TMI Blog2018 (5) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. CIT(A) was of the correct opinion that assessments for all these A.Ys. 2008-09 to 2012-13 are pending with the authorities precisely before CIT(A), thereby, held the first proviso as inserted through Finance Act, 2014 w.e.f. 01.10.2014 is applicable to the present case - Decided in favour of assessee. - ITA Nos.2101 to 2105/Kol/2016 - - - Dated:- 11-5-2018 - Shri P.M.Jagtap, AM And Shri S.S.Viswanethra Ravi, JM For The Appellant : Shri Arindam Bhattcharjee, Addl. CIT For The Respondent : None ORDER Per S.S.Viswanethra Ravi, JM These five appeals by the Revenue are against common order dated 29.08.2016 passed by C.I.T-(A)-25, Kolkata for A.Y s 2008-09, 2009-10, 2010-11, 2011-12 and 2012-13. 2. The brief facts of the case are that the assesee is a recognised educational school and conducts its activities in the name and style as M/s. St. Xavier s School in Burdwan. On information, the AO reopened the case of the assessee by issuing notice u/s 148 of the Income Tax Act, 1961 (Act). In response to which, the assessee filed return of income declaring total income at nil . Notices u/s 143(2) and 142(1) of the Act were issued, in compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from 25.03.2013. The AO denied the benefit u/s 11 of the Act only for the reason that no registration was granted by the income tax department to claim exemption u/s 11 of the Act. The CIT(A) was of the opinion that assessments for all these A.Ys. 2008-09 to 2012-13 are pending with the authorities precisely before CIT(A), thereby, held the first proviso as inserted through Finance Act, 2014 w.e.f. 01.10.2014 is applicable to the present case. We find the issue is identical to facts of case decided by the Cochin Tribunal in the case of SNTP Yogam vs ADIT (E) in ITA NO.503 to 507 and 569/Cochin/2014 for A.Yrs.2006-07 to 2009-10 and 2010-11, which held that the insertion of first proviso to sub-section 2 to section 12A of the Act and effect thereto is retrospective in nature. The relevant portion of which is reproduced below : 7.2 When section 12A of the Act was amended by introducing new provisos to sub-section (2) of s. 12A by Finance Act, 2014 with effect from 01.10.2014, the assessment orders passed by he assessing officer in respect of the present assessee were pending in appeal before the first appellate authority. During such pendency, the assessee was granted registr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effect to the intention of the amendment, thereby removing the hardship in genuine cases like the present assessee under consideration. 7.4.Taking into account the above facts and circumstances of the issue, we are of the view that the AO was not justified in taking a stand that registration u/s 12A was not applicable to the assessee for the AYs under dispute and the condonation petition for delay in filing the application for registration u/s 12A [for the AYs under dispute] has not yet been decided by the CBDT and, therefore, the total incomes of the assessee were to be assessed as per commercial principles. The CIT (A) was also not justified in taking a similar stand that of the AO, without taking cognizance and intention of the amendment to s. 12A of the Act. If no judicious or a liberal view is not taken either by the assessing authority or the appellate authority as in the case under consideration, the very purpose for which such an amendment to s. 12A of the Act enacted, in our view, would be defeated. We are also supported by the order of Kolkata Bench of ITAT in case of Sree Sree Ramkrishna Samity vs. DCIT (ITA No. 1680/2012, order dated 09.10.2015) where it was hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e examined and decided upon by the Assessing Officer at the time of assessment based on the conduct of the activities, compliance with various statutory and other requirements, etc., as referred to in Sections 2(15), 11, 12 13 of the Income Tax Act, 1961, without prejudice to the fact of granting merely in principle registration by DIT(E). ii) With effect from the Assessment Year 2009-10, the advancement of any object of general public utility other than relief of the poor, education and medical relief as defined in section 2(15) of the Income Tax Act shall not be a charitable purpose, if it involves the carrying on of any activity in the nature of trade, commerce or business, or any activity of rendering any service in relation to any trade, commerce or business, for a cess or fee or any other consideration, irrespective of the nature of use or application, or retention, of the income from such activity. iii) Amendments to the Deed/Memorandum, Rules and Regulations, if any, of the Trust / Institution shall be made only with the prior approval of the Commissioner of Income Tax(Exemptions) or any other prescribed authority under the Income Tax Act,1961. iv) The r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
