Income Tax Appellate Tribunal - Chandigarh
Chandigarh Golf Club vs Ito, Ward 2(1), Chandigarh on 31 May, 2006
Equivalent citations: [2006]8SOT788(CHD)
ORDER
G.S. Pannu, Accountant Member All the aforesaid six appeals have been preferred by the assessee against the respective orders of the Commissioner (Appeals) dated 14-3-2000 in respect of assessment year 1989-90 and dated 5-9-2003 pertaining to the assessment years 1991-92 to 1996-97.
2. Since, the appeals relate to a single assessee and involve certain common issues, they have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity.
3. Shri Ashwani Kumar appeared on behalf of the appellant assessee and Smt. Preeti Garg, learned Departmental Representative appeared on behalf of the respondent revenue. Both the counsels have been heard and their submissions considered with respect to issues involved in the said appeals.
ITA No. 634/Chandi./2006 (Assessment year 1989-90)
4. In this appeal, the assessee has raised the following grounds:
(1) That the order of the learned Commissioner (Appeals) is defective both in law and facts of the case.
(2) That the income of the club is exempt under section 10(23) of the Income Tax Act and the applications for exemption were duly submitted in time.
(3) That the learned Commissioner (Appeals) is not justified in upholding the findings of the assessing officer simply on the ground that the exemption has not been granted and the income of the club would stand exempted with effect from the date exemption is granted.
(4) That section 10(23) of the Income Tax Act is fully applicable in our .case as the main object of the Golf Club is promotion of game, i.e. 'Golf' and is fully covered by the language of section 10(23) of the Income Tax Act which reads as under:
"any income of the association or institution established in India which may be notified by the Central Govt. in the Official Gazette having regard to the fact that the Association or Institution has as its object the control, supervision, regulation of encouragement in India of the games of cricket, hockey, football, tennis or such other games or sports as the Central Govt. may, by notification in the Official Gazette, specify in this behalf."
(5) That the learned Commissioner (Appeals) has not given any finding on the grounds of appeal that the principle of mutuality is applicable to the income of the club in the light of Supreme Court's decision and she has confirmed the findings of the learned assessing officer that doctrine of mutuality is not applicable to the income under the following heads :
(i) Interest income from banks
(ii) Guest charges
(iii) Green fee
(iv) Surplus on tournaments.
Whereas all these incomes are being spent for the mutual benefit of the members of the club.
(6) In the alternative the appellant asked for allowing of the expenses claimed in the profit and loss account as the accounts of the club are audited by the Chartered Accountant and complete account books have been maintained; such as cash book, ledger, vouchers etc., and no defect has either been pointed out by the assessing officer or by the learned Commissioner (Appeals) so far as the maintenance of accounts is concerned.
(7) That the learned Commissioner (Appeals) is not justified in restricting the expenses to the extent of 50% of the total receipts from guest charges, interest on bank deposits and green fee and the learned Commissioner (Appeals) is not justified in not allowing any expenses against the surplus on tournaments as the administrative expenses detailed in the profit and loss account have also been spent for arranging tournaments etc. Only the direct expenses have been debited to tournament income which can be said to be only the expenses in that trading account as separate trading account has been maintained against tournament income whereas the expenses debited in the profit and loss account also consist of certain amount of expenses which have been spent for arranging tournaments etc. as no separate profit or loss account of balance sheet has been prepared for tournaments. So the claim in the profit and loss account also includes administrative expenses etc. for arranging tournaments.
Any other ground, which may be taken up at the time of hearing of appeal with kind permission.
5. At the outset learned counsel submitted that the grounds in this appeal are squarely covered by an earlier decision of the Tribunal in the case of assessee vide order dated 28-2-2005 in ITA Nos. 635, 636 & 637/Chandi./ 2000 pertaining to the assessment years 1990-91, 1993-94 and 1997-98 respectively. The learned departmental Representative did not controvert the aforesaid factual matrix brought out by the learned counsel for the assessee. Therefore, we dispose off the impugned appeal by setting aside the order of the Commissioner (Appeals) and directing the assessing officer to follow the order of the Tribunal, passed in the case of assessee for the assessment years 1990-91, 1993-94 and 1997-98 (supra). The assessing officer shall rework the income of the assessee by following the directions and the basis propounded by the Tribunal in its order dated 28-2-2005 (supra).
6. As a result the appeal in the assessment year 1989-90 is treated as partly allowed.
ITA Nos. 678 to 672/Chandi./2003 (A. Y's 1991-92 to 1993-94 & 1994-95 to 1996-97):
7. These five appeals pertain to the assessment years 1991-92, 1992-93, 1994-95, 1995-96 and 1996-97. In all these appeals, apart from the grounds dealt with by us in relation to the assessment year 1989-90 above, the assessee has preferred the new ground titled as Ground No. 5 in its memorandum of appeal which reads as under :
"That the learned Commissioner (Appeals) is not justified in holding that it is not possible for him to consider this income as income of the trust since the registration was allowed to the club under section 12A of Income Tax Act with effect from 1-4-1997 whereas the assessee had duly applied for registration under the said section and the appellant specifically had requested the CIT for condonation of delay."
This ground is common to all the aforesaid five appeals. We take up consideration the said ground at the outset.
8. in order to understand the controversy involved in the aforesaid ground the following discussion is expedient. The assessee before us was created on 25-8-1966 and filed its return of income for the respective assessment years declaring 'Nil', income. Since the facts are identical in all the years, we take up for discussion the facts emerging for the assessment year 1991-92 to facilitate understanding of the background leading to the impugned controversy. The assessee claimed in its return that it has been set up for and is carrying on activity involving promotion of the sport of Golf and thus, its income was exempt under section 10(23) of the Act. While finalizing the assessment under section 143(3), the assessing officer denied exemption on the ground that although an application seeking grant of the exemption was filed by the assessee, however, no approval was forthcoming from the prescribed authority. In appeal before the Commissioner (Appeals) the assessee claimed that its income was exempt from tax on the principle of mutuality following the decision of the Apex court in the case of CIT v. Bankipur Club Ltd (1997) 226 ITR 97. The Commissioner (Appeals) partly upheld the plea of the assessee and set aside the assessment and remanded it to the assessing officer for fresh decision in accordance with law. The assessing officer accordingly made fresh assessment wherein the income derived from the permanent member of the club was held was not liable to be taxed on the principle of mutuality. However, the following incomes were held as liable to tax as the same did not fall within the principles of mutuality.
(1) Interest income from banks (2) Guest charges (3) Green fee (4) Surplus on tournaments (5) Coupons unused (6) Advertisement.
9. The assessing officer allowed 50% of the aforesaid receipts as an expenditure incurred to earn the same thereafter taxed the balance income. The respect relating to the application of principle of mutuality and the basis of computing the other incomes not falling within the principle of mutuality has been adjudicated by the Tribunal for the assessment years 1990-91, 1993-94 and 1997-98 vide its order dated 28-22005 (supra). Ground No. 5 preferred in these years is with regard to the claim of the assessee that it be allowed, exemption in terms of sections 11 and 12 as Club has been granted registration by the Commissioner under section 12AA of the Act vide its order dated 19-12-2000. The assessee contends that the registration has been granted by the Commissioner with effect from 1-4-1989 in terms of its application made. The assessing officer held otherwise. The stand of the assessing officer was that the registration granted by the Commissioner on 19-12-2000 would be applicable from 1-4-1997 and, therefore, the plea of the assessee for grant of exemption under sections 11 and 12 could not be considered in the impugned assessment years. This stand of the assessing officer has been sustained by the Commissioner (Appeals) and therefore, the assessee is in appeal before us.
