Oshwal Sarvajanik Trust, JAMNAGAR V. The Commissioner of Income Tax, JAMNAGAR

ITA 395/RJT/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 72650 (ITAT-RAJKOT)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-11-2013
• Assessment Year: misc
• Appeal Filed On: 25-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR M L MEENA
• Assessee Lawyers: J C RANPURA
• Keywords: Opportunity of being heard
• Section: 12; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO. 395/RJT/2013 OSHWAL SARVAJANIK TRUST, C/O. SHRI RAMJI ANAND SHAH JAYDEEP, OSWAL COLONY-2, JAMNAGAR PAN : AAATS 9862 L ( / APPELLANT) THE COMMISSIONER OF INCOME-TAX JAMNAGAR / RESPONDENT / ASSESSEE BY SHRI J C RANPURA, CA / REVENUE BY DR M L MEENA, DR / DATE OF HEARING 21.11.2013 !'# / DATE OF PRONOUNCEMENT 13.12.2013 / ORDER THIS APPEAL BY THE ASSESSEE-TRUST IS AGAINST THE OR DER DATED 23.09.2013 OF COMMISSIONER OF INCOME-TAX, JAMNAGAR REFUSING TO GR ANT THE REGISTRATION SOUGHT BY THE ASSESSEE-TRUST U/S 12AA OF THE INCOME-TAX ACT, 1961. 2. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE-TRUST WAS CREATED ON 05.01.1987. IT WAS REGISTERED UNDER BPT ACT WITH ASSTT. CHARITY CO MMISSIONER, JAMNAGAR VIDE REGISTRATION NO.E/682/JAMNAGAR DATED 05.01.1987. TH E ASSESSEE-TRUST MADE AN APPLICATION TO THE COMMISSIONER OF INCOME-TAX, JAMN AGAR FOR REGISTRATION U/S 12(A) OF THE INCOME-TAX ACT, 1961. LD. COMMISSIONER OF INCOM E-TAX RAJKOT, IN THE IMPUGNED ORDER DATED 23.09.2013, REFUSED TO GRANT THE REGIST RATION U/S 12AA OF THE INCOME-TAX ACT FOR THE DETAILED REASON GIVEN IN PARAGRAPH NOS. 3-5, WHICH READ AS UNDER:- 3. THEREFORE, A NOTICE GIVING AN OPPORTUNITY OF BE ING HEARD WAS ISSUED ON DTD. 21.08.2013. HOWEVER, THE ASSESSEE HAD NOT COMP LIED WITH THE SAID NOTICE. KEEPING IN VIEW OF THE ASPECT OF NATURAL JU STICE, THE ASSESSEE WAS GIVEN ONE MORE OPPORTUNITY OF BEING HEARD BY ISSUIN G A NOTICE ON REQUESTING TO PRODUCE THE DOCUMENTS AS CALLED FOR, FOR VERIFICATI ON AND EXPLAIN THE ISSUE AS POINTED OUT ABOVE. HOWEVER, IT IS SEEN THAT ONCE AG AIN THE ASSESSEE FAILED TO COMPLY WITH THE SAID NOTICE. IT PROVES THAT THE ASS ESSEE TRUST IS NOT INTERESTED TO OBTAIN THE REGISTRATION U/S 12AA OF THE ACT. 4. SINCE, THE TRUST HAS FAILED TO PROVE WITH DOCUME NTARY EVIDENCE THE GENUINENESS OF ITS ACTIVITIES EVEN AFTER PROVIDING IT WITH SUFFICIENT OPPORTUNITIES TO DO SO. THUS, THE UNDERSIGNED IS SATISFIED THAT T HE APPLICANT TRUST DOES NOT FULFILL THE CONDITIONS PRESCRIBED FOR REGISTRATION U/S 12AA OF THE INCOME-TAX ACT, 1961. 5. ACCORDINGLY, THE REGISTRATION SOUGHT BY THE TRUS T U/S 12AA OF THE INCOME-TAX ACT, 1961, IS HEREBY REFUSED. 2 395-RJT-2013 OSHWAL SARVAJANIK TRUST (SMC) AGGRIEVED WITH THE ORDER OF LD. COMMISSIONER OF INC OME-TAX, JAMNAGAR, THE ASSESSEE-TRUST IS NOW IN APPEAL BEFORE THIS TRIBUNA L, ON THE FOLLOWING GROUNDS:- 1. THE GROUNDS OF APPEAL MENTIONED HEREUNDER ARE W ITHOUT PREJUDICE TO ONE ANOTHER. 2. THE LEARNED COMMISSIONER OF INCOME TAX, JAMNAGAR (CIT) HAS ERRED IN LAW AND ON FACTS IN REFUSING REGISTRATION U/S 12 AA(1)(B)(II) OF THE INCOME TAX ACT, 1961 (THE ACT) TO THE APPELLANT TRUST ON THE G ROUND THAT THE TRUST DEED DOES NOT CONTAIN DISSOLUTION PROVISION. 3. THE LEARNED CIT HAS ERRED IN LAW AND ON FACTS IN STATING THAT THE TRUST HAS FAILED TO PROVE WITH DOCUMENTARY EVIDENCE THE G ENUINENESS OF ITS ACTIVITIES. 4. THE LEARNED CIT HAS ERRED IN LAW IN NOT GIVING P ROPER OPPORTUNITY TO THE APPLICANT TRUST. 5. THE LEARNED CIT HAS ERRED IN FACT IN TREATING AP PLICATION AS FRESH APPLICATION. 6. YOUR HONOURS APPELLANT CRAVES LEAVE TO ADD, TO AMEND, ALTER, OR WITHDRAW ANY OR MORE GROUNDS OF APPEAL ON OR BEFORE THE HEARING OF APPEAL 3. BEFORE THE TRIBUNAL, ON THE DATE OF HEARING, ON BEHALF OF ASSESSEE SHRI J.C. RANPURA, CA APPEARED AND FILED A PAPER BOOK CONTAIN ING 18 PAGES, WHICH INTER-ALIA INCLUDE THE COPY OF TRUST DEED DATED 12.05.1986, CO PY OF REGISTRATION CERTIFICATE OF CHARITY COMMISSIONER, RAJKOT, COPY OF LETTER DATED 20.08.1987 RECEIVED FROM THE OFFICE OF THE CIT, RAJKOT BEING DEFECT MEMO IN THE APPLICATION U/S 12A(A) OF THE ACT, COPY OF ASSESSEE-TRUSTS LETTERS DATED 26.10.1987 A ND 01.01.1990, COPY OF REMINDER LETTER DATED 22.08.2005 AS TO CERTIFICATE OF REGIST RATION U/S 12A(A) OF THE ACT ETC.. IN THIS PAPER-BOOK, THE ASSESSEE-TRUST HAS ALSO SUBMIT TED THE COPY OF CERTIFICATE DATED 08.10.2001 ISSUED U/S 80G(5) OF THE INCOME-TAX ACT, 1961. AT THE TIME OF HEARING, ONE MORE EXEMPTION CERTIFICATE U/S 80G(5) DATED 12. 02.1992 WAS SUBMITTED WHICH WAS VALID FROM 31.08.1989 TO 31.03.1992. THE COUNSE L OF THE ASSESSEE EXPLAINED THAT THE ASSESSEE-TRUST IS AN OLD ONE WHICH IS CREA TED ON 05.01.1987. THE CORRESPONDENCE WITH THE DEPARTMENT AS CONTAINED IN THE PAPER-BOOK CLEARLY INDICATES THAT THE ASSESSEE-TRUST MADE AN APPLICATION FOR REG ISTRATION U/S 12AA EARLIER ALSO BUT THE ASSESSEE-TRUST COULD NOT TRACE THE EARLIER REGI STRATION CERTIFICATE. HE SUBMITTED THAT EARLIER THE REGISTRATION U/S 12A(A) WAS GRANTE D WHICH IS EVIDENT FROM THE FACT THAT FROM TIME TO TIME THE LD. COMMISSIONER OF INCOME-TA X, RAJKOT ISSUED EXEMPTION CERTIFICATE U/S 80G(5). THE FIRST 80G(5) CERTIFICAT E WAS ISSUED ON 12.02.1992 VIDE 3 395-RJT-2013 OSHWAL SARVAJANIK TRUST (SMC) LETTER NO.CIT-R/63-0-12/91-92 BY LD. COMMISSIONER O F INCOME-TAX, RAJKOT WHICH WAS VALID FROM 31.08.1989 TO 31.03.1992. THEREAFTER ANOTHER 80G(5) CERTIFICATE WAS ISSUED ON 08.10.2001 VIDE LETTER NO.CIT.JAM/TECH/80 G(5)/0-1-100/01-02 BY LD. COMMISSIONER OF INCOME-TAX, JAMNAGAR WHICH WAS VALI D FROM 12.04.2001 TO 31.03.2004. HE FURTHER SUBMITTED THAT BY OVERSIGHT THE ASSESSEE-TRUST MADE A FRESH APPLICATION FOR REGISTRATION U/S 12AA WHICH IS NOT REQUIRED AS EARLIER CORRESPONDENCE WITH THE DEPARTMENT CLEARLY INDICATES THAT THE ASSE SSEE-TRUST HAS ALREADY REGISTERED U/S 12AA OF THE INCOME-TAX ACT, 1961. AFTER NARRATI NG ALL THE FACTS, THE LD COUNSEL OF THE ASSESSEE-TRUST SUBMITTED THAT IN THE INTEREST O F JUSTICE MATTER BE REMANDED TO THE FILE OF LD. COMMISSIONER OF INCOME-TAX, JAMNAGAR WI TH THE DIRECTION THAT HE MAY EITHER ISSUE A COPY OF REGISTRATION CERTIFICATE U/S 12AA, WHICH WAS EARLIER GRANTED, TO THE ASSESSEE-TRUST OR ISSUE A FRESH REGISTRATION CERTIF ICATE AS NOW REQUESTED BY THE ASSESSEE-TRUST. 4. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESEN TATIVE POINTED OUT THAT IT IS THE DUTY OF THE ASSESSEE TO PRESERVE THE REGISTRATI ON CERTIFICATE IF ANY GRANTED EARLIER U/S 12AA OF THE INCOME-TAX ACT. AS AGAINST THIS, T HE LD. COUNSEL OF THE ASSESSEE POINTED OUT THAT THE CORRESPONDENCE WITH THE DEPART MENT CLEARLY INDICATES THAT THE REGISTRATION CERTIFICATE U/S 12AA WAS EARLIER ALLOW ED BY THE DEPARTMENT BUT SOMEHOW THE SAME IS NOT AVAILABLE WITH THE ASSESSEE -TRUST; THEREFORE, IN THE INTEREST OF JUSTICE THE DEPARTMENT MAY LOCATE THE SAME AND P ROVIDE TO THE ASSESSEE-TRUST. 5. RIVAL SUBMISSIONS WERE CONSIDERED. IT IS PERTINE NT TO NOTE THAT THE FIRST 80G(5) CERTIFICATE WAS ISSUED TO THE ASSESSEE-TRUST ON 12. 02.1992 VIDE LETTER NO.CIT-R/63-0- 12/91-92 BY LD. COMMISSIONER OF INCOME-TAX, RAJKOT WHICH WAS VALID FROM 31.08.1989 TO 31.03.1992. THE TRUST IN QUESTION WA S CREATED ON 05.01.1987. FIRST 80G(5) EXEMPTION CERTIFICATE WAS BY LD. CIT, RAJKOT ON 12.02.1992 (SUPRA), WHICH IS PLACED ON RECORD. SUBSEQUENTLY, ANOTHER 80G(5) EXEM PTION CERTIFICATE ISSUED BY LD. CIT, JAMNAGAR ON 08.10.2001 VIDE LETTER NO.CIT.JAM/ TECH/80G(5)/0-1-100/01-02 WHICH IS VALID FROM 12.04.2001 TO 31.03.2004. THIS PRIMA-FACIE INDICATES THAT FILE OF THE ASSESSEE-TRUST IS AVAILABLE WITH THE LD. CIT, R AJKOT THROUGH WHICH THE ASSESSEE- TRUST WAS ISSUED REGISTRATION U/S 12A(A) OF THE INC OME-TAX ACT, 1961. IN THIS VIEW OF 4 395-RJT-2013 OSHWAL SARVAJANIK TRUST (SMC) THE MATTER, THE IMPUGNED ORDER OF LD. CIT, JAMNAGAR REJECTING THE APPLICATION OF THE ASSESSEE-TRUST FOR REGISTRATION U/S 12AA OF THE INC OME-TAX ACT, 1961 IS HEREBY CANCELLED WITH THE DIRECTION THAT LD. CIT, JAMNAGAR WILL LOCATE THE REGISTRATION CERTIFICATE U/S 12AA, IF ANY, ISSUED TO THE ASSESSE E-TRUST EARLIER BY LD. CIT, RAJKOT. IN CASE THE LD. CIT, JAMNAGAR COULD NOT LOCATE THE EAR LIER REGISTRATION CERTIFICATE ISSUED U/S 12AA OF THE INCOME-TAX ACT, IN THAT EVENT HE SH ALL PASS A FRESH ORDER ON ASSESSEES APPLICATION U/S 12AA AFTER GIVING OPPORT UNITY OF BEING HEARD TO THE ASSESSEE-TRUST. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 13.12.2013 !$ /RAJKOT *BT / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- OSHWAL SARVAJANIK TRUST, C/O. SHRI RA MJI ANAND SHAH JAYDEEP, OSWAL COLONY-2, JAMNAGAR 2. / RESPONDENT- THE COMMISSIONER OF INCOME-TAX, JAMN AGAR 3. ,0,1 * * 2 / CONCERNED JT. CIT, RANGE 1, JAMNAGAR 4 . 345 1, * 1#, !$ / DR, ITAT, RAJKOT 5 . 57 89 / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT