Kanpur Subhash Shiksha Samiti, Kanpur V. Commissioner of Income Tax -1, Kanpur

ITA 32/LKW/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62152 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-05-2012
• Assessment Year: misc
• Appeal Filed On: 25-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V V SINGH
• Assessee Lawyers: SUDINDRA JAIN; SWARNA SINGH CAS
• Keywords: Charitable institution
• Section: 80G; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI S. V. MEHROTRA , ACCOUNTANT MEMBER ITA NO. 32/LKW/2012 KANPUR SUBHASH SHIKSHA SAMITI 127/470, SAKET NAGAR KANPUR V. CIT - I KANPU R PAN: AAATK6164B (APPELLANT) (RESPONDENT) APPELLANT BY: S/SHRI. SUDINDRA JAIN & SWARNA SINGH, CAS RESPONDENT BY: SHRI. V. V. SINGH, D.R. DATE OF HEARING: 24.05.2012 DATE OF PRONOUNCEMENT: 25.05.2012 O R D E R PER S UNIL KUMAR YADAV : THIS APPEAL IS P REFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME - TAX REJECTING THE REQUEST FOR GRANT OF EXEMPTION UNDER SECTION 80G(5) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT). 2 . THE FACTS IN BRIEF BORNE OUT FROM THE REC ORD ARE THAT WHILE ADJUDICATING THE REQUEST FOR GRANT OF EXEMPTION UNDER SECTION 80G(5) OF THE ACT ON THE APPLICATION OF THE ASSESSEE IN FORM NO.10G, THE LD. COMMISSIONER OF INCOME - TAX HAS NOTICED THAT THE ASSESSEE HAS GIVEN DONATION OF ` 76 LAKHS, BUT THE DETAILS TO WHOM THE DONATION HAS BEEN GIVEN HAS NOT BEEN FURNISHED DESPITE OPPORTUNITY GIVEN TO IT. THE LD. COMMISSIONER OF INCOME - TAX FURTHER OBSERVED THAT THE ASSESSEE - SOCIETY IS : - 2 - : RUNNING VARIOUS EDUCATIONAL INSTITUTIONS AND EARNING HUGE PROFIT FROM ITS ACTIVITIES, BUT WHETHER THE APPLICATION OF SUCH PROFIT WAS FOR EDUCATIONAL OR CHARITABLE PURPOSE I S NOT VERIFIABLE. IN THE ABSENCE OF COMPLETE DETAILS, THE LD. COMMISSIONER OF INCOME - TAX CONCLUDED THAT THE ASSESSEE - SOCIETY DOES NOT FULFILL THE CONDITIONS LAID DOWN UNDER SECTION 80G(5) OF THE ACT AND HE ACCORDINGLY DENIED EXEMPTION UNDER SECTION 80G(5) OF THE ACT. 3 . NOW THE ASSESSEE IS BEFORE US WITH THE SUBMISSION THAT IT HAS FILED ALL THE REQUISITE INFORMATIONS BEFORE THE LD. COMMISSIONER OF INCOME - TAX. R EGISTRATION UNDER SECTION 12AA OF THE ACT HAS ALREADY BEEN GRANTED TO THE ASSESSEE AND THE DONATION OF ` 76 LAKHS WAS GIVEN TO THE OTHER CHARITABLE SOCIETY I.E. M/S RAM LAKHAN SHIKSHA SAM ITI WHICH WAS ENGAGED IN CHARIT ABLE ACTIVITIES AND IS ALSO HAVING REGI STRATION UNDER SECTION 12AA OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER INVITED OUR ATTENTION TO THE FACT THAT HE HAS FILED AUDIT REPORT, RETURN AND OTHER RELEVANT EVIDENCE S BEFORE THE LD. COMMISSIONER OF INCOME - TAX IN ORDER TO JUSTIFY THAT T HE SOCIETY WAS ENGAGED IN CHARITABLE ACTIVITIES AND DONATION WAS GIVEN TO ANOTHER CHARITABLE SOCIETY. THEREFORE, DENIAL OF EXEMPTION UNDER SECTION 80G(5) OF THE ACT WAS NOT PROPER. 4 . THE LD. D.R., ON THE OTHER HAND, HAS SUBMITTED THAT TO A VAIL EXEMPTION UND ER SECTION 80G(5) OF THE ACT, THE ASSESSEE IS REQUIRED TO PROVE THAT IT FULFILS ALL THE CONDITIONS ENSHRINED UNDER SUB - SECTION (5) OF SECTION 80G OF THE ACT. IT IS NOT A BLANKET APPROVAL WHICH IS TO BE GRANTED BY THE LD. COMMISSIONER OF INCOME - TAX. THE L D. COMMISSIONER OF INCOME - TAX HAS TO EXAMINE THE RECORD OF THE SOCIETY WHETHER IT FULFILS ALL THE REQUISITE CONDITIONS. THE LD. D.R. FURTHER CONTENDED THAT AS PER CLAUSE (5) (II) OF SECTION 80G OF THE ACT, THE ASSESSEE - SOCIETY WAS REQUIRED TO PROVE THAT D ONATION WAS MADE TO AN OTHER SOCIETY FOR CHARITABLE PURPOSE. IT IS NOT CLEAR FROM THE DOCUMENTS AS TO WHAT PURPOSE THE DONATION WAS GIVEN. MERE LY GIVING DONATION TO A CHARITABLE SOCIETY DOES NOT PROVE THAT DONATION : - 3 - : WAS GIVEN FOR CHARITABLE PURPOSE. THE L D. COMMISSIONER OF INCOME - TAX HAS GIVEN OPPORTUNITY TO THE ASSESSEE TO PLACE RELEVANT EVIDENCE, BUT NOTHING WAS PLACED BEFORE HIM. THEREFORE, THE LD. COMMISSIONER OF INCOME - TAX WAS JUSTIFIED IN REFUSING GRANT OF EXEMPTION UNDER SECTION 80G(5) OF THE ACT. 5 . HAVING CAREFULLY GONE THROUGH THE ORDER OF THE LD. COMMISSIONER OF INCOME - TAX IN THE LIGHT OF THE RIVAL SUBMISSIONS AND MATERIALS PLACED BEFORE US, WE FIND THAT BEFORE THE LD. COMMISSIONER OF INCOME - TAX THE ASSESSEE HAS NOT PLACED RELEVANT EVIDENCE WHICH I S PLACED BEFORE US. AS PER SECTION 80G(5)(II) OF THE ACT, THE ASSESSEE IS REQUIRED TO PROVE THAT WHATEVER DONATION WAS GIVEN BY IT, IT SHOULD BE FOR THE PURPOSE OF CHARITY. IF THESE FACTS ARE NOT PROVED, EXEMPTION UNDER SECTION 80G(5) OF THE ACT CAN BE D ENIED. IN THE INSTANT CASE, THE ASSESSEE - SOCIETY HAS FILED SOME EVIDENCE BEFORE US BUT NO EVIDENCE IN THIS REGARD WAS FILED BEFORE THE LD. COMMISSIONER OF INCOME - TAX . WE ARE, THEREFORE, OF THE VIEW THAT THIS ISSUE REQUIRES FRESH ADJUDICATION IN THE INTER EST OF JUSTICE. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. COMMISSIONER OF INCOME - TAX AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE - ADJUDICATE THE ISSUE AFRESH IN THE LIGHT OF THE EVIDENCE FILED BEFORE US AFTER AFFORDING OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE . 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25.5.2012. S D/ - S D/ - [ S. V. MEHROTRA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 25.5.2012 JJ: 2405 : - 4 - : COPY FORWARDE D TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR