Shri Achalgatch Katchi Visa Oswal Jain Swetaber Jain and Dharmik Permarthik Nyas, V. The CIT,

ITA 789/IND/2007

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1514 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2009
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 22-10-2009
• Assessment Year: misc
• Appeal Filed On: 31-12-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K SINGH
• Assessee Lawyers: A L JAIN; M MANI
• Keywords: Bonafide belief; Retrospective amendment; Reasonable cause
• Section: 12A; 12

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI V.K.GUPTA,A.M. PAN NO. : AAGTS-6962B I.T.A.NO. 789/IND/2007. SHRI ACHALGATCH KACCHI VISA OSWAL JAIN SHWETAMBER JAIN DHARMIK EVAM PAMARTHIK NYAS C/O A.H JAIN & CO. 2/1,DHANWANTARI MARG, INDIRA PRIYADARSHINI SQUARE FREEGANJ, UJJAIN THE COMMISSIONER OF INCOME TAX UJJAIN VS APPELLANT RESPONDENT APPELLANT BY : SHRI M.MANI & A.L. JAIN RESPONDENT BY : SHRI K.K. SINGH, CIT, DR O R D E R PER V.K.GUPTA, AM THIS APPEAL, FILED BY THE ASSESSEE, ARISES OUT OF O RDER OF LD. CIT DATED 29.10.2007. 2 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PER USED THE MATERIAL ON RECORD. 3. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD. CIT IN NOT GRANTING THE REGISTRATION U/S 12 A /12AA W.E.F. 10.02.1992. 4. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE VIDE HIS APPLICATION DATED 17.05.2007 FILED ON 31.05.2007 REQUESTED FOR GRANT OF REGISTRATION U/S 12A W.E.F. 10.02.1993 THE DATE ON WHICH ASSESSEE WA S REGISTERED AS TRUST UNDER THE PROVISION OF PUBLIC TRUST ACT. THE LD. CIT, HOWEVER, GRANTED THE REGISTRATION W.E.F. 1.4.2007 FOR THE RE ASON THAT ASSESSEE ACCOUNTS HAD BEEN AUDITED SINCE BEGINNING REGULARLY , HENCE, IT COULD NOT BE SAID THAT TRUST WAS NOT AWARE OF THE LEGAL P ROVISIONS. AGGRIEVED BY THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LD COUNSEL NARRATED THE FACTS AND CONTENTED THAT THE MEMBERS OF THE MANAGING COMMITTEE WERE UNDER BONAFIE BELIEF THAT REGISTRATION UNDER PUBLIC TRUST ACT WAS SUFFICE AND WHEN THEY CA ME TO KNOW ABOUT THE REQUIREMENT OF SEPARATE REGISTRATION UNDER THE PROVISION OF INCOME TAX ACT 1961, THEY IMMEDIATELY APPROACHED THE LD CO MMISSIONER TO GRANT REGISTRATION TO THE TRUST U/S 12A, HENCE , IT WAS A CASE OF BONAFIED BELIEF I BEING A REASONABLE CAUSE, WHICH RESULTED I NTO SUCH DELAY AND CONSEQUENTLY, THE LD CIT SHOULD HAVE GRANTED REGIST RATION WITH RETROSPECTIVE EFFECT. THE CIT DR, ON THE OTHER HAND , PLACED STRONG RELIANCE ON THE ORDER OF LD. CIT. 6. WE HAVE CONSIDERED THE SUBMISSION MADE BY BOTH T HE SIDES, MATERIAL ON RECORD AND ORDER OF LD. CIT. IT IS NOTE D THAT APPLICATION FOR REGISTRATION U/S 12A HAD BEEN MADE 31.05.2007. IT I S ALSO NOTED THAT IN 3 THE SAID APPLICATION ASSESSEE HAS SOUGHT REGISTRATI ON W.E.F. 10.02.1992. HOWEVER, THE LD COMMISSIONER HAS GRANTED THE REGIST RATION U/S 12A W.E.F. 1.4.2007. AS PER THE PROVISION OF SECTION 12 A(1)(A), AN APPLICATION FOR REGISTRATION HAS TO BE FILED BEFORE THE EXPIRY OF A PERIOD OF ONE YEAR FROM THE DATE OF CREATION OF TRUST OR T HE ESTABLISHMENT OF THE INSTITUTION. AS PER THE 1ST PROVISO TO THIS CLAUSE, THE COMMISSIONER CAN CONDONE THE DELAY IF THERE EXIET SUFFICIENT REASONS AND GRANT THE REGISTRATION FROM THE DATE OF CREATION OF SUCH TRUS T OR, IF THE COMMISSIONER IS NOT SO SATISFIED, THEN, HE CAN GRAN T REGISTRATION FROM THE 1ST DAY OF THE FINANCIAL YEAR IN WHICH THE APP LICATION IS MADE. IT IS ALSO NOTED THAT PROVISIONS OF THIS CLAUSE (A) WERE OPERATIVE TILL 1.06.2007. THEREAFTER, A NEW CLAUSE (AA) HAS BEEN B ROUGHT ON STATUE. SUB-SECTION 2 TO SECTION 12A HAS ALSO BEEN BROUGHT ON STATUE WHICH PROVIDES FOR GRANT OF REGISTRATION FOR THE ASSESSME NT YEAR FOLLOWING THE FINANCIAL YEAR IN WHICH SUCH APPLICATION IS MADE. T HUS, IN OUR VIEW THESE LEGISLATIVE CHANGES HAVE PROMPTED THE ASSESSE E TO MAKE IN SUCH MANNER INSPITE OF GETTING ITS ACCOUNT AUDITED REGUL ARLY SINCE ITS INCEPTION. IN VIEW OF THIS DISCUSSION WE HOLD THAT THE PLEA OF BONAFIDE BELIEF TAKEN BY THE ASSESSEE IS NOT CORRECT AND, TH EREFORE, WE REJECT ALL THE GROUNDS OF THE ASSESSEE. BEFORE PARTING, WE MAY ALSO ADD THAT THERE IS NO MERIT IN CONTENTION OF THE ASSESSEE THAT LD C IT COULD HAVE REFUSED THE REGISTRATION TOTALLY OR COULD HAVE GRANTED REGI STRATION ONLY W.E.F. 10.02.1992 BECAUSE AS PER CLAUSE (II) TO THE 1 ST PROVISO OF CLAUSE (A) OF SUB SECTION 12A(1), THE LD CIT CAN GRANT THE REGIST RATION W.E.F. 1.4.2007, WHICH HE HAS DONE. 4 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED 8. ORDER PRONOUNCED IN THE OPEN COURT ON. SD/- SD/- (JOGINDER SINGH) (V.K.GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED :