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2008 (4) TMI 420 - ITAT AMRITSARCancelling the society registration u/s 12AA(3) - Charitable Or Religious Trust - the registration granted to the assessee-Society on 14-1-1998. HELD THAT:- We find from the record that for the AY 1997-98, this issue stands decided in favour of the assessee by the Tribunal (SMC). This was followed by the Division Bench of the Tribunal for the AY 1997-98 in the case of the assessee-Society. Unquestionably, the onus for proving the existence of factors calling for cancellation granted to an institution is on the Department rather than on the institution. In the present case, as noticed, the CIT has miserably failed to discharge such onus. Where a finding stands recorded that no part of the income of the Society was misutilised and the Society is a registered Society, registration cannot be refused. It has been so held in Dy. CIT v. Cosmopolitan Education Society [1999 (8) TMI 13 - RAJASTHAN HIGH COURT]. In the present case also, it is seen that there is no finding recorded by the learned Commissioner of Income-tax that the amount has been utilised by the members of the assessee-Society for their personal use and that withdrawal from the bank accounts have not been credited in the accounts of the assessee-Society. Thus, the cancellation of the registration granted to the assessee-Society has been erroneously ordered. Therefore, we do not find any force in the order cancelling the registration already granted to the assessee-Society. The CIT's order is thus liable to be set aside and cancelled on merit. Ordered accordingly. Assessee has raised an alternative contention that the provision in the Act regarding cancellation of registration, i.e., section 12AA was introduced with effect from 1-10-2004 and that this provision cannot be invoked retrospectively. On specific query, the learned counsel for the assessee stated at the bar that this ground has been raised only in the alternative, in the event of the merits of the case going against the assessee. Since the merits of the case have been dealt with and decided in favour of the assessee as above, this ground raised by the assessee is not being gone into by us. Another alternative ground raised by the assessee, is that the learned CIT erred in cancelling the registration without providing reasonable opportunity of being heard to the assessee-Society. This ground stands rejected as withdrawn on the request of the learned counsel for the assessee. In the result, the appeal of the assessee stands partly allowed, as indicated.
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