Rotary Flamingo Charitable Trust, Bhuj V. The Commissioner of Income Tax (Exemption), Ahmedabad

ITA 1134/AHD/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6061 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 02-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Keywords: Charitable institution
• Section: 11A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ITA NO. 1134/AHD/2016 (ASSESSMENT YEAR: NA) ROTARY FLAMINGO CHARITABLE TRUST, 10, ACCORD HOSPITAL, MUNDRA ROAD, BHUJ 370001 APPELLANT VS. THE CIT (EXEMPTIONS), AHMEDABAD RESPONDENT PAN: AAATR8928A /BY ASSESSEE : ASTHA MANIAR, A.R. /BY REVENUE : SHRI V. K. SINGH, SR. D.R. /DATE OF HEARING : 21.02.2018 /DATE OF PRONOUNCEMENT : 23.02.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL ARISES AGAINST THE CIT(EXEMP TIONS), AHMEDABADS ORDER DATED 18.09.2015, IN CASE NO. CIT(E)/AHD/12AA /961/2015-16, REJECTING ITS REGISTRATION APPLICATION U/S.12AA OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. ITA NO. 1134/AHD/16 [ROTARY FLAMINGO CHARITABLE TRU ST VS. CIT(EXEMPTIONS)] - 2 - 2. IT EMERGES AT THE OUTSET THAT THE LEARNED CIT(EX EMPTIONS) HAS HELD THAT THE ASSESSEE HAS NOT FILED THE RELEVANT DETAILS IN SUPP ORT OF ITS ABOVESTATED REGISTRATION APPLICATION AS UNDER: ORDER UNDER SECTION 12AA OF THE INCOME-TAX ACT. 196 1 THE APPLICATION FOR REGISTRATION OF THE TRUST U/S 1 2AA OF THE INCOME-TAX ACT WAS RECEIVED ON 31.03.2015 BY THIS OFFICE IN FORM NO.LO A UNDER RULE 11A A OF THE ACT ALONG WITH REGISTRATION CERTIFICATE OF CHARITY COMM ISSIONER. THE LIST OF THE OBJECTS OF THE TRUST INCLUDES MANY ACTIVITIES. 2. A LETTER DATED 07.05.2015 WAS ISSUED TO THE AP PLICANT TO FURNISH DETAILED NOTE ON THE ACTIVITIES ACTUALLY CARRIED OUT BY THE TRUST AS WELL AS THE FOLLOWING DOCUMENTS / DETAILS: 1. PLEASE GIVE DETAILS OF INSTITUTION BEING RUN/PRO POSED TO BE RUN BY YOUR TRUST. 2. PLEASE FURNISH NAME AND ADDRESS OF BRANCHES, IF ANY. 3. PLEASE STATE WHETHER JURISDICTION OVER THE CASE VEST WITH CIT(E)/AHMEDABAD WITH DETAILS OF WARD/CIRCLE WHERE YOU ARE FILING RE TURN OF INCOME. 4. CERTIFIED COPY OF TRUST DEED /M.O.A., IF IT IS N OT IN ENGLISH THEN CERTIFIED ENGLISH TRANSLATION ALSO. 5. COPY OF PAN CARD OF TRUSTEES WITH DETAILS OF CIR CLE/WARD WHERE THEY ARE FILING RETURN OF INCOME. 6. PLEASE STATE WHETHER AREA OF OPERATION OF YOUR A CTIVITIES MENTIONED IN THE DEED ?(NOTE: AREA OF OPERATION SHOULD BE WITHIN IND IA) 7. PLEASE SUBMIT LIST OF MAIN OBJECTS OF THE TRUST AND SPECIFY LIKE RELIGIOUS, RELIEF OF THE POOR, EDUCATION, MEDICAL RELIEF ,ETC. , AND ANY OTHER OBJECTS OF GENERAL PUBLIC UTILITY, IF ANY. 8. PLEASE CLARIFY WHETHER ANY OF THE OBJECTS IS REL IGIOUS IN NATURE ?(MENTION THE NUMBER OF THE CLAUSE AND PAGE NUMBER OF THE DEE D.) 9. PLEASE ALSO CLARIFY WHETHER ANY OF THE OBJECTS I S NEITHER RELIGIOUS NOR CHARITABLE ?(MENTION THE NUMBER OF THE CLAUSE AND P AGE NUMBER OF THE DEED ?) 10. PLEASE STATE WHETHER THE OBJECTS OF THE TRUST ARE FOR ANY PARTICULAR CASTE, CREED, RELIGION OR COMMUNITY. 11. WHETHER DEED CONTAINS INVESTMENT CLAUSE? IF NOT, THEN FURNISH DECLARATION U/S. 11(5) OF THE I.T.ACT? 12. PLEASE STATE WHETHER DEED CONTAINS AMENDMENT/A LTERATIONS CLAUSE? (TO BE AMENDED WITH THE APPROVAL OF PR.CIT(EXEMPTION), AHM EDABAD. 13. PLEASE SPECIFY THE CLAUSE IN TRUST DEED REGARD ING REVOCABILITY OR IRREVOCABILITY. 14. PLEASE STATE WHETHER DEED CONTAINS UTILIZATIO N CLAUSE? (SPECIFYING THAT THE PROFITS ARE TO BE USED ONLY FOR THE OBJECTS OF THE TRUST.) 15. PLEASE SPECIFY THE CLAUSE IN THE TRUST DEED W HICH SAYS THAT BENEFICIARIES WOULD BE WITHOUT DISCRIMINATION ON THE BASIS OF CAS TE, CREED, RELIGION OR SEX AND NOT FOR SPECIFIC INDIVIDUALS. ITA NO. 1134/AHD/16 [ROTARY FLAMINGO CHARITABLE TRU ST VS. CIT(EXEMPTIONS)] - 3 - 16. PLEASE STATE ANY PART OF TRUST PROPERTY OR I NCOME IS USED OR APPLIED OR ENSURES DIRECTLY OR INDIRECTLY FOR THE BENEFIT OF A NY PERSON SPECIFIED U/S.13(3) OF THE IT. ACT? 17. COPY OF BANK ACCOUNT SINCE INCEPTION OF TRU ST OR LAST THREE YEARS. 18. DETAILS OF DONATIONS RECEIVED OR PAID AND C ONFIRMATION/PAN OF THE DONORS. 19. DETAILS OF MOVABLE & IMMOVABLE ASSETS HELD AS ON DATE. 20. PLEASE GIVE DETAILS OF PREMISES OF TRUST WHE THER PREMISES OWNED BY THE TRUST OR RENTED. WHETHER NOC FROM THE PREMISES OWNE R IS OBTAINED OR RENTAL AGREEMENT IS ENCLOSED. 21. PLEASE SUBMIT DOCUMENTARY EVIDENCES OF ACTUAL CHARITABLE ACTIVITIES CARRIED OUT BY THE TRUST FROM THE DATE OF INCEPTION OF TRUS T TILL DATE. 22. WHETHER REGISTRATION U/S.-12AA HAS BEEN REFU SED/REJECTED EARLIER? IF SO, STATE BRIEFLY THE REASONS FOR SUCH REFUSAL/REJECTIO N. 23. PLEASE SUBMIT COPY OF AUDITED ACCOUNTS LIKE COPY OF RECEIPT AND PAYMENT A/C., INCOME & EXPENDITURE A/C, BALANCE SHEET, FOR THREE YEARS OR FROM THE DATE OF CREATION TILL DATE, WHICHEVER IS LESS. 24. PLEASE GIVE DETAILS AS TO HOW THE TRUST GENER ATES FUNDS FOR ACHIEVING THE OBJECT OF TRUST. 25. PLEASE SUBMIT EVIDENCES THAT THE CORPUS AMOUN T HAS BEEN TRANSFERRED TO THE TRUST/INSTITUTION. 26. PLEASE SPECIFY THAT THE TRUST IS IN RECEIPT O F AMOUNTS MENTIONED IN FIRST PROVISO TO SECTION 2(15)OF THE I.T. ACT. 27. COPY OF CERTIFICATE OF UNDERTAKING? 28. COPY OF CERTIFICATE U/S. 13(1) (C) OF THE I. T.ACT? 29. FURTHER, IT IS SEEN THAT AS PER TRUST DEED THE DISSOLUTION CLAUSE IS NOT PROPER/ NOT THERE. THE ABOVE-MENTIONED INQUIRY ABOUT THE ACTUAL ACTIVI TIES OF THE TRUST IS NECESSARY IN VIEW OF THE MANDATORY PROVISIONS OF TH E PROCEDURE FOR REGISTRATION U/S 12AA ACCORDING TO WHICH THE CIT (EXEMPTION) 'SHALL (III) CALL FOR SUCH DOCUMENTS OR INFORMATION FROM T HE TRUST OR INSTITUTION AS LIE THINKS NECESSARY IN ORDER TO SATISFY HIMSELF ABOUT THE GENUINENESS OF ACTIVITIES OF THE TRUST OR INSTITUTION AND MAY ALSO MAKE SUCH INQUIRIES AS HE MAY DEEM NECESSARY IN THIS BEHALF; AND (JJJ) AFTER SATISFYING HIMSELF ABOUT THE OBJECTS OF THE TRUST OR INSTITUTION AND THE GENUINENESS OF ITS ACTIVITIES, HE - (KKK) SHALL PASS AN ORDER IN WRITING REGISTERING TH E TRUST OR INSTITUTION; (D) SHALL, IF HE IS NOT SO SATISFIED, PASS AN ORDER IN WRITING REFUSING TO REGISTER THE TRUST OR INSTITUTION, AND A COPY OF SUCH ORDER SHALL BE SENT TO THE APPLICANT: PROVIDED THAT NO ORDER UNDER SUB-CLAUSE (II) SHALL BE PASSED UNLESS THE APPLICANT HAS BEEN GIVEN A REASONABLE OPPORTUNITY O F BEING HEARD.' 3. HOWEVER, ON GIVEN DATE, NEITHER APPLICAN T ATTENDED THE OFFICE NOR FURNISHED ANY DETAILS/ DOCUMENTS NOR SOUGHT ANY ADJOURNMENT. 4. HOWEVER, WITH A VIEW TO GIVE ONE MORE OPPORTUNIT Y OF BEING HEARD TO THE APPLICANT, ANOTHER LETTER MARKED 'FINAL OPPORTUNITY WAS ISSUED TO THE ITA NO. 1134/AHD/16 [ROTARY FLAMINGO CHARITABLE TRU ST VS. CIT(EXEMPTIONS)] - 4 - APPLICANT ON 24.07.2015 REQUIRING THE DETAILS/ DOCU MENTS AS MENTIONED THEREIN. IT WAS STATED WITHOUT ANY AMBIGUITY IN THE SAID LETTER THAT FAILURE TO COMPLY WITH THE SAID LETTER WILL ENTAIL REJECTION O F ITS APPLICATION UNDER REFERENCE. THIS LETTER ALSO FAILED TO EVOKE ANY RES PONSE FROM THE APPLICANT. THEREFORE, IN THE ABSENCE OF COMPLETE DETAILS/ DOCU MENTS, IT IS NOT POSSIBLE TO SATISFY ABOUT THE GENUINENESS OF THE ACTIVITIES OF THE ABOVE TRUST OR THE SAME BEING CARRIED OUT IN ACCORDANCE WITH THE OBJEC TS OF THE TRUST. 5. LOOKING TO THE ABOVE FACTS, I AM UNABLE TO ARRIV E AT THE SATISFACTION OF THE GENUINENESS OF THE ACTIVITIES. HENCE, THE APPLICATI ON FILED IN FORM NO.10A FOR THE APPROVAL U/S. 12AA OF THE INCOME-TAX ACT, I S REJECTED. 3. LEARNED COUNSEL REPRESENTING ASSESSEE REFERS TO THE RELEVANT STATEMENT OF FACTS PLEADING THEREIN THAT FATHER OF THE MANAGING TRUSTEE AND PRESIDENT HAD DEMISED AT THE TIME WHEN THE REGISTRATIONS CASE WAS FIXED BEFORE CIT(EXEMPTIONS). HE STATED TO HAVE FILED FOR ADJOURNMENT APPLICATION AS WELL. LEARNED COUNSEL ATTRIBUTES LACK OF PROPER COMMUNICATION BETWEEN THE ASSESSEE A ND THE RELEVANT DATE OF HEARING IN REGISTRATION PROCEEDINGS AS THE MAIN CASE FOR NO T HAVING BEEN ABLE TO FILE THE RELEVANT DETAILS ON RECORD. SHE INFORMS US THAT TH E ASSESSEE IS VERY MUCH INTERESTED IN PURSUING ITS REGISTRATION PLEA BEFORE THE CIT(EX EMPTIONS). SHE HAS ALSO FILED A DETAILED COMPILATION OF ALL THE RELEVANT DETAILS CO MPRISING OF FORWARDING LETTER OF REGISTRATION APPLICATION, FORM 10A, COPY OF MEMORAN DUM AND REQUEST OF ASSOCIATION OF THE TRUST, CHARITY COMMISSIONERS BH UJS CERTIFICATE, PAN CARD, NOTICE DATED 07.05.2015, ADJOURNMENT APPLICATION SE NT THROUGH COURIER, ITS TRACKING DETAIL, DEATH CERTIFICATE OF FATHER OF THE MANAGING TRUSTEE, REPLY OF NOTICE DATED 07.05.2015 (WHICH COULD NOT BE FILED), COPY OF ENQU IRY APPLICATION DATED 05.01.2016 AND REQUEST LETTER SEEKING COPY OF THE I MPUGNED ORDER; RESPECTIVELY. THE ABOVE DETAILS IN SUPPORT OF ASSESSEES REGISTRA TION APPLICATION NEED TO BE EXAMINED IN DETAIL IN CORRESPONDING PROCEEDINGS. L EARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE CORRECTNESS THEREOF AT THIS STAGE. WE THUS DEEM IT APPROPRIATE TO OBSERVE THAT LARGER INTEREST OF JUST ICE WOULD NOT BE MET IN CASE LEARNED CIT(EXEMPTIONS) TAKES ON RECORD ALL THESE D ETAILS AND PASSES A FRESH ORDER AS PER LAW AFTER AFFORDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE MAKE IT CLEAR THAT IT SHALL BE INCUMBENT ON THE ASSESSEE TO OBTAIN A COPY OF OUR INSTANT ORDER AND SEND THE SAME ALONGWITH THE ABOVE CASE RE CORDS TO THE FILE OF LEARNED ITA NO. 1134/AHD/16 [ROTARY FLAMINGO CHARITABLE TRU ST VS. CIT(EXEMPTIONS)] - 5 - CIT(EXEMPTIONS) WITHIN A PERIOD OF EIGHT WEEKS OF T HE DATE OF THE RECEIPT OF THE CERTIFIED COPY OF THIS ORDER FAILING WHICH OUR DIRE CTIONS WOULD STAND VACATED. 4. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. [PRONOUNCED IN THE OPEN COURT ON THIS T HE 23 RD DAY OF FEBRUARY, 2018.] SD/- SD/- ( PRADIP KUMAR KEDIA ) (S. S. G ODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 23/02/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0