2015 (12) TMI 1796

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....e assessee is against the order of Commissioner of Income Tax-II, Pune dated 29-09-2014 rejecting the application of the assessee for grant of fresh registration u/s. 12A(a) of the Act. Since, the issues involved in all the three appeals are interconnected and are arising from the same facts, the appeals are taken up together for adjudication. 2. ITA No. 203/PN/2014 has been filed with a delay of 72 days. The assessee has filed an affidavit citing reasons for delay in filing of the appeal. After perusal of the same, we are satisfied that the delay in filing of appeal is not intentional or deliberate. The delay in filing of the appeal is caused for the reason stated in the affidavit, which seems to be quite plausible. Since, the assessee has been able to explain the reason for delay in filing of the appeal, the delay of 72 days is condoned and the appeal is admitted to be heard on merits. 3. The facts of the case as emanating from the records are : The assessee is a Public Charitable Trust formed in the year 1970. The assessee has been enjoying the benefit of exemption u/s. 80G since, 1978. During the scrutiny assessment proceedings for the assessment year 2010-11, the Assessi....

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....ribunal assailing the orders of Commissioner of Income Tax (Appeals) rejecting the applications of the assessee. 4. Shri Nilesh Khandelwal appearing on behalf of the assessee submitted that the Department has been extending benefit of section 80G to the assessee since, 1983. The benefit u/s. 80G can only be granted if the assessee is registered u/s. 12A. The trust was established way back in the year 1970, it must have been registered u/s. 12A. However, the said registration certificate got misplaced. Therefore, the assessee could not produce the same before the Assessing Officer at the time of assessment proceedings. The Assessing Officer during the assessment proceedings for assessment year 2010-11, rejected the contention of the assessee that it must have been registered u/s. 12A if the assessee is getting benefit of section 80G on the ground, that it is not necessary that the trust should be registered u/s. 12A for grant of approval u/s. 80G of the Act. Prior to the omission of clauses (22) and (22A) of section 10 w.e.f. 01-04-1999 and clause (23) of section 10 w.e.f. 01-04-2003, the benefit of section 80G was granted under the provisions of aforesaid clauses as well. The ld....

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....s. 80G in the case of the Poona Blind Mens Association, where original registration certificate u/s. 12A was not traceable. 4.1 The ld. AR submitted that if the assessee has earned some income while carrying on charitable activities, it is merely incidental. The registration u/s. 12A cannot be denied for the reason that the assessee has earned some income while performing charitable activities. The ld. AR further submitted that proviso to amended section 2(15) of the Act would not debar the assessee from registration u/s. 12A on the ground that the assessee has some surplus income. The pre-dominant objects of the assessee are charitable. To support his contentions the ld. AR placed reliance on the following decisions: i. Director of Income-tax (Exemption) Vs. Sabarmati Ashram Gaushala Trust, 44 taxmann.com 141 (Gujrat); ii. Commissioner of Income-tax Vs. Janakiammal Ayyanadar Charitable Trust, 29 taxmann.com 159 (Madras); iii. Director of Income Tax Vs. Women's India Trust, 277 CTR (Bom) 180; iv. Franciscan Sisters of St. Joseph Society Vs. Joint Commissioner of Income-tax (Exemptions), 46 taxmann.com 31 (Chennai-Trib.) 4.2 The ld. AR submi....

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....from other sources which include income from renting of cultural hall Rs. 39,03,000/- and other receipts Rs. 80,41,751/-. The ld. DR submitted that it is clearly evident from the financial records of the assessee that the assessee is not performing any charitable activity. In support of his submissions the ld. DR placed reliance on the following decisions: i. Director of Income-tax (Exemptions) Vs. Tamil Nadu Cricket Association, 57 taxmann.com 136 (SC); ii. Sinhagad Technical Education Society Vs. Commissioner of Income-tax (Central), 343 ITR 23 (Bom); iii. Improvement Trust Vs. Commissioner of Income-tax, 56 SOT 106 (Amritsar-Trib.); iv. Aurolab Trust Vs. Commissioner of Income-tax, 12 ITR (T) 74; v. Entertainment Society of Goa Vs. Commissioner of Income-tax, 34 taxmann.com 210 (Panaji-Trib.) 5.2 The ld. DR concluded by submitting that even if registration has earlier been granted the Commissioner of Income Tax has power to withdraw registration in view of the amended provisions of section 2(15) of the Act. The ld. DR strongly defended the action of Commissioner of Income Tax in rejecting the applications of the assessee. 6. The....

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....gift or donation for the assessee. 7. To let out on rent or lease its movable or immovable property, to sell off property that is not required. 8. To aid people & institutions that are useful to the assessee. 9. To mortgage the movable & immovable property for the purpose of taking loan. 10. To donate, gift, give loans to needy children for educational purposes. 11. To help orphans, handicapped, poor ailing widows, old people etc. 12. To organize financial helps, loans etc for people who wish to set up new industries, business etc. 13. To give financial aid to organizations having similar objects. 14. To buy furnitures, vessels 7 other movable property as per need & to sell them when not required. 15. To do all such things as would aid the achievement of the assesses objects. The ld. AR of the assessee has drawn our attention to pages 46 to 54 of the paper book to show that in the past the Department has granted deduction u/s. 80G to the assessee. A perusal of the certificates placed on record show that the assessee was granted the benefit of section 80G up to 31-03-2008. The relevant details of cer....

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.... to show that in the past assessee was enjoying the benefit of section 80G of the Act. The evidence brought by assessee has remained un-rebutted. 9. In the case of Sardar Bhavan Trust Vs. Income Tax Officer (supra), in similar situation where the Department refused to issue duplicate certificate u/s. 12A on the ground that no records are available, the Tribunal held as under: "10. We find that when the assessee has claimed that it was granted registration u/s. 12A/12AA by the Department and the Department has framed assessment granting the exemption the onus is on the department to prove that the assessee was not granted registration u/s. 12A/12AA of the Act. In the present case the assessee has claimed that it was granted registration u/s. 12A and the assessments have been framed accordingly in the past. There is nothing on record brought by the Department to contradict the submission of the Assessee that it was not granted registration after assessment year 1983-84 or the certificate granted to the Assessee has been withdrawn. The onus cast on Revenue to prove that the trust was not registered cannot be said to be discharged by merely stating that the records of regis....