TMI Blog2023 (11) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... ored back to ld CIT(E), therefore, this application is treated under section 12AB. In our view, this is a condition precedent for making application under Form 10A or 10AB, however, before us Ld. AR for the assessee vehemently submitted that furnishing of self-certified copy is required only if it is so registered and it was also argued that there is no provision that institute should be constituted under any law. Such submission of Ld. AR for the assessee is not acceptable to us, as clause-(c) of sub-Rule (2) of Rule 17A is clear and unambiguous. Income Tax Rules 1962 amended from time to time is framed to supplement of statutory provision under the Act and have approval of Parliament. Thus, in our view the assessee failed to fulfil the primary condition for registration under registrar of company, registrar of farm and society or registrar of Public Trust and in absence of such registered instrument, the application filed by assessee is premature and cannot be proceeded to examine their object and the activities, if in accordance with their object. Therefore, we do not find any merit in the submission of Ld. AR for the assessee. CIT(E) has duly considered the direction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to succeeds, if the delay of condonation and appeal is heard on merit. The other party has no vested right for not allowing the hearing of appeal on merit. The Ld. AR for the assessee submits that assessee is pursuing its appeal with bona fide right from the beginning. The Ld. AR for the assessee prayed for condoning the delay of appeal. 3. On the other hand, Ld. Commissioner of Income Tax Departmental Representative (Ld. CIT-DR) for the Revenue submits that Bench may take appropriate decision on considering the plea of assessee. 4. We have considered the submission of both the parties and considering the fact that assessee is an Association of Persons / Bar Association, espousing the cause of Managing Committee for their welfare. Considering the fact and circumstances of the case we find that there is no mala fide or deliberate delay and such delay was only for the reasons that all the members of Executive Committee to take unanimous decision was not available for passing the resolution for filing appeal before Tribunal. In such circumstances, when there is no mala fide intention or deliberate delay and that the delay was not intentional, on the part of assessee filing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n set up by the company for registration or charitable or religious trust / institution / association without getting registered with the competent authority there will not be any legal obligation on the part of trust or institution to maintain any record of the activities. Moreover, there would be no control / provision for the activities of such unregistered entities. The Ld. CIT(E) further specifically held that sub-clause (c) to clause (i) of Rule 17A inserted with effect from 19.02.2018 required the assessee to furnish certified copy with registration of companies, or registration of farm or society or registrar of public trust, as the case may be. The assessee has not furnished any such document for seeking registration under section 12A either before in original proceedings or before Tribunal. The Section 12AA laid down the procedure to be followed by the Commissioner for granting / refusing registration under section 12A and such procedure, the Ld. CIT(E) is required to call for information and document and to conduct enquiry to satisfy himself of the genuineness of such trust, and upon reaching satisfaction of the charitable and religious nature of the objects and authenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. Such information was provided on ITBA portal on 31.12.2021. Such fact is confirmed by Ld. CIT(E) in his order. So far as clause-(c) of Rule 17A(2) is concerned, the Ld. AR for the assessee submits that there is no mandatory provision laid down under this clause that institution should be registered with registrar of Companies or registration of firms or society or registrar of Public Trust. It is just provided under this clause that the assessee is required to file certificate of registration as the case may be, meaning thereby, that the assessee is required to file the certificate of registration, if it is so registered. There is no provision that Institution should be constituted under any law. No such provisions were laid down for granting registration under section 12AA that the Institute should be registered with any authority unlike the provision of Section 80G, when it is prescribed under clause (v) in Section 80G(5) that Institution should be constituted as a Public Charitable Trust for registration under the Societies Act or under section 25 of the Companies Act. In first round of litigation, the Tribunal rightly relied on the decision of Co-ordinate Benches of Ahme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 01.04.2021. As per substituted Rule 17A , the assessee must be registered with registrar of company or registrar of firm or society of registrar of Public Trust as the case may be. Such conditions are mandatory. The Ld. AR of the assessee mainly made emphasis that certified copy of registration is required, if they are registered. Such understanding of Ld. AR of assessee is not correct. The provision of sub-clause-(c) of sub-rule-(2) of Rule 17A, is clear and unambiguous and such condition cannot be overlooked. While considering the registration under section 12AB, the Ld. CIT-DR for the Revenue fairly submits that he has no objection if the application of assessee is treated under section 12AB provided that they fulfilled all requisites condition for registration for their registration. The Ld. CIT-DR for Revenue reiterated that neither the memorandum of association is filed before the Tribunal nor assessee has taken any step for seeking registration in accordance with mandatory provision of clause-(c) of sub-Rule(2) of Rule 17A. So far as comparison of application under section 80G by Ld. AR for the assessee for, the Ld. CIT-DR submits that those provision cannot be compared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) of sub-Rule (2) of Rule 17A is clear and unambiguous. Income Tax Rules 1962 amended from time to time is framed to supplement of statutory provision under the Act and have approval of Parliament. Thus, in our view the assessee failed to fulfil the primary condition for registration under registrar of company, registrar of farm and society or registrar of Public Trust and in absence of such registered instrument, the application filed by assessee is premature and cannot be proceeded to examine their object and the activities, if in accordance with their object. Therefore, we do not find any merit in the submission of Ld. AR for the assessee. 11. So far as the reliance on the various case laws are concerned on the ratio of law that lower authorities should not exceed their jurisdiction. We find that ratio for all such decisions are not applicable on the facts of the present case as the Ld. CIT(E) has duly considered the direction of this Bench and granted full opportunity to the assessee, before passing the order in accordance with law. The Ld. CIT(E) has nowhere exceeded his jurisdiction while passing the order afresh, rather the assessee itself failed to fulfil the requisite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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