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TMI Blog2017 (2) TMI 1511X X X X Extracts X X X X X X X X Extracts X X X X ..... : These three appeals alongwith three M.A.s have been filed by Assessee against separate orders of Learned CIT(A), Jalandhar, all dated 15.10.2013. 2. The appeals were earlier dismissed for being defective vide a consolidated order of the Hon'ble Tribunal dated 18.03.2014 as necessary defects pointed out to the assessee were not rectified within a reasonable period of time. 3. The Ld. A.R. at the outset submitted that the assessee had deposited fee under wrong head and despite best efforts could not get the mistake rectified from the bankers and therefore the assessee has deposited fresh fee. The Ld. AR also submitted that the name mentioned in the order dismissing the appeals of assessee has been wrongly mentioned as St. Francis Convent School, Phagwara, instead of Joseph s Convent School, Phagwara and it was submitted that the name of the assessee be also rectified while disposing of the appeals. It was further submitted that while filing the appeals before Hon'ble Tribunal by oversight in form no. 36 the name was mentioned as St. Francis Convent School instead of St. Josheph s Convent School and therefore he filed another copy of form no. 36 with corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Counsel for the assessee has contended that as per the mandate of the amended Section 12A of the Act, the benefit of exemption should be granted to the assessee for the year under consideration, since the assessment proceedings for the said assessment year were pending as on 25.02.2013, the date on which the assessee was granted registration u/s 12A and since the objects and activities of the assessee remained the same as in the earlier years. 11. Per contra, the Ld. DR has submitted that the amendment introduced in Section 12A(2) of the Act, by virtue of Finance (No.2) Act, 2014, by way of the first proviso added to the section, specifically states that 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 assessment year immediately following the financial year in which an application for registration of the Trust or Institution is made by the person in receipt of the income, for which, assessment proceedings are pending before the Assessing Officer. According to the Ld. DR, since at the said relevant time, the assessment proceedings for the said assessment year were not pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding before the Assessing Officer as on the date of such registration and the objects and activities of such trust of institution remain the same for such preceding assessment year. Provided further that no action under section 147 shall be taken by the Assessing Officer in case of such trust or institution for any assessment year preceding the aforesaid assessment year only for non-registration of such trust or institution for the said assessment year . 16. Thus, as per the provisions of Section 12A, if a Trust or Institution has applied for registration on or after 01.06.2007 and such registration has been granted to it, the provisions of Sections 11 and shall not apply to its income. If the application for registration has been made on or after 01.06.2007, the provisions of Sections 11 and 12 shall apply for any assessment year preceding the assessment year immediately following the financial year in which the application for registration was made, for which year, the assessment proceedings are pending before the Assessing Officer as on the date of the registration and the objects and activities of the Trust or Institution remained the same as those on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other person or on the public generally, and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. 22. In Government of India Vs. Indian Tobacco Association , [2005] 7 SCC 396, the doctrine of fairness was held to be a relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. 23. In Vijay Vs. State of Maharashtra , [2006] 6 (SC) 286, the Hon'ble Supreme Court went to the extent of holding that where a law is enacted for the benefit of the community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature. 24. Now, undeniably, the assessment of income is a matter of procedure. Even the heading of Chapter (xiv) of the Act, which deals with assessment, itself is PROCEDURE FOR ASSESSMENT . Likewise, grant of registration is also a procedural aspect, since registration is but a step-in-aid for exemption u/s 11. As such, the provisos to Section 12A(2) are also procedural. 25. So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e procedure more relief-oriented. It adequately complies with the natural justice principle of fairness to all. Hence, it has to be presumed and construed as retrospective in nature, in order to give the section a purposive interpretation. 27. In Shree Shree Ramkrishna Samity Vs. Dy. CIT , [2016] 156 ITD 646 (Kol), the above position has elaborately been considered to hold the first proviso to Section 12A(2) to be retrospectively applicable. The said decision has been followed in SNDP Yogum , (supra). 28. In view of the above discussion and respectfully following these decisions in the absence of any decision to the contrary having been cited before us by the department, we hold that the first proviso to section 12A(2) of the Act is applicable retrospectively. 29. Likewise, for the same reasoning, it is also held, regarding the second batch of appeals, that even the second proviso to Section 12A(2) is retrospective in nature and the completed assessments in these cases ought not have been reopened only for non-registration for the relevant assessment years. 30. This brings us to the next question, i.e., whether the assessment proceedings pending b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having similar objects, the provisions of Section 11(1)(a) can be said to have been met by such donor Trust. For this proposition, the assessee has correctly relied on the following decisions too: (i) CIT Vs. Thanthi Trust 239 ITR 502 (SC) (ii) CIT Vs. Hindustan Charity Trust 139 ITR 913 (Cal.) (iii) CIT Vs. Shri Ram Memorial Foundation 269 ITR 35 (Del.) (iv) CIT Vs. Nirmala Bakubhai Foundation 226 ITR 394 (Guj). Yet again, these decisions have remained uncontroverted. 35. Then, Section 11(3)(d) of the Act, which was brought in by the Finance Act, 2002, w.e.f. 01.04.2003, bars donation by a charitable Trust to another charitable Trust, out of accumulated income, from being considered as application of income. However, as is patent on record, the payment of Education Extension Services made by the assessee to the Diocese of Jalandhar is out of its current year s income and not out of any accumulated income. 36. In this regard, in DIT(E) Vs. Bagri Foundation , 344 ITR 193 (Del), it has been held that the restriction/embargo in donation by one charitable Trust to another is only restricted to accumulations made in excess of 15% ..... X X X X Extracts X X X X X X X X Extracts X X X X
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