M/s ABCI Charitable Trust, Kolkata V. CIT, (Exemption), Kolkata, Kolkata

ITA 1027/KOL/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 5334 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 11-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K TIWARI
• Assessee Lawyers: M D SHAH
• Keywords: Charitable institution; Opportunity of being heard; Principle of natural justice
• Section: 80G; 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI S.S. GODARA, JM & DR. A.L.SAINI, AM ITA NO.1027/KOL/2017 M/S ABCI CHARITABLE TRUST C/O ABCI INFRASTRUCTURES PVT. LTD. ROOM NO.4, 6 TH FLOOR, 2/7, SARAT BOSE ROAD, KOLKATA-700020. VS. C.I.T.(EXEMPTION), KOLKATA 10B, MIDDLETON ROW, 6 TH FLOOR, KOLKATA-700071. ./ ./PAN/GIR NO. : AAFTA 3869 G ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI M. D. SHAH RESPONDENT BY : SHRI A.K. TIWARI, CIT DR / DATE OF HEARING : 12/07/2018 /DATE OF PRONOUNCEMENT: 03/10/2018 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, IS DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (EXEMPTIONS) KOLKATA DATED 21.03.2017, REJECTING APPROVAL OF ASSESSEE U/S 80G OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE BRIEF FACTS QUA THE ISSUE ARE THAT THE ASSESSEE TRUST, M/S. ABCI CHARITABLE TRUST CAME INTO EXISTENCE, ON 09.10.2015, (VIDE DEED OF TRUST). THE AFORESAID TRUST FILED AN APPLICATION IN FORM 10G FOR APPROVAL FOR EXEMPTION U/S 80G OF THE INCOME TAX ACT ON 30.11.2016. THE LD. CIT(EXEMPTIONS) REJECTED THE APPROVAL U/S 80G OF THE ACT OBSERVING THE FOLLOWING: THE HEARING WAS ATTENDED SHRI VIKRAM DUDHORIA (A/R). DURING HEARING DATED 21-03-2017, SPECIFIC QUESTIONS WERE ASKED REGARDING WHY THE TRUST NEEDS APPROVAL U/S 80G. THE CASE WAS DISCUSSED WITH SHRI VIKRAM DUDHORIA. AFTER THE DISCUSSIONS, I AM OF THE OPINION THAT, THIS IS NOT A FIT CASE FOR APPROVAL U/S 80G OF THE INCOME-TAX ACT. BECAUSE OF THE REASONS MENTIONED ABOVE, THE APPLICATION FOR APPROVAL U/S 80G IS REJECTED. THIS IS ALSO HELD THAT, THE APPLICANT SOCIETY IS NOT APPROVED FOR EXEMPTION TO DONATIONS U/S 80G OF THE INCOME-TAX ACT, 1961 M/S ABCI CHARITABLE TRUST ITA NO.1027/KOL/2017 2 3. AGGRIEVED BY THE ORDER OF THE LD. CIT(EXEMPTIONS), KOLKATA, THE ASSESSEE IS IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GRIEVANCES: 01.THAT THE ORDER PASSED BY THE LEARNED CIT (EXEMPTIONS), KOLKATA REJECTING APPROVAL U/S 80G OF THE I.T. ACT, 1961 IS BAD IN LAW. 02. THAT THE LEARNED CIT (EXEMPTIONS), KOLKATA ERRED IN LAW AS WELL AS IN FACTS OF THE CASE BY NOT PROVIDING THE ASSESSEE REASONABLE OPPORTUNITY OF BEING HEARD. 03. THAT THE LEARNED CIT (EXEMPTIONS), KOLKATA ERRED IN LAW AS WELL AS IN FACTS OF THE CASE BY REJECTING THE APPLICATION FILED BY ASSESSEE FOR APPROVAL U/S 80G OF THE I.T. ACT, 1961 WITHOUT PROVIDING ANY PROPER REASONS FOR REJECTING THE SAME AND NOT PASSING A SPEAKING ORDER. 04.THAT THE APPELLANT CRAVES LEAVE TO ADD/OR AMEND ANY GROUND OF THIS APPEAL. 4. MR. M.D. SHAH, THE LD. COUNSEL FOR THE ASSESSEE BEGINS BY POINTING OUT THAT REGISTRATION OF THE ASSESSEE TRUST IS EFFECTIVE, WHICH WAS GRANTED EARLIER TO THE ASSESSEE UNDER SECTION 12A OF THE ACT. THAT IS, THE LD. CIT(EXEMPTIONS) HAS NOT CANCELLED THE REGISTRATION OF THE TRUST, HOWEVER REJECTED THE ASSESSEES APPLICATION U/S 80G OF THE ACT, WITHOUT ASSIGNING ANY REASON AND WITHOUT PASSING A SPEAKING ORDER. THEREFORE THE LD. COUNSEL FOR THE ASSESSEE PRAYED BEFORE THE BENCH THAT NECESSARY DIRECTION SHOULD BE GIVEN TO THE LD. CIT(EXEMPTIONS) TO GRANT APPROVAL U/S 80G OF THE ACT. 5. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE SEEMS TO BE FAIRLY AGREED WITH THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE. 6. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE HAVE GONE THROUGH THE ORDER OF LD CIT(EXEMPTIONS ) AND WE NOTE THAT THE LD. CIT(EXEMPTIONS) HAD NOT DISCUSSED THE CASE WITH THE AUTHORIZED REPRESENTATIVE (AR) OF THE ASSESSEE AND EVEN DID NOT MENTION ANY REASON IN HIS ORDER THAT HOW AND WHY HE HAD DENIED THE APPROVAL UNDER SECTION 80G OF THE ACT. THE LD. CIT(EXEMPTIONS) SIMPLY STATED, THAT THE ASSESSEES CASE IS NOT A FIT CASE FOR APPROVAL U/S 80G OF THE ACT. THEREFORE, IT SEEMS TO US THAT ORDER PASSED BY THE LD CIT( EXEMPTIONS ) IS A NON- SPEAKING M/S ABCI CHARITABLE TRUST ITA NO.1027/KOL/2017 3 ORDER WITHOUT ASSIGNING ANY REASONS AND HENCE IT IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 7. WE NOTE THAT ORDER OF THE LD. CIT(EXEMPTIONS) IS NOT A SPEAKING ORDER, AS THE SAID IMPUGNED ORDER DOES NOT DEAL WITH THE MERITS OF THE ASSESSEES CASE. HOW AND WHY THE ASSESSEES CASE IS NOT FIT FOR APPROVAL U/S 80G OF THE ACT, HAS NOT BEEN DEALT WITH BY THE LD CIT (EXEMPTIONS). THEREFORE, WE CONSIDER IT A GROSS NEGLIGENCE ON PART OF THE CIT(EXEMPTIONS), AS HE DID NOT BOTHER TO BRING ON RECORD THE COGENT EVIDENCE AND THE MATERIAL TO PROVE THAT THE ASSESSEES CASE IS NOT FIT FOR APPROVAL U/S 80G OF THE ACT. THEREFORE, WITHOUT BRINGING ANY COGENT EVIDENCE ON RECORD AND TO REJECT THE ASSESSEES APPLICATION FOR APPROVAL U/S 80G OF THE ACT IS NOTHING BUT VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. FOR THAT WE RELY ON THE JUDGMENT OF THE COORDINATE BENCH OF KOLKATA TRIBUNAL IN THE CASE OF SARASWATI SEWA NYAAS IN ITA NOS. 1595 & 1596/KOL/2017, FOR A.Y.2017-18 ORDER DATED 16.05.2018, WHEREIN IT WAS HELD THAT CIT(EXEMPTIONS) REJECTED THE GRANT OF REGISTRATION OF THE ASSESSEE U/S 12A WITHOUT ASSIGNING ANY REASON AND ALSO DENIED APPROVAL U/S 80G OF THE ACT WITHOUT BRINGING ANY COGENT EVIDENCE ON RECORD. THEREFORE, THE COORDINATE BENCH HAS DIRECTED THE CIT(EXEMPTIONS) TO GRANT REGISTRATION TO THE ASSESSEE U/S 12A OF THE ACT AND ALSO DIRECTED THE CIT(EXEMPTION) TO GRANT APPROVAL TO THE ASSESSEE U/S 80G OF THE ACT. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DIRECT THE LD. CIT(EXEMPTIONS) TO GRANT APPROVAL U/S 80G OF THE ACT IN ACCORDANCE WITH LAW. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 03.10.2018. SD/- (S.S.GODARA) SD/- (DR. A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED: 03/10/2018 RG, SPS M/S ABCI CHARITABLE TRUST ITA NO.1027/KOL/2017 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- M/S ABCI CHARITABLE TRUST 2. / THE RESPONDENT.- C.I.T.(EXEMPTIONS), KOLKATA 3. ( ) / THE CIT(A)- KOLKATA. 4. / CIT- KOLKATA. 5. , , / DR, ITAT, KOLKATA 6. [ / GUARD FILE. //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA .