Ganesh Memorial Trust, Kanpur V. Commissioner of Income Tax (Exemption), Lucknow

ITA 133/LKW/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1779 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 22-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J S MINHAS
• Assessee Lawyers: DEVASHISH MEHROTRA
• Keywords: Charitable institution; Opportunity of being heard; Reasonable cause
• Section: 80G; 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO. 133/LKW/2017 ASSESSMENT YEAR: N.A. GANESH MEMORIAL TRUST 113/216 - B, SWAROOP NAGAR KANPUR V. CIT (EXEMPTIONS) LUCKNOW T AN /PAN : AACTG2436L (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI DEVASHISH MEHROTRA, ADVOCATE RESPONDENT BY: SHRI J.S. MINHAS, CIT (DR) DATE OF HEARING: 21 08 201 8 DATE OF PRONOUNCEMENT: 31 08 201 8 O R D E R PE R P ARTHA SARATHI CHAUDHURY, J.M : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. COMMISSIONER OF INCOME - TAX (EXEMPTION), LUCKNOW DATED 13/10/2016 ON THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE LD COMMISSIONER OF INCOME TAX, EXE MPTIONS HAS ERRED IN LAW IN NOT APPRECIATING THAT TRUST WAS DULY REGISTERED U/S. 12A OF THE INCOME TAX WHO APPLIED FOR REGISTRATION U/S. 80G ON 22.04.2016 AND FOR THE FIRST TIME NOTICE DATED 08.09.2016 WAS ISSUED TO COMPLY ON 13.10,2016 BUT IN FACT NO SUCH NOTICE HAD EVER BEEN SERVED. 2. THAT THE LD COMMISSIONER OF INCOME TAX, EXEMPTIONS HAS FURTHER ERRED IN LAW AS WELL AS ON FACTS IN NOT ALLOWING PROPER OPPORTUNITY OF BEING HEARD TO EXPLAIN ITS CASE IN ANY WAY. ITA NO.133/LKW/2017 PAGE 2 OF 4 3. THAT THE LD COMMISSIONER OF INCOME TAX, E XEMPTIONS HAS FURTHER ERRED IN LAW THAT DURING THE COURSE OF THE PROCEEDINGS U/S. 12A OF THE ACT FULL DETAILS AND EVIDENCES WERE FILED IN ORDER TO PROVE THAT THE TRUST IS CHARITABLE BEFORE THE SAME AUTHORITY 4 . THAT THE LD COMMISSIONER OF INCOME TAX, EXEMP TIONS HAS FURTHER ERRED IN LAW AS WELL AS ON FACTS IN NOT APPRECIATING THAT SINCE THE TRUST IS REGISTERED U/S. 12A OF THE INCOME TAX THE OBJECT OF THE TRUST IS VERY WELL ESTABLISHED AND WHILE EXAMINING/ALLOWING EXEMPTION U/S. 80G NOTING GOES AGAINST THE OB JECTS OF THE TRUST AND CHARITABLE PURPOSE FOR WHICH THE TRUST WAS SET OUT. 5. THAT THE ORDER OF LD COMMISSIONER OF INCOME TAX, EXEMPTIONS IS BAD IN LAW AND I S LIABLE TO BE VACATED. 2 . THE CRUX OF THE GRIEVANCE OF THE ASSESSEE IN THESE GROUNDS OF APPEAL IS RE JECTION OF APPLICATION OF THE ASSESSEE - SOCIETY FOR EXEMPTION UNDER SECTION 80G(5) OF THE ACT. 3 . AT THE OUTSET, WE FIND THAT THERE IS A DELAY OF 58 DAYS IN FILING OF THIS APPEAL, FOR WHICH AN APPLICATION HAS BEEN FILED BY THE ASSESSEE FOR CONDONING THE DELAY IN FILING OF THE APPEAL. WE HAVE HEARD BOTH THE PARTIES AND WE ARE CONVINCED THAT THERE WAS REASONABLE CAUSE FOR DELAY IN FILING OF THE APPEAL, THEREFORE, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 4 . THE LD. A.R. OF THE ASSESSEE AT THE TIME OF H EARING SUBMITTED THAT THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME - TAX (EXEMPTION) IS AN EX - PARTE ORDER AND PROPER OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE TO REPRESENT ITS CASE BEFORE THE LD. COMMISSIONER OF INCOME - TAX (EXEMPTIONS). LD. A.R. OF THE ASSESSEE FURTHER SUBMITTED THAT ASSESSEE IS REGISTERED UNDER SECTION 12AA OF THE ACT AND WHILE GETTING REGISTRATION UNDER SECTION 12AA OF THE ACT , ASSESSEE HAD SUBMITTED ALL THE RELEVANT DETAILS AND DOCUMENTARY ITA NO.133/LKW/2017 PAGE 3 OF 4 EVIDENCES BEFORE THE LD. COMMISSIONER OF INCOME - TAX (EXEMPTIONS) WHICH GOES ON TO SHOW THE CHARITABLE ACTIVITIES BEING CONDUCTED BY THE ASSESSEE - TRUST. HE FURTHER SUBMITTED THAT IF AN OPPORTUNITY IS GIVEN BEFORE THE LD. COMMISSIONER OF INCOME - TAX (EXEMPTION) , ASSESSEE CAN DEMONSTRATE ON MERIT T HE CHARITABLE NATURE AND ACTIVITIES OF THE ASSESSEE - TRUST. LD. D.R. CONCEDED TO THE PRAYER MADE BY THE LD. A.R. OF THE ASSESSEE. 5 . WE HAVE PERUSED THE CASE RECORDS, HEARD THE CONTENTIONS OF THE PARTIES AND WE FIND THAT ASSESSEE - TRUST HAS FILED AN APPLICATIO N FOR EXEMPTION UNDER SECTION 80G(5) OF THE ACT. BEFORE THE LD. COMMISSIONER OF INCOME - TAX (EXEMPTIONS) , ASSESSEE - TRUST WAS PROVIDED AN OPPORTUNITY OF BEING HEARD VIDE OFFICE LETTER DATED 8/9/2016 SENT TO THE ADDRESS PROVIDED BY THE ASSESSEE VIA SPEED POS T CALLING SPECIFIC QUERIES REGARDING ITS APPLICATION FOR APPROVAL UNDER SECTION 80G OF THE ACT FOR COMPLIANCE ON 13/10/2016 WHICH WAS DULY SERVED ON THE ASSESSEE ON 16/9/2016 AS CONFIRMED BY THE INDIA POST. HOWEVER, ON THE SAID DATE I.E. 13/10/2016 , NO ON E APPEARED NOR ANY APPLICATION FOR ADJOURNMENT WAS FILED. THE LD. COMMISSIONER OF INCOME - TAX (EXEMPTION), THEREFORE, REJECTED THE APPLICATION FOR GRANTING APPROVAL UNDER SECTION 80G(5) OF THE ACT , ON THE BASIS OF MATERIALS AVAILABLE ON RECORD. BEFORE US, LD. A.R. OF THE ASSESSEE SUBMITTED THAT AS ON DATE THEY ARE REGISTERED UNDER SECTION 12AA OF THE ACT AND THAT THEY ARE READY TO SUBMIT THEIR CASE ON MERITS BEFORE THE LD. COMMISSIONER OF INCOME - TAX (EXEMPTION) , IF AN OPPORTUNITY IS PROVIDED, TO WHICH THE LD. D.R. DID NOT HAD ANY OBJECTION. IN THE INTEREST OF JUSTICE, WE ARE OF THE CONSIDERED VIEW THAT ONE FINAL OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO REPRESENT THEIR CASE ON MERITS BEFORE THE LD. COMMISSIONER OF INCOME - TAX (EXEMPTIONS) AND ACCORDING LY WE SET ASIDE THE ORDER OF THE LD. COMMISSIONER OF INCOME - TAX (EXEMPTIONS) AND RESTORE THE ITA NO.133/LKW/2017 PAGE 4 OF 4 MATTER BACK TO HIS FILE TO DECIDE THE ISSUE AFTER PROVIDING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 / 0 8 / 201 8 . SD/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31 ST AUGUST , 201 8 JJ: 2108 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR