EXIM CLUB,,VADODARA vs. THE ITO, EXEMPTION WARD,, VADODARA

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “A” BENCH Before: Shri Pramod M Jagtap, Vice President And Shri T.R. Senthil Kumar, Judicial Member

ITA No.32/Ahd/2019 (for A.Y. 2015-16) & ITA Nos. 1775 & 1776/Ahd/2017 (for A.Ys. 2010-11 & 2012-13)

Exim Club 2nd Floor, The Commissioner of West Wing, Offtel IncomeTax-1, Towers No. 1, Nr. Vs Vadodara & Vivekanand Memorial, Income Tax Officer, R.C. Dutt Road, Exemption Ward, Alkapuri, Vadodara- Vadodara 390007 (Respondent) PAN No: AAATE0344B (Appellant) Appellant by : None (Written Submission) Respondent by : Shri Vijay Kumar Jaiswal, CIT/DR & Shri Shramdeep Sinha, Sr. D.R. Date of hearing : 22-08-2022 Date of pronouncement : 26-08-2022 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:-

Three appeals are filed by the Assessee. ITA No. 32/Ahd/2019 is filed against the order dated 12.11.2014 passed by the Ld. CIT-1, Vadodara granting exemption u/s. 12AA(1)(b)(i) from the Assessment Year 2015-16. ITA Nos. 1775 & 1776/Ahd/2017 are filed against the appellate orders dated 24-06-2014 & 05-05- 2017 passed by Ld. CIT(A)-2, Vadodara relating to the Assessment

I.T.A No. 32/Ahd/2019 & Ors. A.Y. 2015-16 & Ors. Page No 2 Exim Club vs. CIT-1

Years 2010-11 & 2012-13 as against the assessment order passed u/s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’).

2.1 The brief facts of the case is that the assessee is a public charitable trust duly registered with Charity Commissioner, Vadodara under the Bombay Public Charitable Trust Act, 1950. The main object of the Trust is to provide services to Exporters and Importers. The assessee Trust made an application for registration u/s. 12A(a) of the Income Tax Act in Form No. 10A to the Ld. CIT, Vadodara on 20.09.1996. The same was acknowledged by the dispatch clerk of the office of CIT, Baroda. However, there was no response from the office of the Ld. CIT on the application filed in Form No. 10A for granting registration u/s. 12A(a) of the Act for long time.

2.2. Therefore the assessee Trust sent a letter dated 01.11.2001 to the Ld. CIT, Vadodara informing that no action against the application made, however enclosed photocopy of all the documents submitted in 1996, for ready reference and requested to do the needful. This letter was acknowledged with Tapal Seal by the office of the Ld. CIT on 02.11.2001. One more reminder was made on

I.T.A No. 32/Ahd/2019 & Ors. A.Y. 2015-16 & Ors. Page No 3 Exim Club vs. CIT-1

12.10.2002, which was received by the office of the Ld. CIT on 17.10.2002. The assessee vide letter dated 15.11.2013 submitted to the office of the Ld. CIT enquiring about the Certificate of Registration granted u/s. 12AA of the Act. The assessee was advised by ITO(Technical), CIT-1 office to submit copy of the original application filed on 20.09.1996. On furnishing all the details, the Ld. CIT granted registration order dated 23.06.2014 to the assessee Trust u/s. 12AA with effect from Assessment Year 2015-16 instead of date of filing of original application in Form No. 10A, which is applicable from the Assessment Year 1997-98.

I.T.A No. 32/Ahd/2019 & Ors. A.Y. 2015-16 & Ors. Page No 4 Exim Club vs. CIT-1

4) Thereafter the letter dtd. 30.07.2014 was replied by the appellant Trust to the office of Commissioner of Income Tax-1, Vadodara in response to their letter No. BRD/CIT-l/Tech./12A-grievance/2014-15. All queries raised in the above letter, were complied to the Office of the Commissioner of Income Tax-1, Vadodara by the Trust. Thereafter, further compliance was made on 30.09.2014 by the appellant trust submitting Memorandum Of Association of appellant trust. Another letter dtd. 27.01.2015 was sent requesting to grant certificate U/s 12A(a) of the IT Act. 5) Finally, registration certificate was issued to the Trust on 12.11.2014 w.e.f. Asst. Year 2015-16. The above certificate is stated to be issued in response to application dtd. 23.06.2014. It is submitted that the Trust had not submitted any fresh application. But the Trust had supplied copy of application dtd. 20.09.1996. Therefore, the Trust should have been grated registration from the first date of application Le. 20.09.199 6(Asst. Year 1997-98) and not from Asst. Year 2015-16. 6) That the Petitioner Trust has now been advised that the Trust should have filed an appeal before ITAT against Order passed by C.I.T.-l vadodara U/s 12AA(l)(b)(l) of Income Tax Act Granting registration on 12.11.2014 w.e.f. Asst. Year 2015-16. 7) That the petitioner Trust, therefore, files this application to condone delay of 1379 days in filing an appeal before Hon'ble ITAT (which should have been filed earlier within 60 days from receipt of order of C.I.T. U/s 12AA(l)(b)(l) of the Income Tax Act. 8) As a Trustee of the Trust, I believe that the Trust was not properly advised by the than consultant of the Trust and hence, the Trust was prevented by sufficient reasons in not filing the appeal in time. The Trustees and myself had no knowledge of provisions relating to registration U/s 12A(a) of the IT Act as well as provisions relating to filing of appeal. The Trustees have been advised that that the issue relating to registration of the Trust U/s 12A(a) is an important issue which should have been properly taken up before Hon'ble Tribunal, 9) Considering above facts, delay occurred requires to be condoned in the interest of equity and justice. The reasons for delay in filing appeal are bonafide and genuine and the delay has not occurred due to negligence or inaction on the part of the Trustees. 10)That the Trustee of petitioner Trust has now signed the appeal papers, paid appeal filing fees of Rs. 1,000/- and the appeal papers are filed along with this application of condonation of delay.

I.T.A No. 32/Ahd/2019 & Ors. A.Y. 2015-16 & Ors. Page No 5 Exim Club vs. CIT-1

11) This affidavit is filed to support application of condonation of delay made with appeal papers filed on 09.01.2019, explaining the delay in filing appeal. 12) The Honorable Members of the Income Tax Appellate Tribunal are empowered u/s 253(5) of the IT Act to condone delay in filling appeal. The petitioner, therefore, requests Honorable members of ITAT to please condone delay and admit the appeal filed by the petitioner Trust. 13) That I further, mention that for the Asst. Year 2010-11 & 2012-13 the Ld AO has passed assessment order treating the petitioner Trust as AOP of the IT Act on account of non production of certificate U/s 12A(a) of the IT Act. Appeals filed before CIT(A)-2, Vadodara against the assessment orders have been dismissed, on the ground that the Trust had failed to produce certificate U/s 12A(a) of the IT Act., against which the petitioner Trust has filed appeals for above assessment years before Hon'ble ITAT.

3.1. As can be seen from the above Affidavit, the only reason said to be the assessee Trust was not properly advised by the then Consultant and the Trustees had no knowledge of provisions relating to Registration under 12A(a) of the Act, as well as provisions relating to filing of appeal. None appeared on behalf of the assessee, but a “Written Submission’ is filed on record.

3.2. The assessee relied upon Tribunal judgment in the case of EIT Services India Pvt. Ltd., (formerly Hewlett-Packard Global Soft Pvt. Ltd.) vs. ACIT in ITA Nos. 1555 & 1556/Bang/2017 where a delay of 2625 days and 2944 days for the Assessment Year 2005-06 and Assessment Year 2004-05 where being condoned by the Bangalore Tribunal . The assessee also relied upon Pune Bench judgment in the case of Mercedes Benz Education Academy vs. ITO in ITA No. 745/PUN/2015 wherein 1784 days has been condoned. The assessee further stated the Hon’ble Gujarat High Court judgment in the case of CIT (exemption) vs. Addor Foundation will not be

I.T.A No. 32/Ahd/2019 & Ors. A.Y. 2015-16 & Ors. Page No 6 Exim Club vs. CIT-1

applicable to the present facts. Since the CBDT Instruction No. 16 of 2015 is clearly applicable, which provides CIT (exemption) to pass order u/s. 12AA within prescribed time limit of six months.

3.3. The assessee also relied upon the Supreme Court judgment in the case of CIT vs. Society for Promotion of Education reported in (2016) 67 taxmann.com 264. As the present registration is granted by the Ld. CIT on 12.11.2014, the amendments made in section 12AA takes effect from 01.10.2014 is clearly applicable to the facts of the case and thereby pleaded to condone the huge delay and grant Registration from the Assessment Year 1997-98 onwards.

I.T.A No. 32/Ahd/2019 & Ors. A.Y. 2015-16 & Ors. Page No 7 Exim Club vs. CIT-1

Kindly refer to your office letter dated 04.07.2022 in the above matter. 2. As per the above letter, it was requested to verify from this office records the veracity of the claim of assessee and to inform whether the registration has been granted based on application dated 13.09.1996 or 23.06.2014. Copy of application and case record is also requested. 3. In this regard, it is to submit that on perusal of certificate granting registration u/s 12A & 12AA(l)(b) of the Act dated 12.11.2014 has been granted by the CIT-1, Vadodara (before restructuring), it is verified from HQ section of this office that no such application/case record has been received on transfer or if received, not available at present in this office being matter .is too/old. However, as regards to contention of the assessee before the Hon'ble ITAT, Ahmedabad that the registration has been granted to it based on its application on 13.09.1996 instead of 23.06.2014 (as mentioned in the order), on perusal of certificate dated 12.11.2014 submitted by the assessee and forwarded by the Hon'ble ITAT, it is clearly mentioned that the application dated 23.06.2014 was filed and registration has been granted with effect from AY 2015-16 only. There is no mention of application dated 13.09.1996 in the certificate.

Yours faithfully, (Vinesh N. Raithatha) TRO(E) For, the Commissioner of Income tax, (Exemption), Ahmedabad

4.1. Thus the Ld. DRs. Submitted that the present registration u/s. 12AA(1)(b) was granted by the Ld. CIT, Vadodara on 12.11.2014 from assessment year 2015-16 only, based on the application dated 23.06.2014 filed by the assessee Trust. There is no mention of application dated 13.09.1996 in the Certificate of Registration. Therefore the registration from the Assessment Year 1997-98 does not arise. Further the assessee Trust is seems to be not vigilant in its legal rights and duties. As it can be seen from the proceedings, even assuming for a moment application is made as earlier in the

I.T.A No. 32/Ahd/2019 & Ors. A.Y. 2015-16 & Ors. Page No 8 Exim Club vs. CIT-1

year 1996, the assessee has not made any follow up action for the getting registration of the assessee Trust u/s. 12AA of the Act for seven years. Though the assessee being registered as a Charitable Trust with the Charity Commissioner of Baroda and Registrar of Societies in the year 1996, has not made proper steps to get it registered under the Income Tax Act. It is only in 23.02.2014, the assessee has filed an application for registration based on that, Registration was given with effect from the assessment year 2015- 16. Furthermore this present appeal is also filed with the delay of 1379 days i.e. 3 years and 284 days.

4.2. The Ld. DRs. further submitted that the reason given in the Affidavit is also that the assesse was not properly advised by the then Consultant of the Trust. Affidavit also does not specify name of that consultant and no such supporting affidavit filed by the assessee. When the main object of the Trust is to provide services to Exporters and Importers, the assessee cannot plead ignorance of law. Therefore the inordinate delay of 1379 days cannot be condoned.

4.3. Similar is the case for the Assessment Year 2010-11 wherein the assessment was completed in the absence of registration u/s. 12AA, the case of the assessee was treated as Association of Person and assessment is completed u/s. 143(3) of the Act, assessing the total income of Rs. 2,41,450/- and demanded tax on 9,830/-. This assessment order was confirmed by the Ld. CIT(A) against which the present appeal in ITA No. 1775/Ahd/2017 is filed with a delay

I.T.A No. 32/Ahd/2019 & Ors. A.Y. 2015-16 & Ors. Page No 9 Exim Club vs. CIT-1

of 1023 days. Here also the assessee in its Affidavit to condone the delay stated that the assessee Trust was not properly advised by the then Consultant to file further appeal. The assessee has not indicated the so called Consultant and no supporting affidavit is filed. This cannot be a good reason to condone the huge delay of 1023 days delay in filing the above appeal.

I.T.A No. 32/Ahd/2019 & Ors. A.Y. 2015-16 & Ors. Page No 10 Exim Club vs. CIT-1

was not properly advised by the then Consultant. It is seen from record, the assessee Trust was created as on 16.03.1996 and registered with the Charity Commissioner, Registrar of Societies, Baroda. The assessee’s claim of its application filed in Form No. 10A on 20.09.1996 was not acted upon by the Ld. PCIT for granting exemption u/s. 12A(a) of the Act. The assessee seems to have made reminders on 01.11.2001, 12.10.2002, 10.04.2003 but thereafter no action from the assessee in pursuing its registration u/s.12A(a) of the Act. It was based on application dated 23.06.2014 filed by the assessee, Registration u/s. 12AA was granted by the Ld. PCIT on 12.11.2014 with effect from the assessment year 2015-16. As it can be seen from the letter dated 13.07.2022 produced by the Ld. D.R. which clearly states that there is no mention above application dated 13.09.1996 made by the assessee. It is also noted from records, the assesse has changed its address of the Trust and also informed to the department. But it is seen that the assessee has not pursued the matter immediately after filing its application and moved with the Ld. CIT office after a long period of time. Memorandum of Trust is not before us, however the main object of the assessee Trust is to render services to Exporters and Importers. It is not acceptable that how the assessee Trust is so negligent in not claiming its legal rights.

