MALESHWAR MAHADEV MANDIR VIKAS SAMITI, Jaipur V. CIT (EXEMPTION), Jaipur

ITA 1009/JPR/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1818 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 16-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA
• Assessee Lawyers: SANJAY GHIYA
• Keywords: Charitable institution; Competent authority
• Section: 12A; 12AA; 12

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK L NL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 1009/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : SHRI MALESHWAR MAHADEV MANDIR VIKAS SAMITI, 12/50, B MALVIYA NAGAR, JAIPUR. CUKE VS. THE CIT (EXEMPTIONS), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AANAS4527Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SANJAY GHIYA (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI VARINDER MEHTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 18/12/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 22/12/2017 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 05.10.2016 OF CIT (EXEMPTIONS), JAIPUR WHEREBY THE APPLICATION OF THE ASSESSEE SEEKING REGISTRATION U/S 12AA WAS REJECTED . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT(EXEMPTIONS) WAS WRONG, ARBITRAR Y AND UNJUSTIFIED IN NOT GRANTING REGISTRATION U/S 12AA O F THE INCOME TAX ACT AND FRAMING EX PARTE ORDER THEREOF. ITA NO. 1009/JP/2016 SH. MALESHWAR HAHADEV MANDIR VIKAS SAMITI VS. CIT(E ) 2 2. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT TH E ASSESSEE FILED ITS APPLICATION IN FORM 10A SEEKING REGISTRATION U/ S 12AA OF THE INCOME TAX ACT ON 31.03.2016. HOWEVER, THE LD. CIT(E) HAS REJECTED THE APPLICATION OF THE ASSESSEE EX PARTE WITHOUT GIVING AN APPROPRIATE OPPORTUNITY. THE LD. AR HAS FURTHER SUBMITTED THAT THE ASSESSE TRUST WAS DULY REGISTERED VIDE REGISTRATION CERTIFICATE DATED 26.06.2014 AS PER RAJASTHAN REGISTRATION OF TRUST ACT, 1958. ALONG WI TH THE APPLICATION IN FORM 10A THE ASSESSEE FURNISHED THE CERTIFIED COPIE S OF REGISTRATION CERTIFICATE OBJECTS OF THE ASSESSEE TRUST ALONG WIT H THE AUDITED BOOKS OF ACCOUNTS OF THE ASSESSEE. HE HAS POINTED THAT THE L D. CIT(E) HAS REJECTED THE APPLICATION ONLY ON THE GROUND THAT TH E ASSESSEE HAS FAILED TO PRODUCE THE ORIGINAL DOCUMENTS. THE LD. AR OF TH E ASSESSEE HAS PRODUCED BEFORE US THE ORIGINAL REGISTRATION CERTIF ICATE AND SUBMITTED THAT EVEN THE ITO(HQR.) AFTER CARRIED OUT THE VERIF ICATION VIDE ITS REPORT DATED 22.04.2016 PLACE AT PAGE 34 OF THE PAPER BOOK WAS SATISFIED WITH THE AUTHENTICITY OF DOCUMENTS PRODUCED BY THE ASSES SEE ALONG WITH APPLICATION FOR REGISTRATION U/S 12AA. THE ASSESSEE HAS DULY FILED ITS REPLY AS EVIDENT FROM THE NOTE SHEET PLACE AT PAGE 35 OF THE PAPER BOOK, HOWEVER, LD. CIT(E) HAS STATED IN THE IMPUGNE D ORDER THAT THERE IS NO RESPONSE FROM THE ASSESSEE WHICH IS CONTRARY TO THE RECORD. THUS, ITA NO. 1009/JP/2016 SH. MALESHWAR HAHADEV MANDIR VIKAS SAMITI VS. CIT(E ) 3 THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT WHEN THE OBJECTS OF THE ASSESSEE ARE NOT DISPUTED BEING CHARITABLE IN NATUR E AND ASSESSEE FILED ALL THE RELEVANT DOCUMENTS TO SHOW THE GENUINENESS OF THE ACTIVITY OF THE ASSESSEE ALONG WITH THE AUDITED OF THE BOOKS OF ACCOUNTS THEN, THE LD. CIT(E) OUGHT TO HAVE GRANTED REGISTRATION OR EV EN TO GRANT MORE TIME TO THE ASSESSEE TO SATISFY HIM WITH ORIGINAL D OCUMENTS. THE ASSESSEE ATTENDED OFFICE SEVERAL TIMES BUT THE ITO WAS ON LEAVE AS INFORMED TO THE AUTHORIZED REPRESENTATIVE OF THE AS SESSEE DUE TO WHICH THE ORIGINAL DOCUMENTS AND BOOKS COULD NOT BE PRESE NTED. NO NOTICE WAS ISSUED BY THE ITO AND THEREFORE, THE IMPUGNED O RDER PASSED BY THE LD. CIT(E) IS IN VIOLATION OF PRINCIPLE OF NATU RAL JUSTICE AND NOT SUSTAINABLE. THE LD. AR HAS RELIED UPON THE FOLLOW ING DECISIONS:- CIT VS. SHIVBACHAN SINGH SAMAJOTHAN CHARITABLE TRUS T 97 CCH 79 ALLAHABAND HIGH COURT RAJARAJESHWARI CHARITABLE TRUST VS. CIT 40 CCH 470 VISAKHAPATNAM TRIB THUS, IT WAS SUBMITTED THAT WHILE CONSIDERING THE A PPLICATION FOR REGISTRATION U/S 12AA THE COMPETENT AUTHORITY IS NO T REQUIRED TO KNOW FINANCIAL STATEMENTS AND UTILIZATION OF ITS PROPERT Y. IT IS REQUIRED TO SEE ITA NO. 1009/JP/2016 SH. MALESHWAR HAHADEV MANDIR VIKAS SAMITI VS. CIT(E ) 4 WHETHER THE OBJECT OF THE SOCIETY ARE OF CHARITABLE NATURE OR NOT. THUS, THE LD. AR HAS PLEADED THAT THE ASSESSEE MAY BE GRA NTED REGISTRATION U/S 12AA OF THE IT ACT. 3. ON THE OTHER HAND, LD. DR HAS RELIED UPON THE IM PUGNED ORDER AND SUBMITTED THAT THE LD. CIT(E) HAS STATED IN THE IMPUGNED ORDER THAT DESPITE THE OPPORTUNITY IS GIVEN TO THE ASSESSEE, T HE ASSESSEE DID NOT FILED THE REQUISITE DOCUMENTS TO SATISFY THE AUTHOR ITY ABOUT THE GENUINENESS OF THE ACTIVITY OF THE ASSESSEE. THE AS SESSEE HAS NOT PRODUCED THE BOOKS OF ACCOUNTS FOR VERIFICATION BY THE LD. CIT(E) TO SATISFY HIMSELF ABOUT THE GENUINENESS OF THE ACTIV ITY. THUS, THE LD. DR HAS OPPOSED TO THE GRANT OF REGISTRATION U/S 12AA O F THE I.T. ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE ASSESSEE FILED ITS APPLICAT ION IN FORM 10A SEEKING REGISTRATION U/S 12A ON 31.03.2016. THE LD. CIT(E) HAS STATED IN THE IMPUGNED ORDER THAT NOTICE DATED 26.9.2016 WAS ISSUED TO THE ASSESSEE REQUIRING IT TO SUBMITTED CERTIFIED DOCUME NTS/EXPLANATION BY 16.05.2016 ALONG WITH ORIGINAL TRUST DEED/ MEMORAND UM OF ASSOCIATION FOR VERIFICATION. SINCE THE ASESSEE FAILED TO PRODU CE THESE DOCUMENTS AS REQUISITE BY THE LD. CIT(E) THE REGISTRATION U/S 12 AA WAS DENIED AND THE APPLICATION WAS REJECTED. WE FIND THAT THE ASSESSEE FILED ALONG WITH ITS ITA NO. 1009/JP/2016 SH. MALESHWAR HAHADEV MANDIR VIKAS SAMITI VS. CIT(E ) 5 APPLICATION THE CERTIFIED COPIES OF REGISTRATION CE RTIFICATE OF THE TRUST AS WELL AS COPIES OF THE TRUST DEED AND BY LAWS OF THE TRUST. THE ASSESSEE HAS ALSO FILED THE COPY OF ITS BANK ACCOUNT AND OTH ER DOCUMENTS. HOWEVER, WHEN THE LD. CIT(E) ASKED THE ASSESSEE TO FURNISH THE ORIGINAL DOCUMENTS TO SATISFY HIMSELF ABOUT THE EXISTENCE A ND GENUINENESS OF THE ACTIVITY OF THE ASSESSEE THEN, THERE IS NOTHING WRONG IN ASKING THE ASSESSEE TO PRODUCE THE SAID DOCUMENTS. SINCE, THE ASSESSEE COULD NOT PRODUCE THE ORIGINAL DOCUMENTS AS WELL AS BOOKS OF ACCOUNTS ON THE REASONS STATED TO BE THAT THE ASSESSEE DID NOT RECE IVE ANY FURTHER NOTICE AND IN RESPONSE TO THE ORIGINAL NOTICE THE A SSESSEE ATTEND THE OFFICE BUT ITO(HQR.) WAS ON LEAVE. THEREFORE, IT AP PEARS THAT THERE WAS SOME MISCOMMUNICATION BETWEEN THE CIT(E) AND THE AS SESSEE, DUE TO WHICH THE ASSESSEE COULD NOT FILED THE REQUISITE DO CUMENTS AND BOOKS OF ACCOUNTS. IT IS PERTINENT TO NOTE THAT THE ASSES SEE HAS ALREADY STARTED ITS ACTIVITY AND THEREFORE, IT IS NOT A CASE OF NEW LY CREATED TRUST YET TO STARTS ITS CHARITABLE ACTIVITY AND THEREFORE, IT BE COMES RELEVANT TO VERIFY THE GENUINENESS OF THE ACTIVITY OF THE ASSESSEE. IN ORDER TO SATISFY THE AUTHORITY ABOUT THE GENUINENESS OF THE ACTIVITY THE RELEVANT RECORD WITH BOOKS OF ACCOUNTS AND PARTICULARLY THE INCOME AND T HE EXPENDITURE OF THE ASSESSEE TO SHOW THAT THE ASSESSEE HAS INCURRED ALL THE EXPENDITURE ITA NO. 1009/JP/2016 SH. MALESHWAR HAHADEV MANDIR VIKAS SAMITI VS. CIT(E ) 6 ONLY FOR THE CHARITABLE ACTIVITY AND NOT OTHERWISE. ACCORDINGLY IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE SHOULD HAVE BEEN GIVEN AN EFFECTIVE OP PORTUNITY OF HEARING BEFORE PASSING THE IMPUGNED ORDER. HENCE, T HE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS REMANDED TO THE RECO RD OF THE LD. CIT(E) FOR CONSIDERATION OF THE REQUISITE RECORD TO BE PRO DUCED BY THE ASSESSEE AND THEN DECIDE THE APPLICATION OF THE ASSESSEE FOR REGISTRATION U/S 12AA AFRESH. WE MAY CLARIFY THAT THE LD. CIT(E) DID NOT DOUBT THE NATURE OF OBJECTS OF THE ASSESSEE BEING CHARITABLE IN NATURE AND WHAT IS REQUIRED TO BE VERIFIED IS THE GENUINENESS OF THE ACTIVITY OF THE ASSESSEE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22/12/2017 SD/- SD/- HKKXPAN FOT; IKY JKO (BHAGCHAND) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22/12/2017. * SANTOSH. ITA NO. 1009/JP/2016 SH. MALESHWAR HAHADEV MANDIR VIKAS SAMITI VS. CIT(E ) 7 VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI MALESHWAR MAHADEV MANDIR VIKAS SAMITI, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- THE CIT(EXEMPTIONS), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1009/JP/2016} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR