Shri Sahdeo Prasad Mishra Manager of M/s. Banwari Devi Shiksha Prasar Samiti, Bahraich V. Commissioner of Income Tax (Exemption), Lucknow

ITA 310/LKW/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5317 (ITAT-LUCKNOW)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 22-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K MADHUK
• Assessee Lawyers: B P YADAV COST ACCOUNTANT
• Keywords: Set aside
• Section: 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO. 310/LKW/2019 ASSESSMENT YEAR: N.A. MR SAHDEO PRASAD MISHRA MANAGER, M/S BANWARI DEVI SHIKSHA PRASAR SAMITI KALAM SATRAHI, PAYAGPUR BAHRAICH V. CIT (EXEMPTION) LUCKNOW TAN/PAN: AABAB1345H (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI B.P. YADAV, COST ACCOUNTANT RESPONDENT BY: SHRI S. K. MADHUK, CIT (DR) DATE OF HEARING: 04 02 20 20 DATE OF PR ONOUNCEMENT: 04 02 20 20 O R D E R PER A. D. JAIN, V.P.: THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE LD. CIT (EXEMPTIONS), LUCKNOW, DATED 25/3/2019, REJECTING THE APPLICATION FOR GRANT OF APPROVAL UNDER SECTION 80G(5) OF THE INCOME TAX ACT, 1961. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED AN APPLICATION FOR GRANT OF APPROVAL UNDER SECTION 80G(5) OF THE INCOME-TAX ACT, 1961 ON 24/9/2018 WITH THE CIT (EXEMPTIONS), LUCKNOW. THE LD. CIT (EXEMPTIONS) ISSUED A LETTER DATED 13/3/2019 TO THE ASSESSEE CALLING FOR SPECIFIC QUERIES REGARDING ITS APPLICATION FOR GRANT OF APPROVAL UNDER SECTION 80G OF THE ACT, FOR COMPLIANCE ON 22/3/2019. ON THIS DATE, I.E., 22/3/2019, NEITHER ANYBODY APPEARED BEFORE THE LD. CIT (EXEMPTIONS) NOR FILED ANY APPLICATION FOR ADJOURNMENT. THE LD. CIT (EXEMPTIONS) ITA NO.310/LKW/2019 PAGE 2 OF 4 REJECTED THE APPLICATION MOVED BY THE ASSESSEE, OBSERVING, AS ARE MENTIONED AT PARA 4 OF HIS ORDER, THAT ON PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, IT IS FOUND THAT THE APPLICANT HAS MERELY SUBMITTED THE TRUST DEED AND NO MATERIAL HAS BEEN PROVIDED THAT COULD THROW SOME LIGHT UPON THE ACTIVITIES, IF ANY, CARRIED OUT BY THE APPLICANT AS CLAIMED IN THE TRUST DEED; AND THAT THERE IS LITERALLY NO MATERIAL AVAILABLE ON RECORD, SO AS TO FORM EVEN THE SLIGHTEST SATISFACTION REGARDING THE GENUINENESS OF THE ACTIVITIES CARRIED OUT, IF ANY, BY THE APPLICANT. 3. BEFORE US, THE LD. A.R. OF THE ASSESSEE SUBMITTED THAT THE NOTICE DATED 13/3/2019, ISSUED FROM THE OFFICE OF THE LD. CIT (E), FIXING THE DATE OF HEARING ON 22/3/2019, WAS SERVED ON THE EMPLOYEE OF THE ASSESSEE-SAMITI ON 18/3/2019, BUT HE, DUE TO AN OVERSIGHT, COULD NOT INFORM THE MANAGER/SECRETARY OF THE ASSESSEE-SAMITI REGARDING THE DATE OF HEARING AND FOR THIS REASON ALONE, NO REPRESENTATION COULD BE MADE ON BEHALF OF THE ASSESSEE BEFORE THE CIT (E) ON THE DATE FIXED FOR HEARING, I.E., 22/3/2019; THAT THE LD. CIT (E); THAT THEREFORE, HE PASSED AN EX-PARTE ORDER REJECTING THE APPLICATION OF THE ASSESSEE; AND THAT NOW THE ASSESSEE-SAMITI IS IN POSSESSION OF ALL SUCH DOCUMENTS/MATERIAL, SHOWING THE ACTIVITIES BEING CARRIED OUT BY THE ASSESSEE, AS CLAIMED IN THE TRUST DEED. HE HAS FURTHER SUBMITTED THAT SOME AMENDMENT WAS REQUIRED IN THE BY-LAWS, BUT THE SAME COULD NOT BE DONE IN THE GIVEN TIME PERIOD. THEREFORE, THE SAME COULD NOT BE FURNISHED BEFORE THE CIT (E) AT THE RELEVANT TIME. HOWEVER, THE AMENDED THE BY-LAWS ARE NOW READY, AND CAN BE SUBMITTED BEFORE THE CIT (E). THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ORDER OF THE LD. CIT (EXEMPTIONS) IS NOT SUSTAINABLE IN LAW, AS DUE AND APPROPRIATE OPPORTUNITY OF HEARING WAS NOT AFFORDED TO THE ASSESSEE. HE PRAYED THAT ITA NO.310/LKW/2019 PAGE 3 OF 4 THEREFORE, THE ORDER OF THE LD. CIT (EXEMPTIONS) MAY BE SET ASIDE AND HE MAY BE DIRECTED TO DECIDE THE ISSUE RELATING TO GRANT OF APPROVAL UNDER SECTION 80G(5) OF THE ACT, ON AFFORDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 4. THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE ON THE ORDER OF THE LD. CIT (EXEMPTION), LUCKNOW. 5. HEARD. WE FIND THAT THE ASSESSEE HAD FILED AN APPLICATION FOR GRANT OF APPROVAL UNDER SECTION 80G(5) OF THE ACT, WHICH WAS REJECTED BY THE CIT (E), OBSERVING THAT NO MATERIAL HAS BEEN PROVIDED THAT COULD THROW SOME LIGHT UPON THE ACTIVITIES, IF ANY, CARRIED OUT BY THE APPLICANT AS CLAIMED IN THE TRUST DEED; AND THAT THERE IS LITERALLY NO MATERIAL AVAILABLE ON RECORD, SO AS TO FORM EVEN THE SLIGHTEST SATISFACTION REGARDING THE GENUINENESS OF THE ACTIVITIES CARRIED OUT, IF ANY, BY THE APPLICANT. THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE WAS THAT DUE TO AN OVERSIGHT, THE EMPLOYEE, WHO RECEIVED THE NOTICE OF HEARING, COULD NOT INFORM THE SAME TO THE MANAGER/SECRETARY OF THE ASSESSEE- SAMITY. THEREFORE, NO REPRESENTATION COULD BE MADE ON BEHALF OF THE ASSESSEE BEFORE THE CIT (E) ON THE DATE FIXED FOR HEARING, I.E., 22/3/2019. HE HAS FURTHER SUBMITTED THAT SOME AMENDMENT WAS REQUIRED IN THE BY-LAWS, BUT THE SAME COULD NOT BE DONE IN THE GIVEN TIME PERIOD. THEREFORE, THE SAME COULD NOT BE FURNISHED BEFORE THE CIT (E) AT THE RELEVANT TIME. HOWEVER, NOW THEY HAVE GOT AMENDED THE BY-LAWS AND ARE READY TO SUBMIT THE SAME BEFORE THE CIT (E). IN THIS VIEW OF THE MATTER AND IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF THE LD. CIT (EXEMPTIONS) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE ISSUE OF GRANT OF APPROVAL UNDER SECTION 80G(5) OF THE ACT, AFTER AFFORDING DUE OPPORTUNITY OF HEARING TO THE ITA NO.310/LKW/2019 PAGE 4 OF 4 ASSESSEE, PREFERABLY WITHIN TWO MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04/02/2020. SD/- SD/- [ T. S. KAPOOR ] [ A. D. JAIN ] ACCOUNTANT MEMBER VICE PRESIDENT DATED:04/02/2020 JJ:0402 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSISTANT REGISTRAR