SHRI RAMNATH BHIMSEN CHARITABLE TRUST, RAIPUR (CG) V. CIT, RAIPUR (CG)

ITA 221/BIL/2011

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0542 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 28-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YACUB TOPPO JCIT TDS
• Assessee Lawyers: PRAFULLA PANDSE
• Keywords: Charitable institution; Principle of natural justice
• Section: 80G; 12A

Judgement Text

, RAIPUR IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BEFORE S/SHRI G.D.AGARWAL( VP) & MUKUL KR. SHRAWAT (JM) . . , , ./ I.T.A. NO. 221/BLPR/2011 SHRI RAMNATH BHIMSON CHARITABLE TRUST, BEHIND ADLAB TALKIES, SAMTA COLONY, RAIPUR. / VS. CIT, RAIPUR ./ ./ PAN/GIR NO. : NA ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI PRAFULLA PANDSE / RESPONDENT BY : SHRI YACUB TOPPO, JCIT (TDS) / DATE OF HEARING :06 - 10 - 2015 /DATE OF PRONOUNCEMENT : 09 - 102015 / O R D E R PER MUKUL KR. SHRAWAT, JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FROM AN ORDER OF THE LD COM MISSIONER OF INCOME TAX, RAIPUR DATED 27.9.2011 REJECTING EXEMPTION U/S.80 G OF THE ACT. 2. IN THE GROUND OF APPEAL, THE APPELLANT HAS OBJECTED TO REJECTION OF APPLICATION FOR RENEWAL OF CERTIFICATE OF EXEMPTION U/S.80G OF I.T.ACT FROM THE PERIOD 1.4.2008. 3. WHILE REJECTING THE RENEWAL OF EXEMPTION U/S.80G, THE LD CIT , RAIPUR HAS GIVEN THE FOLLOWING REASONS: 2 I.T.A. NO. 221/BLPR/201 1 WHILE THE ABOVE APPLICATION FILED BY TH E TRUST WAS BEING PROCESSED, IT HAS COME TO THE NOTICE OF THE UNDERSIGNED THAT THE TRUST HAD MADE AN APPLICATION ON 11.1.2008 FOR RENEWAL OF APPROVAL TO THE COMMISSIONER OF INCOME TAX, RAIPUR, AND THE SAME WAS REJECTED VIDE AN ORDER DTD 16 TH JULY, 2008. IN THE CIRCUMSTANCES, THE PRESENT APPLICATION FILED FOR THE SAME PURPOSE CANNOT BE ENTERTAINED BECAUSE PROCESSING NEW APPLICATION WOULD AMOUNT TO REVIEW OF CITS EARLIER ORDER DATED 16 TH JULY, 2008 WHICH IS NOT PERMITTED UNDER THE PROVISIONS OF INCOME TAX ACT. IN THE CIRCUMSTANCES, THE APPLICATION DATED 11 TH MAY, 2011 OF THE TRUST FOR RENEWAL OF APPROVAL U/S.80G OF THE INCOME TAX ACT IS FILED. 4. IN THE APPEAL MEMO, THE APPELLANT HAS ALSO FURNISHED AN ORDER REJECTING EXEMPTION U/S.80G APPL ICATION DATED 16.7.2008. IN THAT ORDER, THE LD CIT, RAIPUR HAS NOTED THAT THE OBJECT OF THE TRUST WAS CHARITABLE - CUM - RELIGIOUS , THEREFORE, NOT ENTITLED FOR GRANT OF 80G EXEMPTION. THE LD CIT HAS ALSO MENTIONED THAT THE TRUST WAS GENERATING CONSIDERABLE SURPLUS INCOME AND, THEREFORE, NOT CARRYING OUT THE CHARITABLE ACTIVITIES BUT CARRYING ON COMMERCIAL ACTIVITY TO GENERATE SURPLUS INCOME. BEING AGGRIEVED, NOW THE ASSESSEE IS IN APPEAL BEFORE US. 5. FROM THE SIDE OF THE APPELLANT, SHRI PRAFULLA PENDSE , L D A.R. APPEARED. HE HAS PLEADED THAT THE ASSESSEE IS A PUBLIC CHARITABLE TRUST AND REGISTRATION U/S. 12A HAD ALREADY BEEN GRANTED, AS PER LETTER DATED 18.11.1985. H E HAS ALSO INFORMED THAT IN THE PAST EXEMPTION U/S.80G WAS GRANTED, WHICH WAS VALID UPTO 31. 3.2008. APPLICATION FOR RENEWAL OF EXEMPTION WAS MADE W.E.F. 1.4.2008. IN CONNECTION OF THE SAID APPLICATION EARLIER FILED ON 11.1.2008, A NOTICE WAS ISSUED DATED 13.5.2009 FIXING THE HEARING ON 19.5.2009. HOWEVER, THE COMMISSIONER OF INCOME TAX, RAIPUR HAS REJECTED THE GRANT OF EXEMPTION U/S.80G VIDE ORDER DATED 16.7.2008. THEREUPON, THE ASSESSEE S SECOND APPLICATION DATED 11.5 .2011 HAS ALSO BEEN REJECTED VIDE THE IMPUGNED ORDER NOW UNDER APPEAL DT.27.9.2011 3 I.T.A. NO. 221/BLPR/201 1 MERELY ON THE GROUND THAT ANY SUBSEQUENT OR DER WOULD AMOUNT TO REVIEW OF EARLIER ORDER. HE ALSO PLEADED THAT WITHOUT GRANTING AN OPPORTUNITY OF HEARING, THE APPELLANTS CLAIM OF EXEMPTION U/S.80G WAS REJECTED. HE HAS PLACED RELIANCE OF THE DECISION OF HONBLE A.P.HIGH COURT IN THE CASE OF TIRUMAL A TIRUPATHI DEVASTHANAM VS CHIEF CIT & ANR , 251 ITR 849(AP) AND THE DECISION OF ITAT AMRITSAR IN THE CASE OF LAKHA SINGH BAHRA CHARI TABLE TRUST VS CIT(2011) 139 TTJ (ASR) 636. 6. FROM THE SIDE OF THE REVENUE, SHRI YACUB TOPPO, LD D.R. APPEARED AND PLEADED THAT THE ASSESSEE HAS NOT COOPERATED WITH THE PROCEEDINGS AND MOREOVER EARNED INCOME ON COMMERCIAL BASIS WHICH IS NOT FOR THE PURPOSE OF CHARITABLE. THEREFORE, THE CLAIM OF 80G EXEMPTION WAS RIGHTLY REJECTED ON BOTH OCCASIONS BY THE LD COMMISSIONER. 7. HA VING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE CONSIDERED OPINION THAT AT THE FIRST OCCASION WHEN VIDE AN ORDER DATED 16.7.2008, THE ASSESSEES PETITION FOR 80G EXEMPTION WAS REJECTED, THE COMMISSIONER HAS NOT PROVIDED AN OPPORTUNITY OF HEARIN G TO THE ASSESSEE. RATHER, A NOTICE WAS ISSUED FIXING THE DATE OF HEARING ON 19.5.2009 BUT BEFORE THAT THE ORDER WAS PASSED ON 16.7.2008. THE ASSESSEE THOUGH T IT PROPER TO AGAIN APPROACH THE COMMISSIONER AND, THEREFORE, FILED ANOTHER APPLICATION ON 11.5. 2011 BUT BECAUSE OF THE REASON THAT EARLIER THE COMMISSIONER HAD REJECTED THE 80G PETITION, THEREFORE, SAID FRESH SECOND PETITION WAS ALSO REJECTED ON THE GROUND THAT THE REVIEW OF EARLIER ORDER DATED 16.7.2008 WAS NOT POSSIBLE. IN OUR CONSIDERED OPINION, THE QUESTION OF GRANTING 80G EXEMPTION DEPENDS UPON THE FACTS PREVAILING FOR THE PERIOD FOR 4 I.T.A. NO. 221/BLPR/201 1 WHICH EXEMPTION IS GRANTED. HENCE, THERE IS NO QUESTION OF REVIEW OF EARLIER ORDER. MOREOVER, WE ARE ALSO OF THE OPINION THAT WHILE EXERCISING THE POWER U/S.80G , THE COMMISSIONER OF INCOME TAX BEING A QUASHI JUDICIAL AUTHORITY SHOULD EXAMINE THE ACTIVITY OF THE TRUST AND AFTER PROPER APPLICATION OF MIND DECIDE THE CORRECTNESS OF THE CLAIM . AS THE CIRCUMSTANCES OF THIS CASE HAVE REVEALED THAT THE ASSESSEE WAS NOT GRANTED DUE OPPORTUNITY OF HEARING, THEREFORE, NATURAL JUSTICE DEMANDS TO RESTORE THIS ISSUE BACK TO THE FILE OF THE LD CIT, RAIPUR TO DECIDE THE QUESTION OF GRANT OF 80G EXEMPTION AS PER LAW, NEEDLESS TO SAY, AFTER GRANTING AN ADEQUATE OPPORTUNITY OF HE ARING TO THE ASSESSEE. SINCE WE HAVE RESTORED THIS ISSUE FOR DENOVO CONSIDERATION, THEREFORE, THE GROUND RAISED BEFORE US MAY BE TREATED AS ALLOWED BUT FOR STATISTICAL PURPOSES ONLY. 8. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09 - 10 - 2015 . SD/ - SD/ - ( . . , ) ( , ) G . D . AGARWAL , VICE PRESIDENT MUKUL KR SHRAWAT , JUDICIAL MEMBER RAIPUR , DATED 09 / 10/2015 . . ./ PARIDA , SR. PS 5 I.T.A. NO. 221/BLPR/201 1 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT : SHRI RAMNATH BHIMSON CHARITABLE TRUST, BEHIND ADLAB TALKIES, SAMTA COLONY, RAIPUR. 2. / THE RESPONDENT: THE CIT, RAIPUR 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, RAIPUR 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SR. PS, ITAT, CAMP: RAIPU R