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Income Tax Appellate Tribunal, “B” Bench, Mumbai
Before: Shri B.R. Baskaran (AM) & Shri Amarjit Singh (JM)
O R D E R PER BENCH:-
Both the appeals of the assessee are directed against the orders passed by Ld DIT (Exemptions) rejecting the applications filed by the assessee seeking registration u/s 12A of the Act.
We heard the parties and perused the record. The assessee originally filed an application seeking registration u/s 12A of the Act on 27.12.2012 and the same was rejected by Ld DIT (Exemptions), vide his order dated 25.06.2013. The assessee initially did not prefer appeal before ITAT challenging the said order. Subsequently the assessee filed another application on 19.05.2014 by enclosing all the necessary details. However, the Ld CIT(Exemption) rejected the said application also, vide his order dated 28.11.2014 with the following observations:- “3. As can be observed from the above, the applicant trust has now filed a fresh application for registration u/s 12A of the I.T Act, 1961 in the 2 Naman Foundation
prescribed Form No.10A on 19.05.2014 in respect of the same case, after rejection of its original application. At this juncture, it is pertinent to mention that as the applicant trust’s application has already been rejected vide order u/s 12AA(1)(b)(kk) r.w.s. 12A of the I.T Act, 1961 on 25.06.2013, the only option available with the applicant trust was to file an appeal with the Appellate Tribunal, Mumbai as per the provision of section 253(1)(c) of the I.T Act, 1961.
4. In view of the above, vide order sheet noting dated 26.11.2014, the applicant trust was requested to show cause as to why its application should not be treated as infructuous/non-est and rejected in view of the provisions of section 253(1) of the I T Act. In reply, the applicant trust vide its letter dated 27.11.2014 stated the reasons for rejection of its earlier application and as to why it could not prefer an appeal against the earlier order u/s 12AA(1)(b)(ii) r.w.s. 12A of the I T Act.
5. I have considered the submissions of the applicant trust, but the same are not acceptable in view of the provisions of section 253(1) of the I T Act. Therefore, the applicant trust’s fresh application filed on 19-05- 2014 is hereby rejected on account of the reasons cited above.”
The Ld A.R submitted that the assessee has filed appeals challenging the both the orders passed by Ld DIT (Exemptions). He submitted that there is no compulsion that the assessee should prefer appeal against the original order passed by Ld DIT(Exemptions). He submitted that there is no bar also under the Act for filing application u/s 12A of the second time, when its earlier application was rejected.
We heard Ld D.R and perused the record. We find merit in the submissions made by Ld A.R. Though the right of appeal is given to the assessee under the Act to challenge the order passed by an Income tax authority, yet it is not mandatory that the assessee should exploit that right always. The assessee may also accept the order passed by the Income tax authority. In the case of application seeking registration u/s 12A of the Act, there is no bar prescribed in the Act that the assessee should file application only once in its life time. In the 3 Naman Foundation instant case, the assessee did not prefer appeal against the order originally passed by Ld DIT (Exemptions) for the reasons best known to it. However, in our view, the same would not prevent the assessee from filing another application seeking registration u/s 12A of the Act. In the absence of any such bar prescribed under the Act, in our view, the Ld DIT(Exemption) should have proceeded to examine the application filed by the assessee and should have decided the same in accordance with the law. Accordingly we do not agree with the reasoning given by Ld DIT(Exemption) for rejecting the second application.
Accordingly we are of the view that the second application filed by the assessee needs to be examined afresh by Ld DIT(Exemption) in accordance with the law. Accordingly we set aside the order dated 28.11.2014 passed by Ld DIT(Exemption) and restore the matter to his file with the direction to process the application filed by the assessee in accordance with the law by affording the opportunity of being heard to the assessee and decide the same in accordance with the law.
The Ld A.R submitted that he would not press the appeal No.6210/Mum/2015, if the other appeal is restored to the file of the Ld DIT(Exemption) for fresh examination.
In the result, the appeal filed by the assessee in is treated as allowed and the appeal No. 620/M/2015 is dismissed. Order has been pronounced in the Court on 23.5.2017.