The Balaji Foundation & Research Centre, Solapur V. CIT IV Pune, Pune

ITA 167/PUN/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3398 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 28-01-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJU AJWANI
• Assessee Lawyers: VIPIN GUJARATHI
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 80G; 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI SHAILENDRA KUMAR (JM) AND SHRI D. KARUN AKARA RAO (AM) ITA NO. 167/PN/2010 THE BALAJI FOUNDATION & RESEARCH CENTRE, BALAJI BHAVAN, 165-A, RAILWAY LINES, SOLAPUR 413001 PAN : NOT AVAILABLE . APPELLANT V. THE COMMISSIONER OF INCOME TAX IV, PRAPTIKAR SADAN, ERANDAWANE, OFF. KARVE ROAD, PUNE . RESPONDENT APPELLANT BY : SHRI VIPIN GUJARATHI DEPARTMENT BY : MS. MANJU AJWANI ORDER PER D. KARUNAKARA RAO AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT IV, PUNE, DATED 22 ND DECEMBER 2009 REJECTING THE APPLICATION FOR REGISTRATI ON U/S. 12A OF THE ACT. 2. THE GROUNDS AND THE ADDITIONAL GROUNDS READ AS UNDE R : ORIGINAL GROUNDS 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE HONOURABLE COMMISSIONER OF INCOME TAX IV, PUNE HAS ERRED IN AND IS NOT JUSTIFIED IN REJECTING THE APPLICATION FOR GRANT OF REGISTRATION UNDER SECTION 1 2A WITHOUT ANY BASIS AND WITHOUT GIVING PROPER OPPORTUNITY OF HEARING. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ORDER OF THE HONOURABLE CIT-IV REJECTING THE APPLICATION FOR RENEWAL OF REGISTRATION U/S 12AA IS BAD IN LAW AS THE SAME IS PASSED BEYOND THE PERIOD OF 6 MONTHS FROM THE END OF THE MONTH IN WHICH APPLICATION HAS BEEN MADE FOR RENEWAL. TH E APPELLANT PRAY THAT THE ORDER OF THE HONOURABLE CIT IV PUNE MAY PLEASE BE QU ASHED. ADDITIONAL GROUNDS 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE HONOURABLE COMMISSIONER OF INCOME TAX IV, PUNE HAS ERRED IN AND IS NOT JUSTIFIED IN REJECTING THE APPLICATION FOR GRANT OF REGISTRATION UNDER SECTION 8 0G(5)(VI) OF THE I.T. ACT WITHOUT ANY BASIS AND WITHOUT GIVING PROPER OPPORTUNIT Y OF HEARING. THE GROUND OF APPEAL NO 2 MAY PLEASE BE READ AS FOLLOW S 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ORDER OF THE HONOURABLE CIT-IV REJECTING THE APPLICATION FOR RENEWAL O F REGISTRATION U/S 80G(5) IS BAD IN LAW AS THE SAME IS PASSED BEYOND THE PERIOD OF 6 MONTHS FROM THE DATE OF ITA NO 167/PN/2010 THE BALAJI FOUNDATION & RESEARCH CENTRE,, PAGE OF 3 2 THE APPLICATION WHICH HAS BEEN MADE FOR RENEWAL. THE AP PELLANT PRAY THAT THE ORDER OF THE HONOURABLE CIT-IV PUNE MAY PLEASE BE QUASHED. 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE HONOURABLE COMMISSIONER OF INCOME TAX IV, PUNE HAS ERRED IN REJEC TING THE APPLICATION OF THE APPELLANT FOR GRANT OF REGISTRATION UNDER SECTION 80G(5) (VI) OF THE I.T. ACT WITHOUT APPRECIATING THE FACT THAT THE APPELLANT HAS COMPLIED WITH ALL CONDITIONS LAID DOWN IN CLAUSE (I) TO (V) OF SUB-SECTION 5 OF SECTION 80G OF TH E I.T. ACT. THE APPELLANT PRAYS THAT THE APPROVAL UNDER SECTION 80G MAY PLEASE BE GRAN TED. 2. AT THE VERY OUTSET, THE LD COUNSEL FOR THE ASSESS EE MENTIONED THAT THERE IS A MISTAKE IN THE ORIGINAL GROUNDS AND THEREFORE, FILED THE RECTIFIED GROUNDS. REFERRING TO THE ORIGINAL GROUNDS, THE COUNSEL ALSO MENTIONED THAT THE CIT FAILED TO PASS AN ORDER WITHIN THE PERIOD OF SIX MONTHS. REFERRING TO THE ADDITIONAL GROUND , THE COUNSEL MENTIONED THAT THE ASSESSEE COMPLIED WITH ALL THE CONDITIONS LAID DOWN IN THE SE CTION 80G(5)(I) TO (V) AND HE HIGHLIGHTED THE LEGAL NATURE OF ADDITIONAL GROUND AND REQ UESTED FOR ADMITTING THE SAME. FURTHER, LD COUNSEL ALSO HIGHLIGHTED THE FACT THAT THE C IT DID NOT GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. LD COUN SEL ALSO HIGHLIGHTED THE FACT THAT THE CIT FAILED TO PASS THE IMPUGNED ORDER DT. 22.12.2009 W ITHIN THE PERIOD OF SIX MONTHS FROM THE DATE OF FILING OF THE APPLICATION. FURTHER, AS PER T HE COUNSEL, THE CIT FAILED TO MENTION THE REASONS FOR NOT PASSING THE IMPUGNED ORDER IN THE REASONABLE PERIOD. FINALLY, LD COUNSEL PRAYED THAT ALL THESE GROUNDS MAY BE REFERRED TO THE FILES OF CIT FOR FRESH ADJUDICATION AS CIT FAILED TO OFFER REASONABLE OPPORTUNI TY OF BEING HEAR TO THE ASSESSEE SATISFACTORILY. ON THE OTHER HAND, THE LD. D.R. FOR T HE REVENUE RELIED ON THE ORDER OF THE CIT. 3. WE HAVE HEARD BOTH THE PARTIES. SO FAR AS THE GROU ND RELATING TO THE REASONABLE OPPORTUNITY IS CONCERNED, WE FIND THIS ISS UE RELATES TO PRINCIPLES OF NATURAL JUSTICE AND WE FIND NO REASON TO REJECT THE A SSESSEES GRIEVANCE IN THIS REGARD. REGARDING CITS FAILURE TO PASS THE ORDER WITH IN THE PERIOD OF SIX MONTHS AS APPLICABLE TO THE APPLICATIONS REFERRED TO U/S. 12AA (2) OF THE ACT, WE ARE INFORMED THAT THERE EXISTS LARGE NUMBER OF DECISIONS OF THIS TRI BUNAL RELATING TO U/S. 80G TOO. IN THIS REGARD, LEARNED COUNSEL FOR THE ASSESSEE HAS REL IED ON THE DECISION OF SPECIAL BENCH (DELHI) IN THE CASE OF BHAGWAD SWARUP SHRI SHRI DEVRAHA BABA MEMORIAL SHRI HARI PARMARTH DHAM TRUST VS. COMMISSIONER OF INCOME-TAX (2007) 17 SOT 281 (DELHI) (SB) FOR THE PROPOSITION THAT WHERE CIT DOES N OT PASS ORDER GRANTING OR REFUSING REGISTRATION OF TRUST WITHIN SIX MONTHS FROM TH E END OF THE MONTH IN WHICH APPLICATION FOR REGISTRATION U/S 12A WAS FILED, REGISTRA TION WOULD BE DEEMED TO HAVE BEEN GRANTED TO TRUST OR INSTITUTION AUTOMATICALLY ON THE EXPIRY OF THE PERIOD SPECIFIED IN SECTION 12AA(2). IN ANY CASE, CIT DID NOT HAVE ANY OCCASION TO ADJUDICATE THIS LEGAL ISSUE AND GIVE HIS OPINION ON THE MATTER. REGARDING ADDITIONAL ITA NO 167/PN/2010 THE BALAJI FOUNDATION & RESEARCH CENTRE,, PAGE OF 3 3 GROUND, WE FIND THERE IS NEED FOR DECISION OF THE CIT WHETHER ALL THE CONDITIONS LAID DOWN IN CLAUSE (I) TO (V) OF SECTION 80G (5) ARE COM PLIED WITH OR NOT. 4. CONSIDERING THE ABOVE FACTUAL POSITION, WE ARE OF THE OPINION THAT ALL THESE ISSUES MUST BE SENT TO THE CIT, WHO SHALL ADJUDICAT E ALL THE GROUNDS AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE IN COMPLIANCE OF THE PRINCIPLES OF NATURAL JUSTICE. LD COUNSEL IS ALSO DI RECTED TO FILE THE COPIES OF THE CO- ORDINATE BENCH DECISIONS ON THE ISSUE AND ALSO THE A BOVE REFERRED SPECIAL BENCH DECISION TO SUPPORT HIS CASE. ACCORDINGLY, THE GROUND S ARE SET ASIDE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13TH DAY OF AUG UST 2010. SD/- SD/- (SHAILENDRA KUMAR YADAV JUDICIAL MEMBER (D. KARUNAKARA RAO ) ACCOUNTANT MEMBER PUNE, DATED THE 13TH AUGUST, 2010 US COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT- IV, PUNE 4. THE D.R. B BENCH, PUNE 5. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE