SLUM REHABILITATION SOCIETY ( FORMELRY TPS III BANDRA SLUM REHABILITATION SOCIETY), V. DIT (E),

MA 561/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0032 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: misc
• Appeal Filed On: 30-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MAHAPATRA
• Assessee Lawyers: S S PHADKAR
• Section: 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH, J MUMBAI BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER MA NO: 561/MUM/2012 ARISING OUT OF : 3926/MUM/2009 ASSESSMENT YEAR : SLUM REHABILITATION SOCIETY (FORMERLY TPS III BANDRA SLUM REHABILITATION SOCIETY) SWAPNA SAFALYA, A WING GR.FL.25 TH ROAD TPS-III, BANDRA(W) MUMBAI. PAN: AAATS 0866 J DIRECTOR OF INCOME TAX (EXEMPTION) MUMBAI. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI S.S. PHADKAR RESPONDENT BY : SHRI S.K. MAHAPATRA DATE OF HEARING : 01.03.2013 DATE OF PRONOUNCEMENT : 08.03.2013 ORDER PER RAJENDRA SINGH (AM). THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE REQUESTING FOR RECALL OF THE ORDER DATED 23.12.2010 OF THE TRIBUNAL IN ITA NO.3926/M/2009. THE ASSESSEE IN THE APPLICATION HAS SUBMITTED THAT THERE IS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL DI SMISSING THE APPEAL OF THE ASSESSEE AS INFRUCTUOUS WHEN THE APPEAL HAD BEEN FI LED UNDER THE PROVISIONS OF LAW. 2. FACTS IN BRIEF ARE THAT THE ASSESSEE TRUST HAD B EEN REGISTERED UNDER SECTION 12A OF THE ACT VIDE ORDER DATED 16.7.76 OF DIT(E) ON THE BASIS OF TRUST DEED DATED 30 TH SEPTEMBER 1972. SUBSEQUENTLY THE DIT(E) NOTED THAT THE TRUST HAD CHANGED THE OBJECTS AS WAS CLEAR FROM THE CHANGE REPORT DATED 6.2.1989 AND 20.9.1991 SUBMITTED BEFORE THE ASST. C HARITY COMMISSIONER, MUMBAI. IT WAS ALSO NOTED THAT THE ASSESSEE HAD NOT INFORMED THE CHANGES TO MA NO.561/M/12 ARISING OU T OF ITA NO.3926/M/09 2 THE INCOME TAX DEPARTMENT WHICH WAS REQUIRED AS PER THE RULES. DIT(E) THEREFORE, IN THE ORDER DATED 6.4.2009 HELD THAT TH E REGISTRATION GRANTED UNDER SECTION12A STOOD WITHDRAWN FROM THE DATE WHEN THE CHANGES WERE INCORPORATED. AGGRIEVED BY THE SAID ORDER, THE ASSE SSEE FILED THE APPEAL BEFORE THE TRIBUNAL CHALLENGING THE LEGAL VALIDITY OF THE ORDER DATED 6.4.2009. THE TRIBUNAL NOTED THAT UNDER THE PROVISIONS OF SEC TION 12AA, COMMISSIONER/DIT(E) WAS EMPOWERED TO CANCEL REGISTR ATION IF HE WAS SATISFIED THAT ACTIVITIES OF SUCH TRUST OR INSTITUT ION WERE NOT GENUINE OR THESE WERE NOT CARRIED OUT IN ACCORDANCE WITH THE OBJECTS OF THE TRUST/INSTITUTION. THE TRIBUNAL ALSO NOTED THAT THE REGISTRATION GRANT ED UNDER SECTION 12A COULD BE CANCELLED BY THE CIT(A)/DIT(E) ONLY W.E.F. 1.6.2 010 WHEREAS THE REGISTRATION GRANTED UNDER SECTION 12AA(1)(B) COULD BE CANCELLED W.E.F. 1.10.2004. THE TRIBUNAL FURTHER OBSERVED THAT THE L ETTER DATED 6.4.2009 OF THE DIT(E) ONLY STATED LEGAL POSITION THAT REGISTRATION GRANTED BECAME REDUNDANT ONCE THE OBJECTS ARE CHANGED. THE LETTER, THEREFORE , HAD NO LEGAL ASSISTANCE. THE TRIBUNAL ACCORDINGLY DISMISSED THE APPEAL OF TH E ASSESSEE AS INFRUCTUOUS AGGRIEVED BY WHICH THE PRESENT MISCELLANEOUS APPLIC ATION HAS BEEN FILED. 3. BEFORE US, THE LD. AR SUBMITTED THAT IN THE LETT ER DATED 6.4.2009, THE DIT(E) CLEARLY HELD THAT THE REGISTRATION GRATED U NDER SECTION 12A STOOD WITHDRAWN FROM THE DATE ON WHICH CHANGES IN THE OBJ ECTS WERE MADE. THEREFORE, IT WAS AN ORDER OF DIT(E) WITHDRAWING TH E REGISTRATION. SUCH ORDER IT WAS POINTED OUT, WAS APPEALABLE BEFORE THE TRIBU NAL IN VIEW OF THE PROVISIONS OF SECTION 253(1)(C). THEREFORE, ONCE OR DER PASSED IS APPEALABLE, THE APPEAL WAS REQUIRED TO BE DISPOSED OFF BY THE T RIBUNAL ON MERIT AS TO WHETHER THE ORDER WAS LEGALLY CORRECT OR NOT. THUS IT WAS POINTED OUT THAT THERE WAS AN APPARENT MISTAKE IN THE ORDER OF THE T RIBUNAL IN NOT CONSIDERING THE PROVISIONS OF SECTION 253(1)(C) AND ACCORDINGLY IT WAS URGED THAT THE ORDER MAY BE RECALLED FOR FRESH ADJUDICATION AFTER CONSIDERING ALL THE PROVISIONS OF THE ACT. THE LD. DR PLACED RELIANCE O N THE ORDER OF THE TRIBUNAL. 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE M ATTER CAREFULLY. THE TRUST HAD BEEN REGISTERED UNDER SECTION 12A ON 16.7 .1976. SUBSEQUENTLY, MA NO.561/M/12 ARISING OU T OF ITA NO.3926/M/09 3 THERE WERE CHANGES IN THE OBJECTS OF THE TRUST WHIC H WAS CLEAR FROM THE CHANGE REPORT DATED 6.2.89 AND 20.9.1991 SUBMITTED TO ASST. CHARITY COMMISSIONER. THEREAFTER DIT(E) VIDE LETTER DATED 6 .4.09 WRITTEN TO THE MANAGING TRUSTEE OF THE TRUST HELD THAT REGISTRATIO N GRANTED UNDER SECTION 12A STOOD WITHDRAWN FROM THE DATE THE CHANGES WERE MADE . THIS LETTER OF DIT(E) IS DEFINITELY AN ORDER WITHDRAWING REGISTRATION GRA NTED TO THE TRUST. WE ALSO NOTE THAT CIT(A)/DIT(E) HAVE BEEN GIVEN POWER TO CA NCEL REGISTRATION UNDER SECTION 12AA(3). INITIALLY, THE POWER WAS GIVEN TO CANCEL THE REGISTRATION GRANTED UNDER SECTION 12AA(1)(B) W.E.F. 1.10.2004 A ND SUBSEQUENTLY THE POWER WAS ENLARGED W.E.F. 1.6.2010 TO INCLUDE REGIS TRATION GRANTED UNDER SECTION 12A OF THE ACT ALSO. FURTHER, THE ORDERS PA SSED BY CIT/DIT(E) UNDER SECTION 12AA HAVE BEEN MADE APPEALABLE W.E.F. 1.6.1 999 UNDER SECTION 253(1)(C) WHICH MEANS THAT ANY ORDER PASSED UNDER S ECTION 12AA IS APPEALABLE. THE TRIBUNAL WAS THEREFORE REQUIRED TO DECIDE THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 6.4.2009 ON ME RIT CONSIDERING THE SPECIFIC PROVISIONS OF SECTION 253(1)(C). THE TRIBU NAL, HOWEVER, DISMISSED THE APPEAL AS INFRUCTUOUS. THEREFORE, THERE IS AN APPAR ENT MISTAKE IN THE ORDER OF THE TRIBUNAL. WE, THEREFORE, RECALL THE ORDER DATED 23.12.12 OF THE TRIBUNAL FOR FRESH ADJUDICATION OF THE APPEAL AFTER CONSIDER ING THE PROVISIONS OF SECTION 253(1)(C). 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8.3.2013. SD/- SD/- ( R.K. GUPTA) ( RAJENDRA SINGH ) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI, DATED: 8.3.2013. JV. MA NO.561/M/12 ARISING OU T OF ITA NO.3926/M/09 4 COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.