Anant Shi Vibhushit Jagatguru Nibarkacharya, Mathura V. C.I.T.-1, Agra

ITA 318/AGR/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0754 (ITAT-AGRA)
• Duration Of Justice: 5 year(s) 8 month(s) 16 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-08-2014
• Assessment Year: misc
• Appeal Filed On: 30-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M M AGRAWAL
• Keywords: Charitable institution; Opportunity of being heard
• Section: 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI A. D. JAIN JUDICIAL MEMBER AND DR. MITHA LAL MEENA, ACCOUNTANT MEMBER ITA NO. 318 /AGR/201 3 ASSESSMENT YEAR: N/A ANANT SHRI VIBHUSHIT JAGATGURU NIBARKACHARYA SHRI MUKUND DEVACHARYA PEETH SEWA SAMITI CHARITABLE TRUST TOPI WALI KUNJ, VIHAR GATE VRINDABAN 281 121 , MATHURA. (U.P.) VS. THE CIT - 1, AGRA . PAN: AA DTA8006B APPELLANT RESPONDENT ASSESSEE BY: SHRI . M. M. AGRAWAL, ADV. REVENUE BY: SHRI WASEEM ARSHAD, SR. DR. DATE OF HEARING: 2 9 /1 1 /2016 DATE OF PRONOUNCEMENT: 30 /1 1 /2016 ORDER PER, DR. MITHA LAL MEENA, AM: THIS APPEAL HAS BEEN FILED AGAINST THE ORDER PASSED U/S 80G(5) OF THE I.T. ACT, 1961 BY LD. CIT - I AGRA , DATED 16.08.2013. THE SPECIFIC GROUND OF THE APPEAL RAISED BY THE ASSESSEE IS THAT: ITA NO. 318 /AGR/201 3 2 4. BECAUSE WHILE DO SO, LEARNED CIT ALTOGETHER IGNORED THE PROVISIONS OF SECTION 80G (5B) OF THE ACT ACCORDING TO WHICH NOTWITHSTANDING CLAUSE (II) OF SUB SECTION (5) AND EXPLANATION 3 WHERE SU M NOT EXCEEDING FIVE PERCENT OF TOTAL INCOME O F THE TRUST IS APPLIED FOR RELIGIOUS PURPOSE, STILL THE PROVISIONS OF SECTION 80G WERE APPLICABLE. 2. THE LD. CIT AGRA - II HAS HELD THAT IN THE CASE OF THE ASSESSEE TRUST, ITS OBJECT S ARE RELIGIOUS IN NATURE AND IT IS FOR A PARTICULAR COMMUNITY , AND SO IT DOES NOT QUALIFY THE CONDITION S LAID DOWN IN SECTION 80G(5)(II) AND 80G(5)(III) AND IT IS NOT A TRUST CREATED FOR CHARITABLE PURPOSE W ITHIN THE MEANING OF EXPLANATION 3 BELOW 80G OF I.T. ACT 1961 , THEREFORE, IT DOES NOT QUALIFY FOR THE GRANT OF APPROVAL U/S 80G(5) OF THE ACT 1961, AND ACCORDINGLY , THE LD. CIT(A) REJECTED THE GRANT OF APPROVAL U/S 80G(5) OF THE ACT. 3. THE A SSESSEE S GRIEVANCE IS THAT THE LD. CIT HAS IGNORED THE PROVISIONS OF SECTI ON 80G(5B) OF THE ACT. 4. THE LD. DR PLACED RELIANCE ON THE ORDER OF THE CIT. 5. T HE LD. AR OF THE ASSESSEE CONTENDED THAT AS PER THE PROVISION D OF SUB SECTION 80G(5B) , NOTWITHSTANDING ANYTHING CONT AINED IN CLAUSE (II) OF SUB SECTION (5) AND EXPLANATION 3, INSTITUTION O R FUND WHICH INCUR EXPENDITURE DURING ANY PREVIOUS YEAR , WHICH IS OF A RELIGIOUS NATURE FOR AN AMOUNT NOT EXISTING 5% OF ITS ITA NO. 318 /AGR/201 3 3 TOTAL INCOME IN THAT PREVIOUS YEAR , SHALL BE DEEMED TO BE AN INSTITUTION OR FUND TO WHICH THE PR OVISIONS OF THIS SE CTION APPLY; AND THAT HOWEVER, THE LD. CIT HAS NOT TAKEN THIS ASPECT INTO CONSIDERATION. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED MATERIAL ON RECORD. IT IS UNDISPUTED FACT THAT THE LD. CIT HAS NOT CONSIDERED THE PROVISION OF SECTION 80G(5B) , AS CONTENDED BY THE LD. AR FOR THE ASSESSEE. WE FIND THAT THE ASSESSEE HA D GIVEN A COPY OF ITS AC COUNTS AND OTHER EVIDENCES WITH REGARDS TO CLAIM FOR GRANT OF APPROVAL U/S 80G(5) OF I.T. ACT 1961. HOWEVER, THE ASSESSEES CLAIM OF APPLICABILITY OF SECTION 80G(5B) OF THE ACT , ACCORDING TO WHICH , NOTWITHSTANDING CLAUSE (II) OF SUB SECTION 5 AND EXPLANATION 3 , WHE R E A SUM NOT EXCEEDING 5% OF THE TOTAL INCOME OF THE TRUST IS APPLIED FOR RELIGIOUS PURPOSE S THE PROVISION S OF SECTION 80G(5) AR E APPLICABLE . WE ARE NOT INCLINED TO DEAL WITH THE CASE ON MERITS . I N OUR CONSIDERED VIEW, THE APPROPRIATE ACTION WOULD BE TO REMIT THE MATTER TO THE CIT TO RE - DECIDE THE CLAIM OF THE ASSESSEE BY CONSIDERING THE PROVISIONS OF SECTION 80G(5B) OF THE ACT. IT IS SO ORDERE D. 7. THE ASSESSEE SHALL BE GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD BEFORE DISPOSING OF THE APPLICATION. WE ALSO DIRECT THE ASSESSEE TO FULLY COOPERATE WITH THE LD. CIT FOR EXPEDITING THE DISPOSAL OF THE APPLICATION AND TO PRODUCE SUCH EVIDENCES AND MA TERIAL AS MAY ENABLE THE LD. CIT TO DECIDE THE CASE ON MERITS. WE ITA NO. 318 /AGR/201 3 4 REMAND THE APPLICATION OF THE ASSESSEE TO THE LD. CIT FOR FRESH ADJUDICATION WITH THESE DIRECTIONS . 8. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APPEAL IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 /1 1 /2016. SD/ - SD/ - (A. D. JAIN) (DR. MITHA LAL MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30 /1 1 /2016 A.K.V. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR