Case Law Details
Aspam Foundation Vs CIT (Exemption) (ITAT Delhi)
1. The Assessee herein has preferred the instant appeal against the order dated 31.01.2019 impugned herein passed u/s 12AA(1)(b) r.w.s. 12A of the Income Tax Act, 1961 (for short “the Act”), by ld. Commissioner of Income tax (Exemption), New Delhi (in short “Ld. Commissioner”).
2. In this case, the Ld. Commissioner rejected the application for registration filed by the Assessee u/s 12AA of the Act on the ground that same has been filed beyond 30 days period as prescribed u/s 12A(ab) inserted by Finance Act, 2017 w.e.f. 01.04.2018.
3. Heard the parties and perused the records. The provisions of section 12A(ab) mandates that the person in receipt of the income has to made an application for registration of the trust or institution, in a case where a trust or an institution has been granted registration under section 12AA or has obtained registration at any time under section 12A [as it stood before its amendment by the Finance (No. 2) Act, 1996 (33 of 1996)], and, subsequently, it has adopted or undertaken modifications of the objects which do not conform to the conditions of registration, in the prescribed form and manner, within a period of thirty days from the date of said adoption or modification, to the Principal Commissioner or Commissioner and such trust or institution is registered under section 12AA of the Act .
3.1 It is fact that the Appellant trust was registered with Sub-Registrar-IX, New Delhi as a trust vide trust deed dated 28.09.2012 and subsequently registered u/s 12AA and 80G of the Act vide registration dated 10.05.2013 by the Ld. Commissioner of Income Tax (Exemption).
3.2 Later on the Appellant vide resolutions dated 11.05.2018 and 5.06.2018 added some more objects in its objects. Before the Ld. Commissioner, it was claimed by the Appellant that though four new objects which are of public charity and of general public utility, therefore the same cannot be construed strictly modification or alternation of objects of the trust as the same are in conformity with the condition of registration however, as an abundant precaution,the Appellant trust has filed an application on dated 02.07.2018 in terms of section 12A(1)(ab) of the Act.
3.3 We observe that though the Appellant trust by way of two resolutions dated 11.05.2018 and 15.06.2018 added some new objects in its objects and thereafter on dated 02.09.2018 filed an application for registration u/s 12AA of the Act which was declined by the Ld. Commissioner on the ground that as per section 12A(ab) subsequent to any modification in objects of the trust/ institution, application for grant of registration should be made within 30 days from the date of such modification. However, in this case, the application for the registration u/s 12A has been made on 02.07.2018 which is beyond 30 days period from the modification which was made on 11.05.2018.
3.4 It was also observed by the Ld. Commissioner that the Appellant can only carry on the objects of the trust which are in the trust deed. If it is found that the Appellantis carrying on the activities as per resolution passed on 11.05.2018 and 15.06.2018, the registration u/s 12AA and 80G granted to the Appellant on 10.05.2013, will be liable for rejection w.e.f. 01.04.2018.
3.5 From the impugned order, nowhere appears that the Ld. Commissioner has considered the factual position with regard to modification or adoption of new objects and as to whether the same are in conformity to the conditions of registration u/s 12AA of the Act or not and as to whether the Appellant was supposed to file the application u/s 12AA of the Act or not.
3.6 Admittedly the said resolutions were not registered till the date of rejection of application u/s 12A of the Act by the ld. Commissioner on dated 31.01.2019. Recently the Appellant has incorporated the same, vide supplementary trust deed registered on 04.04.2022 with the Registrar Govt. by NCT of Delhi. Hence, considering the peculiar facts and circumstances of the case and latest development, we deem it appropriate to remit this case to the file of the Ld. Commissioner for decision afresh while considering the applicability of provisions of section 12A(1)(ab) of the Act to the case of the Appellant and also taking into consideration the Supplementary Registered Trust Deed as referred above and to pass an order in accordance to law, suffice to say while giving proper opportunity of being heard to the Appellant/trust.
4. In the result the appeal of the Appellant is allowed for statistical purposes.
Order pronounced in the open court on 29/04/2022.
