Shri Munishuvrat Bhagwan ni Pedhi, v. The ACIT., GNR Circle,, Gandhinagar

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE S/SHRI T.K. SHARMA JM AND D.C.AGRAWAL AM SHRI MUNISHUVRAT BHAGWANNI PEDHI JAIN UPASHRAY CHOKSHI BAZAR DEHGAM. V/S . ASSTT. CIT GANDHINAGAR CIRCLE GANDHINAGAR. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI S. N. DIVETIA AR RESPONDENT BY:- SHRI ANAND MOHAN SR.DR O R D E R PER D.C.AGRAWAL ACCOUNTANT MEMBER. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A) WHEREIN HE HAS HELD THAT WITHOUT THERE BEING REGISTRATION UNDER SECTION 12A PROVISIONS OF SECTIONS 11 12 & 13 COULD NOT BE INVOKED TO GRANT EXEMPTION TO INCOME DECLARED BY THE ASSESSEE. THE ASSESSEE HAS RAISED THE FOLLOWING CONCISE GROUNDS :- 1.1 THE ORDER PASSED BY THE LD. CIT(A) GANDHINAGAR AB AD UPHOLDING THE ORDER OF THE ACIT GNR CIRCLE GANDHINAGAR DENY ING THE BENEFIT OF SECTION 11 TO 13 OF THE ACT IS WHOLLY IL LEGAL UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2.1 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR O N FACTS IN UPHOLDING THE REJECTION OF CLAIM OF EXEMPTION U/S 1 1 AND 12 OF THE ACT FOR ASST. YEAR 2004-05 MADE BY AO ON ACCOUNT OF NON- PRODUCTION OF CERTIFICATE OF REGISTRATION U/S 12AA OF THE ACT. ITA NO.1510/AHD/2007 ASST. YEAR : 2004-05 2 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE LD. CIT(A) OUGHT NOT TO HAVE UPHELD REJECTION O F EXEMPTION U/S 11 AND 12 TO THE APPELLANT TRUST FOR ASST. YEAR 200 4-05 SIMPLY BECAUSE THE CERTIFICATE OF REGISTRATION U/S 12AA WA S NOT PRODUCED BEFORE AO FOR SUFFICIENT REASONS. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A TRUST. IT HAS CLAIMED THAT IT HAD FILED AN APPLICATION FOR REGISTRATION U NDER SECTION 12A OF THE ACT WITH THE CIT GUJARAT ON 28.6.1973. THEREAFTER IT IS CLAIMED THAT ASSESSEE HAS BEEN FILING RETURN OF INCOME FROM TIME TO TIME ASSESSMENTS ARE ACCEPTED ON THE BASIS OF COMPUTATION OF INCOME UNDER SECTION 11 12 & 13. IT WAS SUBSEQUENTLY NOTICED BY THE AO THAT TH ERE IS NO REGISTRATION UNDER SECTION 12A IS AVAILABLE AND THEREFORE HE S OUGHT TO TAX THE INCOME OF THE ASSESSEE UNDER NORMAL PROVISIONS OF THE ACT AND DID NOT INVOKE THE PROVISIONS OF SECTIONS 11 TO 13. THE TOTAL INCOME W AS DETERMINED AT RS.1 60 660/-. LD. CIT(A) ALSO CONFIRMED THE ORDER OF AO AND HELD THAT EXEMPTION UNDER SECTION 11 TO 13 COULD NOT BE GIVEN TO THE ASSESSEE AS ASSESSEE FAILED TO SATISFY THE MAIN CONDITION THAT IT IS REGISTERED UNDER SECTION 12A. 13. BEFORE US LD. AR FOR THE ASSESSEE SUBMITTED THA T ONCE IT HAS FILED AN APPLICATION FOR REGISTRATION IN 1973 THEN IT IS PRE SUMED THAT REGISTRATION HAS BEEN GRANTED. HE REFERRED TO THE DECISION OF HO N. ALLAHABAD HIGH COURT IN SOCIETY FOR THE PROMOTION OF EDUCATION ADV ENTURE SPORT & CONSERVATION OF ENVIRONMENT VS. CIT & ORS. (2008) 1 71 TAXMAN 113 FOR THE PROPOSITION THAT IF ORDER UNDER SECTION 12 IS N OT PASSED WITHIN TIME LIMIT THEN IT IS DEEMED THAT REGISTRATION IS ALLOWE D TO THE ASSESSEE. FURTHER ACCORDING TO THE LD. AR INCOME OF THE ASSESSEE TRUS T FOR AYS 1993-94 TO 96-97 HAS BEEN COMPLETED BY GRANTING EXEMPTION UNDE R SECTION 11 TO 13. ONCE IT IS ACCEPTED BY THE DEPARTMENT THAT TRUST IS REGISTERED WITH THE 3 COMMISSIONER OF INCOME-TAX THEN THERE IS NO REASON TO HOLD DIFFERENTLY IN ASST. YEAR 2004-05. THE DEPARTMENT SHOULD TAKE A CONSISTENT VIEW AS HELD BY HON. SUPREME COURT IN RADHASWAMI SATSANG VS . CIT (1992) 193 ITR 321 (SC). THIRDLY THE LD. AR SUBMITTED THAT RE GISTERATION UNDER SECTION 12A IS NOT REALLY REQUIRED FOR INVOKING OF PROVISIONS OF SECTION 11 TO 13. HE REFERRED TO THE REPORTED DECISIONS IN 111 ITD 175 AND 104 ITD 268. THE LD. AR FINALLY SUBMITTED THAT IT HAD INFAC T SUBMITTED FRESH APPLICATION FOR REGISTRATION BEFORE THE COMMISSIONE R OF INCOME-TAX WHO HAS GRANTED REGISTRATION TO THE TRUST W.E.F. 1.4.20 07 EVEN THOUGH REGISTRATION FROM EARLIER YEARS WAS CLAIMED. 14. LD. DR ON THE OTHER HAND RELIED ON THE ORDER O F ORDER OF LD. CIT(A). 15. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW THE MATTER IS REQ UIRED TO BE LOOKED INTO AFRESH BY THE AO. THE REASONS BEING THAT IF INCOME OF THE ASSESSEE IS TAXED UNDER SECTION 11 TO 13 IN ASST. YEAR 1992-93 TO 96-97 THEN THERE IS NO REASON TO TAKE A DIFFERENT VIEW THIS YEAR. THE A O SHOULD VERIFY HOW ASSESSMENTS IN THE PAST HAVE BEEN DONE. IF ASSESSEE IS TREATED AS A TRUST REGISTERED UNDER SECTION 12A IN EARLIER ASSESSMENT YEARS THEN TAKING A CONSISTENT VIEW FOLLOWING THE DECISION OF HON. SUPR EME COURT IN RADHASWAMI SATSANG CASE (SUPRA) THE INCOME OF THE T RUST SHOULD BE COMPUTED UNDER SECTION 11 TO 13 THIS YEAR ALSO. WE THEREFORE RESTORE THE MATTER TO THE FILE OF AO TO CONSIDER THE MATTER AGA IN AND TAKE A CONSISTENT VIEW AS TAKEN IN THE PAST. 4 16. AS A RESULT APPEAL OF THE ASSESSEE IS ALLOWED BUT FOR STATISTICAL PURPOSES. SD/- SD/- (T.K. SHARMA) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD DATED : 16/4/2010 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT. REGISTRAR ITAT AHMEDABAD ORDER PRONOUNCED IN OPEN COURT ON 16/4/2010