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TMI Blog2012 (8) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... anted registration u/s 12A, the department cannot refuse the registration except for violation of sec 11, 12 or 13. Therefore, eligibility for exemption u/s 11 has to be independently considered based on the provisions of the Income tax Act and not anything else. Hence, exemption u/s 11 cannot be denied merely because it is not registered under said Act Validity of reopening of assessment on suspicion based on report of C& AG (Civil) for the Govt. of AP - Held that:- AO cannot reopen the assessment merely on the basis of roving enquiry and since there is no addition with respect to the purchase of equipments the initial reason given for reopening cannot survive and the AO cannot go beyond the reasons given by him for reopening - Decided in favor of assessee - IT APPEAL NO. 184 (HYD.) OF 2011 CO 43/HYD-2011 - - - Dated:- 3-8-2012 - CHANDRA POOJARI, SMT. ASHA VIJAYARAGHAVAN, JJ. ORDER Smt. Asha Vijayaraghavan, Judicial Member This appeal filed by the Revenue is directed against the order of CIT(A)-IV, Hyderabad dated 15/11/2010 for the assessment year 2004-05. The assessee also filed C.O. against the said order of the CIT(A). 2. Briefly the facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such instrument in conducting eye camps for the under privileged. The appellant's representative averred that apart from supply and erection of equipments, the society is also engaged actively in the maintenance of equipments and imparting training on usage thereof. The representative averred that the operation and maintenance of equipments so installed is under the control and management of the society and therefore it cannot be inferred that the equipment had been donated to the govt. hospitals. 5.2 The representative further argued that for the purpose of sec. 13(1)(c), the 'Government' cannot be treated as a 'person', as it is not covered under the definition given in sec. 2(31) of the Act. He averred that the analogy given by the Assessing officer is incorrect as in cases of default committed in recovery of TDS by any Govt. authority; it is the 'Drawing Officer', who shall be responsible for such omission and not the Govt. itself. He pleaded that all the Governments have been established to take care of the poor and needy and the Govt. of A. P. does not derive any benefit directly in running these institutions except the welfare of public at large. He stated that in the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he equipments to the Government hospitals, the appellant had contravened of the provisions of sec. 13(I)(c)(ii). He opined that by way of the contribution of Rs. 30 crores, the Government became an 'interested person' within the meaning of sec. 13(3)(b). On a consideration of the provisions of the Act, however, I am of the opinion that the view taken by the Assessing officer is not sustainable. First of all it is clear that the Govt. is not a taxable entity. It is the authority that levies taxes and is not itself subject to the tax statute enacted by the legislature. This is the reason "Government" has not been included in the definition of 'Person' under sec. 2(31) of the I TAct, 1961. 6.1 As regards, the conclusion of the Assessing officer that the definition of the 'Person' given in the sec. 2(31) of the Act is to be read with the definition of 'Assessee' has given in sec. 2(7), I am of the opinion that the Assessing officer formed a wrong opinion that it was the Government, the Government of Andhra Pradesh in this case, against whom he had undertaken the proceedings. The fact is that the assessing officer had undertaken the assessment proceedings against the appellant society ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that there was a contravention of provisions of sec. 13)(1)(c)(ii) in the present case on account of the equipments provided by the appellant's society to Government Hospitals. 6.4 So far as, the denial of exemption on account of non registration of the appellant under sec. 43(1) of A P Charitable and Hindu Religious Institutions and Endowments Act, 1987 is concerned, it is seen that the Hon'ble Jurisdictional ITAT, Hyderabad in a recent decision dated 5.3.2010 in the case of Mis. Kamalakar Memorial Charitable Trust v. DIT (Exemptions) Hyderabad in ITA No. 1145/Hyd/09 have opined that in view of the decision of the Hon'ble Nagpur Bench of the ITAT in the case of Agricultural Produce and Marketing Committee, Telhara and ors v. CIT (97 TTJ 165), the mere fact that the assessee trust is not registered under the provisions of the said act, shall not render the assessee trust as a non charitable one. Respectfully following the said view of the Hon'ble Jurisdictional ITAT therefore, I am of the opinion that the appellant could not have been denied exemption under sec. 11 of the Act even on this ground." 5. Aggrieved by the order of the CIT(A), the revenue is on appeal be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have benefited by the machines out of the grant given by the government and given to the government Hospitals. The benefit accrues to the General Public and questioning the provision for badly needed medical equipment to the Government Hospitals which are clearly for the benefit of the Public at large on the ground that it has benefited the Government is against the fundamental principles of philanthropy of the trust. 7. The other ground raised by the revenue that the assessee has not registered under A.P. Charitable Hindu Religious Institutions and Endowments Act, 1987 and hence the assessee is a non charitable one, is an argument to be admitted only to be rejected. The provisions of Sections 2(15), 11 to 13 are very clear and self contained code in respect of institutions which are considered as charitable in nature and the exemptions that these institutions are eligible for under the Income tax Act. These Sections no where refers that charitable institution to be eligible for exemption under Section 11 should also to be registered under any other Act for the time being. Once an institution is approved and granted registration u/s 12A, the department cannot refuse the regis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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