THE MUMBAI OBSTETRIC GYNAECOLOGICAL SOCIETY,LOW PAREL (W) vs. PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL), PUNE, PUNE

IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCHES “B”, PUNE

BEFORE DR.MANISH BORAD, ACCOUNTANT MEMBER
AND SHRI VINAY BHAMORE, JUDICIAL MEMBER

आयकर अपीऱ सं. / ITA No.518/PUN/2023
1. Poona Obstetrics and Gynaecological Society,
302/303, Dr. Neety Mandke IMA
House, Tilak Road,
Shukrawar Peth,
Pune 411 002, Maharashtra
PAN : AAATP1435C
Vs. Pr.CIT (Central),
Pune
Appellant

Respondent

आयकर अपीऱ सं. / ITA No.522/PUN/2023
2. The Mumbai Obstetrics and Gynaecological Society,
C-114, Ist Floor, D-wing Entrance,
Trade World, Kamala City,
Senapati Bapat Marg,
Low Parel (W), Mumbai-400 013
Maharashtra
PAN : AAATT4562C
Vs. Pr.CIT (Central),
Pune
Appellant

Respondent

आयकर अपीऱ सं. / ITA No.549/PUN/2023
3. Agra Obstetrical and Gynaecological Society,
84, M.G. Road,
Agra 282 010, Uttar Pradesh
PAN : AABTA6327K
Vs. Pr.CIT (Central),
Pune
Appellant

Respondent

आयकर अपीऱ सं. / ITA No.417/PUN/2023
4. AIDS Society of India,
Ground Floor,
Maharukh Mandsion,
Alibhai Premji Marg,
Grant Road (E),
Mumbai 400 007
Maharashtra
PAN : AABTA4129R
Vs. Principal Commissioner of Income-tax (Central),
Pune
Appellant

Respondent

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आदेश / ORDER

PER DR. MANISH BORAD, ACCOUNTANT MEMBER :

These appeals at the instance of different assessees‟ are directed against the separate orders all evenly dated 06.03.2023
framed by PCIT (Central), Pune u/s.12AB(4) of the Income-tax
Act, 1961 (in short „the Act‟).

―1. Learned PCIT-Central Circle, Pune erred in law and on facts in cancelling registration u/s.12A of ITA, 1961, by referring and relying upon powers u/s.12AB(4) of the ITA, 1961. Learned PCIT-Central Circle,
Pune erred in treating Appellant Trust as a facilitator/conduit in tax evasion pursuit deployed by "EMCURE group" of companies.

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contends that, such an analogy is incorrect considering the absence of possibility of any benefits being reaped / enjoyed by Appellant, being a public charitable trust.

Additional Ground :

On facts and circumstances of the case and in law, the learned Principal
Commissioner of Income Tax, Central Circle, Pune has erred in passing an order u/s.12AB(4) of the ITA, 1961 thereby cancelling the registration of the appellant trust without juri iction. As such, cancellation is bad in law.

―The following grounds are taken without prejudice to each other -

On facts and in law,

1] The learned Pr. CIT erred in cancelling the registration u/s 12AB(4) w.e.f. A.Y. 2015-16 which was granted to the assessee society u/s 12A by wrongly holding that the activities of the appellant society are neither genuine nor are being carried out in accordance with its objects.

21 The learned Pr. CIT failed to appreciate that -- a. The appellant society accepted the grants from the pharma companies for the educational programs and not for giving any freebies to the delegates for the conferences and thus, it had not violated the Indian
Medical Council Regulations.

b. The activities of the society like conducting medical camps, medical conferences, etc. were conducted as per the trust deed and there was no illegal activity of the society in any of these years.

C. Indian Medical Council had never held that the appellant society had violated any of its rules and regulations in conducting its activities over the years.

d. Arranging the travel, lodging, etc. for the faculties for the medical conferences and offering them some mementoes did not amount to ITA No.518, 522, 549 and 417/PUN/2023
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offering freebies to them as it is a general norm that the organisers have to bear such expenditure for selected faculty.

e. The appellant society had not carried out any activity conflicting with its objects and which is not genuine.

f. By accepting the grants from the pharma company for its educational programs, the appellant had not acted as a conduit of that company for distributing freebies to the medical practitioners /doctors and accordingly, withdrawing registration of the society u/s 12AB(4) was not justified.

4] The learned Pr. CIT was not justified in holding that the appellant society was a conduit between Emcure Pharma Companies and the medical practitioners for the purposes of providing freebies by those companies to the medical practitioners.

5] The learned Pr. CIT erred in ignoring the fact that the grants received from the pharma companies were utilised properly for the objects of the society like organising the conferences on medical subjects, medical camps, etc. etc. and therefore, the society had not violated any of the rules / regulations of Indian Medical Council and hence, the withdrawal of registration u/s 12AB(4) is not justified.

6] Without prejudice, the learned Pr. CIT was not justified in withdrawing the registration w.e.f. A. Y. 2015 16 u/s 12AB(4) by relying on explanation (e and f) thereof when such explanation was introduced by Finance Act, 2022 only and it was not on the statute in the earlier years.

7] The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal.

Additional Ground :

On facts and circumstances of the case and in law, the learned Principal
Commissioner of Income Tax, Central Circle, Pune has erred in passing an order u/s.12AB(4) of the ITA, 1961 thereby cancelling the registration of the appellant trust without juri iction. As such, cancellation is bad in law.

―1. The Learned Pr. Commissioner of Income Tax has erred in law and on facts initiating proceedings under section 12AB(4) on the reference made by the Ld. AO even when the alleged issue were not subject matter of the proceedings before him.

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2. The learned Pr. Commissioner of Income Tax has erred in law and on facts in withdrawing our registration u/s 12AB, without there being any specified violation as contemplated in section 12AB(4).

Additional Ground :

On facts and circumstances of the case and in law, the learned Principal
Commissioner of Income Tax, Central Circle, Pune has erred in passing an order u/s.12AB(4) of the ITA, 1961 thereby cancelling the registration of the appellant trust without juri iction. As such, cancellation is bad in law.

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―The Principal Commissioner of Income-tax (Central), Pune (hereinafter referred to as the Pr CIT) erred in framing an order under section 12AB(4) of the Act and cancelling the registration granted to the appellants under section 12AA the Act.

The appellants contend that on the facts and in the circumstances of the case and in law, the Pr CIT ought not to have framed the order under section 12AB(4) and cancelled the registration under section 12AA inasmuch as he has not appreciated the facts of the case in its entirety and hence, the action of the Pr CIT is bad in law and the impugned order needs to be quashed.

The appellants further, contend that the Pr CIT has not brought any evidence on record to prove that specified violation as defined in Explanation to section 12AB(4) has occurred and hence, the action of the Pr CIT in framing the impugned order is bad in law and needs to be reversed.

The appellants crave leave to add to, alter or amend the aforestated ground of appeal.‖

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10. From perusal of the above grounds, we notice that legal issued have been raised in the additional grounds challenging the powers vested with the ld.PCIT for cancelling the registration u/s.12A/12AA/12AB(4) of the Act. Two-fold contentions were raised by the ld. Counsel for the assessee firstly stating that power of cancellation is vested with ld. CIT(Exemption) and not with ld. PCIT and secondly no powers are bestowed in section 12AB of the Act for cancellation of registration granted u/s.12A
(old regime). However, during the course of hearing itself, ld.
Counsel for the assessee requesting for not pressing the first fold of contention that the order of cancellation of registration u/s.12A/12AA/12AB can only be ordered by ld.CIT(Exemption).
This contention has not been pressed before us. We are dispensing of with mentioning all the arguments made by both the sides during the course of hearing carried out on earlier occasions. Thus, the only one legal issue which remains to be adjudicated is as to whether powers are provided u/s.12AB of the Act to cancel the registration granted u/s.12A of the Act under the old regime.

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and The Mumbai Obstetrics and Gynaecological Society (in short
„POGS and MOGS‟), the registration under the old regime were granted u/s.12A of the Act on 04.12.1982 and 16.12.1976
respectively. So far as the other two assessees are concerned namely AOGS and AIDS society registrations have been granted u/s.12AA of the Act.

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the Act. On the basis of said reference, ld. PCIT proceeded to examine the records of the assessee. In the said reference, there was mention about the search and seizure action u/s.132 of the Act carried out on 16.12.2020 in Emcure Group of cases and the assessee trust was identified as beneficiary of sponsorship of its activities by Emcure Pharmaceuticals Private Limited (in short
EPL). A survey u/s.133A of the Act was simultaneously conducted in the case of assessee trust on 16.12.2020 and various documents/digital evidences of allegedly providing freebies in various forms to Doctors/Medical Practitioners were found.

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examined the expenditure made for the doctors which mainly included the booking of hotels for organising conferences, air tickets for the speakers, accommodation provided to the doctors.
It was also observed that one of the sponsors namely EPL has given the list of doctors who were to participate in conferences. It was observed that name of delegates and doctors who would attend the conferences are decided by the sponsoring
Pharmaceutical Company and the list thereof is sent to the doctors and the Trust do not interfere in selection of the delegates for the conference.

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provisions of section 12AB(4) and the specified violation referred therein. He also referred to clause 6.8 of the Indian Medical
Council Regulations 2002 applicable to Pharmaceutical and allied
Health sector industries. Ld. PCIT concluded the proceedings by cancelling the registration granted u/s.12A(a) of the Act on 14.12.1982 from A.Y. 2014-15 onwards and also cancelled the registration granted u/s.12A(1)(ac)(i) issued on 08.02.2022 to be cancelled from A.Y. 2022-23 onwards observing as follows :

―11. In the survey proceedings in the case of the assessee trust certain documents impounded contain correspondence regarding list of doctors nominated by Emcure Pharma. Some of the documents viz. Pages 8-11
in. Bundle No 06 and Pages 36-38 of Bundle No 05 have been reproduced in reference of the Assessing Officer. These documents contain a list of the doctors who were nominated by Emcure Pharma and the nominations were accepted by the assessee trust. Arrangements for accommodation of the nominated doctors are also found to be made.

From the aforesaid factual background it is clear that the prohibitions contained in Indian Medical Council (Professional Conduct,
Etiquette and Ethics) Regulations, 2002 were circumvented by the pharmaceutical company with the help of the assessee trust. In doing so the pharmaceutical company has also avoided disallowance of expenditure in violation of the MCI Regulations which come in the ambit of Explanation to section 37(1) of the Act and CBDT Circular No 05/2012. This clearly shows that the averments of the Assessing Officer in his reference are proved.

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12.1 Similar is the situation in the case of the assessee trust, as assessee trust is constituted by the doctors/medical practitioners who are governed by MCI Regulations, 2002. The assessee trust has admitted that pharma companies had nominated their delegates for the conference, and in respect of the nominated doctors/delegates, the assessee trust has incurred expenses towards travel facilities, lodging &
boarding, registration fee etc. on such doctors on behalf of the pharma companies, which is clearly in contravention of the MCI Regulations,
2002. In this context the following observations of the Hon'ble ITAT
Mumbai in the case of Deputy Commissioner of Income-tax, Central
Circle-2(4),
Mumbai
Macleods
Pharmaceuticals
Ltd.[2021]
131
taxmann.com 154 (Mumbai Trib.) are found relevant:

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observing that "In the same way.....the person who writes the medicine also gets something. You must know that the doctors' conference is sometimes in Singapore, sometimes it is in Dubai. It is not because someone is sick there; it is so because it is necessary for the pharmaceutical companies"
(https://www.narendramodi.in/
preliminary- text-of-pm-s-interaction-in-bharat-ki-baat-sabke-saath- programme-at-london--539744). If Government can bring down the effective cost of medicine by 85% by selling the same medicine by its generic name, one can imagine how end users have been taken for a ride all along-and these freebies have played a critical role in those maneuverings. Not only it is wholly illegal that medical professionals are extended freebies by the pharmaceutical companies, but such gratifications are also clearly opposed to public policy as well as is recognized by Hon'ble Punjab & Haryana High Court in the case of Kap
Scan's case(supra).

"It, thus, emerges that an assessee would not be entitled to deduction of payments made in contravention of law. Similarly, payments which are opposed to public policy being in the nature of unlawful consideration cannot equally be recognized. It cannot be held that businessmen are entitled to conduct their business even contrary to law and claim deductions of payments as business expenditure, notwithstanding that such payments are illegal or opposed to public policy or have pernicious consequences to the society as a whole."

"If demanding of such commission was bad, paying it was equally bad. Both were privies to a wrong. Therefore, such commission paid to private doctors was opposed to public policy and should be discouraged. The payment of commission by the assessee for referring patients to it cannot by any stretch of imagination be accepted to be legal or as per public policy. Undoubtedly, it is not a fair practice and has to be termed as against the public policy."

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render the activities of the assessee trust as non-genuine. Hence, the assessee is found to have done a 'specified violation" in so far as the assessee is found to be carrying out activity of organizing conferences which involves providing facility to pharmaceutical company to give freebies to doctors. This act of facilitating the act of providing freebies is not being carried out in accordance with any of the conditions subject to which it was registered nor such activity is in accordance with the objects of the assessee trust. Thus, specified violation under clause (e) of Explanation below section 12AB(4) of the Act is found to have taken place in the case of the assessee trust.

"An entity which is misusing the status conferred upon it by section 12AA of the Act is not entitled to retain and enjoy said status. The authorities were therefore, right and justified in cancelling the registration under sections 12AA and 80G of the Act."

Similarly, the Hon'ble Allahabad High Court in the case of Dr. Bhim Rao
Ambedkar Educational Society vs. Commissioner of Income-tax,
(Exemptions) [2017] 88 taxmann.com 524 (Allahabad) has held that withdrawal of registration granted to assessee-Society under section ITA No.518, 522, 549 and 417/PUN/2023
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12AA was justified where its activities were neither genuine nor was it run as per objective set out in memorandum.

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"121. One of the key contentions raised by the Id. counsel before us is that the Id. CIT(E) does not have the power to cancel the registration from retrospective date and any such cancellation can only be prospective, i.e., from the date of passing of the order and in support of which certain decisions have also been relied upon.
From a bare reading of Section 12AA (3) it is seen that, section provides that where a trust or an institution has been granted registration and if subsequently, Pr. CIT or CIT is satisfied that the activities of the trust are not genuine or are not carried out in accordance with the objects of the trust, he may cancel the registration by way of an order in writing. Consequently, if there is violation of any such conditions, then the registration so granted can be cancelled by the CIT. Nowhere, the Statute envisages that the cancellation cannot be retrospective or it has to be necessarily prospective. What it provides that the Commissioner has statutory powers to cancel the registration u/s. 12A/12AA if he finds reason to believe that the activities of the assessee are not in line with its objects or the activities carried out by the assessee are not genuine in nature. If from the date when registration has been granted, the assessee has not carried out any activity in line with its objects or the activities carried out are not genuine, then from that date itself, the registration can be cancelled because it is only when the knowledge of such breach come to the notice of the Commissioner, then he has the power to cancel the registration from the date he notices the infringement. The cancellation of registration, whether with retrospective effect or prospective, depends upon the facts and circumstances of the case and the Commissioner has power to cancel the registration from the time when such breach has occurred. Suppose, if the assessee after grant of registration carries out its activities in accordance with its objects and the activities are also genuine then the assessee is entitled for benefits of section 12AA; and if from a particular period or year, the activities are found to be either non-genuine or not carried out in accordance with its stated objects, then the Commissioner can cancel the registration from the date or period when such non genuineness is found. Hon'ble Madras High Court in the case of Prathyusha Educational Trust (supra) have clearly reiterated this proposition, relevant text of which has been already incorporated above, wherein their Lordships have held it a misnomer to state that the order is retrospective or retroactive and the order of the cancellation of registration even passed on subsequent date would take effect from the year when cause of action arose".

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17. I am, therefore, of the considered opinion that the aforesaid activities of the assessee trust are not in accordance with the objects of the assessee trust. Therefore, activities of the assessee trust cannot be held genuine. In fact, clause (a) of Explanation below section 12AB(4) provides that if any income of the trust, has been applied, other than for the objects of the trust or institution, same will come under the ambit of specified violation. Further, if any activity of the trust or institution is not genuine or is not being carried out in accordance with all or any of the conditions subject to which it was registered, then same would also be covered under the specified violation as provided under clause (e) of Explanation below section 12AB(4) of the Act. And lastly clause (1) of Explanation below section 12AB(4) of the Act provides that if the trust or institution has not complied with the requirement of any other law, then same would also be a specified violation under the said clause. Since in this case, the assessee trust by acting as a conduit of the pharmaceutical companies has provided freebies to the doctors/medical practitioners nominated by such pharmaceutical companies, as such, it has violated the MCI Regulations, 2002 and the decision of the Hon'ble
Apex Court in the case of Apex Laboratories (P.) Ltd. v. Deputy
Commissioner of Income-tax reported in [2022] 442 ITR 1 (SC) which has become law of land. This act of violation of 'other law' by the assessee trust falls under the specified violation in clause (f) of Explanation below section 12AB(4) of the Act.

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available in the paper book to demonstrate that the assessee trust(s) has carried out its activities as per the objects and the funds received from various companies as sponsorship fees along with the Membership fee received from its members have been applied only for the purpose of charitable objects for which they are registered. The synopsis filed by the ld. Counsel for the assessee read as under :

“1. Facts of the present case:

- to promote professional fellowship amongst the members,
- to encourage research in obstetrics & gynecology,
- to extend educational interests, etc.

A copy of the MoA is enclosed herewith and marked as Annexure-1. 1.2
Seminars / Conferences - For conducting various research and educational programs, Appellant is required to host conferences at various places in each year. Costs of holding these mass conferences are quite exorbitant. For such conferences, POGS receives sponsorship grants from various pharma companies as a cost mitigation exercise. Summary of Income & Expenditure and Balance Sheet for FY 2017-18 to 2021-22 is enclosed herewith and marked as Annexure-2. 1.3
Old registration u/s 12A–Appellant has availed 12A registration on 4/12/1982. Copy of the 12A registration certificate is given at Page 2 of Paper-Book-I. Since then, Appellant‘s 12A registration (old regime) has never been disturbed by I-T officials.

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1.6
Cancellation of registrations – For various reasons stated in the rejection order dated 6/3/23, learned PCIT-CC has cancelled the registration u/s 12A as well as u/s 12AB. It is the contention of Appellant that all charges levied by learned PCIT-CC are, mere conjectures and suspicions, and unfortunately so formed, without considering facts of the case and relevant applicable legal provisions.

a)
Grounds relating to juri iction assumed by learned PCIT
(not pressed) b)
Grounds relating to powers available in section 12AB c)
Grounds relating to merits of the Appeal

Sr.
No.
Particulars
Reference in 12AB(4) order
Paper-Book reference
2.1
Summary chart of original position of sections related to charitable trust, and changes in these sections from time to time, is enclosed herewith and marked as Annexure-3. -
-
2.2
Earlier to the new regime, Registration was granted u/s 12A (old regime).

W.e.f. 1/4/2021, Registrations is granted only u/s 12AB.

In the new section 12AB(4), no any direct / indirect power is available for cancelling registration u/s 12A. As such, disturbing registration u/s 12A, by using powers u/s 12AB, is non-permissible.
Learned PCIT has used such powers which are not bestowed upon him by the law.

(Similar situation arose in section 12AA, where, prior to year 2010, there was no power to cancel registration u/s 12A. Arguments were raised by I-T department that, cancellation of registration u/s 12A is an inherent power, and there is no need of any separate power to be granted. These arguments were rejected by the apex court in case of by -
-

Full copy of the apex

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Sr.
No.
Particulars
Reference in 12AB(4) order
Paper-Book reference
Industrial Infrastructure Development Corporation
(Gwalior) M.P. Ltd.[2018] 90 taxmann.com 281 (SC) observing that, order of grant / cancellation of registration of EXEMPTION, is a quasi-judicial order; and that; power for passing such order ought to be expressly granted by Legislature. In absence of express power, 12A registration can‘t be cancelled u/s 12AA.
Exactly similar factual matrix prevails now. Under section 12AB(4), only, registrations granted u/s 12AA and 12AB cases are covered for cancellation.
In other words, u/s 12AB, no power is bestowed for cancellation of registration u/s 12A).
court decision is given at Flag-6 of Case-law compilation.

-
.. AO has reason to suspect …
-
.. AO has reasons suggesting escapement …
-
.. AO is of the opinion ..
-
.. AO has reason to believe, etc.

In present case, point of ―satisfaction‖ is not reached. Instead, conclusions have been reached on mere suspicion. Facts of the case and legal provisions are not considered in proper perspective.

-
-

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Sr.
No.
Particulars
Reference in 12AB(4) order
Paper-Book reference
2.6
Issue of cancellation of registration u/s 12AB ought to be tested at the end of Assessment proceedings
(especially when, the Assessment proceedings are ongoing). Reason being that, issues of alleged irregularity gets elaborated / explained in detail during the scrutiny proceedings. Cancellation of registration, prior to completion of Assessment proceedings is premature step.

Chandigarh
Education
Society(Flag-
10) +
Shridevi
Charitable
Trust(Flag-
25) cases given in Case-Law compilation
2.7
Search was initiated in Emcure Pharma‘s case on 16/12/2020. Simultaneous survey conducted in Appellant‘s case on 16/12/20202 only. Alleged incriminating material (i.e. emails of Emcure Pharma officials, etc.) relate to AY 2017-18 or AY 2020-21. Now, for these years (i.e. all Assessment Years till
AY 2020-21), Appellant‘s registration was u/s 12A
(old ergime). As stated earlier, no power to disturb
12A registration exists u/s 12AB.

However, Power to disturb registration u/s 12AB
(new regime) does exist u/s 12AB. But, for this purpose, there ought to exist, incriminating material showing ‗specified violation‖. In present case, there is no incriminating material at all, since, search survey took place on 16/12/2020 (i.e. earlier to new regime of section 12AB).

Conclusion - As per various paras of the order of learned PCIT (Central) and in particular, as mentioned in Para-18 of the last page of the said order, learned PCIT
(Central Circle) has revoked registration granted to the Appellant on 4/12/1982 u/s 12A by exercising power u/s 12AB(4) of ITA. A close reading of the said section 12AB(4) reveals that, the power of cancellation of registration granted u/s 12AB(4) is restricted only for the following two types of registrations –
a) Registrations granted u/s 12AB(1) b) Registrations granted u/s 12AA(1)

As such, the cancellation of registration granted to the Appellant on 04/12/1982 was beyond the powers bestowed u/s 12AB(4). Disturbance of 12A registration is incorrect as per law.
Further, cancellation of registration granted u/s 12AB is permissible only on basis of some material showing ―specified violation‖. No such material exists with learned
PCIT. Hence, disturbance of 12AB registration is inappropriate on facts.
For various above contentions, cancellation of registrations granted u/s 12A on 04/12/1982 and granted on 8/2/2022 u/s 12A is wrong and incorrect.

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[Key points / issues related to merits are as below]

- registration,
- renewal and - cancellation of licenses of medical professionals to the MMC

Following are the relevant provisions:

Paper-Book-III

(Page Number)
Indian Medical
Council Act, 1956 or Indian Medical
Regulations, 2002 /
2016

(Relevant section /
clause
Provision in brief
224
Section 21
The Council shall cause maintenance of REGISTER which shall contain names of all medical professionals
225
Section 23
The