Shree Vagad Aawas Relief Foundation, Thane V. Commissioner of Income-tax,

ITA 189/PUN/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1094 (ITAT-PUNE)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 24-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Assessee Lawyers: ROHAN N DEDHIA
• Keywords: Charitable institution; Source of fund
• Section: 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 189/PN/2015 SHRI VAGAD AAWAS RELIEF FOUNDATION, B-305, MANAS RESIDENCY, NEAR TEEN PETROL PUMP, L.B.S. ROAD, THANE (W)-400602 PAN : AARCS7307J ....... / APPELLANT ' / V/S. COMMISSIONER OF INCOME TAX (EXEMPTIONS), PUNE / RESPONDENT ASSESSEE BY : SHRI ROHAN N. DEDHIA REVENUE BY : SHRI B.C. MALAKAR / DATE OF HEARING : 24-09-2015 / DATE OF PRONOUNCEMENT : 24-09-2015 ( / ORDER PER VIKAS AWASTHY, JM : THE APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE OR DER OF COMMISSIONER OF INCOME TAX (EXEMPTIONS), PUNE DATED 24-1 2-2014 REJECTING THE APPLICATION OF THE ASSESSEE FOR GRANT OF REG ISTRATION U/S. 12A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE AC T). 2 ITA NO. 189/PN/2015 2. THE BRIEF FACTS OF THE CASE ARE : THE ASSESSEE IS A CO MPANY REGISTERED U/S. 25 OF THE COMPANIES ACT, 1956. THE ASSES SEE APPLIED FOR REGISTRATION U/S. 12AA OF THE ACT VIDE APPLICATION DATED 03-06-2014 ALONG WITH THE NECESSARY DOCUMENTS BEFORE THE COMMISSION ER OF INCOME TAX-II, THANE REGION. AS PER THE CONTENTIONS OF THE LD. AR SOME ADDITIONAL DOCUMENTS WERE SOUGHT BY THE COMMISSIONER OF I NCOME TAX, THANE. THE SAME WERE SUBMITTED BY THE ASSESSEE ON 25 -08-2014. THEREAFTER, THE CASE OF ASSESSEE WAS TRANSFERRED TO COM MISSIONER OF INCOME TAX (EXEMPTIONS), PUNE BY VIRTUE OF CHANGE IN JURISD ICTION VIDE CBDT NOTIFICATION NO. 52/2014 DATED 22-10-2014. THE COMM ISSIONER OF INCOME TAX, PUNE VIDE COMMUNICATION DATED 10-12-2014 ASKED FOR CERTAIN MORE DOCUMENTS WHICH WERE SUBMITTED BY THE ASS ESSEE ON 24-12-2014. ON THE SAME DAY THE COMMISSIONER OF INCOME TAX (EXEMPTIONS), PUNE VIDE IMPUGNED ORDER REJECTED THE APPLICA TION OF THE ASSESSEE ON THE GROUND, THAT THE ASSESSEE HAS FAILED TO FURNISH NECESSARY DOCUMENTS AND ONLY A COPY OF REGISTRATION CE RTIFICATE ISSUED UNDER THE COMPANIES ACT, 1956 WAS SUBMITTED. THE COPIES OF MEMORANDUM AND ARTICLES OF ASSOCIATION OF THE COMPANY HA VE NOT BEEN FILED BY THE ASSESSEE. THE COMMISSIONER OF INCOME T AX FURTHER OBSERVED THAT THE ASSESSEE HAS NOT BEEN ABLE TO EXPLA IN ABOUT THE DONATIONS GIVEN TO SAHIYARA MEDICARE FOUNDATION TRUST A ND SHREE GADHSIA JEEV SURAKSHA CHARITABLE AND RESEARCH TRUST. T HE COMMISSIONER OF INCOME TAX ALSO ASKED THE ASSESSEE TO FU RNISH THE LIST OF DONATIONS TOWARDS THE BUILDING FUND ALONG WITH RELEVANT B ANK DETAILS. THE COMMISSIONER OF INCOME TAX WHILE REJECTING THE APPLICATION HELD THAT THE LIST OF DONORS SUBMITTED BY THE A SSESSEE LACK DETAILS LIKE ADDRESS, PAN AND OTHER SUPPORTING DOCUMENTS . THE OBJECT OF THE TRUST TO PURCHASE FLAT FOR GIVING IT ON RENT TO THE WEAKER SECTION OF THE SOCIETY CANNOT BE ACCEPTED TO BE OF CHARITABLE NATU RE UNLESS ESTABLISHED. 3 ITA NO. 189/PN/2015 3. SHRI ROHAN N. DEDHIA APPEARING ON BEHALF OF THE ASSESSE E SUBMITTED THAT ALL THE DOCUMENTS ASKED BY THE COMMISSIO NER OF INCOME TAX WERE ALREADY SUBMITTED BY THE ASSESSEE ALON G WITH THE APPLICATION, HOWEVER, THE ASSESSEE AGAIN FURNISHED THE DOCU MENTS VIDE COMMUNICATION DATED 25-08-2014 AND 24-12-2014. THE C OMMISSIONER OF INCOME TAX WHILE DECIDING THE FATE OF APPLICATION DID NOT T AKE INTO CONSIDERATION ANY OF THE DOCUMENTS SUBMITTED BY THE ASS ESSEE. THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE COMMISSIONER OF IN COME TAX EXCEEDED HIS JURISDICTION IN SEEKING INFORMATION REGARDING U TILIZATION OF FUNDS AND SOURCE OF FUNDS AT THE TIME OF REGISTRATION. IN SUPPORT OF HIS SUBMISSIONS THE LD. AR PLACED RELIANCE ON THE DECISION OF CO- ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF D.Y. PATIL EDUCATION SOC IETY VS. COMMISSIONER OF INCOME TAX (CENTRAL), PUNE IN ITA NO. 1280/P N/2007 DECIDED ON 27-09-2011. 4. SHRI B.C. MALAKAR REPRESENTING THE DEPARTMENT VEHEME NTLY SUPPORTED THE ORDER OF COMMISSIONER OF INCOME TAX IN REJ ECTING THE APPLICATION OF THE ASSESSEE FOR GRANT OF REGISTRATION U/S. 1 2AA OF THE ACT. THE LD. DR SUBMITTED THAT THE ASSESSEE HAS FAILED TO FURNISH SUPPORTING DOCUMENTS AS HAS BEEN CLEARLY MENTIONED IN T HE IMPUGNED ORDER. IN THE ABSENCE OF NECESSARY DOCUMENTS THE APP LICATION FOR GRANT OF REGISTRATION U/S. 12AA HAS BEEN RIGHTLY REJECTED BY C OMMISSIONER OF INCOME TAX. 5. BOTH SIDES HEARD. A PERUSAL OF IMPUGNED ORDER SHOWS THAT THE COMMISSIONER OF INCOME TAX HAS PRIMARILY REJECTED THE AP PLICATION FOR GRANT OF REGISTRATION U/S. 12AA ON THE GROUND THAT THE ASSESSEE HAS NOT FURNISHED CERTIFIED COPY OF MEMORANDUM AND ARTICLES OF ASSOC IATION OF THE ASSESSEE COMPANY. THE LD. AR OF THE ASSESSEE HAS P LACED ON RECORD THE COPIES OF LETTER DATED 03-06-2014, 25-08-2014 AND 2 4-12-2014 VIDE 4 ITA NO. 189/PN/2015 WHICH THE ASSESSEE HAS FURNISHED THE DOCUMENTS VIZ. REGIS TRATION CERTIFICATE UNDER THE COMPANIES ACT, 1956, MEMORANDUM AND ARTICLES OF ASSOCIATION OF THE COMPANY, NAME, ADDRESS AND PAN OF THE DIRECTORS OF THE COMPANY, PAN CARD OF THE COMPANY, AUDITED ACCOUNT S FOR THE YEAR ENDED 31 ST MARCH, 2013, COPY OF INCOME TAX RETURN FILED FOR ASSESSMENT YEAR 2013-14, DECLARATION U/S. 11(5) OF THE ACT , CERTIFICATE U/S. 13(1)(C) OF THE ACT, ETC. THE ABOVE MENTIONED THREE LET TERS BEAR THE ACKNOWLEDGEMENT STAMP OF THE INCOME TAX DEPARTMENT. T HUS, THE FINDINGS OF COMMISSIONER OF INCOME TAX THAT THE ASSESSEE H AS NOT FURNISHED THE NECESSARY DOCUMENTS ARE AGAINST THE FACTS ON RECO RD. A FURTHER PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE COMMISSIONER OF INCOME TAX HAS SOUGHT EXPLANATION FROM TH E ASSESSEE WITH REGARD TO THE DONATIONS RECEIVED AND UTILIZATION OF FU NDS. THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF SANJEEVAMM A HANUMANTHE GOWDA CHARITABLE TRUST VS. DIRECTOR OF INCOME TAX (EXEMPTION) REPORTED AS 285 ITR 327 HAS HELD THAT FOR TH E PURPOSE OF REGISTRATION U/S. 12AA OF THE ACT, THE CONCERNED AUTHORIT Y HAS TO SATISFY ITSELF WITH THE GENUINENESS OF THE ACTIVITIES OF THE TRUST OR INSTITUTION AND HOW THE INCOME DERIVED FROM THE TRUST PROPERTY IS A PPLIED TO CHARITABLE OR RELIGIOUS PURPOSE AND NOT THE NATURE OF THE ACTIVITY BY WHICH THE INCOME WAS DERIVED BY THE TRUST. THE DECISION OF THE HONBLE KARNATAKA HIGH COURT HAS BEEN FOLLOWED BY THE CO-ORDINAT E BENCH OF THE TRIBUNAL IN THE CASE OF D.Y. PATIL EDUCATION SOCIETY VS. COMMISSIONER OF INCOME TAX (CENTRAL), PUNE (SUPRA). 6. IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE CONSIDERED VIEW THAT THE COMMISSIONER OF INCOME TAX (EXEM PTIONS) HAS NOT CONSIDERED THE APPLICATION OF THE ASSESSEE IN THE RIGH T SPRIT. THEREFORE, WE SET ASIDE THE IMPUGNED ORDER AND REMIT THE FILE BACK TO 5 ITA NO. 189/PN/2015 THE COMMISSIONER OF INCOME TAX (EXEMPTIONS), PUNE FOR RECONSIDERATION OF THE APPLICATION OF THE ASSESSEE FOR GRA NT OF REGISTRATION U/S. 12AA OF THE ACT, IN ACCORDANCE WITH LAW. THE COMMISSIONER OF INCOME TAX WHILE DECIDING THE APPLICATION DE-NOVO SHALL TAKE INTO CONSIDERATION ALL THE NECESSARY DO CUMENTS WHICH ARE ALREADY ON RECORD AND SHALL ALSO ADHERE TO TH E SCOPE OF ENQUIRY AS LAID DOWN IN THE CASE OF SANJEEVAMMA HANUMANT HE GOWDA CHARITABLE TRUST VS. DIRECTOR OF INCOME TAX (EXEMPTION) (SUPRA). 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 24 TH DAY OF SEPTEMBER, 2015. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 24 TH SEPTEMBER, 2015 RK ()*%+,#-#.+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(EXEMPTIONS), PUNE 4. !'( %%)* , )* , + +,- , / DR, ITAT, B BENCH, PUNE. 5. ( . /0 / GUARD FILE. // ! % // TRUE COPY// #1 / BY ORDER, %2 )- / PRIVATE SECRETARY, )* , / ITAT, PUNE