Eastern UP Exporters Association, Varanasi V. CIT(E), Lucknow

ITA 135/VNS/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 6092 (ITAT-VARANASI)
• Duration Of Justice: 2 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2019-2020
• Appeal Filed On: 27-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHRIDEEPAK K GUJRATI
• Keywords: Principle of natural justice; Set aside
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CIRCUIT BENCH, VARANASI BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA No. 135/Vns/2019 Assessment Year: N.A. Eastern UP Exporters Association, B-2, Gurukripa Colony, Nadesar, Varanasi 221002, Uttar Pradesh v. The CIT(Exemption), T.C. 46-V UP State Construction& Infrastructure Development Corporation, VibhutiKhand, Gomti Nagar, Lucknow-226010, Uttar Pradesh PAN:AAATE9447R (Appellant) (Respondent) Appellant by: ShriDeepak K Gujrati CA Respondent by: ShriRamendra Kumar Vishwakarma, CITDR Date of hearing: 24.03.2022 Date of pronouncement: 24.03.2022 O R D E R PER SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER: This appeal, filed by assessee, being ITA No.135/Vns/2019, is directed against an order dated 10.06.2019 in Order No.ITBA/EXM/S/EXM1/2019- 20/1016286915(1) passed by learnedCommissioner of Income Tax (Exemption), Lucknow(hereinafter called "theCIT(E)") under Section 12AA(1)(b)(ii) of the ITA No.135/Vns/2019 Assessment Year: N.A. Eastern U.P. Exporters Association 2 Income-tax Act, 1961(hereinafter called “ the CIT(E)”) rejecting /dismissing application filed by the assessee for grant of registration u/s 12A(1).We have heard both the partiesin Open Court through physical hearing mode. 2. The brief facts of the case are that the assessee society filed an application for registration u/s. 12A(1) of the Income Tax Act, 1961 , on 18.12.2018 with ld. CIT(E), Lucknow. The ld. CIT(E) was pleased to issue notice vide letter F.No.CIT(Exemp.)/Lko/12A/N1841/2018-19/2093 dated 22.5.2019 at the address of the applicant mentioned in Form no. 10A vide speed post No.EU496558960IN calling for certain details vide enquiries in connection with the application for registration of the assessee u/s. 12A of the Act , and date of hearing was fixed for 07.06.2009. It is the averment of ld. CIT(E) in its order dated 10.06.2019 that the said notice was delivered/served to the assessee on 06.06.2019 as confirmed by India Post , and on the date of hearing i.e. on 07.06.2019 none appeared on behalf of the assessee nor any application for adjournment was received by ld. CIT(E) , and as the application of the assessee for grant of registration was getting time barred in the month of June, 2019 itself, the ld. CIT(E) was pleased to dismiss/reject the application of the assessee for registration vide order dated 10.06.2019 passed u/s. 12AA(1)(b)(ii) of the Act, because as in the considered view of ld. CIT(E) based upon material on record that the assessee was not able to produce sufficient material to corroborate charitable nature of its objects and genuineness of its activities. The ld. CIT(E) noted in its order that the only document available on record is the Memorandum of the assessee , and no books of accounts, bank statements etc. were produced by the assessee before ld. CIT(E) to arrive at decision as to whether the assessee is entitled for registration u/s 12A(1) or not. ITA No.135/Vns/2019 Assessment Year: N.A. Eastern U.P. Exporters Association 3 3. Aggrieved, the assessee has filed an appeal with Income Tax Appellate Tribunal, Varanasi Circuit Bench, Varanasi, U.P..The ld. counsel for the assesseehas submitted before the Bench that the assessee is a society and is engaged in the charitable activities of promoting exportsfrom India. The assessee has raised as many as four grounds of appeal challenging the order passed by ld. CIT(E). It is the averment of the ld. counsel for the assessee before the tribunal that no notice of hearing as claimed by ld. CIT(E) in its order was ever served to the assessee. The ld. counsel for the assessee has filed paper book with tribunal(placed on record in file) containing 34 pages in which at pagenumber 8 , the assessee has filed speed post tracking sheet in which it is coming out that the consignment No. EU496558960IN was sent back by postal authorities to Gomti Nagar, SO on 10.06.2019 and the same was never delivered to assesseeat its address at Varanasi. It was submitted by ld. Counsel for the assessee that it is clear that no notice of hearing was ever served to the assessee and it is an ex-parte order , although it is averred in the said order dated 10.06.2019 passed by ld. CIT(E) that the notice of hearing dated 22.05.2009 was sent and served to the assessee, which is factually incorrect as the assessee never received any notice of hearing from ld.CIT(E). The ld. counsel for the assessee has also filed copy of registration certificate of the assessee in the paper book along with the Memorandum of society containing its objects . It is fairly submitted by ld. Counsel for the assessee that matter may be restored back to the file of ld. CIT(E) for denovo consideration of the assessee application for registration u/s. 12A(1) of the 1961 Act. 4. The ld. CIT-DR also fairly submitted that keeping in view facts and circumstances of the case, the matter may be restored back to the file ofld. CIT(E) for de novo consideration of the application of the assessee for grant of registration u/s 12A(1) of the 1961 Act. ITA No.135/Vns/2019 Assessment Year: N.A. Eastern U.P. Exporters Association 4 5. Keeping in view the totality of the facts and circumstances of the case as enumerated above in this order, we are of the considered view that matter can be restored back to the file of ld. CIT(E) for de novo consideration of assessee’sapplication for registration u/s. 12A(1) of the Act. We have observed that only one notice was issued by ld. CIT(E) before rejecting application of the assessee for grant of registration u/s 12A(1) of the 1961 Act which is itself disputed by the assessee by bringing on record speed post tracking report in which it is demonstrated that the said notice was returned back to the consignor by postal department on 10.06.2019 , and no further notice of hearing was issued by ld. CIT(E) , before dismissing /rejecting application of the assessee for grant of registration u/s 12A(1) of the 1961 Act. Thus, under these circumstances it will be in the interest of justice and fairness to both the parties that the order dated 10.06.2019 passed by ld. CIT(E) be set aside and matter be restored back to the file of ld. CIT(E) for fresh consideration of the assessee’s application for registration u/s. 12A(1) of the 1961 Act. Both the rival parties have also submitted that keeping in view facts and circumstances of the case, the matter can be set aside and remanded back to ld. CIT(E) for fresh consideration of the application of the assessee for grant of registration u/s 12A(1) of the 1961 Act. We clarify that we have not commented on the merits of the issue and all the contentions are kept open.Needless to say that ld. CIT(E) will give proper and adequate opportunity of hearing to the assessee in set aside remand proceeding while deciding application of the assessee for grant of registration u/s 12A(1) of the 1961 Act, in accordance with the principle of natural justice and in accordance with law.The ld. CIT(E) is directed to pass reasoned and speaking order in the set aside remand proceeding while deciding application of the assessee afresh for grant of registration u/s 12A(1) of the 1961 Act. The evidences /explanations submitted by the assessee ITA No.135/Vns/2019 Assessment Year: N.A. Eastern U.P. Exporters Association 5 shall be admitted by ld. CIT(E) in accordance with law and be adjudicated on merits in accordance with law. The appeal of the assessee is allowed for statistical purposes. We order accordingly. 6. In the result, the appeal of the assessee in ITA no. 135/Vns/2019 for ay: NA is allowed for statistical purposes. Order pronounced in Open Courton24/03/2022at Varanasi, U.P. in the presence of both the parties, after the conclusion of hearing. Sd/- Sd/- [VIJAY PAL RAO] [RAMIT KOCHAR] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24/03/2022 Aks/- Copy forwarded to: 1. Appellant – Eastern UP Exporters Association, B-2, Gurukripa Colony, Nadesar, Varanasi 221002. 2. Respondent –The CIT(Exemption), T.C. 46-V UP State Construction Infrastructure Development Corporation, VibhutiKhand, Gomti Nagar, Lucknow 3. The CIT-DR, ITAT, Varanasi, U.P. 4. The CIT, Varanasi, U.P. By order Assistant Registrar ITA No.135/Vns/2019 Assessment Year: N.A. Eastern U.P. Exporters Association 6 Date Initials Original dictation pad is enclosed at the end of file 1. Draft dictated on: 24.03.2022 Sr. PS/PS 2. Draft placed before author: 24.03.2022 Sr. PS/PS 3. Draft proposed & placed before the second member: 24.03.2022 JM/AM 4. Draft discussed/approved by Second Member: JM/AM 5. Approved Draft comes to the Sr. PS/PS: .03.2022 Sr. PS/PS 6. Order pronounced on: 24.03.2022 Sr. PS/PS 7. File sent to the Bench Clerk: 25.03.2022 8. Date on which file goes to the Head Clerk: Sr. PS/PS 9. Date on which file goes to AR 10. Date of dispatch of Order: