CIT, Cochin V. Paravur Taluk Merchants welfare society, Paravur

MA 15/COCH/2013

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9952 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 07-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Section: 260A; 12AA

Judgement Text

1 MP NOS.14 & 15/COCH/2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.P. NOS. 14 & 15/COCH/2013 (ARISING OUT OF I.T.A NO. 57/COCH/2012 & ITA 972/CO CH/2008) THE COMMISSIONER OF INCOME-TAX VS PARUR TOWN MERCH ANTS COCHIN ASSOCIATION, VYAPARA BHAVAN CHENDAMANGALAM JN NORTH PARAVUR 683 513 PAN : AABTP0731G (APPLICANT) (RESPONDENT) APPLICANT BY : SMT. S VIJAYAPRABHA RESPONDENT BY : NONE DATE OF HEARING : 22-03-2013 DATE OF PRONOUNCEMENT : 22-03-2013 O R D E R PER N.R.S. GANESAN (JM) THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS PE TITIONS PRAYING FOR EXTENSION OF TIME. 2 MP NOS.14 & 15/COCH/2013 2. NOTICE OF HEARING WAS SERVED ON THE TAXPAYER. HOWEVER, THE TAXPAYER FILED AN APPLICATION FOR ADJOURNMENT. THI S TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE IS NO REASONABLE CAUS E FOR ADJOURNING THE MATTER. ACCORDINGLY, THIS TRIBUNAL PROCEEDED TO DI SPOSE OF THE MISCELLANEOUS PETITIONS AFTER HEARING THE LD.DR. 3. SMT. S VIJAYAPRABHA, THE LD.DR SUBMITTED THAT TH IS TRIBUNAL GRANTED LIBERTY TO PASS ORDER WITHIN A PERIOD OF FOUR MONTH S FROM THE DATE OF RECEIPT OF COPY OF THE ORDER OF THIS TRIBUNAL. THE REAFTER THE REVENUE FILED MISCELLANEOUS PETITIONS BEFORE THIS TRIBUNAL. THE MISCELLANEOUS PETITIONS FILED BY THE REVENUE WERE DISMISSED BY AN ORDER DAT ED 27-07-2012. THEREAFTER THERE WAS A CHANGE OF THE OFFICE OF THE INCUMBENT OF THE COMMISSIONER OF INCOME-TAX AND THE MATTER WAS REFER RED TO THE CHIEF COMMISSIONER OF INCOME-TAX TO DECIDE ON THE ISSUE O F FILING APPEAL U/S 260A OF THE ACT BEFORE THE HIGH COURT. HOWEVER, TH E CHIEF COMMISSIONER OF INCOME-TAX HAS TAKEN A DECISION TO ACCEPT THE OR DER OF THE TRIBUNAL. THEREFORE, THE COMMISSIONER OF INCOME-TAX COULD NOT PASS THE ORDER WITHIN FOUR MONTHS AS DIRECTED BY THIS TRIBUNAL. THE LD.D R SUBMITTED THAT IN VIEW 3 MP NOS.14 & 15/COCH/2013 OF THE ABOVE FACTS AND CIRCUMSTANCES THE TIME GRANT ED BY THIS TRIBUNAL FOR PASSING ORDER U/S 12AA(3) MAY BE EXTENDED. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD.DR AND ALSO PERUSED THE ORDER OF THIS TRIBUNAL DATED 17-02-2012. THIS TRIBUNAL FOUND THAT THE ORDER U/S 12AA OF THE ACT WAS PASSED BY THE COMMISS IONER AFTER EXPIRY OF SIX MONTHS PERIOD. THEREFORE, BY FOLLOWING THE DE CISION OF THE SPECIAL BENCH OF THIS TRIBUNAL IN BHAGWAD SWARUP SHRI DEVRA HA BABA MEMORIAL SHRI HARI PARMARTH DHAM TRUST VS C.I.T. (2008) 299 ITR ( AT) 161 (DEL)(SB), THE TRIBUNAL FOUND THAT REGISTRATION IN BOTH THE APPEAL S ARE DEEMED TO BE GRANTED. THIS TRIBUNAL ALSO FOUND THAT IF THE COMM ISSIONER OF INCOME-TAX WAS SATISFIED ABOUT THE REASONS FOR DELAY IN FILING THE APPLICATION U/S 12AA OF THE ACT IT WAS OPEN FOR HIM TO GRANT REGISTRATIO N FROM THE DATE OF ESTABLISHMENT OF THE SOCIETY. THIS TRIBUNAL ALSO F OUND THAT IT IS OPEN TO THE COMMISSIONER TO CANCEL THE REGISTRATION U/S 12AA(3) WITHIN A PERIOD OF FOUR MONTHS FROM THE DATE OF RECEIPT OF COPY OF THE ORDE R OF THIS TRIBUNAL. NOW THE DEPARTMENT FILED THE MISCELLANEOUS PETITIONS FO R EXTENSION OF TIME GRANTED IN THE ORDER DATED 17-02-2012. AT PARAGRAP H 3 OF THE PETITION, THE COMMISSIONER OF INCOME-TAX STATES AS FOLLOWS: 4 MP NOS.14 & 15/COCH/2013 3. ON RECEIVING THE HONBLE TRIBUNALS ORDER DATED 17.02.2012 GRANTING 4 MONTHS TIME FROM THE DATE OF RECEIPT TO DECIDE ABOUT THE CANCELLATION OF THE DEEMED REGISTR ATION, THE REVENUE HAD FILED A MISCELLANEOUS APPLICATION BEFOR E THE TRIBUNAL REQUESTING TO CONSIDER THE ORDER U/S 12AA( 1)(B)(II) PASSED ON 30.12.2010 BY THE COMMISSIONER OF INCOME- TAX. SINCE THE MISCELLANEOUS PETITION WAS UNDER CONSIDER ATION OF THE HONBLE TRIBUNAL, THE PROCEEDINGS TO DECIDE CAN CELLATION OF DEEMED REGISTRATION WERE NOT INITIATED UNDER THE BO NAFIDE IMPRESSION THAT TIME LIMIT OF 4 MONTHS WOULD NOT BE APPLICABLE TILL THE HONBLE TRIBUNAL DECIDE ON THE MISCELLANEO US PETITION. THE DECISION BY THE TRIBUNAL ON THIS MISCELLANEOUS PETITION WAS RECEIVED IN THIS OFFICE ON 24.09.2012 ONLY. FURTHE R, SINCE THERE WAS A CHANGE IN INCUMBENT IN THIS OFFICE IN SEPTEMB ER 2012, THE MATTER HAD COME TO NOTICE ONLY ON RECEIPT OF TH E TRIBUNAL DECISION ON MISCELLANEOUS PETITION. THEREAFTER, TH E MATTER WAS REFERRED TO THE CHIEF COMMISSIONER OF INCOME-TA X, KOCHI TO DECIDE ABOUT FILING APPEAL U/S 260A IN THE HONB LE HIGH COURT AND THE CHIEF COMMISSIONER HAS TAKEN DECISION TO ACCEPT THE ORDER OF THE HONBLE TRIBUNAL ON 15.01.2013, AN D HENCE THE QUESTION FOF SEEKING FURTHER TIME FOR PASSING A N ORDER U/S 12AA(3) AROSE. 5 MP NOS.14 & 15/COCH/2013 4. FROM THE BAOVE IT IS OBVIOUS THAT THE CHIEF COMM ISSIONER OF INCOME- TAX HAS TAKEN A DECISION TO ACCEPT THE ORDER OF THI S TRIBUNAL. WHEN THE CHIEF COMMISSIONER INCOME-TAX HAS DECIDED TO ACCEPT THE ORDER OF THIS TRIBUNAL, IT IS NOT KNOWN UNDER WHAT CAPACITY THE C OMMISSIONER OF INCOME- TAX HAS FILED THE PRESENT MISCELLANEOUS APPLICATION S BEFORE THIS TRIBUNAL. 5. WE HAVE ALSO CAREFULLY GONE THROUGH THE PROVISIO NS OF SECTION 12AA(3) OF THE ACT. SECTION 12AA(3) WAS INTRODUCED IN THE STATUTE BOOK BY FINANCE ACT, 2007 WITH EFFECT FROM 01-06-2007. SEC TION 12AA(3) EMPOWERS THE COMMISSIONER OF INCOME-TAX TO CANCEL THE REGIST RATION PROVIDED THE COMMISSIONER OF INCOME-TAX IS SATISFIED THAT THE AC TIVITIES OF THE TRUST OR INSTITUTION ARE NOT GENUINE OR ARE NOT BEING CARRIE D OUT IN ACCORDANCE WITH THE OBJECTS OF THE TRUST OR INSTITUTION. SECTION 1 2AA(3) DOES NOT PRESCRIBE ANY STATUTORY LIMIT FOR PASSING THE ORDER. SUBSEQU ENT TO THE REGISTRATION, IF THE COMMISSIONER OF INCOME-TAX IS SATISFIED THAT TH E ACTIVITIES OF THE TRUST ARE NOT GENUINE OR ACTIVITIES OF THE TRUST ARE NOT BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECT OF THE TRUST, THEN IT CA N BE CANCELLED AT ANY TIME. BY THE ORDER DATED 17-02-2012, THIS TRIBUNAL ENABLES THE COMMISSIONER OF INCOME-TAX TO COMPLETE AN ENQUIRY W ITHIN FOUR MONTHS 6 MP NOS.14 & 15/COCH/2013 PERIOD SINCE THE REGISTRATION WAS DEEMED TO BE GRAN TED BECAUSE THE COMMISSIONER OF INCOME-TAX FAILED TO PASS ORDER WIT HIN A PERIOD OF SIX MONTHS. THEREFORE, TO SAFEGUARD THE INTEREST OF TH E REVENUE, THIS TRIBUNAL OBSERVED THAT IT IS OPEN TO THE COMMISSIONER OF INC OME-TAX TO EXAMINE THE MATTER AND PASS ORDER WITHIN A PERIOD OF FOUR MONTH S. THIS OBSERVATION OF THE TRIBUNAL WOULD NOT IN ANY WAY RESTRICT THE POWE R OF THE COMMISSIONER OF INCOME-TAX OTHERWISE CONFERRED ON HIM U/S 12AA(3 ) OF THE ACT. THEREFORE, THE QUESTION OF EXTENSION OF TIME MAY NO T ARISE FOR CONSIDERATION. 6. ACCORDINGLY, BOTH THE MISCELLANEOUS PETITIONS OF THE REVENUE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON THIS 22 ND MARCH, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 22 ND MARCH, 2013 PK/- 7 MP NOS.14 & 15/COCH/2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH