Society of Cardiac Interventions, Kolkata V. D.I.T (Exemption), Kolkata

ITA 1758/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87599 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 30-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DI
• Keywords: Charitable institution; Opportunity of being heard; Principle of natural justice
• Section: 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER ITA NO. 1758 - 1759 /KOL/ 2012 ASSESSMENT YEAR: 2012 - 13 SOCIETY OF CARDIAC INTERVENTIONS, 608, AUROVILLA CO - OPERATIVE HOUSING SOCIETY, 10, MANDEVILLE GARDENS, KOLKATA 700 019 / V/S . THE DIRECTOR OF INCOME - TAX (EXEMPTION), 10B, MIDDLETON ROW, 6 TH FLOOR, KOLKATA 700 019 / APPELLANT .. / RESPONDENT / BY ASSESSEE SHRI SUNIL SURANA, C.A / BY RE V EN UE SHRI DIPANKAR MUKHOPADHYAY, JCIT, SR - DR / DATE OF HEARING 09 - 01 - 2015 / DATE OF PRONOUNCEMENT 09 - 01 - 2015 / O R D E R PER SHAMIM YAHYA , ACCOUNTANT M EMBER : - T H E ABOVE A PPEAL S BY THE ASSESSEE ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF DIRECTOR OF INCOME TAX (EXEMPTION) KOLKATA REJECTING THE ASSESSEE S APPLICATION FOR GRANT OF REGISTRATION U/S 12AA AND APPROVAL U/S 80(G)(5)(VI) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) RESPECTIVELY. 2. IN THIS CASE, THE LD. DIRECTOR OF INCOME TAX (EXEMPTION) REJECTED THE APPLICATION OF ASSESSEE FOR GRANT OF REGISTRATION U/S 12AA OF THE ACT BY H IS ORDER DATED 28 - 09 - 2012 AS UNDER: - THE AFORESAID SOCIETY CAME INTO EXISTENCE VIDE CERTIFICATE OF REGISTRATION OF SOCIETY WEST BENGAL AT XXVI OF 1961 DATED 26.03.2008. THE ABOVE SOCIETY HAD FILED AN APPLICATION IN FORM 10A ON 29.03.2012 WHICH IS IN ORDER. ITA NO.1758 - 1759 A.Y. 2012 - 13 SOCIETY OF CARDIAC INTERVENTIONS V. DIT(EX) KOL PAGE 2 NOTICE WAS ISSUED ON 09/11.07.2012 FIXING THE DATE OF HEARING ON 01.08.2012. SHRI JITENDRA KAUSHIK, ADVOCATE, A/R OF THE APPLICANT SOCIETY APPEARED FROM TIME TO TIME AND PLEADED THE CASE. THE STATED OBJECT OF THE SOCIETY IS ADVANCEMENT OF GENERAL P UBLIC UTILITY. IT IS SEEN FROM THE RECORDS THAT THE APPLICANT SOCIETY DERIVED INCOME FROM SPONSORSHIP WHICH AMOUNTED TO RS.34.75 LAKHS DURI NG THE FINANCIAL YEAR 20 1 1 - 12. DURING DISCUSSION, THE A/R ADMITTED THAT THE SPONSORS ARE COMMERCIAL ENTITIES HAVING I NTEREST IN THE HEALTH SECTOR. IN VIEW OF THE ABOVE FACTS, THE CASE IS HIT BY THE 1 ST PROVISO OF SECTION 2(15) OF THE ACT BUT NOT EXCLUDED BY THE 2 ND PROVISO. CONSEQUENTLY, THE OBJECTS DO NOT QUALIFY AS CHARITABLE PURPOSE . 3 . IN CONSEQUENCE OF THE ABOVE ORDER, LD. DIT(E) VIDE ORDER OF EVEN DATE REJECTED APPLICATION FOR GRANT OF APPROVAL U/S 80G(5)(VI) ALSO . 4 . AGAINST THE ABOVE ORDER ASSESSEE IS IN APPEAL BEFORE US. 5 . LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT LD. DIT(E) HAS NOT APPRECIATED THE FACTS OF THE CASE AND HAS PASSED A NON - SPEAKING ORDER WITHOUT TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTANCES OF THE CASE. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT IS NOT THE CASE OF THE LD. DIT(E) THAT THE OBJECTS OF THE SOCIETY ARE NOT IN ACCORDANCE TO LAW. LD. COUNSEL SUBMITTED THAT LD. DIT(E) HAS DRAWN ANY ADVERSE INFERENCE ONLY ON THE GROUND THAT ASSESSEE - SOCIETY DERIVE INCOME FROM SPONSORSHIP FROM COMMERCIAL ENTITIES HAVING INTEREST IN THE HEALTH SECTOR. LD. COUNSEL SUBMITTED THAT THIS ASPECT CAN NOT LEAD TO AN ADVERSE INFERENCE FOR GRANTING OF REGISTRATION U/S 12AA OF THE ACT. IN THIS CONNECTION, LD. COUNSEL PLACED RELIANCE THE DECISION OF DELHI TRIBUNAL IN THE CASE OF HEART CARE MANAGEMENT V. DIRECTOR OF INCOME - TAX(E) IN ITA NO.5241 & 55242/DEL/1 1 VIDE ORDER DATED 31 - 05 - 2012. LD. COUNSEL SUBMITTED THAT THE FACTS OF THIS CASE ARE ANALOGICAL TO THE FACTS OF THE CASE OF ASSESSEE S CASE. HENCE, LD. COUNSEL PLEADED THAT RATIO OF ABOVE SAID CASE LAW SHOULD BE FOLLOWED AND ASSESSEE BE GRANTED THE DESIRED REGISTRA T ION AND APPROV AL . 6 . LD. DR ON THE OTHER HAND RELIED UPON THE ORDER OF LD. DIT(E). ITA NO.1758 - 1759 A.Y. 2012 - 13 SOCIETY OF CARDIAC INTERVENTIONS V. DIT(EX) KOL PAGE 3 7 . WE HAVE HEARD AND CONSIDERED THE SUBMISSIONS OF BOTH SIDES. WE FIND THAT LD. DIT(E) HAS PASSED A VERY LAC ONIC ORDER AND HON BLE APEX COURT IN THE CASE OF SAHAR A INDIA (FIRM) V. COMMISSIONER OF INCOME TAX AND ANOTHER (2008) 300 ITR 403 (SC) HAD HELD THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE CONSISTENT WITH THE RULE OF NATURAL JUSTICE. WE FIND THAT LD. DIT(E) IN THIS CASE HAS SUMMARILY REJECTED ASSESSEE S APPLIC ATION FOR REGISTRATION U/S.12AA OF THE ACT ONLY ON THE GROUND THAT ASSESSEE - SOCIETY DERIVED INCOME FROM SPONSORSHIP FROM ENTITIES HAVING INTEREST IN THE HEALTH SECTOR. IN OUR CONSIDERED OPINION, DE HORS ANY OTHER DISCUSSION ON THE ISSUE OF REGISTRATION THI S GROUND ALONE IS NOT SUFFICIENT FOR REJECTION OF THE APPLICATION FOR REGISTRATION. MOREOVER, THE DECISION OF THE DELHI TRIBUNAL IN THE CASE HEART CARE MANAGEMENT (SUPRA) REFERRED BY THE LD. COUNSEL FOR THE ASSESSEE ALSO HAS A BEAR ING ON THIS CASE. IN THIS VIEW OF THE MATTER, IN OUR CONSIDERED OPINION, THE INTEREST OF JUSTICE WILL BE SERVED IF THE ISSUE IS REMITTED BACK TO THE FILE OF LD. DIT(E). ACCORDINGLY, ISSUE IS REMITTED BACK TO THE FILE OF LD. DIT(E) AND LD. DIT(E) IS DIRECTED TO CONSIDER THE ISSUE A FRESH KEEPING IN VIEW OR OUR OBSERVATION HEREINABOVE AND AFTER GIVING THE ASSESSEE APPROPRIATE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, BOTH APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 09 /0 1 /201 5 SD/ - SD/ - ( MAHAVIR SINGH ) ( SHAMIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEM BER KOLKATA, *DKP - 09 /0 1 /201 5 ITA NO.1758 - 1759 A.Y. 2012 - 13 SOCIETY OF CARDIAC INTERVENTIONS V. DIT(EX) KOL PAGE 4 / COPY OF ORDER FORWARDED TO: - 1 . / APPELLANT SOCIETY OF CARDIAC INTERVENTIONS, 608, AUROVILLA CO - OPERATIVE HOUSING SOCIETY, 10, MANDEVILLE GARDENS, KOL - 19 2 . / RESPONDENT - DIT (EX), 10B, MIDDLETON ROW, 6 TH FLOOR, KOL - 19 3 . / CONCERNED CIT 4 . - / CIT (A) 5 . , / DR, ITAT, KOLKATA 6 . / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ,