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TMI Blog2018 (1) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... raised by the revenue are dismissed. - I.T.A No. 953/Kol/2015 - - - Dated:- 10-1-2018 - Shri S. S. Viswanethra Ravi, Judicial Member And Shri Dr. Arjun Lal Saini, Accountant Member For the Appellant Revenue : Shri Arindam Bhattacharjee, Addl. CIT DR For the Respondent Assessee : Shri Subash Agarwal, Advocate, ld.AR ORDER Shri S. S. Viswanethra Ravi, JM This appeal by the Revenue against the order dt. 30-03-2015 passed by the CIT-(A), Siliguri for the assessment year 2011-12. 2. At the outset, the ld.DR submits that the appeal of the revenue was filed with a delay of 14 days and the said delay was due to administrative difficulties and referred to petition dt. 29-06-2015 filed to condone the delay, is on record, and argued in view of the above said reasons the delay of 14 days in filing the appeal may be condoned. On the other hand, the ld.AR of the assessee reported no objection in condoning the same. On perusal of the said petition dt. 29-06-2015 filed by the DCIT concerned, we find that the reasons stated therein are bona fide and justified accordingly, the delay of 14 days in filing the appeal before the Tribunal is condoned and we proceed to hear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings. Determination of correct income is the sole objective of assessment proceedings, and, therefore, a legal claim can always be entertained in appellate proceedings. Pitted against the cause of substantial justice vis-a-vis technical considerations, the cause of substantial justice should prevail. It is true that scope of appellate jurisdiction is confined to the issues arising out of impugned order, but if a legal issue comes into operation at appellate proceedings stage only, for which no fresh scrutiny of facts is required, then the legal claim can be entertained by appellate authority particularly, when he has co-terminus powers with the authority passing the impugned order. Conclusion- It is seen that the Finance Act (No 2) 2014 has inserted first proviso to Section 12A(2) w.e.f. 01/10/2014. This proviso is- Provided that where registration has been granted to the trust or institution under section 12AA, then, the provisions of sections 11 and 12 shall apply in respect of any income derived from property held under trust of any assessment year preceding the aforesaid assessment year, for which assessment proceedings are pending before the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order and the appellate proceedings are also part of assessment proceedings and as such assessment comes to an end only when at the completion of proceedings at first appellate proceedings. He also submits that the CIT-A rightly directed the AO to give benefit of exemption u/s. 12AA of the Act and placed his reliance on the order dt. 01- 03-2016 of Cochin Tribunal in the case of SNDP Yogam Vs. ADIT(E), ITA Nos. 503 to 506 569/Coch/2014 A.Ys 2006-07 to 2009-10 2011-12 and referred to paras 7.2 to 7.5 of the said order and argued that this Tribunal shall have to take judicious and liberal view in view of insertion of 1st proviso to section 12A of the Act, otherwise the purpose on which the amendment was made by the legislature would be defeated. The Cochin Tribunal in the case of supra has placed reliance on the order dt. 09-10- 2015 of the Kolkata Tribunal (ITAT Kolkata) in the case of Sree Sree Ramkrishna Samity Vs. DCIT, ITA No. 1680/2012, wherein it was held that the amendment to section 12A came into force from 01-10-2014 is retrospective. The ld.AR also submits that on the date of application filed seeking registration u/s. 12A of the Act the assessment for the A.Y u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. During such pendency, the assessee was granted registration u/s 12AA of the Act on 29.07.2013 w.e.f. the assessment year 2013-14. Those appeals were the continuation of the original proceedings and that the power of the Commissioner of Income-tax was co-terminus with that of the assessing officer [ADIT (Exemption) in the present case] were two well established principles of law. In view of the above and going by the principle of purposive interpretation of statues, an assessment proceeding which is pending in appeal before the appellate authority should be deemed to be assessment proceedings pending before the assessing officer within the meaning of that term as envisaged under the proviso. It follows there-from that the assessee which obtained registration u/s 12AA of the Act during the pendency of appeal was entitled for exemption claimed u/s 11of the Act. 7.3. The explanatory Memorandum to Finance (No.2) Bill, 2014 which sought to amend section 12A explains the objects and reasons for making such amendments. The explanation makes it clear that it was in order to provide relief to such trusts in respect of which, due to absence of registration u/s 12AA tax liability g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA No. 1680/2012, order dated 09.10.2015) where it was held that amendment to Section 12A w.e.f. 01.10.2014 is retrospective. The relevant finding of the Hon ble Kolkata Bench in case of Sree Sree Ramkrishna Samity vs. DCIT (supra) read as follows: 6.10. We hold that it is an established position in law that a proviso which is inserted to remedy unintended consequences and to make the provision workable, a proviso which supplies an obvious omission in the section and is required to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation, so that a reasonable interpretation can be given to the section as a whole and accordingly the said insertion of first proviso to section 12A(2) of the Act with effect from 1.10.2014 should be read as retrospective in operation with effect from the date when the condition of eligibility for exemption under section 11 12 as mentioned in section 12A provided for registration u/s.12AA as a pre-condition for applicability of section 12A. Further, the Kolkata Tribunal observed as under: 6.11. We also hold that though equity and taxation are often strangers, attempts sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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