TaxTMI 
TaxTMI 
TaxTMI 
2025 (4) TMI 1736
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....f a notice under Section 143(2) of the Act. It emerges out that case was referred to FT&TR Wing during the course of assessment proceedings and accordingly, it was centralized with DCIT, CC-II, Chandigarh in view of relevant circulars/guidelines of the CBDT by passing an order under Section 127 dated 30.01.2023. It also emerges out that thereafter, case of the assessee Trust was referred to Special Audit in view of the provisions of Section 142(2A) of the Act. Such reference was made after obtaining prior approval from Pr. CIT Central, Gurgaon. The Special Auditor has submitted his report and he pointed out some adverse inference as well as various irregularities in terms of Section 11, 12 and 13 of the Act. The AO, thereafter made a reference as per second proviso of Section 143(3) to Pr. CIT for withdrawal of registration granted to the assessee under Section 12AA of the Income Tax Act. This reference was made on 24.03.2023. The ld. PCIT has gone through the details pointed out by the DCIT, Central Circle and issued a Show Cause Notice dated 06.12.2023 inviting explanation of the assessee as to why its registration under Section 12AA granted vide order dated 13.12.2024 be not can....
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....or the reason that the reference made by Ld. AO under 2nd proviso to section 143(3) to Ld. PCIT dated 24.03.2023 is bad-in-law, illegal, void-ab-initio and against the facts and circumstances of the case. 5. That having regard to facts and circumstance of the case, Ld. PCIT has erred in law and on facts in assuming jurisdiction u/s 12AB and passing the impugned order u/s 12AB(4) inter-alia for the reason that the reference made by Ld. AO under 2"d proviso to section 143(3) to Ld. PCIT has been made without a valid Document Identification Number (DIN) in the body of such reference so made which is mandatory as per CBDT circular no. 19/2019 dated 14.08.2019. 6. That in any case and in any view of the matter, action of Ld. PCIT in assuming jurisdiction u/s 12AB and in passing the impugned order u/s 12AB(4) without valid legal jurisdiction is bad-in-law and against the facts and circumstances of the case and the same is not sustainable on various legal and factual grounds. 7. That having regard to facts and circumstances of the case, Ld. PCIT has erred in law and on facts in cancelling the registration granted u/s 12AA that too with retrospective effect from ....
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....) of Explanation to section 12AB(4) of the Act. h. That assessee has gifted an immovable property to M/s Shah Satnamji Research & Development Foundation which has the same management/control as of assessee trust and therefore, allegedly, indirect benefit has been given to alleged specified entity and thus, assessee has allegedly committed specified violation in terms of clause (a) of Explanation to section 12AB(4) of the Act. i. That operative of Dairy Farm and sale/purchase of livestock is not as per the object of the assessee trust and also no separate books of account have been made and thus, assessee has allegedly committed specified violation in terms of clause (b) of Explanation to section 12AB(4) of the Act. j. That expenditure incurred in criminal proceedings of the patron of the trust is clear violation of the objects of the trust and thus, assessee has allegedly committed specified violation in terms of clause (c) of Explanation to section 12AB(4) of the Act. k. That assessee is allegedly engaged in construction activities which is not incidental to the attainment of the its objects and further, no separate books of accounts have been m....
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....ce both the additional grounds of appeal are jurisdictional grounds of appeal, which goes to the root of cause of action, the adjudication of these grounds would affect ultimate taxability of the assessee, we have heard both the parties on these preliminary issues. We are of the opinion that the assessee's stand to agitate under these additional grounds of appeal are such which goes to basic issues vide which it is to be decided whether ld. PCIT, Central Circle was having jurisdiction to pass the impugned order or not. Similarly, whether the ld. PCIT, Central Circle could have invoked Section 12AB(4) with retrospective effect or not Considering their cumulative effect over sustainability of the impugned order, we deem it appropriate to admit both these additional grounds of appeal for decision on merit. The Hon'ble Supreme Court in the case of NTPC Ltd. Vs CIT reported in 229 ITR 383 has propounded that if no discovery of new facts is required and issues taken up for the first time before an Appellate Authority goes to the root of the cause which will ultimately affect the taxability of an assessee, then assessee could be permitted to raise additional ground of appeal. Resp....
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....Mum/2023 dated 27.07.2023 (ITAT Mum.) 3. Pacific Academy of Higher Education and Research Society vs. PCIT (Central) ITA 04-05/Jodh/2020 dated 25.01.2023, (ITAT Jodh.) 4. Wholesale Cloth Merchants Association vs PCIT (Central), ITA688/JP/2019 dated 06.01.2021 (ITAT Jaipur) 5. M/s. Amala Jyothi Vidya Kendra Trust, Bangalore vs. PCIT(Central), ITA No.l41/Bang/2024 dated 16.04.2024 (ITAT Bang.) 6. Laskhmi Chand Charitable Society Vs PCIT (Central-3) ITA 1803/Del/2024 dated 22.08.2024. 5. In his next fold of contentions, he submitted that ld. PCIT has cancelled the registration with the aid of Section 12AB(4) whereby new grounds have been assigned for empowering the authority to cancel the registration. If those contentions are present in a particular case, whether on the basis of these reasoning, a registration could be cancelled w.e.f. 01.04.2016. In other words, the additional reasoning provided under Section 12AB was brought on the Statute Book w.e.f. 01.04.2022. Can with the help of these reasoning, registration be cancelled w.e.f. 01.04.2016. In other words, whether this provision is applicable with retrospective effect or not. He submitted ....
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.... case of Lakhmi Chand Charitable Society Vs. PCIT, Cen- 3, New Delhi in ITA No. 1803/Del/2024 pronounced on 22.08.2024. 3. In this regard, it is submitted that from the plain reading of the text of sections 12AB(4) and second Proviso to section 143(3), it is abundantly clear that the intent of the legislature was to provide the powers of cancellation of registration u/s 12AA to both the CIT(E) as well as the PCIT. This is because the words 'Principal Commissioner of Income Tax' have been used in marked distinction to the words 'Commissioner of Income Tax (Exemptions)' in both the sections. It is pertinent to mention here that the scheme of the Income Tax Act, 1961 provides for only the Commissioner rank officers to hold the charge of Exemptions. The Income Tax Act, 1961 nowhere provides for a Principal Commissioner rank officer to hold the charge of Exemptions. This would evidently imply that other than the Commissioner of Income Tax (Exemptions), the legislature in its wisdom has decided to endow other officers also - viz Principal Commissioners of Income Tax, who are higher in rank to the Commissioner (Exemptions) and are not holding the charge of Exempti....
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....er has received a reference from the Assessing Officer under the second proviso to sub- section (3) of section 143 for any previous year; or ..........." 6. Furthermore, the judgment rendered in the case of Sri Krishan Educational Trust (supra) is the latest judgment of the Hon'ble ITAT, New Delhi and shall prevail over the earlier judgments rendered by the coordinate Benches of ITAT, Delhi which have been relied upon by the appellant assessee. It will also not be out of place to state that the judgment of the Hon'ble ITAT, Delhi Bench in the case of Lakhmi Chand Charitable Society Vs. PCIT, Cen-3, New Delhi, so heavily relied upon by the assessee, has been challenged by the Department before the Hon'ble Delhi High Court (screenshot attached as evidence). 7. Thus, when there are contradictory decisions of the coordinate Benches of the Hon'ble ITAT on the impugned issue, it shall be prudent to await the orders of the Hon'ble Delhi High Court. Even otherwise, the latter decision of the Hon'ble ITAT, Delhi shall prevail over the earlier decisions rendered by the coordinate Benches of Hon'ble ITAT, Delhi as already argued above. 8.....
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....therein,- (a) authorise any Principal Director General or Director General or Principal Director or Director to perform such functions of any other income-tax authority as may be assigned to him by the Board; (b) empower the Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner to issue orders in writing that the powers and functions conferred on, or as the case may be, assigned to, the Assessing Officer by or 471 of 801 under this Act in respect of any specified area or persons or classes of persons or incomes or classes of income or cases or classes of cases, shall be exercised or performed by an Additional Commissioner or an Additional Director or a Joint Commissioner or a Joint Director, and, where any order is made under this clause, references in any other provision of this Act, or in any rule made thereunder to the Assessing Officer shall be deemed to be references to such Additional Commissioner or Additional Director or Joint Commissioner or Joint Director by whom the powers and functions are to be exercised or performed under such order, and any provision of this Act....
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....ha Vs PCIT, ITA 1308/Del/2023. Copy of this decision is available on page No. 1 to 40. In this case also, PCIT, Central, Gurgaon has exercised the powers under Section 12AB sub-section (4) and cancelled the registration granted to the assessee under Section 12AA. The Tribunal has considered all attendant circumstances and thereafter held that PCIT, Central Circle, Gurgaon was not competent to cancel the registration. The ITAT took into consideration Notification No. 52 and 53 as well as the order passed under Section 127(2) of the Income Tax Act. The Notifications dated 22.10.2014 are being taken note in paragraph No. 12 page No.17 to 21 of this order of the Tribunal. Thus, the Tribunal has also considered whether Section 12AB(4) brought on the Statute Book w.e.f. 01.04.2022 could be applied with retrospective effect. Both these issues have been examined by the Tribunal exhaustively. The Tribunal also took into consideration orders of other Co-ordinate Benches. We take note of the discussion made by the Tribunal on these issues which read as under : "9. After giving thoughtful consideration to the facts and circumstances of the case and to the submissions, it comes up that....
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....f Commissioner or Chief Commissioner or Principal Commissioner or Commissioner,- (a) where the Principal Directors General or Directors General or Principal Chief Commissioners or Chief Commissioners or Principal Commissioners or Commissioners to whom such Assessing Officers are subordinate are in agreement, then the Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner from whose jurisdiction the case is to be transferred may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, pass the order; (b) where the Principal Directors General or Directors General or Principal Chief Commissioners or Chief Commissioners or Principal Commissioners or Commissioners aforesaid are not in agreement, the order transferring the case may, similarly, be passed by the Board or any such Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner as the Board may, by notification in the Official Gazette, auth....
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....ess of its activities under item (A), and compliance of the requirements under item (B), of sub-clause (i),- (A) pass an order in writing registering the trust or institution for a period of five years; (B) if he is not so satisfied, pass an order in writing rejecting such application and also cancelling its registration after affording a reasonable opportunity of being heard; (C) where the application is made under sub-clause (vi) of the said clause, pass an order in writing provisionally registering the trust or institution for a period of three years from the assessment year from which the registration is sought, and send a copy of such order to the trust or institution. (2) All applications, pending before the Principal Commissioner or Commissioner on which no order has been passed under clause (b) of sub- section (1) of section 12AA before the date on which this section has come into force, shall be deemed to be an application made under sub-clause (vi) of clause (ac) of sub-section (1) of section 12A on that date. (3) The order under clause (a), sub-clause (ii) of clause (b) and clause (c), of sub-section (1) shall be passed, in su....
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....formation or documents required to be provided under sub-rule (1) or (2) or by not complying with the requirements of sub-rule (3) or (4), the Principal Commissioner or Commissioner, as referred to in subrule (5), after giving an opportunity of being heard, may cancel the registration in Form No. 10AC and Unique Registration Number (URN), issued under sub-rule (5), and such registration or such Unique Registration Number (URN) shall be deemed to have never been granted or issued. (7) In case of an application made under sub-clause (vi) of clause (ac) of sub- section (1) of 4 [section 12A as it stood immediately before its amendment vide the Finance Act, 2023,] during previous year beginning on 1st day of April, 2021, the provisional registration shall be effective from the assessment year beginning on 1st day of April, 2022. (8) In case of an application made in Form No. 10AB under clause (ii) of the sub-rule (1), the order of registration or rejection or cancellation of registration under sub-clause (ii) of clause (b) of sub-section (1) of section 12AB shall be in Form No. 10AD and in case if the registration is granted, sixteen digit alphanumeric number Unique R....
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....owers given to the Board u/s 120 (1) and (2) of the Act, made available at pages 2 to 5 of the paper book :- "NOTIFICATION" New Delhi, the 22nd October, 2014 (Income-Tax) S.O. 2754 (E) .- In exercise of the powers conferred by sub-section (1) and (2) of section 120 of the Income-Tax Act, 1961 (43 of 1961) and in supersession of the notification of the Government of India, Central Board of Direct Taxes number S.O.880(E), dated the 14th September, 2001, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub section (ii), dated the 14th September, 2001, except as respects things done or omitted to be done before such supersession, the Central Board of Direct Taxes hereby - S. No Designation Headquarters Territorial Area Cases or classes of cases (1) (2) (3) (4) (5) 1. Commissioner of Income-tax (Exemption), Ahmedabad Ahmedabad State of Gujarat, Union Territory of Daman and Diu, Union Territory of Dadra and Nagar Haveli All cases of persons in the territorial area specified in column (4) claiming exemption under clauses (21), (22), (22A), (22B), (23), (23A), (23AAA), (23B), (23C), (23F), (23FA), (24), (46....
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....TA No. 1308/Del/2023 fifteenth proviso of the said clause with respect to fund or institution trust or institution or any university or other educational institution or any hospital or other medical institution referred under sub-clauses (iv), (v), (vi), (via) of this clause and which have been approved or provisionally approved under the second proviso to the said clause. These amendments are effective from 1st April, 2022. In addition to the specified violations referred above, the power of cancellation has also been granted under sub-rule (5) of rule 17A and subrule (5) of rule 2C of the Income-tax Rules, 1962 ( the Rules) to the Principal Commissioner or Commissioner authorised by the Board. This Circular only relates to cancellation of registration/approval or provisional registration/approval in the case of "specified violation". 13. Now, as we go through the impugned order passed u/s 12AB(4) of the Act, the ld. PCIT mentions that consequent to the completion of assessment proceedings, certain facts were communicated to his office by the AO pertaining to AY 2014-15 to 2020-21 vide his letter dated 23.08.2022. This letter dated 23.08.2022 has been reproduced at page N....
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.... of exemptions u/ss 10,11,12, 13A and section 13B of the Act. 14.2 Thus as we refer to the Notification dated 22.10.2014, the clause (a) vested powers with Commissioners of Income-tax (Exemptions), for class or class of cases pertaining to section 10, section 11, section 12, section 13A and section 13B of the Act and clause (b), to issue orders in writing for the exercise of 'their' powers and perform all 'their' functions by Additional Commissioners of Incometax or Joint Commissioners of Income-tax and Tax Recovery Officers who are subordinate to them and that signifies that again this delegation of powers by CIT(E), Chandigarh could have been qua officers subordinate to CIT(E), Chandigarh only and not, in any way, gave powers to CIT(E), Chandigarh to pass an order u/s 127(2)(b) of the Act to transfer powers vested by Board to any other Tax Authority. 14.3 Next, as we refer to Section 12 AB and Rule 17A which have come into effect from 01.04.2021, and read it with the Circular no. 11 dated 3rd june 2022, it comes up that section 12AB(2) of the Act provides that the pending applications under clause (b) of sub-section (1) of section 12AA before the....
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....tion u/s 12AB(4). The 'case' refers to assessment initiated as a consequence of search or consequential proceedings to such assessments only and cannot be extended to special powers of ld. CIT(E), Chandigarh. Thus, the assumption of jurisdiction on the basis of the order dated 26.10.2020 of CIT(E), Chandigarh is completely illegal and that makes the whole exercise of ld. PCIT passing the impugned order liable to be quashed. 16. Furthermore, if examine the legality of the procedure followed by ld. PCIT, Gurgaon to pass order u/s 12AB(4), by recourse to exercise of powers by virtue of clause (a) of sub-section (4) of section 12AB, it comes up that ld. PCIT, Gurgaon admits that a 'proposal' for cancellation of the registration of the assessee trust granted u/s 12AA of the Act was forwarded vide letter dated 23.08.2022 by the AO through the Range head. In this context, if we refer to second proviso to subsection (3) of section 143 of the Act, the same provides that if the AO is satisfied about any specified violation provided in sub-section (4) of section 12AB, the AO shall send a 'reference' to the PCIT or Commissioner to withdraw the approval or regis....
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....fficer would be subordinate, but, the CIT(E) who has been given special power for grant and cancellation of the registration as original jurisdiction. 17.1 Furthermore, here in this case, the exercise of power u/s 12AB(4) of the Act seems to also not have been done in accordance with law. As what comes up further is that, if at all, PCIT, Gurgaon was acting under clause (a) to Section 12AB(4), then, before issuing the notice dated 08.09.2022, itself the ld. PCIT, Gurgaon should have first formed his opinion that the assessee had committed one or more of a 'specified violation'. However, as we go through the relevant part of the impugned order we find that the ld. PCIT has not mentioned as to which amongst the various specified violations mentioned in Explanation attached to subsection (4) of section 12AB were attracted so as to show cause the assessee under sub-section (4) of section 12AB of the Act and ask for information by notice dated notice dated 08.09.2022. 17.2 Rather, in the opening paragraph at page 34 of the impugned order, the ld. PCIT mentions, "it was noticed that the assessee trust has committed one or more specified violation. Thereafter, in....
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....e above AYs explaining the nature and purpose of transactions undertaken with the said entities including advance given for the purpose of construction along with supporting evidences in order to substantiate the genuineness of the same. ● Relationship of the Aggarwal Vidya Pracharni Sabha and its members with the directors of M/s Tirupati Realbuild Pvt. Ltd. And M/s Radhey Krishna Infratech Pvt. Ltd." 17.4 Then in para 4.1.2 sub-clause (d), the ld. PCIT mentions of the earlier letter dated 08.09.2022 that: "d) Further, vide this office letter dated 08.09.2022, the assessee was requested to furnish details of capital and revenue expenditure incurred for various assessment years. In response, the assessee only submitted copy of Form 10B which is not supported with the details of capital expenditure and copy of accounts and documentary evidence. Further, no activity was specified for which accumulated funds were utilized." 18. Thus it appears that by this notice dated 14.03.2023, only the assessee for the first time was asked to show cause about the 'specified violation' of the nature reproduced below :- "(a) where any income....
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....ercise of the powers and functions by the Addl. CIT or JCT or TRO who are "subordinate" to them and has authorised the Addl. CIT to issue order in writing for the exercise of the powers by the Assessing Officer who are the subordinate to them. In section 124 of the Act, the jurisdiction of Assessing Officer has been given and not 'Jurisdiction of Commissioner'." 20.1 The Jaipur Bench has dealt with this issue further in paras 18 to 21 as under :- "18. We also observe that as per Sec. 120(6) of the Act, the CBDT by its Notification No. 52/2014 and 53/2014 dated 22.10.2014 has given power to CIT(Exemption) Jaipur for the State of Rajasthan for all cases of persons in the territorial area specified in column (4) claiming exemption under clauses (21), (22), (22A), (22B), (23), (23A), (23AAA), (23B), (23C), (23F), (23FA), (24), (46) and (47) of section 10, section 11, section 12, section 13A and section 13B of the Act and assessed or assessable by an Income-tax authority at serial numbers 131 to 140 specified in the notification of Government of India bearing number S.O.2752 dated the 22nd October, 2014. Thus firstly as per above notification and provisions of ....
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....ions were however overruled and assessee's case was transferred - High Court quashed purported transfer u/s 127 - Held, "Centralisation Committee" which took decision for transfer of jurisdiction, is not authority envisaged u/s 127(2) - Counter-affidavit filed on behalf of Revenue does not disclose that there was any agreement between authorities of equal rank,as a pre-condition for invoking powers u/s 127 - "Absence of dissenting note" from officer of equal rank who has to agree to proposed transfer would not constitute agreement, envisaged u/s 123(2)(a) - Assessee's petition allowed." 21. It was also been brought to our notice that the AR had inspected the records of the case but there was no agreement between both the CIT's regarding initiation of proceedings U/s 12A of the Act. The entire communication on record is with regard to limited purpose of Co-Ordinate only. Even assessments the Instruction No. F.No.286/88/2008IT(Inv-II) dated 17.09.2008 has relied upon by the Revenue also relates to "search assessment" and was not with regard to proceedings U/s 12A or other proceedings. Even no agreement for initiation proceedings U/s 12AA of the Act has been found....
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....ich contemplates positive state of mind of the two jurisdictional Principal Commissioners of Income Tax. The agreement contemplated by clause (a) of subsection (2) of section 12 7 may not be a drawn up agreement. What is necessary is that there has to be an agreement which will involve positive state of mind of the two jurisdictional Principal Commissioners. Both of them must consent to the transfer after application of mind. 9. In the present case, it is not even the case made out in the show cause notice that the agreement as contemplated by the first part of clause (a) of sub-section (2) of section 127 exists. The existence of such agreement between two jurisdictional Commissioners is a condition precedent for passing the order of transfer. Except for the request which came from the investigation office, Chennai of transferring the case, 38 ITA 688/JP/2019_ M/s Wholesale Cloth Merchant Association Vs Pr. CIT there is no reference whatsoever to any such agreement. Clause (b) of subsection (2) of section 127 provides for consequences when there is no such agreement. When the jurisdiction to pass an order of transfer under clause (a) of sub-section (2) of Section 127 can b....
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....of the principles of natural justice for which the order should be held to be invalid" Held : The requirement of recording reasons under s. 127(1) is a mandatory direction under the law and non-communication thereof is not saved by showing that the reasons exist in the file although not communicated to the assessee. When law requires reasons to be recorded in a particular order affecting prejudicially the interests of any person, who can challenge the order in Court, it ceases to be a mere administrative order and the vice of violation of the principles of natural justice on account of omission to communicate the reasons is not expiated. Non- communication of the reasons in the order passed under s. 127(1) is a serious infirmity in the order for which the same is invalid .-- Kashiram Aggarwalla vs. Union of India (1965) 56 ITR 14 (SC) : TC69R.660 and S. Narayanappa vs. CIT (1972) 86 ITR 741 (All) : TC51R.651 distinguished; Sunanda Rani Jain vs. Union of India 1975 CTR (Del) 135 : (1975) 99 ITR 391 (Del) : TC69R.693 overruled; Judgment and order dt. 12th Sept., 1974, of the Andhra Pradesh High Court in Writ Appeal No. 626 of 1974 set aside. The Hon'ble....
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....guments raised by the ld. CIT DR have been identically taken note by the ITAT. The ld. CIT DR has made reference to an order of the ITAT Delhi in the case of Shree Krishna Educational Trust Vs Director General of Income Tax. In this case issue before the Tribunal was whether DGIT (Investigation) Lucknow was justified in cancelling the approval granted under Section 10(23C)(vi) of the Income Tax Act. This approval was to be granted to an educational institution and once an approval is being granted by CIT (Exemptions), then income of an educational institution will not be liable to tax upto a certain quantum. The DG (Investigation), Lucknow has cancelled such approval and this issue travelled upto the Tribunal. The Tribunal has held that DG(Investigation) has no power to cancel the approval granted for the purpose of Section 10(23C)(vi). In the opinion of the Tribunal, it was the CIT (Exemptions) or PCIT, the ld. DR wants to persuade the Bench to take note of the passing reference made by the Tribunal in paragraph No. 4 that such approval could be withdrawn by CIT (Exemption) or PCIT. The question in this order is not for the proposition agitated before us. The dispute in that case ....