Harihar Thakor Smarak Trust, Surat V. The CIT-III, Surat

ITA 349/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5884 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 26-05-2010
• Assessment Year: misc
• Appeal Filed On: 31-01-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H P MEENA
• Assessee Lawyers: R N VEPARI
• Keywords: Charitable institution; Condonation of delay
• Section: 12AA; 11

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AT SURAT CAMP BEFORE S/SHRI T.K.SHARMA, JM AND D.C.AGRAWAL, AM HARIHAR THAKOR SMARAK TRUST, NR. ALANKAR CINEMA, OPP. RAILWAY STATION, SURAT. VS . THE COMMISSIONER OF INCOME-TAX-III, SURAT. (APPELLANT) .. (RESPONDENT) APPELLANTS BY :- SHRI R. N. VEPARI, AR RESPONDENT BY:- SHRI H. P. MEENA, SR. DR O R D E R PER D. C. AGRAWAL, ACCOUNTANT MEMBER . THE APPEAL FILED BY THE ASSESSEE TRUST IS AGAINST THE ORDER DATED 19.12.2007 OF LD. CIT-III, SURAT REFUSING TO CONDON E THE DELAY IN GRANT OF REGISTRATION. THE TRUST HAD CLAIMED REGISTRATION UN DER SECTION 12AA WITH EFFECT FROM THE DATE OF INCEPTION BUT THE LD. CIT G RANTED THE REGISTRATION WITH EFFECT FROM 01.04.2007 BEING THE DATE WHEN THE FRESH APPLICATION WAS FILED. THE LD. CIT REJECTED THE APPLICATION FOR CONDONATION WITHOUT MENTIONING ANY SPECIFIC REASON. 2. BEFORE US, THE LD. AR FOR THE ASSESSEE SUBMITTED AS FOLLOWS :- (1) TRUST IS VERY OLD. (2) IT HAS BEEN REGULARLY FILING ITS RETURNS OF INCOME CLAIMING EXEMPTION U/S 11 OF THE ACT. ITA NO.349/AHD/2008 ASST. YEAR: 2 (3) TRUSTEES ARE OF THE FIRM VIEW THAT APPLICATION U/S 12A(A) WAS MADE IN TIME BUT THE TRUSTEES MANAGING TRUSTS AT THAT TIME NO MO RE SURVIVE AND NEW TRUSTEES HAVE NOT BEEN ABLE TO LOCATE EVIDENCE THER EOF AS ALL TRUSTS ARE SMALL TRUSTS AND HAVE HARDLY ANY ADMINISTRATIVE SET UP. BUT IN FACT RETURNS HAVE BEEN FURNISHED SINCE YEARS CLAIMING EXEMPTION U/S 11 OF THE ACT ARE INDICATIVE OF COMPLIANCE U/S 12A(A) OF THE ACT. (4) FRESH APPLICATION HAS BEEN MADE IN VIEW OF AMENDMEN T DEBARRING COMMISSIONER OF INCOME-TAX FROM CONDONING DELAY AND TO REGULARIZE FACT OF REGISTRATION. (5) WHATEVER PARTICULARS OF RETURNS FILED AND ORDERS MA DE AS AVAILABLE HAVE BEEN FURNISHED. 3. THE LD. AR FOR THE ASSESSEE FURTHER SUBMITTED TH AT THE ORDER PASSED BY THE LD. CIT IS NON-SPEAKING ORDER AND DOES NOT D EAL WITH THE ISSUE RAISED BY THE ASSESSEE THAT IT IS VERY OLD TRUST AN D HAS BEEN ENGAGED IN THE CHARITABLE ACTIVITIES. 4. THE LD. DR ON THE OTHER HAND, SUPPORTED THE ORDE R OF LD. CIT. 5. THE ISSUE INVOLVED IN THIS APPEAL IS COVERED BY THE DECISION OF THE TRIBUNAL VIDE ITS CONSOLIDATED ORDER DATED 28.05.20 10 IN ITA NOS.320/AHD/2008 TO 323/AHD/2008 IN THE CASES OF SH RI MAHALAXMI MATANU MANDIR, SURAT VS.CIT-I, SURAT. SHRI RANDER J AIN LADVA SHRIMALI SURAT VS. CIT-I, SURAT, SHRI SARVODAYA SHIKSHAN MAN DAL, SURAT VS. CIT-I, SURAT & BILIMORA PARSI ZOROASTRIAN ANJUMAN VS. CIT- I, SURAT AND OTHERS; WHEREIN ON SIMILAR FACTS AND CIRCUMSTANCES OF THE C ASES THE ISSUE HAS BEEN DECIDED WITH THE FOLLOWING OBSERVATION :- 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE CONSIDERED VIEW THAT THE LD. CIT SHOULD HAVE PASSED A SPEAKING ORDER AND EXAMINED WHETHER THE ASSESSEE-TRUST WAS ACTUALLY EXISTING AN D WAS CARRYING ON CHARITABLE ACTIVITIES. IN CASE, ITS INCOME WAS ALRE ADY ACCEPTED UNDER SECTION 11 BY GRANTING EXEMPTION TO THE EXTENT INCO ME WAS APPLIED FOR CHARITABLE PURPOSE, THEN IT SHOULD HAVE BEEN INFERR ED THAT THE ASSESSEE 3 TRUST WAS ALREADY WORKING UNDER REGISTRATION. WE AG REE WITH THE VIEW OF LD. AR FOR THE ASSESSEE THAT FRESH APPLICATION ALON G WITH APPLICATION FOR CONDONATION OF DELAY HAS BEEN FILED AS AN ABUNDANT CAUTION AS THE OLD CERTIFICATES WERE NOT AVAILABLE/TRACEABLE. WE, THER EFORE, DIRECT THE LD. CIT TO CONSIDER THE APPLICATION FOR CONDONATION OF DELA Y AND IN CASE CIRCUMSTANTIAL EVIDENCE IS FOUND THAT ASSESSEE TRUS T WAS ALREADY WORKING UNDER REGISTRATION OR ITS INCOME WAS TREATED/ACCEPT ED AS EXEMPT THEN ALLEGED DELAY SHOULD BE CONDONED TO THE EXTENT OF A T LEAST WHERE TAXABILITY OF INCOME OF THE ASSESSEE MATTERS. THUS RESPECTFULLY FOLLOWING ABOVE ORDER, WE RESTORE THE MATTER TO THE FILE OF LD. CIT AND DIRECT HIM TO DECIDE THE ISSUE OF CO NDONATION OF DELAY DE NOVO KEEPING IN MIND OUR OBSERVATIONS AS ABOVE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN OPEN COURT ON 18/06/2010 SD/- SD/- (T.K. SHARMA) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD, DATED : 18/06/2010 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD