Chandrawati Devi Foundation Trust, V. Commissioner of Income Tax (Exemption), Lucknow

ITA 373/LKW/2015

• Counselvise Citation: 37323714 RSA 2015
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 05-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 80G; 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.373/LKW/2015 CHANDRAWATI DEVI FOUNDATION TRUST WARD NO.7 MAHARAJGANJ V. CIT (EXEMPTION) LUCKNOW TAN/PAN:AAMTS0375G (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. ABHINAV MEHROTRA, ADVOCATE RESPONDENT BY: SHRI. SANJAY KUMAR, CIT (DR) DATE OF HEARING: 28 07 2015 DATE OF PRONOUNCEMENT: 14 08 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX DENYING APPROVAL UNDER SECTION 80G(5)(VI) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') ON THE GROUND THAT THE APPLICATION IN FORM NO.10G FOR APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT WAS NOT ACCOMPANIED BY A COPY OF REGISTRATION GRANTED UNDER SECTION 12AA OF THE ACT, AS PER SUB-RULE (2) OF RULE 11AA OF THE RULES. 2. THIS APPEAL IS FILED LATE BY 27 DAYS, FOR WHICH NO APPLICATION FOR CONDONATION OF DELAY HAS BEEN FILED ON BEHALF OF THE ASSESSEE. IN THE ABSENCE OF ANY EXPLANATION FOR THE DELAY IN FILING OF THE APPEAL, WE DECLINE TO CONDONE THE DELAY. ACCORDINGLY THIS APPEAL IS DISMISSED BEING BARRED BY LIMITATION. WE, HOWEVER, ADJUDICATE THE APPEAL ON MERIT ALSO. :- 2 -: 3. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE LD. COMMISSIONER OF INCOME-TAX HAD DISMISSED THE APPLICATION FOR APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT EVEN WITHOUT WAITING FOR THE RESULT OF APPLICATION MOVED FOR GRANT OF REGISTRATION UNDER SECTION 12AA OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT THE ASSESSEE HAS MOVED APPLICATIONS FOR GRANT OF APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT AND FOR REGISTRATION UNDER SECTION 12AA OF THE ACT SIMULTANEOUSLY, BUT THE LD. COMMISSIONER OF INCOME-TAX, WITHOUT DISPOSING OF THE APPLICATION FOR GRANT OF REGISTRATION UNDER SECTION 12AA OF THE ACT, HAS DISMISSED THE APPLICATION FOR GRANT OF APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT. THEREFORE, THE ACTION OF THE LD. COMMISSIONER OF INCOME-TAX IS NOT IN ACCORDANCE WITH THE LAW AND THE MATTER MAY BE SET ASIDE TO HIS FILE FOR RECONSIDERATION. HE HAS, HOWEVER, ADMITTED THAT THE LD. COMMISSIONER OF INCOME-TAX HAS FINALLY DISMISSED THE APPLICATION FOR WANT OF REGISTRATION UNDER SECTION 12AA OF THE ACT. 4. THE LD. D.R., ON THE OTHER HAND, HAS INVITED OUR ATTENTION TO RULE 11AA OF THE RULES WITH THE SUBMISSION THAT THE APPLICATION FOR APPROVAL OF ANY INSTITUTION OR FUND UNDER CLAUSE (VI) OF SUB-SECTION (5) OF SECTION 80G SHALL BE IN FORM NO.10G AND SHALL BE ACCOMPANIED BY THE C OPY OF REGISTRATION GRANTED UNDER SECTION 12A OR COPY OF NOTIFICATION ISSUED UNDER SECTION 10(23) OR 10(23C) OF THE ACT. SINCE THE APPLICATION FOR GRANT OF APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT IN FORM NO.10G WAS NOT ACCOMPANIED BY THE COPY OF REGISTRATION GRANTED UNDER SECTION 12A OF THE ACT, THE LD. COMMISSIONER OF INCOME-TAX HAS RIGHTLY REJECTED THE APPLICATION FOR APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT. SINCE THE LD. COMMISSIONER OF INCOME-TAX HAS ACTED IN ACCORDANCE WITH THE LAW, HIS ORDER DESERVES TO BE CONFIRMED. THE LD. D.R. HAS FURTHER CONTENDED THAT FROM THE READING OF RULE 11AA OF THE RULES, IT APPEARS THAT THE APPLICATION FOR GRANT OF REGISTRATION UNDER SECTION 80G(5)(VI) OF THE ACT SHOULD BE FILED AFTER OBTAINING REGISTRATION UNDER SECTION 12AA OF THE ACT WHEREAS THE :- 3 -: ASSESSEE HAS FILED THE APPLICATION FOR APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT EVEN BEFORE OBTAINING REGISTRATION UNDER SECTION 12A OF THE ACT. 5. HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX IN THE LIGHT OF THE RELEVANT PROVISIONS OF SUB-RULE (1) & (2) OF RULE 11AA OF THE RULES, WE ARE OF THE VIEW THAT THE APPLICATION FOR APPROVAL OF ANY INSTITUTION OR FUND UNDER SECTION 80G(5)(VI) OF THE ACT ARE TO BE ACCOMPANIED BY THE C OPY OF REGISTRATION GRANTED UNDER SECTION 12A OF THE ACT. FILING OF COPY OF REGISTRATION UNDER SECTION 12AA OF THE ACT ALONG WITH APPLICATION FOR GRANT OF APPROVAL IS A CONDITION PRECEDENT FOR CONSIDERATION OF THE REQUEST FOR GRANT OF APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT. FOR THE SAKE OF REFERENCE, WE EXTRACT RULE 11AA OF THE RULES AS UNDER:- REQUIREMENTS FOR APPROVAL OF AN INSTITUTION OR FUND UNDER SECTION 80G: (1) THE APPLICATION FOR APPROVAL OF ANY INSTITUTION OR FUND UNDER CLAUSE (VI) OF SUB-SECTION (5) OF SECTION 80G SHALL BE IN FORM NO.10G AND SHALL BE MADE IN TRIPLICATE. (2) THE APPLICATION SHALL BE ACCOMPANIED BY THE FOLLOWING DOCUMENTS, NAMELY:-- (I) COPY OF REGISTRATION GRANTED UNDER SECTION 12A OR COPY OF NOTIFICATION ISSUED UNDER SECTION 10(23) OR 10(23C); (II) NOTES ON ACTIVITIES OF INSTITUTION OR FUND SINCE ITS INCEPTION OR DURING THE LAST THREE YEARS, WHICHEVER IS LESS; (III) COPIES OF ACCOUNTS OF THE INSTITUTION OR FUND SINCE ITS INCEPTION OR DURING THE LAST THREE YEARS, WHICHEVER IS LESS. (3) THE COMMISSIONER MAY CALL FOR SUCH FURTHER DOCUMENTS OR INFORMATION FROM THE INSTITUTION OR FUND OR CAUSE SUCH INQUIRIES TO BE MADE AS HE MAY DEEM NECESSARY IN ORDER TO SATISFY HIMSELF ABOUT THE GENUINENESS OF THE ACTIVITIES OF SUCH INSTITUTION OR FUND. (4) WHERE THE COMMISSIONER IS SATISFIED THAT ALL THE CONDITIONS LAID DOWN IN CLAUSES (I) TO (V) OF SUB-SECTION (5) OF SECTION 80G ARE FULFILLED BY THE INSTITUTION OR FUND, HE SHALL RECORD SUCH SATISFACTION IN WRITING AND GRANT APPROVAL TO THE INSTITUTION OR :- 4 -: FUND SPECIFYING THE ASSESSMENT YEAR OR YEARS FOR WHICH THE APPROVAL IS VALID. (5) WHERE THE COMMISSIONER IS SATISFIED THAT ONE OR MORE OF THE CONDITIONS LAID DOWN IN CLAUSES (I) TO (V) OF SUB-SECTION (5) OF SECTION 80G ARE NOT FULFILLED, HE SHALL REJECT THE APPLICATION FOR APPROVAL, AFTER RECORDING THE REASONS FOR SUCH REJECTION IN WRITING: NO ORDER OF REJECTION OF AN APPLICATION SHALL BE PASSED WITHOUT GIVING THE INSTITUTION OR FUND AN OPPORTUNITY OF BEING HEARD. (6) THE TIME LIMIT WITHIN WHICH THE COMMISSIONER SHALL PASS AN ORDER EITHER GRANTING THE APPROVAL OR REJECTING THE APPLICATION SHALL NOT EXCEED SIX MONTHS FROM THE END OF THE MONTH IN WHICH SUCH APPLICATION WAS MADE: IN COMPUTING THE PERIOD OF SIX MONTHS, ANY TIME TAKEN BY THE APPLICANT IN NOT COMPLYING WITH THE DIRECTIONS OF THE COMMISSIONER UNDER SUB-RULE (3) SHALL BE EXCLUDED. 6. FROM A CAREFUL PERUSAL OF THIS RULE, IT IS CLEAR THAT APPLICATION FOR GRANT OF APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT SHALL BE ACCOMPANIED BY A COPY OF REGISTRATION UNDER SECTION 12A OF THE ACT AND ONCE THIS CONDITION IS FULFILLED, THE LD. COMMISSIONER OF INCOME-TAX MAY CALL FOR SUCH FURTHER DOCUMENT OR INFORMATION FROM THE INSTITUTION OR CAUSE SUCH INQUIRIES TO BE MADE AS HE MAY DEEM NECESSARY IN ORDER TO SATISFY HIMSELF ABOUT THE GENUINENESS OF THE ACTIVITIES OF SUCH INSTITUTION OR FUND. 7. IN THE INSTANT CASE, UNDISPUTEDLY THE ASSESSEE HAS FILED APPLICATION FOR GRANT OF APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT WITHOUT ACCOMPANYING THE COPY OF REGISTRATION GRANTED UNDER SECTION 12A OF THE ACT. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS ADMITTED THAT THE ASSESSEE HAS FILED BOTH THE APPLICATIONS SIMULTANEOUSLY AND CONTENDED THAT THE LD. COMMISSIONER OF INCOME-TAX OUGHT TO HAVE WAITED FOR DISPOSAL OF THE APPLICATION FOR GRANT OF REGISTRATION UNDER SECTION 12A OF THE ACT INSTEAD OF DISMISSING THE APPLICATION FOR GRANT OF APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT. WE DO NOT FIND ANY FORCE IN THIS ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE, AS THE ASSESSEE WAS :- 5 -: MANDATORILY REQUIRED TO FILE THE COPY OF REGISTRATION UNDER SECTION 12A OF THE ACT ALONG WITH THE APPLICATION FOR APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT. IF THE APPLICATION IS NOT ACCOMPANIED WITH THE REGISTRATION CERTIFICATE UNDER SECTION 12A OF THE ACT, THE LD. COMMISSIONER OF INCOME-TAX IS WITHIN ITS JURISDICTION TO DISMISS OR REJECT THE APPLICATION FOR GRANT OF APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT AT THE THRESHOLD, AS THE REQUISITE CONDITION IS NOT FULFILLED. THE LD. COMMISSIONER OF INCOME-TAX IS NOT UNDER ANY OBLIGATION TO WAIT FOR DISPOSAL OF THE APPLICATION FOR REGISTRATION UNDER SECTION 12A OF THE ACT. THE RIGHT COURSE IS TO FIRST OF ALL APPLY FOR GRANT OF REGISTRATION UNDER SECTION 12A OF THE ACT AND AFTER OBTAINING THE SAME, ONE CAN APPLY FOR GRANT OF APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT. THE APPROACH OF FILING BOTH THE APPLICATIONS SIMULTANEOUSLY IS NOT PROPER AND IN THAT EVENTUALITY THE LD. COMMISSIONER OF INCOME-TAX IS JUSTIFIED IN REJECTING THE APPLICATION FOR GRANT OF APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT FOR WANT OF REGISTRATION UNDER SECTION 12A OF THE ACT. SINCE THE LD. COMMISSIONER OF INCOME-TAX HAS RIGHTLY DISMISSED THE APPLICATION FOR GRANT OF APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT IN THE ABSENCE OF REGISTRATION CERTIFICATE UNDER SECTION 12A OF THE ACT, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCOME- TAX. ACCORDINGLY WE CONFIRM THE ORDER OF THE LD. COMMISSIONER OF INCOME- TAX. 8. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:14 TH AUGUST, 2015 JJ:2807 :- 6 -: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR