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Income Tax Appellate Tribunal, IN THE INCOME TAX APPELLATE TRIBUNAL,
This is an appeal filed by the assessee agai This is an appeal filed by the assessee against the order of the ld nst the order of the ld CIT(A) , , NFAC, NFAC, Delhi, Delhi, dated 9.12.2021 9.12.2021 in Appeal No.ITBA/NFAC/S/250/2021 A/NFAC/S/250/2021-22/1037650259(1) for the assessment year for the assessment year 2016-17.
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Shri S.K.Agarwalla, CA appeared for the assessee and Shri S.C.Mohanty, ld Sr DR appeared for the revenue.
It was submitted by ld AR that the assessee is a charitable trust running a public school. It was the submission that the assessee had filed application for registration u/s.12A of the Act on 1.2.2019 and the assessee was granted registration u/s.12A of the Act on 1.10.2021 consequent to the order of the Tribunal dated 15.7.2020. It was the submission that the order of the CIT(A) is 9.12.2021 and as the proceedings before the CIT(A) is an extention of the assessment proceedings, in view of the provisions of sub- section (2) of Section 12A of the Act, the assessee is held to be having registration u/s.12A of the Act. It was the submission that the Assessing Officer has taken a stand that the assessee does not have the registration u/s.12A of the Act. It was the submission that the issues in the appeal may be restored to the file of the Assessing Officer for re-adjudication after considering that the assessee has the registration u/s.12A. Ld AR also placed reliance on the decision of the Hon’ble Rajasthan High Court in the case of CIT (Exemptions) vs Shree Shyam Mandir Committee, 400 ITR 466 (Raj), wherein in para 30, it has been held as follows:
“30. This brings us to the next question, i.e. whether the assessment proceedings “pending before the AO” 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 te AO. This issue also stands answered in favour of the assessee by Shree Bhanushali Mitra Mandal (supra), P a g e 2 | 6 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 AO” within the meaning of S.12A SNDP Yogam (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 proceedings pending before the AO.”
In reply, ld Sr DR submitted that in view of the decision of the Hon’ble Allahabad High Court in the case of CIT (Exemptions) vs Shiv Kumar Sumitra Devi Smarak Shikshan Sansthan, 422 ITR 468 (All), the provisions of sub-section(2) of Section 12A refers to assessment proceedings pending before the Assessing Officer. It was the submission that admittedly, the assessment proceedings u/s.143(3) of the Act came to be completed on 24.8.2018 and the assessee is not entitled to be treated as having registration u/s.12A of the Act for the assessment year 2016-17. He drew my attention to paras 18 to 21 of the order of the Hon’ble Allahabad High Court in the case of Shiv Kumar Sumitra Devi Smarak Shikshan Sansthan,(supra), which read as follows:
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In reply, ld AR submitted that as there are contrary decisions, the decision in favour of the assessee is to be considered in view of the decision of the Hon’ble Supreme Court in the case of Vegetable Products, 88 ITR 192 (SC).
I have considered the rival submissions. The facts of the present case clearly show that the assessee has been granted registration w.e.f 1.10.2021. Admittedly, the assessment order has been passed as early as 24.8.2018. The assessee has applied for registration u/s.12A of the Act on 1.12.2019 and after prolonged litigation, the assessee has been granted registration on 1.10.2021. The CIT(A)’s order admittedly is on 9.12.2021. The Hon’ble Rajasthan High Court in the case of Shree Shyam Mandir Committee(supra) has categorically held that the proceedings before the ld CIT(A) are extention of assessment proceedings. The Hon’ble Allahabad High Court in the case of Shiv Kumar Sumitra Devi Smarak Shikshan Sansthan (supra) has held that the proceedings must be pending before the Assessing Officer. We are faced with two contrary decisions. Consequently, in view of the principles laid down by the Hon’ble Supreme Court in the case of Vegetable Products (supra), the view in favour of the assessee is being adopted and respectfully following the decision of Hon’ble Rajastan High Court in the case of Shree Shyam Mandir Committee(supra), the issues in the appeal are restored to the file of the Assessing Officer for P a g e 5 | 6 re-adjudication after considering that the assesee has registration u/s.12A of the Act.
In the result, appeal of the assessee stands partly allowed for statistical purposes.
Order dictated and pronounced in the open court on 24/04/2023.