Income Tax Appellate Tribunal - Mumbai
Bombay Chamber Of Commerce And ... vs Assessee on 15 January, 2016
IN THE INCOME TAX APPELLATE TRIBUNAL
"B" BENCH, MUMBAI
BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND
SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER
ITA no.6525/Mum./2014
(Assessment Year : 2009-10)
ITA no.843/Mum./2012
(Assessment Year : 2009-10)
Bombay Chamber of Commerce and
Industry, Mackinnon Mackenzie Building
4, Shoorji Vallabhdas Marg ................ Appellant
Ballard Estate, Mumbai 400 001
PAN - AABCB2270M
v/s
Income Tax Officer (Exemption)-1(1)
5th Floor, Room no.505
................ Respondent
Piramal Chambers, Lalbaug
Parel, Mumbai 400 012
Revenue by : Shri N.P. Singh
Assessee by : Shri P.J. Pardiwala a/w
Shri Niras Sheth
Date of Hearing - 23.12.2015 Date of Order - 15.01.2016
ORDER
PER SAKTIJIT DEY, J.M.
ITA no.843/Mum./2012 The above appeal is directed against the order dated 16 th December 2011, passed under section 12AA(3) of the Income Tax Act, 1961 (for short "the Act"), by the learned Director of Income Tax Bombay Chamber of Commerce and Industry 2 (Exemption), Mumbai, [for short "the learned DIT(E)"] cancelling the registration granted under section 12AA(1) of the Act.
2. Briefly stated the facts are, the appellant institution was initially incorporated under the Indian Companies Act VII, 1913, and registered on 18th June 1924, with the Registrar of Companies, Bombay, as Bombay Chambers of Commerce. Subsequently, after the Companies Act, 1956, came into force, the assessee was registered as Bombay Chamber of Commerce and Industries, w.e.f. 29th June 1956, with the Registrar of Companies, Bombay. On 30th March 1998, the assessee made an application in form no.10A, before the learned DIT(E), Bombay, for registration under section 12A of the Act. The learned DIT(E) granted registration under section 12A r/w section 12AA(1) of the Act on 22nd September 1998, though prospectively. The registration granted to the assessee under section 12AA(1) of the Act continued till the year 2011. As could be seen from the material on record, on the basis of a proposal received from the Income Tax Officer (Exemption)-1(1), Mumbai, for cancellation of registration granted under section 12AA(1), on the ground that assessee is carrying on activity in the nature of trade commerce or business receipts of which are in excess of ` 10 lakh thereby attracting the proviso to section 2(15) of the Act, the learned DIT(E) on 14th October Bombay Chamber of Commerce and Industry 3 2011, issued a notice to the appellant institution directing to show cause as to why the registration granted under section 12A, should not be cancelled / withdrawn as the activity carried on by the assessee is in the nature of trade, commerce and business, hence, is not for charitable purpose as per the proviso to section 2(15) of the Act. In response to the said show cause notice, though, the assessee submitted its reply explaining in detail the nature of its activities and objects and also objected to the proposed cancellation / withdrawal of registration under section 12AA(3), but the learned DIT(E) being not satisfied with the explanation of the assessee, cancelled the registration granted under section 12A of the Act primarily for the reason that assessee has indulged in activities which are in the nature of trade, commerce or business, hence, it is not for a "charitable purpose" as per section 2(15) of the Act. The learned DIT(E), specifically referring to the proviso to section 2(15), opined that since the income earned by the assessee by way of certificate of origin fees, secretarial fees, labour advisory fees, seminar and training program, conference and exhibition charges, advertisement charges, sale of in- house publication have exceeded ` 10 lakh which is thereby in excess of the limit prescribed in second proviso to section 2(15), the assessee is not eligible for registration under section 12A as it cannot be considered to be existing for charitable purpose as defined under Bombay Chamber of Commerce and Industry 4 section 2(15) of the Act. The DIT(E) held that once a trust / institution looses its charitable character, it becomes non-genuine for the purpose of section 11 of the Act. Accordingly, provisions of section 12AA(3) of the Act gets attracted. Holding as above, the learned DIT(E) passed the impugned order cancelling the registration granted under section 12A(1) of the Act earlier.
3. The learned Counsel, Shri P.J. Pardiwala, appearing for the appellant institution submitted, as per section 12AA(3) of the Act, the registering authority can cancel / withdraw the certificate of registration granted to a trust or institution subject to fulfillment of two conditions which are, activities are not genuine and the activities of the trust and institution are not carried out in accordance with its objects. He submitted, neither there is any change in the objects of the institutions nor there is any material on record to show that assessee has carried out activities not in accordance with its objects. The learned Counsel submitted, when registration under section 12AA(1) of the Act was granted to the assessee on the very same objects, there being no change in the objects of the assessee, activities of the trust cannot be held to be non-genuine or not for charitable purpose. He submitted, there is also no material on record to show that the assessee has not carried on activities in accordance Bombay Chamber of Commerce and Industry 5 with its objects. He submitted, as neither of the two conditions as prescribed under section 12AA(3) are satisfied, cancellation / withdrawal of registration under section 12AA(3) is impermissible in law. Learned counsel submitted, merely because there is a change in "charitable purpose" after its substitution by Finance Act, 2008, w.e.f. 1st April 2007, the activities of the assessee institution cannot be treated as non-genuine. Learned counsel submitted, for the purpose of withdrawal / cancellation of registration under section 12AA(3), the conditions prescribed therein only have to be satisfied. He submitted, section 12AA(3) has no reference to the first proviso to section 2(15) of the Act. He submitted, when the DIT(E) being satisfied with the objects of the assessee, had granted registration under section 12AA(1) there being no change in the object nor there being any material brought on to indicate that the assessee has not carried on activities in accordance with its object, cancellation / withdrawal of registration is invalid in law. For such proposition, he relied upon the following decisions:-
i) Maharashtra Cricket Association v/s CIT, [2014] 152 ITD 1 (Pune.);
ii) Bombay Presidency Golf Club Ltd. v/s DIT(E), [2012] 52 SOT 149 (Mum.);
iii) Builders Association of India v/s DIT(E), ITA no.550/Mum./2012, order dated 12.01.2015;
Bombay Chamber of Commerce and Industry 6
iv) Cotton Textiles Export Promotion Council v/s DIT(E), 54 SOT 167 (Mum.);
v) Maharashtra Housing & Area Development Authority v/s ADIT(E), [2013] 58 SOT 196 (Mum.);
vi) Vinita Samaj v/s DIT(E), [2014] 45 Taxmann.com 303 (Mum.);
vii) Tamil Nadu Cricket Association v/s DIT(E), [2013] 40 Taxmann.com 250 (Mad.); and
viii) DIT(E) v/s Karnataka Industrial Area Development Board, [2015] 55 Taxmann.com 34 (Kar.).
4. The learned Departmental Representative, Shri N.P. Singh, supporting the reasoning of the learned DIT(E), submitted, as the earnings of the assessee from commercial activities during the relevant year has exceeded the prescribed limit as per the second proviso to section 2(15) of the Act, the activities of the trust cannot be considered to be for charitable purpose. The learned Departmental Representative submitted, under section 12AA(3), the registering authority has been empowered to cancel / withdraw registration granted to a trust / institution under certain circumstances. He submitted, in view of such provisions, the learned DIT(E) has authority under law to cancel / withdraw registration granted under section 12AA(1) granted earlier.
5. We have heard the rival contentions and perused the material available on record as well as the case laws cited by the parties. On a Bombay Chamber of Commerce and Industry 7 perusal of the impugned order of the DIT(E), it is patent and obvious that only reason on which the learned DIT(E) has cancelled / withdrawn registration granted under section 12AA(i), is fees earned by the assessee from different activities are in the nature of trade, commerce and business, therefore, assessee institution cannot be considered to be existing for "charitable purpose". He, therefore, has held that the activities of the trust have become non-genuine. Undisputedly, the assessee was registered as a company in the year 1956, under Companies Act, 1956. There is also no dispute that the assessee had applied registration under section 12A of the Act in the year 1998 and the learned DIT(E) being satisfied that the objects of the company is charitable in nature has granted registration under section 12AA(1) vide order dated 22nd September 1998. It is also a fact on record that the registration granted under section 12AA(1) continued till the year 2011. On a reading of the provisions of section 12A of the Act, it is very much clear that the income / contribution received by a trust / institution existing for charitable purpose would not be exempt under sections 11 and 12 of the Act unless the trust / institution has made an application for registration under section 12A of the Act and such trust / institution in case of an application for registration being made after 1st June 2007 is registered under section 12AA of the Act. On a perusal of the provisions of section 12AA, which Bombay Chamber of Commerce and Industry 8 was introduced in the statute w.e.f. 1st April 1997, it is to be noted that as per sub-section (1), the registering authority i.e., Principal Commissioner or Commissioner on receipt of an application for registration under section 12A, shall call for such document / information from the trust / institution to satisfy himself about the genuineness of the activities of the trust or institution and may also conduct such inquiry in that behalf. Only after he has satisfied himself about the objects of the trust or institution and the genuineness of its activities, the registering authority shall pass an order registering the trust or institution. However, sub-section (3) of section 12AA, empowers the registering authority to cancel / withdraw registration granted under sub-section (1) if he is satisfied that the activities of the trust or institution are not genuine and secondly, if such activities are not carried out in accordance with the objects of the trust or institution. If we examine the facts of the present case in the light of the aforesaid statutory provisions, it is seen that the assessee trust was granted registration under section 12AA(1) of the Act by the learned DIT(E), vide order dated 22nd September 1998. Thus, such grant of registration pre-supposes that the learned DIT(E) before granting registration was satisfied about the object of the institution as well as the genuineness of its activities. In the aforesaid facts, it has to be seen while cancelling / withdrawing registration under section Bombay Chamber of Commerce and Industry 9 12AA(3) of the Act, whether conditions prescribed therein have been satisfied. As it emerges from the facts and material on record, the primary object of the assessee as per its memorandum and article of association is "to promote and protect the trade and manufacturers of the state of other parties of the country". It is evident from record that the main / primary object of institution at the time of grant of registration under section 12A in the year 1998, has not undergone any discernible change in the subsequent years even at the time of cancellation / withdrawal of registration. At least, on a perusal of the impugned order of the learned DIT(E), we do not find any allegation by him that the institution has either changed its objects or deviated from its objects. Further, there is no allegation that the activities carried out by the institution are not in accordance with its object. When a specific query was made by the Bench to the learned Departmental Representative to demonstrate whether there is either change in objects of the institution or activities are not carried out in accordance with the object, the learned Departmental Representative fairly submitted that neither there is any allegation by the learned DIT(E) to that effect nor he has brought any material on record to demonstrate such fact. Thus, from the aforesaid facts, it is very much clear that the conditions of section 12AA(3) of the Act, have not been fulfilled. Merely because appellant institution has earned income from certain Bombay Chamber of Commerce and Industry 10 activities, which are in accordance with its objects, neither the institution nor its activities would become non-genuine as a result of the proviso to section 2(15). As we have already observed the power to cancel / withdraw registration granted under section 12AA(1) of the Act, has been provided under section 12AA(3), subject to fulfillment of conditions enshrined therein. In the present case, admittedly, at the time of grant of registration under section 12AA(1), the learned DIT(E) was satisfied with the charitable nature of assessee's objects and also genuineness of its activities. There being no material on record to support the conclusion that the activities of the trust are not genuine or they are not carried out in accordance with its object, conditions of section 12AA(3), have not been satisfied in the instant case. As the registering authority has been vested with power to cancel / withdraw the registration only under sub-section (3), he must satisfy the conditions prescribed therein before cancellation / withdrawal of registration.
6. As far as applicability of the provisions of section 2(15) is concerned, it cannot be brought into play for cancellation / withdrawal of registration under section 12AA(3). Reading of section 2(15) as a whole would make it clear that the activity of the trust cannot be considered to be for the purpose of advancement of object of general Bombay Chamber of Commerce and Industry 11 public utility in case its earning are in the nature of trade, commerce and business and it exceeds the prescribed limit. What follows from the plain reading of the provision is, if the income of the trust / institution from activities in the nature of trade, commerce or business, is within the prescribed limit, it would still be considered to be existing for charitable purpose. Thus, restriction imposed under the first proviso to section 2(15) would be relevant only for the purpose of grant of exemption under section 11 of the Act and not for cancellation / withdrawal of registration under section 12AA(3). Therefore, in our view, only because the receipts / earning of the assessee during the relevant previous year has exceeded prescribed limit, for that reason alone the assessee institution cannot be considered as non-charitable. For cancellation / withdrawal of registration under section 12AA(3), the provisions of section 2(15) cannot be brought into play. More so, when there is no material brought on record by the learned DIT(E) to demonstrate / establish that either there is change in the objects of the appellant institutions on the basis of which registration was granted earlier or the activities of the institution are not in accordance with its stated objects. As held in the judicial pronouncements cited by the learned counsel, the first proviso to section 2(15), is not at all relevant for the purpose of cancellation / withdrawal of registration under section 12AA(3) though, it may be relevant for examining Bombay Chamber of Commerce and Industry 12 assessee's claim of exemption section under section 11 which can only be looked into during the assessment proceedings. In view of the aforesaid, we are inclined to set aside the order of the learned DIT(E) and direct him to restore registration granted under section 12AA(1) of the Act to the appellant institution from the date of cancellation.
7. In the result, appeal in ITA no.6525/Mum./2014, stands allowed.
ITA no.843/Mum./2012 This appeal filed by the assessee is directed against the order dated 28th August 2014, passed by the learned Commissioner (Appeals)-I, Mumbai, for the assessment year 2009-10.
8. Briefly stated the facts are, for the year under consideration, the assessee filed its return of income on 30th September 2009, claiming exemption under section 11 of the Act. In the course of assessment proceedings, the Assessing Officer noticing that learned DIT(E) has cancelled / withdrawn the registration granted under section 12AA(1), held that assessee is not eligible for exemption under section 11. Of- course, the Assessing Officer also opined that earning of income from holding seminars, conference, exhibition, advertisements are purely commercial activities, hence, cannot b e considered to be for charitable purpose. Accordingly, the Assessing Officer completed the Bombay Chamber of Commerce and Industry 13 assessment by treating the income / receipts of the assessee as business income as a result of which the total income of the assessee was determined at ` 4,03,58,639. Being aggrieved of the assessment order, assessee filed appeal before the learned Commissioner (Appeals). The learned Commissioner (Appeals) also upheld the assessment order.
9. We have considered the submissions of the parties and perused the material available on record. As could be seen from the assessment order, the main reason for which the Assessing Officer denied assessee's claim of exemption under section 11 of the Act is withdrawal / cancellation of its registration under section 12AA(3). Of- course, the Assessing Officer has also held that the activities of the assessee are in the nature of trade, commerce and business and they cannot be considered to be for charitable purpose. However, considering the fact that while deciding assessee's appeal in ITA no. 6525/Mum./2014, in the earlier part of this order, we have restored the registration granted under section 12AA(1) from the date of its cancellation, it would be fair and proper to remand the matter back to the file of the Assessing Officer to decide the issue afresh keeping in view our decision given in Para-5 above. As far as assessee's claim of exemption under section 11 is concerned, the Assessing Officer has to Bombay Chamber of Commerce and Industry 14 consider the same independently and in accordance with relevant statutory provisions after considering the submissions of the assessee with relevant case laws and thereafter decide the issue in accordance with law after providing reasonable opportunity of being heard to the assessee.
10. In the result, assessee's appeal stands allowed for statistical purposes.
11. To sum up, ITA no.843/Mum./2012 is allowed and ITA no.6525/Mum./2014 is allowed for statistical purposes.
Order pronounced in the open Court on 15.01.2016 Sd/- Sd/-
N.K. BILLAIYA SAKTIJIT DEY
ACCOUNTANT MEMBER JUDICIAL MEMBER
MUMBAI, DATED: 15.01.2016
Copy of the order forwarded to:
(1) The Assessee;
(2) The Revenue;
(3) The CIT(A);
(4) The CIT, Mumbai City concerned;
(5) The DR, ITAT, Mumbai;
(6) Guard file.
True Copy
By Order
Pradeep J. Chowdhury
Sr. Private Secretary
(Dy./Asstt. Registrar)
ITAT, Mumbai