2017 (2) TMI 1534

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....accorded Registration u/s 12A(a) of the I.T. Act, 1961 vide letter F.No. DIT(E)/12A/2008-09/D-1392/1630 dated 30.03.2009 issued by the Department from the AY. 2009-10 onwards. The registration u/s 12A so granted was withdrawn by the DIT (E), Delhi's order passed u/s 12AA(3) r.w.s. 12A of the I.T. Act, 1961. Subsequently the Ld. DIT (E), Delhi vide his order F. No. DIT (E)/12A/2011-12/854 dated 11.10.2012 has restored the Registration granted u/s 12A vide F. No. DIT (E)/ 12A/2008-09/D-1392/1630 dated 30.03.2009, since inception. The assessee has also been granted certificate u/s 80G(5)(vi) of the Act by the DIT(E), Delhi vide order No. DIT(E)/2012-13/D- 1392/1376 dated 11.10.2012 for the period from A.Y. 2010-11 onwards till it is rescinded. A) The main objects of the assessee includes :- 1) To promote, encourage, support data protection and information security, maintenance of data privacy of any kind in India carrying out research, dissemination of information, setting of standards, for members providing education, training, conducting meetings, seminars, workshops, conferences interacting with government or non-government bodies, agencies, companies or any o....

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.... 1. Promote the art and science of IT software and services for use in all types of computing equipment. 2. Encourage and assist balanced development of the IT software and services Industry. 3. To 11 ............ 12. Edit, print and publish journals, books pamphlets and other material relevant to the software profession. 13. Collect, tabulate and circulate information and statistics of value to industry." 5. From the above, he concluded that the donation had been given to the assessee to promote the objects of the NASSCOM and not for any charity. He also referred to the confirmation received from M/s Verizon Communication India Pvt. Ltd. (VCIPL). The same is reproduced hereunder :- "The confirmation has also been received from M/s Verizon Communication India Pvt. Ltd. (VCIPL). This company has stated that during the AY 2011-12, VCIPL was engaged in the business of providing telecommunication services in the nature of internet and data transmission services in India to its various corporate customers. VCIPL has submitted that the following services were rendered by the Data Security Council of India: 1. Sponsorship o....

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.... any place by any person or persons in any manner whatsoever, through all mediums of communications, whether online or offline, including but not limited to, print media, electronic media and the internet. 2. Take effective steps to raise awareness among stakeholders in IT/ ITES and user industry of information security and privacy protection through appropriate awareness, education, training, research and capacity building programmes. 3. Strive to position itself as an institution dedicated to ensure, promote, encourage, and support data protection and information security, maintenance of data privacy, intellectual property rights in data and software, fraud prevention, of any kind in India or abroad by combining, developing, monitoring and enforcing the appropriate data privacy and security standards to be evolved and adopted by the company. 4. To promote awareness or assist in the operation or implementation of the Information Technology Act, 2000, and any other relevant Act(s) and any legislation, rules, regulations and guidelines as amended from time to time and prevailing for the time being in force, which may seem conducive to the Company's obj....

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..../ promoted for a charitable purpose. It could not carry on any activities for profit and had to work as non-profit organization and to apply the entire income for charitable purposes. Further, the assessee pointed out that as per clause X of the MOA no part of the income/ funds of the assessee could be distributed amongst its members as profit and in the event of dissolution of the company, any surplus shall vest in any other company incorporated u/s 25 of the Companies Act having similar objects as that of the assessee. Further, Clause VI of the MOA provides further safeguard that any alternation in MOA would require prior authorization from the regulatory authorities. As regards the activities of the assessee being non-commercial, the assessee pointed out as under :- "No commercial activity On perusal of the aforesaid, it will kindly be appreciated that not only there is an overriding mandate on the appellant to pursue its objects and carry on the activities on no-profit basis, but the appellant, as a matter of fact, too, carries out its activities on no-profit basis. None of the receipts of the appellant were from any of the commercial activities. &nbs....

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....xemption certificate under Section 12AA of the Income Tax Act, 1961. The appellant received 80% of its receipts from NASSCOM during the year." 9. Ld. CIT(A), after considering the aforementioned submissions of assessee allowed the assessee's appeal observing in para 5.3 as under :-  "5.3 The reason given by AO and the submission of the appellant are considered. The AO has linked the activities of the appellant with NASSCOM and has considered the appellant as a service provider to NASSCOM, thus denying the benefit of section 11 on the premise of commercial activities during the year. Thus, the assumption of the Ld. AO on considering the amount received as a professional service is incorrect and bad in law. However, nomenclature of a particular receipt does not change the real character and objective of a transaction. The nature of activities is a matter of facts and needs to be analyzed on the basis of its prime objectives. Since, the genuineness and reasonableness of the activities of the appellant is not in question and it is only the nomenclature which has resulted in the denial of the exemptions, the same is incorrect. In view of this, ground 2 and 3 of....

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....nted out that ld. DIT (Exemptions) had specifically observed that activities undertaken by the assessee were covered by the last limb of section 2(15) i.e. any other objects of general public utility. He further referred to para 6 and 7 of the order and pointed out that it was also observed that assessee does not qualify for continuation of registration u/s 12A/12AA. He referred to page 37 to 41 of Paper Book, wherein, the order of DIT (Exemptions), Delhi dated 24.03.2011 cancelling the registration granted u/s 12A is contained. Ld. counsel referred to page 44 to 55 of Paper Book, wherein, the Tribunal's order against the aforementioned order is contained, in which, the orders cancelling the grant of exemption u/s 80G and 12A were set-aside and the matter was restored to the authorities below. Ld. counsel referred to page 56 of Paper Book, wherein, order of DIT (Exemptions) dated 11.10.2012 is contained, restoring back the registration u/s 12AA(3) since inspection. Ld. counsel further referred to page 57, wherein, order u/s 80G(5)(vi) is contained entitling the assessee exemptions under the said section, wherein, the following conditions have been mentioned, which are reproduced he....