Satyanarayan Jamwati Wealfare Trust, Kolkata V. D.I.T (Exemption),kolkata., Kolkata

ITA 255/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99750 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 06-02-2013
• Court: TRIBUNAL
• Department Lawyers: S SRIVASTAVA
• Keywords: Opportunity of being heard
• Section: 80G; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A KOLKATA [BEFORE HON BLE SHRI MAHAVIR SINGH, JM & SHRI M.BALAGANESH, AM ] ITA NO S . 255 & 256/KOL/2013 SATYANARAYAN JAMWATI WELFARE TRUST - VERSUS - DIRECTOR OF INCOME TAX KOLKATA (EXEMPTION), KOLKATA (P AN: AATLS 5027 N) FOR THE APPELLANT: SHRI SOMNATH GHOSH, ADVOCATE FOR THE RESPONDENT: SHRI S.SRIVASTAVA JCIT , .DR DATE OF HEARING : 19 .08 .2015 . DATE OF PRONOUNCEMENT : 07.09.2015. ORDER PER SHRI M.BALAGANESH, AM THESE APPEAL S OF T HE ASSESSEE ARISE OUT OF THE ORDER OF LD. DIRECTOR OF INCOME TAX (EXEMPTION), (IN SHORT DIT(E)) IN PROCEEDINGS M. NO . DIT(E)/8E/43/2012 - 13/ 2726 - 28 DATED 30.11 .2012 AND PROCEEDINGS U/S 80G IN M.NO.DIT(E)/8E/43/2012 - 13/ 2729 - 31 DATED 30.11 .2012 AGAINST NON GR ANTING OF REGISTRATION U/S 12AA AND EXEMPTION U/S 80G OF THE I.T.ACT, 1961 RESPECTIVELY (HEREINAFTER REFERRED TO AS THE ACT ). 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE TRUST CAME INTO EXISTENCE VIDE TRUST DEED DATED 10.04.2012 AND T HE TRUST HAD PREFERRED AN APPLICATION ON 30.05.2012 IN FORM NO.10A AND 10G BEFORE THE LD. DIT(E) FOR SEEKING REGISTRATION U/S 12AA AND EXEMPTION U/S 80G OF THE ACT. IN THE PROCEEDINGS BEFORE THE LD. DIT(E), THE ASSESSEE TRUST HAD DEPUTED HIS AUTHORIZED RE PRESENTATIVE TO REPRESENT THE CASE, WHO HAD DULY FURNISHED THE DETAILS CALLED FOR BY THE LD. D.I.T.(E). HOWEVER, THE LD. D.I.T.(E) VIDE HIS PROCEEDINGS DATED 30.11.2012 SOUGHT TO REJECT THE APPLICATION FOR SEEKING REGISTRATION U/S 12AA OF THE ACT ON THE FO LLOWING REASONS : - NOTICE U/S 12AA(1)(A) WAS ISSUED ON 16/23.08.2012 FIXING THE CASE FOR HEARING ON 11.09.2012. SHRI V.K.KEJRIWAL, FCA, A/R OF THE APPLICANT TRUST APPEARED AND THE CASE WAS HEARD. ON VERIFICATION OF THE DOCUMENTS PLACED ON RECORD, IT IS SE EN THAT FUNDS OF THE ITA NOS. 255&256/KOL/2013 SATYANARAYAN JAMWATI WELFARE TRUST 2 TRUST HAVE NOT BEEN ROUTED THROUGH THE BANK ACCOUNT. THEREFORE, THE APPLICATION OF FUNDS REFLECTED IN THE ACCOUNTS IS NOT CAPABLE OF VERIFICATION. IN COURSE OF PROCEEDINGS, NONE OF THE TRUSTEES APPEARED, DENYING THE DEPARTMEN T THE OPPORTUNITY OF EXAMINING THE ANTECEDENTS OF THE TRUSTEES. SINCE THE TRUSTEES ARE NOT IDENTIFIED, PHOTOGRAPHS SUBMITTED BY THE A/R CANNOT BE RELIED UPON. BESIDES, NO EVIDENCE FOR CHARITABLE ACTIVITIES COULD BE ADDUCED. HENCE, I HAVE NO MEANS TO SATISF Y MYSELF ABOUT THE GENUINENESS OF THE ACTIVITIES OF THE APPLICANT. IN VIEW OF THE ABOVE, THE APPLICATION FOR GRANT OF REGISTRATION U/S 12AA IS REJECTED. THE R EJECTION OF APPLICATION SEEKING FOR EXEMPTION U/S 80G OF THE ACT IS ONLY CONSEQUENTIAL TO REJ ECTION OF REGISTRATION U/S 12AA OF THE ACT. AGGRIEVED BY THE ORDER OF THE LD. DIT(E), THE ASSESSEE HAD PREFERRED AN APPEAL BEFORE THIS TRIBUNAL. 3. SHRI SOMNATH GHOSH, ADVOCATE, THE LD. AR APPEARED ON BEHALF OF THE ASSESSEE AND SHRI SACHIDANAND SRIVASTAV A, JCIT,DR, THE LD. DR APPEARED ON BEHALF OF THE REVENUE. 4. THE LD. AR SUBMITTED THAT THE LD. DIT(E) OUGHT NOT TO HAVE REJECTED THE REGISTRATION U/S 12AA OF THE ACT ON THE GROUNDS MENTIONED BY HIM IN HIS ORDER WHICH IS UNJUST AND IS AGAINST LAW AND ACCORD INGLY PRAYED FOR ALLOWING THE APPEALS OF THE ASSESSEE. 5. IN RESPONSE TO THIS, THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE LD. D.I.T.(E). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS ON RECORD. BOTH THE APPEALS ARISE OUT OF ORDER REJECTING THE REGISTRATION U/S 12AA AND CONSEQUENTIAL ORDER OF REJECTION OF EXEMPTION U/S 80G OF THE ACT AND THEY ARE TAKEN UP TOGETHER FOR THE PURPOSE OF CONVENIENCE AND DISPOSED OFF BY A COMMON ORDER. WE SEE FROM THE ORDER PASSED U/S 12AA OF THE ACT THA T THE LD. DIT(E) HAD REJECTED THE APPLICATION SEEKING FOR REGISTRATION U/S 12AA ON THE GROUNDS THAT THE ASSESSEE HAD NOT ROUTED ITS TRANSACTION THROUGH THE BANK ACCOUNT ; THAT THE TRUST HAD NOT ENSURED THE PERSONAL ATTENDANCE OF THE TRUSTEE FOR EXAMINING T HE ANTECEDENTS OF THE TRUSTEES AND NO EVIDENCE FOR CHARITABLE ACTIVITIES COULD BE ADDUCED BY THE ASSESSEE. AS PER SECTION 12AA OF THE ACT, THE LD. D.I.T. (E) HAS TO SEE WHETHER THE OBJECTS LAID DOWN IN THE TRUST DEED ARE ITA NOS. 255&256/KOL/2013 SATYANARAYAN JAMWATI WELFARE TRUST 3 CHARITABLE IN NATURE AND IN ORDER TO SATISFY THE GENUINENESS OF THE ACTIVITIES CARRIED OUT BY THE ASSESSEE TRUST HE CAN CALL FOR SOME INFORMATION AND DETAILS. WE ALSO HOLD THAT THE EVIDENCE FOR CHARITABLE ACTIVITIES CARRIED OUT BY THE ASSESSEE TRUST NEED NOT BE SEEN AT THE TIME OF REGISTRAT ION PROCEEDINGS. IN THE INSTANT CASE, THE TRUST HAD STARTED THE COMMENCEMENT OF ITS CHARITABLE ACTIVITIES AND CARRIED OUT THE SAME IN CASH NOT ROUTED THROUGH A DESIGNATED BANK ACCOUNT. J UST BECAUSE THE ACTIVITIES WERE CARRIED OUT IN CASH IT CANNOT BE CONCL UDED THAT THE GENUINENESS OF THE SAME IS IN QUESTION AND THE ACTION OF THE LD. D.I.T.(E) TO FORCE THE ASSESSEE TRUST TO PURSUE ITS ACTIVITIES ROUTED THROUGH BANK ACCOUNT , IS NOT APPRECIATED AND NOT IN ACCORDANCE WITH LAW. IN CASE THE REVENUE HAS GOT APPREH ENSION ABOUT THE ACTIVITIES CARRIED OUT IN CASH BY THE ASSESSEE TRUST, THE SAME COULD VERY WELL BE LOOKED INTO AT THE TIME OF ASSESSMENT PROCEEDINGS AND THE SAME NEED NOT BE LOOKED INTO AT THE TIME OF REGISTRATION PROCEEDINGS. WE ALSO HOLD THAT THE ACTION OF THE LD. D.I.T.(E) IN INSISTING THE PRESENCE OF THE TRUSTEES OF THE TRUST IS NOT WARRANTED AS IT IS NOWHERE CONTEMPLATED IN THE PROVISIONS OF THE ACT. HENCE, THE CANCELLATION OF THE APPLICATION SEEKING REGISTRATION ON THAT COUNT IS ILLEGAL. WE FIND THA T THE LD. D.I.T.(E) HAD NOT APPROACHED THE ISSUES UNDER APPEAL IN THE RIGHT PERSPECTIVE AND ACCORDINGLY WE DEEM IT FIT AND APPROPRIATE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, TO DIRECT THE LD. D.I.T.(E) TO HAVE DE NOVO ADJUDICATION OF APPLICATION SEEKI NG FOR REGISTRATION U/S 12AA OF THE ACT AND CONSEQUENTIAL EXEMPTION U/S 80G OF THE ACT AND TAKE A DECISION FOR GRANTING REGISTRATION AND EXEMPTION THEREON WITHIN THREE MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER. NEEDLESS TO MENTION THE ASSESSEE TRUST BE GIVEN REASONABLE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNC ED IN TH E COURT . [MAHAVIR SINGH] [M.BALAGANESH] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : R.G .(.P.S.) ITA NOS. 255&256/KOL/2013 SATYANARAYAN JAMWATI WELFARE TRUST 4 COPY OF THE ORDER FORWARDED TO : 1 . SATYANARAYAN JAMWATI WELFARE TRUST, 9, PRETORIA STREET, FOURTH FLOOR, KOLKATA - 700071. 2 DIRECTOR OF INCOME TAX (EXEMPTION), KOLKATA. 3 . THE CIT - KOLKATA 4. THE CIT(A) - KOLKATA. 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY , BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES