The Adivasi Sahayata Samiti ,Jobat, Dewas V. The CIT, Ujjain

ITA 323/IND/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0080 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-09-2009
• Assessment Year: misc
• Appeal Filed On: 24-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: M D SODANI
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE (S.M.C.-I) BENCH : INDORE BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER PAN NO. : AAATA8121S I.T.A.NO.323/IND/2009 U/S 12A/12AA ADIVASI SAHAYATA SAMITI, CIT, JOBAT, VS UJJAIN DIST. JHABUA APPELLANT RESPONDENT APPELLANT BY : SHRI M. D.SODANI, C. A. RESPONDENT BY : SMT. APARNA KARAN, ADDL. CIT DR O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT, UJJAIN, DATED 15 TH MAY,2009, REJECTING THE APPLICATION FOR REGISTRATI ON U/S 12A/12AA OF THE INCOME-TAX ACT, 1961,. - 2 - 2 2. I HAVE HEARD THE LD. REPRESENTATIVES OF BOTH THE PA RTIES, GONE THROUGH THE MATERIAL AVAILABLE ON RECORD AND PERUSE D THE FINDINGS OF THE AUTHORITY BELOW. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS A REGISTERED SOCIETY REGISTERED WITH REGISTRAR OF T HE SOCIETY EFFECTIVE FROM 23 RD DECEMBER,2003, AND ITS OBJECTS ARE CHARITABLE IN N ATURE. THE ASSESSEE IS WORKING IN THE BACKWARD AREA FOR TOWN TRODDEN PEOPL E AND RUNNING SCHOOLS, HOSTELS ETC. THE SCHOOL BUILDING AND HOSTELS ARE CO NSTRUCTED BY OTHER MISSIONARIES AND GIVEN TO THE SOCIETY. HE HAS SUBMI TTED THAT TWO PROPERTIES HAVE BEEN REGISTERED IN THE NAME OF THE SOCIETY AND SALE CONSIDERATION ARE OF RS. 8,21,000/- AND RS. 7 LAKHS RESPECTIVELY. THE LD . COMMISSIONER DIRECTED THE ASSESSEE TO PRODUCE COMPLETE BANK ACCOUNT, DETA ILS OF THE DONATION AND PAYMENTS MADE FOR PURCHASE OF THE PROPERTY. THE ASS ESSEE HAS CLAIMED THAT ONE PROPERTY WAS PURCHASED FROM SHRI RAMESH CHANDRA , WHICH WAS FINANCED BY MR. FRED EGGENBERGER OF SWITZERLAND AND COPY OF THE E-MAIL WAS FILED. IN FACT, CHEQUE OF RS. 4,50,000/- WAS GIVEN AT THE TI ME OF REGISTRATION AND REST OF THE AMOUNT WAS GIVEN IN CASH SUBSEQUENTLY IN SUP PORT OF WHICH CASH RECEIPT WAS FILED. IT WAS EXPLAINED THAT A CHEQUE O F RS. 6 LAKHS WAS GIVEN BY - 3 - 3 MADAM MARGIT, WHICH WAS DEPOSITED IN THE BANK ACCOU NT OF THE ASSESSEE FROM WHICH CHEQUE OF RS. 4.50 LAKHS WAS ISSUED TO S ELLER. ANOTHER PROPERTY WAS PURCHASED FROM SHRI RAJESH IN THE YEAR 2000 FOR RS. 2 LAKHS AND PAYMENT WAS MADE BY MADAM MARGIT FROM TIME TO TIME AND SHE CONSTRUCTED A HOSTEL THEREON. THIS PROPERTY WAS REGISTERED IN T HE NAME OF ASSESSEE SOCIETY, BUT PAYMENT WAS NOT MADE BY THE ASSESSEE S OCIETY. IT WAS ALSO EXPLAINED THAT BOTH MR. FRED AND MADAM MARGIT OF SW ITZERLAND HAVE DEVOTED THEIR WHOLE LIFE IN THE ADIVASI AREA FOR TH E HELP OF TOWN TRODDEN PEOPLE. THE LD. COMMISSIONER NOTED THAT COMPLETE BA NK ACCOUNT IS NOT PRODUCED BEFORE HER AND THAT THERE APPEARS FROM THE SALE DEED OF THE PROPERTIES THAT CONSIDERATION IS MADE BY THE ASSESS EE. IT WAS ALSO NOTED THAT NO EVIDENCE OR EXPLANATION IS FILED REGARDING CONST RUCTION. THE LD. COMMISSIONER, THEREFORE, NOTED THAT THE ASSESSEE SO CIETY IS WORKING AS PER OBJECTS OF THE ASSESSEE SOCIETY BUT THE GENUINENESS OF THE ACTIVITIES OF THE SOCIETY IS NOT PROVED. ACCORDINGLY, THE REGISTRATIO N WAS REJECTED. 4. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSION MADE BEFORE THE LD. COMMISSIONER AND REFERRED TO P. B. 7 WHICH ARE THE OBJECTS OF THE ASSESSEE SOCIETY AND REPLIES FILED B EFORE THE LD. COMMISSIONER - 4 - 4 ALONGWITH RECEIPTS AND SALE DEEDS AND SUBMITTED THA T SINCE THE SALE CONSIDERATION WAS NOT PAID BY THE ASSESSEE SOCIETY, THEREFORE, THE SAME WERE NOT TAKEN INTO BALANCE SHEET OF THE ASSESSEE, BUT I TS ACTIVITIES ARE SOLELY CHARITABLE IN NATURE. THIS IS ALSO NOT DISPUTED BY THE LD. COMMISSIONER, THEREFORE, REGISTRATION SHOULD NOT HAVE BEEN REFUSE D. HE HAS SUBMITTED THAT MR. FRED AND MADAM MARGIT ARE STILL WORKING IN ADIV ASI AREA FOR HELPING THE POOR PEOPLE FOR EDUCATIONAL AND OTHER CHARITABLE AC TIVITIES. HE HAS SUBMITTED THAT NONE OF THEM HAVE BEEN EXAMINED BY THE LD. COM MISSIONER AND EVEN BOTH THE SELLERS OF THE PROPERTIES WERE NOT EXAMINE D BY THE LD. COMMISSIONER, WHO SUPPORT THE CASE OF THE ASSESSEE. HE HAS SUBMITTED THAT INSPECTOR WAS DEPUTED TO VERIFY THE GENUINENESS OF THE ACTIVITIES OF THE SOCIETY, WHO HAS ALSO REPORTED THE GENUINENESS OF A CTIVITIES OF ASSESSEE IN FAVOUR OF THE ASSESSEE, BUT REPORT IS NOT SUPPLIED TO THE ASSESSEE. HE HAS SUBMITTED THAT THE ASSESSEE IS WILLING TO FILE AFFI DAVITS OF ABOVE PERSONS BEFORE THE LD. COMMISSIONER IN SUPPORT OF THE GENUI NENESS OF THE ACTIVITIES OF THE ASSESSEE, IF FURTHER TIME IS GIVEN IN THIS REGA RD. HE HAS ALSO SUBMITTED THAT THE ASSESSEE WOULD ALSO PRODUCE COMPLETE BANK ACCOUNT BEFORE THE LD. COMMISSIONER. - 5 - 5 5. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTAT IVE STRONGLY DEFENDED THE ORDER OF THE LD. COMMISSIONER AND SUBM ITTED THAT THE REQUISITE DETAILS WERE NOT FILED BEFORE THE LD. COMMISSIONER. THEREFORE, THE REGISTRATION WAS RIGHTLY REFUSED. 6. I HAVE HEARD THE LD. REPRESENTATIVES OF BOTH THE PA RTIES, GONE THROUGH THE MATERIAL AVAILABLE ON RECORD AND PERUSE D THE FINDINGS OF THE AUTHORITY BELOW. 7. WHILE GRANTING REGISTRATION U/S 12A/12AA OF THE INC OME-TAX ACT, 1961, THE LD. COMMISSIONER SHALL HAVE TO SATISFY HE RSELF ABOUT THE OBJECTS OF THE ASSESSEE AND GENUINENESS OF ITS ACTIVITIES. SEC TION 2(15) OF THE INCOME- TAX ACT, 1961, PROVIDES DEFINITION OF CHARITABLE PU RPOSES INCLUDES RELIEF OF POOR, EDUCATION, MEDICAL RELIEF AND THE ADVANCEMENT OF ANY OTHER OBJECTS OF GENERAL PUBLIC UTILITY. OBJECTS OF THE ASSESSEE HAV E BEEN CONSIDERED AND HAVE NOT BEEN DISPUTED BY THE LD. COMMISSIONER ALSO, WH ICH ARE, PRIMA FACIE, CHARITABLE IN NATURE. 8. AS REGARDS GENUINENESS OF THE ACTIVITIES OF THE ASS ESSEE SOCIETY, THE LD. COMMISSIONER NOTED THAT SINCE THERE IS A CONTRA DICTION IN SUBMISSION OF THE ASSESSEE WITH THE DETAILS OF CONSIDERATION, MEN TIONED IN THE SALE DEED AND - 6 - 6 NO COMPLETE BANK ACCOUNT IS PRODUCED, THEREFORE, TH E GENUINENESS OF THE ACTIVITIES OF THE ASSESSEE SOCIETY ARE NOT PROVED. HOWEVER, THE EXPLANATION OF THE ASSESSEE FILED BEFORE THE LD. COMMISSIONER AND EXPLANATION BEFORE THE TRIBUNAL CLEARLY SHOWS THAT THE SALE CONSIDERATION OF THE PROPERTY ARE APPARENTLY NOT GIVEN BY THE ASSESSEE BUT GIVEN BY M R. FRED AND MADAM MARGIT OF SWITZERLAND. THEIR RECEIPTS AND COPIES OF THE E-MAIL WERE FILED. IN CASE, THE LD. COMMISSIONER WAS HAVING ANY DOUBT, TH E SAME PERSONS COULD HAVE BEEN EXAMINED BY HER. THE CONTENTION OF THE AS SESSEE IS ALSO SUPPORTED BY THE CERTIFICATES OF THE SELLERS. SINCE THE OBJEC TS OF THE ASSESSEE ARE CHARITABLE IN NATURE AS NOTED ABOVE, THEREFORE, INS TEAD OF REFUSING TO GRANT REGISTRATION TO THE ASSESSEE, IT SHOULD HAVE BEEN R EASONABLE AND APPROPRIATE TO DIRECT THE ASSESSEE TO FILE THE AFFIDAVITS OF MR .FRED AND MADAM MARGIT ALONGWITH SELLERS IN ORDER TO DECIDE THE ISSUE ONCE FOR ALL. IT MAY ALSO BE NOTED HERE THAT ULTIMATELY ABOVE PERSONS OF FOREIGN ORIGIN HAVE CONTRIBUTED FOR DEVELOPMENT IN ADIVASI AREA OF INDIA FOR PROVID ING RELIEF TO POOR AND CONTRIBUTE TOWARDS EDUCATIONAL ACTIVITIES, THEREFOR E, THE LD. COMMISSIONER SHOULD BE SYMPATHETIC TOWARDS THEIR CAUSE. THE GRAN T OF REGISTRATION IS STEPPING STONE AND IN CASE ANY VIOLATION IS NOTICED LATER ON, IT COULD BE TAKEN - 7 - 7 CARE OF BY A.O. AT ASSESSMENT STAGE. THE REPORT OF THE INSPECTOR IS ALSO NOT DISCUSSED IN THE IMPUGNED ORDER. I, ACCORDINGLY, SE T-ASIDE THE ORDER OF THE LD.COMMISSIOENR AND RESTORE THE ISSUE TO HER FILE W ITH DIRECTION TO RE-DECIDE THE ISSUE OF REGISTRATION BY GIVING REASONABLE SUFF ICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS, THEREFORE, DIRECTED TO FILE AFFIDAVITS OF MR.FRED EGGENBERGES AND MADAM MARGIT OF SWITZERLAND ALONGWITH SELLERS BEFORE CIT. THE ASSESSEE SHALL ALSO PRODUCE COMPLET E BANK ACCOUNT OF THE ASSESSEE BEFORE THE LD. COMMISSIONER FOR HER PERUSA L AND VERIFICATION. THE LD. COMMISSIONER IS ALSO DIRECTED TO SUPPLY COPY OF THE REPORT OF THE INSPECTOR TO THE ASSESSEE BEFORE ARRIVING AT THE DE CISION IN THE MATTER. IN CASE THE LD. COMMISSIONER FEELS APPROPRIATE TO CROSS-EXA MINE THE DEPONENTS OF THE AFFIDAVITS, SHE MAY DIRECT THE ASSESSEE TO PROD UCE THEM FOR CROSS EXAMINATION BEFORE HER. 9. AS A RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE LD. COMMISSIONER IS FURTHER DIRECTED TO DECIDE THE ABOVE ISSUE WITHIN TWO MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER. 10. AS A RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. - 8 - 8 THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COU RT ON 17 TH SEPTEMBER, 2009. SD/- BHAVNESH SAINI JUDICIAL MEMBER DATED : 17 TH SEPTEMBER, 2009. CPU* 17189