Indira Gramin Swayamsevi Aspatal Samiti Trust., Jaunpur V. Commissioner of Income-Tax, Faizabad

ITA 9/LKW/2012

• Counselvise Citation: 923714 RSA 2012
• Duration Of Justice: 1 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-06-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 06-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 80G; 12AA; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NOS.09 & 10/LKW/2012 INDIRA GRAMIN SWAYAMSEVI ASPATAL SAMITI TRUST MUN G RA, BADSHAH P UR, JAUN P UR V. CIT FAIZABAD ( A PP ELLANT ) ( RES P ONDENT ) APPELLANT BY: NONE RES P ONDENT B Y :SHRI. ALOK MITRA, D.R. DATE OF HEARING: 07.06.13 DATE OF PRONOU NCEMENT: 07.08.13 O R D E R PER SUNIL KUMAR YADAV: THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX DENYING REGISTRATION UNDER SECTION 12AA OF THE INCOME-TAX ACT, 1961 (HEREINA FTER CALLED IN SHORT THE ACT') AND APPROVAL UNDER SECTION 80G OF THE ACT. 2. DURING THE COURSE OF HEARING OF THE APPEALS, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENT ION THAT THE LUCK NOW BENCH OF THE TRIBUNAL HAS PASSED A CONSOLIDATED ORDER IN THE APPEALS FILED BY THE ASSESSEE AGAINST DENIAL OF REGISTRATI ON UNDER SECTION 12 AA OF THE ACT AND APPROVAL UNDER SECTION 80G OF THE ACT IN ITA NO. 836 & 837/LUC/2008 VIDE ORDER DATED 16.1.2009 DIRECTING THE LD. CO MMISSIONER OF IN COME-TAX TO RE- :-2-: EXAMINE THE CLAIM OF TH E ASSESSEE FOR REGISTRATION UNDER SECTION 12AA OF THE ACT AND APPROVAL UNDER SECTION 80G OF THE ACT INDEPENDENTLY IN ACCORDANCE WITH LAW AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. BUT THE LD. CO MMISSIONER OF INCOME-TAX DID NOT PASS ANY ORDER WITHIN THE PERIOD OF SIX MONTHS AS PRESCRIBED UNDER SECTION 12AA(2) OF THE ACT AND BOTH THE ORDERS WERE PASSED BY THE LD. COMMI SSIONER OF INCOME- TAX ON 31.10.2011 AFTER MORE THAN 1 YE ARS. SINCE THE LD. COMMISSIONER OF INCOME-TAX HAS NOT PASSED THE OR DER WITHIN THE PRESCRIBED PERIOD, REQUEST FOR REGISTRATION UNDER SECTION 12AA OF THE ACT AND APPROVAL SOUGHT UNDER SECTION 80G OF THE ACT ARE DEEMED TO HAVE BEEN GRANTED. IN SUPPORT OF HIS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE UPON THE ORDER OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BHAGWAD SWARUP SHRI SHRI DEVRAHA BABA MEMORI AL SHRI HARI PARMARTH DHAM TRUST VS. CIT [2008] 111 ITD 175 (DELHI) (SB) AND THE J UDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SOCIETY FOR THE PROMOTION OF EDUCATION ADVENTURE SPORT & CONSERVATI ON OF ENVIRONMENT VS. CIT & OTHERS [2008] 216 CTR 167, IN WHICH IT HA S BEEN HELD THAT WHERE THE LD. COMMISSIONER OF INCOME-TAX DOES NOT DECIDE THE MATTER ONE WAY OR THE OTHER WITHIN SIX MONTHS AFTER THE MATTER IS RESTORED TO HIM, REGISTRATION SHOULD BE DEEMED TO HA VE BEEN GRANTED. 3. THE LD. D.R., SHRI. ALOK MITRA, ON THE OTHER HAND, HAS STRONGLY REFUTED THE CONTENTIONS OF THE LD. COUNSEL FOR TH E ASSESSEE AND SUBMITTED THAT THE TIME LIMIT IS PRESCRIBED ONLY FO R DISPOSAL OF THE A PPLICATION FILED BY THE ASSESSEE FOR GRANT OF REGISTRATION UNDER SECTION 12AA OF THE ACT. NOWHERE IT HAS BEEN MENTION ED SPECIFICALLY THAT IF THE LD. COMMISSIONER OF INCOME-TAX FAILED TO DISPOS E OF THE APPLICATION, RE GISTRATION IS DEEMED TO HAVE BEEN GRANTED. THER EFORE, IN THE ABSENCE OF SPECIFIC PROVISION, IT CANNOT BE PRESUMED THAT REGISTRATION IS DEEMED TO HAVE BEEN GRANTED IF :-3-: THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX IS NOT PASSED WITHIN A PERIOD OF SIX MONTHS FROM THE RECE IPT OF THE ORDER OF THE TRIBUNAL. 4. HAVING HEARD THE RIVAL SUBMISSION S AND FROM A CAREFUL PERUSAL OF RECORD, WE FIND THAT UNDISPUTEDLY THE TRIBUNAL HAS RESTORED THE MATTER IN THE FIRST ROUND OF APPEAL VIDE ITS ORDER DATED 16.1.2009 TO THE LD. COMMISSIONER OF INCOME-TAX WITH A DI RECTION TO DISPOSE OF THE REQUEST FOR REGISTRATION UNDER SECTION 12AA OF TH E ACT AND APPROVAL UNDER SECTION 80G OF THE ACT AND THE LD. COMMISSIONER OF INCOME-TAX HAS PASSED THE ORDERS ON 31.10.2001. UNDENIABLY THESE OR DERS OF THE LD. COMMISSIONER OF INCOME-TAX DENYING REGISTRATION UN DER SECTION 12AA OF THE ACT AND APPROVAL UNDER SECTION 80G OF THE ACT WERE PASSED AFTER A PERIOD OF SIX MONTHS FROM THE DATE OF RECEIPT OF THE ORDER OF THE TRIBUNAL. WE HAVE CAREFULLY EXAMINED THE ORDER OF THE SP ECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BHAGWAD SWARUP SHRI SHRI DEVRAHA BABA MEMO RIAL SHRI HARI PARMARTH DHAM TRUST VS. CIT (SUPRA) AN D THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF SOCIETY FOR THE PROMOTION OF EDUCATION ADVENTURE SPORT & CONSERVATION OF ENVIRONMENT VS . CIT & OTHERS (SUPRA) AND WE FIND THAT THEIR LORDSHIPS OF THE JURISDIC TIONAL HIGH COURT HAVE, INTER ALIA, OBSERVED AS FOLLOWS:- THE APEX COURT HAS ALSO AP PLIED DOCTRINE OF PURPOSIVE INTERPRETATION IN FISCAL STATUTES THAT WOULD BE EVIDENT FROM ITS DECISION IN CIT VS. ANJUM M.H. GHASWALA & ORS. (2001) 171 CTR (SC) 1: JT 2001 (9) SC 61. CONSIDERING THE PROS AND CONS OF THE TWO VIEWS, WE ARE OF THE OPINION THAT BY FAR THE BETTER INTERPRETATION WOULD BE TO HOLD THAT THE EFFECT OF NON-CONSIDERATION OF THE APPLICATION FOR REGISTRATION WITHIN THE TIME FIXED BY SECTION 12AA(2) WOULD BE A DEEMED GRANT OF REGISTRATION. WE DO NOT FIND ANY GOOD REASON TO MAKE THE ASSESSEE SUFFER MERELY BECAUSE THE IT DEPARTMENT IS NOT ABLE TO KEEP ITS OFFICERS UNDE R CHECK AND CONTROL, SO AS TO TAKE TIMELY DECISIONS IN SUCH SIMPLE MATTE RS SUCH AS CONSIDERATION OF :-4-: APPLICATIONS FOR REGISTRATION EVEN WITHIN THE LARGE SIX MONTH PERIOD PROVIDED BY S. 12AA(2) OF THE ACT. WE ACCORDINGLY DIRECT THE RESPONDE NTS, SUBJECT TO ANY ORDER WHICH MAY BE PASSED UNDER S. 12AA(3), TO TREAT THE PETITIONER SOCIETY AS AN INSTITUTION DULY APPROVED AND REGISTERED UNDER S. 12AA AND TO RECOMPUTE ITS INCOME BY APPLYING TH E PROVISION OF S. 11 OF THE ACT. ACCORDINGLY, A FORMAL CERTIFICATE OF APPROVAL WILL BE ISSUED FORTHWITH TO THE PETITIONER BY THE RESPONDENT NO. 2. 5. FOR THE REASONS SET OUT ABOVE, WE UPHOLD THE PRELIMINARY OBJECTION RAISED BY THE ASSESSEE AN D DIRECT THE LD. COMMISSIONER OF INCOME-TAX TO GRANT REGISTRATION UNDER SECTION 12AA OF THE ACT. IN THIS VIEW OF THE MATTER, WE FIND NO JUSTIF ICATION TO DEAL WITH THE OTHER FACTUAL ISSUES RAISED BY THE ASSESSEE. 6. SO FAR AS DENIAL OF APPROVAL UNDER SECTION 80G OF THE ACT IS CONCERNED, WE FIND THAT THE LD. COMM ISSIONER OF INCOME-TAX HAS DENIED APPROVAL UNDER SECTION 80-G OF TH E ACT FOLLOWING HIS ORDER DENYING REGISTRATION UNDER SECTION 12AA OF THE AC T. SINCE WE HAVE DIRECTED THE LD. COMMISSIONER OF INCOME-TAX TO GRANT RE GISTRATION UNDER SECTION 12AA OF THE ACT IN THE FOREGOING PARAS, THE VERY FOUNDATION FOR DENYING THE APPROVAL UNDER SECTION 80G OF THE ACT THUS CE ASED TO HOLD GOOD IN THE LAW. ACCORDINGLY, THE LD. COMMISSIONER OF INCOME-TAX IS DIRECTED TO GRANT APPROVAL UNDER SECTION 80G OF THE ACT TO THE ASSESSEE. 7. IN THE RESULT, BOTH THE APPEAL S OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN TH E OPEN COURT ON 7.8.2013. SD/- SD/- [PRAMOD KUMAR] [S UNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:7.8.2013 JJ:2006 :-5-: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR