The preponderance of the judicial opinion of all the High Court including this Court is that at the time of registration under Section 12AA of the Income Tax Act, which is necessary for claiming exemption under Section 11 and 12 of the Act, the Commissioner of Income Tax is not required to look into the activities, where such activities have not or are in the process of its initiation. Where a trust, set up to achieve its objects of establishing educational institution, is in the process of establishing such institutions, and receives donations, the registration under Section 12AA cannot be refused, on the ground that the Trust has not yet commenced the charitable or religious activity.
For the reasons given above, we find sufficient force in the argument of the learned counsel for the petitioner that on the basis of the reasons recorded by the Assessing Officer, the initiation of the reassessment proceedings relevant to the Assessment Year 2000-2001 by means of the notice dated 23.3.2007 after more than four years is clearly barred by time.
Section 80G(5)(i)(b) provides the condition for exemption or rejection of the application for renewal, if the donation made to the institution or funds are not used by it directly or indirectly for the purpose of such business. In the present case the Commissioner did not record any such finding that the funds, which was earmarked and was kept in separate account in fixed deposit was not used by the respondent assessee directly or indirectly. Infact there was no occasion to misuse the funds as the hospital had not yet started and thus the plant and machinery could not be purchased from the grant, which was kept in fixed deposit.
In the result, the writ petition succeeds and is allowed. The respondents are directed to refund in all Rs.25 Lakhs seized from the petitioners on 17th of October, 2006 along with interest at the prevalent rate as provided for under section 132 B(4) for the period 16.12.2007 to 31.12.2008 and simple interest under section 244A on the said amount of Rs.25 Lakhs from 1st of January, 2009 to the date of actual payment at the rate of 18 per cent per annum within a period of two months, failing which they shall also be liable to pay the interest on interest amount @ 6 % per annum, as indicated above.
On a query put by the Court, learned counsel for the assessee accepts if the recourse to Section 143(3) would have been barred by time, there would have been no restriction to initiate the re-assessment proceeding under Section 147 of the Act. We may add that there is nothing on the plain language of Section 143 of the Act which may suggest that the recourse to Section 147 can be had only when the period of limitation to complete assessment proceeding has expired or the Assessing Authority should wait for the expiry of the said period. The said argument is ridiculous and not acceptable.
The CESTAT has recorded finding that there is prima facie finding of suppression of production and clandestine removal. The balance sheets thus will not reflect the true and correct financial position of the company. The Tribunal was lenient enough in directing the appellant to deposit only Rs. 1 crore and waiving the remaining amount of Excise duty and penalty, which together with would amount to about Rs. 16 crores. We, therefore, do not find any substantial question of law for consideration and interference in this appeal. The Central Excise Appeal is accordingly dismissed in-limine.
The question as to whether the business is derived from or attributable to SLR or non-SLR funds would not make any difference for the purposes of qualifying the interest earned by the cooperative bank under Section 80P (2) (a) (i) as the deposits of surplus idle money available from working capital, including reserves, excess collection of interest tax and other incomes are all attributable to the business of banking. The interest from such deposits cannot be said to be beyond the legitimate business activities of the bank.
The assessee has not come out with the case that in the opening stock, the excise duty was not included. The explanation furnished by the assessee is that since in the subsequent assessment year, the turnover was less than one crore of rupees and as such, the goods were not liable to excise duty, therefore, in the closing stock of the relevant assessment year, the excise duty has not been added, is not legally tenable.
In the present case, the income tax return of the donor namely Dr. Chitranjan Jain and his wife Nisha Jain was filed before the Assessing Authority. No finding has been recorded by Assessing Authority or the CIT Appeal or the ITAT that return filed by Dr. Chitranjan Jain and the Nisha Jain were fake, fabricated or false one. Once genuineness of return is not in dispute then there appears to be no reason to disbelieve that the amount was paid by Dr. Chitranjan Jain.
The interim order makes a mention about the guidelines laid down by Hon’ble Apex Court in its judgment dated 5.1.2004 in Ajay Gandhi v. B. Singh [2004] 134 Taxman 537 providing for a Collegium comprising the President, ITAT and two Senior Most Vice Presidents. A reference has also been made to a D.O letter dated 2.11.2012 (Annexure-4)from former officiating President, ITAT Sri G.E. Veerabhadrappa.. presently Senior Most Vice-President, ITAT to Sri Karwa (R-2 and 3), who has taken over as officiating President, ITAT w.e.f. 1.9.2012.
