The Poona Gujarati Kelvani Mandal, Pune V. CIT-IV, Pune

ITA 2556/PUN/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2012 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 26-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Keywords: Charitable institution; Opportunity of being heard; Additional evidence
• Section: 80G; 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER, AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA.NO.2556/PN/2012 AND ITA NO.2557/PN/2012 THE POONA GUJARATI KELVANI MANDAL, 1433, KASBA PETH, PUNE 411001. .. APPELLANT PAN NO. AAATT 6313P VS. CIT-IV, PUNE .. RESPONDENT ASSESSEE BY : SHRI S.N. PURANIK RESPONDENT BY : SHRI S.K. SINGH DATE OF HEARING : 18-03-2013 DATE OF PRONOUNCEMENT : 18-03-2013 ORDER PER R.K. PANDA, AM : THE ABOVE 2 APPEALS FILED BY THE ASSESSEE ARE DIREC TED AGAINST THE ORDER DATED 05-12-2012 OF THE CIT-IV, PUNE DENY ING REGISTRATION U/S.12A AND REJECTING APPROVAL U/S.80G OF THE INCO ME TAX ACT, 1961. ITA NO. 2557/PN/2012: 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE, THE POONA GUJARATI KELVANI MANDAL, SUBMITTED AN APPLICA TION FOR REGISTRATION U/S.12A(1)(AA) OF THE INCOME TAX ACT I N THE O/O. CIT ON 30-05-2012. THE APPLICATION WAS DULY FILED IN FORM NO.10A ALONG WITH CERTIFICATE OF REGISTRATION UNDER THE BPT ACT AND THE SOCIETY REGISTRATION CERTIFICATE, AUDIT REPORT, INCOME AND EXPENDITURE ACCOUNTS AND BALANCE SHEET FOR THE YEARS ENDING 31- 03-2009, 31-03- 2010 AND 31-03-2011. THE ASSESSEE HAD ALSO ENCLOSE D COPIES OF APPLICATION FOR REGISTRATION U/S.12A DATED 29-05-20 07 AND 30-09- 2011 AND A COPY OF LETTER FROM THE CIT, PUNE DATED 10-06-1976 FOR REGISTRATION U/S.12A(1). 2 2.1 THE LEARNED CIT CALLED FOR A REPORT FROM THE AS SESSING OFFICER IN TERMS OF PROVISIONS OF SECTION 12AA WHO REPORTED TH AT THE APPLICANT IS ENGAGED IN EDUCATIONAL ACTIVITIES SUCH AS RUNNING O F VARIOUS SCHOOLS AND COLLEGES. THE LEARNED CIT NOTED THAT THE ASSES SEE HAS NOT FILED THE MEMORANDUM OF ASSOCIATION WHICH IS THE INSTRUME NT UNDER WHICH IT WAS CREATED ON 23-08-1926. THEREFORE, A DEFICIE NCY LETTER WAS ISSUED TO THE SECRETARY OF THE ASSESSEE TO SHOW CAU SE AS TO WHY THE APPLICATION FILED BY THE APPLICANT SHOULD NOT BE RE JECTED. THE ASSESSEE IN ITS RESPONSE SUBMITTED THAT IT HAS SUBM ITTED XEROX COPY OF THE INSTRUMENT DULY CERTIFIED BY THE DEPUTY/CHAR ITY COMMISSIONER DATED 10-08-2011. THE ASSESSEE ALSO FILED DETAILED WRITTEN SUBMISSIONS EXPLAINING THE CASE. 2.2 HOWEVER, THE LEARNED CIT WAS NOT SATISFIED WITH THE SUBMISSIONS GIVEN BY THE ASSESSEE AND REJECTED THE APPLICATION SEEKING REGISTRATION U/S.12A OF THE ACT BY HOLDING AS UNDER : THE APPLICANTS SUBMISSIONS DATED 22-11-2012 AND 0 4-12-2012 HAVE BEEN CAREFULLY PERUSED AND ALSO DOCUMENTS SUBMITTED BY THE APPLICANT HAVE BEEN EXAMINED. IT IS SEEN THAT THE APPLICANT TRUST WAS CREATED BY MEMORANDUM OF ASSOCIATION. ON PAGE 2 OF FORM OF APPLICATION OF A PUBLIC TRUST, AGAIN CLAUSE (IV)(A) PARTICULARS OF DOCUMENTS CREATING THE T RUST (ATTACH COPIES) IT HAS BEEN CLEARLY MENTIONED THAT MEMORANDUM OF ASSOCIATI ON AND RULES & REGULATIONS. THIS CLEARLY SHOW THAT THE APPLICANT WAS ESTABLISHED/CREATED BY THIS INSTRUMENT, VIZ., MEMORANDUM OF ASSOCIATION. RULE 17A OF THE INCOME TAX RULES, 1962 ENVISAGES T HAT INSTRUMENT IN ORIGINAL SHOULD BE FILED WITH THE APPLICATION FOR R EGISTRATION AND IF THE ORIGINAL CANNOT BE CONVENIENTLY BE PRODUCED, IT SHALL BE OPE N TO THE COMMISSIONER TO ACCEPT A CERTIFIED COPY IN LIEU OF THE ORIGINAL. IN THE INSTANT CASE, THE APPLICANT IS UNABLE TO PR ODUCE THE MEMORANDUM OF ASSOCIATION IN ORIGINAL ALLEGEDLY ON ACCOUNT OF HEAVY FLOOD DUE TO PANSHET DAM IN THE YEAR 1962. BE THAT AS IT MAY, THE APPLI CANT IS UNABLE TO PRODUCE A CERTIFIED COPY OF THE MEMORANDUM OF ASSOCIATION FOR VERIFICATION. INSTEAD, THE APPLICANT CLAIMS THAT THE RULES & REGULATIONS IS THE COMBINED MEMORANDUM, RULES & REGULATIONS. IT IS, THEREFORE, HELD THAT T HE APPLICANT IS NOT IN A POSITION TO PRODUCE EVEN CERTIFIED COPY OF THE INSTRUMENT OF CREATION, I.E. CERTIFIED COPY OF THE MEMORANDUM OF ASSOCIATION TO FULFIL THE CONDITI ON AS REQUIRED UNDER RULE 17A OF THE I.T. RULES. 3 IN VIEW OF THE AFORESAID, IT IS HELD THAT THE APPLI CANT HAS NOT FULFILLED THE REQUISITE CONDITIONS SO AS TO GRANT REGISTRATION U/S.12A OF T HE ACT. THEREFORE, THE APPLICATION FILED BY THE ASSESSEE SEEKING REGISTRAT ION U/S.12A OF THE ACT IS REJECTED. 3. AGGRIEVED WITH SUCH ORDER OF THE LEARNED CIT THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. COMMISSIONERS ORDER U/S.12AA(1)(II) FOR REGIST RATION U/S.12A(2) DATED 05-12-2012 RECEIVED ON 20-12-2012 IS BARRED BY LIMI TATION. APPELLANT PRAYS THE BENCH TO DIRECT THE COMMISSIONER OF INCOME TAX TO ISSUE CERTIFICATE GRANTING REGISTRATION W.E.F.01-04-1974. 2. WITHOUT PREJUDICE TO AFORESAID GROUND, COMMISSIO NER HAS ERRED IN NOT PASSING ANY ORDER ON APPLICATION DATED 28-05-2007/2 9-05-2007. HENCE APPLICANT PRAYS THAT COMMISSIONER MAY PLEASE BE DIR ECTED TO GRANT REGISTRATION ATLEAST W.E.F., 01-04-2005 CONDONING THE DELAY. 3. COMMISSIONER HAS ERRED IN REFUSING REGISTRATION ON FISHY GROUND, WHEN MEMORANDUM OF ASSOCIATION & RULES & REGULATIONS COM BINE, CERTIFIED COPY IS SUBMITTED. 4. APPELLANT PRAYS FOR JUST & EQUITABLE RELIEF. 5. APPELLANT PRAYS TO ADD, ALTER, AMEND AND/OR WITH DRAW THE GROUND/S DURING THE COURSE OF PROCEEDINGS. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED TH AT SINCE THE LEARNED CIT DID NOT PASS ANY ORDER EITHER ACCEPTING OR REFUSING THE REGISTRATION U/S.12A WITHIN A PERIOD OF 6 MONTHS, T HEREFORE, THE SAME IS BARRED BY LIMITATION AND THE CIT SHOULD BE DIREC TED TO GRANT REGISTRATION. HE ALTERNATIVELY PLEADED THAT AS THE ASSESSEE IN THE MEANTIME HAS OBTAINED VARIOUS DOCUMENTS FROM THE VA RIOUS DEPARTMENTS THROUGH RTI AND THEREFORE THESE ADDITIO NAL EVIDENCES MAY BE ADMITTED AS THESE DOCUMENTS GO TO THE ROOT O F THE MATTER. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE THE AS SESSEE MAY BE PERMITTED TO PLACE ALL THESE DOCUMENTS BEFORE THE L EARNED CIT FOR HIS CONSIDERATION AND TO PASS APPROPRIATE ORDERS. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE O THER HAND SUBMITTED THAT PASSING OF ORDER U/S.12AA BY THE LEA RNED CIT WITHIN A PERIOD OF SIX MONTHS IS ONLY DIRECTORY AND NOT MAND ATORY AND 4 THEREFORE THE DEEMING PROVISION IS NOT APPLICABLE. FOR THIS PROPOSITION, HE RELIED ON THE DECISION OF HONBLE M ADRAS HIGH COURT IN THE CASE OF CIT VS. SHEELA CHRISTIAN CHARITABLE TRU ST REPORTED IN TS- 80-HC-2013 (MAD.). SO FAR AS THE REQUEST OF THE L EARNED COUNSEL FOR THE ASSESSEE FOR ADMISSION OF ADDITIONAL EVIDENCE A ND RESTORING THE MATTER TO THE FILE OF THE LEARNED CIT HE LEFT IT TO THE BENCH AND SUBMITTED THAT HE HAS NO OBJECTION FOR THE SAME. 6. AFTER HEARING BOTH THE SIDES AND CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE, THE ADDITIONAL EVIDENCES NOW OBT AINED BY THE ASSESSEE THROUGH RTI ARE ADMITTED SINCE THESE DOCUM ENTS ARE ALSO RELEVANT TO DECIDE ASSESSEES CASE. IN THE INSTANT CASE WE FIND THE LEARNED CIT REJECTED THE APPLICATION FOR GRANTING R EGISTRATION U/S.12AA OF THE ACT ON THE GROUND THAT THE APPLICANT WAS UNA BLE TO PRODUCE EITHER THE ORIGINAL MEMORANDUM OF ASSOCIATION OR TH E CERTIFIED COPY OF THE SAME FOR HIS VERIFICATION. IT IS THE ARGUMENT OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT IN VIEW OF THE DEEMIN G PROVISION THE CIT BE DIRECTED TO GRANT REGISTRATION SINCE HE HAS NOT PASSED THE ORDER WITHIN 6 MONTHS FROM THE DATE OF APPLICATION. IT HA S BEEN DECIDED BY THE HONBLE MADRAS HIGH COURT IN THE CASE OF SHEELA CHRISTIAN CHARITABLE TRUST (SUPRA) THAT PASSING OF ORDER U/S. 12A IS DIRECTORY AND NOT MANDATORY. FURTHER, THE ASSESSEE IN THE IN STANT CASE HAD NOT FILED EITHER THE ORIGINAL OR CERTIFIED COPY OF THE MEMORANDUM OF ASSOCIATION OF THE TRUST THEREFORE, THE ARGUMENTS O F THE LEARNED COUNSEL FOR THE ASSESSEE ON THIS ASPECT HAS TO BE R EJECTED. HOWEVER, HIS ALTERNATE CONTENTION FOR RESTORING THE ISSUE TO THE FILE OF THE LEARNED CIT FOR FRESH ADJUDICATION IS ACCEPTABLE. 5 6.1 NOW THAT THE ASSESSEE HAS FURNISHED VARIOUS DET AILS IN THE PAPER BOOK IN FORM OF ADDITIONAL EVIDENCE, THEREFOR E, WE IN THE INTEREST OF JUSTICE, DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE LD. CIT FOR FRESH ADJUDICATION OF THE ISSUE. N EEDLESS TO SAY THE LD. CIT SHALL GIVE DUE OPPORTUNITY OF BEING HEARD T O THE ASSESSEE AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW. WE HOLD A ND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE AR E ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.2556/PN/2012 : 7. IN THE IMPUGNED APPEAL THE ASSESSEE HAS CHALLENG ED THE ORDER OF THE CIT FOR NOT ENTERTAINING THE APPLICATION FOR APPROVAL U/S.80G OF THE ACT. 8. AFTER HEARING BOTH THE SIDES WE FIND THE LEARNED CIT REJECTED THE APPLICATION FOR APPROVAL U/S.80G ON THE GROUND THAT THE APPLICATION FOR REGISTRATION U/S.12A OF THE ACT HAS BEEN REJECTED BY HIM VIDE ORDER DATED 05-12-2012. IN THE APPEAL FIL ED BY THE ASSESSEE CHALLENGING THE DENIAL OF REGISTRATION U/S.12A OF T HE ACT VIDE ITA NO.2557/PN/2011 THE SAME HAS BEEN RESTORED TO THE F ILE OF THE CIT FOR FRESH ADJUDICATION WITH CERTAIN DIRECTIONS. WE THEREFORE DEEM IT PROPER TO RESTORE THE ISSUE RELATING TO APPROVAL FO R 80G ALSO TO HIS FILE FOR FRESH ADJUDICATION ALONG WITH ISSUE RELATING TO REGISTRATION U/S.12A. WE HOLD AND DIRECT ACCORDINGLY. 9. IN THE RESULT, BOTH THE APPEALS BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF, I.E. ON 18-03-13. SD/- SD/- ( R.S.PADVEKAR ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE, DATED THE 18 TH MARCH 2013. 6 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT-IV, PUNE 4. THE DR B BENCH, PUNE. 5. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBU NAL, PUNE.