Sankalp Seva Mission, Kolkata V. CIT(EXEMPTIONS), KOLKATA, Kolkata

ITA 1405/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4060 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 30-06-2016
• Court: TRIBUNAL
• Department Lawyers: G MALLIKARJUNA
• Assessee Lawyers: K K KHEMKA
• Section: 80G; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI A.T.VARKEY, JM & DR. A.L.SAINI, AM ./ ITA NO.1404&1405/KOL/2016 ( / ASSESSMENT YEAR: ) SANKALP SEVA MISSION, C/O MOHAN KR. MISHRA, 2, CHAITANYA SETT STREET, PO : BURRABAZR, P.S.POSTA KOL-700007 VS. CIT(EXEMPTIONS), 10B, MIDDLETON ROW, KOLKATA-700071 ./ ./PAN/GIR NO. : AAPTS 9174 G ( /APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI K.K.KHEMKA, ADVOCATE REVENUE BY : SHRI G. MALLIKARJUNA, CIT DR / DATE OF HEARING : 20/12/2016 /DATE OF PRONOUNCEMENT 28/12/2016 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED TWO APPEALS FILED BY THE ASSESSEE, AR E DIRECTED AGAINST THE ORDERS PASSED BY LD. COMMISSIONER OF IN COME TAX (EXEMPTIONS), KOLKATA, U/S.12AA OF THE I.T.ACT, & U /S 80 (G) (5)(VI) OF THE INCOME TAX ACT,1961 ( IN SHORT THE ACT) BOTH DATE D 04.05.2016. 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE ASSESSEE TRUST APPLIED FOR REGISTRATION U/S.12AA OF THE I.T.ACT BU T THE LD. CIT(E) DID NOT GRANT REGISTRATION U/S.12AA OBSERVING THE FOLLOWING S :- THE AFORESAID TRUST CAME INTO EXISTENCE VIDE TRUST DEED DULY REGISTERED FROM ADDL. REGISTRAR OF ASSURANCE-ILL, K OLKATA ON 29 TH DAY OF JULY, 2015. THE TRUST HAD FILED AN APPLICATION I N FORM 10A ON 21.01.2016 WHICH IS IN ORDER. NOTICE U/S.12AA(1)(A) WAS ISSUED ON 02.03.2016 FIXI NG THE CASE FOR HEARING ON 28.03.2016. SRI M.K. MISHRA, TRUSTEE APP EARED ON 06.04.2016 AND 04.05.2016 AND THE CASE WAS HEARD. F ROM THE DOCUMENTS SUBMITTED BY THE APPLICANT IT IS FOUND TH AT IN THE TRUST DEED CLAUSE NO.3(A) OF PAGE NO.5 IS NOT PROPER AS U NDER:- ITA NOS.1404&1405/16 SANKALP SEVA MISSION 2 PROMOTING, ESTABLISHING, EQUIPPING, ERECTING, MAIN TAIN AND/OR GRANTING ALL OR OTHER FINANCIAL ASSISTANCE T O SCHOOLS, COLLEGES, MEDICAL COLLEGE, HOSPITALS, DISPENSARIES, MATERNITY HOMES, HOSTELS, LABORATORIES, PUBLIC REST-HOUSES (W ITH OR WITHOUT FOODING FACILITIES) LIBRATES AND MEASURES. THIS CLAUSE IS NOT COVERED WITHIN THE AMBIT OF SECT ION 2(15) OF INCOME TAX ACT AS ESTABLISHING, EQUIPPING, ERECTING , MAINTAINING IS PURELY BUSINESS VENTURE. HENCE, I AM NOT SATISFIED WITH THE OBJECTS OF THE TRUST. IN VIEW OF THE ABOVE, THE APPLICATION FOR GRANT OF REGISTRATION U/S 12AA IS REJECTED. THE LD. CIT(E) ALSO DID NOT GRANT REGISTRATION U/S 80(G) (5) (VI) OF THE I.T. ACT, OBSERVING THE FOLLOWINGS: THE SOCIETY HAD ALSO FILED AN APPLICATION IN FORM 1 0A FOR REGISTRATION U/S 12AA. THE SAME WAS REJECTED VIDE ORDER NO. 10E/ 648/15-16 DATED 04.05.2016. IN VIEW OF THE ABOVE, THE APPLICATION F OR GRANT OF APPROVAL U/S 80G (5) (VI) IS REJECTED. THIS WAY, LD. COMMISSIONER OF INCOME TAX (EXEMPTION S) HAS REJECTED BOTH THE APPLICATIONS OF THE ASSESSEE. NOT BEING SA TISFIED WITH THE ORDER OF THE COMMISSIONER OF INCOME TAX ( EXEMPTIONS), THE A SSESSEE IS IN APPEAL BEFORE US. THE MAIN GRIEVANCE OF THE ASSESSE E IN BOTH THE APPEALS ARE CONFINED AS FOLLOWS: (I) THE LD CIT (E) REJECTED GRANT OF REGISTRATION U/S 12AA OF THE I.T.ACT. (II) THE LD CIT (E) REJECTED APPLICATION U/S 80G (5 ) (VI) OF THE ACT. THIS IS CONSEQUENTIAL, BECAUSE CIT(E) REJECTED GRANT OF REGISTRATION U/S 12AA OF THE ACT. 3. LD. AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT OBJECT OF THE TRUST IS TO ENHANCE THE CHARITABLE ACTIVITIES, BUT THE LD. CIT(E) HAS WRONGLY INTERPRETED THE CLAUSE NO. 3(A) OF THE TRUST DEED. THE CLAUSE 3(A) OF THE TRUST DEED READS AS PROMOTING, ESTABLISHING, EQUIPPING, ERECTING, MAINTAINING AND/OR GRANTING ALL OR OTHER FINANCIAL ASSISTANCE TO SCHOOLS, COLLEGES, MEDICAL COLLEGE, HOSPITALS, DISPENSARIES, MATERNITY HOMES, ITA NOS.1404&1405/16 SANKALP SEVA MISSION 3 HOSTELS, LABORATORIES, PUBLIC REST-HOUSES (WITH OR WITHOUT FOODING FACILITIES) LIBRATES AND MEASURES. THE PURPOSE OF THIS CLAUSE IS TO OPEN LIBRARY, READ ING ROOMS AND TO PROVIDE FOOD TO POOR STUDENTS ETC. THEREFORE, FOR T HE PURPOSE OF CHARITABLE ACTIVITIES THE TRUST WANTS THE SAID CLAUSE AND THE INTENTION OF THE SAID CLAUSE IS TO ENHANCE THE CHARITABLE ACTIVITIES. THE LD. AR HAS REQUESTED US TO SEND THE CASE BACK TO THE LD. CIT(E), SO THAT THE ASSESSEE MAY EXPLAIN BEFORE HIM PROPERLY REGARDING THE OBJECTS A ND CLAUSES OF THE TRUST DEED. 4. EVEN LD. DR FOR THE REVENUE DID NOT OBJECT IN SE NDING BACK THE CASE TO THE CIT(E). 5. CONSIDERING THE FACTUAL POSITION, WE ARE OF THE VIEW THAT THE ISSUE INVOLVED, REQUIRES FRESH EXAMINATION AT THE END OF THE CIT(E). THEREFORE, WE REMIT BOTH THE CASES BACK TO THE FILE OF CIT(E) TO ADJUDICATE AFRESH BY TAKING THE RELEVANT EVIDENCES/EXPLANATIONS FROM THE ASSESSEE TRUST. 6. IN THE RESULT, BOTH APPEALS FILED BY ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28/12 /2016. SD/ - (A.T.VARKEY) S D/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 28/12/2016 ' $%& /PRAKASH MISHRA , 0 . / PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT-SANKALP SEVA MISSION 2. / THE RESPONDENT.-CIT(E), KOLKATA 3. 1 ( ) / THE CIT(A), KOLKATA. 4. 1 / CIT ITA NOS.1404&1405/16 SANKALP SEVA MISSION 4 / BY ORDER, / ( ASSTT. REGISTRAR) % & , / ITAT, 5. 23 4 0056 , 56 , / DR, ITAT, KOLKATA 6. 4 78 / GUARD FILE. 2 0 //TRUE COPY//