THE CANCER AID & RESEARCH FOUNDATION, MUMBAI V. DIT (E), MUMBAI

ITA 4068/MUM/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8370 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 04-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Retrospective amendment; Cancellation of registration
• Section: 80G

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI . , , , BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDI CIAL MEMBER . / ITA NO. 4068 /MUM./ 2014 ( / ASSESSMENT YEAR : NOT APPLICABLE ) THE CANCER AID & RESEARCH FOUNDATION BYCULLA MUNICIPAL SCHOOL BUILDING GROUND FLOOR, ROOM NO.15 18 N.M. JOSHI MARG, NR. S BRIDGE BYCULLA (W), MUMBAI 4 00 011 .. / APPELLANT V/S DIRECTOR OF INCOME TAX (EXEMPTION) ROOM NO.616, 6 TH FLOOR PIRAMAL CHAMBERS, LALBAUG MUMBAI 400 012 .... / RESPONDENT ./ PERMANENT ACCOUNT NUMBER AAATC301 3B / ASSESSEE BY : SHRI ANUJ KISNADWALA / REVENUE BY : SHRI A.C. TEJPAL / DATE OF HEARING 11 .08.2014 / DATE OF ORDE R 14.08.2014 / ORDER , / PER AMIT SHUKLA , J.M. THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE CHALLENGING THE IMPUGNED ORDER DATED 9 TH MAY 2014, PASSED BY THE LEARNED COMMISSIONER (APPEALS) XII , MUMBAI, CANCELLING THE CERTIFICATE THE CANCER AID & RESEARCH FOUNDATION 2 ISSUED UNDER SE CTION 80G, OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) , ON THE FOLLOWING GROUNDS: 1. THE DIT(E) HAS ERRED IN LAW AND ON FACTS IN PASSING THE IMPUGNED ORDER WHICH IS ILLEGAL AND BAD IN LAW AND WITHOUT FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE. 2 . THE DIT(E) HAS ERRED IN LAW AND ON FACTS IN CANCELLING THE 80G CONSEQUENT TO THE CANCELLATION OF REGISTRATION GRANTED U/S 12A, BY HOLDING THAT ACTIVITIES OF THE TRUST ARE NOT AS PER THE OBJECTS OF THE TRUST. 3. THE DIT(E) HAS FURTHER ERRED IN LAW AND ON FACTS IN CANCELLING THE 80G REGISTRATION WITH RETROSPECTIVE EFFECT FROM 20 TH MARCH 2009. 2 . AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEES CERTIFICATE UNDER SECTION 80G, HAS BEEN WITHDRAWN / CANCELLED WITH RETROSPECTIVE E FFECT I.E., FROM 20 TH MARCH 2009, SOLELY ON THE GROUND THAT REGISTRATION GRANTED TO THE ASSESSEE UNDER SECTION 12A, HAS BEEN CANCELLED UNDER SECTION 12AA(3), VIDE ORDER DATED 28 TH MARCY 2014. THE LEARNED COUNSEL SUBMITTED THAT THE ORDER CANCELLING THE REGI STRATION UNDER SECTION 12AA(3), BY THE LEARNED DIRECTOR OF INCOME TAX (EXEMPTION) [DIT(E)] HAS NOW BEEN REVERSED BY THE TRIBUNAL, VIDE ORDER DATED 16 TH JULY 2014, PASSED IN ITA NO.1782/MUM./2014, WHEREIN THE TRIBUNAL HAS HELD THAT REGISTRATION GRANTED TO T HE ASSESSEE CANNOT BE CANCELLED UNDER SECTION 12AA(3), ON THE GROUND S RAISED BY THE LEARNED DIT(E) . 3 . THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, AGREED THAT THOUGH THE EARLIER ORDER OF THE LEARNED DIT(E) CANCELLING THE CANCER AID & RESEARCH FOUNDATION 3 THE REGISTRATION UNDER SE CTION 12AA(3), HAS BEEN REVERSED, HOWEVER, THE ISSUE OF SECTION 80G, HAS TO BE EXAMINED INDEPENDENTLY AND, THEREFORE, THE ORDER OF THE LEARNED DIT(E), TO THE EXTENT THAT THE CONDITIONS OF SECTION 80G, ARE NOT FULFILLED WILL STAND. IN ANY CASE, THE MATTER C AN BE RESTORED BACK TO THE FILE OF THE DIT(E) FOR FRESH ADJUDICATION ON THE ISSUE OF WITHDRAWAL / GRANT O F CERTIFICATE UNDER SECTION 80G ON MERITS. 4 . AFTER CONSIDERING THE RIVAL SUBMISSIONS AND ALSO ON A PERUSAL OF THE IMPUGNED ORDER, WE FIND THAT THE LEARN ED DIT(E) HAS CANCELLED THE CERTIFICATE / RECOGNITION UNDER SECTION 80G, ON THE SAME LINES AND REASONING ON WHICH THE REGISTRATION UNDER SECTION 12A, WAS CANCELLED VIDE ORDER PASSED UNDER SECTION 12AA(3). NOW THAT SUCH A REASONS ASSIGNED BY THE LEARNED DIT (E) GIVEN FOR CANCELLATION OF REGISTRATION UNDER SECTION 12AA(3), HAS BEEN SET ASIDE BY THE TRIBUNAL, THEREFORE, THE SAME REASONS CANNOT BE FOLLOWED FOR THE WITHDRAWAL OF CERTIFICATE ISSUED UNDER SECTION 80G. THE CONDITIONS LAID DOWN IN SECTION 80G(5), MUS T BE EXAMINED IN SUCH A SITUATION AND THEN ONLY CERTIFICATE FOR 80G, SHOULD BE GIVEN OR RENEWED. THUS, WE RESTORE THIS MATTER BACK TO THE FILE OF THE DIT(E), TO EXAMINE THE CONDITIONS LAID DOWN IN SECTION 80G(5) AND IF SUCH CONDITIONS ARE FULFILLED THEN TH E CERTIFICATE ISSUED UNDER SECTION 80G, SHOULD NOT BE CANCELLED. IT IS MADE VERY CLEAR THAT W HILE DOING SO, THE LEARNED DIT(E) SHALL NOT RAKE UP THE SAME ISSUES WHICH WERE THE SUBJECT MATTER OF ADJUDICATION IN 12AA(3) PROCEEDINGS THE CANCER AID & RESEARCH FOUNDATION 4 FOR CANCELLING THE CERTIF ICATE UNDER SECTION 80G . THE LEARNED DIT(E) WILL PROVIDE DUE AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE AND SHALL DECIDE THE ISSUE EXPEDITIOUSLY PREFERABLY WITHIN THE PERIOD OF THREE MONTHS FROM THE DATE OF RECEIVING OF THE ORDER. THUS, THE GROUND RAISED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 5 . 5 . IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. 14 TH AUGUST 2014 ORDER PRONOUNCED IN THE OPEN COURT O N 14 TH AUGUST 2014 SD/ - . D. KARUNAKARA RAO ACCOUNTANT MEMBER SD/ - AMIT SHUKLA JUDICIAL MEMBER MUMBAI, DATED : 14 TH AUGUST 2014 / COPY OF THE ORDER FORWARDED TO : ( 1 ) / THE ASSESSEE ; ( 2 ) / THE REVENUE; ( 3 ) ( ) / THE CIT(A ) ; ( 4 ) / THE CIT, MUMBAI CITY CONCERNED ; ( 5 ) , , / THE DR, ITAT, MUMBAI ; ( 6 ) / GUARD FILE . / TRUE COPY / BY ORDER . / PRADEEP J. CHOWDHURY / SR. PRIVATE SECRETARY / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI