M/s Sreekhetra AC Bhaktibedanta Swami Charitable trust, Bhubaneswar V. CIT, Bhubaneswar

ITA 248/CTK/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4269 (ITAT-CUTTACK)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 21-07-2010
• Assessment Year: misc
• Appeal Filed On: 04-11-2009
• Court: TRIBUNAL
• Department Lawyers: A C MONDAL
• Assessee Lawyers: B PANDA
• Keywords: Charitable institution; Bonafide belief

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE HONBLE SHRI D.K.TYAGI, JUDICIAL MEMBER. /AND HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER . / I.TA.NO . 248/CTK/2009 M/S.SHREEKHETRA A.C.BHAKTIVEDANATA SWAMI CHARITABLE TRUST, PLOT NO.1185, NAYAPALLI, BHUBANESWAR. AAHTS 3642 M - - - VERSUS - . COMMISSIONER OF INCOME - TAX, BHUBANESWAR / A PPELLANT RESPONDENT FOR THE APPELLANT : SHRI B.PANDA, AR FOR THE RESPONDENT : SHRI A.C.MONDAL, DR / ORDER SHRI K.K.GUPTA, ACCOUNTANT MEMBER . TH E ASSESSEE HAS APPEALED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX U/S.12AA DT.6.8.2009 REJECTING THE ASSESSEES APPLICATION FOR REGISTRATION AS A CHARITABLE TRUST. 2. ON AN EARLIER OCCASION, THE LEARNED CIT HAD REJECTED THE ASSESSEES CLA IM VIDE ORDER DT.7.11.2006. WHEN THE ASSESSEE HAD APPEALED AGAINST SUCH REJECTION BEFORE THE TRIBUNAL, THE TRIBUNAL RESTORED THE ISSUE TO THE LEARNED CIT OBSERVING THAT THE LEARNED CIT HAD REJECTED THE APPLICATION OF THE ASSESSEE MAINLY BECAUSE THE ASSESSE E HAD NOT FILED FULL DETAILS TO SUBSTANTIATE ITS CHARITABLE ACTIVITIES. ON THE FIRST RESTORATION, THE LEARNED CIT SOUGHT THE INDULGENCE OF THE ASSESSEE CHARITABLE TRUST BUT DUE TO SERIOUS ILLNESS OF THE SECRETARY OF THE TRUST WAS PREVENTED TO APPEAR ON 13. 7.2009. THE LEARNED CIT THEREFORE OBSERVED THAT NUMEROUS OPPORTUNITIES GRANTED DID NOT AVAIL BY THE ASSESSEE TRUST INSPITE OF THE DIRECTION OF THE HONBLE HIGH COURT AND THE TRIBUNAL REJECTED THE ASSESSEE TRUSTS APPLICATION FOR GRANTING REGISTRATION U/S.1 2AA. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ON THE BONAFIDE BELIEF THAT THE MATTER STOOD ADJOURNED BY THE CIT WAS ON THE BASIS OF A TELEGRAM SENT ON13.7.2009. HE PRODUCED THE COPY OF THE POSTAL RECEIPT AND TEXT MESSAGE IN SUPPORT I. TA.NO .248/CTK/2009 2 THEREOF. HE ARGUED THAT INSPITE OF RESTORATION AND CONSIDERATION OF THE APPELLATE AUTHORITIES THAT THE ASSESSEE TRUST IS CARRYING OUT CHARITABLE ACTIVITIES OUGHT TO HAVE BEEN CONSIDERED AS SUCH ONLY FOR THE PURPOSE OF GRANTING REGISTRATION U/S.12A. THE LEARNED CIT HAS NOT BROUGHT ON RECORD TO THE CONTRARY THEREFORE CLEARLY INDICATES THAT THE PRELIMINARY CONSIDERATION BY THE APPELLATE AUTHORITY OF THE ASSESSEE SEEKING REGISTRATION AS A CHARITABLE TRUST HAS BEEN LOST SIGHT OF THE LEARNED CIT. FOR THIS PROPOSITION, HE RELIED ON THE DECISION OF THE ITAT, DELHI BENCH IN THE CASE OF DHARMA SANSTHAPAK SANG (NIYAS) V. CIT [118 TTJ (DELHI) 823] COPY OF WHICH IS FURNISHED. IT HELD THAT ALL RELIGIOUS ACTIVITIES ARE TO BE CONSTRUED AS CHARITABLE ACTIVITIES. CARRYING ON OF CHARIT ABLE ACTIVITY AT THE STAGE OF COMMENCEMENT IS NOT RELEVANT TO DECIDE WHETHER SUCH TRUST/INSTITUTION IS ENTITLED FOR REGISTRATION. THEREFORE, THE OBSERVATION OF THE LEARNED CIT THAT THE TRUST DEED DOES NOT SATISFY THE FACTS OF THE ASSETS AND LIABILITY IS CO NTRARY TO THE PROPOSITION THAT THE APPLICATION HAS TO BE REJECTED AT THE THRESHOLD OF APPLICATION FOR GRANTING REGISTRATION. HE PRAYED THAT THE REQUIRED DOCUMENTS AS CONSIDERED BY THE LEARNED CIT OF PROPOUND THE FACT OF ASSESSEE CONTINUE AS CHARITABLE TRUS T MAY BE DIRECTED TO BE CONSIDERED ON RESTORATION OF THE APPLICATION TO THE FILE OF THE LEARNED CIT HERE AGAIN. 4. THE LEARNED DR, ON THE BASIS OF FACTS AND CIRCUMSTANCE AS ENUMERATED ABOVE, HAS NO OBJECTION IF THE CASE IS RESTORED TO THE FILE OF THE LEARN ED CIT. 5. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND FORCE IN THE SUBMISSION OF THE LEARNED COUNSEL PLACING RELIANCE ON THE DECISION OF DHARMA SANSTHAPAK SANG (NIYAS) V. CIT ( SUPRA ). THE LEARNED CIT ON ACCOUNT OF NON - APPEARANCE BY THE ASSESSEE TRUST ON THE DATE FIXED FOR HEARING PROPOSES TO REJECT THE CONTENTION OF THE ASSESSEE AS NOT CARRYING OUT ANY CHARITABLE ACTIVITIES INSPITE OF THE ASSESSEE SEEKING ADJOURNMENT BY TELEGRAM THEREFORE REQUIRES CONSIDERATION IN THE LIGHT THAT THE GRANTING OF REGISTRATION AND CONSIDERING OF CARRYING OUT CHARITABLE ACTIVITIES ARE TWO SEPARATE ACTIVITIES. AS THE LEARNED COUNSEL HAS SUBMITTED IT BEING THE FIRST APPLICATION FOR REGISTRATION, THEREFORE, HAS TO BE CONSIDERED IN THE L IGHT OF THE CITED DECISION BEFORE US. THE ISSUE IS RESTORED TO THE FILE OF THE CIT FOR CONSIDERATION AFRESH ACCORDINGLY AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. I. TA.NO .248/CTK/2009 3 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS CONSIDERED TO BE ALLOWED FO R STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 23.07.2010 SD/ - SD/ - ( ), D.K.TYAGI JUDICIAL MEMBER (K.K.GUPTA), ACCOUNTANT MEMBER. DATE: 23.07.2010 - COPY OF THE ORDER FORWARDED TO : / THE APPELLANT : M/S.SHREEKHETRA A.C.BHAKTIVEDANATA SWAM I CHARITABLE TRUST, PLOT NO.1185, NAYAPALLI, BHUBANESWAR. / THE RESPONDENT : COMMISSIONER OF INCOME - TAX, BHUBANESWAR THE CIT, THE CIT(A), DR, CUTTACK BENCH GUARD FILE TRUE COPY , BY ORDER , [ ] SENIOR PRIVATE SECRETARY ( /) H.K.PADHEE SENIOR.PRIVATE SECRETARY.