TaxTMI 
TaxTMI 
2021 (11) TMI 403
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....excess of income over expenditure as per audited profit and loss account. 3. That the CIT(A) has failed to appreciate the fact that the assessee had originally applied for registration u/s 12A on 12.05.1998 and wherein, the documents and clarification were also submitted to the Assessing Officer concerned and other correspondence of having applied for registration u/s 12-A and which have been ignored summarily by the CIT(A). 4. That the Ld. CIT(A) has erred in not considering the fact that as per the judicial pronouncement that if the CIT does not pass an order on the application made u/s 12AA within the prescribed period of six months, then the said exemption shall be deemed to have been allowed as per the judgment of Apex Court in the case of CIT Vs Society for Promotion of Educational reported in 382 ITR 06 (SC) and in the case of the assessee, the exemption deemed to have been granted. 5. That the taxing of excess of income over expenditure as made by the CIT(A) and confirmation of status as AOP is against the facts and circumstances of the case. 6. That the Appellant craves leave to add or amend the grounds of appeal before the appeal is fin....
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....urns year after year and there is an assessment order u/s 143(3) for Asstt. Year 2003-04, which copy has been placed at pages 31 to 32 of the Paper Book, wherein, the said exemption of income had been granted and, thus, no doubt has been cast about the aims and objects of the society and genuineness of Trust. This is a registered society as per evidence placed at page 1 of the Paper Book, which certificate is dated 20.07.1998. Copy of the Trust deed and rules and regulations have been enclosed in the Paper Book at pages 2 to 12. 2. The said society had moved an application for registration u/s 12A on the prescribed form 10A on 12.05.1998 as per copy placed at page 13 and enclosed all the documents therein and there have been certain correspondence, with the concerned Assessing Officer then the Commissioner of Income Tax , placed at pages 16 to 22 of the Paper Book, which proves beyond any iota of doubt that all such documents had been submitted for the purpose of registration u/s 12A and clarification was also made as desired. 3. During the course of assessment proceedings u/s 143(3), the assessee could not trace the necessary certificate of registration u/s 12A, which had be....
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....ain there is another letter, dated 12.08.1998 at page 18 of the paper book, confirming that the information had already been filed, which were again reiterated as per letter, dated 15.09.1998 at page 19 of the paper book and, though, the letter was addressed to the CIT (Exemptions), but copies were endorsed to concerned DCIT and Income Tax Officer. 6. The Ld. Assessing Officer in his remand report to the CIT(A) has wrongly mentioned that the letter, dated 12.08.1998 was only a request for granting registration, which is patently wrong as stated above. Further, no doubt has been raised either by the CIT(A) and the Assessing Officer about the authenticity of such documents. FINDING OF THE CIT(A) 7. The CIT has also mentioned the same facts and wrongly interpreted that information has not been filed in para 5.3 of the order, which is proved from the reply at page 17, 18 & 19 of the paper book. 8. It is submitted that the Commissioner was duty bound to either registered the assessee u/s 2A or refuse the registration, but since no order u/s 12 appears to have been passed and there is mention of word "SHALL" and the registration should be deemed to have been granted automatic....
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....ench of the ITAT, following earlier judgment of 'Amritsar Bench', it has been held that if the registration has been granted for any of the year, then it is deemed to be registered for any other year, for which, the proceedings are pending at any Appellate stage. This finding has been given in the judgment of Amritsar Bench in the case of "Tilla Baba Farid Religious and Charitable Society", copy of the judgment placed at pages 46 to 51 of the paper and the relevant finding is at page 49 of the Paper Book. 11. In view of the above said facts, the registration u/s 12A may, please, be granted and oblige. 12. Alternatively, it is submitted that the status has been taken as AOP and the entire surplus along with corpus donations have been taxed. It is submitted herewith that if the income has been charged to tax as per the normal provisions of the Act, ignoring the exemption u/s 11 & 12, then the assessee is entitled to set off brought forward losses as per computation of income and the same needs to be allowed as per the judgment of Chandigarh Bench of the ITAT in the case of M/s Patiala Urban Planning & Development Authority, in ITA No. 1408/Chd/2018 and in ITA No. 55/Chd/2018. C....
