TMI Blog2015 (12) TMI 1796X X X X Extracts X X X X X X X X Extracts X X X X ..... 0G of the Act. Commissioner of Income Tax is directed to issue registration u/s. 12A and approval u/s. 80G w.e.f. assessment year 2010-11, i.e. the assessment year in which the benefit of section 80G was first denied to the assessee by the Assessing Officer. - ITA No. 1561/PN/2012, 203 & 1840/PN/2014 - - - Dated:- 18-12-2015 - Shri R.K. Panda And Shri Vikas Awasthy, JJ. Assessee by: Shri Nilesh Khandelwal Revenue by: Shri S.K. Rastogi ORDER Vikas Awasthy, These three appeals have been filed by the assessee against the orders of Commissioner of Income Tax (Appeals) in rejecting the application for renewal of approval u/s. 80G(5), grant of continuation of registration u/s. 12A of the Act and rejecting the application for fresh registration u/s. 12A. The appeal in ITA No. 1561/PN/2012 filed by the assessee is directed against the order of Commissioner of Income Tax-II, Pune dated 07-06-2012 rejecting the application of assessee for approval u/s. 80G(5)(vi) of the Act r.w. Rule 11AA of the Income Tax Rules. ITA No. 203/PN/2014 is directed against the order of Commissioner of Income Tax-II, Pune dated 19-09-2013 rejecting the application seeking conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-2012 on the ground that the assessee has not been able to show that it is registered u/s. 12A. Since, the foremost and mandatory condition for obtaining approval u/s. 80G(5) was not established, the Commissioner of Income Tax rejected the application of assessee. Thereafter, the assessee made an application dated 22-03-2013 for extension/continuation of registration u/s. 12A. The application of the assessee for extension/continuation of registration u/s. 12A was also rejected by the Commissioner of Income Tax vide impugned order dated 19-09-2013 for the reason that the assessee has failed to furnish earlier certificate of registration u/s. 12A granted to the assessee. Thereafter, the assessee filed an application on 28-03-2014 for grant of fresh registration u/s. 12AA of the Act. The Commissioner of Income Tax rejected the said application for grant of fresh registration on the ground that the assessee is not carrying on charitable activities. Most of the objects of the assessee are not charitable in nature. The activities carried out by the assessee are commercial in nature and the assessee is earning huge income from such activities. Aggrieved by the findings of Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k. The assessee made applications under RTI Act to various other circles/wards where the assessee was assessed. The CPIOs of the concerned circles/wards in their respective orders gave similar reply that no such information is available in their office. The ld. AR referred to pages 128 to 132 of the paper book in support of his contentions. The ld. AR submitted that it is the duty of the Department to maintain and preserve the files. The ld. AR referred to the decision of Pune Bench of the Tribunal in the case of Phaltan Education Society Vs. Commissioner of Income Tax in ITA No. 188/PN/2008 for assessment year 2000-01 to 2005-06. To submit that once registration u/s. 12A has been granted there is no need for the assessee to apply for the renewal of same in case the assessee has lost the original certificate of registration reliance was placed on the decision of Ahmedabad Bench of the Tribunal in the case of Sardar Bhavan Trust Vs. Income Tax Officer in ITA No. 876 to 881/AHD/2010 for assessment years 1999-2000 to 2004-05 decided on 10-05-2013. The onus is on Revenue to prove that the trust was not registered u/s. 12A of the Act. The ld. AR also referred to the order of Chief Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax rightly rejected the application of assessee for grant of extension of registration u/s. 12A of the Act. 5.1 In respect of rejection of fresh application for registration u/s. 12A the ld. DR submitted that the Commissioner of Income Tax has categorically observed in the impugned order that the pre-dominant objects of the assessee are commercial in nature. The assessee is earning income from letting out of halls and buildings to various individuals, MNCs and others. The assessee also generated income by providing various facilities such as DG Set, furniture, renting of furniture and income from washing and cleaning. The activities carried out by the assessee are clearly in the nature of business, trade or commerce or rendering services relating to business. Thus, the assessee is hit by proviso to section 2(15) of the Act. If the assessee was actually performing any charitable activities no fee or nominal fee should have been charged for giving halls, for functions. The ld. DR referred to income and expenditure account for the year ending 31-03- 2013 of the assessee which is at page 76 of the paper book to show that the assessee had received rental inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... length and have perused the impugned orders. We have also considered the decisions on which the representatives of both the sides have placed reliance in support of their respective contentions. The Commissioner of Income Tax has rejected the application of assessee for grant of approval u/s. 80G and extension/continuation of registration u/s. 12A on the ground that the assessee has not been able to show that the assessee was earlier granted registration u/s. 12A of the Act. The trust is in existence since, 1970 with the following objects: 1. To work for the social, educational, physical, cultural industrial progress of society. 2. To improve interaction unity amongst various sections of society. 3. To set up organize manage cultural centers, sanitoriums, dharmashalas, hostels, halls, industrial units, libraries, reading rooms, health centers and other centers of social utility for social, cultural overall use. 4. To buy, take on [ease, rent, accept as gift through other modes land, property or any movable or immovable assets. 5. To accumulates earn income by way of donations, gifts, grants, fees, loans other means. 6. To build buy halls on rent, acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 01-06-2005 30-09-2005 01-06-2005 to 31-03-2008 The Department has not disputed the issuance of aforesaid certificates/communications granting/extending approval u/s. 80G from time to time. 8. In the light of above certificates/communication from the office of Commissioner of Income Tax, Pune, the reason for rejecting approval u/s. 80G, that the assessee has not been able to show from records that earlier registration u/s. 12A was granted is not sustainable. The assessee has been able to show from records that it has been enjoying the benefit of section 80G from 1978 to 2008. One of the vital precondition for approval u/s. 80G is registration u/s. 12A of the Act. One of the reasons for denying the benefit of section 80G by Assessing Officer to the assessee in assessment year 2010-11 was that probably the assessee was claiming deduction u/s. 80G because of the benefit claimed under clause (22) and (22A) of section 10. This presumption of the Assessing Officer is without any basis. Even if it is taken to be correct, clause (22) and (22A) of section 10 were omitted by the Finance (No. 2) Act, 1998 w.e.f. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and exemption provided under the act has been allowed to the Assessee, the presumption is that the Assessee trust was registered u/s 12A 12AA of the act till the same is rebutted by the Department by adducing documentary evidence to the contrary. The Revenue could not bring any evidence on record to prove that the assessee was not granted registration u/s. 12A of the Act. We are therefore of the view that a mere statement that the relevant registers are not available with the Department could not be considered against the assessee. Considering the totality of the facts, we of the view that the assessee should be considered to be having registration u/s. 12A in all the assessment years under appeal and therefore all these appeals are allowed. 10. In view of the fact that the assessee had furnished sufficient evidence in support of his claim that it has been earlier enjoying the benefit u/s. 80G in the past and categoric statement of the assessee that the original registration certificate issued u/s. 12A has been misplaced, there was no occasion for the Commissioner of Income Tax to ask for any further document in support of earlier registration granted u/s. 12A of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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