Raghavdas Educational & Medical Foundation & Research Centre, Pune V. Commissioner of Income-tax (Exemption),

ITA 780/PUN/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 3012 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 21-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 12A; 12AA; 148; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , , , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVE DI, AM . / ITA NO. 779/PUN/2016 SHREE MARUTI DEVASTHAN, MARUTINAGR, WARGE, PUNE-411 052. PAN :AAFTS3197P ....... / APPELLANT / V/S. THE COMMISSIONER OF INCOME TAX (EXEMPTION), PUNE. / RESPONDENT . / ITA NO. 780/PUN/2016 RAGHAVDAS EDUCATIONAL & MEDICAL FOUNDATION AND RESEARCH CENTRE, MARUTINAGAR, WARGE, PUNE-411 052 PAN : AAATD8864F ....... / APPELLANT / V/S. THE COMMISSIONER OF INCOME TAX (EXEMPTION), PUNE. / RESPONDENT APPELLANT BY : SHRI S. N. PURANIK RESPONDENT BY : SHRI RAJEEV KUMAR / DATE OF HEARING : 26.04.2018 / DATE OF PRONOUNCEMENT : 24.05.2018 2 ITA NO. 779 & 780/PUN/2016 / ORDER PER SUSHMA CHOWLA, JM OUT OF TWO APPEALS, ITA NO.779/PUN/2016 IS FILED B Y ASSESSEE, SHREE MARUTI DEVASTHAN AGAINST THE ORDER OF COMMISSIONER OF INCO ME TAX (EXEMPTIONS), PUNE DATED 10.03.2016 PASSED UNDER SECTION 12AA(1)(B)(I ) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT). ANOTHER APPEAL BEING ITA NO.780/PUN/2016 IS FILED BY THE ASSESSEE, RAGHAVDAS EDUCATIONAL & MEDICAL FOUNDATION & RESEAR CH CENTRE, AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (EXEMPTIONS), PUNE DA TED 10.03.2016 PASSED UNDER SECTION 12AA(1)(B)(I) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT). 2. IN ITA NO.779/PUN/2016, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL. 1. COMMISSIONER OF INCOME TAX (EXEMPTION) HAS ERRE D IN NOT ISSUING CERTIFICATE GRANTING REGISTRATION U/S.12AA IN FORM 12AA FROM YEAR 2002-03, APPELLANT PRAYS TO GRANT THE SAME. 2. WITHOUT PREJUDICE TO GROUND NO.1 ABOVE, CIT EXEM PTION HAS ERRED IN GRANTING REGISTRATION FROM FINANCIAL YEAR 2016-17 A S PER APPLICATION DATE 03/02/2016 AS AGAINST FROM FINANCIAL YEAR 2015-16. 3. APPELLANT PRAYS TO GRANT CERTIFICATE OF REGISTRA TION AT LEAST FOR AND FROM FINANCIAL YEAR AS REFERRED TO IN ORDER U/S 143(3). 4. COMMISSIONER (EXEMPTION) HAS ERRED IN GRANTING R EGISTRATION AS RELIGIOUS TRUST AS AGAINST CHARITABLE AND RELIGIOUS TRUST. 5. APPELLANT PRAYS TO GRANT REGISTRATION AS CHARITA BLE RELIGIOUS TRUST. APPELLANT PRAYS TO ADD AFTER AROUND, MODIFY, CLARIF Y AND/ OR WITHDRAW THE GROUND/S, AS ACCESSION MAY DEMAND. 3. BOTH THE APPEALS CONNECTED TO THE DIFFERENT ASS ESSEE ON SIMILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CO NSOLIDATED ORDER FOR THE SAKE OF 3 ITA NO. 779 & 780/PUN/2016 CONVENIENCE. HOWEVER, IN ORDER TO ADJUDICATE THE IS SUE, REFERENCE IS BEING MADE TO FACTS AND ISSUE IN ITA NO.779/PUN/2016. 4. BRIEFLY IN THE FACTS OF THE CASE, THE ASSESSEE-T RUST WAS ESTABLISHED UNDER TRUST DEED AND WAS REGISTERED WITH THE ASST. CHARIT Y COMMISSIONER, PUNE ON 05.10.1953 VIDE NO.A-576 AND HAD FILED AN APPLICATI ON FOR REGISTRATION UNDER SECTION 12AA OF THE ACT IN FORM NO.10A ON 03.02.2016. THE C IT AFTER CONSIDERING THE MATERIAL ON RECORD GRANTED REGISTRATION TO THE TRUS T FROM FINANCIAL YEAR 2016-17 ONWARDS. THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE COMMISSIONER OF INCOME TAX IN NOT ISSUING THE CERTIFICATE GRANTING REGISTR ATION UNDER SECTION 12AA OF THE ACT FROM FINANCIAL YEAR 2001-02 I.E. IN VIEW OF THE A PPLICATION DATED 25 TH MARCH, 2002. 5. THE LD. AR FOR THE ASSESSEE POINTED OUT THAT IT HAD ORIGINALLY APPLIED FOR REGISTRATION OF THE TRUST UNDER SECTION 12A OF THE ACT VIDE APPLICATION DATED 25 TH MARCH, 2002. HE FURTHER POINTED OUT THAT WHILE COMP LETING ASSESSMENT FOR ASSESSMENT YEAR 2003-04, THE ASSESSING OFFICER VIDE ORDER PASSED UNDER SECTION 143(3) R.W.S. 147/148 OF THE ACT HAD RECORDED REASO N FOR REOPENING (12A REGISTRATION). HOWEVER, THE ASSESSING OFFICER ON S ATISFACTION HAD PASSED ASSESSMENT ORDER STATING THE TRUST TO BE REGISTERED . THE ASSESSEE, HOWEVER, POINTED OUT THAT THE CERTIFICATE OF REGISTRATION WAS NOT WI TH THE ASSESSEE. HENCE, THE APPLICATION DATED 03.02.2016 WAS MADE TO THE COMMIS SIONER WHICH REFERRED TO THE EARLIER APPLICATION DATED 25 TH MARCH, 2002 AND ORDER PASSED UNDER SECTION 143(3) OF THE ACT AND A REQUEST WAS MADE TO GRANT REGISTRATIO N FROM ASSESSMENT YEAR 2002- 03. HOWEVER, THE COMMISSIONER GRANTED REGISTRATION TO THE TRUST W.E.F. FINANCIAL YEAR 2016-17 ONWARDS. THE LD. AR FOR THE ASSESSEE FURTHE R POINTED OUT THAT IN VIEW OF THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT OF IND IA IN THE CASE OF CIT, KANPUR VS. SOCIETY FOR PROMOTION OF EDUCATION, 382 ITR 6 (SC), ONCE THE APPLICATION UNDER SECTION 12A OF THE ACT WAS NOT REJECTED, THEN REGIS TRATION IS DEEMED TO BE GRANTED TO 4 ITA NO. 779 & 780/PUN/2016 THE ASSESSEE-TRUST W.E.F YEAR UNDER WHICH FIRST APP LICATION WAS MADE. IN THIS REGARD, HE FURTHER POINTED OUT THAT THE ASSESSMENT ORDER UN DER SECTION 143(3) R.W.S. 147 OF THE ACT FOR ASSESSMENT YEAR 2003-04 WAS PASSED ON 3 0.12.2010 ASSESSING THE INCOME AT NIL ACCEPTING COMPUTATION UNDER SECTION 1 1 AND 12 OF THE ACT AS IF REGISTRATION WAS GRANTED WHERE THE REASON FOR RE-O PENING ASSESSMENT WAS NON- REGISTRATION. HE FURTHER POINTED OUT BEFORE THE CO MMISSIONER THAT THE APPLICATION WAS MADE ON 03.02.2016 ALONG WITH REQUEST TO PASS A N ORDER IN RELATION TO THE EARLIER APPLICATION MADE. THE COMMISSIONER OF INCOM E TAX HAS FAILED TO CONSIDER THE EARLIER APPLICATION AND GRANTED REGISTRATION W. E.F. FINANCIAL YEAR 2016-17 ONWARDS. 6. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE HA S PLACED RELIANCE ON THE ORDERS OF AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST NON GRANTING OF RE GISTRATION FROM ORIGINAL DATE OF APPLICATION FOR REGISTRATION MADE UNDER SECTION 12A OF THE ACT. IT IS NOT UNDISPUTED FACT THAT THE ASSESSEE IS ENTITLED TO BE REGISTERED UNDER SECTION 12A OF THE ACT. THE ISSUE RAISED BEFORE US IS THE DATE FROM WHICH REGIS TRATION IS TO BE GRANTED TO THE ASSESSEE-TRUST. THE ORDER UNDER SECTION 12AA(1)(B)( I) OF THE ACT DATED 10.03.2016 AS PASSED BY COMMISSIONER PERTAINS TO AN APPLICATIO N FOR REGISTRATION UNDER SECTION 12A OF THE ACT ALONG WITH COVERING LETTER DATED 03. 02.2016, WHEREIN THE REGISTRATION WAS REQUESTED AS PER APPLICATION UNDER SECTION 12A OF THE ACT SUBMITTED ON 25.03.2002. THE SAID APPLICATION ALONG WITH ENCLOS URES IS PLACED AT PAGE 1 TO 5 OF THE PAPER BOOK. A PERUSAL OF THE APPLICATION DATED 03.02.2016 REVEALS THAT AN APPLICATION FOR REGISTRATION UNDER SECTION12A OF TH E ACT WAS FILED ON 25 TH MARCH, 2002 WITH THE COMMISSIONER OF INCOME TAX AND NOTHING HAD BEEN HEARD ON THE SAID APPLICATION TILL DATE. REFERENCE WAS MADE UNDER SEC TION 12AA(2) OF THE ACT WHICH 5 ITA NO. 779 & 780/PUN/2016 STATED THAT EVERY ORDER GRANTING OR REFUSING REGISTRATION UNDE R CLAUSE (B) OF SUB SECTION (1) SHALL BE PASSED BEFORE THE EXPIRY OF SI X MONTHS FROM THE END OF MONTH IN WHICH THE APPLICATION WAS RECEIVED UNDER CLAUSE(A) OF SECTION 12A OF THE ACT . IT WAS FURTHER HELD THAT T ILL DATE NOTHING HAS BEEN HEARD ON THE SAID APPLICA TION AND HENCE REGISTRATION UNDER SECTION 12A(A) OF THE ACT IS DEE MED TO BE GRANTED TO THE TRUST. THE DEEMING PROVISION FOR GRANT OF REGISTRATION HAS BEE N CONFIRMED IN TWO DECISIONS NAMELY, KARNATAKA GOLF ASSOCIATION VS. DIRECTOR OF INCOME TAX (2004) 91 ITD 1 ( BANG) AND BHAGWAD SWARUP SHRI SHRI DEVRAHA BABA MEM ORIAL SHRI HARI PARMARTH DHAM TRUST VS. COMMISSIONER OF INCOME TAX (2007) 17 SOT 281 ( DEL) (SB). IT WAS ALSO HELD THAT FOR A.Y. 2003-04 NOTICE UNDER SECTION 148 OF THE AC T WAS ISSUED AND SERVED BY THE THEN ACIT, CIRCLE 6 ON 12.08.2010. TH E REASON FOR ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT WAS STATED AS THE ASSE SSEE TRUST WAS NOT REGISTERED UNDER SECTION 12AA OF THE ACT. THE ASSESSMENT WAS C OMPLETED UNDER SECTION 143(3) R.W.S.147 ON 30.12.2010. THE ASSESSMENT ORDE R WAS PASSED DEEMING THE ASSESSEE TRUST AS REGISTERED UNDER SECTION 12A, CON SIDERING THE APPLICATION FOR REGISTRATION UNDER SECTION 12A FILED ON 25 TH MARCH, 2002 . THE ASSESSEE MADE REQUEST FOR ISSUING REGISTRATION CERTIFICATE AGAINS T THE APPLICATION DATED 25 TH MARCH, 2002. HE ALSO REQUESTED THAT IN CASE ANY CERTIFICAT E/ORDER/ OR REFUSAL ORDER WAS ALREADY ISSUED OR PASSED, THEN THE SAME MAY BE ISSU ED TO THE ASSESSEE, FOR WHICH COPYING CHARGES OF RS. 50/- WERE PAID BY ASSESSEE A ND CHALLAN WAS ENCLOSED. THIS IS THE FIRST PART OF THE SAID APPLICATION DATED 03. 02.2016. THEREAFTER, THE ASSESSEE, WITHOUT PREJUDICE OF THE SAME AND AS AN ABUNDANT PR ECAUTION FILED DUPLICATE APPLICATION FOR REGISTRATION UNDER SECTION 12A(A) OF THE ACT AND A REQUEST WAS MADE TO ISSUE REGISTRATION UNDER SECTION 12(A) OF THE AC T TO THE TRUST FROM 1 ST APRIL, 2002 AS PER ORIGINAL APPLICATION DATED 25 TH MARCH, 2002. THE ASSESSEE, THEREAFTER, ENCLOSED CERTAIN DOCUMENTS ALONG WITH THE APPLICATION FOR R EGISTRATION. THE COMMISSIONER OF INCOME TAX ON THE BASIS OF SAID APPLICATION HAS GRA NTED REGISTRATION TO THE ASSESSEE TRUST VIDE ORDER DATED 10.03.2016 W.E.F FINANCIAL Y EAR 2016-17 ONWARDS. ONCE THE 6 ITA NO. 779 & 780/PUN/2016 ASSESSEE HAS MADE AN APPLICATION UNDER SECTION 12A OF THE ACT AS ON 25.03.2002 WHICH HAVE NOT BEEN DISPOSED OFF, WOULD IMPLY THAT DEEMED REGISTRATION HAS BEEN GRANTED TO THE ASSESSEE FROM THE YEAR IN WHICH THE APPLICATION HAS BEEN MADE. THUS, COMMISSIONER HAVING NOT CONSIDERED THE EXPLAN ATION OF THE ASSESSEE, HAS ERRED IN PASSING ORDER DATED 10.03.2016 GRANTING RE GISTRATION TO THE ASSESSEE TRUST FROM FINANCIAL YEAR 2016-17 ONWARDS. WITH REGARD TO GRANT OF REGISTRATION FROM THE DATE OF THE APPLICATION FILED BEFORE THE COMMISSION ER, THE LD. AR POINTED OUT THAT PENDING OF THE EARLIER APPLICATION FILED ON 25 TH MARCH, 2002 UNDER SECTION 12A OF THE ACT AND ALSO POINTING THAT SINCE NOTHING WAS HEARD ON THE SAID APPLICATION, REGISTRATION WAS DEEMED TO BE GRANTED TO THE ASSESS EE TRUST UNDER SECTION 12A OF THE ACT. THE COMMISSIONER HAS FAILED TO CONSIDER TH E APPLICATION OF ASSESSEE AND HAS ERRED IN PASSING ORDER GRANTING REGISTRATION TO THE ASSESSEE TRUST FROM FINANCIAL YEAR 2016-17 ONWARDS. IN VIEW OF THE RATIO LAID DO WN BY THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF CIT KANPUR VS. SOCIETY FOR PROMOTION OF EDUCATION (SUPRA.), IF THE ORDER GRANTING OR REJECTING REGISTRATION HAS NO T BEEN PASSED WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH APPLICATION UNDE R SECTION 12A OF THE ACT WAS MADE THEN REGISTRATION IS DEEMED TO BE GRANTED TO T HE ASSESSEE TRUST. ACCORDINGLY, WE DIRECT THE COMMISSIONER OF INCOME TAX TO GRANT R EGISTRATION TO THE ASSESSEE BY A SPEAKING ORDER IN LINE WITH THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT KANPUR VS. SOCIETY FOR PROMOTION OF EDU CATION (SUPRA.) W.E.F. DATE OF FILING OF ORIGINAL APPLICATION UNDER SECTION 12A OF THE ACT I.E. 25 TH MARCH, 2002. THE COMMISSIONER OF INCOME TAX IS DIRECTED TO ISSUE THE CERTIFICATE OF REGISTRATION TO THE ASSESSEE TRUST UNDER SECTION 12AA OF THE ACT, ACCOR DINGLY. 8. BEFORE PARTING, WE MAY REFER ANOTHER ASPECT OF T HE CASE THAT REASONS WERE RECORDED FOR ISSUANCE OF NOTICE UNDER SECTION 148 O F THE ACT RELATING TO ASSESSMENT YEAR 2003-04 WHICH IS PLACED AT PAGE 6 OF THE PAPER BOOK. THE REASON WHICH WAS RECORDED FOR RE-OPENING OF ASSESSMENT WAS NON-GRANT ING REGISTRATION TO THE TRUST. 7 ITA NO. 779 & 780/PUN/2016 THEREAFTER, ASSESSMENT PROCEEDINGS WERE TAKEN UP BY ASSESSING OFFICER AND ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT DATED 30.12.2010 ASSESSING NIL INCOME ACCEPTING COMPUTATI ON OF INCOME UNDER SECTION 11 AND 12 OF THE ACT AS GRANTING DEEMED REGISTRATION. WHERE ASSESSMENT FOR PARTICULAR YEAR HAS BEEN TAKEN UP ON THE ISSUE OF REGISTRATION OF TRUST AND ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE A CT, IT CANNOT BE SAID THAT THE TRUST WAS NOT REGISTERED UNDER SECTION 12AA OF THE ACT. ACCORDINGLY, WE FIND NO MERIT IN THE ORDER OF THE COMMISSIONER OF INCOME TAX DATE D 10.03.2016. AS MENTIONED IN THE ABOVE PARAGRAPH, THE COMMISSIONER OF INCOME TAX IS DIRECTED TO REGISTER THE TRUST W.E.F. THE DATE OF FILING APPLICATION 25.03.2 002 AND ISSUE CERTIFICATE IN THIS REGARD. THE COMMISSIONER OF INCOME TAX SHALL AFFORD REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. ACCORDINGLY, GROUNDS RAISE D BY ASSESSEE ARE ALLOWED. 9. AS FACTS AND ISSUES RAISED IN ITA NO.780/PUN/201 6 ARE IDENTICAL TO ITA NO. 779/PUN/2016, OUR DECISION IN ITA NO.779/PUN/2016 W OULD APPLY MUTATIS-MUTANDIS TO ITA NO.780/PUN/2016. 10. IN THE RESULT, BOTH THE APPEALS OF DIFFERENT A SSESSEE ARE ALLOWED. ORDER PRONOUNCED ON THIS 24 TH DAY OF MAY, 2018. SD/- SD /- (ANIL CHATURVEDI) (SUSHMA CHOWLA) /ACCOUNTANT MEMBER /JUDICIAL MEMBER / PUNE; ! / DATED : 24 TH MAY, 2018 SB 8 ITA NO. 779 & 780/PUN/2016 ! ' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (EXEMPTION), PUNE. 4. '#$ %& , ' %& , ()* , / DR, ITAT, A BENCH, PUNE. 5. $+, -. / GUARD FILE. // TRUE COPY // '/ / BY ORDER, 0 %* /PRIVATE SECRETARY ' %& , / ITAT, PUNE.