D.H. MODY & S.D. MODY CHARITABLE TRUST, MUMBAI V. DIT (EX), MUMBAI

ITA 1861/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8018 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: misc
• Appeal Filed On: 09-03-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Assessee Lawyers: SUDHIR SHAH
• Keywords: Charitable institution; Opportunity of being heard
• Section: 12A; 12AA; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI N.V.VASUDEVAN(J.M) & SHRI B.RAMAK OTAIAH (A.M) ITA NO.1861/MUM/2010 D.H.MODY & S.D. MODY CHARITABLE TRUST 83A, DR.A.B.ROAD, WORLI, MUMBAI. PAN: AAATD 3268M (APPELLANT) VS. THE DIT(EXEMPTIONS)6 TH FLOOR, PIRAMAL CHAMBERS, LALBAUGH, MUMBAI 400 092. (RESPONDENT) APPELLANT BY : SHRI SUDHIR SHAH RESPONDENT BY : SHRI JITENDRA YADAV ORDER PER N.V.VASUDEVAN, J.M, THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 12/11/2007 OF THE DIRECTOR OF INCOME TAX(EXEMPTION) (DIT), MUM BAI REJECTING AN APPLICATION FOR REGISTRATION UNDER SECTION 12 A OF THE INCOME TAX ACT,1961 (THE ACT) MADE BY THE ASSESSEE. 2. THE ASSESSEE IS A TRUST. IT CLAIMED THAT IT WA S CREATED ON 1/7/1949. THE ASSESSEE MADE AN APPLICATION ON 30/5/2007 FOR G RANT OF REGISTRATION U/S.12A OF THE ACT. IT IS NOT CLEAR FROM THE ORDER OF DIT AS TO FROM WHICH DATE REGISTRATION U/S.12A WAS SOUGHT BY THE ASSESSE E. THE DIT BY NOTICE DATED 29/8/2007 CALLED UPON THE ASSESSEE TO FILE CE RTAIN DETAILS BY 3/10/07. THE REQUIRED DETAILS WERE NOT FILED, THEREFORE, HE ISSUED ANOTHER NOTICE DATED 1/11/2007 FIXING THE DATE OF HEARING ON 8/11/2007. THE ASSESSEE FILED AN ADJOURNMENT APPLICATION DATED 7/11/2007 STATING THA T THE MAIN TRUSTEE MR. ARDESHAR MEHTA WAS SERIOUSLY ILL, THEREFORE, THE DE TAILS CALLED FOR COULD NOT ITA NO.1862/MUM/2010 ) 2 BE FURNISHED AND PRAYED FOR ADJOURNMENT. THE DIT H OWEVER, OBSERVED THAT THE LIMITATION FOR PASSING THE ORDER UNDER SECTION 12AA OF THE ACT, EXPIRES ON 30/11/2007 AND, THEREFORE, REFUSED TO GRANT ADJOURN MENT. HE FOUND THAT THE REQUIRED DETAILS WERE NOT AVAILABLE AND, THEREFORE, REFUSED THE GRANT OF REGISTRATION UNDER SECTION 12AA OF THE ACT. 3. AGAINST THE SAID ORDER OF DIT THE ASSESSEE HAS F IELD THE PRESENT APPEAL BEFORE THE TRIBUNAL. THERE IS A DELAY OF 788 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. THE REASONS FOR THE DELAY HAVE BEEN EXPLAINED THUS. IT APPEARS THAT AFTER DIT REJECTED THE ASSESSEES APPL ICATION FOR GRANT OF REGISTRATION W.E.F. 1/7/1949, THE ASSESSEE FILED A FRESH APPLICATION AFTER 1/6/2007 FOR GRANT OF REGISTRATION UNDER SECTION 12 A OF THE ACT AND WAS ALSO ALLOWED REGISTRATION BY THE DIT. AFTER 1-6-2007, THE POWER OF DIT TO GRANT REGISTRATION RETROSPECTIVELY WITHOUT ANY LIMITATION OF TIME HAD BEEN TAKEN AWAY BY AN AMENDMENT TO THE STATUTORY PROVISIONS. T HEREFORE THE REGISTRATION U/S.12A WAS GRANTED ONLY FROM 1-6-2007 . IN THE ASSESSMENT OF THE ASSESSEE FOR A.Y 2007-08, WHICH WAS RECEIVED BY THE ASSESSEE ON 9/12/2009 IT WAS NOTICED THAT EXEMPTION UNDER SECTI ON 11 OF THE ACT WAS DENIED FOR WANT OF REGISTRATION UNDER SECTION 12A O F THE ACT AS ON 1/4/2007. IT HAS FURTHER BEEN POINTED OUT THAT SHRI ARDESHAR MEHTA THE MANAGING TRUSTEE DIED ON 7/11/2007 I.E. ONE DAY PRIOR TO THE DATE FIXED BY THE DIT FOR HEARING ITS APPLICATION DATED 30/5/2007 FOR GRANT O F REGISTRATION UNDER SECTION 12A OF THE ACT. THE ASSESSEE REALIZED THE IMPLICATIONS OF THE ABSENCE OF REGISTRATION W.E.F. 1/4/2007 AND THEREAF TER DECIDED TO FILE THE PRESENT APPEAL BEFORE THE TRIBUNAL. HENCE IT HAS B EEN PRAYED THAT THE DELAY BEING NOT DELIBERATE BUT DUE TO AFORESAID CIRCUMSTA NCES SHOULD BE CONDONED. 4. WE HAVE CONSIDERED THE REASONS FOR THE DELAY AND ARE SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR DELAY IN FILING THE APPEAL. THE DEATH OF THE MANAGING TRUSTEE, THE FACT THAT ASSESSEE GOT REGIST RATION UNDER SECTION 12A ITA NO.1862/MUM/2010 ) 3 AFTER 1/6/2007 AND THE FACT THAT THE EXEMPTION UNDE R SECTION 11 OF THE ACT WAS DENIED FOR A.Y 2007-08 FOR WANT OF REGISTRATION OF THE TRUST UNDER SECTION 12A W.E.F. 1/4/2007 AND THE FACT THAT THIS WAS NOTICED ONLY WHEN THE ORDER OF THE ASSESSING OFFICER FOR A.Y 2007-08 WAS RECEIVED ON 9/12/2009, ALL CUMULATIVELY HAS LEAD TO THE DELAY IN FILING TH E APPEAL. WE, THEREFORE, CONDONE THE DELAY IN FILING THE APPEAL BY THE ASSES SEE. 5. SINCE THE ASSESSEE DID NOT HAVE PROPER OPPORTUNI TY TO PRESENT ITS CASE BEFORE THE DIT, WE DEEM IT FIT AND PROPER TO SET AS IDE THE IMPUGNED ORDER OF THE DIT AND DIRECT THAT THE APPLICATION OF THE ASSE SSEE DATED 30/5/2007 FOR GRANT OF REGISTRATION UNDER SECTION 12A OF THE ACT BE CONSIDERED AFRESH AFTER AFFORDING THE ASSESSEE OPPORTUNITY OF BEING HEARD. FOR STATISTICAL PURPOSES THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 23RD DAY OF MARCH, 2011. SD/- SD/- (B.RAMAKOTAIAH) (N.V.VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED. 23RD MARCH, 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3 . THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RD BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM. ITA NO.1862/MUM/2010 ) 4 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 15/3/2011 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 16/3/2011 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER