TaxTMI 
TaxTMI 
2018 (4) TMI 249
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....the Income Tax Act, 1961 ('the Act' hereinafter): 'Conditions for applicability of sections 11 and 12. 12A. (1) The provisions of section 11 and section 12 shall not apply in relation to the income of any trust or institution unless the following conditions are fulfilled, namely:- (a) the person in receipt of the income has made an application for registration of the trust or institution in the prescribed form and in the prescribed manner to the Commissioner before the 1st day of July, 1973, or before the expiry of a period of one year from the date of the creation of the trust or the establishment of the institution, whichever is later and such trust or institution is registered under section 12AA: Provided that where an application for registration of the trust or institution is made after the expiry of the period aforesaid, the provisions of sections 11 and 12 shall apply in relation to the income of such trust or institution,- (i) from the date of the creation of the trust or the establishment of the institution if the Commissioner is, for reasons to be recorded in writing, satisfied that the person in receipt of the income was prevented from ma....
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....apply in case of any trust or institution which was refused registration or the registration granted to it was cancelled at any time under section 12AA.' Though the assessment was pending before the ld. CIT(A) on 20.01.2014, the date of grant of registration u/s. 12AA, the Tribunal in the cited case has interpreted the words 'and the assessment proceedings are pending before the Assessing Officer' in the first proviso to s. 12A(2) to mean as pending before an appellate authority in-as-much as appellate proceedings are in continuation of the assessment proceedings. Similar view had been taken in SNDP Yogam v. Asst. DIT(E) [2016] 161 ITD 1 (Coch), as well as by the Amritsar Bench of the tribunal per its order in St. Jude's Convent School & Ors. v. Asst. CIT (in ITA No. 749/Asr/2013, dated 26.09.2016/copy on record), following the afore-cited decisions by the tribunal. Though the provisos to the sub-section (2) were inserted by Finance (No. 2) Act, 2014, w.e.f. 01.10.2014, the tribunal in, also relied upon in St. Jude's Convent School (supra), Shree Ramkrishna Samiti v. Dy. CIT [2014] 156 ITD 646 (Kol), has held the same to be retrospective, i.e., the date from which sub-sect....
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....the allowance or otherwise of the exemption u/s. 11 read with sections 12 and 13, including as to its' quantification. It has nothing to do with the time lag between the year for which the assessment proceedings are pending before the AO and the time (year) of the grant of registration u/s. 12AA. That is, there is no correlation, much less a linear relationship, between the two defined points of time. For example, the assessment for a preceding year, which is u/s. 147 or u/s. 153A/C, may be pending before the AO while that for a subsequent year may not be. As such, while the assessee shall be entitled by law for the benefit of registration u/s. 12AA for the earlier year, it shall not be for the subsequent year! The assessments in Shree Ramkrishna Samiti (supra) were also u/s. 147, so that the tribunal; an assessment including, by definition, reassessment, held the same to be covered within the purview of the first proviso to section 12A(2). Coming back to our discussion as to the purpose/reason/s for the stipulation of the condition of the pendency of the assessment proceedings before the AO, i.e., which inform the same, it is again the AO who has to be given the notice as to ac....
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....sfaction of the conditions of section 11 and 12 by the AO. We, in view of the foregoing, while holding that appellate proceedings cannot be regarded as assessment proceedings before the Assessing Officer, or as an assessment pending before him, equating thus the appellate and the assessment proceedings, which are separate and distinct, find no reason not to accept the assessee's prayer. This is as an assessee registered u/s. 12AA of the Act is to be, in view of s. 12A(2), deemed to be so registered for any other year for which the proceedings are pending at any (appellate) stage, provided of course that there is no change in the objects and activities of the entity during the intervening period. The ld. Authorized Representative (AR), the assessee's counsel, has shown us that there has been no change in the objects of the assessee's society, qua which we are prima facie satisfied, as section 12A(2) cannot be invoked otherwise. Further, no doubt the assessee stands refused approval u/s. 10(23C) and, in fact, twice. However, it is only the refusal (or subsequent cancellation) of registration u/s. 12A, that would attract the rigor of the third proviso to section 12A(2). We, accordi....