M/s. Shiv Mandir Gori Sankar Viswnath Bakunt Dham & Samsan Bhumi Prabandak Saba, Saharanpur V. CIT (Exemptions), Uttar Pradesh

ITA 1547/DEL/2015

• Counselvise Citation: 154720114 RSA 2015
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 03-06-2015
• Assessment Year: misc
• Appeal Filed On: 17-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: SHIR ANIL JAIN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 12A; 12AA

Judgement Text

ITA NO. 1547/ DEL/ 2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 1547 /DEL/201 5 A.Y. : ------------ SHIV MANDIR GORI SANKAR VISWNATH BAKUNT DHAM AND SAMSAN BHUMI PRABHANDAK SABA, BABA LAL DASS ROAD, SAHARANPUR UTTAR PRADESH (PAN: AAJAS0099M) VS. COMMISSIONER OF INCOME TAX (EXEMPTIONS) AAYAKAR BHAWAN, LUCKNOW UTTAR PRADESH (APPELLANT) (RESPONDENT) ASSESSEE BY : SHIR ANIL JAIN, ADV. DEPARTMENT BY : SH. BRR KUMAR, SR. DR. DATE OF HEARING : 0 4 - 6 - 201 5 DATE OF ORDER : 0 5 - 6 - 201 5 ORDER PER H.S. SIDHU : J M TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX ( EXEMPTIONS) , LUCKNOW DATED 27 . 1 .201 5 PASSED UNDER SECTION 12AA(1)(B)(II) OF THE INCOME TAX ACT, 1961, ON THE FOLLOWING GROUNDS: - 1. THE LD. CIT(EXEMPTIONS) LUCKNOW HAS ERRED IN REJECTIN G THE APPLICATION FOR REGISTRATION UNDER SECTION 12A OF THE INCOME TAX ACT, 1961 FILED ON 21.7.2014 WITHOUT PROPERLY GOING THROUGH THE CASE RECORDS OF THE APPELLANT AND ALSO CONSIDERING THE PROCEEDINGS CONDUCTED BY THE CIT, MUZZAFARNAGAR. ITA NO. 1547/ DEL/ 2015 2 2. THE ORDER OF THE AO IS AGAINST LAW AND FACTS OF THE CASE. 3. THE APPELLANT CRAVES THE RIGHT TO ADD, AMEND OR WITHDRAW ANY GROUNDS OF APPEAL AT THE TIME OF HEARING. 2. THE FACTS IN BRIEF THAT THE ASSESSEE - SOCIETY HAS FILED AN APPLICATION FOR REGISTRATION U/S. 12A(1)(AA) OF THE INCOME TAX ACT, 1961 ON 21.7.2014 TO THE COMMISSIONER OF INCOME TAX, MUZAFFARNAGAR. DUE TO CHANGE IN JURISDICTION W.E.F. 15.11.2014, THIS CASE WAS TRANSFE RRED TO CIT(EXEMPTION S) OFFICE BY THE COMMISSIONER OF INCOME TAX, MUZAFFARNAGAR ON 30.12.2014. LD. CIT(EXEMPTIONS) HAS GIVEN OPPORTUNITY OF HEARING TO THE APPLICANT SOCIETY VIDE HIS LET T ER DATED 30.12.2014 FIXING THE DATE FOR HEARING ON 15.1.2015. SHR I NIKHIL GUPTAS, CA ATTENDED THE HEARING AND HE WAS ASKED TO PRODUCE THE BOOKS OF ACCOUNT, BILLS / VOUCHERS FOR VERIFICATION. THE HEARING WAS ADJOURNED TO 21.1.2015. ON TH AT DATE SH. NIKHIL GUPTA, CA ATTENDED FILED SOME DETAILS AND REQUESTED FOR SOME MORE TIME FOR ENSURING FULL COMPLIANCE. ON HIS REQUEST THE CASE WAS ADJOURNED FOR 23.1.2015. ON 23.1.2015 NEITHER ANY ONE ATTENDED NOR ANY WRITTEN SUBMISSION WAS FILED BY THE SOCIETY. NO R FILED ANY APPLICATION FOR ADJOURNMENT BY THE APPLICANT SEEKIN G FURTHER DATE. LD. CIT(EXEMPTIONS) DECIDED THE CASE OF ASSESSEE ON MERITS AND OBSERVED THAT THE ASSESSEE - SOCIETY WAS CREATED ON 7.8.1990. AFTER PERUSING THE MATERIAL, H E NOTED THAT ON PERUSAL OF MATERIAL AVAILABLE ON RECORDS, HE FOUND THAT THE ASSESSE E SOCIETY WAS NOT CARRYING OUT ANY CHARITABLE ACTIVITIES AT PRESENT. THE INCOME & EXPENDITURE ACCOUNTS OF THE ASSESSEE SOCIETY AS ON 31.3.2014 SHOWS THAT NO DEBIT HEAD IS DIRECTLY RELATED TO ANY CHARITABLE ACTIVITIES. SINCE BOOKS OF ACCOUNTS AND ITS S UPPORTING BILLS / VOUCHERS AND RELATED DOCUMENTS WERE NOT PRODUCED BY THE SOCIETY DESPITE PROVIDING AMPLE OPPORTUNITIES FOR VERIFICATION AND ITS CLAIMS ITA NO. 1547/ DEL/ 2015 3 ARE NOT OPEN FOR VERIFICATION. IN THE ABSENCE OF PRIMARY DOCUMENTS AND REGISTERS CLAIM OF THE SOCIET Y CANNOT BE ASCERTAINED. A S PER THE PROVISIONS OF SECTION 12AA(1)(B) OF THE ACT, TWO FACTORS NAMELY THE OBJECT AND THE GENUINENESS OF ACTIVITIES HAVE TO BE SATISFIED. HOWEVER, THE APPLICANT - SOCIETY FAILED TO PROVE BOTH THE FACTORS. LD. CIT(EXEMPTION S) IN HIS IMPUGNED ORDER HAS REFERRED A JUDGMENT OF THE HON BLE DELHI HIGH COURT IN THE CASE OF KIRTI CHANDRA TARAWATI CHARITABLE SOCIETY VS. DIT (EXEMPTIONS) 232 ITR 11 WHEREIN IT WAS HELD THAT THERE IS NO OBLIGATION ON A CIT TO GRANT REGISTRATION TO A SO CIETY MERELY BY LOOKING AT THE INSTRUMENT CREATING THE SOCIETY AND SHUTTING HIS EYES TO THE ACTUAL ACTIVITIES CARRIED OUT BY IT. HE ALSO MENTIONED IN HIS IMPUGNED ORDER THAT SIMILAR VIEW HAS BEEN EXPRESSED IN THE CASE OF SELF EMPLOYERS SERVICE SOCIETY VS . CIT 247 ITR 18 (KER.) WHEREIN IT WAS HELD THAT IF A SOCIETY PROPOSED TO CARRY OUT CHARITABLE ACTIVITIES IN FUTURE, REGISTRATION EVEN U/S. 12AA WOULD NOT BE AVAILABLE TO IT. IN VIEW OF THE ABOVE, LD. CIT(EXEMPTIONS) WAS UNABLE TO ACCEPT THE ASSESSEE - SO CIETY S CLAIM AND HE HELD THAT THE PRESENT CASE IS NOT FIT FOR GRANT OF REGISTRATION U/S. 12A(1) OF THE INCOME TAX ACT, 1961 AND REJECTED THE APPLICATION OF THE APPLICANT - SOCIETY FOR GRANT OF REGISTRATION U/S. 12A(1)(AA) OF THE INCOME TAX ACT, 1961 VIDE HIS ORDER DATED 27.1 .2015 PASSED U/S. 12AA(10(B)(II) OF THE INCOME TAX ACT, 1961. 3. AGGRIEVED WITH THE AFORESAID ORDER DATED 27.1.2015 PASSED BY THE LD. CIT(EXEMPTIONS), LUCKNOW, THE ASSESSEE - SOCIETY FILED AN APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSESSEE STATED THAT THE LD. CIT( EXEMPTIONS, LUCKNOW HAS PASSED A NON - SPEAKING ORDER WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE - SOCIETY, WHICH IS CONTRARY TO THE PRINCIPLE OF NATURAL JUSTICE AND HENCE, DESERVES TO BE CANC ELLED. ITA NO. 1547/ DEL/ 2015 4 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER OF THE LD. CIT(EXEMPTIONS) AND REQUESTED THAT THE SAME MAY BE UPHELD. 6 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS AVAILABLE ON RECORD, ESPECIALLY THE ORDER DATED 27.1.2015 PASSED B Y THE CIT(EXEMPTIONS), LUCKNOW. WE FIND THAT THE OFFICE OF THE LD. CIT(EXEMPTIONS), HAS RECEIVED THE APPLICATION OF THE ASSESSEE - SOCIETY FOR REGISTRATION U/S. 12A(1)(AA) OF THE I.T. ACT, 1961 ON 21.7.2014. DUE TO CHANGE IN JURISDICTION W.E.F. 15.11.2014, THIS CASE WAS TRANSFERRED TO THE OFFICE OF LD. CIT(EXEMPTIONS) BY THE COMMISSIONER OF INCOME TAX, MUZAFFARNAGAR ON 30.12.2014. LD. CIT(EXEMPTIONS) GRANTED THE APPLICANT - SOCIETY AN OPPORTUNITY OF BEING HEARD VIDE LETTER DATED 30.12.2014 OF THE LD. CIT(EXE MPTIONS), LUCKNOW FIXING THE DATE FOR HEARING ON 15.1.2015. 6.1 AFTER PERUSING THE IMPUGNED ORDER, WE ARE OF THE VIEW THAT THE LD. CIT(EXEMPTIONS) WAS IN HURRY TO CLOSE THE CASE AND GIVEN A VERY SHORT TIME TO THE ASSESSEE, WHICH ESTABLISH THAT THE LD. CIT(EXEMPTIONS) HAS NOT GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE APPLICANT - SOCIETY TO SUBSTANTIATE ITS CLAIM BEFORE HIM , WHICH IS CONTRARY TO THE PRINCIPLE OF NATURAL JUSTICE. IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ISSUE IN DISPUTE TO TH E FILE OF THE LD. CIT(EXEMPTIONS) FOR DECIDING THE ISSUE AFRESH, AFTER GIVING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE - SOCIETY, UNDER THE LAW. ITA NO. 1547/ DEL/ 2015 5 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. OR DER PRONOUNCED IN THE O PEN C OURT ON 0 5 /06 /20 1 5 . S D / - S D / - [ R.S. SYAL ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 0 5 / 6 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES