TMI Blog2016 (5) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... ni For The Revenue : Shri Subhash Chandra ORDER PER VIKAS AWASTHY, JM : These two appeals have been filed by the assessee assailing the order dated 06-11-2013 passed by Commissioner of Income Tax-II, Kolhapur cancelling the registration granted to the assessee u/s. 12AA of the Income Tax Act, 1961 (hereinafter referred to as the Act ) and order dated 23-12-2013 withdrawing approval granted u/s. 80G(5) of the Act. 2. ITA No. 113/PN/2014 is directed against the order of Commissioner of Income Tax passed u/s. 12AA(3) of the Act and ITA No. 114/PN/2014 is against the order of Commissioner of Income Tax passed u/s. 80G(5) of the Act r.w. Rule 11AA(5) of the Income Tax Rules, 1962. 3. The brief facts of the case as emanating from the records are: The assessee is a trust which had come into existence vide registered trust deed dated 10-05-1998. The assessee trust was granted registration u/s. 12AA of the Act vide order dated 24-08-1999. Approval u/s. 80G was also granted to the assessee which was subsequently extended from time to time. The Commissioner of Income Tax vide order dated 21-11-2011 cancelled the registration of the assessee trust on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 23 (Bom); iii. Commissioner of Income Tax Vs. Manav Vikas Avam Sewa Sansthan, 336 ITR 250 (All); iv. Prabodhan Shikshan Prasarak Sanstha Vs. Dy. Commissioner of Income Tax in ITA No. 892/PN/2012 decided on 30-09-2013. 4.1 The ld. Counsel for the assessee stated at the Bar that the assessee has amended the trust deed and has deleted/amended the clauses on which the Commissioner of Income Tax has raised objection. The amended trust deed could not be filed before the Commissioner of Income Tax as the amendments were carried out/approved after the date of passing of impugned orders. 5. On the other hand Shri Subhash Chandra representing the Department vehemently supported the orders of Commissioner of Income Tax in cancelling the registration and consequently withdrawing approval granted u/s. 80G(5) of the Act. The ld. DR submitted that the assessee had granted unlimited powers to the President who is the Settlor of the trust in appointing the Chairman, Vice-Chairman and other trustees, he had absolute control over the corpus of the trust, which is against the norms of public charitable trust. The ld. DR submitted that the case laws on which the ld. Counsel for the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (3) of section 12AA and cancelled the registration granted to the assessee u/s. 12A. The assessee carried the matter in appeal before the Tribunal. The Tribunal considered judgments of various Hon'ble High Courts including the decision of Hon'ble Allahabad High Court in the case of Commissioner of Income Tax Vs. Manav Vikas Avam Sewa Sansthan (supra) and held as under: 8.9. .It is settled legal position that the judicial /quasi-judicial authority cannot review its own order. The cancellation/withdrawal of registration granted under S. 12A prior to 1- 10-2004 invoking S. 12AA(3) tantamounts to Review of the order. The power granted under S. 12AA(3) is not retrospective. We find that the Hon'ble Allahabad High Court in CIT v. Manav Vikas Avam Sewa Sanstha (2011) 336 ITR 250 (All) held as under:- It is well settled, proposition of law that the judicial/quasijudicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction as held in the case of Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya AIR 1987 SC 2186) and the Full Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the assessee retrospectively particularly prior to amendment dt 1st June, 2010. The Director of IT (Exemption) was not justified in resorting to cancel the registration granted to the assessee trust earlier by CIT, vide his order dt. 21st March, 1990 w.e.f. 21st March, 1990. Therefore, impugned order was set aside and quashed. The above legal proposition laid down that the provisions of Sec. 12AA(3) are not retrospective and therefore, resultantly the registration granted prior to insertion of S. 12AA(3) of the Act could not be cancelled or withdrawn which would amount to review. The Hon'ble Bombay High Court in the case of Sinhagad Technical Education Society v. CIT (Central) 2012) 343 ITR 23 (Bom) has held that Every statutory provision which operates in respect of a trust, which has already been registered in the past is not necessarily retrospective. A provision is retrospective when it takes away a right which has vested or accrued in the past. The effect of the provision is to empower the commissioner to cancel the registration of the trust where he is satisfied that the activities of the trust are not genuine or are not being carried out in accordance with the object ..... X X X X Extracts X X X X X X X X Extracts X X X X
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