M/s Mar Sleeva Chruch Manttradey , Mangalore V. Commissioner of Income TAx (9Exemptions) , Bangalore

ITA 2101/BANG/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5594 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2017-2018
• Appeal Filed On: 02-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRICILLA SINGSIT
• Assessee Lawyers: V K GURUNATHAN
• Keywords: Opportunity of being heard
• Section: 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH C BEFORE S HRI JASON P BOAZ , ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER I.T . A. NO. 2101 /BANG/20 17 M/S. MAR SLEEVA CHURCH MANTRADY, MANTRADY POST, MOODBIDRI, MANGALORE TALUK. . APPELLANT. VS. COMMISSIONER OF INCOME TAX (EXEMPTIONS), BANGALORE. .. RESPONDENT. APPELLANT BY : SHRI V.K. GURUNATHAN, ADVOCATE. R E SPONDENT BY : SHRI PRICILLA SINGSIT, CIT (D.R.) DATE OF H EARING : 5.9.2018. DATE OF P RONOUNCEMENT : 14 .09 .201 8 . O R D E R PER SHRI JASON P BOAZ , A .M . : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX ( EXEMPTION S), BANGALORE UNDER SECTION 12AA(1)(B)(II) OF THE INCOME TAX ACT, 1961 (IN SHORT ' THE ACT') DT.20.09.2017. 2 IT A NO. 2101 /BANG/20 17 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE AS UNDER : - 2.1 THE ASSESSEE, A TRUST ESTABLISHED BY TRUST DEED DT.14.9.2015; ADMITTEDLY FILED AN APPLICATION FOR REGISTRATION UNDER SECTION 12AA OF THE ACT ON 30.03.2017 IN FORM NO.10A. AS PER THE IMPUGNED ORDER, THE LD. CIT NOTES THAT CERTAIN CLARIFICATIONS AND DETAILS WERE CALLED FOR IN RESPECT OF (1) RENT / LEASE AGREEMENT FOR TRUST PREMISES OR NOC FROM THE PREMISES OWNER AND (2) AREA OF OPERATION MUST BE IN INDIA; VIDE L ETTER DT.15.6.2017 RE QUIRING THE SAME TO BE FILED BY 30.6.2017. WHILE THE LD. CIT NOTES AT PARA 1 THAT THE ASSESSEE HAD FILED DETAILS ON 27.7.2017, HE GOES ON TO CONTRADICT HIMSELF IN PARAS 2 & 3 OF THE IMPUGNED ORDER STATING THAT IN THE ABSENCE OF DETAIL S / DOCUMENTS SOUGHT FOR IT IS NOT POSSIBLE TO ASCERTAIN THE GENUINENESS OF THE OBJECTS AND ACTIVITIES OF THE ASSESSEE TRUST. FINALLY AT PARA 6 OF THE IMPUGNED ORDER, THE LD. CIT (E) GOES ON TO REJECT THE ASSESSEE'S APPLICATION FOR REGISTRATION UNDER SECT ION 12AA OF THE ACT FOR NON - PROSECUTION. 3.1 AGGRIEVED BY THE ORDER OF THE CIT (EXEMPTIONS), BANGALORE DT.20.9.2017 DISMISSING THE ASSESSEE'S APPLICATION FOR REGISTRATION UNDER 3 IT A NO. 2101 /BANG/20 17 SECTION 12AA OF THE ACT, THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL, WHEREIN IT HAS RAISED THE FOLLOWING GROUNDS : - 4.0 GROUND NOS.1 & 4 . 4.1 IN THESE GROUNDS (SUPRA), THE ASSESSEE CONTENDS THAT THE LEARNED CIT (APPEALS) HAD ERRONEOUSLY REJECTED THE ASSESSEE'S APPLICATION FOR 4 IT A NO. 2101 /BANG/20 17 REGISTRATION U NDER SECTION 12AA OF THE ACT FOR NON - PROSECUTION BY STATING THAT THE DETAILS CALLED FOR WERE NOT FILED, WHEN IN FACT THEY WERE FURNISHED. IN THIS REGARD, THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO PAGES 37 TO 47 OF PAPER BOOK (PAGES 1 TO 98) FILED ON 23.1.2018 TO SUBMIT THAT THE ASSESSEE HAS IN FACT FILED THE DETAILS CALLED FOR BY THE LD. CIT S LETTER DT.15.6.2017 VIDE LETTER DT.23.6.2017 AND DISPATCHED THE SAME BY SPEED POST ON 23.6.2017 ITSELF. ATTENTI ON OF THE BENCH WAS ALSO DRAWN TO PAGE 48 OF THE PAPER BOOK WHICH IS A COPY OF LETTER OF SR. POST MASTER (GAZ), MANGALORE HPO STATING THAT THE LETTER DISPATCHED BY THE ASSESSEE ON 23.6.2017 CONTAINING THE ASSESSEE'S REPLY WAS DELIVERED TO THE IT DEPARTMEN T ON 27.6.2017. IN THESE CIRCUMSTANCES, THE LEARNED AUTHORISED REPRESENTATIVE CONTENDS IT IS APPARENT THAT THE LD. CIT HAS DISPOSED OFF THE ASSESSEE'S APPLICATION FOR REGISTRATION EX PARTE ON FACTUALLY INCORRECT GROUNDS OF NON - PROSECUTION AND ALSO WITHOU T CONSIDERATION OF THE ASSESSEE'S SUBMISSION / DE T AILS F ILED VIDE LETTER DT.23.6.2017 ALMOST THREE MONTHS BEFORE THE LD. CIT PASSED THE IMPUGNED ORDER. IT IS PRAYED THAT THE IMPUGNED ORDER OF THE LD. CIT BE EXPORT TURNOVER ASIDE AND THE 5 IT A NO. 2101 /BANG/20 17 MATTER BE RESTORE D TO THE FILE OF CIT AND WITH THE DIRECTION TO DISPOSE OF ASSESSEE'S APPLICATION ON MERITS AFTER AFFORDING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. 4.2 PER CONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR REVENUE SUPPORTED THE FINDINGS RE NDERED BY TH E LD. CIT IN THE IMPUGNED ORDER. 4.3.1 WE HAVE HEARD BOTH THE LD. DR FOR REVENUE AND THE LD. AR FOR THE ASSESSEE AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. FROM A PERUSAL OF THE IMPUGNED ORDER AND PARTICULARLY PARAS 2 TO 7 THEREOF, WHICH ARE ALL EXTRACTED HEREUNDER; IT IS AMPLY CLEAR THAT THE LD. CIT REJECTED THE ASSESSEE'S APPLICATION FOR REGISTRATION UNDER SECTION 12AA OF THE ACT FOR NON - PROSECUTION AND BY STATING THAT DETAILS CALLED FOR WERE NOT FILED BY THE ASSESS EE. 6 IT A NO. 2101 /BANG/20 17 4.3.2 THE SUBMISSIONS PUT FORTH BY THE LEARNED AUTHORISED REPRESENTATIVE ESTABLISH THAT THE ASSESSEE HAD INDEED FURNISHED DETAILS C ALLED FOR VIDE THE LD. CIT S LETTER DT.15.6.2017 BY LETTER DT.23.6.2017 7 IT A NO. 2101 /BANG/20 17 WHICH UNDOUBTEDLY REACHED THE DEPARTMEN T ON 25.6.2017; WELL BEFORE THE LD. CIT PASSED THE IMPUGNED ORDER ON 20.9.2017. BE THAT AS IT MAY, THE FACT REMAINS THAT THE LD. CIT FAILED TO EXAMINE THE ASSESSEE'S APPLICATION FOR REGISTRATION UNDER SECTION 12AA OF THE ACT ON MERITS. IN THESE CIRCUMSTAN CES, AS DISCUSSED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT THE ENDS OF SUBSTANTIAL JUSTICE WOULD BE SERVED BY SETTING ASIDE THE IMPUGNED ORDER. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT AND RESTORE THE ISSUE OF ASSESSEE'S APPLICATION FOR GRANT OF REGISTRATION UNDER SECTION 12AA OF THE ACT TO THE FILE OF THE LD.CIT AND DIRECT THAT THE SAME BE EXAMINED AND CONSIDERED ON MERITS AFTER AFFORDING THE ASSESSEE'S ADEQUATE OPPORTUNITY OF BEING HEARD AND TO FILE DETAILS / SUBMISSION S REQUIRED ; WHICH SHALL BE CONSIDERED BEFORE DECIDING THE ISSUE BY WAY OF A SPEAKING ORDER. WE HOLD AND DIRECT ACCORDINGLY. 5. IN VIEW OF OUR SETTING ASIDE THE IMPUGNED ORDER, WE ARE OF THE OPINION THAT THE OTHER GROUNDS RAISED ON MERITS DO NOT REQUI RE ADJUDICATION AT THIS STAGE. 8 IT A NO. 2101 /BANG/20 17 6. IN THE RESULT, THE ASSESSEE'S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 14TH DAY OF SEPT.,2 01 8 . SD/ - ( LALIET KUMAR ) JUDICIAL MEMBER SD/ - ( JASON P BOAZ ) ACCOUNTANT ME MBER BANGALORE, DT. 14 . 09.2018. *REDDY GP COPY TO : 1 APPELLANT 4 CIT(A) 2 RESPONDENT 5 DR. ITAT, BANGALORE 3 CIT 6 GUARD FILE SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL BANGALORE.