Director of Income Tax (Exemptions), Hyderabad V. M/s. Sohanlal Chokhani Public Charitable Trust, Hyderabad

MA 131/HYD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0571 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-07-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 28-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Charitable institution
• Section: 12A; 12AA; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER M.A NO. 131/HYD/2013 ARISING OUT OF ITA NO.1468/HYD/2012 DIRECTOR OF INCOME TAX (EXEMPTIONS), HYDERABAD VS. SOHANLAL CHOKHANI PUBLIC CHARITABLE TRUST, HYDERABAD PAN AAHTS7742J (APPLICANT) (RESPONDENT) FOR APPLICANT : SMT. T.H.VIJAYALAXMI (D. R.) FOR RESPONDENT : SHRI K.L.PATHI (A.R.) DATE OF HEARING : 28.06.2013 DATE OF PRONOUNCEMENT : 04.07.2013 ORDER PER SMT. ASHA VIJAYARAGHAVAN, J.M. VIDE ORDER IN ITA.NO.1468/HYD/2012 DATED 4.1.2013, THE HONBLE I.T.A.T. HYDERABAD B BENCH, DECIDED THE APPEAL FI LED BY M/S. SOHANLAL CHOKHANI PUBLIC CHARITABLE TRUST THAT IS THE ASSESS EE AGAINST THE ORDER OF THE DIRECTOR OF INCOME TAX (EXEMPTIONS), HYDERABAD DATED 30.8.2012 PASSED UNDER SECTION 12AA(1)(B)(II) READ WITH SECTI ON 254(1) OF THE INCOME TAX ACT, 1961. THE ITAT HELD THAT REGISTRATION UNDE R SECTION 12AA SHALL BE DEEMED TO HAVE BEEN GRANTED TO THE ASSESSEE AFTER E XPIRY OF SIX MONTHS FROM THE DATE OF RECEIPT OF THE TRIBUNALS ORDER BY THE DIT(E). THE APPLICANT BEING THE DIRECTOR OF EXEMPTIONS HYDERABAD HAS FILED THE M.A. WHICH IS AS FOLLOWS: 1. THE HON'BLE ITAT, HAVE GIVEN SUCH FINDING, IN PARA 7 OF THEIR ORDER, AFTER CONSIDERING AND ACCEPTING THE SUBMISSION OF THE ASSESSEE THAT IN THE CASE OF NICE 2 M.A.NO.131/HYD/2013 ARISING OUT OF ITA.1468/HYD/2012 SOHANLAL CHOKHANI PUBLIC CHARITABLE TRUST FOUNDATION VS. DDIT, IN ITA.NO.2039/HYD/2011, THE HON'BLE TRIBUNAL VIDE ITS ORDER DATED 08.08.2012 HA S HELD THAT THE PERIOD OF SIX MONTHS PRESCRIBED IN THE ACT I N SUB- SECTION(2) TO SECTION 12AA OF THE ACT SHALL APPLY T O THE MATTERS SET ASIDE BY THE TRIBUNAL ALSO. 2. THE DIT(E) SUBMITTED IN THE PETITION THAT HOWEVER, A FTER CAREFULLY GOING THROUGH THE SAID ORDER OF THE HON'BL E ITAT DATED 08.08.2012 IN THE CASE OF NICE FOUNDATION, IT I S NOTICED THAT IN THAT DECISION, THE HON'BLE ITAT HAVE NOT GIVEN ANY SPECIFIC FINDING THAT PERIOD OF SIX MONTHS PRESCRIBED IN THE IN SUB-SECTION. (2) OF SECTION 12AA , SHALL APPLY TO MATTERS SET ASIDE BY THE TRIBUNAL. IT MAY BE MENTIONED HERE THAT, IN PARA 12 OF THEIR SAID ORDER I N THE CASE OF NICE FOUNDATION, REFERRING TO DIFFERENT DECIS IONS, WHICH ARE IN THE CONTEXT OF GRANT OF REGISTRATION U /S 12A, ARISING FROM FILING OF FRESH APPLICATION BY AN ASSE SSEE AND KEEPING IN VIEW THE TIME LIMIT PRESCRIBED IN SECTION 12AA, THE HON'BLE ITAT OBSERVED THAT THE EFFECT OF NON- CONSIDERATION OF THE APPLICATION FOR REGISTRATION U /S 12A WITHIN THE TIME FIXED BY SECTION 12AA(2) WOULD BE A DEEMED GRANT OF REGISTRATION. AS MAY BE CAREFULLY NO TICED, FROM SUCH OBSERVATION MADE BY THE HON'BLE ITAT, IT CANNOT BE SAID THAT THE HON'BLE ITAT HAS GIVEN A FINDING THA T THE PERIOD OF SIX MONTHS STIPULATED IN SUB-SECTION (2)TO SECTION 12AA SHALL APPLY TO MATTERS SET ASIDE BY THE TRIBUN AL ALSO. FURTHER, EVEN THOUGH, IN THE LAST SENTENCE IN THAT PARA, THE HON'BLE ITAT, NOTED THAT, 'THUS, GROUND NO.4 RAISED BY THE ASSESSEE IS ALLOWED,' THEN ALSO, HAVING REGARD TO THE SPECIFIC GROUND IN THAT REGARD, RAISED BY THE ASSES SEE IN THAT CASE, IT CANNOT BE SAID THAT THE HON'BLE ITAT, HAVE HELD SO I.E. THE PERIOD OF SIX MONTHS STIPULATED IN SUB- SECTION (2)TO 3 M.A.NO.131/HYD/2013 ARISING OUT OF ITA.1468/HYD/2012 SOHANLAL CHOKHANI PUBLIC CHARITABLE TRUST SECTION 12AA SHALL APPLY TO MATTERS SET ASIDE BY TH E TRIBUNAL ALSO. THE SAID GROUND NO.4 RAISED BY THE A SSESSEE IN THAT CASE OF M/S NICE FOUNDATION, REFERRED TO BY HON'BLE ITAT, UNDER PARA 5 AT PAGE 4 OF THEIR SAID ORDER IS REPRODUCED AS UNDER: 4. THE LEARNED CT(A) FURTHER ERRED IN NOT CONSIDERING THE SUBMISSION THAT REGISTRATION U/S 12A IS DEEMED TO HAVE BEEN GRANTED SINCE THE DIT(EXEMPTIONS) HAS NOT PASSED ORDERS ULS 12AA AFTER THE SAME IS SET ASIDE TO HIS FILE WITHIN THE TIME STIPULATED IN THE ACT AND THEREBY ERRED IN HOLDING THAT THE ASSESSEE TRUST IS NOT ENTITLED FOR DEDUCTION U/S 11 ' 3. THE DIT(E) SUBMITTED IN THE PETITION THAT AS MAY BE SEEN, IN THAT GROUND RAISED BY THE ASSESSEE IN THAT CASE, IN APPEAL FILED AGAINST THE CIT(APPEALS)' ORDER IN THAT CASE HAS SUBMITTED THAT THE DIT(EXEMPTIONS) HAS NOT PASSED O RDER U/S 12AA AFTER THE SAME IS SET ASIDE TO HIS FILE WITHIN THE TIME STIPULATED IN THE ACT. THUS, AS MAY BE NOTICED , THE ASSESSEE IN THAT CASE HAS POINTED OUT THAT THE DIT HAS NOT PASSED ORDERS UNDER SECTION 12AA, WITHIN THE TIME STIPULATED IN THE ACT, AFTER SUCH MATTER HAS BEEN S ET ASIDE TO HIS FILE. THE ASSESSEE IN THAT CASE, HAS STATED THA T NECESSARY FRESH ORDER U/S 12AA HAS NOT BEEN PASSED BY THE DIT, WITHIN THE TIME STIPULATED IN THE ACT, AFTER SUCH M ATTER WAS SET ASIDE TO HIS FILE. HOWEVER, THE ASSESSEE, IN TH AT REGARD, HAS NOT REFERRED TO ANY SECTION IN THE ACT NOR HAS REFERRED TO ANY TIME LIMIT IN THAT REGARD. IT MAY BE MENTIONED HERE THAT THE TIME LIMIT DURING WHICH A FRESH ORDER U/S.12AA, AFTER AN EARLIER ORDER PASSED BY A COMMISSIONER OF INCOME TA X OR DIRECTOR OF INCOME TAX(EXEMPTIONS) IS SET ASIDE BY THE HON'BLE ITAT, HAS NOT BEEN SPECIFIED IN SECTION 153 OF THE 4 M.A.NO.131/HYD/2013 ARISING OUT OF ITA.1468/HYD/2012 SOHANLAL CHOKHANI PUBLIC CHARITABLE TRUST ACT. HAVING REGARD TO THE SPECIFIC ENTIRE PROVISION S CONTAINED IN SECTION 153 OF THE ACT AND IN ABSENCE OF ANY SPE CIFIC TIME LIMIT, REFERRED TO BY THE ASSESSEE IN THAT CASE OF NICE FOUNDATION AND ALSO HAVING REGARD TO SUCH SPECIFIC OBSERVATION MADE BY THE HON'BLE ITAT IN PARA 12 OF THEIR SAID ORDER IN THAT CASE, IT CANNOT BE SAID THAT THE HON'BLE ITAT, IN THAT ORDER HAS HELD THAT THE PERIOD OF SIX MONTHS PRESCRIBED IN THE ACT IN SUB-SECTION (2) OF SECTION 12AA, SHALL APPLY TO MATTERS SET ASIDE BY THE TRIBUNAL ALSO. UN DER THE CIRCUMSTANCE, THEREFORE, SUCH FINDING GIVEN BY THE HON'BLE ITAT IN PARA-7 OF THEIR PRESENT ORDER, HOLDING THAT THE REGISTRATION U/S 12AA SHALL BE DEEMED TO HAVE BEEN GRANTED TO THE ASSESSEE AFTER EXPIRY OF SIX MONTHS FROM THE DATE OF RECEIPT OF TRIBUNAL'S ORDER BY THE DIT IS NOT CORRECT UNDER LAW. 4. THE DIT(E) HAS SUBMITTED IN THE PETITION THAT IN THIS CONTEXT, IT IS ALSO PERTINENT TO REFER TO THE JUDGE MENT OF HON'BLE ORISSA HIGH COURT IN THE CASE OF M/S. SRIKH ETRA, A.C.BHAKTIVEDANTA SWAMI CHARITABLE TRUST VS. ACIT, CIRCLE-1, JUDGEMENT DATED 9.5.2006 IN W.P.(C)NO.12437 OF 2005 REPORTED IN ORISSA LAW REPORT (2006(II)OLR-75) , WHEREIN THE HON'BLE HIGH COURT HAVE HELD THAT PERIO D OF SIX MONTHS AS PROVIDED IN SUB-SECTION (2) OF SECTIO N 12AA OF THE ACT, IS NOT MANDATORY BUT IS DIRECTORY. 5. THE LEARNED DIT(E) FURTHER SUBMITTED IN THE PETI TION THAT I N VIEW OF THE FOREGOING DISCUSSIONS AND HAVING REGARD T O THE SAID DECISION OF THE HON'BLE ORISSA HIGH COURT (SUPR A), THUS, IT IS RESPECTFULLY SUBMITTED THAT SAID DECISION OF THE HON'BLE ITAT IN THE PRESENT CASE, HOLDING THAT THE REGISTRATION U/S 12AA, SHALL BE DEEMED TO HAVE BEEN 5 M.A.NO.131/HYD/2013 ARISING OUT OF ITA.1468/HYD/2012 SOHANLAL CHOKHANI PUBLIC CHARITABLE TRUST GRANTED TO THE ASSESSEE AFTER EXPIRY OF SIX MONTHS F ROM THE DATE OF RECEIPT OF TRIBUNAL'S ORDER BY THE DIT, IS N OT CORRECT UNDER LAW. THERE BEING A MISTAKE ON THAT ACCOUNT IN THAT ORDER, THUS, IT IS RESPECTFULLY REQUESTED THAT THE H ON'BLE ITAT MAY KINDLY CONSIDER FOR RECALLING THEIR SAID OR DER DATED 4.01.2013 IN ITA NO. 468/HYD/2012, IN THE CASE O F SOHANLAL CHOKHANI PUBLIC CHARITABLE TRUST, HYDERABA D, AND TO DECIDE THE SAID APPEAL OF THE ASSESSEE ON THE M ERIT OF THE CASE. 2. WE HAVE HEARD BOTH THE PARTIES. LEARNED COUNSEL FOR THE ASSESSEE STRONGLY SUPPORTED THE ORDER OF THE TRIBUNAL. ON TH E CONTRARY, LEARNED D.R. RELIED ON THE MISCELLANEOUS APPLICATION FILED. WE F IND THAT THE BENCH HAS CONSIDERED THE DECISION OF THE SPECIAL BENCH OF THE I.T.A.T. IN THE CASE OF BHAGWAD SWARUP SHRI SHRI DEVRAHA BABA MEMORIAL SHRI HARI PARMARTH DHAM TRUST VS. CIT (2008) 299 ITR (AT) 161. FURTHER , AN IDENTICAL ISSUE WAS CONSIDERED BY THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF NICE FOUNDATION VS. DDIT IN ITA.NO.2039/HYD/2011 AND THE TRIBUNAL VIDE ITS ORDER DATED 08.08.2012 HAS HELD THAT PERIOD OF SIX MONTHS PRESCRIBED IN THE ACT IN SUB SECTION (2) OF SECTION 12AA SHALL APPLY TO THE MATTERS SET ASIDE BY THE TRIBUNAL ALSO. HENCE, WE FIND NO INFIRMITY IN T HE ORDER OF THE I.T.A.T. PASSED IN FAVOUR OF THE ASSESSEE IN ITA.NO.1468/HYD /2012. THEREFORE, THIS MISCELLANEOUS APPLICATION OF THE DEPARTMENT IS DISM ISSED. 3. IN THE RESULT, M.A. OF THE DEPARTMENT IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH JULY, 2013 SD/- SD/- (CHANDRA POOJARI) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATE 04 TH JULY, 2013. VBP/- 6 M.A.NO.131/HYD/2013 ARISING OUT OF ITA.1468/HYD/2012 SOHANLAL CHOKHANI PUBLIC CHARITABLE TRUST COPY TO 1. DIRECTOR OF INCOME TAX (EXEMPTIONS), HYDERABAD 2. SOHANLAL CHOKHANI PUBLIC CHARITABLE TRUST, C/O. SHRI K.L.RATHI, ADVOCATE, 3-5-144/5, EDEN GARDEN, HYDERABAD 5 00 001. PAN AAHTS7742J 3 . ASST. DIRECTOR OF INCOME TAX (EXEMPTION) , HYDERABAD . 4. D.R. I.T.A.T. B BENCH, HYDERABAD