Per G S Pannu, Vice-President The instant appeal is directed against the order of the CIT Central-I (in short Commissioner) dated 28.03.2018 passed u/s. 12AA(3) of the, cancelling the registration w.e.f A.Y. 2001-02, originally granted to the assessee u/s. 12A of the dated 22.01.1979.
2. The appellant before us is a Public Charitable Trust incorporated on 05.07.1978, which is registered with the Charity Commissioner. The Trust is also registered u/s. 12A of the with the Commissioner of Income tax, Bombay, vide order dated 22.01.1979. By way of the impugned order, the Commissioner has ITA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust invoked section 12AA(3) for cancelling the registration granted to the assessee on
22.01.1979. Such cancellation has been made effective from A.Y. 2001-02. The appellant has raised multiple Grounds of appeal (revised), which read as under, assailing the impugned action of the Commissioner:-
The Commissioner of Income Tax (Central) - 1 erred:-Before we proceed to deal with the reasoning advanced by the Commissioner and the arguments of the appellant, it would be appropriate to briefly touch upon the history of the Trust and the activities that are being carried out since inception. For the said purpose, following discussion is relevant.
1. in cancelling the registration granted u/s 12A of the Income Tax Act, 1961 ( the) to the appellant Trust vide an order passed on 28 th March 2014
2. in not appreciating the activities carried on by the Appellant Trust were not of the nature that would make Section 12AA(3) of theapplicable. She failed to appreciate that a registration could be cancelled only for the reasons mentioned in Section 12AA(3) of theand not for any other reasons.
3. In not correctly appreciating the nature of activities that were carried on by the Appellant Trust which were not found to be not genuine.
4. in holding that there was a diversion of income of the Trust for purposes other than the objects of the Trust and in holding the same tantamount to a violation of Section 11 and Section 13 of the.
5. In not appreciating that a violation of Section 13, if at all, was not a valid ground for cancellation of registration u/s 12AA(3) of the.
6. In not adequately appreciating the findings of the Honble ITAT in the appellants case for A Y 2001-02 and 2002-03 on advances given which were not held to be violative of Section 13 of theand the subsequent orders of the Honble High Court upholding the said order of the Honble ITAT.
7. In holding various advances given as investments made in violation of the provisions of Section 11(5) of the.
8. In holding that the payments to M/s Empire Chemists were covered by the provisions of Section 13(2)(c) and hence would lead to cancellation of registration u/s 12AA. ITA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust
9. In holding that credit card payments were for personal expenses and were covered by the provisions of Section 13(2)(c) and hence would lead to cancellation of registration u/s 12AA.
10. In placing undue reliance on an order of the Joint Charity Commissioner notwithstanding that the same stayed by the Bombay Civil Court vide their order dated 4 th November 2009.
11. In cancelling the said registration with effect from Assessment Year 2001-02.
3. As noted earlier, the Trust has been set up vide registration of Trust Deed on
05.07.1978 and the objects of the Trust, which appear in clause 3 of the Trust deed read as under:
(i) Affording medical relief and spread of medical science in such manner as the Trustees may think fit including:- (a) Establishment and maintenance and support of Hospitals Health Centres and Dispensaries with or without Medical Schools and Nursing Institutions or any of them for treatment of patients suffering from diseases or accidents. (b) Establishment acquisition and maintenance and support to Hospitals, Dispensaries, Maternity Homes, Homes Sanatoria, Research Centres, Laboratories. Preventive Health Centres, Hospices, Diagnostic Centres, Medical Colleges and Medical Schools. (c) Grant of subscription and donation to Hospitals, Dispensaries, Convalescent Homes, Asylums, Hospices, Health Centres, Baby Clinics, Nursing Homes and other Public Institutions for administering medical ITA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust relief upon such terms and conditions and for such period as the Trustees may think fit. (d) Grant of medical help during epidemic, famine, flood or any unforeseen calamity or war or war-like operations or civil commotion or riots e) Establishment and/or acquisition and maintenance of and support of medical schools, medical colleges and other institutions carrying research in medicine and awarding scholarships and scholarship prizes or awards at any such schools, colleges and institutions. (f) To undertake prosecute develop help or carry on all or any kind of basic or fundamental and/ or applied research and scientific work in connection with or relating to medical surgical and sociomedical research problems and to do all things necessary or incidental or conducive to the attainment of the same and to provide funds for research and for scholarships, stipends and/or other payment or aid to any person or persons engaged in research work. (g) establish and maintain and to assist and encourage or promote as and when deemed proper and expedient for the purpose of medical relief in the form of Hospitals or in connection there with or attached thereto all or any of the following Institutions namely: (1) Institutions for promoting medical research work; (2) Medical College, Nursery and Midwifery Institutions for imparting medical education and training ; (3) Convalescent Home; (4) Creche and Children s Hospital. (2) To incur any expenditure on any programme of rural development as provided for under Section 35-CC of the Income Tax Act or any other law relating to rural development for the time being in force and to undertake to carry out, promote and sponsor such programme as the Trustees may deem fit.At this point, we may also refer to the clause 4 of the Trust deed, which outlines the powers vested with the trustees in order to attain the objects for which the Trust has been set up. Clause 4 reads as under: ITA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust
4. The trustees shall have power to restrict or regulate from time to time the objects of this Trust so as to comply with any conditions or requirements of taxation laws of India relating to taxation of income or capital as they may think fit so as to obtain for this Trust or Donors to this Trust any relief or concession in respect of taxation subject however to the over-riding consideration that the object or objects of this Trust shall always be a public charitable object excluding (i.e. other than an object of a religious nature and shall be such as may be recognised as a public charitable object as defined in Section 2(15) of the Income Tax Act, 1961 or any statutory modification or re-enactment or any other Act governing taxation of income for the time being in force in India. Without prejudice to the generality of the foregoing object or purposes but subject to the limitation and conditions as laid down in this Deed the Trustees may each year spend or apply the residue of the income of hte Trust Fund and may at their discretion at any time and from time to time spend or apply also the corpus of the Trust Fund or any part of parts of the trust Fund in or towards any one or more of the objects or purposes (which according to law be public charitable objects or purposes) to the exclusion of the others or other of them and in such proportion and manner in all respects as the Trustees may think fit.
4. At the time of hearing, it has been explained that the appellant Trust has since been carrying on the activities in compliance with the intended objects. The activities being carried out, inter alia, involve running of the hospital and research centre in the name of Lilavati Hospital & Research Centre. A brief synopsis has been furnished illustrating the level and quality of activities carried out of the hospital. It is pointed out that there are as many as 225 Doctors, 59 registered Medical Officers, 118 DNB Medical Students carrying on the activities of the hospital. Besides, the hospital is served by almost 700 Staff and 200 technicians as well as managerial and other staff, which numbers around 500. It is also pointed out that considering the number of beds and operation theatres, including ICT, etc., the total patients being treated counts to 17500 approximately. It is also being pointed out that theA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust hospital has a number of specialized departments, including Cardiac, pathology, Radiology, Dental, ENT, Nuclear Medicine Department etc. It is also pointed out that the total amount spent on medical expenditure for F.Y. 2012-13 was approximately ` 283 crores. We are only highlighting the aforesaid features, with a view to appreciate the preliminary point of the appellant that having regard to the Trust Deed, the assessee had been carrying out activities intended for attainment of its dominant singular object, viz., running of hospital and research centre.
5. In the instant case, the registration u/s. 12A of the was granted by the Commissioner on 22.01.1979, and since then the assessee was claiming the benefit of exemption prescribed under sections 12 and 13 of the. The Commissioner has since invoked his power contained in section 12AA(3) of theand cancelled the registration w.e.f. assessment year 2001-02. Before we proceed to evaluate the efficacy or otherwise of the cancellation effected by the Commissioner, a brief discussion on the power enshrined on the Commissioner to cancel the registration u/s. 12AA(3) of the is appropriate. Section 12A of theempowers the Commissioner to accord registration to the assessee after satisfying himself about the objects of the trust or institution and genuineness of its activities. Notably, the registration so accorded to the assessee u/s. 12A of the enables it to enjoy exemption under sections 11 to 13 of the as it is a necessary pre-condition prescribed.
6. Section 12AA(3) of thewas inserted by the Finance (No.2) Act, 2004 w.e.f. 01.10.2004, which specifically empowers the Commissioner to cancel theA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust registration of the Trust or institution. Prior to this, there was no specific power available with the Commissioner to cancel the registration earlier granted. Shorn of other details, for the present, it would suffice to note that the power granted to the Commissioner in section 12AA(3) of theis not absolute but the same is circumscribed by certain conditions prescribed therein. Section 12AA(3) of theprescribes that the registration can be cancelled only when the Commissioner is satisfied that the activities of the Trust or Institution are not genuine or are not being carried out in accordance with the objects of the Trust or Institution, as the case may be. The phraseology of section 12AA(3) itself suggests that fulfilment of the aforesaid condition is a pre-requisite in order to enable the Commissioner to exercise his power of cancellation contained in section 12AA(3) of the. Though the said inference can be drawn by bare reading of the provisions, yet a gainful reference may be made to the decision of Honble Madras High Court in the case of CIT vs. Sarvodaya llakkiya Pannai [343 ITR 300]. As per the Honble Madras High Court, the Commissioner is empowered to cancel the registration already granted only on fulfilment of the two conditions laid down u/s. 12AA(3) of the. To the same effect is also the judgment of Honble Bombay High Court in the case of Director of Income-tax (Exemptions) vs. Khar Gymkhana [385 ITR 162] . Apart there from, even the Circular of the CBDT No. 21 of 2016, dated 27 th May 2016, emphasizes that the field authorities are required to initiate the process of cancellation of registration strictly in accordance with the mandate of section 12AA(3) of the. Thus, so far as the legal proposition with regard to the scope and ambit of section 12AA(3) is concerned, it would suffice to infer that the power of ITA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust cancellation can be invoked by the Commissioner only after being satisfied that the activities of the Trust or Institution are not genuine or that the same are not being carried out in accordance with the objects of the Trust or Institution, as the case may be.
7. We may also refer to section 12AA(4) of the Act, which has been inserted by the Finance Act, 2014 w.e.f. 01.10.2014, which reads as under: "(4) Without prejudice to the provisions of sub-section (3), where a trust or an institution has been granted registration under clause (b) of sub-section (1) 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 is noticed that the activities of the trust or the institution are being carried out in a manner that the provisions of sections 11 and 12 do not apply to exclude either whole or any part of the income of such trust or institution due to operation of sub-section (1) of section 13, then, the Principal Commissioner or the Commissioner may by an order in writing cancel the registration of such trust or institution: Provided that the registration shall not be cancelled under this sub-section, if the trust or institution proves that there was a reasonable cause for the activities to be carried out in the said manner." Subsection (4) of section 12AA also empowers the Commissioner to cancel the registration of a Trust or Institution, but it seeks to cover a situation where it is found that the activities of the Trust or Institution are carried out in a manner where the provisions of section 11 and 12 do not apply to exclude either whole or any part of the income of such Trust or Institution due to operation of sub-section (1) of section 13. In other words, apart from the two conditions stated in subsection (3) of section 12AA, subsection (4) further points out that in case there is a violation of provisions of section 13(1) which ousts the applicability of section 11 and 12, even that can be a ground to cancel registration of the Trust or the Institution. At theA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust time of hearing, the learned representative for the assessee had also adverted to the Memorandum explaining the provisions of the Finance (No.2) Bill, 2014, which introduced section 12AA(4) of the. We are inclined to reproduce herein after the said explanatory notes, which read as under: Cancellation of registration of the trust or institution in certain cases The existing provisions of section 12AA of theprovide that the registration once granted to a trust or institution shall remain in force till it is cancelled by the Commissioner. The Commissioner can cancel the regis- tration under two circumstances : (a) the activities of a trust or institution are not genuine, or; (b) the activities are not being carried out in accordance with the objects of the trust or institution. Only if either or both the above conditions are met would the Com- missioner be empowered to cancel the registration, and not otherwise. Therefore, the powers of Commissioner to cancel registration are severely restricted. There have been cases where trusts, particularly in the year in which they have substantial income claimed to be exempt under other provisions of the deliberately violate provisions of section 13 by investing in prohibited mode etc. Similarly, there have been cases where the income is not properly applied for charitable purposes or has been diverted for benefit of Certain Interested persons. Due to restrictive interpretation of the powers or the commissioner under section 12AA, registration of such trusts or institutions continues to be in force and these institutions continue to enjoy the beneficial regime of exemption. Whereas under section 10(23C), which also allows similar benefits of exemption to a fund, Institution, University, etc., the power of withdrawal of approval is vested with the prescribed authority if such authority is satisfied that such entity has not applied income or made investment in accordance with provisions of section 10(23C) or the activities of such entity are not genuine or are not being carried out in accordance with all or any of the conditions subject to which it was approved. Therefore, in order to rationalise the provisions relating to cancellation of registration of a trust, it is proposed to amend section 12AA of theto provide that where a trust or an institution has been granted registration, ITA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust and subsequently it is noticed that its activities are being carried out in such a manner that, (i) its income does not enure for the benefit of general public ; (ii) it is for benefit of any particular religious community or caste (in case it is established after commencement of the) ; (iii) any income or property of the trust is applied for benefit of specified persons like author of trust, trustees, etc; or (iv) its funds are invested in prohibited modes, Then the Principal Commissioner or the Commissioner may cancel the registration if such trust or institution does not prove that there were a reasonable cause for the activities to be carried out in the above manner. This amendment will take effect from 1 st October, 2014. Notably, section 12AA(4) has been inserted to fill situations where it is found that the activities are carried out in such a manner that the income of the Trust or Institution does not enure for the benefit of general public; that it is for the benefit of any particular religious community or caste; that any income or property of the trust is applied for benefit of specified persons like author of trust, trustees, etc; or, that its funds are invested in prohibited modes. In all such situations, the Commissioner has been empowered to cancel the registration in terms of the power vested under section 12AA(3) of the. Notably, it has been stated that the amendment will take effect from 01.10.2014.
8. With this background, we now consider the manner in which the Commissioner has cancelled the registration granted to the assessee u/s. 12A of the. Before us , a fundamental point has been bought out by the appellant to the effect that the jurisdiction has been wrongly exercised by the Commissioner in the present case in as much as the reasons advanced for cancellation of registration are ITA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust beyond the scope and ambit of section 12AA(3) of the. By referring to the discussion made by the Commissioner in the impugned order, it is sought to be pointed out that the reasons advanced are based on the premise that the assessee has violated the provisions of section 13 of theor section 11(5) of thethereby rendering it ineligible for the claim of exemptions under sections 11 and 12 of the. On this basis, it is sought to be canvassed that the case of the assessee does not fall within the prescription of section 12AA(3) of the Act, which enables the Commissioner to cancel the registration only when the two conditions prescribed therein are satisfied.
9. We have carefully perused the impugned order of the Commissioner and have also heard the learned CIT-DR, who has sought to defend the impugned order. As per the CIT-DR, the Commissioner has noted in the opening para itself that the proceedings of cancellation are as a consequence of a Search and Seizure action carried out in the case of the assessee on 11.04.2011. It is pointed out that the manner of investment of Trust funds was in violation of the objects of the Trust, which lead to the same being treated as violation of section 13 of the. The entire discussion by the Commissioner in paras 4 to 8 brings out various types of violations on the part of the assessee but all the same are in relation to the provisions of section 13 of the. In the course of hearing, the learned DR addressed the fact that even the activities which constitute violation of section 13 can be understood as fulfilling the requirements specified u/s 12AA(3) of the, viz. non-genuineness of the activities of the Trust or that such activities can be said to ITA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust be activities which are not in accordance with the objects of the Trust. Therefore, according to the learned CIT-DR, the reasons advanced by the Commissioner satisfy the conditions prescribed u/s. 12AA(3) of the.
10. We have carefully considered the rival submissions. In the earlier paras, we have already adverted to the legal position in so far as the jurisdiction of the Commissioner vested in section 12AA(3) is concerned. Pertinently, a Statutory Authority is required to operate within the confines of the applicable statutory rule, and in this case we are dealing with section 12AA(3) of the; thus, the Commissioner is required to act within the scope and ambit of section 12AA(3) of thewhile invoking his power to cancel the registration. Notably, the Commissioner has to arrive at a satisfaction that the activities of the Trust are not genuine or that the same are not being carried out in accordance with the objects of the Trust. Thus, the efficacy of the impugned order passed by the Commissioner is required to be tested on the basis of the ingredients prescribed in section 12AA(3). A perusal of the impugned order as well as a commonality of plea from both the sides shows that the basis for cancellation of the registration in the instant case is the purported violation by the assessee of the provisions contained in section 13 of the. Broadly speaking, section 13 of thecontains provisions which seek to disentitle an assessee from exemptions contained in sections 11 and 12 of thein given situations. Notably, section 13 of thedeals with prescriptions for mode of investment, transactions with interested parties, etc. Section 13 of theempowers an assessing authority to forfeit the exemption permissible under sections ITA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust 11 & 12 of the. Ostensibly, the eligibility or otherwise of an assessee for the exemptions contained under sections 11 & 12 of theis indeed a subject matter of assessment proceedings carried out at the level of the assessing authority. The grant of registration under section 12A of theby Commissioner is only a starting point on the basis of which an assessee stakes his claim for exemptions under sections 11 and 12 of the Act, subject to fulfilments of conditions prescribed therein. Therefore, if in a given situation, section 13 of theis triggered the result would be that sections 11 and 12 of thewould not operate so as to allow exemption to the assessee contained in section 11 and 12 of the. Now, we may go back to section 12AA(3) of the Act, which prescribes only two conditions under which the Commissioner is empowered to cancel the registration earlier granted u/s. 12A of the. In our view, the points brought out by the Commissioner in the impugned order are not in the context of the conditions prescribed u/s. 12AA(3) of the, but are relevant for the purposes of making an assessment of income.
11. In the present case, the case sought to be made out by the Commissioner is that the violation carried out by the assessee would lead to denial of exemption u/s. 11 & 13 of the and, therefore, the pre-requisite of section 12AA(3) of theis satisfied. In para 9 of the impugned order, the Commissioner records that the violation of section 11 & 13 of thewould result in forfeiture of exemption not only for the year in which such transactions occur but also for the years when such arrangement continues to be in force. In our considered opinion, such an approach of the Commissioner is quiet misdirected and is inconsistent with the legal position ITA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust on the subject contemplated u/s. 12AA(3) of the so as to cancel registration already granted. We may add here that we are not shutting out the case of the Revenue to examine whether or not there has been a violation of section 13 of the Act, but we are only trying to say that the same is not relevant for the purpose of cancellation of registration u/s. 12AA(3) of the. Of course, such matters can be dealt with in the course of assessment proceedings and, in our view, the same ought to be dealt with, if the situation so warrants. Presently, we are confining ourselves with examining the efficacy or otherwise of the action of the Commissioner in invoking section 12AA(3) of theand we find that the reasons advanced by the Commissioner are not germane. On this point, the learned representative for the assessee has relied on the following decisions to say that section 12AA(3) cannot be invoked by Commissioner for cancellation of registration merely for violation of provisions of section 11 and 13 of theby the assessee :- CIT vs. Apeejay Education Society 59 taxmann.com 102 Cancer Aid & Research Foundation vs. Director of Income-tax (Exemption), Mumbai (IT Appeal No. 1782/Mum/2014 dated 16 th July 2014. CIT (Exemptions) vs. The Cancer Aid & Research Foundation Income Tax Appeal No.505 of 2015 Prabodhan Shikshan Prasarak Sanstha vs. DCIT ITA No. 892/Pune/2012, dated 30 th Sept. 2013. Tamil Nadu Cricket Association vs. Director of Income-tax (Exemption), 360 ITR 633 ITA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust
12. Therefore, in view of our aforesaid discussion, on the preliminary point itself, we find that the impugned order of the Commissioner cancelling the registration u/s. 12AA(3) of the is bereft of a valid jurisdiction.
13. Now, we may come to the argument set up by the learned CIT-DR. According to him, the activities, which has resulted in violation of section 13 of thecan be construed as activities carried out by the Trust, which are not in accordance with the objects of the Trust. In our considered opinion the argument set up by the CIT-DR is quite misconceived in as much as the activities that are required to be considered for the present purpose are the activities which are being carried out towards objects of the Trust. In the present case, as we have seen initially, the objects of the Trust are formation of hospital and Institutions for medical relief, etc. In fact, there is no finding by the Commissioner much less any material on record, which would show that the activities of the Trust are dehors its stated objects. The transactions, which are being understood by the CIT-DR as activities, cannot be considered to be the activities that are contemplated for the purposes of section 12AA(3) of the. At this stage, we may observe that the insertion of section 12AA(4) of theby the Finance Act, 2014 w.e.f. 01.10.2014 also cannot be lost sight of as our subsequent discussion would show. As noted earlier, sub-section (4) of section 12AA has expanded the situation for cancellation of registration by the Commissioner. In fact, the situation sought to be covered by section 12AA(4) of therevolves around the manner in which activities are carried out, including a case where the income or property of the trust is applied for specific ITA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust persons like author of trust, trustees, etc; or investment of funds in prohibited modes, etc. The aforesaid are areas, which are contained in section 13 of the Act, which disentitles an assessee from the exemptions contained in section 11 and 12 of the. In other words, violation of section 13 of theis also sought to be covered by the Legislature by insertion of sub-section (4) to section 12AA of theas a ground for cancellation of registration. So however, the said provision is effective from 01.10.2014. Pertinently, we are dealing with the impugned order of the Commissioner dated 28 th March 2014 and, therefore, the provisions of section 12AA(4) of theinserted w.e.f. 01.10.2014 would have no application. In fact, the insertion of section 12AA(4) of theon a subsequent date reinforces the legal position noted by us in earlier paras that in the impugned case what the Commissioner was required to satisfy the then existing conditions contained in section 12AA(3) of thein order to cancel the registration. Thus, the impugned reasons advanced by the Commissioner do not give him jurisdiction to invoke section 12AA(3) of theat the relevant point of time.
14. Therefore, we conclude by holding that having regard to the facts and circumstances of the case the Commissioner has wrongly invoked section 12AA(3) of thein as much as the requisite conditions contained therein are not fulfilled. Before parting, we may clarify that we have not examined the merits of the reasoning advanced by the Commissioner, which in any case, in our considered opinion, the Revenue is free to examine in the course of the relevant assessment proceedings carried out by the Assessing Officer, as advised in law. ITA No.2827/Mum/2014 Lilavati Kirtilal Mehta Medical Trust
15. In conclusion, we set-aside the order of the Commissioner and restore the registration originally granted to the assessee u/s. 12AA of the on 22.01.1979 (supra).
16. In the result, the appeal is allowed, as above. Order pronounced in the open court on this day of 12 th June, 2019. Sd/- Sd/- (Sandeep Gosain) (G S Pannu) JUDICIAL MEMBER VICE PRESIDENT Mumbai, Dated : 12 th June, 2019. SA Copy of the Order forwarded to :
1. The Appellant.
2. The Respondent.
3. The CIT(A), Mumbai.
4. The CIT , Mumbai.
5. The DR, A Bench, ITAT, Mumbai BY ORDER //True Copy// (Assistant Registrar/ Sr. PS) Income Tax Appellate Tribunal, Mumbai
