AS ON 06.11.1979. THE REVENUE AFTER GRANTING REGISTRATION TO THE ASSESSEE TRUST, HAD THEREAFTER ON BEING SATISFIED ABOUT THE GE NUINENESS OF THE ACTIVITIES OF 5 THE ASSESSEE TRUST AND RECORDING SATISFACTION TO THE SAID EFFECT, HAD FROM TIME TO TIME ALSO GRANTED APPROVAL UNDER SEC. 80G(4) OF THE ACT. 4 . THAT A PROPOSAL WAS RECEIVED BY THE DIT(EXEMPTION), MUMBAI , FROM THE OFFICE OF THE ITO(EXEMPTION),1(1),MUMBAI , THEREIN RECOMMENDING CANCELLATION OF REGISTRATION GRANTED TO THE ASSESSEE TRUST UNDER SEC. 12A, FOR THE REASON THAT IT WAS CARRYING ON ACTIVITIES IN THE NATURE OF TRADE, COMMERCE OR BUSINESS ETC, AND THE GROSS RECEIPTS FRO M THE SAME WERE IN EXCESS OF THE STIPULATED LIMIT OF RS. 10 LAC AS STOOD CONTEMPLATED UNDER THE FIRST PROVISO OF SEC. 2(15). THE DIT(EXEMPTION) REFERRING TO THE INCOME & EXPENDITURE A/C OF THE ASSESSEE TRUST THEREIN OBSERVED THAT THE LATTER HAD EARNED A UDITORIUM COLLECTIONS OF RS. 42.43 LACS DURING THE YEAR. THE DIT(EXEMPTION) BEING OF THE VIEW THAT AS THE EARNING OF AUDITORIUM COLLECTIONS WAS IN THE NATURE OF A SYSTEMATIC COMMERCIAL EXPLOITATION OF ITS ASSETS, THEREFORE THE ASSESSEE WOULD BE HIT BY T HE FIRST PROVISO TO SEC. 2(15), AND AS PER THE MANDATE OF LAW IT WOULD BE DEEMED THAT THE ASSESSEE TRUST WAS NOT EXISTING FOR A CHARITABLE PURPOSE. THE DIT(EXEMPTION) IN THE BACKDROP OF HIS AFORESAID OBSERVATIONS THUS CONCLUDED THAT ONCE IT WAS HELD THAT T HE ASSESSEE TRUST WAS NOT FOR CHARITABLE PURPOSE, THEN IT WOULD NO MORE STAND ENTITLED FOR CLAIM OF EXEMPTION UNDER SEC. 11 OF THE ACT. THE DIT(EXEMPTION) THUS BEING OF THE VIEW THAT THE ASSESSEE TRUST HAD BECOME NON - GENUINE FOR THE PURPOSE OF SEC. 11, T HEREFORE PROCEEDED WITH AND VIDE HIS ORDER PASSED UNDER SEC. 12AA(3) , DATED. 28.12.2011 HAD CANCELL ED THE REGISTRATION GRANTED TO THE ASSESSEE TRUST U/S 12A(A) , W.E.F ASSESSMENT YEAR: 2009 - 10. 5 . THAT THE ASSESSEE TRUST BEING AGGRIEVED WITH THE ORDER PASS ED BY THE DIT(EXEMPTION) UNDER SEC. 12AA(3), THEREIN CANCELLING THE 6 REGISTRATION WHICH WAS EARLIER GRANTED TO IT U/S 12A OF THE ACT, HAD THUS CARRIED THE MATTER IN APPEAL BEFORE US. THAT DURING THE COURSE OF THE HEARING OF THE APPEAL , THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE HAD ASSAILED THE ORDER PASSED BY THE DIT(EXEMPTION) UNDER SEC. 12AA(3), FOR REASONS, WHICH ARE CULLED OUT AS UNDER : - (I). THAT THE DIT(EXEMPTION) WHILE CONCLUDING THAT THE ASSESSEE WOULD BE HIT BY THE FIRS T PROVISO OF SEC. 2(15), HAD FAILED TO APPRECIATE THAT THE AUDITORIUM RECEIPTS WERE RECEIVED BY THE ASSESSEE TRUST IN FURTHERANCE OF ITS OBJECTS FOR PROMOTING THE DEVELOPMENT OF VARIOUS ARTS, FOR WHICH IT WAS ESTABLISHED, AND THUS HAD WRONGLY HELD THAT THE Y WERE IN THE NATURE OF SYSTEMATIC COMMERCIAL EXPLOITATION OF ITS ASSETS BY THE ASSESSEE TRUST AND AS SUCH CONSTITUTED A BUSINESS . (II). THAT WITHOUT PREJUDICE TO ABOVE , THE DIT(EXEMPTION) HAD GRAVELY ERRED IN LAW BY CONCLUDING THAT ON BEING HIT BY THE FIRST PROVISO OF SEC. 2(15), IT WOULD BE DEEMED THAT THE ASSESSEE TRUST WAS NO MORE EXISTING FOR A CHARITABLE PURPOSE, WHICH AS PER HIM WOULD LEAD TO CANCELLATION OF ITS REGISTRATION UNDER SEC. 12AA(3). (III).THAT THE DIT(EXEMPTION) HAD FAILED TO APPR ECIATE THAT THOUGH AS PER THE AMENDMENT OF SEC. 12AA(3) BY THE FINANCE (NO.2) ACT, 1996, THE CIT/DIT(E XEMPTION ) STOOD VESTED WITH JURISDICTION TO CANCEL THE REGISTRATION OBTAINED BY AN ASSESSEE U/S 12A, HOWEVER AS THE SAID AMENDMENT WAS APPLICABLE FROM 01. 06.2010 AND THUS APPLIED TO A.Y. 2011 - 12 AND SUBSEQUENT YEARS, THEREFORE NO 7 JURISDICTION COULD HAVE BEEN EXERCISED BY HIM FOR CANCELLING THE REGISTRATION OF THE ASSESSEE U/S 12A , W.E.F A.Y. 2009 - 10. THE LD. A.R IN SUPPORT OF HIS AFORESAID CONTENTIONS HAD RELIED ON CERTAIN CASE LAWS AND AVERRED THAT THE ORDER OF THE DIT(EXEMPTION) PASSED UNDER SEC. 12AA(3), THEREIN CANCELLING THE REGISTRATION GRANTED TO THE ASSESSEE U/S 12A COULD NOT BE SUSTAINED IN THE EYES OF LAW, AND WAS THUS LIABLE TO BE VACATED. T HAT ON THE OTHER HAND THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) HEAVILY RELIED ON THE ORDER OF THE DIT(EXEMPTION) AND SUBMITTED THAT AS THE ASSESSEE TRUST AFTER BEING HIT BY THE FIRST PROVISO OF SEC. 2(15) COULD SAFELY BE HELD AS NO T EXISTING FOR CHARITABLE PURPOSE ANYMORE , THEREFORE THE DIT(EXEMPTION) VIDE HIS ORDER PASSED UNDER SEC. 12AA(3) HAD RIGHTLY CANCELLED THE REGISTRATION THAT WAS GRANTED TO THE ASSESSEE TRUST U/S 12 A . 6 . WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH THE PARTIES, PERU SED THE ORDER OF THE DIT(EXEMPTION), AND THE MATERIAL PLACED ON OUR RECORD. WE FIND THAT T HE ASSESSEE TRUST AS A MATTER OF RECORD WAS ENJOYING THE REGISTRATION UNDER SECTION 12A FOR A PERIOD AS LONG AS 32 YEARS(SUPRA), I.E TILL THE SAME WAS CANCELLED BY TH E DIT(EXEMPTION), VIDE HIS ORDER PASSED UNDER SEC. 12AA(3), DATED. 28.12.2011. THUS IN THE BACKDROP OF THE AFORESAID FACTS, IT CAN SAFELY BE GATHERED THAT FOR A PERIOD OF MORE THAN 32 YEARS, THE REVENUE UNDER THE AFORESAID STATUTORY PROVISIONS HAD BEEN ACK NOWLEDGING THE ASSESSEE AS A CHARITABLE TRUST. T HE DIT(EXEMPTION) REFERRING TO THE INCOME & EXPENDITURE A/C OF THE ASSESSEE TRUST HAD THEREIN OBSERVED THAT THE LATTER HAD EARNED AUDITORIUM COLLECTIONS OF RS. 42.43 LACS DURING THE YEAR. THE DIT(EXEMPTIO N) BEING OF THE VIEW THAT AS THE EARNING OF 8 AUDITORIUM COLLECTIONS WAS IN THE NATURE OF A SYSTEMATIC COMMERCIAL EXPLOITATION OF ITS ASSETS, THEREFORE THE ASSESSEE TRUST WOULD BE HIT BY THE FIRST PROVISO OF SEC. 2(15), AND AS A FALLOUT OF THE SAME, IT WAS TO BE DEEMED THAT THE ASSESSEE TRUST WAS NOT EXISTING FOR A CHARITABLE PURPOSE AND HAD BECOME NON - GENUINE , AND AS SUCH INELIGIBLE FOR CLAIM OF EXEMPTION UNDER SEC. 11 . THUS , IN THE BACKDROP OF HIS AFORESAID OBSERVATIONS, THE DIT(EXEMPTION) HOLDING THAT TH E ASSESSEE TRUST W AS NO MORE EXISTING FOR CHARITABLE PURPOSE, AND AS SUCH HAVING BECOME NON - GENUINE, T HEREFORE , VIDE HIS ORDER PASSED UNDER SEC. 12AA(3) HAD CANCELLED/WITHDR AWN THE REGISTRATION GRANTED TO THE ASSESSEE TRUST, W.E.F ASSESSMENT YEAR: 2009 - 10 . 7 . WE NOW ADVERT TO THE CONTENTIONS OF THE ASSESSEE WHICH HAVE BEEN RAISED BEFORE US IN THE BACKDROP OF THE FINDINGS OF THE DIT(EXEMPTION). WE ARE OF THE CONSIDERED VIEW THAT THOUGH SEC. 2(15) AND SEC. 11 ARE INEXTRICABLY INTERLINKED AND RATHER INTERWOVE N, HOWEVER THE SAME IS TO THE LIMITED EXTENT THAT WHERE THE CASE OF AN ASSESSEE FALLS WITHIN THE SWEEP OF FIRST PROVISO OF SEC. 2(15), THEN THE SAME WOULD LEAD TO EXCLUSION OF THE ACTIVITIES FROM THE DEFINITION OF THE TERM CHARITABLE PURPOSE CONTEMPLATED IN SEC. 2(15), AS A RESULT WHEREOF THE ASSESSEE WOULD STAND DISENTITLED FOR RAISING A CLAIM UNDER SEC.11. HOWEVER, THE SAME CANNOT BE STRETCHED TO LEAD TO AN INTERPRETATION THAT ON BEING HIT BY THE FIRST PROVISO OF SEC. 2(15), THE VERY CONTINUATION OF THE REGISTRATION OF THE ASSESSEE WOULD STAND JEOPARDIZED, AND THE SAME WOULD LEAD TO CANCELLATION/WITHDRAWAL OF REGISTRATION GRANTED TO THE ASSESSEE UNDER SEC. 12A/12AA OF THE ACT. W E FIND SUBSTANTIAL FORCE IN THE CONTENTION OF THE LD. A.R THAT EVEN IF AN A SSESSEE IS HIT BY THE MONETARY LIMITS CONTEMPLATED UNDER SEC. 2(15) W.E.F 01.04.2009, THE SAME WOULD ONLY ADVERSELY AFFECT THE 9 ENTITLEMENT OF THE ASSESSEE TOWARDS CLAIM OF EXEMPTION UNDER SEC. 11 OF THE ACT DURING THE YEAR, HOWEVER THE SAME CANNOT LEAD T O CANCELLATION/WITHDRAWAL OF REGISTRATION GRANTED TO THE ASSESSEE UNDER SEC.12A/12AA OF THE ACT. WE ARE OF T HE CONSIDERED VIEW THAT THE CIRCUMSTANCES WHICH WOULD LE A D TO CANCELLATION OF THE REGISTRATION OF A TRUST ARE LOUDLY SPELT OUT IN SEC. 12AA(3), WH ICH READS AS UNDER: - (3). WHERE A TRUST OR AN INSTITUTION HAS BEEN GRANTED REGISTRATION UNDER CLAUSE (B) OF SUB - SECTION (1) [OR HAS OBTAINED REGISTRATION AT ANY TIME UNDER SECTION 12A AS IT STOOD BEFORE ITS AMENDMENT BY THE FINANCE (NO.2) ACT, 1996 (33 OF 1996)] AND SUBSEQUENTLY THE [PRINCIPAL COMMISSIONER OR] COMMISSIONER IS SATISFIED THAT THE ACTIVITIES OF SUCH TRUST OR INSTITUTION ARE NOT GENUINE OR ARE NOT BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECTS OF THE TRUST OR INSTITUTION, AS THE CASE MAY B E, HE SHALL PASS AN ORDER IN WRITING CANCELLING THE REGISTRATION OF SUCH TRUST OR INSTITUTION: PROVIDED THAT NO ORDER UNDER THIS SUB - SECTION SHALL BE PASSED UNLESS SUCH TRUST OR INSTITUTION HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. 8. WE ARE OF THE CONSIDERED VIEW THAT IN THE ABSENCE OF ANYTHING BEING PROVIDED IN SEC. 12AA(3) THAT THE REGISTRATION GRANTED TO A TRUST UNDER SEC.12A/12AA OF THE ACT WOULD STAND CANCELLED WHERE THE TRUST IS HIT BY THE FIRST PROVISO OF SEC. 2(15), WE ARE THUS UNABLE TO PERSUADE OURSELVES TO SUBSCRIBE TO THE FINDINGS OF THE DIT(EXEMPTION) WHO HAD CONCLUDED TO THE CONTRARY , AND HAD CANCELLED THE REGISTRATION OF THE ASSESSEE TRUST ON THE SAID COUNT. WE ARE NOT OBLIVIOUS OF THE SETTLED POSITION OF LAW THAT WHILE I NTERPRETING THE SCOPE AND GAMUT OF 10 A STATUTORY PROVISION, NO VIOLENCE CAN B E DONE TO ITS PLAIN LITERAL INTERPRETATION IN THE GARB OF GIVING EFFECT TO THE UNDERLYING LEGISLATIVE INTENT. THUS IN CASE IF WE SUBSCRIBE TO THE OBSERVATIONS OF THE DIT(EXEMPTION), WHO WE CAN SAFELY CONCLUDE BY TRANSPOSING AND READ ING INTO SEC. 12AA(3) THE NARROWED DEFINITION OF CHARITABLE PURPOSE AS STANDS CONTEMPLATED IN SEC. 2(15) HA D IN A WHIMSICAL MANNER BROADENED THE SCOPE OF SEC.12AA(3), THEN THE SAME WOULD TANTAMOUNT TO N OTHING LESS THAN ASSUMING UPON OURSELVES THE POWERS OF LEGISLATION, WHICH WE ARE AFRAID STRICTLY AND EXCLUSIVELY FALL WITHIN THE JURISDICTIONAL DOMAIN OF THE LEGISLATURE. THUS TO BE BRIEF AND EXPLICIT, READING THE SCOPE OF SEC. 12AA(3) IN THE MANNER THE SA ME HAD BEEN DONE BY THE DIT(EXEMPTION) WOULD INESCAPABLY LEAD TO DISTORTION OF THE PLAIN MEANING OF THE SAID STATUTORY PROVISION, WHICH WOULD BE IN ABSOLUTE VIOLATION OF THE BASIC RULE OF STRICT LITERAL INTERPRETATION. WE ARE FURTHER OF THE CONSIDERED VIEW THAT THE PURPOSIVE, CONSCIOUS AND INTENTIONAL USAGE OF THE TERM PREVIOUS YEAR IN THE SECOND PROVISO OF SEC. 2(15), THEREIN LEAVES NO SCOPE OF DOUBT THAT ON BEING HIT BY THE PROVISIONS OF SEC. 2(15), THOUGH THE ENTITLEMENT OF THE ASSESSEE TOWARDS CLAIM O F EXEMPTION U/S 11 WOULD STAND ADVERSELY EFFECTED , BUT THAT TOO WOULD ONLY BE RESTRICTED TO THE PREVIOUS YEAR IN WHICH THE ASSESSEE IS FOUND TO HAVE EXCEEDED THE MONETARY PARAMETERS CONTEMPLATED IN SEC. 2(15). THUS TO BE BRIEF AND EXPLICIT, THE ASSESS EE TRUST ON BEING HIT BY SEC. 2(15) WOULD NOT TO LEAD TO JEOPARDIZING OF THE VERY EXISTENCE OF ITS REGISTRATION U/S 12A/12AA. THAT OUR AFORESAID VIEW FINDS SUPPORT FROM SEC. 13(8) AS HAD BEEN MADE AVAILABLE ON THE STATUTE VIDE THE FINANCE ACT, 2012,W.R.E.F 01.04.2009. WE FIND THAT OUR AFORESAID VIEW FURTHER STANDS FORTIFIED BY THE ORDER OF THE ITAT, G BENCH, MUMBAI, IN THE 11 CASE OF: GHATKOPAR JOLLY GYMKHANA,MUMBAI VS. DIT(E), MUMBAI (ITA NO. 882/MUM /2012) , WHEREIN IT HAS BEEN HELD AS UNDER: - 5.2 WE MAY OBSERVE THAT THE TAX EXEMPTION OR BENEFITS ARE GRANTED TO A TRUST OR INSTITUTION BECAUSE ITS ACTIVITIES FALL WITHIN THE DEFINITION OF CHARITABLE PURPOSES AS DEFINED U/S. 2(15) OF THE ACT. UNDER SECTION I2AA(3) THE REGISTRATION OF SUCH TRUST/ INSTITUTION CA N BE CANCELLED IF ITS ACTIVITIES HAVE BECOME NON GENUINE OR IT IS NOT CARRYING OUT ACTIVITIES AS PER OBJECTS OF THE INSTITUTION. ONCE THE ACTIVITIES OF A REGISTERED CHARITABLE INSTITUTION CEASE TO BE CHARITABLE OR DO NOT FALL WITHIN THE PURVIEW OF DEFINITI ON OF 'CHARITABLE PURPOSE' AS PER THE RELEVANT PROVISIONS/ DEFINITIONS GIVEN UNDER THE ACT, THEN, SUCH INSTITUTION WOULD NOT BE ENTITLED TO TAX EXEMPTION OR BENEFITS GRANTED UNDER THE ACT. EVEN DESPITE THE FACT THAT SUCH AN INSTITUTION, OTHERWISE, IS CARRY ING OUT CHARITABLE ACTIVITIES. 5.3 NOW, THE QUESTION BEFORE US IS AS TO WHETHER THE REGISTRATION OF THE ASSESSEE AS A CHARITABLE INSTITUTION IS LIABLE TO BE CANCELLED BECAUSE OF THE REASON THAT THE TOTAL RECEIPTS EXCEEDED THE LIMIT OF RS.10.00 LACS AS PRO VIDED UNDER THE SECOND PROVISO TO SECTION 2(15) OF THE ACT. IN OUR VIEW THE WORD 'PREVIOUS YEAR' MENTIONED IN THE SECOND PROVISO TO SECTION 2(15) IS MORE RELEVANT. IT HAS NOT BEEN MENTIONED THAT THE FIRST PROVISO, WHICH AS OBSERVED IS A RIGOROUS PROVISO, W ILL NOT APPLY IF THE TOTAL RECEIPTS FROM THE CHARITABLE ACTIVITIES EXCEEDS THE LIMIT OF RS.10.00 LACS DURING 'ANY YEAR' RATHER, THE WORD IS 'PREVIOUS YEAR'. THAT MEANS THE BENEFITS WILL NOT BE AVAILABLE TO THE ASSESSEE FOR THE ASSESSMENT YEAR IN WHICH THE GROSS RECEIPTS OF INCOME EXCEEDS THE LIMIT OF RS.10.00 12 LACS, HOWEVER, THAT DOES NOT MEAN THAT SUCH BENEFITS WILL NOT BE AVAILABLE TO THE INSTITUTION FOR ALL OTHER ASSESSMENT YEARS DURING WHICH ITS RECEIPTS DOES NOT CROSS THE LIMIT OF RS.10.00 LACS. THE WOR D 'PREVIOUS YEAR' MENTIONED IN THE SECOND PROVISO MAKES IT LIBERAL TO GET AN INTERPRETATION THAT IT IS NOT THE REGISTRATION OF THE INSTITUTION AS CHARITABLE INSTITUTION WHICH IS AFFECTED, RATHER, IT IS THE ELIGIBILITY OF THE SAID INSTITUTION TO GET TAX EXE MPTION/ BENEFITS WHICH IS AFFECTED THAT TOO FOR THE RELEVANT YEAR DURING WHICH THE GROSS RECEIPTS OF THE INSTITUTIONS CROSS THE LIMIT OF RS.10.00 LACS. THE INSERTION OF SECOND PROVISO HAS NOT MADE THE DEFINITION RESTRICTIVE OR RIGOROUS RATHER WITH THE INSE RTION OF SECOND PROVISO TO SECTION 2(15) OF THE ACT, THE RIGOR OR RESTRICTIVE NATURE OF THE DEFINITION HAS BEEN DILUTED AND HAS BEEN MADE WIDE ENOUGH TO INCLUDE RELATED BUSINESS ACTIVITIES OF THE TRUST/INSTITUTION, AS DESCRIBED THE FIRST PROVISO TO SECTION 2(15) OF THE ACT, ALSO WITHIN THE SCOPE OF DEFINITION OF CHARITABLE PURPOSES. THE LIMIT OF RECEIPT UPTO RS.10.00 LACS DURING THE 'PREVIOUS YEAR' AS MENTIONED IN THE SECOND PROVISO, HAS MADE THE SECTION FURTHER LIBERAL MANDATING TO OBSERVE THE CHARITABLE C HARACTER OF THE CONCERNED TRUST/ INSTITUTION FROM YEAR TO YEAR BASIS. FOR THE PREVIOUS YEAR, DURING WHICH THE GROSS RECEIPT INCOME CROSSES LIMIT OF RS.10.00 LACS, THE TRUST WILL NOT GET EXEMPTION OR BENEFIT OF ITS BEING CHARITABLE IN NATURE DESPITE ITS CAR RYING OUT CHARITABLE ACTIVITIES. HOWEVER, IT WILL GET SUCH BENEFIT IF IT IS REGISTERED AS CHARITABLE INSTITUTION AND INCOME FROM BUSINESS ACTIVITIES, AS MENTIONED IN FIRST PROVISO TO SECTION 2(15), DOES NOT CROSS LIMIT OF RS.10.00 LACS. OUR VIEW IN THIS RE SPECT IS FORTIFIED FROM THE JUDGMENT OF THE CO - ORDINATE BENCH 13 DECISION OF THE TRIBUNAL IN THE CASE OF RAJASTHAN HOUSING BOARD VS. CIT (2012)21 TAXMANN.COM77(JP). 5.4 THUS, THE ACTION OF THE CIT(A) RELYING UPON THE NEWLY INSERTED PROVISO FROM 01.04.2009 I N CANCELLING THE REGISTRATION OF THE TRUST, IN OUR VIEW, IS NOT CORRECT OR JUSTIFIED. THE ONLY EFFECT WILL BE THAT THE ASSESSEE WILL NOT BE ENTITLED FOR EXEMPTION OR TAX BENEFITS WHICH OTHERWISE WOULD HAVE BEEN AVAILABLE TO IT BEING REGISTERED AS CHARITABL E INSTITUTION, FOR THE RELEVANT YEAR DURING WHICH ITS INCOME HAS CROSSED THE LIMIT OF RS.10.00 LACS. SUBJECT TO OUR ABOVE OBSERVATIONS CANCELLATION OF REGISTRATION GRANTED TO ASSESSEE U/S. 12A IS HEREBY SET ASIDE AND SAME IS HEREBY ORDERED TO BE RESTORED . 9. WE ARE THUS OF THE CONSIDERED VIEW THAT NOW WHEN IT IS NEITHER THE CASE OF THE REVENUE THAT THE ASSESSEE TRUST WHICH FOR YEARS HAD BEEN ACKNOWLEDGED AS A HARITABLE TRUST HAD DURING THE YEAR EMBARKED ON TO ANY SUCH NEW ACTIVITIES , WHICH CAN SAFELY BE CHARACTERIZED AS NON - GENUINE ACTIVITIES, NOR IS IT THE CLAIM OF THE REVENUE THAT THE ASSESSEE TRUST IS FOUND TO BE CARRYING OUT ACTIVITIES WHICH ARE NOT IN ACCORDANCE WITH ITS OBJECTS, THEREFORE IN THE ABSENCE OF SATISFACTION BY THE A SSESSEE OF EITHER OF THE AFORESAID PRECONDITION S WHICH FORMS THE FOUNDATION FOR EXERCISING THE JURISDICTION BY HIM FOR CANCELLING THE REGISTRATION OF THE ASSESSEE TRUST UNDER SEC. 12AA(3), IT CAN SAFELY BE CONCLUDED THAT THE DIT(EXEMPTION) HAD WRONGLY CANC ELLED THE REGISTRATION OF THE ASSESSEE TRUST VIDE HIS ORDER PASS ED U/S 12AA(3) OF THE ACT. WE THUS IN LIGHT OF OUR AFORESAID OBSERVATIO N S THUS SET ASIDE THE ORDER PASSED BY THE D IT(EXEMPTION) U/S 12AA(3) AND THEREIN RESTORE THE REGISTRATION OF THE ASSESS EE TRUST. 14 10 . WE NOW ADVERT TO THE CONTENTION OF THE LD. A.R WHO BY PLACING RELIANCE ON THE CBDT CIRCULAR NO. 1/2011, DATED. 06.04.2011, WHICH READS AS UNDER: - ' SECTION 12AA PROVIDES THE PROCEDURE RELATING TO REGISTRATION OF A TRUST OR INSTITUTION ENGA GED IN CHARITABLE ACTIVITIES. SECTION 12AA(3) PREVIOUSLY PROVIDED THAT IF THE ACTIVITIES OF THE TRUST OR INSTITUTION ARE FOUND TO BE NON - GENUINE OR ITS ACTIVITIES ARE NOT IN ACCORDANCE WITH THE OBJECTS FOR WHICH SUCH TRUST OR INSTITUTION WAS ESTABLISHED, T HE REGISTRATION GRANTED UNDER SECTION 12AA CAN BE CANCELLED BY THE COMMISSIONER AFTER PROVIDING THE TRUST OR INSTITUTION AN OPPORTUNITY OF BEING HEARD. THE POWER OF CANCELLATION OF REGISTRATION IS INHERENT AND FLOWS FROM THE AUTHORITY OF GRANTING REGISTRA TION. HOWEVER, JUDICIAL RULINGS IN SOME CASES HAVE HELD THAT THE COMMISSIONER DOES NOT HAVE THE POWER TO CANCEL THE REGISTRATION WHICH WAS OBTAINED EARLIER BY ANY TRUST OR INSTITUTION UNDER PROVISIONS OF SECTION 12A AS IT IS NOT SPECIFICALLY MENTIONED IN SECTION 12AA. THEREFORE, SECTION 12AA HAS BEEN AMENDED TO PROVIDE THAT THE COMMISSIONER CAN ALSO CANCEL THE REGISTRATION OBTAINED UNDER SECTION 12A AS IT STOOD BEFORE AMENDMENT BY FINANCE (NO. 2) ACT, 1996. APPLICABILITY - THIS AMENDMENT HAS BEEN MADE AP PLICABLE WITH EFFECT FROM 1 ST JUNE, 2010 AND SHALL ACCORDINGLY APPLY FOR ASSESSMENT YEAR 2011 - 12 AND SUBSEQUENT ASSESSMENT YEARS. 15 , HAD THEREIN AVERRED THAT AS THE AMENDMENT TO SEC. 12AA(3) THEREIN VESTING JURISDICTION WITH THE CIT/DIT TO CANCEL THE REGI STRATION GRANTED TO A TRUST U/S 12A WAS MADE AVAILABLE ONLY W.E.F 01 ST JUNE, 2010 , WHICH A S CLARIFIED BY THE CBDT IN ITS AFORESAID CIRCULAR IS TO BE MADE EFFECTIVE FOR A.Y. 2011 - 12 AND SUBSEQUENT YEARS ONLY, THEREFORE THE DIT(EXEMPTION) WHILE CANCELLING TH E REGISTRATION GRANTED TO THE ASSESSEE TRUST U/S 12A , W.E.F A.Y. 2009 - 10 , HAD THUS TRAVERSED BEYOND THE SCOPE OF HIS JURISDICTION, AND AS SUCH THE ORDER PASSED BY HIM U/S 12AA(3) CANCELLING THE REGISTRATION OF THE ASSESSEE TRUST CANNOT BE SUSTAINED AND IS LIABLE TO BE VACATED. WE ARE UNABLE TO PERSUADE OURSELVES TO SUBSCRIBE TO THE INTERPRETATION ARRIVED AT BY THE LD. A.R AS REGARDS THE SCOPE AND GAMUT OF THE AMENDMENT TO SEC. 12AA(3) CARRIED OUT VIDE THE FINANCE ACT, 2010. THE SCOPE OF THE AMENDMENT TO SEC . 12AA(3) THEREIN VESTING POWERS WITH THE CIT/DIT TO CANCEL THE REGISTRATION GRANTED TO A TRUST U/S 12A HAD BEEN LOOKED INTO BY THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF : SINGHAD TECHNICAL EDUCATION SOCIETY VS. CIT & ANR. (2012) 343 ITR 23 (BO M), WHEREIN THE HONBLE HIGH COURT HAD HELD AS UNDER: - PARLIAMENT WHILE EMPOWERING THE CIT TO CANCEL REGISTRATION OF A TRUST REGISTERED UNDER S. 12A HAS DELIBERATELY USED THE WORDS OBTAINED REGISTRATION AT ANY TIME UNDER S. 12A . THEREFORE, POWER UN DER S. 12AA(3) CAN BE EXERCISED BY THE CIT IN RESPECT OF A TRUST REGISTERED PRIOR TO 1 ST JUNE, 2010. THE MERE FACT THAT A PART OF THE REQUISITES FOR THE ACTION UNDER S.12AA(3) IS DRAWN FROM A TIME PRIOR TO ITS PASSING NAMELY REGISTRATION AS A CHARITABLE TR UST UNDER S. 12A PRIOR TO 2010 WOULD NOT MAKE THE AMENDMENT RETROSPECTIVE IN OPERATION. THE AMENDMENT DOES NOT TAKE AWAY ANY VESTED RIGHT NOR DOES IT CREATE NEW OBLIGATIONS IN RESPECT OF PAST ACTIONS. 16 ALTERNATIVELY, EVEN IF IT IS CONSTRUED TO BE RETROSPECT IVE, IT CANNOT BE HELD TO BE VIOLATIVE OF ART. 14. THUS IN LIGHT OF THE AFORESAID JUDGMENT OF THE HONBLE HIGH COURT, THE CONTENTION OF THE LD. A.R THAT THE DIT(EXEMPTION) HAD EXCEEDED HIS JURISDICTION BY CANCELLING THE REGISTRATION OF THE ASSESSEE TRUS T U/S 12A , W.E.F A.Y. 2009 - 10, DESPITE THE FACT THAT HE WAS SEIZED OF SUCH JURISDICTION ONLY W .E.F 01 ST JUNE, 2010 , IS FOUND TO BE MISCONCEIVED AND AS SUCH DOES NOT MERIT ACCEPTANCE , IS THUS REJECTED . 11 . WE THUS IN LIGHT OF OUR AFORESAID OBSERVATIONS TH ER E IN SET ASIDE THE ORDER OF THE DIT(EXEMPTION) CANCELLING THE REGISTRATION GRANTED TO THE ASSESSEE TRUST U/S 12A OF THE ACT. WE MAY HOWEVER CLARIFY THAT AS WE HAVE SET ASIDE THE CANCELLATION OF THE REGISTRATION OF THE ASSESSEE TRUST BY THE DIT(EXEMPTION ) VIDE HIS ORDER PASSED UNDER SEC. 12AA(3) , WHICH WAS ASSAILED BEFORE US BY THE ASSESSEE, THEREFORE WE REFRAIN FROM ADJUDICAT ING THE ISSUE AS TO WHETHER THE ACTIVITIES OF THE ASSESSEE TRUST, VIZ COLLECTION OF AUDITORIUM FEES WOULD BE HIT BY THE PROVISION S OF SEC. 2(15), OR NOT, WHICH THUS IS LEFT OPEN , AND THE ASSESSEE SHALL REMAIN AT A LIBERTY TO RAISE AND CONTEST THE SAME BEFORE THE A.O. THUS THE GROUND OF APPEAL NO. 2 IS DISPOSED OF BY US IN TERMS OF OUR AFORESAID OBSERVATIONS, AND AS SUCH IS PARTLY ALLOWED. 12 . THAT AS WE HAD ADJUDICATED THE ISSUE INVOLVED IN THE PRESENT APPEAL ON MERITS, THEREFORE THE GROUND OF APPEAL NO.1 RAISED BY THE ASSESSEE BEFORE US, THEREIN ASSAILING THE N ON - AFFORDING OF REASONABLE OPPO RTUNITY BY THE DIT(EXEMPTION) IS REN DERED INFRUCTUOUS . THE GROUND OF APPEAL NO. 3 SO RAISED BY THE ASSESSEE IS GENERAL IN NATURE 17 AND NOTHING HAS BEEN AVERRED BY THE LD A.R AS REGARDS THE SAME BEFORE US, THEREFORE THE SAME IS DISMISSED AS NOT PRESSED. 13. THE APPEAL OF THE ASSESSEE IS PART LY ALLOWED IN LIGHT OF OUR AFORESAID OBSERVATIONS. ORDER PRO NOUNCED IN THE OPEN COURT ON 08 /02/2017. SD/ - SD/ - ( D.K ARUNAKARA RAO ) ( RAVISH SOOD ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 08 . 02.2017 / COPY OF THE ORDER FORWARD ED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I L E / BY OR DER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 18 IN T HE INCOME TAX APPELLATE TRIBUNA L B BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI RAVISH SOOD, JM I.T.A. NO . 7041 /MUM/201 2 ASSESSMENT YEAR: 200 9 - 10 ) BHAKTI KALA KSHETRA C/O HARE KRISHNA LANE, JUHU MUMBAI 400049 VS. DIRECTOR OF INCOME - TAX (EXEMPTIONS) 6 TH FLOOR PIRAMAL CHAMBERS PAREL, MUMBAI - 400012 ( APPELLANT ) .. ( RESPONDENT ) PAN. : PAN : AA ATB1724G (APPELLANT) BY SHRI T . K. DOCTOR SHRI SHAYAM GOPESH DAS ( RESPONDENT ) BY SHRI N.P. SINGH CORRIGENDUM THE TRIBUNAL HAS PASS ED ORDER IN THIS APPEAL ON 8.2.2017 AND IN THE TITLE OF THE APPEAL, THE NAME OF THE AUTHORIZED REPRESENTATIVE HAS BEEN MENTIONED AS SHRI SHAYAM GOPESH DAS . THE SAME BE READ AS SHRI T. K. DOCTOR , SHRI SHAYAM GOPESH DAS. SD/ - SD/ - ( D. KARU NAKARA RAO ) ( RAVISH SOOD ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI: 29 TH MARCH, 201 7 . 19 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, TRUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 20