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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI VIJAY PAL RAO & SHRI B.M. BIYANI
Per Vijay Pal Rao, JM:
These two appeals by the assessee are directed against two separate orders of Ld. Commissioner of Income Tax (Exemption) (in short Ld. CIT(E), Bhopal passed u/s 12AA dated 26.09.2019 and u/s 10(23C)(vi) of the Income Tax Act dated 03.06.2020 whereby registration u/s 12AA and approval u/s 10(23C) was granted w.e.f. assessment year 2019-20.
None has appeared on behalf of the assessee when these appeals were called for hearing despite the notice of hearing were issued through speed post which was received back with postal remarks “refused”. It is emerged from record that the notice was sent to the assessee through registered post as well as through e-mail, at the e-mail ID given by the assessee in form no.36 and there is a report of the postal department that & 33/Ind/2022 Jiwaji University Page 2 of 5 the assessee refused to receive the notice whereas the notice sent through e-mail was deleivered but there is no response on behalf of the assessee either to appear before tribunal or file any application for adjournment. Accordingly, the Bench proposes to hear and dispose of these appeals ex- parte. The assessee has raised following grounds in these appeals:
ITANo.32/Ind/2022
1. That, on the facts and circumstances of the case and in law and in any view of the matter, the Ld. Commissioner of Income Tax (Exemption), Bhopal (M. P.) has erred in granting the registration u/s 12AA with effect from the assessment year 2019-20 instead of with effect from 01.04.2012 i.e. financial year 2012-13 relevant to assessment year 2013-14 as requested vide application dated 31.03.2019. 2.That, on the facts and circumstances of the case and in law, and in any view of the matter, the Ld. Commissioner of Income Tax (Exemption), Bhopal (M. P.) has erred in not allowing reasonable and proper opportunity of hearing before granting the registration u/s 12AA with effect from assessment year 2019-20 instead of with effect from 01.04.2012 i.e. financial year 2012-13 relevant to assessment year 2013-14 as requested vide application dated 31.03.2019. 3. That, the appellant craves leave to add, amend, withdraw any ground (s) of appeal before and / or at the time of hearing.
ITANo.33/Ind/2022
That, on the facts and circumstances of the case and in law and in any view of the matter, the Ld. Commissioner of Income Tax (Exemption), Bhopal (M. P.) has erred in granting approval u/s 10(23C) (vi) with effect from the assessment year 2019-20 instead of with effect from 01.04.2012 i.e. financial year 2012-13 relevant to assessment year 2013-14 as requested vide application dated 31.03.2019. 2.That, on the facts and circumstances of the case and in law, and in any view of the matter, the Ld. Commissioner of Income Tax (Exemption), Bhopal (M. P.) has erred in not allowing reasonable and proper opportunity of hearing before granting the approval u/s 10(23C)(vi) with effect from assessment year 2019-20 instead of with effect from 01.04.2012 i.e. financial year 2012-13 relevant to Page 2 of 5 & 33/Ind/2022 Jiwaji University Page 3 of 5 assessment year 2013-14 as requested vide application dated 31.03.2019. 3. That, the appellant craves leave to add, amend, withdraw any ground (s) of appeal before and / or at the time of hearing.
3.The only grievance of the assesee in respect of both appeals that the registration u/s 12AA and approval u/s 10(23C)(vi) of the Act was granted w.e.f. assessment year 2019-20 instead of the assessee sought registration and approval w.e.f. 01.04.2012.
We have heard the Ld. DR and perused the impugned orders of Ld. CIT(E). Section 12A(1) provides the conditions for applicability of section 11 & 12 which read as under:
(1)] 21The provisions of section 11 and section 12 shall not apply in relation to the income of any trust or institution unless the following conditions are fulfilled, namely:— (a) the person in receipt of the income has made an application for registration of the trust or institution in the prescribed form22 and in the prescribed manner to the 23[***] Commissioner before the 1st day of July, 1973, or before the expiry of a period of one year from the date of the creation of the trust or the establishment of the institution, 24[whichever is later and such trust or institution is registered under section 12AA] : 25[Provided that where an application for registration of the trust or institution is made after the expiry of the period aforesaid, the provisions of sections 11 and 12 shall apply in relation to the income of such trust or institution,— (i) from the date of the creation of the trust or the establishment of the institution if the 26[***] Commissioner is, for reasons to be recorded in writing, satisfied that the person in receipt of the income was prevented from making the application before the expiry of the period27 aforesaid for sufficient reasons; (ii) from the 1st day of the financial year in which the application is made, if the 28[***] Commissioner is not so satisfied:] 29[Provided further that the provisions of this clause shall not apply in relation to any application made on or after the 1st day of June, 2007;] 29[(aa) the person in receipt of the income has made an application for registration of the trust or institution on or after the 1st day of June, & 33/Ind/2022 Jiwaji University Page 4 of 5 2007 in the prescribed form30 and manner to the Commissioner and such trust or institution is registered under section 12AA;] (b) where the total income of the trust or institution as computed under this Act without giving effect to 31[the provisions of section 11 and section 12 exceeds the maximum amount which is not chargeable to income-tax in any previous year], the accounts of the trust or institution for that year have been audited by an accountant as defined in the Explanation below sub-section (2) of section 288 and the person in receipt of the income furnishes along with the return of income for the relevant assessment year the report of such audit in the pres-cribed form32 duly signed and verified by such accountant and setting forth such particulars as may be prescribed.]
The first proviso of section 12A(1) which has substituted the earlier of proviso vide Finance Act 1991 w.e.f 01.10.1991 stipulates that where an application for registration of trust or institution was made after the expiry of one year from the date of creation of trust for registration u/s 12AA the provisions of section 11 & 12 shall apply in relation to the income of such trust or institution inter alia from the first date of financial year in which the application if made or from the date of creation of trust or establishment if competent authority is for the reasons to be recorded in writing satisfied that the person in respect of income was prevented from making application before expiry of the one year from the creation of the trust. Thus the discretion with the competent authority prior to 1st June 2007 to grant registration from retrospective effect is no more provided under the amended 1st proviso to section 12A(1). Further sub- section (2) of section 12A read as under:
“(2) Where an application has been made on or after the 1st day of June 2007, the provisions of section 11 & 12 shall apply in relation the income of such trust or institution from the assessment year immediately following the financial year in which such application is made.”
Therefore, where an application has been made on or after 1st June 2007 the provisions of section 11 & 12 shall apply in relation to the income of such trust or institution for the assessment year immediately Page 4 of 5 & 33/Ind/2022 Jiwaji University Page 5 of 5 following financial year in which such application is made. Thus therefore, there is no discretion or power given to the competent authority to grant registration with retrospective date if application is made on or after 1st June 2007. We further note that the identical provisions has been made even for approval u/s 10(23C)(vi) of the Act and therefore, when competent authority having no power or discretion to grant registration or approval with retrospective effect or condone any delay in filing these applications thus the claim of the assessee seeking registration and approval with retrospective effect is devoid of any merit. Accordingly, we do not find any error or illegal in the impugned orders of the Ld. CIT(E) and same are upheld.
In the result, appeals of assessee are dismissed.
Order pronounced in the open court on 02 .03.2023.