Shushrusha Charitable Trust, Cuttack V. CIT(Exemptions), Hyderabad

ITA 19/CTK/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5373 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 18-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KUNAL SINGH
• Assessee Lawyers: S K SAHOO
• Keywords: Charitable institution; Opportunity of being heard
• Section: 80G; 12AA; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ./ ITA NO. 19 / CTK /20 1 6 ( / ASSESSMENT YEAR : NA ) SHUSHRUSHA CHARITABLE TRUST A T - LINGIPUR, PO - SISUPALAGADA, BHUBANESWAR - 75100 2 VS. CIT(EXEMPTIONS) HYDERABAD ./ ./ PAN/GIR NO. : A A OTS 5907 N ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI S.K.SAHOO , AR /REVENUE BY : SHRI KUNAL SINGH , CITDR / DATE OF HEARING : 10 / 10 /201 7 / DATE OF PRONOUNCEMENT 12 / 10 /201 7 / O R D E R PER SHRI PAV AN KUMAR GADALE, JM : TH E ASSESSEE HAS FILED AN APPEAL AGAINST THE REJECT ION ORDER OF CIT(EXEMPTIONS), HYDERABAD, PASSED IN F.NO.CIT(E). (3) /BBSR/ 12A/2014 - 15, DATED 28.09.2015 U/S.12AA(1)(B)(II) OF THE I.T.ACT. 2. THE ASSESSEE HAS RAISED THE GROUND OF APPEAL : - 1. THAT THE ORDER PASSED IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE WITHOUT PROPER ANALYSIS OF THE LAW AND WITHOUT GIVING DUE OPPORTUNITY OF BEING HEARD WHICH IS HIGHLY ARBITRARY, UNLAWFUL LAND UNJUST AND HENCE, SHOULD BE QUASHED IN TOTO. 2. THAT SERVICE OF THE ORDER IS AGAINST THE PROVISIONS OF LAW VIOLATING TH E GUIDELINES ISSUED BY THE HON'BLE CBDT AND HENCE, SHOULD BE QUASHED IN TOTO. 3. THAT THE ORDER SO PASSED VIOLATING THE PROVISIONS OF SECTION 12AA(1) AND (3) OF THE INCOME TAX ACT, 1961 IS BAD IN LAW AND HENCE SHOULD BE QUASHED IN TOTO THEREBY ALLOWING THE REGISTRATION U/S. 12AA OF THE INCOME TAX ACT, 1961 TO THE APPELLANT ASSESSEE. 4. THAT IT IS A MIS - STATEMENT OF FACT THAT THERE HAS BEEN VIOLATION RELATING TO THE INVESTMENTS TO BE NOT AS PER SECTION 11 (5) OF THE INCOME TAX ACT. ITA NO. 19 /CTK/2016 2 5. THAT HON'BLE C OMMISSIONER OF INCOME TAX (EXEMPTIONS) HAS GONE BEYOND THE PROVISIONS OF THE ACT REJECTING THE REGISTRATION U/S. 12AA TAKING THE PLEA THAT THERE IS NO INTENTION OF THE TRUST TO TAKE PERMISSION OF THE COMMISSIONER OF INCOME TAX (EXEMPTIONS) PRIOR TO MAKING ANY SUCH AMENDMENT. 6. THAT WITHOUT SPEAKING ANY SINGLE WORD RELATING TO THE APPLICATION FOR EXEMPTION U/S. 80G OF THE INCOME TAX ACT, 1961, THE ORDER PASSED IS ALSO AGAINST THE PROVISIONS OF LAW REQUIRES YOUR HONOUR'S INTERFERENCE. 7. THAT THE ASSES SEE CRAVES TO LEAVE, TO ADD, ALTER, MODIFY OR RESCIND ANY OF THE GROUND OR GROUNDS OF APPEAL BEFORE OR DURING THE HEARING OF THE APPEAL. 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A REGISTERED TRUST , ENGAGED IN VARIOUS SOCIAL CHARITABLE ACTIVITIE S AND MADE AN APPLICATION IN FORM NO.10A FOR REGISTRATION U/S.12AA OF THE ACT ON 24.03.2015 . T HE CASE WAS POSTED ON 13 . 8 .2015 , IN RESPONSE, THE MANAGING TRUSTEE OF THE ASSESSEE TRUST APPEARED AND FILED INFORMATION. T HE CIT(E) FOUND THAT THE ASSESSEE TRUST COULD NOT PROVIDE PROPER DETAILS FROM THE TRUST DEED ON AMENDMENT CLAUSE AND INVESTMENT CLAUSE. THEREFORE, THE CIT( E ) OBSERVED THAT THE AMENDMENT CLAUSE IS NOT PRESENT IN THE TRUST DEED AND ALSO THE INVESTMENT CLAUSE LACKS CLARITY IN THE DEED AND REJECTE D THE APPLICATION OF THE ASSESSEE. 4 . AGGRIEVED BY THE ORDER OF CIT(E), THE ASSESSEE HAS FILED AN APPEAL WITH THE TRIBUNAL. 5 . BEFORE US, LD. AR OF THE ASSESSEE ARGUED THE GROUNDS AND REITERATED THE SUBMISSIONS MADE BEFORE THE CIT(E) ON THE DISPUTED ISSUE OF AMENDMENT CLAUSE AND INVESTMENT CLAUSE. THE LD. AR OF THE ASSESSEE DREW OUR ATTENTION TO THE TRUST DEED FILED BEFORE THE TRIBUNAL AND TO ITA NO. 19 /CTK/2016 3 SUBSTANTIATE HIS ARGUMENTS THAT THE ABOVE CLAUSES HAVE BEEN INCORPORATED IN THE TRUST DEED. 6 . CONTRA, LD. DR RELIED ON THE CIT(E) AND OPPOSED TO THE GROUNDS. 7 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. LD. ARS CONTENTION THAT THE CIT(E) HAS ERRED IN REJECTING THE REGISTRATION U/S.12AA ON THE GROUNDS AS MENTIONED I N THE ORDER PASSED ON 28 .9.2015. A S FAR AS AMENDMENT CLAUSE IS CONCERNED, THE LD. AR DREW OUR ATTENTION TO THE PAGE 5 CLAUSE (N) OF THE TRUST DEED WHICH READS AS UNDER : - (N) TO MAKE, VARY, ALTER OR MODIFY SCHEMES, RULES AND REGULATIONS FOR CARRYING OUT THE OBJECTS OF THE TRUST A ND FOR THE MANAGEMENT OF THE AFFAIRS THEREOF AND/OR RUNNING ANY INSTITUTION IN FURTHERANCE OF THE OBJECTS OF THE TRUST AND OTHERWISE FOR GIVING EFFECT TO THE OBJECTS OF THE TRUST. SIMILARLY I N RESPECT OF THE INVESTMENT CLAUSE, LD. AR D REW OUR ATTENTION TO PAGE 5 CLAUSE (D), WHICH READS AS UNDER D ) TO INVEST THE TRUST FUND EITHER IN THE PURPOSE OF MORTGAGE OF IMMOVABLE PROPERTY OR IN SHARES, STOCK OR DEBENTURES OR OTHER SECURITIES AND INVESTMENTS, OR IN DEPOSITS WITH OR LOANS TO ANY COMPANY, ,BANK, FIRM O R ANY OTHER PERSON, AND TO ALTER, VARY OR TRANSPOSE SUCH INVESTMENTS, FROM TIME TO TIME AT THE DISCRETION OF THE TRUSTEES. ON PERUSAL OF THE ABOVE CLAUSES, WE FOUND THAT THE CIT(E) HAS OVERLOOKED THESE FACTS . FURTHER AT THE TIME OF GRANTING REGISTRATION TO THE TRUST, THE LD. CIT(E) HAS TO BE SATISFIED WITH THE OBJECTS OF THE TRUST AND GENUINENESS OF THE ACTIVITIES. ACCORDINGLY, IN THE INTEREST OF SUBSTANTIAL JUSTICE, WE ARE OF THE VIEW THAT THE TRUST IS ELIGIBLE FOR REGISTRATION U/S.12AA OF THE ACT AND WE DIRECT THE CIT(E) TO GRANT REGISTRATION TO ASSESSEE AND THE GROUND OF APPEAL OF ASSESSEE IS ALLOWED. ITA NO. 19 /CTK/2016 4 8 . THUS, APPEAL OF THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 12 / 10 / 201 7 . SD/ - ( N. S. SAINI ) SD/ - ( PA V AN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 12 / 10 /201 7 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APP ELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//