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....grant of registration on 24.02.2003 and same was not responded to within six months, registration of application was to be deemed to have taken effect from 24.08.20030 Held, yes." 4. Even, the Hon'ble Kerala High Court in the case of CIT, Cochin Vs TBI Education Trust as followed the judgment of Apex Court and has held as under:- "In such circumstances, respectfully following the decision of the Hon'ble Supreme Court, we answer the question in favour of the assessee and against the revenue and reject the appeal. The registration however is applicable only from the date of expiry of the six months from the date of application. There shall be no order as to costs. 5. While giving this judgment, the Hon'ble Supreme Court has relied upon the circular of CBDT. 6. The same is the judgment of Bangalore Tribunal, which has also taken the same view. 7. The Jurisdictional Bench was also ceased with the same issue and had followed the judgment of Apex Court. 8. The same view has been taken in the case of Lakha Singh Charitable Trust by the Amritsar Tribunal. Reliance is also being placed earlier judgment of 'Amritsar Bench', it has been he....
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....artment that the assessee is carrying the charitable activity and the only issue as per the assessment order is that since the society had not been registered u/s 12A of the Income Tax Act and, therefore, surplus as per income and expenditure account to the tune of Rs. 39,21,913/- and corpus donation of Rs. 3,19,050/- has been brought to tax. 2. There is no other issue in the present case, because the receipts and expenses have been accepted by the department and regarding the genuineness of activity and aims and objects, there is no whisper in the order of Assessing Officer and meaning thereby, that if there would have been registration u/s 12A, then the surplus as per Profit and Loss Account would not be taxable at all. The remaining contention raised by the assessee are common as raised by the assessee for the assessment year 2013 - 14 " 13. The Ld.AR for the assessee had submitted that the assessee was entitled to the deemed registration under the act as the lower authority has failed to court the registration within a statutory. Six months from the date of application. It was also the contention of the Ld.AR that that assuming the first contention of the a....
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.... for grant of registration vide letter dated 15.09.1998. The ITO vide letter dated 05.07.1999 had asked the assessee to get the trust deed registered and sent the copy of the registered deed to the office of the ITO for the purposes of facilitating the registration. It is the case the assessee is that the assessee had provided a copy of the registered deed to the ITO. 16. Our attention was drawn to the certificate of registration granted to the assessee vide order dated 20.07.1998 bearing no. 45 to 49 (page 1 of the paper book). On the basis of the above, it was submitted that the assessee has completed all the requisite applications and nothing was required to be done as at the end of the assessee. 17. Further, during the argument the assessee has submitted that by the amendment, w.e.f., 01.06.1999, clause 2 in section 12AA was inserted with the following effect page 21 is as under: "2. Every order granting or refusing registration under clause (b) of subsection (1) shall be passed before the expiry of six months from the end of the month in which the application was received under clause (a) [or clause (aa) [or clause (ab)] of sub-section (1)] of section 12A.] 1....
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....the CIT did not take any action on application filed for registration under section 12A of the Act. Though the assessee had written a letter to CIT vide letter dated 21-02-2002 for grant of registration under section 12A and recognition for exemption under section 80G but no action was taken by the CIT. Later on the assessee has moved a new application for registration under section 12A on 26-05-2012 but this application was rejected by the CIT vide its order dated 26-12-2012 on sole ground that the University had failed to incorporate certain clauses in the VTU Act. The appeal filed against the said order of the CIT was also dismissed for the same reason. The AO has also reopened the assessment under section 147 of the Act for the assessment years 2008-09 and 2009-10, 2004-05 to 2007-08 and 2010-11 to 2013-14. During the reassessment proceedings, the assessee has again filed the third application for registration under section 12A on 5-11-2014 along with the resolution passed by the Execute Council of the University approving certain amendments to the VTU Act, as desired by the CIT. However, the CIT insisted on production of the amendments enacted by the state legislature. Accordi....
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....4. In our considered opinion, once the registration application is pending before the Registration Authority under the Income Tax Act, then the assessee has the right to know the reasons within reasonable time for not according to the registration. 22. In the present case as mentioned hereinabove till date, no order had been passed by the lower authorities either accepting or rejecting the application of registration filed by the assessee on 12.05.1998; however it is undeniable that the assessee continues and imparts the education in the field of Homeopathic Medical College and Hospital and running Graduate, under Graduate and post Graduate courses under the name of M/s Mahavira Homeopathic Medical College and Hospital. In our considered opinion, though there is a lapses on the part of the assessee for not pursuing the registered application after the insertion of the amendment whereby the record of the registration was transferred from ITO to CIT(E) and thereafter. However the negligence on the part of the assessee cannot legalize the action on the part of the Assessing Officer/CIT(E) for not passing appropriate order on the application of registration dated 12.05.1998. Admitte....
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....es of the assessee continue that the same activities of the assessee. Recently in the matter of Vishwa Mitter Sekhri in ITA No. 75/Asr/2016 the Tribunal order dated 13.07.2021 relying upon the decision of the Jaipur, Tribunal and Rajasthan High Court in the matter Shyam Mandir Committee has held in paragraph 28 to 29 is as under: "28. In our considered opinion, the purpose of insertion of the new proviso in the act was to mitigate the hardship of the society/trust like assessee who were into charitable activities, and on account of some technical reasons, the registration has not been accorded or sought in time. Admittedly the assessee was running the educational institution and was having the requisite approval under section 10(23) for the year prior to the year under consideration and the assessee was granted the registration under section 12 A of the Act with effect from 25.9.2009. In the year under consideration, the assessee was neither having registration under section 12 A of the Act nor was having approval under section 10 (23) of the Act. However, the activities of the assessee continued to be charitable and there was no change in activities of the assessee. In ou....
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.... under section 12AA. (b) Where the total income of the trust or institution as computed under this Act without giving effect to the provisions of section 11 and section 12 exceeds the maximum amount which is not chargeable to income-tax in any previous year, the accounts of the trust or institution for that year have been audited by an accountant as defined in the Explanation below sub-section (2) of section 288 and the person in receipt of the income furnishes along with the return of income for the relevant assessment year the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed. (2) Where an application has been made on or after the 1st day of June, 2007, the provisions of sections 11 and 12 shall apply in relation to the income of such trust or institution from the assessment year immediately following the financial year in which such application is made." The Finance Act No. 2 of 2014 has inserted the proviso to sub-section (2) of section 12A with effect from 1.10.2014. We are reproducing herein below sub-section (2) of section 12A first proviso, second proviso and third proviso....
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....he case law on which the learned AR had placed strong reliance. The primary issue for our consideration is whether the CIT (A) is justified in confirming the AO's action, for all the assessment years under consideration, in assessing the entire incomes of the assessee from all the institutions at the maximum marginal rate. In this context, it is appropriate to refer the amendment to section 12A(2) of the Act and its proviso. For ready reference the same is reproduced below: (Section 12A(2) & its proviso. "[(2) Where an application has been made on or after the 1st day of June, 2007, the provisions of sections 11 and 12 shall apply in relation to the income of such trust or institution from the assessment year ITA No. 651/JP/2013 Shree Shyam Mandir Committee vs. ACIT immediately following the financial year in which such application is made:] [Provided that where registration has been granted to the trust or institution under section 12AA, then, the provisions of sections 11 and 12 shall apply in respect of any income derived from property held under trust of any assessment year preceding the aforesaid assessment year, for which assessment proceedings are pending before the....