10. The learned counsel appearing on behalf of the appellant has however contended that the registration granted by the Commissioner is to operate from the date from which it has been applied for by the assessee. According to him the delay in filing of the application was considered favourably by the Commissioner and for the reasons stated in the application and the subsequent correspondence of the assessee. The Commissioner deemed it fit to condone the same. The registration has been allowed to the assessee after considering the explanations and information furnished by the assessee. The learned counsel referred to the paper book, especially pages 4 to 7, wherein are placed copies of application and subsequent communication with the Commissioner, to point out that the registration was sought with effect from 1-4-1989. That the order of the Commissioner clearly contains a specific observation that the delay in filing the application was condoned. The learned counsel relied on the judgment of the Calcutta High Court in the case of Anand Marga Pracharaka Sangha v. CIT (1996) 218 ITR 254 to point out that where the application for registration was admitted belatedly and registration has been granted by condoning the delay the registration is to be understood as granted with retrospective effect from the date of creation of the trust. That in any case the assessee did not seek the registration from its inception but only with effect from 1-4-1989 for the reason that in the earlier years it was enjoying the exemption under section 10(23) of the Act.
11. It is noticed as in the course of assessment proceedings for the assessment year 1991-92, the assessing officer has not discussed the claim of the assessee for exemption under sections 11 and 12. The order of the Commissioner (Appeals), however, deals with the claim of the assessee in this regard. In relation to the assessment years 1992-93, 1994-95, 1995-96 and 1996-97, the claim of the assessee has been considered by the assessing officer himself. Be that as it may, the ground No. 5, reproduced above, which portraits the grievance of the assessee against denial of exemption under sections 11 and 12 arises out of the order of the lower authorities and is, therefore, liable to be considered by us.
12. The stand of the revenue is that the registration under section 12A granted by the Commissioner vide its order dated 19-12-2000 is to be understood as granting registration with effect from 1-4-1997. The learned departmental Representative contends that in case of delayed application made seeking registration under section 12A, two situations prevail. Firstly the provision of sections 11 and 12 would apply from the date of creation of Trust provided the Commissioner granting registration records in writing that the person in receipt of income was prevented from making application in time for sufficient reasons. In the alternate, the provision would apply from the first day of the financial year in which the application is made. According to the revenue, the assessee made the application for registration on 31-3-1998. That the Commissioner while granting registration vide his order dated 19-12-2000 did not record any reasons for condoning the delay and therefore, it was to be presumed that registration would be operative from 1-4-1997. The order dated 19-12-2000 which reads as under :
"Chandigarh Golf Club, Sector 6, Chandigarh registered with the Registrar of Firms and Societies, Punjab on 25-8-1966 has filed the registration application under section 12A(a) of the Income Tax Act, 1961 in the prescribed form on 31-3-1998. The application is not in time.
The delay in filing application for registration is condoned registration is allowed to the trust. The application has been entered at No. 73-C in the register of application under section 12AA maintained in this office."
13. The learned departmental Representative has also submitted a copy of the entries in the record of the Commissioner while processing the application seeking registration. We reproduce the same as under :
Order Sheet of the CIT-1, Chandigarh :
"Sir, The submissions made by the Chandigarh Golf Club and other documents furnished by the Club have been examined.
Brief facts are that the Chandigarh Golf Club was registered with the Registrar of Firms and Societies on 25-8-1966 with the object of promoting the game of golf and to provide and maintain the courses at Chandigarh and elsewhere. The club has also submitted a copy of memorandum of association of Delhi Golf Club which is stated to have been registered under section 12A at Delhi. It is - seen that the objects of Delhi Golf Club are same as of Chandigarh Golf Club. Though the application for registration under section 12A has not been preferred within the prescribed time but the petitioner club has stated that it was not aware of the relevant provisions of the Income Tax Act and that the delay may be condoned. The club has also furnished copies of the audited accounts. From the accounts it is seen that the expenses are predominantely for the promotion of the game ie. Golf and it can therefore be concluded that the club is engaged in furthering the object of the general Public Utility which is as charitable actively as per section 2(15) of the Income Tax Act.
In view of the facts stated above and the submissions made by the Club, if approved registration under section 12AA of the Income Tax Act, 1961 may be allowed to the Club and the delay in submitting the application may be condoned.
Submitted for perusal and approval.
Sd/-
I.T.O. (Tech,) Sd/-
CIT Sir, As approved D/order allowing registration under section 12A and allowing delay in submitting the application is placed opposite for approval/sign.
Sd/-
Income Tax Officer(T)"
14. The learned departmental Representative also drew our attention to a clarification issued by the CIT, Chandigarh on this issue on 19/24-1-2005 which reads as under:
"On perusal of the order sheet, as well as the order granting Registration, it is obvious that while delay in filing the application for registration has been condoned, registration has not been allowed with retrospective effect or from the date of inception of the trust. In case registration had been allowed with retrospective effect it would have been per Law, the application for registration under section 12A is required to be filed within a period of one year from the date of creation of the trust or establishment of the institution. The Commissioner (Appeals) is empowered to entertain a belated application. If the Commissioner (Appeals) is satisfied, he is required to record the reasons in writing on the basis of which he is satisfied. If the Commissioner (Appeals) grants registration without recording reasons in writing, then registration is deemed to have been granted to the Trust or Institution from the I st day of the financial year in which the application is made. The Commissioner (Appeals) has also the power to grant registration from the date of creation of the Trust or Institution. If he grants registration retrospectively, he has to record reasons in writing for the assessee. The relevant section being section 12A is reproduced herewith.
12A. 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 Commissioner before the 1-7-1973,orbefore 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 establishment of the institution if the Commissioner is, for reasons to be recorded in writing, satisfied that the person in receipt of the income was prevented from making the application before the expiry of the period aforesaid for sufficient reasons;
(ii) from the 1st day of the financial year in which the application is made, if the Commissioner is not so satisfied.
It may also be pertinent to mention that exemption under section 11/12 is not automatically allowable to any Trust or Institution if it is registered under section 12A. Registration under section 12A is one of the conditions required for grant of exemption under sections 11 and 12 of the Income Tax Act, 1961. The assessee had not claimed exemption under section 11 in any of the assessment year involved before us. As already pointed out, the claim of exemption was not claimed even before the Commissioner (Appeals) or before us in the original grounds of appeal. Now by raising additional ground of appeal, the assessee requires the Tribunal to investigate the facts which are not on record and then consider the claim of the assessee under sections 11 and 12 of the Income Tax Act. Since the revenue has made categorical statement that as per the records available with them, the registration to the club under section 12A has not been granted retrospectively, we considered it appropriate not to entertain the additional ground of appeal raised before us. It may be pertinent to mention that the assessment years involved before us are prior to assessment year 1998-99. In case, registration has been granted to the assessee prospectively, it would be effective only from 1-4-1997 relevant to the assessment year 1998-99. We, therefore, do not entertain the additional ground of appeal raised by the assessee."
15-16. Replying to the pleas of the learned Departmental Representative the learned counsel further submitted that the Tribunal vide its order dated 11-5-2006 has clarified that the views expressed in para 10 of its order would not come in the way of the assessee with regard to the merits of the case in subsequent years.
