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2016 (5) TMI 218 - ITAT HYDERABAD

2016 (5) TMI 218 - ITAT HYDERABAD - TMI - Eligibility for re-registration after cancellation of registration u/s 12AA cancelled - Held that:- There cannot be any second innings by way of registration of the same trust with the same objects. When there is no specific right provided in the Act for re-registration of the trust, assessee cannot seek such registration. It may be different scenario/case if assessee has modified its objects, or changed its committee who were governing the trust or hand .....

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his own order granting registration. There was no cancellation of registration nor a finding that the activities of the assessee were not genuine or not in accordance with the objects. Therefore, these decisions cannot be considered as precedent in the present appeal. Ld CIT-DR rightly distinguished the cases with which we agree.

In the given facts, we are of the opinion that assessee cannot apply for re-registration, once the registration granted was cancelled validly, having found t .....

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er B. Ramakotaiah, A. M. These two appeals by different assessees of the same group having common issues were heard together for the sake of convenience. Assessees herein were originally granted registration and consequent to Search and Seizure operations conducted on 10-09-2009, the registration was cancelled. Assessees have made fresh application on 21-03-2014 for registration of the Trust again which was rejected by the Ld. DIT(E) vide orders dt. 29-09-2014. Assessees are in appeal regarding .....

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ion was upheld by the ITAT in ITA No.586/Hyd/2012 dated 31-08-2012. Assessee vide application dt. 21-03-2014 sought fresh registration which Ld. DIT(E) did not admit the application itself, by stating as under: 4. A search and seizure operation u/s 132 of the Act, was carried out in the case of the assessee society on 10-09-2009, during which various incriminating documents were found and the same have been seized from the assessee society's premises, Such seized material, indicated that the .....

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shes collection of money by the society over and above the prescribed fee by the Government for admission of a student under management quota. 4.1 After referring to the judgement of the Hon'ble Supreme Court in the case of Mohini Jain vs. State of Karnataka & Others (1992) 2 SCC 666, where the matter relates to issue of capitation fee collected by the private educational institutions and it was observed by the Apex Court that the capitation fee is nothing but a price for selling educati .....

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as been utilized by the persons having interest in the society and therefore, it is a clear case of misuse of funds of the institution. Lastly, stating that the assessee society has violated the provisions of Sec, 11 and 13 of the Act, and has not conducted itself, in accordance with the objects of the society, for which it was established, the CIT (Central) vide that order dated 29-03-2012 passed u/s 12AA(3) of the Act, has cancelled the registration granted earlier to the assessee u/s 12AA of .....

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ion, it is not permissible on the part of the same trust / institution to again file application, seeking registration u/s 12A /12AA of the Act. In other words following cancellation of registration in the case of an assessee institution vide an order passed by the Commissioner of Income Tax u/s 12AA(3) of the Act, it is not permissible on the part of the same assessee institution to file application again for registration u/s 12AA of the Act. Therefore, and when in the case of the applicant soc .....

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ng the same . 2.1. Aggrieved, assessee has raised the following grounds: 1. The Learned Director of Income Tax (Exemptions) erred in rejecting the Application Form 10A for Registration u/s. 12AA of the Income Tax Act, 1961, by not admitting the same. 2. The Learned Director of Income Tax (Exemptions) erred in holding that the assessee is not permitted to file application once again seeking Registration u/s. 12A & 12AA, without compiling the requirements of section 12AA(1)(a)(b) of the Income .....

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and Central levels of education; g) To devise ways and means and accord facilities for candidates to specialize in all or any of the subjects with industrial orientation. h) To establish, manage, aid and maintain educational and other institutions, to impart education and training at all stages for the promotion of Catering Hotel, Management Engineering, Medicine, Pharmacy, Agriculture, Commerce, Literate, Arts and Science and Management and other subjects and allied activities for diffusion of .....

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s of income were filed by the assessee. There is no receipt under the head "donation" excepting the fees collected by the assessee form the students as fixed by the Government. For the assessment years 2011-12 and 2012-13, the Assessing Officer completed the assessments u/s 143(3) on 10-03-2014. He examined the case and decided that no other income was received by the assessee except the amount collected towards fee as prescribed. 3.2. On the question whether there is any restriction t .....

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ty is carried on by the Society. Therefore, the assessee is carrying on the activities as per the objects. The assessee did not collect any donation/capitation fee after the financial year 2009-10. The returns of income for the assessment years 2011-12 and onwards are filed before the authorities. The authorities did not find any infirmity with the returns of incomes filed or found that there is any unaccounted for receipt. Therefore, there is marked change in collecting fee by the assessee from .....

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ions of the Income Tax Act do not mention that it is one time affair. There is also no prohibition in the Income Tax Act for making another application for registration u/s. 12AA of the I.T.Act. The provisions of Sec.12AA mention clearly that an application for registration of a Trust can be made if the assessee is carrying on the charitable objects as defined u/s. 2(15) of the I.T.Act. 3.4. Referring to the provisions of Sec. 11 of the I.T.Act, it was submitted that the income of a charitable i .....

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the Act. Therefore, it is not correct to mention that registration u/s 12A is one time affair. 3.5. It was further submitted that the Finance Act No.2, 2014 amended the provisions of Sec.12AA of the I.T.Act by introducing 3 provisos to Sec.12AA of the Act. The assessee is extracting the said provisos hereunder: "8. In section 12A of the Income-tax Act, in sub-section (2), the following provisos shall be inserted with effect from the 1st day of October, 2014, namely:- "Provided that whe .....

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er that no action under section 147 shall be taken by the Assessing Officer in case of such trust or institution for any assessment year preceding the aforesaid assessment year only for non-registration of such trust or institution for the said assessment year: Provided also that provisions contained in the first and second proviso shall not apply in case of any trust or institution which was refused registration or the registration granted to it was cancelled at any time under section 12AA" .....

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een granted. In case of trusts or institutions which apply for registration after 1st June, 2007, the registration shall be effective only prospectively. 8.2 Non-application of registration for the period prior to the year of registration caused genuine hardship to charitable organizations. Due to absence of registration, tax liability is fastened even though they may otherwise be eligible for exemption and fulfill other substantive conditions. However, the power of condonation of delay in seeki .....

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ending before the Assessing Officer as on the date of such registration, if the objects and activities of such trust or institution in the relevant earlier assessment year are the same as those on the basis of which such registration has been granted. 8.4 Further, it has been provided that no action for reopening of an assessment under section 147 of the Income-tax Act shall be taken by the Assessing Officer in the case of such trust or institution for any assessment year preceding the first ass .....

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te to exempt the income u/s 11 even for the earlier assessment years. The second proviso prohibits initiation of action u/s 147 for any assessment year preceding to the year of registration on the ground that the registration was not available to the institution. The third proviso shows that it would operate only when a trust/institution whose registration was either refused or cancelled in the earlier past can make an application afresh and registration u/s 12AA can be granted. The third provis .....

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n is permissible even when the earlier application was either rejected or the earlier registration was cancelled. 3.7. Ld. Counsel referred to the decision of the Hon'ble ITAT, Cochin Bench in the case of Kadakkal Education Trust vs. ITO in Appeal Nos. 75, 348 of 2013 and 221 (COCH.) of 2014 dated 21-09-2014. A reading of the facts of the said case would indicate that the assessee filed more than one application before the CIT and the said applications were dealt in by the CIT as mentioned h .....

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ati in the case of CIT vs. Shrimanta Sankar Academy reported in 325 ITR 261. In the said case - d) The CIT rejected the claim for registration vide order dated 01.10.2004. This order was passed based on an application filed for registration on 30.03.2004 e) The assessee filed another application on 10.01.2006 seeking registration. The said application was rejected by the CIT vide order dated 08.05.2006. f) The assessee filed an appeal before the Hon'ble ITAT. The Hon'ble ITAT allowed the .....

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ecting the Commissioner of Income Tax to grant registration to the respondent assessee under section 12A of the Act for the assessment year 2002-03, the learned Accountant Member has remanded the matter to the Commissioner of Income Tax with a direction to reconsider the request of the respondent assessee for grant of registration with effect from April 1, 2001 and pass necessary order after giving proper opportunity of hearing to the respondent assessee as per law. The appeal was thus referred .....

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AA of the I.T.Act. Further, the amendment by Finance Act No.2, 2014 by introducing three provisos which indicate the legislative intention that there can be another application when the earlier application was rejected or the registration granted was cancelled. Therefore, the appellant humbly submits that the application made for registration u/s 12AA can not be rejected on the ground that the registration u/s 12AA is one time affair. 3.8. It was further contended that DIT(E) rejected the applic .....

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rejecting the application for registration based on the findings during the course of search and seizure operations conducted earlier which are not relevant for the year under consideration. 4. In reply, Ld. CIT-DR made detailed submissions. On the question whether the registration, having been cancelled, can be granted again it was submitted that Sec.12AA provides for a procedure to be followed by the Commissioner for the grant of registration to a trust or an institution. According to this pr .....

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evolves around the nature of the objects being charitable or religious, and the genuineness of the activities of the trust or institution. On the other hand, cancellation of registration u/s 12AA(3) follows the satisfaction of the Commissioner that the activities of the trust are not genuine or not in accordance with its objects. The satisfaction of the Commissioner regarding the genuineness of the activities of the trust or institution forms the basis for both the grant of registration and its .....

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the case of the assessee, the Commissioner, vide his order dated 29-03-2012, held that the activities of the assessee were not in accordance with its objects and cancelled the registration u/s 12AA(3). This order of the Commissioner was upheld by the ITAT vide its order in ITA No.585-586/Hyd/2012, dated 31.08.2012 with the observation that the assessee could not be considered to be engaged in charitable activities. In view of the clear finding, approved by the ITAT, that the activities of the as .....

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mmissioner regarding the genuineness of the activities. This is so, since both registration and its cancellation are one-time affairs. For granting the registration, the Commissioner must satisfy himself that the activities of the assessee have been genuine for, any or all of the years preceding the grant of registration. Similarly, for cancelling the registration, the Commissioner must be satisfied that the activities of the assessee have not been genuine for any or all of the years. If it were .....

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ation by the same assessee. 4.3. Clarifying the arguments of Ld. AR that the third proviso to Sec.12A(2) support assessee's claim, it was submitted that Sec.12A(2) provides that for applications for registration made after 01-06-2007, the benefit of Sec.l1 and 12 shall apply prospectively. The first proviso extends this benefit to the preceding assessment years for which assessment proceedings may be pending before the Assessing officer. The second proviso further provides that action U/s.14 .....

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of a hypothetical assessee in whose case registration was cancelled, the first proviso would not apply, meaning that sec. 11 and 12 will not apply for pending assessment proceedings, if any. In the absence of the third proviso, such an assessee would have claimed the benefit of the first proviso on the basis of the original registration. Similarly, in view of the third proviso, the second proviso does not apply to this hypothetical assessee, meaning that the Assessing Officer is permitted to ta .....

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interpretation of the AR, that the third proviso permits such re-registration, is far-fetched. 4.4. It was further submitted that the facts leading to the conclusion that the activities of the assessee were not in accordance with its objects came to light in the course of a search u/s 132. These facts were not available from the records in the form of the audited books of account of the assessee. Seen in this light, the claim of the AR that subsequent to the cancellation, the assessee has been c .....

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ssee filed subsequent applications which were also rejected. The assessee was eventually granted registration on 20-01-2011 on an application dated 01-12-2010. The ITAT noted that the Commissioner rejected the application dated 30-05-2007 on the failure of the assessee to produce certain material which was called for by letter dated 10-07-2007. The ITAT also took note of the fact that the assessee apparently complied with the requirement of the Commissioner and registration was also granted from .....

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ellation of registration in the cited case, merely a refusal to grant registration. There was also no finding that the assessee had been engaged in activities that were not genuine or were not in accordance with the objects. There was merely a failure to furnish material on the basis of which a view could be taken. Therefore, the decision in the case of Kadakkal Educational Academy cannot be considered as a precedent in the present appeal. 4.6. In the case of Shrimanta Sankar Academy, the assess .....

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in the cited case arose from the refusal of the CIT to condone the delay in filing the application and the subsequent refusal to revise his own order granting registration. There was no cancellation of registration nor a finding that the activities of the assessee were not genuine or not in accordance with the objects. Therefore, this decision cannot be considered as precedent in the present appeal. 4.7. It is submitted that the issue in the present appeal is not whether a second application for .....

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he application. First of all, as admitted during the hearing itself, assessee has neither changed the objects of the Trust nor changed the persons in the management. On the same set of trust deed and its committee, assessee sought re-registration of the trust. The question for consideration is whether the registration having been cancelled can be granted again? There are no precedents on the subject and there is no specific provision in the Act to grant registration again once it is cancelled. T .....

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t registration. The phraseology of Section 12AA of the Act prescribes the scope and ambit of the enquiry that the Commissioner is authorized to carry out at the time of grant of registration to a trust or institution, The scope and ambit of the enquiry revolves around the nature of the objects being charitable or religious, and the genuineness of the activities of the trust or institution. On the other hand, cancellation of registration u/s 12AA(3) follows the satisfaction of the Commissioner th .....

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that the activities of the trust were genuine, which is a pre-requisite for granting registration. The refusal to grant registration after it has been cancelled is, therefore, a natural corollary of the cancellation itself. 5.1. The procedure for cancellation of registration was not originally provided for in the Income Tax Act 1961 which was provided by the Finance Act, 2004 w.e.f. 01-10-2004 by incorporating Sub-Section 3 of Section 12AA. Consequent to the difference of opinion whether registr .....

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cordance with the objects are material for considering the issue either for registration of for cancellation. As already stated above, the activities of the trust are found to be not in accordance with the objects of the trust or institution and accordingly, the registration granted earlier stood cancelled by the DIT(E)/ CIT. 5.2. In our opinion, on the basis of the same trust deed and the activities of the trust, registration cannot be granted by the authority, who has earlier cancelled the reg .....

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bound by the order passed by the earlier Divisional Bench dismissing the appeal which arose out of this very same order. Taking support from the principles laid down by the Hon'ble High Court in the above said case, we are of the opinion that DIT/CIT cannot take a decision against its own decision cancelling the registration earlier, now registering the trust again so as to confer certain benefits which assessee trust was not found entitled earlier. In view of that, we are of the opinion tha .....

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nd second proviso to Section 12A(2) provide certain exceptions when application for registration was made. Provisions of Section 12A(2) are as under: 12A. XXXXXXXXXXX [(2) Where an application has been made on or after the 1st day of June, 2007, the provisions of sections 11 and 12 shall apply in relation to the income of such trust or institution from the assessment year immediately following the financial year in which such application is made:] [Provided that where registration has been grant .....

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n 147 shall be taken by the Assessing Officer in case of such trust or institution for any assessment year preceding the aforesaid assessment year only for non-registration of such trust or institution for the said assessment year: Provided also that provisions contained in the first and second proviso shall not apply in case of any trust or institution which was refused registration or the registration granted to it was cancelled at any time under section 12AA.] 6.1. As can be seen from the abo .....

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to the year prior to the said assessment year, if assessment proceedings are pending before the AO as on the date of such registration provided the objects and activities remain the same for such preceding year. Second proviso provides further that no action u/s. 147 shall be taken by the AO for any assessment year proceeding the aforesaid assessment year only for non-registration of such trust for the said assessment year. 6.2. Third proviso makes it clear that the provisions of first and seco .....

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cation of first and second provisos in case the assessments were pending at the time of cancellation. Subsequently by making an application again without any change in objects assessee, in a way is trying to overcome the provisions of the Act. To examine, we will consider a hypothetical situation that registration was granted to assessee on the revised application made after the same was validly cancelled. In that case, the first and second provisos will apply to assessee for previous years whic .....

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on the date of application may also get similar exemption. This can not be permitted as it is the intention to cancel the registration when it was found that trust/ institution violated the objects or found to be not a genuine one. In view of this, we are of the opinion that the observations of the Ld. Counsel that third proviso entitle assessee to re-registration cannot be accepted. 6.3. The Co-ordinate Bench in the case of The Board of Control for Cricket in India Vs. ITO [19 ITR (Trib) 91], M .....

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e claimed unless the changes are vetted by the authorities. The assessee-society was duly registered under the Tamil Nadu Registration Act, 1975. Its main object was to promote the game of cricket. It was registered under section 12A, 1996. During the course of assessment proceedings for the assessment year 2007-08, the Assessing Officer noticed that the assessee- society had amended its memorandum and made amendments in the rules and regulations and that the changes were not intimated to the In .....

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isfied that the memorandum and bye-laws fulfilled the conditions laid down under registration under section l2A, was granted and this, in turn, enables the assessee to avail of the benefit of sections 11 to 13 of the Act. Thus, what was registered was the society along with its memorandum and bye-laws. If there were significant or material changes in the objects or bye-laws, it could not be said that the registration under section 12A, could be extended to those amended objects and bye-laws. Any .....

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und by the registration granted under section 12A, to the extent the memorandum and rules and regulations had been amended. The assessee-society should approach the registering authority with the changes and amendments so that the authorities could examine as to whether the amendments in question met the requirement of law . Thus, even when a registration is validly held by a trust or institution, if there are changes to the by-laws or objects of the trust it was considered that assessee should .....

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ion fees. This aspect as rightly pointed out by the Ld. CIT-DR in her arguments cannot come to light, unless there is again search and seizure operations. It is to be noted that assessee-trust is not genuine and not fulfilling the objects has come to knowledge only after search and seizure operations as any sort of collection of donations or capitation fees would be outside the books of accounts. General enquiry undertaken by the AO does not establish these facts. Moreover, it is already an esta .....

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ed, a different opinion cannot be taken for re-registration of the trust. Consequently, we are of the opinion that the trust cannot seek re-registration based on the very same trust deed. 8. The statute also should specifically provide for re-registration. Under the company s law re-registration was provided whenever a Private Limited company converts itself into a Public Limited Company. If the Legislature intended to grant registration to the trust to which registration was already cancelled, .....

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see has modified its objects, or changed its committee who were governing the trust or handed over the property of the trust to another trust for its proper maintenance, then, fresh registration of the new trust could be examined by the DIT/CIT as per the law. At present there is no provision either in Sec.12A or in Sec. 12AA allowing the assessee registration for the second time. Ld. Counsel relied on certain cases in support of contentions The issue in appeal in those cited cases arose from th .....

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registration, once the registration granted was cancelled validly, having found that that the trust is not genuine and has not been carrying out its activities in accordance with the objects of the trust. We are of the opinion that the CIT was correct in refusing to entertain the application. In view of this, the grounds raised by assessee are dismissed. ITA No. 1749/Hyd/2014 Joginpally B.R. Educational Society: 10. As far as this appeal is concerned, the society Joginpally B.R. Educational Soci .....

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by the Hon'ble High Court. Assessee vide application dt. 21-03-2014 sought fresh registration which Ld. DIT(E) did not admit the application itself, by stating as under: 4. A search and seizure operation u/s 132 of the Act, was carried out in the case of the assessee society on 10-09-2009, during which various incriminating documents were found and the same have been seized from the assessee society's premises, Such seized material, indicated that the assessee society has collected subs .....

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ety over and above the prescribed fee by the Government for admission of a student under management quota. 4.1 After referring to the judgement of the Hon'ble Supreme Court in the case of Mohini Jain vs. State of Karnataka & Others (1992) 2 SCC 666, where the matter relates to issue of capitation fee collected by the private educational institutions and it was observed by the Apex Court that the capitation fee is nothing but a price for selling education, the CIT(Central), in that order, .....

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ng interest in the society and therefore, it is a clear case of misuse of funds of the institution. Lastly, stating that the assessee society has violated the provisions of Sec, 11 and 13 of the Act, and has not conducted itself, in accordance with the objects of the society, for which it was established, the CIT (Central) vide that order dated 29-03-2012 passed u/s 12AA(3) of the Act, has cancelled the registration granted earlier to the assessee u/s 12AA of the Act. It may be further mentioned .....

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