Shri Swatma Bodh Satsang, Kolhapur V. ITO wd-2[2], Kolhapur

ITA 347/PUN/2012

• Counselvise Citation: 34724514 RSA 2012
• Duration Of Justice: 1 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 21-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Keywords: Charitable institution; Principle of natural justice; Cancellation of registration
• Section: 80G; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K.PANDA, ACCOUNTANT MEMBER. ITA.NO.347/PN/2012 SHREE SWATMA BODH SATSANG, 56, RAMKAMAL, NAGALA PARK, KOLHAPUR. .. APPELLANT VS. ITO, WARD-2(2), KOLHAPUR. .. RESPONDENT ASSESSEE BY : SHRI M.K.KULKARNI DEPARTMENT BY : SHRI S.K.SINGH DATE OF HEARING : 09.05.2013 DATE OF PRONOUNCEMENT : 16.05.2013 ORDER PER SHAILENDRA KUMAR YADAV, JM : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE ON FOLL OWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD. C.I.T.-II, KOLHAPUR WAS NOT JUSTIFIED IN CANCELLING THE REGISTRATION OF THE CHARITABLE TRUST GRANTED U/S.12 A(A) W.E.F. 31-10-1996 INVOKING THE PROVISIONS OF S.12-A(3)OF T HE ACT WHICH WERE INSERTED IN THE ACT W.E.F. 01-10-2004. THE AMENDMENT IS NOT RETROSPECTIVE. THE ORDER OF THE C. I.T. BE QUASHED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE PROVISIONS OF CANCELLATION OF REGISTRATION INSERTED IN S.12-AA(3) W.E.F. 01-10-2004 ARE PROSPECTIVE IN NATURE AND CAN NOT BE APPLIED RETROSPECTIVELY AS HAS BEEN DONE IN THE CAS E OF THIS APPELLANT. TRUST AS ITS REGISTRATION DATES BACK TO 31-10-1996. THE ORDER OF THE C.I.T. CANCELLING THE REGISTRATION BE QUASHED. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD. C.I.T.-II, KOLHAPUR FAILED TO GIVE PROPER OPPORTUNI TY TO EXPLAIN AND RESULTANTLY CONTRAVENED THE PRINCIPLES OF NATUR AL JUSTICE SINCE THE APPOINTMENT LETTER FIXING THE HEARING ON 13-01-2012 WAS ITSELF RECEIVED BY THE TRUST ON 14-01-2012 WHIC H IS 2 EVIDENT FROM THE POSTAL ENVELOP WITH DISPATCH DETAI LS THEREON. IN VIEW OF THIS THE ORDER OF CANCELLATION OF REGIST RATION BE QUASHED. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE FINDINGS RECORDED BY THE LD. C.I.T. IN HER ORDER OF CANCELLATION OF REGISTRATION UNDER S.12-AA(3) OF THE ACT ARE NOT IN CONSONANCE WITH THE PROVISIONS OF THE LAW. THE ORD ER PASSED IS ILLEGAL AND WITHOUT JURISDICTION. THE ORDER BE QUASHED AND THE REGISTRATION BE RESTORED TO THE APPELLANT-TRUST . 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW AND IN THE ABSENCE OF ANY DISQUALIFICATION INCURRED BY THE TRUST WITHIN THE MEANING OF SS.13(1)(B), 13(1)(C) AND 13( 1)(D) THE REGISTRATION ALREADY GRANTED CANNOT BE CANCELLED IN VOKING THE NON-EXISTENT PROVISIONS OF THE LAW AT THE TIME OF G RANTING THE REGISTRATION. THE ORDER OF THE LD. C.I.T KOLHAPUR B E QUASHED. 2. THE MAIN CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE WAS NOT PROVIDED DUE OPPORTUNITY OF HEARING TO EXPLAIN ITS CASE WHICH IS CONTRAVENTION OF PRINCIPLES OF NATURAL JUSTICE SINC E APPOINTMENT LETTER FIXING THE HEARING ON 13.01.2012 WAS ITSELF RECEIVED BY THE TRUST ON 14.01.2012 WHICH IS EVIDENT FROM THE POSTA L ENVELOP WITH DISPATCH DETAILS THEREON. THE CIT-II, KOLHAPUR, HA S HELD AS UNDER: 3. IN VIEW OF THE ABOVE, THE SOCIETY, VIDE THIS OF FICE LETTER DATED 02-01-2012 WAS GIVEN AN OPPORTUNITY AS PER TH E PROVISO TO SECTION (3) OF SECTION 12AA OF THE IT ACT, 1961 TO SUBMIT ITS SAY BY 13 TH JANUARY, 2012, AS TO WHY THE REGISTRATION GRANTED U/S.12AA ON 31-10-1996 SHOULD NOT BE CANCELLED. 4. TILL DATE THERE IS NO REPLY FROM THE SOCIETY. I N THE ABSENCE OF ANY REPLY FROM THE SOCIETY, IT CAN SAFEL Y PRESUMED THAT THE SOCIETY IS NOT JUSTIFYING THE TERM AND CON DITIONS FOR HAVING STATUS AS CHARITABLE INSTITUTION WITHIN TH E MEANING OF SECTION 2(15) OF THE ACT, AS THE SOCIETY HAS INCURR ED EXPENDITURE WHICH ARE OF RELIGIOUS NATURE BEING IN EXCESS OF 5% AND HENCE VIOLATED THE PROVISIONS OF SECTION 80G (5B) OF THE ACT, 1961. THE EXISTENCE OF GENUINE SOCIETY IN THE ABSENCE OF ANY PROOF OF PAYMENT OF MEMBERSHIP BY MEMBERS IS AL SO IN DOUBT, THE SOCIETY IS, THEREFORE, NOT ELIGIBLE FOR REGISTRATION U/S.12AA AS CHARITABLE INSTITUTION. 5. IN VIEW OF THE ABOVE FACTS, THE REGISTRATION GRA NTED U/S.12AA OF THE IT ACT, 1961 VIDE ORDER DATED 31-10 -1996 IS HEREBY CANCELLED. 3. VIDE GROUND NO.3, THE LD. AUTHORISED REPRESENTAT IVE POINTED OUT THAT DUE OPPORTUNITY OF HEARING HAS NOT BEEN PR OVIDED TO THE ASSESSEE BECAUSE MATTER WAS FIXED FOR HEARING ON 13 .01.2012 WHILE 3 ASSESSEE TRUST RECEIVED THE NOTICE ON 14.01.2012. SO HE COULD NOT PRESENT HIS CASE AND IN ABSENCE OF ANY REPRESENTATI ON. 4. ACCORDING TO THE LD. AUTHORISED REPRESENTATIVE , THIS IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE BECAUSE OPPORTUNITY OF HEARING IS THE ESSENCE OF PRINCIPLES OF NATURAL JUS TICE WHICH IS ADMITTEDLY MISSING IN THIS CASE. SO IN THE INTERES T OF JUSTICE, WE SET ASIDE THE ORDER OF THE CIT-II, KOLHAPUR, AND RESTOR E THE MATTER TO HIM WITH THE DIRECTION TO DECIDE THE SAME AS PER FA CT AND LAW AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSE E. SINCE WE ARE RESTORING THE MATTER TO THE CIT FOR TECHNICAL REASO NS DISCUSSED ABOVE, WE ARE REFRAINING TO COMMENT ON THE MERIT OF THE ISSUE AT HAND. 5. AS A RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 16 TH DAY OF MAY, 2013. SD/- SD/- ( R.K.PANDA ) ( SHAILENDRA KUMAR YAD AV ) ACCOUNTANT MEMBER JUDICIAL MEMBER GSPS PUNE, DATED THE 16 TH MAY, 2013 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE ITO, WARD-2(2), KOLHAPUR. 3. THE CIT-II, KOLHAPUR. 4. THE DR B BENCH, PUNE. 5. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.