The learned counsel submitted that in the assessment years before the Tribunal in ITA Nos, 635, 636 and 637/Chandi./2005 (supra) the assessee have raised an additional ground regarding exemption under sections 11 and 12 and that the Tribunal did not deem it fit to entertain the same. That therefore, the discussion in the order of the Tribunal, seemingly on the merits of the issue is to be understood only in that light. Our attention was invited to para 3 of the order of the Tribunal in the M.A. preferred by the assessee in this regard as follows :
"After hearing the parties, we are of the view that in para 10 of the order, we have only explained as to how the issue is dependent on findings of fact and our decision cannot be considered to be a decision on merits in the light of the decision of the Tribunal that the additional ground raised by the assessee is not entertainable as it involved investigation of facts not on record. We clarify that the assessee shall be at liberty to argue the matter on merits in the regular appeal if such a ground is taken in the main grounds of appeal and in any case our decision in para 10 should not be considered as a decision on merits in regard to the additional ground of appeal," (Emphasis supplied)
17. Therefore, it was contended that the plea of the learned departmental Representative that the issue regarding the effective date of the grant of registration has been held by the Tribunal to be with effect from 1-4-1997, cannot be considered as a precedent.
18. We have considered the rival submissions carefully on this issue. The first and the foremost issue to be decided is the date from which the assessee has been granted registration by the Commissioner under section 12AA of the Act. The registration has been granted by the Commissioner vide his order dated 19-12-2000, which we have already extracted in the earlier part of our order. Normally, it is the explicit wording in the order passed by an authority, which depicts the mind of the authority passing such an order. Before we proceed to examine the order passed by the Commissioner granting registration, it would be appropriate to understand the mechanics of section 12AA which provides the procedure for registration under the Act. Section 12A of the Act, which deals with the conditions as to registration of trusts, etc., provides that the provisions of sections 11 and 12 shall not apply in relation to the income of any person unless the conditions mentioned therein are fulfilled. The condition, which is relevant for our consideration, prescribed therein, is with respect to the requirement of the registration of the trust or institution with the Commissioner. Provisions of section 12A read with section 12A(a) authorize the Commissioner for reasons to be recorded in writing to pass an order registering the trust or institution. The period within which the trust or institution is required to apply for registration has also been prescribed. The proviso to clause (a) to section 12A read as under:
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 establishment of the institution if the Commissioner is, for reasons to be recorded in writing, satisfied that the person in receipt of the income was prevented from making the application before the expiry of the period aforesaid for sufficient reasons,
(ii) from the 1st day of the financial year in which the application is made, if the Commissioner is not so satisfied."
(Emphasis supplied)
19. For our purposes, it is sufficient to deduce from the reading of the above proviso that it provides that in case where the application for registration of the trust or institution is made after the expiry of the period mentioned in clause (a) of section 12A, the provisions of sections 11 and 12 shall apply from the date of creation of the trust or establishment of the institution only in the case of the Commissioner, for reasons to be recorded in writing, is satisfied that the person in receipt of the income was prevented from making the application before the expiry of period aforesaid for sufficient reasons. If the Commissioner is not satisfied about the sufficiency of reasons, the registration shall be granted from the first day of the financial year in which the application is made. It is in this background now we examine the fact situation in the instant case. The assessee has been incorporated as a society in the year 1966. It applied for registration vide application its dated 18-3-1998 submitted with the Commissioner on 31-3-1998, a copy of the same placed at pages 4 and 5 of the paper book. Subsequently vide its communication dated 3-3-2000, the assessee submitted further explanation and sought registration with effect from the financial year 1989-90, it also filed the following :
(a) Balance sheet for financial years 1989-90 to 1998-99.
(b) Audit report under section 12(b) of the Income Tax Act, 1961 in the form of 10B for the financial years 1989-90 to 1998-99.
(c) Three copies of accounts for the financial years 1989-90 to 1998-99.
(d) Three copies of form 1013 from 1989-90 to 1998-99.
(e) Three copies of form 10A from 1989-90 to 1998-99.
(f) Three copies of certificate of the incorporation of the club.
(g) Three copies of Memorandum of Association.
(h) Notes of activities.
20. The aforesaid is clear from the documents placed at pages 6 and 7 of the paper book. Considering the aforesaid, CIT granted registration under section 12A of the Act in terms of his order dated 19-12-2000, which we have extracted in the earlier part of the order.
The Commissioner noticed that the application of the assessee is belated and holds that the delay in filing application for registration is condoned. The moot question is can it be understood to mean that the Commissioner was satisfied with the reasons for delay in filing the application or not. The order of the Commissioner, although not quite happily worded, yet it clearly brings out that the delay in filing the application for registration stood condoned. Therefore, the logical inference is that the registration is deemed to have granted in accordance with the provisions of proviso (1) below clause (a) of section 12A. There is nothing in the order or on record to deduce, on facts, that the registration was understood to have been granted prospectively with effect from 1-4-1997, as contended by the assessing officer. The scheme of the Act, prescribing the procedure for registration, itself provides that once the Commissioner is satisfied, for reasons to be recorded in writing, that the person in receipt of income was prevented from making the application for registration before the expiry of period stated therein for sufficient reasons, the registration would have effect of being granted since inception. In fact this view is supported by the judgment of the Hon'ble High Court of Calcutta in the case of Ananda Marga Pracharaka Sangha (supra). The following observation of the Hon'ble court are worthy of notice :
"We are inclined to accept the submission that where the application for registration is admitted belatedly and the registration has been granted by condoning the delay, the registration shall be retrospective effect from the date of creation of the trust. Otherwise, the very purpose of condoning the delay become nugatory. Therefore, in order to save the provision from the absurdity of self negation, we construe that the provision inserted below section 12(a) impliedly requires that the condonation of delay will relate back the effect of registration to the very date of creation of the trust or institution.
As a matter of fact, by the amendment of the proviso below clause (a) of section 12A by the Finance (No. 2) Act, 199 1, with effect from 1-10-1991, it is not made clear by the Legislature itself that where condonation is granted and the trust is registered upon condensation, the registration shall have effect from the date of creation of the trust."
21. The relevant provisions which have been discussed by us in the earlier paragraphs clearly empower the Commissioner to condone the delay where the assessee makes a belated application for registration. Condonation itself implies acceptance of the explanation in the delay sought to be condoned. The resultant benefits of the registration, even for the period covered in delay, cannot be denied to the assessee. Therefore, we do not find any justification in the stand of the assessing officer that the registration granted by the Commissioner vide its order dated 19-12-2000 was to be understood as being effective from 1-4-1997.
22-23. Now coming to the clarification submitted by the learned departmental Representative as obtained from the Commissioner (Appeals)-I, Chandigarh on this aspect, which have been reproduced by us in the earlier part of the order. At the threshold we find, that the Commissioner has no locus standi to issue such a clarification inasmuch as once having passed his order granting registration to the assessee he was rendered functus officio. We may notice that the registration of an institution or a trust under section 12A is not an idle or an empty formality. The procedure itself connotes the aforesaid learned The registration procedure not only requires an application to be made in the prescribed form setting out the details of creation of the trust but also names and addresses of its office bearers etc. The form further requires a certified copy of the instrument of its creation as well as copy of the latest accounts of the applicant to accompany such application. Such requirements have been complied with by the assessee in this case, and there is no dispute to the same. The correspondence filed by the assessee in its paper book and also emerging from the papers filed by the learned departmental Representative, clearly brings out that the same culminated in order of the Commissioner dated 19-12-2000 granting registration to the assessee. Having passed his order, and in the absence of any specific power vested in the Commissioner to withdraw or review its order, the Commissioner thereafter become functus officio. Therefore, the impugned clarification sought to be issued by the Commissioner is beyond his jurisdiction. The same, in our view, deserves to be rejected at the threshold itself.
24. In spite of the aforesaid we have perused the said clarification and find that the same runs contrary to the earlier order. We find that the Commissioner seeks to clarify that the registration has not been allowed to the assessee either with retrospective effect or and from the date of inception of the assessee. The clarification seeks to support the same for the reason that "the assessee in its application never applied for registration with retrospective effect. Hence, the inference is clear, registration has been allowed prospectively from the date of issuing of the order under section 12".
