Akhil Gau Raksha Sena, RAJKOT-GUJARAT V. The Commissioner of Income Tax-III, RAJKOT-GUJARAT

ITA 210/RJT/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6820 (ITAT-RAJKOT)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-05-2014
• Assessment Year: misc
• Appeal Filed On: 25-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M L MEENA
• Assessee Lawyers: DR ADHIA
• Section: 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO.210/RJT/2014 AKHIL GAU RAKSHA SENA, C/O. SHRI KETANBHAI C. VYAS, NR. I.G. BUNGALOW, GIRI VIHAR, GANDHIGRAM, JUNAGADH PAN : AADTA 6932 C ( / APPELLANT) THE COMMISSIONER OF INCOME-TAX, RAJKOT-III RAJKOT / RESPONDENT / ASSESSEE BY SHRI D.R. ADHIA, AR / REVENUE BY SHRI M L MEENA, D.R. / DATE OF HEARING 06.05.2014 !'# / DATE OF PRONOUNCEMENT 12.05.2014 / ORDER THIS APPEAL BY THE ASSESSEE-INSTITUTION/ASSOCIATION IS AGAINST THE ORDER DATED 13.09.2013 OF COMMISSIONER OF INCOME-TAX, RAJKOT-II I, RAJKOT REJECTING THE APPLICATION OF THE ASSESSEE-INSTITUTION/ASSOCIATION FOR REGISTRATION U/S 12AA OF THE INCOME-TAX ACT, 1961. 2. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE-INSTI TUTION/ASSOCIATION CAME INTO EXISTENCE BY A TRUST DEED ON 27.09.2012 AND THE SAM E HAS BEEN REGISTERED UNDER THE BOMBAY PUBLIC TRUST ACT WITH THE ASST. CHARITY COMM ISSIONER VIDE CERTIFICATE DATED 28.09.2012. THE ASSESSEE-INSTITUTION/ASSOCIATION FI LED AN APPLICATION FOR REGISTRATION U/S 12AA OF THE INCOME-TAX ACT ON 22.03.2013 ALONGW ITH FOLLOWING DOCUMENTS/DETAILS:- I) FORM NO.10A II) COPY OF TRUST DEED UNDER WHICH THE TRUST WAS C REATED III) COPY OF TRUST REGISTRATION CERTIFICATE UNDER BPT ACT, 1950 IV) LIST OF NAME AND ADDRESS WITH TELEPHONE NUMBER S OF TRUSTEES V) COPY OF PAN CARD VI) COPY OF BANK STATEMENT (BANK OF BARODA) VII) AUTHORITY LETTER U/S 288 OF THE ACT. 3. IN THE IMPUGNED ORDER, LD. CIT, RAJKOT-III, RAJK OT REJECTED THE AFORESAID APPLICATION OF THE ASSESSEE-INSTITUTION/ASSOCIATION FOR REGISTRATION U/S 12AA FOR THE DETAILED REASON GIVEN IN PARAGRAPH 7 OF THE IMPUGNE D ORDER, WHICH READS AS UNDER:- 2 210-RJT-2014 - AKHIL GAU RAKSHA SENA (SMC) 7. AS PER ARTICLE 17 OF THE MEMORANDUM OF ASSOCI ATION, THE INSTITUTION CAN BE CLOSED IN UNUSUAL CIRCUMSTANCES. IT IS THUS SEEN THAT IT IS NOT AN IRREVOCABLE INSTITUTION. THE ASSESSEE TRUST HAS NOT FURNISHED ORIGINAL INSTRUMENT THROUGH WHICH THE INSTITUTION CAME INTO EXISTENCE. AUDITED BOOKS OF ACCOUNTS ALONGWITH RETURNS OF INCOME ARE NOT FURNISHED. IN A BSENCE OF AUDITED BOOKS OF ACCOUNTS, ACTIVITIES OF THE ASSESSEE INSTITUTION CA N NOT BE VERIFIED. FURTHER, ON VERIFICATION OF THE COPY OF THE TRUST DEED IT IS OB SERVED THAT THERE IS NO DISSOLUTION CLAUSE IN THE TRUST DEED. THE TRUST D EED OF THE TRUST IS INCOMPLETE SO FAR AS NO CLAUSE REGARDING ITS ASSETS AFTER MEET ING ALL LIABILITIES, IN CASE OF DISSOLUTION, IS INCORPORATED. IN ABSENCE OF ADEQUAT E WINDING UP CLAUSE IN CASE OF DISSOLUTION OF TRUST, THE ARRANGEMENT OF DISPOSA L OF NET ASSETS AFTER MEETING ITS ALL LIABILITIES ARE NOT SPECIFIED IN TRUST DEED . THUS, THERE IS NO MATERIAL PLACED ON THE BASIS OF WHICH SATISFACTION CAN BE DRAWN ABO UT THE CHARITABLE NATURE OF THE OBJECTS, GENUINENESS AND THE EXISTENCE OF THE I NSTITUTION. THE LOWER AUTHORITIES HAVE ALSO NOT RECOMMENDED THE CASE OF T HE ASSESSEE INSTITUTION FOR REGISTRATION U/S 12AA. UNDER THESE CIRCUMSTANCES, N O REGISTRATION U/S 12AA OF THE IT ACT 1961 CAN BE GRANTED TO THE APPLICANT INS TITUTION. AGGRIEVED WITH THE ORDER OF LD. CIT, RAJKOT-III, R AJKOT REJECTING THE APPLICATION U/S 12AA, THE ASSESSEE-INSTITUTION/ASSOCIATION IS I N APPEAL BEFORE THE TRIBUNAL, ON THE FOLLOWING GROUNDS:- 1. THE LD. C.I.T. HAS ERRED IN LAW AND FACTS IN RE JECTING APPLICATION FOR REGISTRATION U/S 12A FILED BY THE APPELLANT. THE AP PELLANT DESERVES REGISTRATION. 2. THE LD. C.I.T. HAS ERRED IN LAW AND FACTS IN REJ ECTING THE APPLICATION MADE FOR REGISTRATION U/S 12A ON THE IRRELEVANT GRO UNDS. THE APPELLANT DESERVES REGISTRATION. 3. THE LD. C.I.T. HAS ERRED IN LAW AND FACTS IN REJ ECTING THE APPLICATION MADE FOR REGISTRATION U/S 12A ON THE IRRELEVANT CON SIDERATIONS. THE APPELLANT DESERVES REGISTRATION. 4. THE LD. C.I.T. HAS ERRED IN LAW IN NOT APPRECIAT ING THAT AS PER LEGAL AND STATUTORY POSITION, THE APPELLANT WAS DESERVING REG ISTRATION. THE APPELLANT DESERVES REGISTRATION. 5. THE LD. C.I.T. HAS ERRED IN NOT GRANTING REGISTR ATION WITHOUT APPRECIATING THE FACTUAL AND LEGAL POSITION THAT THE APPELLANT D ESERVES REGISTRATION FORM THE FIRST DAY OF F.Y. IN WITH APPLICATION IS MADE, I.E. 01.04.2012. THE APPELLANT DESERVES REGISTRATION. 6. WITHOUT PREJUDICE THE LD. C.I.T. HAS ERRED IN NO T PROVIDING REASONABLE TIME AND ADEQUATE OPPORTUNITY. THE TRUST DESERVES R EGISTRATION. 7. THE APPELLANT CRAVES LEAVE TO ADD/ALTER/AMEND AN D / OR ANY OR ALL THE GROUNDS OF APPEAL BEFORE THE ACTUAL HEARING TAKE PL ACE. 4. AT THE TIME OF HEARING, ON BEHALF OF THE ASSESSE E-INSTITUTION/ASSOCIATION, SHRI D.R. ADHIA, AR, APPEARED AND POINTED OUT THAT THE L D. CIT IN PARAGRAPH 3 OF THE IMPUGNED ORDER HAS MENTIONED THAT THE MAIN OBJECTS OF THE TRUST ARE GAU SEVA AND TO PROVIDE EDUCATIONAL, MEDICAL AND SOCIAL RELIEF W ITHOUT ANY CAST, CREEDS OR SEX AND THEREFORE, THE OBJECTS OF THE TRUST ARE SUCH THAT T HE TRUST IS ENTITLED TO REGISTRATION. HE 3 210-RJT-2014 - AKHIL GAU RAKSHA SENA (SMC) FURTHER POINTED OUT THAT THE LD. CIT, AFTER ABOUT S IX MONTHS TIME AS MENTIONED IN PARAGRAPH 5 OF HIS IMPUGNED ORDER DATED 13.09.2013, CALLED FOR SOME INFORMATION BY 10.09.2013, I.E. BY GIVING ONLY SIX DAYS TIME AND W ITHIN THREE DAYS THERE FROM 13.09.2013 HE PASSED AN ORDER REJECTING THE REGISTR ATION; THUS, NO ADEQUATE AND PROPER OPPORTUNITIES ARE ALLOWED FOR SUBMITTING THE PAPERS/DETAILS. THE LD. COUNSEL FURTHER POINTED OUT THAT THE ISSUE OF REFUSING REGI STRATION IN THE ABSENCE OF DISSOLUTION CLAUSE IN THE TRUST DEED IS COVERED IN FAVOUR OF AS SESSEE-INSTITUTION/ASSOCIATION WITH THE FOLLOWING DECISIONS:- I) ITAT B BENCH IN THE CASE OF SHREE CHARGAM DASH A PORWAD MAHAMANDAL V. DIT (EXEMPTION) BEARING ITA NOS. 337 & 338/AHD/2013 DATED 08.05.2013 II) ITAT DELHI BENCH IN THE CASE OF SHRI SAI SAMARP AN TRUST, 23 DTR 125 III) ITAT DELHI BENCH IN THE CASE OF DHARMA SANSTHA PAK SANGH (NIVYAS), 118 TTJ DELHI 823. 5. SHRI M.L. MEENA, LD. DEPARTMENTAL REPRESENTATIV E, APPEARED FOR THE REVENUE, VEHEMENTLY SUPPORTED THE ORDER OF LD. CIT . HE FURTHER POINTED OUT THAT SINCE VARIOUS DOCUMENTS INCLUDING ORIGINAL TRUST DE ED WERE NOT PRODUCED BEFORE THE LD. CIT, THE MATTER BE REMANDED TO THE FILE OF LD. CIT TO ENABLE THE ASSESSEE TO PRODUCE ALL THE DOCUMENTS INCLUDING THE ORIGINAL TR UST DEED. 6. HAVING HEARD BOTH THE SIDES, I HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT AD EQUATE TIME WAS NOT ALLOWED BY THE LD. CIT, RAJKOT-III, RAJKOT TO THE ASSESSEE-INSTITUTION /ASSOCIATION TO FURNISH VARIOUS DOCUMENTS/DETAILS INCLUDING ORIGINAL TRUST DEED. I , THEREFORE, IN THE INTEREST OF JUSTICE, SET ASIDE THE IMPUGNED ORDER PASSED BY LD. CIT, RAJ KOT-III, RAJKOT AND DIRECT HIM TO RECONSIDER THE APPLICATION OF THE ASSESSEE-INSTITUT ION/ASSOCIATION AFRESH IN ACCORDANCE WITH LAW BY PROVIDING ADEQUATE OPPORTUNI TY TO THE ASSESSEE- INSTITUTION/ASSOCIATION TO FURNISH VARIOUS DETAILS/ DOCUMENTS INCLUDING THE ORIGINAL TRUST DEED. THE ASSESSEE-INSTITUTION/ASSOCIATION IS ALSO DIRECTED TO PRODUCE ALL THE DETAILS/DOCUMENTS INCLUDING ORIGINAL TRUST DEED BEF ORE THE LD. CIT WHO WILL VERIFY THE SAME AND PASS AN APPROPRIATE ORDER AS PER LAW AS DE EMED FIT WITHIN A REASONABLE TIME. 4 210-RJT-2014 - AKHIL GAU RAKSHA SENA (SMC) 7. BEFORE PARTING, I MAY MENTION HERE THAT THE LD. CIT WILL ALSO CONSIDER THE VARIOUS DECISIONS CITED BY THE LD. COUNSEL (SUPRA) REGARDING THE CONTENTION THAT THE REGISTRATION OF A TRUST CANNOT BE REFUSED SOLELY ON THE GROUND THAT NO DISSOLUTION/WINDING UP CLAUSE IN THE TRUST DEED OF A TRUST. 8. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 12.05.2014 !$ /RAJKOT *BT / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- AKHIL GAU RAKSHA SENA, C/O. SHRI KETA NBHAI C. VYAS, NR. I.G. BUNGALOW, GIRI VIHAR, GANDHIGRAM, JUN AGADH 2. / RESPONDENT- THE COMMISSIONER OF INCOME-TAX, RAJK OT-III, RAJKOT 3. ,0,1 * * 2 / CONCERNED JT. CIT, RANGE-1, JUNAGADH 4 . 345 1, * 1#, !$ / DR, ITAT, RAJKOT 5 . 57 89 / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT