Nutan Jeevan Foundation, Kolkata V. CIT, (Exemptions), Kolkata, Kolkata

ITA 1448/KOL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4121 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 21-11-2016
• Assessment Year: misc
• Appeal Filed On: 08-12-2015
• Court: TRIBUNAL
• Department Lawyers: R S BISWAS
• Assessee Lawyers: A K TIBREWAL
• Keywords: Non passing of speaking order
• Section: 12A; 12AA

Judgement Text

ITA NOS.1448&1449/KOL/2015 NUTAN JEEVAN FOUNDATION 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SHRI P.M.JAGTAP, AM & SRI N.V.VA SUDEVAN, JM ] I.T.A NOS. 1448&1449/KOL/2015 NUTAN JEEVAN FOUNDATION -VS.- C.I.T.(EXEM PTIONS), KOLKATA KOLKATA [PAN : AACTN1347B] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI A.K.TIBREWAL, FCA FOR THE RESPONDENT : SHRI R.S.BISWAS, CIT DATE OF HEARING : 21.11.2016. DATE OF PRONOUNCEMENT : 2.12.2016. ORDER PER N.V.VASUDEVAN, JM ITA NO.1448/KOL/2015: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORD ER DATED 9/10/2015 PASSED BY THE CIT (EXEMPTIONS),KOLKATA PA SSED U/S.12AA OF THE INCOME- TAX ACT 1961(ACT). ITA NO.1449/KOL/2015: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORD ER DATED 9/10/2015 PASSED BY THE CIT (EXEMPTIONS), KOLKATA P ASSED U/S.80G (5) (VI) OF THE INCOME-TAX ACT 1961(ACT). 2. THE ASSESSEE IS A TRUST WHICH CAME INTO EXISTENC E BY A DEED OF TRUST DATED 21.2.2015. IT MADE AN APPLICATION FOR REGISTRATION U/S12AA OF THE INCOME TAX ACT, 1961 (ACT) BEFORE THE LD. COMMISSIONER OF INCOME TA X (EXEMPTIONS), KOLKATA (CIT(E) FOR SHORT) ON 28.05.2015. THE SOCIETY APPEA RED BEFORE THE CIT(E) AND MADE SUBMISSION AND ALSO SUBMITTED ALL DOCUMENTS TO SUPP ORT ITS APPLICATION. THE CIT(E) HOWEVER REJECTED THE APPLICATION VIDE HIS ORDER DAT ED 9.10.2015 FOR THE REASON THAT THE ACTIVITIES OF THE TRUST WERE FOUND TO BE BARE MINIM UM TO JUSTIFY THE CLAIM OF REGISTRATION. THE ASSESSEE BEING AGGRIEVED BY THE REJECTION OF THE REGISTRATION U/S.12AA OF THE ACT HAS PREFERRED APPEAL BEING ITA NO.1448/KOL/15. ITA NOS.1448&1449/KOL/2015 NUTAN JEEVAN FOUNDATION 2 3. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE IMPUG NED ORDER IS A NON SPEAKING ORDER AND DOES NOT SPELL OUT THE REASON AS TO WHY THE REG ISTRATION IS BEING DENIED TO THE ASSESSEE U/S.12AA OF THE ACT. THE REASON AS WE CAN GATHER FROM THE IMPUGNED ORDER IS THAT THE CIT(E) EXPECTS THAT THE TRUST SHOULD HA VE CARRIED OUT SUFFICIENT ACTIVITIES AND SINCE THE ACTIVITIES WERE NOT LARGE IN NUMBER, THE REGISTRATION IS BEING DENIED. THE PROVISIONS OF SEC.12AA OF THE ACT READS THUS: 12AA. (1) THE PRINCIPAL COMMISSIONER OR COMMISSIONER, ON RECEIPT OF AN APPLICATION FOR REGISTRATION OF A TRUST OR INSTITUT ION MADE UNDER CLAUSE ( A ) OR CLAUSE ( AA ) OF SUB-SECTION (1) OF SECTION 12A , SHALL (A) CALL FOR SUCH DOCUMENTS OR INFORMATION FROM THE TRU ST OR INSTITUTION AS HE 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 ( B ) AFTER SATISFYING HIMSELF ABOUT THE OBJECTS OF THE TRUST OR INSTITUTION AND THE GENUINENESS OF ITS ACTIVITIES, HE ( I ) SHALL PASS AN ORDER IN WRITING REGISTERING THE TR UST OR INSTITUTION; ( II ) SHALL, IF HE IS NOT SO SATISFIED, PASS AN ORDER I N WRITING REFUSING TO REGISTER THE TRUST OR INSTITUTION, AND A COPY OF SUCH ORDER SHALL BE SENT TO THE APPLI CANT :.. 4. AS CAN BE SEEN FROM THE AFORESAID PROVISIONS, T HE QUESTION WHETHER ACTIVITIES OF THE TRUST ARE MINIMUM OR NOT IS NOT A RELEVANT CRITERIA FOR GRANT OF REGISTRATION. SINCE, NO OTHER REASONS HAVE BEEN GIVEN FOR NOT GRANTING REGI STRATION TO THE ASSESSEE, WE ARE OF THE VIEW THAT THE ASSESSEE IS ENTITLED TO GRANT OF REGISTRATION. IF THE OBJECTS OF THE TRUST HAVE OBJECTS WHICH ARE CHARITABLE IN NATURE AND IF THERE IS NO MATERIAL TO SUGGEST THAT THE ACTIVITIES OF THE TRUST ARE NOT GENUINE, THEN T HAT WOULD BE SUFFICIENT TO ALLOW REGISTRATION SUBJECT TO FULFILLMENT OF OTHER CONDIT IONS FOR GRANT OF REGISTRATION. WE ARE THEREFORE OF THE VIEW THAT THE ASSESSEE IS ENTITLED TO GRANT OF REGISTRATION U/S.12AA OF THE ACT. WE HOLD AND DIRECT ACCORDINGLY. 5. IN FACT THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS VARANASI WELFARE TRUST IN ITA NO.227 OF 2014 IN ITS JUDGMENT DATED 1 2.11.2014 HAS HELD THAT AT THE TIME OF GRANTING REGISTRATION U/S 12AA OF THE ACT T HE COMMISSIONER IS NOT ENTITLED TO LOOK INTO THE ACTIVITIES WHERE THE ACTIVITIES HAVE NOT OR ARE IN THE PROCESS OF ITS ITA NOS.1448&1449/KOL/2015 NUTAN JEEVAN FOUNDATION 3 INITIATION. THE HONBLE PUNJAB AND HARYANA HIGH COU RT IN THE CASE OF CIT VS SPRING DALE EDUCATIONAL SOCIETY (2011) 16 TAXMANN.COM 285 (P&H) HAS TAKEN A VIEW THAT WHILE EXAMINING APPLICATION SEEKING REGISTRATION U /S 12AA, MANNER OF APPLICATION OF FUNDS OF TRUST DO NOT FALL WITHIN PURVIEW OF COMMIS SIONER. THE AFORESAID DECISION ALSO SUPPORT OUR CONCLUSIONS AS ABOVE. 6. AS FAR AS ITA NO.1449/KOL/2015 IS CONCERNED THE GRANT OF RECOGNITION U/S.80G (5) OF THE ACT WAS DENIED BECAUSE OF ABSENCE OF REG ISTRATION U/S12AA OF THE ACT. SINCE REGISTRATION U/S12AA OF THE ACT IS BEING ALLO WED, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD BE GRANTED APPROVAL U/S.80G (5) OF THE ACT ALSO. WE HOLD AND DIRECT ACCORDINGLY. 7. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 02 .12.2016 ORDER PRONOUNCED IN THE COURT ON 02.12.2016. SD/- SD/- [P.M.JAGTAP] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 02.12.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.NUTAN JEEVAN FOUNDATION, ROSY LAND, FLAT C-4, 33/ 31, NAFAR CHANDRA DAS ROAD, KOLKATA-700034. 2. C.I.T.(EXEMPTIONS), KOLKATA. 3. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSTT.REGISTRAR, KOLKATA BENCHES