9911796707
TMI Blog2003 (7) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Having not done, it loses the benefit of legally refusing to grant registration. The department, by its latches cannot be said to have taken the same position by not acting within the time limit prescribed. We, therefore, grant registration to the assessee on the basis of its application dated 23-1-1998 and to that extent, the assessee should be taken to have satisfied the conditions as to registration of the trust/institution etc., required u/s 12A of the Act. The Assessing Officer is directed to proceed as if registration has been granted by the DIT(Ex.) u/s 12A of the Act. Thus, we feel that it is not necessary to go into the merits of the claim of the assessee. The impugned order of the DIT(Ex.) is quashed and for the purpose of assessment, registration is deemed to have been granted u/s 12A of the Act. The Assessing Officer is directed to revise the assessments framed in the case of the assessee to fall in line with this order. The appeal is to be treated as allowed. - Member(s) : G. E. VEERABHADRAPPA., P. MOHANARAJAN. ORDER Per Veerabhadrappa, AM . - This is an appeal by the assessee arising out of the order dated 17-12-2002 of the Director of Income-tax (Exemption) ["D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. 651 (Bang.) of 1994] wherein an identical issue has been decided in favour of the assessee. 6. We have gone through the entire records. The assessee is an association of persons and in the case of association of persons, under section 140(e), the appeal may be signed by any member of the association or principal officer thereof. It is not in dispute that the treasurer who originally signed the appeal was not a member of the association. Now, in any case, the defect pointed out by the Tribunal has since been rectified and the rectification has the effect of curing the defect from the date of its inception. The Tribunal has, in the case of Wipro Information Technology Ltd. has extensively dealt with the similar contentions of the department and rejected these contentions by following the principle laid down by the Hon'ble Supreme Court in the case of United Bank of India v. Naresh Kumar AIR 1997 SC 3. Following the same principles, we proceed to entertain this appeal and dispose of the same on the basis of grounds of appeal. 7. Now coming to the validity of the impugned order, the assessee made application for registration under section 12A of the Act on 23-1-1998. Copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be done within the prescribed time limit. The DIT(Ex.) could not even have granted registration beyond the time limit and therefore, the Tribunal cannot direct department to grant registration without going into the merits of the assessee's claim for grant of registration. The learned DR further vehemently pleaded that the provisions of section 12AA are purely procedural in nature and the words 'shall' in section 12AA(2) should be taken to be directory and not mandatory. The order passed by the DIT(Ex.) even after expiry of six months can only be set at naught by going into the merits of the case. 10. We have carefully considered the rival submissions and gone through the records. Section 12A was inserted by the Finance Act, 1972 with effect from 1-4-1973. It was omitted by the Direct Tax Laws (Amendment) Act, 1987 with effect from the same date and these provisions were re-introduced by the Direct Tax Laws (Amendment) Act, 1989 with effect from 1-4-1989. The provision of section 12A provided that the provisions of sections 11 and 12 relating to exemption of income from property held for charitable or religious purposes or from voluntary contributions received by the trust created ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rust or institution, to fill up such gap, with effect from 1-4-1997 the Finance (No. 2) Act, 1996 has laid down the procedure to be followed for grant or refusal of registration new section 12AA was inserted. Section 12AA(1)(a) empowers registering authority to call for such documents or information from the assessee it thinks necessary in order to satisfy itself about the genuineness of activities of the trust or institution. Further, the authority has also been empowered to make such enquiries as it may deem necessary in this behalf. The provisions of section 12AA(1)(b) provide for passing of an order on the basis of the application for registration. Under the aforesaid provisions, the registering authority shall pass an order in writing registering trust or institution if it is satisfied about the genuineness about the objects of the trust or institution and the genuineness of its activities and also requires such authority, where it is not so satisfied, pass order in writing refusing to grant registration. In the case of an order, refusing to grant registration, the law provides that the same shall not be passed unless applicant has been given a reasonable opportunity of being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the Department not to have acted within the prescribed time frame. Otherwise, the executives who are supposed to carry on the intentions of the Legislature will only be thriving by their own lapses and latches. If the assessee files a return and the Department docs not pass an order, the return of income is deemed to have been accepted. While dealing with the provisions of section 139, where assessee applied for extension of time and the officer did not reply. Several courts have taken a view that the time as prayed for by the assessee is deemed to have been granted and the assessee was justified in assuming that his application has been granted by the officer. Reference may be made, among other decisions to Lachman Chaturbhuj Javav. R.G. Nitsure [1981] 132 ITR 631 (Bom.), Harmanjit Trust v. CIT [1984] 148 ITR 214 (Punj. Har.) and CIT v. Surinder Kumar Parmod Kumar [1992] 193 ITR 71(Punj. Har.). The Hon'ble Supreme Court has dismissed Special Leave Petition by the Department against the judgment in the case of CIT v. Surinder Kumar Parmod Kumar [1993] 204 ITR (St.) 9. Applying these principles and in the interests of justice, we observe that the assessee had done what is expe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
