2025 (7) TMI 31 - AT - Income Tax

Rejection of registration of the assessee u/s 12A - violation of section 13(1)(c) - powers by PCIT for cancellation of registration - as during the course of search carried in the case of third parties incriminating documents/evidences were gathered and it was found by the AO that the Assessee society is indulged in non -genuine activities and that there was diversion of funds of the society - HELD THAT - We observed that on the similar facts available on record the coordinate Bench has decided the exactly similar issue in the case of Lakhmi Chand Charitable Society 2024 (8) TMI 1297 - ITAT DELHI as held jurisdiction to withdrew exemption vests with the prescribed authority . The PCIT has no jurisdiction to withdraw or cancel the exemption. In this regard the Notification No. 52/2014 and 53/2014 both dated 22.10.2014 vesting powers to the Ld. CIT(Exemption) Delhi in the territorial area specified in Column No. 4 of the said notification who are claiming exemption inter/alia under Section 12A of the Act has been relied upon. It is the case made out by the appellant that by and under the said notification the Ld. CIT(E) has been constituted separately for the purposes mentioned therein. Thus it is the CIT(E) to exercise the power not the PCIT as has been wrongly done in the case in hand. Also in view of the provision of Section 12AA(5) of the Act as the provision of Section 12AA cannot be applied on order after 01.04.2021 the show cause notices issued by the PCIT to the appellant dated 05.07.2023 and 16.08.2023 are thus found to be erroneous and therefore liable to be quashed. Once the show cause is found to be non est in the eyes of law the entire proceeding is naturally found to be on a wrong foundation of law and thus liable to be set aside We quash the impugned order passed by the ld. PCIT cancelling 12A registration granted to the assessee - Appeal filed by the assessee is allowed.

Summary

The core legal questions considered in this appeal include:

1. Whether the Principal Commissioner of Income Tax (PCIT) had jurisdiction to cancel the registration granted under sections 12A, 12AA, and 12AB of the Income Tax Act, 1961.

2. Whether the cancellation of registration can be made with retrospective effect.

3. Whether the cancellation order passed by the PCIT was valid and sustainable in law, especially given the timing of the assessment proceedings and the reference made by the Assessing Officer (AO).

4. Whether the activities of the assessee society were genuine and carried out in accordance with the objects for which registration was granted.

5. The applicability and interpretation of the legal provisions under sections 12A, 12AA, and 12AB, including the concept of "specified violations" and the procedural safeguards involved in cancellation of registration.

6. The effect of amendments introduced by the Finance Acts of 2014, 2019, 2020, 2022, and 2023 on the powers of cancellation and renewal of registration under the Income Tax Act.

7. The procedural correctness and legality of the reference made by the AO to the PCIT post completion of assessment proceedings.

8. The impact of search and seizure proceedings on the cancellation of registration and the treatment of incriminating documents and statements recorded during such proceedings.

Issue-wise Detailed Analysis:

1. Jurisdiction of the PCIT to Cancel Registration under Sections 12A, 12AA, and 12AB

The assessee contended that the PCIT lacked jurisdiction to cancel registration under the relevant provisions, asserting that the power to grant or cancel registration lies exclusively with the Commissioner of Income Tax (Exemptions) (CIT(E)) as per the CBDT notifications dated 22.10.2014. The transfer of the case to PCIT under section 127 was argued to be only for coordinated assessment purposes, not for cancellation proceedings. The assessee relied on the coordinate bench decision in Lakhmi Chand Charitable Society, which held that the PCIT's order cancelling registration was without jurisdiction.

The Revenue, however, submitted that the PCIT was competent to cancel registration, relying on the order under section 127 transferring jurisdiction and on the provisions of sections 12AA(3) and 12AB(4). The Revenue cited the decision in Life Legal Initiative for Forest and Environment Trust, where the Tribunal upheld PCIT's jurisdiction to cancel registration post transfer.

The Court examined the statutory framework, including section 127 of the Act, which allows transfer of cases between Assessing Officers subordinate to the same Principal Commissioner or Commissioner, and the CBDT notifications that vest powers to grant or cancel registration with CIT(E) for exemption claims under sections 11 and 12. The Court noted that the transfer order under section 127 did not explicitly transfer powers relating to cancellation of registration, which is a separate jurisdictional matter.

Further, the Court noted that the reference for cancellation under the second proviso to section 143(3) must be made to the authority empowered to grant or cancel registration, i.e., the CIT(E), and not to the PCIT to whom the AO is subordinate. The Court also observed that the PCIT's assumption of jurisdiction by virtue of the section 127 transfer order was not supported by any specific Board notification or circular authorizing such exercise of power.

Accordingly, the Court held that the PCIT did not have jurisdiction to cancel registration in this case, and the cancellation order passed by PCIT was without jurisdiction and liable to be quashed.

2. Retrospective Cancellation of Registration

The assessee argued that cancellation of registration cannot be retrospective and relied on judicial precedents including the Madras High Court decision in AURO LAB and the coordinate bench decision in M.M. Patel Charitable Trust, which held that cancellation orders have prospective effect only from the date of the order.

The Court analyzed the statutory provisions and amendments, particularly the insertion of section 12AB(4) and the explanation of "specified violations." It was noted that the cancellation order under section 12AB(4)(ii) applies to the previous year for which the violation is noticed and all subsequent years, but does not explicitly authorize retrospective cancellation for prior years.

The Court emphasized that the serious civil consequences of cancellation require strict adherence to procedural safeguards and prospective operation of cancellation orders. The Court also observed that the Finance Act, 2022 amendment excluded violation of section 13(1)(c) and (d) from specified violations, limiting grounds for cancellation.

Accordingly, the Court held that retrospective cancellation is not permissible and the cancellation order with retrospective effect was unsustainable.

3. Validity of Reference by AO and Timing of Cancellation Proceedings

The assessee challenged the validity of the reference made by the AO to the PCIT, arguing that the second proviso to section 143(3) permits such reference only during the pendency of assessment proceedings. Since the assessment was completed prior to the reference, the reference and consequent cancellation order were invalid.

The Court examined the legislative amendments effective from 01.04.2022, which introduced the power of the AO to refer specified violations to the PCIT or Commissioner during assessment proceedings. It was noted that these provisions were not applicable retrospectively to assessments completed before the amendment date.

The Court found that in the present case, the assessments for the relevant years were completed prior to the amendment, rendering the reference and cancellation proceedings based on that reference invalid. The Court relied on the coordinate bench decision in Lakhmi Chand Charitable Society, which quashed similar cancellation orders on this ground.

4. Genuineness of Activities and Application of Section 13(1)(c)

The Revenue alleged that the assessee society was involved in non-genuine activities and diversion of funds, violating section 13(1)(c) of the Act, which prohibits application of income for the benefit of trustees or their relatives. The PCIT relied on incriminating documents and statements recorded during search and seizure operations.

The assessee contended that the society was carrying out genuine charitable activities as per its objects and that any misappropriation or irregularities could be addressed during assessment proceedings through adjustments or additions, without cancelling registration.

The Court reviewed relevant judicial precedents, including the Karnataka High Court's decision in Islamic Academy of Education, which held that misappropriation or mismanagement by trustees does not justify cancellation of registration if the institution is genuinely carrying out its objects. The Court also referred to coordinate bench decisions that emphasized the protection of exemption benefits for genuine charitable activities despite discrepancies in some transactions.

The Court found that the activities of the assessee society were genuine and in accordance with its objects, and that the incriminating materials were either retracted or subject to ongoing assessment proceedings. Therefore, cancellation solely on the basis of such materials was not justified.

5. Interpretation and Applicability of Sections 12A, 12AA, and 12AB

The Court traced the evolution of the provisions governing registration and cancellation of trusts and institutions under the Income Tax Act:

• Section 12A provided for registration of charitable trusts and institutions.
• Section 12AA introduced powers for cancellation of registration if activities were not genuine or not in accordance with objects.
• Section 12AB, effective from 01.04.2021, replaced 12AA and introduced a time-bound registration for five years with powers for renewal and cancellation on specified grounds.
• Amendments in Finance Acts 2014, 2019, 2020, 2022, and 2023 expanded and refined the grounds for cancellation, including the concept of "specified violations" and procedural safeguards.

The Court emphasized that cancellation under section 12AB(4) can only be made for violations occurring after the provision came into effect and that violations prior to 01.04.2022 cannot be grounds for cancellation under the amended section.

