Orissa High Court
Srikhetra, A.C. Bhakti-Vedanta Swami ... vs The Assistant Commissioner Of Income ... on 9 May, 2006
Equivalent citations: 2006(II)OLR75
ORDER
1. Heard Shri B. Panda, learned Counsel for the petitioner and Shri A.K. Mohapatra, teamed counsel for the Revenue.
2. Pursuant to our order dated 5.5.2006 the learned Counsel for the Revenue has produced before us the relevant records. It appears from the records that it was brought to the notice of the learned Counsel for the petitioner that the application which was filed by the petitioner is misplaced.
3. The main contention of the learned Counsel for the petitioner is that once an application is filed under Section 12AA of the Income Tax Act, 1961 for registration, the Commissioner may call for such documents or information from the trust or institution as are required to satisfy himself about the genuineness of activities of the trust or institution and the Commissioner may also make such other inquiries as he may deem necessary. Section 12AA(b) of the Act provides that after satisfying himself about the objects of the trust or institution and the genuineness of its activities the Commissioner shall pass an order in writing registering the trust or institution or if he is not so satisfied shall pass an order in writing refusing to register the trust or institution and a copy of the same shall be sent p the applicant. It is also provided that no order refusing registration shall be passed unless the applicant has been given a reasonable opportunity of being heard. Section 12AA(2) of the Acts provides that every order granting or refusing registration under Clause (b) of Sub-section (1) shall be passed before the expiry of six months from the end of the month in which the application was received under Clause (a) of Section 12A of the Act.
4. Learned counsel for the petitioner submits that once the time of six months expires, the authority loses its right to refuse registration of the trust.
5. We are unable to uphold such contention. In our view the period of six months as provided in Sub-section (2) of Section 12AA is not mandatory. Though the word 'shall' has been used but it is well known that to ascertain whether a provision is mandatory or not, the expression 'shall' is not always decisive. It is also well known that whether a statutory provision is mandatory or directory has to be ascertained not only from the wording of the statute but also from nature and design of the Statute and the purpose which it seeks to achieve. Herein the time frame under Sub-section (2) of Section 12AA of the Act has been so provided to exclude any delay or lethargic approach in the matter of dealing with such application. Since the consequence for non-compliance with the said time frame has not been spelt out in the statute, this Court cannot hold that the said time limit is mandatory in nature nor the period of six months has been couched in negative words. Most of the time negative words indicate a mandatory intent. This Court is also of the opinion that when public duty is to be performed by the public authorities, the time-limit which is granted by the Statue is normally not mandatory but is directory in the absence of any clear statutory intent to the contrary. See Montreal Street Railway Company v. Normandin AIR 1917 Privy Council 142 at page 144. Here there is no such express statutory intent, nor does it follow from necessary implication.
For this reason we cannot accept the contention of the learned Counsel for the petitioner on the interpretation of Section 12AA(2).
But in the instant case the facts show that the authorities were really sitting on the application of the petitioner. From the records it appears that the original application was not misplaced but is very much there and the said application is on record. The said application has been made on 19th August, 2004. Along with the said application the trust deed has also been enclosed.
6. On the said application, Shri J.K. Lenka, I.T.O. of Income Tax, Bhubaneswar, wrote a letter on 8th November 2004 to the Asst. Commissioner of Income Tax Office, Bhubaneswar seeking a report. But since then the said letter has been gathering dust. It may be pointed out that a photocopy of the said application dated 19.8.2004 has been enclosed to this writ petition (page-9). On Court's insistence to trace the said application, the order sheet dated 12.11.2005 has been brought to our notice by the Revenue and it was urged that the application has been misplaced.
7. We are surprised at such stand taken by the Revenue as the record shows that the said original application is there and on it a report has been demanded by the concerned Officer in 2004. It is, therefore, clear that the authorities were simply sitting over the matter. For such non-action on the part of the authorities, the petitioner has been unduly harassed.
8. This Court directs the opposite parties to proceed on the basis of the application filed by the petitioner on 19th August, 2004 and which is on the record. The authorities are also directed to complete all statutory exercise within a period of six months from today and the petitioner must cooperate with the authorities by production of records. This Court makes it clear that if the authorities feel inclined to grant registration the same will relate back to the date of the application which was 19th August, 2004.
9. In view of the careless attitude on the part of the opposite parties and the misleading stand taken before this Court and for which the petitioner has been unduly harassed and he has to come to this Court, this Court directs opposite party No. 1 to pay a cost of Rs. 5,000/- (Rupees five thousand). Such cost must be paid in favour of the All Orissa Tax Bar Association within a period of four weeks from today.
The writ petition is thus disposed of with costs indicated above.