TaxTMI 
TaxTMI 
2017 (2) TMI 1511
X X X X Extracts X X X X
X X X X Extracts X X X X
....smissing the appeals of assessee has been wrongly mentioned as St. Francis Convent School, Phagwara, instead of Joseph's Convent School, Phagwara and it was submitted that the name of the assessee be also rectified while disposing of the appeals. It was further submitted that while filing the appeals before Hon'ble Tribunal by oversight in form no. 36 the name was mentioned as St. Francis Convent School instead of St. Josheph's Convent School and therefore he filed another copy of form no. 36 with corrected name and it was requested that the same may be taken on record. The Ld. A.R. submitted that since the assessee has removed defects therefore, the order of the Tribunal dated 18.03.2014 be recalled and appeals be heard on merits. 4. The Ld. DR had no objection to recalling of the Tribunal order dated 18.03.2014, therefore, the said order was recalled and Ld. AR was directed to proceed with his arguments. 5. In view of the above the miscellaneous applications filed by Assessee are allowed and fresh corrected form no. 36 are taken on record. 6. At the outset the Ld. AR submitted that the cases of the assessee are covered by the consolidated order of the Tribunal in case o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....spect of any income, derived from property held under trust, of any assessment year preceding the assessment year immediately following the financial year in which an application for registration of the Trust or Institution is made by the person in receipt of the income, for which, assessment proceedings are pending before the Assessing Officer. According to the Ld. DR, since at the said relevant time, the assessment proceedings for the said assessment year were not pending before the Assessing Officer, the provisions of the first proviso to Section 12A(2) are not applicable to the case of the assessee. Therefore, as per Ld. DR, the benefit of exemption cannot be granted to the assessee for the said assessment year. 12. In response to this, the Ld. Counsel for the assessee has contended that the assessment proceedings pending in appeal are deemed to be assessment proceedings pending before the Assessing Officer. For this proposition, the Ld. Counsel has placed reliance on the decisions in the cases of 'SNDP Yogam Vs. ADIT', (2016) 68 taxmann.com 152 (Cochin Trib) and 'Shree Bhanushali Mitra Mandal Trust', (2016) 68 taxmann.com 250 (Ahemedabad-Trib). 13. The Ld. DR has further....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....06.2007, the provisions of Sections 11 and 12 shall apply for any assessment year preceding the assessment year immediately following the financial year in which the application for registration was made, for which year, the assessment proceedings are pending before the Assessing Officer as on the date of the registration and the objects and activities of the Trust or Institution remained the same as those on the basis of which the registration was granted. According to the second proviso to Section 12A(2), where for the assessment year immediately following the financial year in which the application for registration was made, the Trust or Institution is not registered, no action U/s 147 shall be taken for any assessment year. 17. The first issue before us is as to whether the two provisos to Section 12A(2) are applicable to all the appeals before us, respectively, as contended by the Ld. Counsel for the assessee, or whether, since the provisos have been brought in w.e.f. 01.10.2014 and they have not been made applicable retrospectively, the same are not applicable for earlier periods, as submitted by the department. 18. Now, a bare reading of the first proviso to Section 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....24. Now, undeniably, the assessment of income is a matter of procedure. Even the heading of Chapter (xiv) of the Act, which deals with assessment, itself is "PROCEDURE FOR ASSESSMENT". Likewise, grant of registration is also a procedural aspect, since registration is but a step-in-aid for exemption u/s 11. As such, the provisos to Section 12A(2) are also procedural. 25. So far as regards the bringing in of the first proviso to Section 12A(2), the Memorandum explaining the provisions of the Finance (No.2) Bill, 365 ITR (Statute) 175 itself elaborates the intention of the Legislature behind insertion thereof in the statute book. It states, inter alia, that "nonapplication of registration for the period prior to the year of registration causes genuine hardship to charitable organizations. Due to absence of registration, tax liability gets attached even though they may otherwise be eligible for exemption and fulfill the other substantive conditions. The power of condonation of delay is not available under the section. In order to provide relief to such Trusts and remove hardship in genuine cases, it is proposed to amend Section 12A of the Act to provide that in a case where a Trust ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lso held, regarding the second batch of appeals, that even the second proviso to Section 12A(2) is retrospective in nature and the completed assessments in these cases ought not have been reopened only for non-registration for the relevant assessment years. 30. This brings us to the next question, i.e., whether the assessment proceedings "pending before the Assessing Officer", as stated in the first proviso to Section 12A(2) can be taken as "pending in appeal", or, in other words, whether proceedings pending in appeal can be taken to be proceedings pending before the Assessing Officer. This issue also stands answered in favour of the assessee by 'Shreee Bhanushali Mitra Mandal Trust', (supra), wherein, it was held that appeal is a continuation of the original proceedings and assessment proceedings pending before an appellate authority should be deemed to be "assessment proceedings pending before the Assessing Officer" within the meaning of Section 12A. 'SNDP Yogum', (supra), is to the same effect. Again, no contrary decision has been brought to our notice. Accordingly, it is held that the appellate proceedings before the appellate authorities are deemed to be assessment proceedi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....out of its current year's income and not out of any accumulated income. 36. In this regard, in 'DIT(E) Vs. Bagri Foundation', 344 ITR 193 (Del), it has been held that the restriction/embargo in donation by one charitable Trust to another is only restricted to accumulations made in excess of 15% of income of the Trust, as referred to in Section 11(2) of the Act; and that the said prohibition does not apply to current year income, or even to accumulations up to 155% U/s 11(1)(a) of the act. 37. Other than the above, the Assessing Officer has observed that the Diocese of Jalandhar was also having some religious objects. This, however, is not at all detrimental to the claim of the assessee. It may be reiterated that the Diocese of Jalandhar stands notified U/s 10(23C)(vi) of the Act. This provision, it may be noted, is applicable to universities and educational institutions, which exist solely for educational purposes and not for purposes of profit. Neither the assessment order/s of the assessee/s, nor the assessment order/s of the Diocese of Jalandhar, carry any finding of the Diocese of Jalandhar pursuing religious objects. Merely having religious objects does not amount to pur....