2013 (5) TMI 251 - AT - Income Tax

Registration u/s 12A cancelled - CIT was of the opinion that the assessee institution no more can be said to have carrying on charitable purpose in view of the amendment to section 2(15) - whether the assessee is regarded to have been established for charitable purpose even after insertion of proviso to Section 2(15) - Held that - The assessee when applied for registration was very much a charitable institution as per the definition of the charitable purpose given u/s 2(15) at that time, therefore entitled for the registration u/s 12A. Once, the assessee no more remains being established for charitable purpose after the insertion of proviso in section 2(15), the eligibility of the assessee for registration stands cancelled. The CIT is the law implementing authority u/s 12A and therefore, it has power to rectify its order by cancelling / withdrawing the registration by rectifying the Order passed u/s 12A from the date when the assessee no more remains to be charitable institution as is held by us in the preceding para. A legal mistake has occurred in the order of the CIT dtd. 13.4.2006 from the date when the proviso under Section 2(15) has been inserted as the institution no more remains to have been created/established for charitable purposes or religious purposes. It is not the case of the assessee institution that it has been created or established for religious purposes. If the registration will remain continued, the purpose of amendment made in section 2(15) will be defeated and injustice will be caused to those institutions having the similar objects as the assessee has but created or established after the amendment in section 2(15) of the Income Tax Act. As going through the decision of the CIT V/s Sarvodaya Ilakkiya Pannai (2012 (2) TMI 160 - Madras High Court) issue before relates to the power of the CIT given under Section 12AA(3) and under these facts, the Madras High Court has upheld the order of the I.T.A.T. cancelling the withdrawal of the registration by the CIT under Section 12AA(3) as Tribunal held that there was no violation of the provisions of Section 12AA(3). The question whether there had been a legal mistake in the order by which the registration was granted was not before the Hon ble High Court. Even otherwise, the decision of the Madras High Court is not binding on us in view of the decision of CIT Vs. Thana Electricity Supply Ltd. 1993 (4) TMI 37 - BOMBAY High Court Thus CIT has rightly cancelled the registration granted under Section 12A as a mistake apparent on record as occurred in the order due to the amendment in section 2(15) and therefore no interference is called for in the order of the CIT. Against assessee.

Issues Involved:
1. Delay in filing the appeal.
2. Validity of the cancellation of registration under Section 12A of the Income Tax Act.
3. Interpretation of the amended definition of "charitable purpose" under Section 2(15) of the Income Tax Act.
4. Analysis of the assessee's activities in relation to trade, commerce, or business.
5. Applicability of Section 12AA(3) for cancellation of registration.

Detailed Analysis:

1. Delay in Filing the Appeal:
The appeal filed by the assessee was barred by a one-day delay. The delay was condoned as the appeal was drafted and signed on Friday, 2nd November 2012, but could be filed only on the next working day, Monday, 5th November 2012, since 3rd November 2012 was a Saturday.

2. Validity of the Cancellation of Registration under Section 12A:
The primary issue in the appeal was the validity of the cancellation of registration by the Commissioner of Income Tax (CIT) from the assessment year 2009-10, which was initially granted to the assessee under Section 12A of the Income Tax Act by an order dated 13.4.2006. The CIT issued a notice to the assessee, questioning why the registration should not be canceled in light of the amended definition of "charitable purpose" under Section 2(15).

3. Interpretation of the Amended Definition of "Charitable Purpose" under Section 2(15):
The CIT's decision was based on the amended definition of "charitable purpose," which included a proviso stating that the advancement of any other object of general public utility would not be considered charitable if it involved carrying on any activity in the nature of trade, commerce, or business, or any activity of rendering any service in relation to trade, commerce, or business for a fee or any other consideration, irrespective of the nature of use or application or retention of income from such activities. The CIT concluded that the assessee's activities were in the nature of trade, commerce, or business, as they involved substantial income from various sources such as license fees, hire charges, and income from stalls.

4. Analysis of the Assessee's Activities in Relation to Trade, Commerce, or Business:
The CIT observed that the assessee's activities included holding the International Film Festival of India, advising the Government of India on entertainment policies, creating an entertainment hub, and building multiplexes and auditoriums. The CIT noted that the assessee received income from house property, government grants, and miscellaneous sources such as sale of program tickets, bank interest, and administrative charges. These activities were deemed akin to those undertaken by private enterprises liable for tax, thus falling within the purview of the amended Section 2(15).

The assessee contended that its main sources of income were from house property and other sources, not from business or profession. It argued that owning and letting out building property did not amount to carrying on an activity in the nature of trade, commerce, or business. The assessee also claimed to be a regulatory arm of the Government of Goa, primarily controlled by the Ministry of Information and Broadcasting and the Government of Goa, and thus a charitable organization.

5. Applicability of Section 12AA(3) for Cancellation of Registration:
The CIT's power to cancel registration under Section 12AA(3) was discussed, which allows cancellation if the activities of the trust are not genuine or are not being carried out in accordance with the objects of the trust. The CIT concluded that the assessee's activities were commercial in nature and did not qualify as charitable under the amended Section 2(15). The Tribunal upheld the CIT's decision, stating that the assessee's activities were in the nature of trade, commerce, or business, and thus the registration granted under Section 12A was rightly canceled.

Conclusion:
The Tribunal dismissed the appeal, confirming the CIT's order to cancel the registration granted under Section 12A, as the assessee's activities were found to be commercial in nature and not charitable under the amended definition of "charitable purpose" in Section 2(15) of the Income Tax Act.

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