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Income Tax Appellate Tribunal, DELHI BENCH “D”: NEW DELHI
Before: SMT DIVA SINGH & SHRI PRASHANT MAHARISHI
O R D E R PER BENCH 1. These are the four appeals filed by the assessee on the similar issue of grant of registration u/s 12AA of the Act. is filed against the order of the ld CIT(E) passed u/s 12AA of the Act. Other three appeals are passed against the order of the ld CIT(A) where the action of the ld Assessing Officer denying the exemption to the assessee u/s 11 and 12 of the Act in absence of registration u/s 12AA of the Act for the respective years is confirmed. Therefore, all these four appeals are heard together and disposed off by this common order. Page | 1 Doon Valley Special Area Development Authority Vs. CIT (Exemption)/ DCIT ITA No. 2199/Del/2015, 2200/Del/2015, 67/Del/2016 Assessment Year 2007-08 to 2009-10
ITA No. 533/Del/2017 2. This appeal is filed by the assessee against the order of the ld CIT(E), Lucknow dated 02.12.2016 passed u/s 12AA(1)(b)(ii) of the Act, wherein, registration sought by the assessee/ applicant was rejected. The assessee has raised the following grounds of appeal in “Ground No. 1: On the facts and circumstances of the case and in law, the learned CIT has grossly erred in rejecting the application of the appellant for grant of registration under Section 12AAofthe Income Tax Act, 1961. Ground No.2: On the facts and circumstances of the case and in law, the learned CIT has grossly erred in ignoring the fact that the Central Board of Direct Taxes vide its Order dated 04.05.2016 condoned delay in filing of appellant’s application u/s 12AA of the Income Tax Act for the period from A.Ys. 2004-05, 2005-06, 2006-07, 2007-08, 2008- 09 and A.Y 2009-10. Ground No.3: On the facts and circumstances of the case and in law, the learned CIT has grossly erred in not appreciating the fact that the Appellant Authority has been created with the object of general public utility which is a charitable object within the meaning of section 2(15) of the Income Tax Act and the Authority has been granted exemption u/s 12AA vide Registration No. 2009- 10/9987 dated 29.01.2010 by CIT, Dehradun. Ground No. 4: On the facts and circumstances of the case and in law, the learned CIT has grossly erred in ignoring the fact that in the case of nearby Hardwar Development Authority, on an application for exemption u/s 12A(a) of the Income Tax Act, the CIT has granted exemption. The facts of the appellant’s case are on all fours with those of the Hardwar Development Authority.”
3. The brief facts of the case is that the assessee was set up under UP Government order dated 11.03.1987 with a objective planed development of special area and maintaining ecological balance of the area. The assessee was created with the object of general public utility. Therefore, Page | 2 Doon Valley Special Area Development Authority Vs. CIT (Exemption)/ DCIT ITA No. 2199/Del/2015, 2200/Del/2015, 67/Del/2016 Assessment Year 2007-08 to 2009-10 the assessee applied for registration u/s 12AA of the Act vide application dated 23.07.2009. The ld CIT(E) granted registration to the applicant w.e.f from the date 23.07.2009 vide Certificate dated 29.01.2010. As assessee has not produced the application filed before the Income Tax Commissioner, Dehradun dated 23.07.2009, therefore, apparently from the record it cannot be gathered whether the assessee sought registration w.e.f 23.07.2009 or from the date of the formation of the assessee i.e. 11.03.1987. However, from the order u/s 119(2)(b) of the Income Tax Act passed by CBDT on 04.05.2016, it was noted that an application was filed by the assessee u/s 119(2)(b) of the Act for condonation of delay for AY 2004-05 to 2007-08 and 2009-10 in filing of application for registration u/s 12AA of the Act. Vide the said application it was requested to grant registration u/s 12AA of the Act with retrospective effect from 01.04.2003. It was rejected on account of belated filing of application but the registration was granted w.e.f 23.07.2009. Therefore, from this order it can be inferred that application dated 23.07.2009 made by the assessee for registration u/s 12AA of the Act requested for registration w.e.f. 01.04.2003, however, same was granted w.e.f. 23.07.2009, i.e. the date of application. The CBDT vide above said order condoned the delay in making the above application u/s 12AA of the Act. It was further mentioned that it shall be open for the authority granting registration u/s 12AA to satisfy itself about the fulfillment of conditions prescribed under the Act which are necessary for granting registration. Thereafter on 15.06.2016 assessee once again made an application u/s 12A of the Act to the CIT(Exemption), Lucknow for registration u/s 12A of the Act. The ld CIT(E) issued a letter dated 18.11.2016 wherein, certain details were asked and opportunity of personal hearing was granted on 02.12.2016 at 10:45 PM. The ld CIT(E) vide order dated 02.12.2016 passed an order rejecting the application stating that hearing was granted to the assessee on 02.12.2016 and none appeared. Therefore, based on the material available on record he held that assessee is already Doon Valley Special Area Development Authority Vs. CIT (Exemption)/ DCIT ITA No. 2199/Del/2015, 2200/Del/2015, 67/Del/2016 Assessment Year 2007-08 to 2009-10 registered u/s 12AA of the Act. Therefore, the registration sought is rejected. The assessee is aggrieved by this order 4. The ld AR vehemently contested that the ld CIT(E) should have granted registration to the assessee. It was his contention that despite the CBDT order condoning the delay from Assessment Year 2004-05 to 2009-10 the ld CIT(E) did not pass an order granting registration to the assessee for those assessment years. The only grievance apparently is that assessee has been granted registration u/s 12AA of the Act w.e.f 23.07.2009 whereas the application of the assessee is to grant it registration w.e.f 01.04.2003.
5. The ld DR vehemently referred to page NO. 12 of the paper book of the assessee, wherein, the assessee is granted registration w.e.f 23.07.2009. He submitted that when the assessee has made an application on 23.07.2009 before the ld CIT(E) he did not have any occasion to see that the assessee is requesting registration from 01.04.2003. He submitted that the order u/s 119(2)(b) passed by CBDT subsequently, condoning the delay filing the application for registration which was originally passed on 29.01.2010. He further stated that the assessee should have attended the office of the ld CIT(E) on the appointed date and requested him for amendment in the order passed u/s 12AA of the Act. The assessee has not appeared on the appointed dated and nor submitted the details on or before that date, therefore, there is no infirmity in the order passed by the ld CIT(E) as the trust which has already been granted registration cannot be registered once again. He therefore, submitted that the appeal of the assessee does not have any merit.
We have carefully considered the rival contentions and also perused the orders of the lower authorities. This appeal is filed by the assessee against the order passed by the ld CIT(E) dated 02.12.2016 seeking registration u/s 12AA of the Act. Undisputedly, at the time of making the application before the ld CIT(E), assessee was already registered u/s 12AA of the Act vide order dated 29.01.2010 passed by CIT, Dehradun.
Doon Valley Special Area Development Authority Vs. CIT (Exemption)/ DCIT ITA No. 2199/Del/2015, 2200/Del/2015, 67/Del/2016 Assessment Year 2007-08 to 2009-10 In response to notice dated 18.11.2016, wherein, the assessee was granted time to furnish the details by 02.12.2016, assessee furnished its reply on 29.11.2016 which was sent by speed post on 30.11.2016. Therefore, it appears that on the appointed date i.e. 02.12.2016 it did not reach the office of the ld CIT(E). Further, none appeared on behalf of assessee on the appointed date. Therefore, on the basis of information available on record, the ld CIT(E) held that as assessee is already registered u/s 12AA of the Act fresh registration cannot be granted. Therefore, it is apparent that before the ld CIT(E) all other correspondence as well as the order of the CBDT condoning the delay was not available before him. The assessee has also stated that it received the query letter dated 18.11.2016 only on 26.11.2016 and immediately on 29.11.2016 it prepared a reply and sent by Speed Post on 30.11.2016. Looking to the whole time chart, it is apparent that assessee could not furnish complete details before the ld CIT(E). Therefore, we set aside the whole issue back to the file of the ld CIT(E), Lucknow with a direction to the assessee to submit all the details which are furnished before us including the order of the CBDT. The ld CIT(E) is also directed to consider the order of the CBDT dated 04.05.2016 and pass speaking order on the application u/s 12AA of the assessee after granting proper opportunity of hearing.
In the result appeal filed by the assessee in ITA NO. 533/Del/2017 is allowed for statistical purposes with above direction.
ITA No. 2199/Del/2015 is filed by the assessee for Assessment Year 2007-08 against the order of ld CIT(A), Dehradun dated 06.01.2015, wherein, the order u/s 143(3) read with section 254 of the Act passed on 18.11.2013 by the Dy. Commissioner of Income Tax, Circle-1, Dehradun was upheld and appeal of the assessee was dismissed.
The brief facts shows that the original assessment was made on 30.11.2009 as the assessee was not registered u/s 12AA of the Income Tax Act and therefore, exemption u/s 11 and 12 of the Act were denied.
Doon Valley Special Area Development Authority Vs. CIT (Exemption)/ DCIT ITA No. 2199/Del/2015, 2200/Del/2015, 67/Del/2016 Assessment Year 2007-08 to 2009-10 The assessee preferred an appeal before the ld CIT(A) who dismissed the appeal of the assessee vide order dated 27.04.2011. The order of the ld CIT(A) was further challenged before the coordinate bench in ITA No. 3855/Del/2011. The coordinate bench passed an order dated 23.03.2012 holding that as the assessee has filed an application for condonation of delay before CBDT the matter was restored to the file of the AO for fresh adjudication. The assessee could not produce the order of the CBDT by that time and as apparently it did not have registration for the impugned Assessment Year the ld AO passed the same order on 18.11.2013 which was unsuccessfully challenged before the ld CIT(A) who dismissed the appeal of the assessee vide order dated 06.01.2015.
The assessee has raised the following grounds of appeal in ITA NO. 2199/Del/2015 for the Assessment Year 2007-08:- “Ground No. 1: On the facts and circumstances of the case and in Law, the learned CIT (A) has grossly erred in not appreciating the fact that the Appellant Authority has been created with the object of general public utility which is a charitable object within the meaning of section 2(15) of the Income Tax Act and the Authority has been granted exemption u/s 12AA vide Registration certificate dated 29.01.2010 by CIT Dehradun. Ground No.2: On the facts and circumstances of the case and in Law, the learned CIT(A) has grossly erred in not appreciating the fact that the appellant Authority has filed an application for condonation of delay to the CBDT under Section 119(2) of the Income Tax Act and the said application is pending adjudication before CBDT. Ground No. 3: On the facts and circumstances of the case and in law, the learned CIT (A) has grossly erred in upholding the addition/Total Income of Rs. 4,64,67,240.00 by the A.O on account of diversion of funds to the Infrastructure Development Fund by an over-riding title as per the State Government order.”
11. As the issue of granting of registration to the assessee has been set aside to the file of the ld Assessing Officer as per our order in ITA No. 533/Del/2017, we also set aside this appeal to the file of the ld Assessing Doon Valley Special Area Development Authority Vs. CIT (Exemption)/ DCIT ITA No. 533/Del/2017, ITA No. 2199/Del/2015, 2200/Del/2015, 67/Del/2016 Assessment Year 2007-08 to 2009-10 Officer to decide afresh after the decision of the ld CIT(E), Lucknow in pursuance of our above order.
12. Accordingly the appeal of the assessee is allowed for statistical purposes. Assessment Year 2008-09:-
13. The facts are identical to the facts stated by us in appeal of the assessee for AY 2007-08. In the present case also the exemption u/s 11 and 12 of the Act were denied to the assessee in absence of registration u/s 12AA of the Act. The assessee has raised the following grounds of appeal against the order of the ld CIT(A) dated 08.10.2015 dismissing the appeal of the assessee in absence of registration u/s 12AA of the Act. “Ground No. 1: On the facts and circumstances of the case and in Law, the learned CIT (A) has grossly erred in not appreciating the fact that the Appellant Authority has been created with the object of general public utility which is a charitable object within the meaning of section 2(15) of the Income Tax Act and the Authority has been granted exemption u/s 12AA vide Registration certificate dated 29.01.2010 by CIT Dehradun. Ground No.2: On the facts and circumstances of the case and in Law, the learned CIT(A) has grossly erred in not appreciating the fact that the appellant Authority has filed an application for condonation of delay to the CBDT under Section 119(2) of the Income Tax Act and the said application is pending adjudication before CBDT. Ground No. 3: On the facts and circumstances of the case and in law, the learned CIT (A) has grossly erred in upholding the addition/Total Income of Rs. 2,63,14,404.00 by the A.O on account of diversion of funds to the Infrastructure Development Fund by an over-riding title as per the State Government order.”
14. The ld AR and DR both confirmed that the facts of the case are similar to the case of the assessee for AY 2007-08. Therefore, for the similar reasons and identical directions we also set aside the Assessment Year 2008-09 back to the file of the ld Assessing Officer to adjdiciate the issue Doon Valley Special Area Development Authority Vs. CIT (Exemption)/ DCIT ITA No. 2199/Del/2015, 2200/Del/2015, 67/Del/2016 Assessment Year 2007-08 to 2009-10 after the order of the ld CIT(E), Lucknow pursuant to our order in ITA No. 533/Del/2017.
Accordingly, appeal of the assessee is allowed with above direction. Assessment Year 2009-10 16. The facts are identical to the facts stated by us in appeal of the assessee for AY 2007-08. In the present case also the exemption u/s 11 and 12 of the Act were denied to the assessee in Absence of registration u/s 12AA of the Act. The assessee has raised the following grounds of appeal against the order of the ld CIT(A) dated 08.10.2015 dismissing the appeal of the assessee in absence of registration u/s 12AA of the Act. “ Ground No. 1 On the facts and circumstances of the case and in law, the ld CIT(A) has grossly erred in not appreciating the fact that the appellant authority has been created with the object of general public utility which is a charitable object within the meaning of section 2(15) of the Income Tax Act and the Authority has been granted exemption u/s 12AA vide Registration certificate dated 29.01.2010 by CIT Dehradun. Ground No.2: On the facts and circumstances of the case and in Law, the learned CIT(A) has grossly eried in not appreciating the fact that the appellant Authority has filed an application for condonation of delay to the CBDT under Section 119(2) of the Income Tax Act and the sa d application is pending adjudication before CBDT. Ground No. 3: On the facts and circumstances of the case and in law, the learned CIT (A) has grossly erred in upholding the addition of Rs. 5,28,15,855.00 by the A.O on account of diversion of funds to the Infrastructure Development Fund by an over-riding title as per the State Government order.”
17. The ld AR and DR both confirmed that the facts of the case are similar to the case of the assessee for AY 2007-08. Therefore, for the similar reasons and identical directions we also set aside the Assessment Year 2008-09 back to the file of the ld Assessing Officer to adjudicate the issue