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TMI Blog2019 (1) TMI 2056X X X X Extracts X X X X X X X X Extracts X X X X ..... btained registration during the pendency of appeal before the ld CIT (A) shall be entitled for exemption under section 11 and 12 As we find that there is no finding of the lower authorities as to whether the objects and activities of such trust or institution for the impugned assessment year remain the same as in assessment year 2016-17. Assessee trust is considered as registered u/s 12AA and eligible for exemption under section 11 and 12 of the Act for the impugned assessment year subject to examination by the Assessing officer as to whether the objects and activities of such trust or institution for the impugned assessment year remain the same as in assessment year 2016-17. The matter is accordingly set-aside to the file of the Assessing officer who shall examine as to whether the objects and activities of such trust or institution for the impugned assessment year remain the same as in assessment year 2016-17. X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Coordinate Bench in case of Sree APO Ramkrishna Samity vs. DCIT 156 ITD 646 (Kol). 5. The ld. DR is heard who has relied on the findings of the lower authorities. 6. We have heard the rival contentions and perused the material available on record. It is not in dispute that the assessee trust has applied for registration u/s 12AA on 19.01.2016 and has been granted registration by the ld CIT(E) vide his order dated 08.07.2016. Whether such registration can be considered and provisions of section 11 and 12 can apply for impugned assessment year, we refer to the provisions of section 12A which reads as under:- "(2) Where an application has been made on or after the 1st day of June, 2007, the provisions of sections 11 and 12 shall apply in relation to the income of such trust or institution from the assessment year immediately following the financial year in which such application is made: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be entitled for exemption under section 11 and 12 of the Act. In this regard, we refer to the decision of the Coordinate Bench in case of SNDP Yogam vs. ACIT(E) (supra) whereas the relevant findings reads as under:- "7. We have carefully considered the rival submissions, perused the relevant materials on record and the case law on which the learned AR had placed strong reliance. The primary issue for our consideration is whether the CIT (A) is justified in confirming the AO's action, for all the assessment years under consideration, in assessing the entire incomes of the assessee from all the institutions at the maximum marginal rate. In this context, it is appropriate to refer the amendment to section 12A(2) of the Act and its proviso. For ready reference the same is reproduced below: (Section 12A(2) & its proviso) "[(2) Where an application has been made on or after the 1st day of June, 2007, the provisions of sections 11 and 12 shall apply in relation to the income of such trust or institution from the assessment year immediately following the financial year in which such application is made:] [Provided that where registration has been granted to the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancelled or refused for specific reasons. The statute also goes on to provide that no action u/s 147 could be taken by the AO merely for non- registration of trust for earlier years. 7.2 When section 12A of the Act was amended by introducing new provisos to sub-section (2) of s. 12A by Finance Act, 2014 with effect from 01.10.2014, the assessment orders passed by the assessing officer in respect of the present assessee were pending in appeal before the first appellate authority. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t justified in taking a similar stand that of the AO, without taking cognizance and intention of the amendment to s. 12A of the Act. If no judicious or a liberal view is not taken either by the assessing authority or the appellate authority as in the case under consideration, the very purpose for which such an amendment to s. 12A of the Act enacted, in our view, would be defeated. We are also supported by the order of Kolkata Bench of ITAT in case of Sree Sree Ramkrishna Samity v. Dy. CIT [2016] 156 ITD 646/[2015] 64 taxmann.com 330 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 (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 accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctivity in the nature of trade, commerce or business, or any activity of rendering any service in relation to any trade, commerce or business, for a cess or fee or any other consideration, irrespective of the nature of use or application, or retention, of the income from such activity. (iii) Amendments to the Deed/Memorandum, Rules and Regulations, if any, of the Trust/Institution shall be made only with the prior approval of the Commissioner of Income Tax(Exemptions) or any other prescribed authority under the Income Tax Act, 1961. (iv) The registration may be withdrawn on violation of any of the stipulations laid down in the Income Tax Act, 1961, (v) The SOCIETY/TRUST shall regularly file its Income Tax Return." 9. At the same time, we find that there is no finding of the lower authorities as to whether the objects and activities of such trust or institution for the impugned assessment year remain the same as in assessment year 2016-17. 10. In light of above discussions, the assessee trust is considered as registered u/s 12AA and eligible for exemption under section 11 and 12 of the Act for the impugned assessment year subject to examination by the Assessing offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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