6.1. It is appropriate to quote at this stage the legal maxim “VIGILANTIBUS, NON. DORMIENTIBUS, JURA SUBVENIUNT” which means, law will help only those who are vigilant. Law will not assist those who are careless of his/her right. Only those persons,

I.T.A No. 32/Ahd/2019 & Ors. A.Y. 2015-16 & Ors. Page No 11 Exim Club vs. CIT-1

who are watchful and careful of using his/her rights, are entitled to the benefits of law. Thus law confers rights on persons who are vigilant of their rights. We find that the assessee Trust is not vigilant in its legal rights. In a similar delay case, the Hon’ble Madras High Court in the case of CIT vs. Hemla Trust [2018] 98 taxmann.com 293 held as follows:

6.2. Respectfully following the above judgment and the amendments taken place in section 12A which is applicable up to

I.T.A No. 32/Ahd/2019 & Ors. A.Y. 2015-16 & Ors. Page No 12 Exim Club vs. CIT-1

30.05.2007 and section 12AA which is applicable up to 31.03.2021 and present section 12AB applicable from01.04.2021. Considering the various amendments taken place in the Act, the assessee’s contention of granting exemption u/s. 12A cannot be given retrospectively. The claim of exemption being a beneficial provision, the assessee ought to have acted upon and followed up with the Authorities in the manner known to law. Having kept silent for such a long period, the assessee is not eligible for the retrospective benefit.

I.T.A No. 32/Ahd/2019 & Ors. A.Y. 2015-16 & Ors. Page No 13 Exim Club vs. CIT-1

that the granting of registration or refusal to grant registration, is an independent and distinct matter from the computation of income on the basis of regular assessment passed by the AO. In section 246A, several provisions have been mentioned t in which any order passed by the Assessing Authority is appealable before CIT(A). However, no is provided if the CIT did any order u/s 12AA for filing of appeal before CIT (A). According to section 253(l)(c), by CIT u/s 12AA is appealable before the appellate Tribunal if the aggrieved the order of the CIT u/s 12AA. Accordingly, it has been further held by the Hon'ble IT AT, Agra that in view of the above provisions, it emerges that no remedy lies for grant of registration or refusal to grant registration, before the CIT(A). Therefore, if assessee is aggrieved in respect of the registration, he has only option to file an appeal before the appellate Tribunal. Accordingly, the issue of deemed registration could not have been agitated before the CIT(A), the Hon'ble IT AT has held. 4.1 In view of the above factual and legal position, thus it emerges that the issue of registration u/s 12A/12AA cannot be agitated before the CIT(A) in the quantum appellate proceedings. It may also be noted that the case law relied upon by the Id.AR pertains to the appeal filed against order of CIT regarding non- granting of registration and hence the same is distinguishable on facts. Accordingly, the arguments of the Sd.AR on this account are rejected. Since the appellant trust was not registered during the year under consideration u/s 12A/12AA, I hold that AO has rightly treated the appellant as AOP. It may not be out of place mention here that my Predecessor vide his order dated 24.06.2014, contained in Appeal No. CAB/II-202/12-13 in the case of appellant in A.Y, 2010-11 has already upheld the status of AOP. 4.2 Now coming to the quantum of disallowances, I find that appellant had income of Rs.14,76,590/- against which expenditure was incurred to the tune of Rs.9,95,632/- leaving net income at Rs. 4,80,958/-. Out of this net income, the appellant has claimed exemption u/s 11(2) at Rs.2,50,000/- on account of transfer of fund into building fund account. Thus disallowance has been challenged vide Ground No.1. Appellant has further claimed exemption of Rs.2,21,489/- u/s 11(l)(a) being 15% of the receipts to be set-off for accumulation. This disallowance has been challenged vide Ground No.2. As already held that the appellant is not registered u/s 12A/12AA, and hence exemption u/s 11(2) & 11(l)(a) cannot be allowed. Accordingly, the disallowance of exemption made by the AO is confirmed and both the grounds of appeal are dismissed.

I.T.A No. 32/Ahd/2019 & Ors. A.Y. 2015-16 & Ors. Page No 14 Exim Club vs. CIT-1

9.1. As the assessee has not registered u/s. 12AA of the Act during the assessment year 2012-13, the A.O. was correct in assessing the assessee as on AOP, we don’t find any infirmity in the order passed by the Ld. CIT(A). Therefore the appeal filed by the assessee is hereby dismissed.

Order pronounced in the open court on 26 -08-2022 Sd/- Sd/- (PRAMOD M JAGTAP) (T.R. SENTHIL KUMAR) VICE PRESIDENT True Copy JUDICIAL MEMBER Ahmedabad : Dated 26/08/2022 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद