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TMI Blog2024 (7) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... niwadekar, learned counsel for the petitioner would urge that the only prayer being pressed by the petitioner, is prayer clause (b), which reads thus:- "(b) Issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction quashing the Impugned Order as per Form 10AD of the Act dated 31 March 2023 (Exhibit J)." 4. Briefly the factual matrix of the case is as follows: On 19 November, 2007, the petitioner obtained a registration under the Societies Registration Act, 1860. The primary object of the petitioner is to promote education. The petitioner is accordingly engaged in educational activities. It is running a school at Pune. 5. On 14 January, 2008, the petitioner applied for registration under Section 12A of the Act. The case of the petitioner is that certificate of such registration was granted to the petitioner. From 2008 to 2019, the petitioner had filed its returns, availing benefits of a valid registration under Section 12A of the Act. It is, however, stated that the petitioner could not trace the certificate. Although such benefit was taken by the petitioner for certain number of years, without an objection by the department, subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er under Section 12AB of the Act on 04 April 2022, which was valid for 5 years, i.e., for the assessment years 2022-23 to 2026-27. 8. Thereafter, another notice was received by the petitioner from respondent no. 1 on 09 March, 2023 calling upon the petitioner to furnish certain details and documents. It was stated that if the petitioner failed to submit such documents, the application of the petitioner would stand rejected. On 16 March, 2023, for submitting the details in regard to the petitioner's institution and its functioning, the petitioner sought an adjournment till 28 March, 2023. However, on 31 March, 2023, respondent no. 1 passed the impugned order rejecting the petitioner's mistaken application on the ground that the petitioner did not possess a copy of the provisional registration granted under Section 12AB of the Act. 9. It is on the above conspectus, the petitioner is before the Court assailing the order dated 31 March, 2023 passed by respondent no. 1. The petitioner contends that the impugned order could not have been passed by respondent no. 1, when already registration was granted to the petitioner on 04 April, 2022 and which was to operate for a period of five ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC)., in which a two Judge Bench of the Supreme Court upheld the orders passed by the High Court, confirming the view taken by the High Court in regard to the "deemed registration" under Section 12AA of the Act to hold that in the event an application is made under such provision and the same is not responded within six months, it would entail a consequence that such application would be 'deemed to be registered' under the said provision. 13. Mr. Naniwadekar would thus submit that admittedly the petitioner had earlier made an application and even if registration certificate was not to be located by the petitioner, certainly it brought about a situation that the petitioner was deemed to be registered following the decision of the Supreme Court in Commissioner of Income-tax, Kanpur v. Society for Promn. of Edn., Allahabad (supra). 14. Mr. Naniwadekar, however, has brought to our notice that there is a diametrically opposite view taken by another two Judges Bench of the Supreme Court in Harshit Foundation Sehmalpur Jalalpur Jaunpur v. Commissioner of Income-tax [2022] 139 taxmann.com 56 (SC). Mr. Naniwadekar submits that in the proceedings of such case, the challenge was to an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry year i.e. on 30 September, 2022 to make a fresh application for any registration. Further considering the purport of the relevant provisions, we also find that the primary reason as set out in the impugned order, to reject the application of the petitioner, is itself not supported by the provision. Even assuming that the application of the petitioner was a valid independent application, and the reason as furnished in the impugned order that as the earlier provisional registration was not submitted by the petitioner, the petitioner would not be entitled for issuance of a registration, was not a valid and justifiable reason to reject the application. 18. Be that as it may, we may not be required to delve on the illegality of the order dated 31 March, 2023, for the reason that Mr. Naniwadekar, on instructions, submits that his client would intend to withdraw the application dated 30 September, 2022 on which the impugned order dated 31 March, 2023 has been passed. In the peculiar facts of the case, we are inclined to accept such request as made by Mr. Naniwadekar. This would obviously render the impugned order inconsequential. We also accept the contention as made on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal is disposed of with no order as to costs." 20. As noted above, Mr. Naniwadekar has however, urged that in Harshit Foundation (supra), a two Judge Bench of the Supreme Court has taken a different view, than what was taken in Society for Promn. of Edn. (supra) when the Supreme Court upheld another decision of the Allahabad High Court, which held that non-consideration of an application within a period of six months "would not" bring about a situation of deemed registration. Mr. Naniwadekar submits that in passing such order, it was not brought to the notice of the Supreme Court the prior decision in Society for Promn. of Edn. (supra). The observations of the Supreme Court in dismissing the petition for Special Leave to Appeal in Harshit Foundation (supra), read thus:- "1. We have heard Mr. Abhinav Mehrotra, learned counsel appearing on behalf of the petitioner and Mr. N. Venkataraman, learned ASG appearing on behalf of the respondent. 2. The only question which is posed for consideration before the High Court was whether on non-deciding the application for registration under Section 12AA (2) of the Income Tax Act, 1961 (for short 'the Act') within a period of six m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctrine of Merger. The Supreme Court referring to the three Judge Bench decision of the Supreme Court in Kunhayammed and Ors. Vs. State of Kerala & Anr. (2000)6 SCC 359 and in Khoday Distilleries Ltd. (Now known as Khoday India Ltd.) & Ors. Vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal (Under Liquidation) represented by the Liquidator (2019)4 SCC 376, made the following observations: "6. ..... It is well-settled that when this Court refused to grant special leave to appeal, be it even by way of a reasoned order, it will not attract the 'Doctrine of Merger'. That would be an order where this Court, in the facts and circumstances of the case, declined to exercise its jurisdiction under Article 136 of the Constitution. This view, as taken by a three-Judge Bench of this Court in Kunhayammed and others vs. State of Kerala and another, (2000) 6 SCC 359, was reiterated by this Court in Khoday Distilleries Ltd.(supra), as follows: "26. From a cumulative reading of the various judgments, we sum up the legal position as under: 26.1. The conclusions rendered by the three-Judge Bench of this Court in Kunhayammed [Kunhayammed v. State of Kerala, (2000) 6 SCC 359] an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when it observed thus:- "10. Learned counsel for the appellant submitted that since judgment of this Court in Society for the Promn. of Edn. (supra) has been confirmed by Supreme Court while disposing appeal, therefore, it must be now taken that law of deemed grant of registration has been confirmed by Supreme Court. However, we find that Supreme Court in the judgment dated 16-2-2016, has held that all other questions of law are left open, meaning thereby question of law raised in appeal by C.I.T. has not been decided, but left open, hence, it cannot be said that judgment of this Court has merged with the judgment of Supreme Court on the above question of law, which was decided by this Court in Society for the Promotion of Education (supra). 24. We have noted the aforesaid contentions on the legal position, considering Mr. Naniwadekar's apprehension that it is not unlikely, that respondent no. 1 would take further steps to cancel the registration of the petitioner dated 04 April, 2022, in such event, his contention is that the petitioner would assert to be fully protected under the decision of the Supreme Court in Commissioner of Income-tax, Kanpur v. Society for Promn. of Edn. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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