Borisu Sesang Foundation, Gurgaon V. CIT(E), Chandigarh

ITA 1392/DEL/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4515 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 27-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY GOYAL
• Keywords: Charitable institution; Opportunity of being heard; Set aside
• Section: 80G; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES A : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA.NO.1392/DEL./2018 UNDER SECTION 80G(5)(VI) OF I.T. ACT M/S. BORISU SESANG FOUNDATION, E-83, GROUND FLOOR, SECTOR-54, SUNCITY, GURGAON, HARYANA. PIN -122 002 PAN AAGCB7273F [ VS. THE COMMISSIONER OF INCOME TAX (EXEMPTIONS), C.R. BUILDING, 5 TH FLOOR, SECTOR-17E, CHANDIGARH. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI MANOJ KUMAR, C.A. FOR REVENUE : SHRI SANJAY GOYAL, CIT - DR DATE OF HEARING : 21 .10.2020 DATE OF PRONOUNCEMENT : 21 .10.2020 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(E), CHANDIGARH, DATED 28.12.2017, REJECTING THE APPLICATION UNDER SECTION 80G(5)(VI) OF THE I.T. ACT, 1961. 2 ITA.NO.1392/DEL./2018 M/S. BORISU SESANG FOUNDATION,GURGAON,HARYANA. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVE OF BOTH THE PARTIES THROUGH VIDEO CONFERENCING AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED AN APPLICATION IN PRESCRIBED FORMAT ON 01.06.2017 FOR APPROVAL UNDER SECTION 80G OF THE I.T. ACT, 1961. THE COMPANY WAS INCORPORATED ON 27.05.2016. THE REGISTRATION UNDER SECTION 12AA OF THE ACT WAS GRANTED TO THE ASSESSEE VIDE ORDER DATED 27.03.2017. THE LD. CIT(E) NOTED THAT FOR APPROVAL UNDER SECTION 80G(5)(VI), THE FIRST AND FOREMOST REQUIREMENT WHICH THE INSTITUTION OR FUND HAS TO SATISFY IS THAT IT IS ESTABLISHED IN INDIA FOR CHARITABLE PURPOSES. THE OBJECTS OF THE SOCIETY SHALL HAVE TO BE CONSIDERED AS PER THE MEMORANDUM OF THE SOCIETY. THE LD. CIT(E) ACCORDINGLY ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE DATED 13.11.2017 ASKING FOR CERTAIN INFORMATION WHICH IS NOTED IN PARA-3 OF THE IMPUGNED ORDER. THE ASSESSEE FILED DETAILED REPLY. THE LD. CIT(E) ISSUED FURTHER SHOW CAUSE LETTER ON 13.12.2017 THROUGH EMAIL ASKING FOR FURTHER INFORMATION WITH REGARD TO USE OF THE DONATION ETC., AND TO PROVIDE DOCUMENTARY 3 ITA.NO.1392/DEL./2018 M/S. BORISU SESANG FOUNDATION,GURGAON,HARYANA. EVIDENCE IN THIS REGARD. THE ASSESSEE WAS REQUIRED TO FILE INFORMATION AND DETAILS BY 20.12.2017 WHICH ASSESSEE HAS FILED REPLY THROUGH EMAIL ON 20.12.2017. THE LD. CIT(E) FURTHER REQUESTED THE ASSESSEE TO SUBMIT REPLY/CLARIFICATION /REBUTTAL WITH REGARD TO THE ITEMS CLAIMED TO BE PERUSED AS ACTIVITIES DO NOT GET REFLECTED IN THE INCOME AND EXPENDITURE STATEMENT. THE ASSESSEE WAS REQUIRED TO SUBMIT REPLY. HOWEVER, THERE WERE NO RESPONSE TO THIS QUERY TILL PASSING OF THE ORDER. THE LD. CIT(E) CONSIDERING IT TO BE NON- COMPLIANCE ON THE PART OF THE ASSESSEE NOTED THAT ASSESSEE IS NOT INTERESTED IN PURSUING THE MATTER, THEREFORE, APPLICATION FOR APPROVAL UNDER SECTION 80G WAS REJECTED VIDE IMPUGNED ORDER. 4. LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT IN RESPONSE TO THE SHOW CAUSE NOTICES ISSUED BY LD. CIT(E), ASSESSEE TIME TO TIME FILED THE REPLIES THROUGH EMAIL AND EVEN THE LAST REPLY WAS FILED ON 27.12.2017, COPY OF WHICH IS FILED AT PAGE-129 OF THE PB WHICH WAS SENT THROUGH EMAIL DATED 29.12.2017. HE HAS SUBMITTED THAT ALL THE 4 ITA.NO.1392/DEL./2018 M/S. BORISU SESANG FOUNDATION,GURGAON,HARYANA. DOCUMENTARY EVIDENCES ON RECORD HAVE NOT BEEN CONSIDERED BY THE LD. CIT(E). 5. ON THE OTHER HAND, LD. D.R. SUBMITTED THAT IN VIEW OF THE ABOVE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE, THE MATTER MAY BE REMANDED TO LD. CIT(E) FOR RE- CONSIDERATION OF THE ISSUE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE IMPUGNED ORDER SHOWS THAT WHATEVER QUERY WAS RAISED BY THE LD. CIT(E) HAVE BEEN RESPONDED TO BY THE ASSESSEE. IT IS NOT IN DISPUTE THAT ASSESSEE HAS BEEN GRANTED REGISTRATION UNDER SECTION 12AA OF THE I.T. ACT. THUS, IT IS CLEAR FROM THE REGISTRATION GRANTED UNDER SECTION 12AA OF THE I.T. ACT THAT OBJECTS OF THE ASSESSEE WERE CHARITABLE IN NATURE AND ASSESSEE HAS BEEN DOING SOME ACTIVITIES. HOWEVER, ON THE LAST DATE OF HEARING THE LD. CIT(E) CALLED FOR CERTAIN EXPLANATION AND DETAILS WITH REGARD TO ACTIVITIES WHICH ACCORDING TO THE LEARNED COUNSEL FOR THE ASSESSEE HAVE BEEN SENT VIDE LETTER DATED 27.12.2017 THROUGH EMAIL ON 29.12.2017. HOWEVER, THE LD. CIT(E) HAS PASSED THE 5 ITA.NO.1392/DEL./2018 M/S. BORISU SESANG FOUNDATION,GURGAON,HARYANA. IMPUGNED ORDER PRIOR TO IT ON 28.12.2017. THUS, IT WOULD SHOW THAT ASSESSEE WAS INTERESTED IN PURSUING THE MATTER AND THERE WAS NO JUSTIFICATION FOR THE LD. CIT(E) TO HOLD THAT ASSESSEE IS NOT INTERESTED IN PURSUING THE MATTER. COPY OF THE EMAIL OF THE O/O. LD. CIT(E) DATED 22.12.2017 IS FILED AT PAGE-128 OF THE PB IN WHICH EVEN NO DATE HAVE BEEN GIVEN FOR MAKING THE COMPLIANCE. THEREFORE, THERE WERE NO JUSTIFICATION TO PASS THE IMPUGNED ORDER ON 28.12.2017 BEFORE WAITING FOR THE REPLY OF THE ASSESSEE WHICH ASSESSEE HAS ULTIMATELY FILED ON 29.12.2017. THUS, THE FACTS CLEARLY SHOW THAT THE MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF THE LD. CIT(E) BECAUSE THE DOCUMENTARY EVIDENCE OR RECORD HAVE NOT BEEN CONSIDERED AND APPRECIATED BY HIM. IN VIEW OF THE ABOVE DISCUSSION, WE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER IN ISSUE TO THE FILE OF LD. CIT(E), CHANDIGARH WITH A DIRECTION TO RE-DECIDE THE MATTER IN ISSUE IN ACCORDANCE WITH LAW, BY GIVING REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6 ITA.NO.1392/DEL./2018 M/S. BORISU SESANG FOUNDATION,GURGAON,HARYANA. 7. IN THE RESULT, APPEAL OF THE ASSESSEE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRASHANT MAHARISHI) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 21 ST OCTOBER, 2020 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT A BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.