Shri Devi Chattushringi Mandir Trust, Pune V. Commissioner of Income-tax - III,

ITA 785/PUN/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2527 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-03-2016
• Assessment Year: misc
• Appeal Filed On: 21-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Bonafide belief
• Section: 80G; 12A; 12AA; 12; 11

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . , ! , # $ BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.785/PN/2014 SHRI DEVI CHATTUSHRINGI MANDIR TRUST, 1, CHATTUSHRINGI TRUST, SENAPATI BAPAT ROAD, SHIVAJINAGAR, PUNE 411 016 PAN NO.AAATD5475G . / APPELLANT V/S CIT-III, PUNE . / RESPONDENT / ASSESSEE BY : NONE / REVENUE BY : SHRI AVADESH KUMAR / ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER 27-02-2014 OF THE CIT-III, PUNE REFUSING REGISTRAT ION U/S.12AA(1)(B) OF THE I.T. ACT. 2. THIS APPEAL WAS FIXED FOR HEARING ON 09-09-2015 BY ISS UE OF NOTICE THROUGH RPAD. ALTHOUGH THE SAME WAS DULY S ERVED (ACKNOWLEDGEMENT PLACED ON RECORD) NONE APPEARED ON BEH ALF OF THE ASSESSEE FOR WHICH THE CASE WAS ADJOURNED TO 09-1 2-2015 BY ISSUE OF FRESH NOTICE. NONE APPEARED ON 09-12-2015 F OR / DATE OF HEARING :09.03.2016 / DATE OF PRONOUNCEMENT: 11.03.2016 2 ITA NO.785/PN/2014 WHICH THE CASE WAS ADJOURNED TO 09-03-2016 BY ISSUE O F ANOTHER NOTICE THROUGH RPAD. THE SAME WAS DULY SERVED ON THE ASSESSEE AND THE ACKNOWLEDGEMENT IS PLACED ON RECORD. HOWEVER, WHEN THE NAME OF THE ASSESSEE WAS CALLED NONE APPEARED ON BEHALF OF THE ASSESSEE. NO APPLICATION SEEKING ADJOURNMENT OF THE CASE IS FILED. THEREFORE, THE MATTER IS BEING DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND A FTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. 3. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER : 1. THE IMPUGNED ORDER PASSED BY THE LEARNED C.LT. BE ING PATENTLY BAD IN LAW, NULL AND VOID AB-INITIO, ARBIT RARY AND UNSUSTAINABLE IN LAW THE SAME MAY PLEASE BE VACATED, A ND THE REGISTRATION U/ S 12AA[1][B] OF THE I.T. ACT 1961 MAY PLEASE BE GRANTED TO THE APPELLANT W.E.F. 01/04/2001 I.E. FRO M THE DATE OF APPLICATION FOR ISSUANCE OF FRESH REGISTRATION CERTIFIC ATE. 2. IT MAY PLEASE BE HELD THAT SINCE THE LEARNED C.I.T . HAS FAILED TO PASS ANY ORDER U/S 12AA [L][B] OF THE I.T. ACT 1961 , WITHIN THE STATUTORY TIME LIMIT OF SIX MONTHS ON THE APPLICATION OF THE APPELLANT FILED ON 11/04/2001, THE REGISTRATION U/S 1 2AA[1][B] OF THE I.T. ACT 1961 IS DEEMED TO HAVE BEEN GRANTED TO THE APPELLANT AND AS A CONSEQUENCE THE LEARNED CI.T. MAY PLEASE BE D IRECTED TO ISSUE THE NECESSARY CERTIFICATE GRANTING REGISTRATION TO THE APPELLANT U/S 12AA OF THE I.T. ACT 1961 AND ALL THE CONSEQUENTIAL RELIEFS IN THE MATTER MAY PLEASE BE GRANTED. 3. THE APPELLANT CRAVES THE PERMISSION TO ADD, AMEND, MODIFY, ALTER, REVISE, SUBSTITUTE, DELETE ANY OR ALL GROUNDS OF APPEAL, IF DEEMED NECESSARY AT THE TIME OF HEARING OF THE APPEAL . 4. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE FILED AN APPLICATION BEFORE CIT-III, PUNE REQUESTING FOR ISSUE OF F RESH REGISTRATION CERTIFICATE U/S.12A ON 06-08-2013. THE LD.CIT HAS REPRODUCED THE CONTENTS OF THE APPLICATION WHICH READ AS UNDER: OUR TRUST IS REGISTERED AT YOUR END SINCE 25 YEARS, HOW EVER THE CERTIFICATE FOR THE SAME IS NOT TRACEABLE AT OUR END AS WELL AS IN YOUR OFFICE. IN CONNECTION WITH THIS WE HAD APPLIED FOR FRESH CERTIFICATE U/S.12(A) OF THE INCOME TAX ACT, 1961 ON 11-04-2001, SINCE THEN NEITHER INCOME TAX OFFICE HAS ISSUED THE FRE SH CERTIFICATE U/S.12A(A) NOR IT HAS DENIED TO ISSUE THE FRESH CERTIFICATE. WE ARE PLEASED TO SUBMIT FOLLOWING DOCU MENTS FOR 3 ITA NO.785/PN/2014 ISSUING A FRESH REGISTRATION CERTIFICATE U/S.12(1) OF TH E INCOME TAX ACT, 1961. OUT TOTAL CAMPUS, LANDSCAPE AND TEMPLE STR UCTURE IS DECLARED AS HISTORICAL MONUMENT AND INCLUDED IN LIST O F HERITAGE BUILDING BY GOVERNMENT. 5. THE APPLICATION IN FORM 10A WAS ACCOMPANIED BY THE (A) COPY OF THE TRUST DEED AND AFFIDAVIT FOR INCLUSION OF CLAUSES , (B) AFFIDAVIT FOR LOSS OF REGISTRATION CERTIFICATE U/S.12A, (C) NOTE O N ACTIVITIES OF THE TRUST FOR LAST 3 YEARS, (D) BANK ACCOUNT D ETAILS, (E) COPY OF BPT/SOCIETY REGISTRATION AND (F) COPY OF INCOME-TA X RETURNS FOR LAST 3 YEARS AND OTHER DOCUMENTS. 6. IN RESPONSE TO THE NOTICE ISSUED BY THE CIT THE AS SESSEE APPEARED BEFORE HIM AND MADE VARIOUS SUBMISSIONS WHICH HA S BEEN NARRATED BY THE CIT IN A CONCISE FORM AND WHICH RE ADS AS UNDER : 'THIS HAS A REFERENCE TO THE ORAL ARGUMENTS ADVANCED IN THE MATTER BY OUR TAX COUNSEL MR. SUNIL GANOO CHARTERED ACCOUNT ANT ON THE PREVIOUS DATE OF HEARING ON 12/02/2014. THE BOARD OF TRUSTEES ARE UNDER THE BONAFIDE BELIEF THAT THE TRUST WAS GRANTED REGISTRATION U/ S 12A OF THE I. T. ACT 1961. SINCE THE SAID CERTIFICAT E WAS NOT TRACEABLE IN THE OFFICE OF THE TRUST, BY AN APPLICATION 11/04/ 2001 OUR TRUST APPLIED TO THE LEARNED CIT-II, PUNE FOR GRANT OF DU PLICATE/ FRESH REGISTRATION U/ S 12A AND ALSO FOR EXEMPTION U/S 80G OF THE ACT 1961. OUR TRUST HAD RECEIVED A COMMUNICATION DT.20/ 07/20 01 FROM THE MUTTER. (COPY ENCLOSED) THEREAFTER THE MATTER WAS HEA RD FROM TIME TO TIME BUT THE TRUST NEVER RECEIVED ANY REGISTRATION CERTIFICATE. IT IS PERTINENT TO NOTE THAT TILL TODAY THE TRUST IN ITS RE TURNS OF INCOME FILED FROM TIME TO TIME HAS CLAIMED THE BENEFITS U/S 11 & 12 OF THE I. T. ACT 1961 AND WHICH CLAIM HAS BEEN ACCEPTED BY THE DEPART MENT WITHOUT ANY DEMUR. THIS SHOWS THAT THE DEPARTMENT HAD GRANTED THE REGISTRATION CERTIFICATE IN PURSUANCE OF ITS APPLICATI ON FILED ON 11/04/2001. DURING THE SCRUTINY ASSESSMENT PROCEEDINGS FOR THE A. Y. 2011-12, THE LEARNED ASSESSING OFFICER HAS DEMANDED REGISTRATION CERTIFICATE U/S 12A OF THE I.T. ACT 1961. SINCE THE REGISTRATION CERTIFICATE APPLIED WAS NOT AVAILABLE IN THE OFFICE OF THE TRUST, ON THE ADVICE OF OUR CONSULTANT, THE TRUST HAS APPLIED FOR GRANT OF REGISTRA TION CERTIFICATE U/S 12A OF THE I. T. ACT, 1961. IN THIS APPLICATION T HE TRUST HA ERRONEOUSLY STATED THAT THE SAID APPLICATION WAS FOR ISSU ANCE OF FRESH CERTIFICATE. BY USING THE PHRASEOLOGY FRESH CERTIFIC ATE THE TRUST 4 ITA NO.785/PN/2014 WANTED TO HAVE IN FACT THE DUPLICATE CERTIFICATE OF THE EARLIER CERTIFICATE IF ANY ISSUED. THE TRUST THEREFORE REQUEST YOU TO PLEASE ISSUE THE DUPL ICATE CERTIFICATE IF ANY ISSUED TO IT IN EARLIER OCCASION. WITHOUT PREJUDICE TO ABOVE, THE TRUST SUBMITS THAT IF NO CERTIFICATE IN PUR SUANCE OF ITS APPLICATION DATED 11/04/2001 IS ISSUED THEN IT IS A CASE OF DEEMED REGISTRATION AND HENCE THE CERTIFICATE TO BE ISSUED N OR BE GIVEN W.E.F. 11/04/2001. 7. AFTER CONSIDERING THE CONTENTS AND THE SUBMISSION OF T HE ASSESSEE THE LD.CIT NOTED THAT THE RECORDS MAINTAINED IN HER OFFICE DOES NOT SHOW THAT AN APPLICATION FOR GRANT OF REGIST RATION U/S.12A WAS RECEIVED FROM THE ASSESSEE PRIOR TO THE PRE SENT APPLICATION. NO CERTIFICATE GRANTING REGISTRATION U/S.12A WAS ISSUED. THEREFORE, SHE WAS OF THE OPINION THAT THE QUEST ION OF ISSUING DUPLICATE CERTIFICATE DOES NOT ARISE. SHE FURTHER NO TED THAT IN RESPONSE TO THE APPLICATION FOR REGISTRATION WITH CIT-II, PUNE ON 11-04-2001 THE CIT-II, PUNE VIDE LETTER DATED 20-07- 2011 REQUESTED THE TRUST TO FURNISH CERTAIN DETAILS IN SU PPORT OF HIS CLAIM. HOWEVER, THERE IS NO RECORD AVAILABLE IN HER OFFICE TO FIND OUT AS TO WHETHER THE ASSESSEE HAS COMPLIED TO SUC H NOTICE. SHE FURTHER NOTED THAT THE AO IN THE ORDER PAS SED U/S.143(3) FOR A.Y. 2011-12 HAS DENIED EXEMPTION U/S.11 SINCE THE ASSESSEE WAS NOT IN POSSESSION OF CERTIFICATE U/S.12A . THE LD.CIT THEREFORE HELD THAT THERE IS NO QUESTION OF ISSUING ANY DUPLICATE CERTIFICATE. 8. AS REGARDS THE SUBMISSION OF THE ASSESSEE THAT IF NO CERTIFICATE IN PURSUANCE TO ITS APPLICATION DATED 11-04-200 1 IS ISSUED, THEN IT IS A CASE OF DEEMED REGISTRATION AND HENCE THE CERTIFICATE TO BE ISSUED NOW TO BE GIVEN W.E.F. 01-04-2001, S HE NOTED THAT THE CONTENTION OF THE ASSESSEE REGARDING DE EMED 5 ITA NO.785/PN/2014 REGISTRATION W.E.F. 01-04-2001 CANNOT BE ACCEPTED IN VIEW O F SECOND PROVISO TO SECTION 12A INSERTED BY THE FINANCE A CT 2007 W.E.F. 01-06-2007. SHE ACCORDINGLY HELD THAT ASSESSEE CAN NEITHER BE ISSUED DUPLICATE CERTIFICATE NOR A FRESH CERTIFICA TE FROM 01-04-2001. 9. AGGRIEVED WITH SUCH ORDER OF THE LD.CIT THE ASSESSEE IS IN APPEAL BEFORE US. 10. WE HAVE PERUSED THE RECORD AND HEARD THE LD. DEPARTMENTAL REPRESENTATIVE. FROM THE ORDER OF THE LD.C IT, IT IS SEEN THAT ASSESSEE HAS MADE AN APPLICATION FOR REGIST RATION TO CIT-II, PUNE ON 11-04-2001. SHE HAS ALSO MENTIONED THA T A COMMUNICATION FROM THE OFFICE OF THE CIT-II, PUNE TO THE ASSESSEE DATED 20-07-2001 WAS RECEIVED BY THE TRUST. THE ORDER OF THE CIT SAYS THAT THE ASSESSEE HAS NOT FURNIS HED THE DETAILS AS CALLED FOR IN THE SAID COMMUNICATION. UNDER THESE CIRCUMSTANCES THE DEPARTMENT CANNOT ABDICATE FROM ITS RESPONSIBILITY STATING THAT THE ASSESSEE HAS NOT MADE AN Y APPLICATION IN HER OFFICE WHICH CAME INTO EXISTENCE IN JUNE 2001. IN ABSENCE OF ANY APPEARANCE BY THE ASSESSEE A ND SUBMISSION OF DETAILS, IT IS NOT VERIFIABLE AT OUR END AS TO WHETHER THE ASSESSEE HAS INFACT PROVIDED ANY DETAILS BEFO RE THE CIT IN RESPONSE TO THE COMMUNICATION RECEIVED FROM THE L D.CIT- II, PUNE. 11. RECENTLY, THE HONBLE SUPREME COURT IN THE CASE O F CIT VS. SOCIETY FOR THE PROMOTION OF EDUCATION, ADVENTURE SPO RT AND CONSERVATION OF ENVIRONMENT HAS HELD THAT NON-DISPO SAL OF AN APPLICATION FOR REGISTRATION BEFORE EXPIRY OF SIX MONTHS AS 6 ITA NO.785/PN/2014 PROVIDED U/S.12AA(3) RESULTS IN DEEMED GRANT OF REGISTRATI ON. HOWEVER, SINCE THE RECORDS DO NOT SHOW THAT THE ASSES SEE HAS COMPLIED TO THE NOTICE ISSUED BY THE LD.CIT-III, PUNE IN RESPONSE TO THE APPLICATION FOR REGISTRATION U/S.12AA, WE RESTORE THE ISSUE TO THE FILE OF THE LD.CIT-III, PUNE FOR DECIDING T HE ISSUE AFRESH IN THE LIGHT OF THE DECISION OF HONBLE SUPREME COURT CITED (SUPRA). NEEDLESS TO SAY THE LD.CIT-III, PUNE SHALL G RANT DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DEC IDE THE ISSUE AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. GROUND S RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATIS TICAL PURPOSES. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11-03-2016. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE ; DATED : 11 TH MARCH, 2016. & '#)! *! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT - I I I, PUNE 4. 5. $ ''(, (, / DR, ITAT, B PUNE; - / GUARD FILE. / BY ORDER , // TRUE COPY // // TRUE COPY // TRU /0 ' ( / SR. PRIVATE SECRETARY (, / ITAT, PUNE