The Court also highlighted that cancellation powers are subject to reasonable opportunity of hearing and cannot be exercised arbitrarily or retrospectively.

6. Effect of Search and Seizure Proceedings

The Revenue relied on incriminating documents and statements obtained during search and seizure under section 132 and survey under section 133A to justify cancellation. The Court observed that while such materials may indicate irregularities, they do not ipso facto justify cancellation of registration if the trust is carrying out genuine activities. Any misappropriation or false accounting can be addressed during assessment by denying exemption or making additions.

The Court noted that the cancellation of registration is a serious step with civil consequences and should not be based solely on loose papers or retracted statements.

7. Treatment of Competing Arguments

The Court carefully balanced the Revenue's concerns about misuse of charitable status and diversion of funds against the assessee's right to carry on genuine charitable activities and enjoy exemption benefits. The Court gave weight to statutory provisions, procedural safeguards, and judicial precedents protecting bona fide trusts from arbitrary cancellation.

The Court rejected the Revenue's reliance on retrospective cancellation and post-assessment references, finding them contrary to law and procedural fairness.

Conclusions

The Court concluded that:

• The PCIT lacked jurisdiction to cancel the registration as the power to grant or cancel registration vests with the CIT(E) as per statutory notifications and no valid transfer of such jurisdiction was effected.
• Cancellation of registration cannot be retrospective and must operate prospectively from the date of the order.
• The reference by the AO to the PCIT after completion of assessment proceedings was invalid and could not form the basis for cancellation.
• The activities of the assessee society were genuine and carried out in accordance with its objects, and alleged irregularities could be dealt with during assessment proceedings without cancelling registration.
• The provisions of section 12AB(4) and related amendments do not apply retrospectively and cannot be invoked for violations prior to their effective dates.
• The cancellation order passed by the PCIT was erroneous, bad in law, and liable to be quashed.

Significant Holdings:

"The jurisdiction to grant and/or withdrawing exemption vest with the 'prescribed authority'. The PCIT has no jurisdiction to withdraw or cancel the exemption."

"The reference made in terms of 2nd proviso of Section 143(3) of the Act to the PCIT to whom the AO was subordinate is not permissible rather it is the CIT(E) Delhi, having territorial jurisdiction specified in Column 4 of the Notification Nos. 52/2014 and 53/2014 both dated 22.10.2014 from whom exemption inter/alia under Section 12A of the Act is being claimed is the appropriate authority."

"Cancellation of registration cannot be retrospective and the cancellation order shall take effect only from the date of the order/notice of cancellation."

"If it is established that the assessee trust/society is carrying out genuine activities as per the objects for which they have been established, then the issue arising out of any loose paper/documents/ incriminating material alleging that the funds of the society have been misappropriated or there is ambiguity in the claim of expenses, the same can be taken care of at the time of assessing the income."

"The amended Section 12AB(4) does not consider a violation of Section 13(1)(c) and Section 13(1)(d) as specified violations. Consequently, the registration cannot be cancelled on the ground that the assessee has violated Section 13(l)(c) or Section 13(1)(d)."

"The PCIT did not mention as to which amongst the various specified violations mentioned in Explanation attached to subsection (4) of section 12AB were attracted so as to show cause the assessee under sub-section (4) of section 12AB and ask for information by notice."

"The order passed by the PCIT cancelling registration of the appellant society on the reference made by the Assessing Officer is found to be flawed and without jurisdiction."

"The issuance of show cause notices proposing cancellation of registration alleging specified violation occurred prior to 01.04.2022 i.e. for Assessment Year 2015-16 to 2021-22 and the final order passed by the Ld. PCIT cancelling registration of the appellant society for Assessment Year 2015-16 to 2021-22 by wrongly invoking the provision of Section 12A r.w.s 12AA and 12AB(4) of the Act is found to be erroneous, bad in law, whimsical, in non application of mind and thus, unsustainable."

In conclusion, the Court allowed the appeal, quashed the impugned cancellation order, restored the registration granted under sections 12A and 12AB, and held that the assessee society shall continue to enjoy exemption benefits subject to assessment proceedings dealing with any irregularities in income or expenses.