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TMI Blog2025 (4) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee u/s 11(1). 3. For that on the facts and in the circumstances of the case, the Ld. CIT (A) has erred while concluding that since no documentary evidences were provided for pendency of application before any competent authority, the appellant should not be given the benefit of provisional registration u/s 12A/12AA. 4. For that on the facts and in the circumstances of the case, the Ld. CIT (A) has erred wile concluding that Section 12A(ba) would be applicable on the appellant when in fact this provision was inserted w.e.f. AY 2018-19. 5. Without prejudice to the above grounds, the Ld. CIT(A) ought to have directed the A.O. to determine the correct income of the assessee by allowing the expenditure incurred relating to the income earned and tax the remaining surplus only. 6. For that the appellant craves leave to add, alter or delete all or any of the grounds of appeal." 3. Brief facts of the case are that on the basis of the information available with the Revenue that the assessee had made cash deposits amounting to Rs. 3,20,49,890/-, the proceedings u/s 147 of the Act were initiated in the case of the assessee and notice u/s 148 of the Act was issued on 25.03.2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee trust is eligible for exemption u/s 11(1)(A) of the I.T. Act. Therefore, the exemption claimed by the assessee at Rs. 3,98,75,551/- is disallowed and the income of the assessee trust is assessed at Rs. 3,98,75,551/-. Penalty proceedings u/s 271(1)(c) of the I.T Act are also initiated for furnishing inaccurate particulars of income in the return." 4. The total income was accordingly assessed u/s 143(3)/147 of the Act at Rs. 3,98,75,551/-. Aggrieved with the assessment order, the assessee filed an appeal before the Ld. CIT(A) who went through the facts filed by the assessee in Form 35 which are as under: "The appellant is a trust running an educational institution. Return of income u/s 139(1) was not filed for A.Y. 2016-17. Assessment u/s 147 was initiated on 25.03.2021 or A.Y.2016 for cash deposits of Rs. 3,20,49,820/- made in various bank accounts of the appellant. The appellant had obtained registration u/s 12AB on30.08.2021. The return filed in response to notice u/s 148 was filed on 18.10.2021. The appellant claimed exemption u/s 11(1) on in view of the second proviso to section 12A(2) amounting to the total receipts during the year 3,98,75,551/-. This amount was spen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the year. These entire receipts have been accounted for in the account maintained by the trust. The appellant has neither identified its status by furnishing Registration Certificate issued u/s. 12A/12AA during the scrutiny/appellate proceedings nor claimed exemption u/s. 11 or any other provisions of the Income-tax Act, 1961 by filing its ITRs. During scrutiny/appellate proceedings, the appellant furnished a copy of order for provisional registration dated 30.08.2021 which is from A.Y. 2022-23 to Α.Υ. 2024-25 but did not furnish any documentary evidence that the application for grant of exemption is pending with competent authority for the year under consideration nor the appellant filed any documentary evidence regarding claim of exemption u/s. 11(1)(A). 10. It is pertinent to mention that the provisions of section 12A(ba) provides that the exemption u/s 11 can be availed only if the return of income was filed in the manner prescribed under the provisions of section 139(4A) of the Act which in turn requires that an assessee claiming exemption of income u/s 11 to file the return of income within the due date prescribed u/s 139(1) of the Act. In the absence of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant's claim cannot be entertained. Mere assertion lends no credibility. Where the onus is upon the assessee to prove the fact, the assessee must place all relevant material to prove that fact whenever he is asked to furnish the same. The Hon'ble Supreme Court in the case of Calcutta Discount Co [41 ITR 191 (SC.)] has held that it is the duty of assessee to produce the books of account as well as all primary facts necessary for making the assessment at the earliest point of time. Hence, in the absence of any submission from the assessee and incomplete documents, the correct income of the assessee cannot be deduced. Thus this ground is dismissed. 15. In the result, the appeal of the appellant is dismissed." 6. Aggrieved with the order of the Ld. CIT(A) the assessee has filed the appeal before this Tribunal. 7. Rival contentions were heard and the submissions and judicial pronouncements relied upon have been examined. It was submitted before us that for the impugned assessment year 2016-17 the assessee had not filed the return of income and the return was filed on 18.04.2021 in compliance to the notice u/s 148 of the Act dated 25.03.2021. The assessee is a co-educational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2023, pass an order in writing provisionally registering the trust or institution for a period of three years from the assessment year from which the registration is sought,] and send a copy of such order to the trust or institution." "section 12A(1)(a): 12A. (1) The provisions of section 11 and section 12 shall not apply in relation to the income of any trust or institution unless the following conditions are fulfilled, namely:- (a) the person in receipt of the income has made an application for registration of the trust or institution in the prescribed form and in the prescribed manner to the Principal Commissioner or Commissioner before the 1st day of July, 1973, or before the expiry of a period of one year from the date of the creation of the trust or the establishment of the institution, whichever is later and such trust or institution is registered under section 12AA: Provided that where an application for registration of the trust or institution is made after the expiry of the period aforesaid, the provisions of sections 11 and 12 shall apply in relation to the income of such trust or institution,- (i) from the date of the creation of the trust or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reopening is that the second proviso to section 12A(2), debars resorting to reopening under section 147 for subjecting to tax the income for the impugned year merely on account of absence of registration under section 12A. [Para 7] * The contention of the revenue on the other hand is that since the assessee failed to fulfill the condition stipulated for claiming exemption under sections 11 & 12 of filing return of income along with report of audit, under section 12A(1)(b) its income for the impugned year was taxable and the reopening, therefore, was valid. [Para 8] * Evidently, it is not the case of the Revenue that the reopening was valid on the ground of absence of registration u/s. 12A for the impugned year and therefore its income becoming taxable. In fact, it is found, that the Commissioner (Appeals)(A) has accepted that reopening could not have been resorted to on account of absence of registration u/s. 12A for the impugned year on account of the second proviso to section 12A(2). Therefore the contention of the assessee on this count, stands accepted by the Revenue. But the argument of the Revenue it is found that because the assessee failed to comply with the conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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