Social Action for empowerment & development of Minorities, Calicut V. CIT, Calicut

ITA 32/COCH/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73917 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 31-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Charitable institution
• Section: 12AA

Judgement Text

1 ITA NO. /COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 32/COCH/2014 SOCIAL ACTION FOR EMPOWERMENT VS CIT, CALICUT AND DEVELOPMENT OF MINORITIES PB NO.830, ROSY APARTMENT NEAR SPAN HOTEL, JAIL ROAD PUTHIYARA PO KOZHIKODE 673 004 PAN : AAFAS5426A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S VENUGOPAL RESPONDENT BY : SHRI M ANIL KUMAR, CIT-DR DATE OF HEARING : 27-03-2014 DATE OF PRONOUNCEMENT : 31-03-2014 O R D E R PER N.R.S. GANESAN (JM) BEING AGGRIEVED BY THE ORDER OF THE ADMINISTRATIVE COMMISSIONER PASSED U/S 12AA OF THE ACT REJECTING REGISTRATION A S A CHARITABLE INSTITUTION, THE ASSESSEE FILED THE APPEAL BEFORE THIS TRIBUNAL. 2. SHRI S VENUGOPAL, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE COMMISSIONER DISMISSED THE APPLICATION OF THE ASSESSEE ON THE GROUND THAT THE TRUST FUNCTIONED FOR THE BENEFIT OF A PARTICULAR RELIGIOUS 2 ITA NO. /COCH/2010 COMMUNITY OR CASTE. REFERRING TO THE TRUST DEED, M ORE PARTICULARLY PAGE 2, THE LD.REPRESENTATIVE SUBMITTED THAT THE ASSOCIATIO N SHALL BE OPEN TO ALL PEOPLE IRRESPECTIVE OF THEIR CASTE, CREED, RELIGION AND LANGUAGE. ACCORDING TO THE LD.REPRESENTATIVE, THE ADMINISTRATIVE COMMIS SIONER HAS NOT CONSIDERED THIS OBJECT IN THE TRUST DEED. THEREFOR E, THE ADMINISTRATIVE COMMISSIONER IS NOT CORRECT IN SAYING THAT THE TRUS T WAS ESTABLISHED FOR THE BENEFIT OF A PARTICULAR RELIGIOUS COMMUNITY. ON A QUERY FROM THE BENCH, AS THE ORDER WAS PASSED BY THE ADMINISTRATIVE COMMISSI ONER EXPARTE, WHY THE MATTER SHOULD NOT BE REMITTED BACK TO THE FILE OF THE ADMINISTRATIVE COMMISSIONER FOR RECONSIDERATION, THE LD.REPRESENTA TIVE SUBMITTED THAT HE HAS NO OBJECTION TO REMIT BACK THE MATTER TO THE AD MINISTRATIVE COMMISSIONER. 3. WE HEARD SHRI M ANIL KUMAR, THE LD.DR ALSO. ACC ORDING TO THE LD.DR, SINCE THE ASSESSEE TRUST WAS ESTABLISHED FOR THE BENEFIT OF A PARTICULAR RELIGIOUS COMMUNITY, IT IS NOT ENTITLED FOR REGISTRATION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ADMI NISTRATIVE COMMISSIONER CALLED FOR DETAILS IN RESPECT OF NINE POINTS BY GIVING AN OPPORTUNITY TO THE ASSESSEE. HOWEVER, THE NINE POI NTS RAISED BY THE COMMISSIONER WAS NOT CLARIFIED BY THE ASSESSEE. IN FACT, THE ASSESSEE 3 ITA NO. /COCH/2010 COULD NOT APPEAR BEFORE THE ADMINISTRATIVE COMMISSI ONER. THEREFORE, ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD, THE ADMINISTRATIVE COMMISSIONER FOUND THAT THE TRUST WAS ESTABLISHED F OR THE BENEFIT OF A PARTICULAR COMMUNITY, AND AS SUCH, NOT ENTITLED FOR REGISTRATION IN VIEW OF THE PROVISIONS CONTAINED IN SECTION 13(1)(B) OF THE ACT. 5. NOW THE LD.REPRESENTATIVE FOR THE ASSESSEE BRING S TO THE NOTICE OF THIS BENCH THAT AS PER ITEM (K) ON PAGE 2 OF THE TR UST DEED THE SOCIETY WAS ESTABLISHED FOR THE BENEFIT OF ALL SECTIONS OF THE SOCIETY IRRESPECTIVE OF THEIR CASTE, CREED, RELIGION AND LANGUAGE. A READING OF THE IMPUGNED ORDER OF THE ADMINISTRATIVE COMMISSIONER SHOWS THAT THE OBJE CT AS FOUND IN ITEM (K) ON PAGE 2 OF THE TRUST DEED WAS NOT CONSIDERED BY T HE ADMINISTRATIVE COMMISSIONER. FROM THE TRUST DEED IT APPEARS THAT THE MEMBERSHIP OF THE TRUST IS CONFINED ONLY TO PERSONS, WHO ARE FOLLOWIN G ISLAMIC FAITH. THEREFORE, THE ASSESSEE HAS TO EXPLAIN HOW THE TRUS T IS OPEN TO ALL PEOPLE OF THE SOCIETY IRRESPECTIVE OF THEIR CASTE, CREED, RELIGION AND LANGUAGE. IN OTHER WORDS, WHEN THE MEMBERSHIP OF THE TRUST IS CO NFINED ONLY TO PERSONS FOLLOWING ISLAMIC FAITH, HOW THAT THE BENEFIT OF TH E TRUST COULD BE OPEN TO ALL PERSONS IRRESPECTIVE OF THEIR CASTE, CREED, RELIGIO N AND LANGUAGE NEEDS TO BE EXPLAINED BY THE ASSESSEE. SINCE THE ORDER WAS PASSED EX PARTE IN THE ABSENCE OF THE ASSESSEE, THIS TRIBUNAL IS OF THE CO NSIDERED OPINION THAT THE MATTER NEEDS TO BE RECONSIDERED BY THE ADMINISTRATI VE COMMISSIONER BY 4 ITA NO. /COCH/2010 GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE. ACCOR DINGLY, THE ORDER OF THE LOWER AUTHORITY IS SET ASIDE AND THE ISSUE OF REGIS TRATION IS REMITTED BACK TO THE FILE OF THE ADMINISTRATIVE COMMISSIONER. THE A DMINISTRATIVE COMMISSIONER SHALL RECONSIDER THE MATTER AFRESH AFT ER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND THEREAFT ER DECIDE THE SAME IN THE LIGHT OF GUIDELINES LAID DOWN BY THE APEX COURT IN THE RECENT JUDGMENT IN CIT VS M/S DAWOODI BHORA JAMAT. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST MARCH, 2014. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 31 ST MARCH, 2014 PK/- COPY TO: 1. SOCIAL ACTION FOR EMPOWERMENT & DEVELOPMENT OF M INORITIES, PB NO.830, ROSY APARTMENT, NEAR SPAN HOTEL, JAIL ROAD, PUTHIYARA PO, KOZHIKODE 673 004 2. CIT, CALICUT 3. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH