ITO(TDS),Wd-58(4),Kolkata, Kolkata V. Sri Nirmal Kumar Kejriwal., Kolkata

ITA 250/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4670 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 06-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G MALLIKARJUNA
• Assessee Lawyers: ARINDOM MITRA ACCOUNTANT
• Keywords: Opportunity of being heard; Principle of natural justice; Application of stay
• Section: 12AA

Judgement Text

ITA NOS.250 & 251 AND SP NOS.35 & 36/KOL/2016 M/S. KISHINCHAND P. BELANI TRUST 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C, KOLKATA (BEFORE SHRI N.V.VASUDEVAN, J.M. &DR.A.L.SAINI, A.M .) S.P. NO.35/KOL/2016 : ASSESSMENT YEAR : 2015-16 ITA NO.250/KOL/2013 : ASSESSMENT YEAR : 2015 -16 AND S.P. NO.36/KOL/2016 : ASSESSMENT YEAR : 2015-16 ITA NO.251/KOL/2013 : ASSESSMENT YEAR : 2015 -16 KISHINCHAND P. BELANI TRUST 9 TH FLOOR, INDIA HOUSE, 69, GANESH CHANDRA AVENUE, KOLKATA- 700 013 PAN: AACTK 5741Q VS C.I.T. ( EXEMPTIONS), KOLKATA 10B, MIDDLETON ROW, 6 TH FLOOR, KOLKATA 700 071 (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI ARINDOM MITRA (ACCOUNTANT) DEPARTMENT BY: SHRI G. MALLIKARJUN A, CIT,DR DATE OF HEARING : 02.08.2016 DATE OF PRONOUNCEMENT : 10/8/16 ORDER PER DR. A.L.SAINI, A.M .: THE CAPTIONED TWO STAY APPLICATIONS AND TWO APPEALS FILED BY THE ASSESSEE PERTAINING TO ASSESSMENT YEAR 2015-16, ARE DIRECTED AGAINST TWO SEPARATE ORDERS PASSED BY THE SAME COMMISSIONER OF INCOME-TAX (EXEM PTIONS), KOLKATA, IN ORDER NO.10E/240/15-16,DATED 29.12.2015. 2. BOTH THE STAY APPLICATIONS AND THE APPEALS RELAT E TO ONE ASSESSEE FOR THE SAME ASSESSMENT YEAR 2015-16, THE COMMON ISSUES INVOLVE, THEREFORE, THESE HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF ITA NOS.250 & 251 AND SP NOS.35 & 36/KOL/2016 M/S. KISHINCHAND P. BELANI TRUST 2 CONVENIENCE AND BREVITY. AS BOTH STAY APPLICATIONS HAVE ARISEN OUT OF THE APPEALS IN ITA NOS. 250 & 251/KOL/2016 RESPECTIVELY THEREFO RE, WE HAVE DECIDED TO DISPOSE OFF THE STAY APPLICATIONS SIMULTANEOUSLY. F IRST WE ARE GOING TO DEAL WITH THE MAIN APPEALS. 3. THE FACTS OF THE CASE ARE STATED IN BRIEF. THE A SSESSEE (TRUST) HAS FILED AN APPLICATION IN FORM NO.10A FOR GETTING REGISTERED U NDER SECTION 12AA OF THE ACT, BUT THE SAME WAS REJECTED (VIDE ORDER NO.10E/240/20 15-16 DATED 29 TH DECEMBER, 2015), BY THE COMMISSIONER HOLDING THAT NON APPEARE D ON THE DATE OF HEARING. THE CIT ( EXEMPTIONS) ALSO HELD THAT THERE IS NO PROVIS ION OF DISSOLUTION CLAUSE IN THE DEED OF TRUST AND THEREFORE, THE DEED OF TRUST IS D EFECTIVE. SINCE THE APPLICATION FOR REGISTRATION UNDER SECT ION 12AA WAS REJECTED BY THE COMMISSIONER OF INCOME-TAX (EXEMPTION), THEREFORE, CONSEQUENTLY THE APPLICATION OF THE ASSESSEE FOR EXEMPTION UNDER SECTION 80G(5)( VI) WAS ALSO REJECTED. NOT BEING SATISFIED FROM THE ORDER OF THE LD. COMMISSIO NER OF INCOME-TAX (EXEMPTIONS), KOLKATA, THE ASSESSEE TRUST IS IN APP EAL BEFORE US. 4. THE LD. A.R. FOR THE ASSESSEE SUBMITTED THAT THE COMMISSIONER OF INCOME- TAX (EXEMPTIONS) DID NOT GIVE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. A.R. FURTHER SUBMITTED THAT THE ASSESSEE WA S READY TO FILE OR RECTIFY THE CLAUSE RELATING TO DISSOLUTION OF THE TRUST IN THE TRUST DEED.THE LD. A.R. ALSO SUBMITTED THAT THE LD. CIT ( EXEMPTIONS) PASSED BOT H THE ORDERS WITHOUT GIVING AN ADEQUATE OPPORTUNITY OF BEING HEARD, THEREFORE, IT IS AGAINST THE NATURAL JUSTICE. 5. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE HA S SUBMITTED THAT THE APPLICATION WHICH WAS SUBMITTED BY THE ASSESSEE TO OBTAIN THE EXEMPTION UNDER ITA NOS.250 & 251 AND SP NOS.35 & 36/KOL/2016 M/S. KISHINCHAND P. BELANI TRUST 3 SECTION 12AA CONTAINED CERTAIN MISTAKES. HE STATED THAT THE CLAUSE RELATING TO DISSOLUTION OF THE TRUST IN THE TRUST DEED WAS ABSE NT AND THEREFORE, THE LD. CIT(EXEMPTIONS) HAD REJECTED BOTH THE APPLICATIONS OF THE ASSESSEE. 6. HAVING HEARD THE RIVAL SUBMISSIONS, WE ARE OF TH E VIEW THAT THERE IS MERIT IN THE SUBMISSIONS OF THE LD. A.R. FOR THE ASSESSEE. A S THE LD. AR POINTED OUT THAT THE ASSESSEE HAD REQUESTED THE CIT (EXEMPTIONS) TO GIVE HIM SOME MORE TIME TO GET RECTIFIED THE RELEVANT CLAUSE PERTAINING TO DIS SOLUTION OF THE TRUST BUT HE DID NOT GIVE OPPORTUNITY TO THE ASSESSEE TO GET THE RECTIFI CATION DONE AND BOTH THE ORDERS HAD BEEN PASSED BY HIM WITHOUT GIVING ADEQUATE OPPO RTUNITY TO THE ASSESSEE UNDER CONSIDERATION. ACCORDINGLY, WE SET ASIDE BOTH THE O RDERS OF THE LD.CIT (EXEMPTIONS) AND RESTORE THE ISSUE TO HIS FILE, WIT H THE DIRECTION TO RE-ADJUDICATE THIS ISSUE AFTER GIVING AN ADEQUATE OPPORTUNITY TO THE ASSESSEE, IN THE LIGHT OF THE DISCUSSION MADE SUPRA . 7. AS WE HAVE ALREADY DECIDED TO RESTORE THE MAIN A PPEALS FILED BY THE ASSESSEE IN ITA NOS. 250&251/KOL/2016 TO THE FILE OF THE LD. CIT (EXEMPTIONS) FOR RE- ADJUDICATION, HENCE THE STAY APPLICATIONS FILED BY THE ASSESSEE BECOME INFRUCTUOUS AND THEREFORE, THE STAY APPLICATIONS ARE DISMISSED. 8. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES AND BOTH THE STAY APPLICATIONS ARE DISMISS ED. ORDER PRONOUNCED IN THE COURT ON 10-08-2016 SD/- SD/- (N.V.VASUDEVAN) (DR. A.L.SAINI) JUDICIALMEMBER ACCOUNTANT MEMBER DATED:10/08/2016 TALUKDAR (SR.PS) ITA NOS.250 & 251 AND SP NOS.35 & 36/KOL/2016 M/S. KISHINCHAND P. BELANI TRUST 4 COPY OF THE ORDER FORWARDED TO: 1. REVENUE 2 ASSESSEE 3. THE CIT-I, 4. THE CIT (A)-I, 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES