GURDAYAL BERLIA CHARITABLE TRUST, MUMBAI V. DIT (E), MUMBAI

ITA 2777/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83904 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 16-10-2014
• Assessment Year: 2012-2013
• Appeal Filed On: 24-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHA KALA CHANDA
• Assessee Lawyers: SANJIV M SHAH
• Keywords: Charitable institution
• Section: 12A; 12AA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G , MUMBAI . . , , , BEFORE SHRI B.R.BASKARAN , A M AND SHRI AMIT SHUKLA , J M ITA NO. 2777 /MUM/201 2 GURDAYAL BERLIA CHARITABLE TRUST 212/216, SAMUEL STREET, WADGADI MUMBAI 400 003. PAN : AAATG7131L / VS. DIRECTOR OF INCOME TAX (EXEMPTION) MUMBAI. ( / APPELLANT) ( / RESPONDENT) /APPELLANT BY : SHRI SANJIV M.SHAH /RESPONDENT BY : SMT.ABHA KALA CHANDA [CIT - DR] / DATE OF HEARING : 16 . 1 0.2014 / DATE OF PRONOUNCEMENT : 21.10.2014 / O R D E R PER AMIT SHUKLA ( J M) : THE AFORESAID APPEAL HAS BEEN PREFERRED BY THE ASSESSEE CHALLENGING THE IMPUGNED ORDER DATED 2 ND MARCH, 2012, PASSED UNDER SECTION 12AA(1)(B)(II) OF THE INCOME - TAX ACT, 1961 (FOR SHORT THE ACT ) BY THE LEARNED DIRECTOR OF INCOME - TAX (EXEMPTION) [DIT(E)], MUMBAI . 2. B EFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT THE IMPUGNED ORDER REJECTING THE ASSESSEE S APPLICATION FOR REGISTRATION U/S 12AA HAS BEEN PASSED EX PARTE WITHOUT GIVING THE ASSESSEE DUE AND EFFECTIVE OPPORTUNITY TO PRESENT IT S CASE. HE SUBMITTED THAT THE ASSESSEE HAS FILED AN AFFIDAVIT GIVING THE DETAILS OF PROCEEDINGS OF THE HEARING AND ALSO SUBMITTED THAT THE NOTICE FOR LAST DATE OF HEARING ON 01.03.2012 COULD NOT BE RECEIVED BY THE ASSESSEE, AND THEREFORE, NONE APPEARED ON THAT DATE. COPY OF AFFIDAVIT IS KEPT ON RECORD. HE FURTHER SUBMITTED THAT THE EXACTLY ON SIMILAR FACTS AND CIRCUMSTANCES IN THE CASE OF TWO OTHER TRUSTS VIZ. IN THE CASES OF ITA NO. 2777 /MUM/201 2 . GURDAYAL BERLIA CHARITABLE TRUST . 2 POKARMAL BERLIA MEMORIAL TRUST V. DIT(E) IN ITA NO.2775/MUM/2012 AND MRS.SITA DEVI BERLIA CHARITABLE TRUST V. DIT(E) IN ITA NO.2776/MUM/2012, THE TRIBUNAL HAS SET ASIDE THE CASE S TO THE FILE OF LEARNED DIT (E) TO DECIDE THE ISSUE THE ISSUE AFRESH AFTER GIVING DUE AND EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE. COPIES OF SUCH ORDERS HAVE BEEN PLACED BEFORE US. 3. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY RELIED UPON THE FINDING GIVEN BY THE LEARNED DIT (E) IN THE IMPUGNED ORDER. 4. AFTER HEARING BOTH THE PARTIES, WE FIND THAT EXACTLY ON SIMILAR FACTS AND CIRCUMSTANCES, THE TRIBUNAL IN THE AFORESAID CASES, HAVE SET ASIDE THE ISSUES BACK TO THE FILE OF THE LEARNED DIT(E) TO DECIDE THE ISSUE OF REGISTRATION AFRESH AFTER GIVING DUE AND EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE RELEVANT OBSERVATION AND FINDING AS GIVEN IN THE CASE OF MRS.SITA DEVI BERLIA CHARITABLE TRUST V. DIT(E) (SUPRA) IS REPRODUCED AS UNDER: - 4. AFTER HEARING BOTH THE PARTIES, WE FIND THAT THERE IS NO EVIDENCE ON RECORD THAT AFTER 3 RD JANUARY, 2012, ANY NOTICE HAS BEEN SERVED UPON THE ASSESSEE FOR FURTHER COMPLIANCE. THE AVERMENTS MADE IN THE AFFIDAVIT HAS NOT BEEN REBUTTED BEFORE US THAT ANY LETTER OR FURTHER NOTICE DATED 21 ST FEBRUARY 2012, HAS BEEN SERVED UPON THE ASSESSEE AS MENTIO NED IN PARA - 2 OF THE IMPUGNED ORDER. THE LEARNED COUNSEL HAD ALSO BROUGHT TO OUR NOTICE THAT IN A SIMILAR ORDER PASSED BY THE TRIBUNAL IN POKARMAL BERLIA MEMORIAL TRUST V/S. DDIT(E), IN ITA NO.2775/MUM/ 2012, VIDE ORDER DATED 12 TH OCTOBER 2013, ON IDENTICA L FACTS AND ON SIMILAR ORDER PASSED BY THE LEARNED DIT(E), THE MATTER HAS BEEN RESTORED BACK TO THE FILE OF THE LEARNED DIT(E), MUMBAI, FOR PASSING OF ORDER FRESH ORDER AFTER PROVIDING DUE AND EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE. IN THE PRESEN T CASE ALSO, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED DIT(E) AND RESTORE THE MATTER BACK TO HIS FILE WITH A DIRECTION TO PROVIDE DUE AND EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE TO PRESENT ITS CASE AND THEN DECIDE THE ISSUE OF REGISTRATION UNDER SECTION 12AA READ WITH SECTION 12A ON MERITS AND IN ACCORDANCE WITH THE PROVISIONS OF LAW. THUS, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 2777 /MUM/201 2 . GURDAYAL BERLIA CHARITABLE TRUST . 3 5. IN VIEW OF THE AFORESAID FINDING, WHICH IS AP PLICABLE T O THE FACTS AND CIRCUMSTANCES OF THE ASSESSEE S CASE ALSO, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED DIT(E) AND RESTORE THE MATTER BACK TO HIS FILE TO DECIDE THE ISSUE OF REGISTRATION U/S 12AA / 12A ON MERITS AND IN ACCORDANCE WITH T HE PROVISIONS OF LAW, AFTER GIVING DUE AND EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE. THIS GROUND RAISED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 6 . IN THE RESULT, ASSESSEE S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED ON THIS 21 ST DAY OF OCTOBER , 2014 . SD/ - SD/ - ( B.R.BASKARAN ) ( AMIT SHUKLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 21 ST OCTOBER , 2014 . DEVDAS* / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE D IT, MUMBAI. 4. / D IT( E ), MUMBAI 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI