Shri Tejanand Maharaj Mandir Trust, Surat V. The ACIT, Circle-6, Surat

ITA 2550/AHD/2014

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6778 (ITAT-SURAT)
• Duration Of Justice: 4 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-07-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 15-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DINESH PAREKH
• Keywords: Charitable institution
• Section: 12A

Judgement Text

TEJANAND MAHARAJ MANDIR TRUST VS. CIT(A)-1, SURAT/ITA NO. 2550/AHD/2014/A.Y.2010-11 PAGE 1 OF 6 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT . . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T.A. NO.2550/AHD/2014 / ASSESSMENT YEAR : 2010-11 SHRI TEJANAND MAHARAJ MANDIR TRUST, AT & POST-KHARVASA, TAL- CHORYASI, SURAT [PAN: AAATT 2803 Q] VS. THE COMMISSIONER OF INCOME TAX(A)-1, SURAT. APPELLANT /RESPONDENT /ASSESSEE BY SHRI DINESH PAREKH , CA /REVENUE BY SHRI SREENIVAS T BIDARI , CIT DR / DATE OF HEARING : 10.07.2019 /PRONOUNCEMENT ON : 12.07.2019 /O R D E R PER V. DUGRA RAO, JM: 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-1, SURAT [IN SHORT THE CIT(A)] DATED 13.06.2014 FOR THE ASSESSMENT YEAR 2010-11. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME BY DECLARING TOTAL INCOME AT RS. NIL. DURING THE ASSESSMENT PROCEEDINGS, IT WAS NOTICED BY AO THAT THE ASSESSEE HAS CLAIMED EXEMPTION U/S.11(1)(A) FOR RS.2,47,667/- IN COMPUTATION OF INCOME. ON TEJANAND MAHARAJ MANDIR TRUST VS. CIT(A)-1, SURAT/ITA NO. 2550/AHD/2014/A.Y.2010-11 PAGE 2 OF 6 VERIFICATION, IT WAS FOUND BY AO THAT THE ASSESSEE HAD NOT TAKEN REGISTRATION CERTIFICATE U/S.12A(A)/12AA(1)(B)(I) OF THE ACT TO CLAIM EXEMPTION ON THE AFORESAID AMOUNT. ACCORDINGLY, THE AO HAS COMPLETELY THE ASSESSMENT BY TREATING ASSESSEE AS AOP. 3. ON APPEAL, BEFORE THIS THE LD. CIT(A), THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE IS A TEMPLE TRUST APPLIED FOR ITS REGISTRATION U/S.12A/12AA OF THE ACT IN 09.01.1973, BUT IT HAS NOT RECEIVED ANY ORDER FOR REFUSING THE REGISTRATION OF TRUST U/S.12A/12AA WITHIN PERIOD LAID DOWN IN SECTION 12AA(2) OF THE ACT. IT WAS FURTHER SUBMITTED THAT WHEN THE COMMISSIONER OF INCOME TAX DOES NOT PASS ORDER GRANTING OR REFUSING REGISTRATION OF TRUST, IT WOULD BE DEEMED TO HAVE BEEN GRANTED 12A REGISTRATION TO THE TRUST AUTOMATICALLY ON EXPIRY OF THE PERIOD SPECIFIED IN SECTION 12AA(2) OF THE ACT. CONSIDERING THE SUBMISSIONS OF THE ASSESSEE THE LD.CIT(A) CONFIRMED THE ORDER OF THE AO. THE RELEVANT PORTION OF THE ORDER AS UNDER: I HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS OF APPELLANT. FROM THE FACTS OF THE CASE AS DISCUSSED BY AO AND AS SUBMITTED BY APPELLANT DURING APPELLATE PROCEEDINGS, THE CLAIM OF APPELLANT DOES NOT SEEM GENUINE. THE CLAIM OF APPELLANT THAT APPLICATION FOR REGISTRATION WAS FILED TO COMMISSIONER OF INCOME TAX TO WHICH IT DID NOT GET ANY REPLY OF ACCEPTANCE OR REJECTION IS ALSO NOT VERIFIABLE. THE PERUSAL OF THE COPY OF ACKNOWLEDGEMENT OF RECEIPT OF APPLICATION REVEALS THAT IT IS ONLY A XEROX COPY. WHEN THE APPELLANT WAS ASKED TO PRODUCE THE ORIGINAL COPY OF ACKNOWLEDGEMENT SO THAT THE GENUINENESS OF THIS XEROX COPY COULD BE VERIFIED, APPELLANT EXPRESSED ITS INABILITY TO PRODUCE THE SAME ON THE GROUND THAT IT IS NOT AVAILABLE WITH THEM. IN SUCH SITUATION, THE EVIDENCE PRODUCED BY APPELLANT CANNOT BE RELIED UPON. WITH THE HELP OF MODERN TECHNOLOGY, XEROX COPY OF ANY DOCUMENT IN ANY MANNER CAN BE PREPARED. EVEN THE XEROX COPY OF ANY DOCUMENT, BY MAKING CHANGES IN IT AS PER ONES OWN SWEET WILL, CAN BE PREPARED WITH THE NORMAL XEROX MACHINE. THEREFORE, IN ABSENCE OF ORIGINAL COPY OF THE ACKNOWLEDGEMENT, XEROX COPY OF THE SAME CANNOT BE RELIED UPON AND HAS TO BE CONCLUDED THAT NO APPLICATION FOR REGISTRATION U/S.12A OF THE ACT WAS EVER FILED BY TEJANAND MAHARAJ MANDIR TRUST VS. CIT(A)-1, SURAT/ITA NO. 2550/AHD/2014/A.Y.2010-11 PAGE 3 OF 6 APPELLANT TRUST ON OR BEFORE FILLING THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. THIS CONCLUSION IS SUPPORTED WITH THE FACT THAT DURING THE APPELLATE PROCEEDINGS, APPELLANT HAS FILED THE ANOTHER COPY OF APPLICATION FOR REGISTRATION U/S.12(A) OF THE ACT, ADDRESSED TO THE COMMISSIONER OF INCOME TAX-II, SURAT WHICH HAS BEEN RECEIVED BY THE OFFICE OF CIT-II, SURAT AS ON 28.01.2014. THIS DOCUMENT SHOWS THAT THE APPELLANT TRUST HAS ACTUALLY APPLIED FOR REGISTRATION U/S.12A(A) ONLY ON 28.01.2014, NOT ON 09.07.1973 AS CLAIMED BY IT. THESE FACTS CLEARLY ESTABLISH THAT THE APPELLANT IS NOT STATING TRUTH SO FAR AS THE FILING OF APPLICATION AS ON 09.07.1973 FOR REGISTRATION U/S.12A(A) OF THE ACT IS CONCERNED. IT SEEMS THAT IT HAS FABRICATED THE DOCUMENT JUST TO TAKE THE BENEFIT OF ABSENCE OF ANY RECORD ACCEPTING OR REFUSING THE APPLICATION OF APPELLANT TRUST. THUS, NO QUESTION ARISES OF ACCEPTING OR REFUSING THE APPLICATION OF APPELLANT WHEN NO APPLICATION FOR REGISTRATION HAS BEEN RECEIVED BY THE COMMISSIONER OF INCOME TAX. ALL THESE FACTS CLEARLY SHOW THAT THE APPELLANT HAS NEVER APPLIED TO COMMISSIONER OF INCOME TAX FOR THE PURPOSE OF REGISTRATION U/S.12A(A) OF THE ACT BEFORE FILLING THE RETURN OF INCOME FOR THE YEAR, THEREFORE, IT HAS NO REGISTRATION UNDER THE SAID SECTION FOR CLAIMING EXEMPTION U/S.11(1) OF THE ACT. IN VIEW OF THIS, THE CLAIM OF APPELLANT OF MAKING APPLICATION FOR REGISTRATION U/S.12A(A) OF THE ACT IS HEREBY REJECTED. THE FIRST AND SECOND GROUNDS TAKEN BY APPELLANT ARE DISMISSED. 4. ON BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER BEFORE THE TRIBUNAL. 5. THE LD.COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE IS A TEMPLE TRUST, SEVERAL YEARS ASSESSEE HAS CLAIMED EXEMPTION U/S.11(1)(A) AND GRANTED THE ASSESSEE. IT IS THE FIRST TIME THAT THE AO HAS ASKED THE REGISTRATION CERTIFICATE. IN THIS CONTEXT, IT IS SUBMITTED THAT WE HAVE APPLIED FOR REGISTRATION NO SUCH CERTIFICATE IS AVAILABLE ON RECORD AND THEREFORE WITHOUT INSISTING THE CERTIFICATE OF REGISTRATION U/S.12A, EXEMPTION U/S.11 WAS GRANTED BY THE AO. THEREFORE, WE HAVE NOT INSISTED FOR REGISTRATION CERTIFICATE U/S.12A OF THE ACT. THE LD.COUNSEL FOR THE ASSESSEE HAS POINTED OUT FROM THE PAPER BOOK FILED ON DATED 13.01.2019, FROM PAGE NO.4 SUBMITTED THAT FORM NO.10A WAS FILED BEFORE THE LD.CIT-2 ON 30.11.2004. HE WAS PRODUCED THE ORIGINAL COPY OF FORM NO.10A BEFORE TEJANAND MAHARAJ MANDIR TRUST VS. CIT(A)-1, SURAT/ITA NO. 2550/AHD/2014/A.Y.2010-11 PAGE 4 OF 6 THE BENCH AND SUBMITTED THAT ASSESSEE SHOULD BE CONSIDERED FOR TRUST REGISTRATION AT LEAST FROM THE DATE OF 30.11.2004. 6. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) HAS ONLY SUPPORTED THE ORDER PASSED BY THE LD. CIT(A). 7. WE HAVE HEARD RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE IS A TEMPLE TRUST CARRYING ITS ACTIVITY IN THE NAME OF TEJANAND MAHARAJ MANDIR TRUST. THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION FILED RETURN OF INCOME BY DECLARING INCOME AT RS. NIL BY CLAIMING EXEMPTION U/S.11 OF THE ACT ON THE GROUND OF THE ASSESSEE IS TRUST REGISTRATION U/S.12 OF THE ACT. THE AO HAS ASKED THE ASSESSEE PRODUCE THE CERTIFICATION OF REGISTRATION U/S.12A OF THE ACT. IT IS SUBMITTED BEFORE THE AO THAT THE ASSESSEE IS OLD TRUST, ALL THE YEARS THIS RETURN FILED BY THE ASSESSEE IS ACCEPTED BY CONSIDERING THAT THE ASSESSEE IS CHARITABLE ORGANISATION AND THEREFORE THE SAME MAY BE CONSIDERED THE EXEMPTION WAS U/S.11 MAY BE GRANTED. 8. THE ASSESSING OFFICER (AO) NOT ACCEPTED THE EXPLANATION OF THE ASSESSEE AND DENIED EXEMPTION CLAIMED TO THE ASSESSEE U/S.11A, ON THE GROUND THAT THE ASSESSEE HAS FAILED TO PRODUCE CERTIFICATE OF REGISTRATION U/S.12A OF THE ACT. ACCORDINGLY, THE ENTIRE INCOME OF THE ASSESSEE IS TAXED IN ACCORDING TO LAW AND ASSESSMENT IS COMPLETED. TEJANAND MAHARAJ MANDIR TRUST VS. CIT(A)-1, SURAT/ITA NO. 2550/AHD/2014/A.Y.2010-11 PAGE 5 OF 6 9. ON APPEAL, THE LD.CIT(A) HAS CONSIDERED THE DETAILS OF SUBMISSIONS FILED BY THE ASSESSEE AND OBSERVED THAT THE ASSESSEE ONLY FILED XEROX COPY OF FORM NO.10A. ACCORDING TO THE ASSESSEE, HE HAS APPLIED FOR THE REGISTRATION ON 09.07.1973. IT IS FURTHER OBSERVED THAT THE ASSESSEE HAS FILED CERTIFICATE IN FORM NO.10A FOR REGISTRATION U/S.12A ADDRESSING TO THE COMMISSIONER OF INCOME TAX, SURAT HAS BEEN RECEIVED BY THIS OFFICE OF LD.CIT(A)-II, SURAT ON 28.01.2014. THEREFORE, THE LD.CIT(A) HAS CONCLUDED THAT THE ASSESSEE CLAIM IS NOT CLEAR WHEN HE IS APPLIED FOR REGISTRATION IN THE FORM NO.10A AND CONFIRMED THE ORDER OF THE AO. 10. WE FIND THAT THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE LD.CIT(A) IS CONTRADICTING AND NOT ONLY THAT THE ASSESSEE HAS NOT FILED ORIGINAL COPY OF APPLICATION IN FORM NO.10A FOR REGISTRATION U/S.12A OF THE ACT. BEFORE US, THE AUTHORISED REPRESENTATIVE FILED ORIGINAL COPY OF FORM 10A DATED 31.11.2004 AND SUBMITTED THAT ASSESSEES CASE MAY BE CONSIDERED REGISTRATION U/S.12A FROM THE DATE OF 30.11.2004 CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE OPINION THAT THE LD.CIT(A) HAS TO CONSIDER THE ORIGINAL FORM NO.10A DATED 31.11.2004 AFRESH AND PASS ORDERS IN ACCORDANCE WITH LAW. ACCORDINGLY, WE SET-ASIDE THE ORDER PASSED BY THE LD.CIT(A) AND DIRECT THE LD.CIT(A) TO CONSIDER THE ISSUE AFRESH IN ACCORDANCE WITH LAW. IT IS ALSO FURTHER DIRECTED TO THE ASSESSEE TEJANAND MAHARAJ MANDIR TRUST VS. CIT(A)-1, SURAT/ITA NO. 2550/AHD/2014/A.Y.2010-11 PAGE 6 OF 6 TO PRODUCE BEFORE THE LD.CIT(A), THE ORIGINAL COPY OF FORM 10A DATED 31.11.2004 WHICH IS PRODUCED BEFORE THE BENCH AT THE TIME OF HEARING. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 12. THE ORDER PRONOUNCED IN THE OPEN COURT ON 12.07.2019 SD/- SD/- (O. P. MEENA) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER / SURAT, DATED: 12 TH JULY, 2019/S.SAMANTA, PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT