Nava Deesa Mahajan Panjarapole, Dist.Banaskantha V. The DIT(Exemption), Ahmedabad

ITA 741/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5731 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-07-2010
• Assessment Year: misc
• Appeal Filed On: 27-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K MADHUSUDANSR
• Keywords: Retrospective amendment
• Section: 12A; 12AA; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI MUKUL SHRAWAT, JUDICIAL MEMBER AND SHRI N.S.SAINI, ACCOUNTANT MEMBER DATE OF HEARING :9-7-2010 DRAFTED ON: 9-7-2010 ITA NO.741 /AHD/2008 ASSESSMENT YEAR : - NAVA DEESA MAHAJAN PANJARAPOLE, SADAR BAZAR,NAVA DEESA, PALANPUR DIST. BANASKANTHA. VS. DIRECTOR OF INCOME TAX (EXEMPTION), 2 ND FLOOR, VASANT NATURE BUILDING, ASHRAM ROAD, AHMEDABAD. PAN/GIR NO. : AAATN 1612 K (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI TUSHAR HEMANI RESPONDENT BY: SHRI K.MADHUSUDAN,SR.D.R. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE DIRECTOR OF INCOME TAX (EXEMPTION) DATED 19-11-2 007 2. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE FOLLOWS :- 1. LD. DIT HAS ERRED IN LAW AND ON FACTS IN DENYIN G THE REGISTRATION UNDER SECTION 12AA OF THE ACT TO THE APPELLANT WITH EFFECT FROM 22-05-1952. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE DIT OUGHT TO HAVE GRA NTED THE REGISTRATION UNDER SECTION 12AA OF THE ACT TO THE A PPELLANT FROM ITS CREATION/ESTABLISHMENT. 2. LD.DIT HAS ERRED IN LAW AND ON FACTS IN NOT APPR ECIATING THAT THE APPELLANT IS AN INSTITUTION UTILIZING ITS INCOME FOR THE PURPOSE OF GENERAL PUBLIC WELFARE AND ITS ACTIVITIE S ARE - 2 - CHARITABLE IN NATURE AND THEREFORE, REGISTRATION U/ S 12A OF THE ACT OUGHT TO HAVE BEEN GRANTED TO HIM. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE THE ASSES SEE APPLIED VIDE ITS APPLICATION DATED 30-5-2007 FILED BEFORE DIRECTOR O F INCOME TAX (EXEMPTION) ON 31-5-2007 FOR GRANT OF REGISTRATION UNDER SECTION 12A WITH RETROSPECTIVE EFFECT FROM 14-8-1973. THE DIRECTOR OF INCOME TAX (EXEMPTION) THOUGH GRANTED REGISTRATION UNDER SECTION 12A TO THE ASSESSEE IN PURSUANCE TO THE ABOVE APPLI CATION VIDE IMPUGNED ORDER, HOWEVER, THE DIRECTOR OF INCOME TAX (EXEMPTION) GRANTED SUCH REGISTRATION W.E.F. 1-4-2007 ONLY AND HAVE NOT GRANTED THE REGISTRATION FROM RETROSPECTIVE EFFECT AS APPLI ED BY THE ASSESSEE AND HAS REJECTED THE CONDONATION PETITION FILED BY THE ASSESSEE ON THE GROUND AS UNDER:- THE DATE OF CREATION/ESTABLISHMENT OF THE TRUST I S 22.5.1952. SECTION 12A CAME INTO THE STATUTE W.E.F. 01-04-1973 . AS PER PROVISIONS OF SECTION 12A OF THE I.T. ACT, THE ABOV E SAID APPLICATION IN FORM NO.10A WAS REQUIRED TO BE SUBMI TTED TO THIS OFFICE BEFORE THE 1 ST DAY OF JULY,1973 OR BEFORE THE EXPIRY OF A PERIOD OF ONE YEAR FROM THE DATE OF CREATION W HICHEVER IS LATER. IN VIEW OF THE ABOVE PROVISIONS OF LAW THE A PPLICATION FOR REGISTRATION WAS REQUIRED TO BE SUBMITTED DULY COMP LETED IN ALL RESPECT ON OR BEFORE 30-6-1974. HOWEVER, THE ABOVE NAMED APPLICANT HAS FILED APPLICATION ON 31.5.2007, WHICH IS BEYOND THE STATUTORY PERIOD OF 1 YEAR PRESCRIBED BY THE AC T. SINCE ALMOST ALL THE DETAILS AS REQUIRED FOR REGISTRATION UNDER SECTION 12AA HAVE BEEN FILED BY THE ASSESSEE TRUST ALONG WI TH THE APPLICATION IN FORM NO.10A, THE REGISTRATION IS GRA NTED TO THE TRUST WITHOUT CONDONING THE DELAY OF ABOUT 31 YEARS , AS THE TRUST IS REALLY VERY OLD. 4. BEFORE US THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE ARGUED THAT DIRECTOR OF INCOME TAX (EXEMPT ION) REJECTED THE - 3 - CONDONATION PETITION WITHOUT GIVING PROPER OPPORTUN ITY OF HEARING TO THE ASSESSEE AND WITHOUT APPRECIATING THE FULL FACT S AND CIRCUMSTANCES OF THE CASE. IT IS OBSERVED THAT ASSESSEE APPLIED F OR REGISTRATION UNDER SECTION 12A AS EARLY AS ON 14-8-1973 AS EVIDENCED F ROM THE COPY PF FORM NO.10A ON PAGE 2 AND 3 OF THE PAPER BOOK. NO M ATERIAL WAS BROUGHT ON RECORD BY THE REVENUE TOP SHOW THAT THE ABOVE APPLICATION OF THE ASSESSEE WAS REJECTED BY THE REV ENUE BY PASSING AN ORDER. THE ASSESSEE HAS DULY MADE THE APPLICATION F OR REGISTRATION AND THEREAFTER IT WAS THE DUTY OF THE COMMISSIONER TO C ONSIDER THE ASSESSEES APPLICATION AND PASS AN APPROPRIATE ORDE R IN RESPECT OF THE SAME. FURTHER, IT IS OBSERVED FROM PAGE NOS. 6 TO 1 8 OF THE PAPER BOOK THAT THE ASSESSEE IS REGULARLY FILING ITS INCO ME TAX RETURNS FROM THE ASSESSMENT YEAR 1975-76 TO 2007-08. THE ASSESSE ES CONTENTION THAT BENEFIT OF SECTION 11 AND 12 REGULARLY CLAIMED BY IT IN ITS RETURN OF INCOME WAS CONSISTENTLY ALLOWED TO IT BY THE DEP ARTMENT SINCE ASSESSMENT YEAR 1976-77 COULD NOT BE DISPUTED BY TH E LEARNED DEPARTMENTAL REPRESENTATIVE. THE ASSESSEE EXPLAINE D THAT AS THE AMENDMENT WAS BROUGHT IN THE PROVISIONS OF SECTION1 2A BY THE FINANCE ACT 2007 WHEREBY CURTAILING THE POWER OF TH E DIRECTOR OF INCOME TAX (EXEMPTION) TO GRANT REGISTRATION FROM E ARLIER YEARS ON APPLICATION MADE ON OR AFTER 1-6-2007 THEREFORE, TH E ASSESSEE HAD AGAIN APPLIED FOR REGISTRATION ON 31-5-2007 AS AN A BUNDANT PRECAUTION. 5. IN THE ABOVE CIRCUMSTANCES, IN OUR CONSIDERED VI EW AS THE ASSESSEE HAS MADE APPLICATION FOR REGISTRATION ON 1 4-8-1973 THE DIRECTOR OF INCOME TAX (EXEMPTION) WAS NOT JUSTIFIE D IN REJECTING THE CONDONATION PETITION. HOWEVER, THE ISSUE WHICH HAS BEEN RAISED BY - 4 - THE LEARNED DEPARTMENTAL REPRESENTATIVE BEFORE US I S THAT IT IS NOT PRACTICALLY POSSIBLE TO VERIFY THE ACTIVITIES OF TH E ASSESSEE WHICH WERE UNDERTAKEN AS BACK AS 31 YEARS AND THEREFORE, ORDER TO GRANT REGISTRATION NOW WITH EFFECT FROM 14-8-1973 WILL BE VERY DIFFICULT. WE ARE ALIVE TO THIS PRACTICAL DIFFICULTY OF THE DE PARTMENT. IT IS OBSERVED THAT UNDER THE SCHEME OF THE INCOME TAX AC T, AN ASSESSMENT CAN BE RE-OPENED ONLY BEFORE THE EXPIRY OF 6 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE ASSESS EE HAS CONTENDED THAT BENEFIT OF PROVISIONS OF SECTION 11 AND 12 ARE ALREADY ALLOWED TO IT BY THE DEPARTMENT. IN THE CIRCUMSTANCES, IN OUR CONSIDERED OPINION NO GRIEVANCE CAN BE THERE, IF THE REGISTRATION IS G RANTED TO THE ASSESSEE WITH EFFECT FROM 1-4-2007. WE THEREFORE, RESTORE TH IS ISSUE BACK TO THE FILE OF THE DIRECTOR OF INCOME TAX (EXEMPTION) AND DIRECT HIM TO GRANT REGISTRATION TO THE ASSESSEE WITH EFFECT FROM 1-4-2007 AFTER VERIFICATION AS PER LAW. THEREFORE, THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED IN THE MANNER INDICATED ABOVE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED AS ABOVE. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 16TH DAY OF JULY, 2010. SD/- SD/- (MUKUL SHRAWAT ) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; ON THIS 16TH DAY OF JULY, 2010 PATKI - 5 - COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)- 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 9-7-2010 2. DRAFT PLACED BEFORE AUTHORITY 9-7-2010 3. DRAFT PROPOSED & PLACED 9-7-2010 JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 16-7-2010 6. KEPT FOR PRONOUNCEMENT ON 16-7-2010 7. FILE SENT TO THE BENCH CLERK 16-7-2010 8. DATE ON WHICH FILE GOES TO THE 9. DATE OF DISPATCH OF ORDER