V yeth, Jammu V. The Commissioner of Income-tax, Chandigarh

ITA 330/ASR/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95118 (ITAT-AMRITSAR)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 22-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K V K SINGH
• Assessee Lawyers: MANJIT SINGH
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH; AMRITSAR (CAMP : JAMMU) BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.330(ASR)/2015 PAN:AABBAV2 762Q SH.VYETH, VS. COMMISSIONER OF INCOME TAX, 3/33, LANE-2, BLOCK-B, (EXEMPTIONS) CHANDIGARH. ROOP NAGAR ENCLAVE, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.MANJIT SINGH, CA RESPONDENT BY:SH. K.V.K. SINGH, DR DATE OF HEARING: 04/12/2015 DATE OF PRONOUNCEMENT: 15/12/2015 ORDER PER A.D. JAIN, JM THIS IS THE ASSESSEES APPEAL AGAINST THE ORDER DA TED 27.05.2015, PASSED BY THE LD. CIT (EXEMPTIONS) CHANDIGARH, DENY ING APPROVAL TO THE ASSESSEE UNDER SECTION 80G(5)(VI) OF THE INCOME TAX ACT, 1961. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 1. THE LD.CIT (EXEMPTION) HAS PASSED THE ORDER OF REJECTION OF APPLICATION OF EXEMPTION U/S 80G(5)(VI) OF THE INCO ME TAX ACT, ARBITRARILY ON ERRONEOUS FACTS AND SUPERFLUOUS REASONS WITHOUT BRINGING OUT THE RELEVANT MATERIAL FACTS ON RECORD. 2. AS PER PROVISO ATTACHED TO THE SUB-RULE (5) OF R ULE 11AA OF THE RULES, IT IS A STATUTORY REQUIREMENT THAT NO OR DER OF REJECTION OF APPLICATION U/S 80G(5) OF THE ACT SHAL L BE PASSED WITHOUT GIVING THE INSTITUTION, TRUST OR FUND AN OP PORTUNITY OF BEING HEARD. IN THE CASE IN HAND, THE CIT(E) ISS UED A LETTER ON 02.03.2015 TO THE ASSESSEE TO SUBMIT DOCU MENTS AND EXPLANATION AND THE ASSESSEES REPRESENTATIVE SUBMITTED A REPLY ALONG WITH RELEVANT EVIDENCE ON T HE DATE OF ITA NO.330(ASR)/2015 2 HEARING I.E. 13.05.2015. FROM THE IMPUGNED ORDER, W E OBSERVE THAT THE REPLY AND EVIDENCE WITH IT WAS CON SIDERED BY THE CIT(E) BUT HE PROCEEDED TO DECIDE THE APPLIC ATION AND REJECTED THE SAME WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ENABLING HIM TO EXPLAIN HIS SUBMISSIONS AND RELEVANT EVIDENCE SHOWING CHARITAB LE ACTIVITIES TO ESTABLISH ITS CLAIM FOR EXEMPTION U/ S 80G OF THE ACT. ACCORDINGLY, WE ARE INCLINED TO CONCLUDE WITH THE OBSERVATION THAT THE ASSESSEE CHARITABLE INSTITUTI ON WAS NOT GIVEN AN OPPORTUNITY OF BEING HEARD BY THE CIT(E). 3. AUTHORITY HAS GIVEN GROUNDS FOR REJECTION OF APP LICATION, THAT ASSESSEE HAS CEASED TO CARRY ON ITS ACTIVITIES FROM AY 2013- 14, WHICH IS NOT TRUE AS VARIOUS ACTIVITIES HAVE BE EN CONDUCTED BY THE SOCIETY TO ATTAIN ITS OBJECTIVES D URING THE PREVIOUS FINANCIAL YEARS WHICH IS WELL SUPPORTED BY AUDITED FINANCIAL STATEMENTS PROVIDED TO LD. CIT(EXEMPTIONS ). 4. THE AUTHORITY HAS NEITHER ASKED THE EXPLANATIONS FROM THE ASSESSEE NOR GIVEN THE ASSESSEE THE PROPER OPPORTUN ITY AND REASONABLE TIME TO PRESENT CLARIFICATIONS ON ACTIV ITIES CARRIED BY TRUST DURING PREVIOUS FINANCIAL YEARS. 2. THE LD. CIT (EXEMPTIONS) HAS REJECTED THE ASSESS EES APPLICATION, BY OBSERVING AS FOLLOWS: AN APPLICATION U/S 80G(5)(VI) WAS FILED BY THE APPL ICANT ON 17.11.2014 BEFORE THE COMMISSIONER OF INCOME TAX, JAMMU. THE PENDING APPLICATION WAS TRANSFERRED TO THIS OFFICE DUE TO CHANGE IN JURISDICTION. 2. IN ORDER TO ACCORD AN OPPORTUNITY OF PERSONAL HE ARING TO THE APPLICANT, THE MATTER WAS FIXED FOR 13.05.2015. SH. VIRENDER RAWAL ATTENDED THE PROCEEDINGS AND SUBMITTED PAPERS. 3. AS PER INFORMATION AVAILABLE ON FILE, THE ASSESS EE HAS CEASED TO CARRY ON ITS ACTIVITIES FROM AY 2013-14 ONWARDS. THE DETAILS OF EVENTS HELD BY THE TRUST SHOW THE FOLLOWING ENTRIES .:- I) SUBHEY SWEREY (VIDEO ALBUM) - NOVEMBER, 2008 II) RELEASE FUNCTION OF PROGENY -1 - DECEMBER,200 9 III) RELEASE FUNCTION OF PROFILE FOR PROGENY PART-2 JAN. ,2010 IV) IST BOARD MEETING - JULY,2010 V) RELEASE FUNCTION OF WEBSITE -NOVEMBER 2010 ITA NO.330(ASR)/2015 3 VI) RELEASE FUNCTION OF ASHAAYEYN -JULY, 2011 VII) PROFILE OF PROGENY PART-3 -(IN PROCESS) VIII) VIDEO ALBUM ON ARJUN-YADHISHTER SAMVADD ( ) IX) PROFILE OF PROGENY PART-4 -(IN PROCESS) X) TRAVELOGUE 2011 -(IN PROCESS) XI) PROFILE FOR PROGENY PART-5 -(IN PROCESS) IT MAY BE SEEN FROM THE ABOVE ENTRIES THAT AFTER JU LY2011, THERE ARE SOME EVENTS WHICH HAVE BEEN SHOWN IN PROGRESS BUT I T IS NOT CLEAR WHETHER THESE ACTIVITIES HAVE TAKEN PLACE DURING FY 2012-13/2013- 14. SINCE I AM NOT SATISFIED WITH THE PRESENT ACTIV ITIES BEING CARRIED OUT BY THE TRUST, I AM NOT CONVINCED THAT THE DONAT IONS RECEIVED BY THE TRUST AFTER APPROVAL OF HIS APPLICATION U/S 80G (5)(VI) WILL BE APPLIED JUDICIOUSLY TOWARDS THE CHARITABLE ACTIVITI ES. 4. ON THE BASIS OF THE ABOVE FACTS, THE APPROVAL TO THE APPLICANT U/S 80G(5)(VI) OF THE INCOME TAX ACT, 1961 IS DENIE D. 3. A PERUSAL OF THE ABOVE ORDER CLEARLY SHOWS THAT THE ASSESSEE IS CORRECT IN CONTENDING THAT THE SAID ORDER HAS BEEN PASSED BY THE LD. CIT (EXEMPTIONS) WITHOUT PROVIDING ANY OPPORTUNITY WHA TSOEVER TO THE ASSESSEE. THE SECOND LAST PARA OF THE ORDER ITSELF STATES THAT THE LD. CIT(EXEMPTIONS) JUST WENT THROUGH THE ENTRIES/DETAI LS OF EVENTS HELD BY THE TRUST AND CONCLUDED THEREFROM, WITHOUT AFFORDI NG ANY OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE ENTRIES, THAT HE WAS NO T SATISFIED WITH THE ACTIVITIES BEING CARRIED OUT BY THE TRUST. 4. IN VIEW OF THE ABOVE, FINDING THAT THE ORDER UND ER APPEAL HAS BEEN PASSED IN COMPLETE VIOLATION OF THE NATURAL JUSTICE PRINCIPLE OF AUDI ALTEREM PARTERN, THE SAID ORDER IS SET ASIDE AND TH E MATTER IS REMITTED TO THE LD. CIT (EXEMPTIONS) TO BE DECIDED AFRESH, IN A CCORDANCE WITH LAW, AFTER AFFORDING DUE AND ADEQUATE OPPORTUNITY OF HEA RING TO THE ASSESSEE. THE ASSESSEE, NO DOUBT, SHALL COOPERATE IN THE FRE SH PROCEEDINGS BEFORE THE LD. CIT (EXEMPTIONS). 5. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL IS TREATED AS ALLOWED. ITA NO.330(ASR)/2015 4 ORDER PRONOUNCED IN THE OPEN COURT ON 15TH DE CEMBER, 2015. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBE R DATED: 15/12/2015 /SKR/ COPY OF ORDER FORWARDED TO: 1. THE ASSESSEE: SH.VYETH, JAMMU . THE CIT, (EXEMPTIONS), CHANDIGARH. 5. THE SR. DR, ITAT, ASR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR.