2023 (2) TMI 343 - AT - Income Tax

Exemption u/s 11 - cancel the registration of trust or institution granted u/s 12A - reasons assigned for cancellation of registration are appellant society has been indulging in collection of capitation fees AND capitation fees so collected was siphoned off by the trustees for their personal benefits - whether or not the Ld. PCIT (Central), Pune is justified in cancelling the registration u/s 12A w.e.f. financial year 2007-08? - HELD THAT - In view of concurrent findings of Tribunal and CIT(A), the Ld. PCIT was justified in reaching a conclusion that the activities of the appellant trust are not genuine and are not being carried on in accordance with the objects for which it was established. Therefore, we are of the considered opinion that the Ld. PCIT had rightly cancelled the registration of appellant trust. Whether or not Ld. PCIT was justified in cancelling the registration of trust with retrospective effect from financial year 2007-08? - In the present case, Hon ble Bombay High Court in Writ Petition filed by the appellant challenging the show cause notice for cancellation of registration held that the contents of order dated 09.10.2007 passed by the Commissioner cancelling registration shall be treated as show cause notice to the appellant as extracted supra and this finding had not been reversed till date. In the interest of judicial discipline, the ld. PCIT is bound to obey the directions of Hon ble High Court and rightly cancelled the registration w.e.f. financial year 2007-08. There is yet another reason as to why we are upholding the validity of order with retrospective effect, the appellant right from the initial date of show cause notice issued on 11.03.2011 had been representing before the learned Commissioner that the proceedings be kept in abeyance till the disposal of Writ Petition by the Hon ble Bombay High Court and SLP by the Hon'ble Supreme Court. Thus, the appellant by his acts and conduct had acquiesced to the delay in completion of proceedings. On perusal of order sheet of file of learned PCIT, it would be apparent that proceedings are continuous, merely because on change of incumbent, fresh show cause notice was issued, it cannot be construed to mean that it is fresh show cause notice especially in view of the fact that there is no evidence on record to show that earlier show cause notice was dropped. Thus, the appellant himself is responsible for delay in culminating the proceedings into the final order. Appeal filed by the assessee is dismissed.

Issues Involved:
1. Cancellation of appellant trust's registration under section 12A.
2. Evidence of activities not being genuine or not in accordance with the trust's objects.
3. Relevance of capitation fee violations under the Maharashtra Education Institution Act.
4. Misplaced reliance on the Vodithala Education Society decision.
5. Jurisdiction to cancel registration retrospectively from FY 2007-08.
6. Pending appeal before the Supreme Court regarding the retrospective effect of CIT's power.
7. Delay in disposal of proceedings initiated in 2014.

Detailed Analysis:

1. Cancellation of Appellant Trust's Registration under Section 12A:
The appellant challenged the cancellation of its registration under section 12A by the Principal Commissioner of Income Tax (PCIT), arguing that the PCIT erred in canceling the registration without proving that the trust's activities were not genuine or not in accordance with its objects. The appellant trust, established in 1993 and registered under section 12A since 1994, faced cancellation based on alleged collection of capitation fees outside the books of account.

2. Evidence of Activities Not Being Genuine or Not in Accordance with the Trust's Objects:
The PCIT's decision was based on incriminating material seized during search and seizure operations, suggesting the trust collected capitation fees and siphoned them off for personal enrichment. The appellant argued that no evidence was presented to prove the activities were not genuine. However, the Tribunal upheld the PCIT's findings, stating that the trust's activities were not genuine and not carried out in accordance with its objects, as the capitation fees collected were not used for educational purposes but for personal gain.

3. Relevance of Capitation Fee Violations under the Maharashtra Education Institution Act:
The appellant contended that even if capitation fees were accepted, it would violate the Maharashtra Education Institution (Prohibition of Acceptance of Capitation Fee) Act, 1987, but this should not be grounds for cancellation of registration under section 12AA(3). The Tribunal dismissed this argument, emphasizing that the collection of capitation fees and their misuse for personal enrichment indicated that the trust was not operating for charitable purposes.

4. Misplaced Reliance on the Vodithala Education Society Decision:
The appellant argued that the PCIT's reliance on the Vodithala Education Society decision was misplaced, as the Tribunal in that case clarified that exemption under section 11 was denied due to a violation of section 13(1)(c), not because of capitation fees. The Tribunal found this argument unconvincing, as the primary issue was the misuse of collected fees, which was relevant to the appellant's case.

5. Jurisdiction to Cancel Registration Retrospectively from FY 2007-08:
The appellant argued that the PCIT lacked jurisdiction to cancel registration retrospectively from FY 2007-08, as the amendment empowering such cancellation came into effect on 01.06.2010. The Tribunal upheld the PCIT's decision, noting that the Bombay High Court had treated the initial cancellation order as a show cause notice, and the appellant had acquiesced to the delay in proceedings.

6. Pending Appeal Before the Supreme Court Regarding the Retrospective Effect of CIT's Power:
The appellant's appeal before the Supreme Court, challenging the retrospective effect of the CIT's power, was pending. The Tribunal noted that the appellant had requested to keep proceedings in abeyance due to the pending appeal, contributing to the delay in finalizing the proceedings.

7. Delay in Disposal of Proceedings Initiated in 2014:
The appellant argued that the delay in disposing of proceedings initiated in 2014 vitiated the legality of the cancellation order. The Tribunal dismissed this argument, stating that the appellant's own actions and requests for abeyance contributed to the delay, and the doctrine of laches could not be invoked.

Conclusion:
The Tribunal upheld the PCIT's decision to cancel the appellant trust's registration under section 12A with retrospective effect from FY 2007-08, finding that the trust's activities were not genuine and not carried out in accordance with its objects, and that the delay in proceedings was attributable to the appellant's actions. The appeal filed by the assessee was dismissed.

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