In our view, a perusal of assessee's application in the prescribed Form No. 10A and its accompanying correspondence dated 3-3-2000 to the Commissioner reveals that the assessee applied for registration on 31-31998 with effect from Financial Year 1989-90. Furthermore, the order sheet of the Commissioner, a copy of which is placed by the learned departmental Representative shows a noting that "Though the application for registration under section 12A is not preferred within the prescribed time. . . .". Similarly the noting also contain an observation that the delay in submission of application may be condoned. All this clearly goes to show that the Commissioner while granting registration was well aware that the assessee had filed its application belatedly and that the assessee had also applied for condonation of delay in filing such application. On the face of such facts, the averments presently found made in the clarification dated 19/24-12005 issued by Commissioner which have been noted by us in the earlier part, is inexplicable and is de hors the material on record.
25. We also notice that the clarification seeks to make out that the registration has to be considered as having been allowed from the date of issuing of the order under section 12A of the Act. Quite clearly this is contrary to the understanding of the assessing officer itself. The assessing officer has taken the stand that the registration is effective from 1-4-1997 being the first day of the financial year during which the assessee applied for registration. In fact the learned Counsel for the assessee have made a statement, which has not been controverted by the department, that it has been allowed exemption w.e.f. Assessment Year 1998-99. Be that as it may, we deem it fit and proper to disregard the clarification dated 19/24-1-2005 issued by the Commissioner.
26. Hence we are unable to persuade ourselves to agree with the stand of the department that the registration granted by the Commissioner dated 19-12-2000, has to apply prospectively with effect from 1-4-1997.
27. Similarly the order of the Tribunal dated 28-2-2005 (supra) would not come into way of the aforesaid, inasmuch as, the same does not deal with the issue on merit. The Tribunal was considering the assessee's application for admission of additional ground in relation to the exemption under sections 11 and 12. The Tribunal, after considering the issue in detail, found that the additional ground was' not admissible as it involved investigation of facts not on record. However, the Tribunal vide its order dated 11-5-2006 has clarified that its discussion should not be considered as decision on merits with regard to the additional ground preferred by the assessee. Therefore, the reliance by the learned departmental Representative on the aforesaid decision does not help the stand of the revenue.
28. Therefore, in our view, the assessee having been granted registration under section 12A with effect from 1-4-1989 is entitled to stake its claim for exemption under sections 11 and 12 of the Act. The lower authorities have disallowed the claim merely on the ground that the registration was not granted under section 12A for the years involved. That position had since been altered by our decision and thus we are of the view the issue is required to be re-examined by the assessing officer. We, therefore, set aside the order of the Commissioner (Appeals) and restore assessment back to the file of the assessing officer to be divided afresh in accordance with law.
29. In so far as the other grounds preferred by the assessee are concerned, the same arc on the issues which have been considered by the Tribunal earlier in its order dated 28-2-2005 in ITA Nos. 635, 636 and 637/Chandi./2000 (supra). The decision of the Tribunal in the aforesaid order squarely is applicable on these grounds also. Nevertheless, since the issue pertaining to the claim of the assessee for exemption under sections 11 and 12 of the Act goes to the route of the matter, and which have not been considered by the assessing officer earlier, we, therefore, consider it appropriate to set aside the orders of the lower authorities and restore the entire assessment back to the file of the assessing officer to be done afresh.
30. Since the fact situation and the disputes raised by the assessee in the assessment years 1992-93, 1993-94, 1994-95 and 1996-97 are identical to those of the assessment year 1991-92, which have been decided by us in the preceding paragraphs, our decision therein applies mutatis mutandis in these four years also. Accordingly, the order of the Commissioner (Appeals) for all these years are set aside and the assessment is restored to the file of the assessing officer to be done afresh in accordance with law.
31. As a result, the appeals of the assessee are treated as allowed.
32. Order announced in the court on 31-5-2006.