TMI Blog2012 (1) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... ill be from the first day of financial year in which application is made or from the date of creation of trust whichever is later. - IT APPEAL NO. 508 (Jodh.) OF 2010 - - - Dated:- 19-1-2012 - R.K. Gupta N.L. KALRA, JJ. For The Appellant : Amit Kothari For The Respondent : M.N. Maurya ORDER The assessee has filed an appeal against the order of the learned CIT, Jodhpur under s. 12AA, dt. 22nd March, 2010. 2.1 The grounds of appeal raised by the assessee are as under : 1. The impugned order under s. 12AA of IT Act, 1961 passed by the learned CIT-1, Jodhpur in the case of the appellant is patently invalid, contrary to provisions of law, contrary to all canons of natural justice, contrary to binding judgments rendered in similar matters and is void ab initio. 2. The learned CIT-1, Jodhpur has grossly erred in not properly considering the facts and submissions mentioned in application under s. 12A submitted in the prescribed Form 10A along with various annexures and also the elaborate facts stated in various written submissions including the oral and written submissions submitted during hearing on 28th Sept., 2010 (copy enclosed). 3. The learned CIT- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations made in the order simultaneously passed in case of JDA, which took over UIT under the respective Acts). Such findings are patently wrong and expose the gross ignorance or deliberate legal malice and bias against the appellant. 7. That on the facts and circumstances of the appellant's case, the learned CIT ought to have accepted that the income of the appellant statutory body continues to be exempt under the amended provisions of s. 10(20) of IT Act, 1961 and in the alternative and without prejudice to the said claim, the learned CIT ought to have held that the said institution clearly qualifies for grant of registration under s. 12A and its income is exempt under ss. 11 and 12 of IT Act, 1961. 8. That on the facts and circumstances of the appellant's case, the learned CIT-1, Jodhpur ought to have granted registration to the appellant under s. 12A/12AA of IT Act, 1961 with retrospective effect from asst. yr. 2003- 04, as the appellant fulfils all the conditions for grant of such registration. 9. The learned CIT-1, Jodhpur, has erred in not accepting the appellant's claim for grant of registration under s. 12A/12AA in view of the fact that the IT Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnishing the return of income along with audit report as required under s. 12A as per provisions of s. 139(1) expires after expiry of six months from the end of the year, for example, time-limit for return of income for asst. yr. 2010-11 will expire on 15th Oct., 2010 under s. 139(1) and the last date for such return under s. 139(4) will expire on the expiry of one year from the end of the relevant assessment year. The application for registration under s. 12A is required to be furnished within one year from the date of creation of the institution. It is therefore, clear that the requirement of furnishing the audit report in the prescribed form is not relevant and not mandatory for grant of registration under s. 12A/12AA. The compliance of this requirement, even if applicable in the case of any institution, can be examined only during assessment proceedings and not while considering the application for grant of registration. 12. The learned CIT has failed to considered the fact that JDA had taken over UIT by virtue of passing of the relevant Acts and therefore, registration under s. 12A/12AA in the name of either JDA or in the name of UIT or in their separate names of JDA/UIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions and the arguments has been mentioned by the learned CIT at p. 4 in his order and these are reproduced as under : 1. In similar circumstances Jaipur Development Authority has duly been granted registration under s. 12A/12AA with retrospective effect. 2. The assessee exists solely for advancement of objects of general public utility without any profit motive. 3. The provisions of s. 10(20A) omitted w.e.f. 1st April, 2003 have been incorporated in the amendment to s. 10(23) and as such the assessee can always claim its income exempted now under s. 10(23) an for earlier years under s. 10(20A). 4. Delay in submission of the registration application was due to the confusion whether s. 10(20) will apply or whether the assessee should seek for registration under s. 12A/12AA. 2.3 The learned CIT has referred to the definition of 'charitable purpose' as mentioned in s. 2(15) of the Act. The proviso to s. 2(15) says that advancement of any other of general public utility shall not be a charitable purpose, if it involves a carrying on of any activity in the nature of trade, commerce or business, for a cess or fee or any other consideration, irrespective of nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r entrusted by the Government with, the control and management of a municipal or local fund. What then are the distinctive attributes and characteristics, all or many of which a Municipal Committee, District Board or Body of Port Commrs. shares with any other local authority ? First, the authorities must have separate legal existence as corporate bodies. They must not be mere Governmental agencies but must be legally independent entities. Next, they must function in a defined area and must ordinarily, wholly or partly, directly or indirectly, be elected by the inhabitants of the area. Next, they must enjoy a certain degree of autonomy, with freedom to decide for themselves questions of policy affecting the area administered by them. The autonomy may not be complete and the degree of the dependence may vary considerably but an appreciable measure of autonomy there must be. Next, they must be entrusted by statute with such Governmental functions and duties as are usually entrusted to municipal bodies, such as those connected with providing amenities to the inhabitants of the locality, like health and education services, water and sewerage, town planning and development, roads, market ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t arises from the activity. The main object of JDA (Jodhpur Development Authority) is of urban planning including preparation of master development plans and zonal development plans. The objects are mentioned in Chapter IV of JDA Act, 2009. The JDA was authorized to enter into contract or agreement or arrangements which may be necessary for the performance of functions. The Hon'ble jurisdictional High Court while holding that Krishi Upaj Mandi Samiti is entitled for registration under s. 12A of the Act in the case of CIT v. Krishi Upaj Mandi Samiti [2011] 331 ITR 135/11 taxmann.com 162 (Raj) observed that if the entire amount received by the assessee was required to be spent for the purpose mentioned therein, including the advancement of any other object of general public utility then the Samiti is entitled to be registered under s. 12A of the Act. The Tribunal Jaipur Bench in the case of Jaipur Development Authority v. CIT in IT Appeal No. 27/Jp/2007, dated 30th May, 2008 directed the learned CIT to grant registration under s. 12AA of the Act. The learned CIT has only referred to one aspect of purchase and sale of land by JDA. The objects of JDA have been defined under the J ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
