Urmila Devi Charitable Trust, New Delhi V. CIT(E), Lucknow

ITA 4136/DEL/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1697 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 22-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Search and seizure; Charitable institution; Opportunity of being heard; Principle of natural justice; Opportunity of cross examination; Retrospective amendment; Reasonable cause; Accommodation entries; Cancellation of registration; Set aside
• Section: 12A; 12AA; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH G GG G : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO. 4136/DEL/2017 4136/DEL/2017 4136/DEL/2017 4136/DEL/2017 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2011 2011 2011 2011 - -- - 12 1212 12 M/S URMILA DEVI CHARITABLE M/S URMILA DEVI CHARITABLE M/S URMILA DEVI CHARITABLE M/S URMILA DEVI CHARITABLE TRUST, TRUST, TRUST, TRUST, R RR R- -- -9/42, RAJ NAGAR, 9/42, RAJ NAGAR, 9/42, RAJ NAGAR, 9/42, RAJ NAGAR, GHA GHA GHA GHAZIABAD, ZIABAD, ZIABAD, ZIABAD, UTTAR PRADESH UTTAR PRADESH UTTAR PRADESH UTTAR PRADESH 201 002. 201 002. 201 002. 201 002. PAN : AAAAU1715B. PAN : AAAAU1715B. PAN : AAAAU1715B. PAN : AAAAU1715B. VS. VS. VS. VS. COMMISSIONER OF INCOME TAX COMMISSIONER OF INCOME TAX COMMISSIONER OF INCOME TAX COMMISSIONER OF INCOME TAX (EXEMPTIONS), (EXEMPTIONS), (EXEMPTIONS), (EXEMPTIONS), T.C. 46V, U.P. STATE CONSTRUCTION & T.C. 46V, U.P. STATE CONSTRUCTION & T.C. 46V, U.P. STATE CONSTRUCTION & T.C. 46V, U.P. STATE CONSTRUCTION & INFRASTRUCTURE DEVELOPMENT INFRASTRUCTURE DEVELOPMENT INFRASTRUCTURE DEVELOPMENT INFRASTRUCTURE DEVELOPMENT CORPORATION, VIBHUTI KHAND, CORPORATION, VIBHUTI KHAND, CORPORATION, VIBHUTI KHAND, CORPORATION, VIBHUTI KHAND, GOMTI NAGAR, LUCKNOW, GOMTI NAGAR, LUCKNOW, GOMTI NAGAR, LUCKNOW, GOMTI NAGAR, LUCKNOW, UTTAR PRADESH UTTAR PRADESH UTTAR PRADESH UTTAR PRADESH 226 010. 226 010. 226 010. 226 010. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KAPIL GOEL, ADVOCATE. RESPONDENT BY : SHRI S.S. RANA, CIT - DR. DATE OF HEARING : 03.06.2019 03.06.2019 03.06.2019 03.06.2019 DATE OF PRONOUNCEMENT : 13.06.2019 13.06.2019 13.06.2019 13.06.2019 ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : :: : THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2011-12 IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (EXEMPTIONS), LUCKNOW DATED 22 ND APRIL, 2016. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THE ORDER DATED 22.04.2016 PASSED BY THE LD. COMMISSIONER OF INCOME-TAX (EXEMPTIONS) CANCELLING REGISTRATION OF THE APPELLANT U/S 12AA OF THE INCOM E-TAX ACT, 1961 W.E.F. 01.04.2010 IS BAD IN LAW AND ON FA CTS. 2. (I) THAT THE REASONS GIVEN FOR CANCELLATION OF REGISTRATION U/S 12AA(3) OF THE ACT ARE CONTRARY TO LAW AND FACTS SINCE THE APPELLANT BEING A TRUST EXISTS SOLE LY FOR ITA-4136/DEL/2017 2 EDUCATIONAL, MEDICAL AID AND OTHER CHARITABLE PURPO SES AND NOT FOR THE PURPOSE OF PROFIT. (II) THE LD.CIT(EXEMPTIONS) HAS ERRED IN CHALLENGIN G THE GENUINENESS OF THE ACTIVITIES OF THE TRUST BY STATI NG THAT THE SAID ACTIVITIES ARE NOT BEING CARRIED OUT IN ACCORD ANCE OF THE OBJECT OF THE TRUST. 3. (I) THE LD. COMMISSIONER OF INCOME-TAX (EXEMPTI ONS) HAS ERRED IN CANCELLING THE REGISTRATION OF THE APP LICANT ON THE GROUND THAT APPLICANT HAS RECEIVED VOLUNTARY DO NATION IN EXCHANGE OF CASH AND WAS NOT JUSTIFIED IN STATIN G WITHOUT ANY BASIS THAT THE APPLICANT IS NOT DOING ANY CHARI TY BUT IT IS MAKING CLEAR PROFITS. (II) THE LD.CIT(EXEMPTIONS) HAS ERRED IN CANCELLING THE REGISTRATION OF THE TRUST ON THE GROUND OF UNVERIFI ABLE DONATION OF RS.85,00,000/- WITHOUT CONFRONTING THE ASSESSEE WITH THE EVIDENCE HE PURPORTEDLY HAD AND H ENCE IGNORING THE PRINCIPLES OF NATURAL JUSTICE. (III) THAT THE LD. COMMISSIONER OF INCOME-TAX (EXEMPTIONS) WAS NOT JUSTIFIED IN CANCELLING THE RE GISTRATION WITHOUT PROVIDING THE OPPORTUNITY OF CROSS EXAMINAT ION TO THE APPELLANT. 4. THE LD. COMMISSIONER OF INCOME-TAX (EXEMPTIONS) WAS NOT JUSTIFIED IN CANCELLING THE REGISTRATION WI THOUT GIVING ANY MEANINGFUL OPPORTUNITY TO THE APPELLANT TO SHOW CAUSE. 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR MODI FY ANY GROUND BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. AT THE TIME OF HEARING BEFORE US, THE LEARNED CO UNSEL FOR THE ASSESSEE ARGUED AT LENGTH WHICH CAN BE SUMMARIZED A S BELOW. 4. THAT LEARNED CIT(EXEMPTIONS) CANCELLED THE REGIS TRATION GRANTED UNDER SECTION 12AA(3) ON THE ALLEGATION THAT THE AS SESSEE HAD RECEIVED THE DONATION OF `85 LAKHS IN LIEU OF CASH FROM M/S HERBICURE HEALTHCARE BIO-HERBAL RESEARCH FOUNDATION ( HEREINAFTER REFERRED TO AS HHBRF ) OF KOLKATA DURING THE ASSESSMENT YEAR 2011-12. T HE ABOVE ITA-4136/DEL/2017 3 ALLEGATION IS BASED UPON SOME INFORMATION CLAIMED T O HAVE BEEN RECEIVED FROM CIT(EXEMPTIONS), KOLKATA AND ALSO ON THE BASIS OF ALLEGED STATEMENT OF THE DIRECTOR OF HHBRF. HOWEVE R, DESPITE THE ASSESSEES SPECIFIC REQUEST, NEITHER THE MATERIAL C LAIMED TO HAVE BEEN RECEIVED FROM CIT(EXEMPTIONS), KOLKATA NOR THE COPY OF STATEMENT OF THE DIRECTOR OF HHBRF WAS SUPPLIED TO THE ASSESSEE. IT IS A SETTLED LAW THAT ANY EVIDENCE COLLECTED BEHIND THE BACK OF THE ASSESSEE CANNOT BE UTILIZED AGAINST THE ASSESSEE UNLESS THE COPY OF TH E SAME IS SUPPLIED TO THE ASSESSEE. SIMILARLY, ANY STATEMENT RECORDED BE HIND THE BACK OF THE ASSESSEE CANNOT BE USED AGAINST THE ASSESSEE UN LESS THE COPY OF SUCH STATEMENT IS SUPPLIED TO THE ASSESSEE AND THE ASSESSEE IS ALSO ALLOWED AN OPPORTUNITY TO CROSS-EXAMINE THE SAID PE RSON. IN SUPPORT OF THIS CONTENTION, HE RELIED UPON THE DECISION OF HON BLE APEX COURT IN THE CASE OF M/S ANDAMAN TIMBER INDUSTRIES VS. COMMI SSIONER OF CENTRAL EXCISE, KOLKATA-II - 281 CTR 241. 5. LEARNED COUNSEL FURTHER STATED THAT AS PER SECTI ON 12AA(3), WHERE A TRUST HAS BEEN GRANTED REGISTRATION, IT CAN BE REVOKED BY THIS SECTION ONLY WHEN THE COMMISSIONER IS SATISFIED THA T THE ACTIVITIES OF SUCH TRUST OR INSTITUTION ARE NOT GENUINE OR NOT BE ING CARRIED OUT IN ACCORDANCE WITH THE OBJECTS OF THE TRUST OR THE INS TITUTION. THAT IN THIS CASE, NONE OF THESE TWO CONDITIONS IS SATISFIED. LE ARNED CIT(EXEMPTIONS) FIRST MADE AN ALLEGATION THAT ASSES SEE HAS RECEIVED DONATION OF `85 LAKHS BY PAYING CASH TO HHBRF AND T HEN BASED UPON THE SAID ALLEGATION, FURTHER PRESUMED THAT THE ASSE SSEE TRUST IS CARRYING OUT SOME BUSINESS OUTSIDE THE BOOKS AND TH EREFORE, THE ACTIVITIES OF THE ASSESSEE ARE NOT BEING CARRIED OU T IN ACCORDANCE WITH THE OBJECTS OF THE SOCIETY. HE STATED THAT THE ENT IRE ORDER OF LEARNED CIT IS BASED UPON PRESUMPTIONS AND SUSPICION WITHOU T GIVING ANY SPECIFIC FINDING OR ANY SPECIFIC INSTANCE WHERE THE ASSESSEE CARRIED OUT ANY ACTIVITY WHICH IS OUTSIDE THE PURVIEW OF THE TR UST OR THE INSTITUTION. ITA-4136/DEL/2017 4 6. LEARNED COUNSEL FURTHER ARGUED THAT LEARNED CIT( EXEMPTIONS) ISSUED NOTICE FOR CANCELLATION OF REGISTRATION ON 2 5 TH JANUARY, 2016 BUT THE REGISTRATION WAS CANCELLED WITH RETROSPECTIVE E FFECT FROM 1 ST APRIL, 2010. THIS ACT OF THE ASSESSING OFFICER IS CONTRAR Y TO THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF AC IT VS. AGRA DEVELOPMENT AUTHORITY [2018] 407 ITR 562 (ALLAHAB AD). HE, THEREFORE, STATED THAT THE ORDER OF THE CIT PASSED UNDER SECTION 12AA(3) MAY BE CANCELLED. 7. LEARNED CIT-DR, ON THE OTHER HAND, RELIED UPON T HE ORDER OF LEARNED CIT(EXEMPTIONS) AND HE STATED THAT THE CIT, AFTER CONSIDERING THE EVIDENCES ON RECORD WITH HIM, HAS ARRIVED AT TH E CONCLUSION THAT THE ASSESSEE WAS EARNING INCOME OUTSIDE THE BOOKS. OBVIOUSLY, SUCH INCOME COULD HAVE BEEN EARNED FROM THE ACTIVITY WHI CH IS NOT AS PER THE OBJECT OF THE TRUST. THEREFORE, LEARNED CIT(EX EMPTIONS) WAS FULLY JUSTIFIED IN WITHDRAWING THE EXEMPTION GRANTED TO T HE ASSESSEE. HE HAS ALSO RELIED UPON THE DECISION OF HONBLE APEX C OURT IN THE CASE OF ITO VS. M. PIRAI CHOODI [2011] 334 ITR 262 (SC). IN ADDITION TO ABOVE, LEARNED CIT-DR ALSO FILED WRITTEN SUBMISSIONS, WHIC H READ AS UNDER :- SUB : WRITTEN SUBMISSION IN THE ABOVE CASE REG . IN THE ABOVE CASE, IT IS HUMBLY SUBMITTED AS FOLLOW S : 1. AS MENTIONED IN PARA 2 OF ORDER U/S 12AA, VIDE L ETTER DATED 12.10.2015, M/S HERBICURE HEALTH CARE BIO HER BAL RESEARCH FOUNDATION ADMITTED THAT AS PER DIRECTIONS OF BROKERS THEY RECEIVED CASH IN LIEU OF DONATIONS GIV EN BY CHEQUE. 2. AS MENTIONED IN PARA 3 OF ORDER U/S 12AA, IN RESPONSE TO QUESTION NO 22, SH. SWAPAN RANJAN DAS G UPTA, FOUNDER OF M/S HERBICURE HEALTH CARE BIO HERBAL RES EARCH FOUNDATION ADMITTED THAT THROUGH MR. KISHAN BHAWASI NGKA, ITA-4136/DEL/2017 5 HE WAS INVOLVED IN GIVING ACCOMMODATION ENTRIES IN COMMISSION TO DIFFERENT BENEFICIARIES. 3. THE ABOVE EVIDENCES CLEARLY PROVE THAT ACTIVITIE S OF THE TRUST ARE NOT GENUINE SINCE IT HAD RECEIVED DON ATION OF RS.85,00,000/- FROM M/S HERBICURE HEALTH CARE BIO H ERBAL RESEARCH FOUNDATION. 4. DESPITE BEING GIVEN ADEQUATE OPPORTUNITY, ASSESS EE HAS NOT BEEN ABLE TO REFUTE THE ABOVE EVIDENCES. H ENCE, CANCELLATION OF REGISTRATION IS PERFECTLY JUSTIFIED . IN THE ABOVE CASE, IT IS HUMBLY SUBMITTED THAT THE FOLLOWING DECISIONS MAY KINDLY BE CONSIDERED WITH REGARD TO S ECTION 12AA OF I.T. ACT: 1. UP DISTILLERS ASSOCIATION VS CIT (2017-TIOL-2253 -HC-DEL-IT) (COPY ENCLOSED) WHERE HON'BLE DELHI HIGH COURT HELD THAT REGISTRATI ON GRANTED TO A TRUST CAN BE CANCELLED U/S 12AA(3), BY RELYING UPON THE STATEMENT OF CONCERNED PERSON RECORDED U/S 132(4). 2. UP DISTILLERS ASSOCIATION VS CIT (2018-TIOL-138- SC-IT)(COPY ENCLOSED) WHERE HON'BLE SUPREME COURT DISMISSED SLP OF THE ASSESSEE HOLDING THAT REGISTRATION GRANTED TO A TRU ST CAN BE CANCELLED U/S 12AA(3), BY RELYING UPON THE STATEMEN T OF CONCERNED PERSON RECORDED U/S 132(4). 3. SCIENTIFIC EDUCATIONAL ADVANCEMENT SOCIETY VS UN ION OF INDIA [2009] 179 TAXMAN 155 (PUNJAB & HARYANA)/[ 2010] 323 ITR 84 (PUNJAB & HARYANA)(COPY ENCLOSED). 4. M/S JOGINPALLY BR EDUCATIONAL SOCIETY VS CIT ITA NO.585/HYD/2012 (COPY ENCLOSED). 8. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. SECTION 12AA OF THE ACT READS AS UNDER :- 12AA. (1) THE [PRINCIPAL COMMISSIONER OR] COMMISSIONER, ON RECEIPT OF AN APPLICATION FOR REGI STRATION OF A TRUST OR INSTITUTION MADE UNDER CLAUSE (A) [OR CLAUSE ITA-4136/DEL/2017 6 (AA) [OR CLAUSE (AB)] OF SUB-SECTION (1)] OF SECTIO N 12A, SHALL (A) CALL FOR SUCH DOCUMENTS OR INFORMATION FROM THE TRUST OR INSTITUTION AS HE THINGS NECESSARY IN ORDER TO S ATISFY HIMSELF ABOUT THE GENUINENESS OF ACTIVITIES OF THE TRUST OR INSTITUTION AND MAY ALSO MAKE SUCH INQUIRIES AS HE MAY DEEM NECESSARY IN THIS BEHALF; AND (B) AFTER SATISFYING HIMSELF ABOUT THE OBJECTS OF T HE TRUST OR INSTITUTION AND THE GENUINENESS OF ITS ACTIVITIE S, HE (I) SHALL PASS AN ORDER IN WRITING REGISTERING THE TRUST OR INSTITUTION; (II) SHALL, IF HE IS NOT SO SATISFIED, PASS AN ORDE R IN WRITING REFUSING TO REGISTER THE TRUST OR INSTITUTION, AND A COPY OF SUCH ORDER SHALL BE SENT TO THE APPLI CANT : PROVIDED PROVIDED PROVIDED PROVIDED THAT NO ORDER UNDER SUB-CLAUSE (II) SHALL BE PASSED UNLESS THE APPLICANT HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. [(1A) ALL APPLICATIONS, PENDING BEFORE THE [PRINCIP AL CHIEF COMMISSIONER OR] CHIEF COMMISSIONER ON WHICH NO ORD ER HAS BEEN PASSED UNDER CLAUSE (B) OF SUB-SECTION (1) BEFORE THE 1 ST DAY OF JUNE, 1999, SHALL STAND TRANSFERRED ON THAT DAY TO THE [PRINCIPAL COMMISSIONER OR] COMMISSIONER AND THE [PRINCIPAL COMMISSIONER OR] COMMISSIONER MAY PROCEED WITH SUCH APPLICATIONS UNDER THAT SUB-SECTI ON FROM THE STAGE AT WHICH THEY WERE ON THAT DAY.] (2) EVERY ORDER GRANTING OR REFUSING REGISTRATION U NDER CLAUSE (B) OF SUB-SECTION (1) SHALL BE PASSED BEFOR E THE EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN W HICH THE APPLICATION WAS RECEIVED UNDER CLAUSE (A) [OR C LAUSE (AA) [OR CLAUSE (AB)] OF SUB-SECTION (1)] OF SECTIO N 12A.] [(3) WHERE A TRUST OR AN INSTITUTION HAS BEEN GRANT ED REGISTRATION UNDER CLAUSE (B) OF SUB-SECTION (1) [O R HAS OBTAINED REGISTRATION AT ANY TIME UNDER SECTION 12A [AS IT STOOD BEFORE ITS AMENDMENT BY THE FINANCE (NO.2) AC T, 1996 (33 OF 1996)]] AND SUBSEQUENTLY THE [PRINCIPAL COMMISSIONER OR] COMMISSIONER IS SATISFIED THAT THE ACTIVITIES OF SUCH TRUST OR INSTITUTION ARE NOT GEN UINE OR ARE NOT BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECT S OF THE ITA-4136/DEL/2017 7 TRUST OR INSTITUTION, AS THE CASE MAY BE, HE SHALL PASS AN ORDER IN WRITING CANCELLING THE REGISTRATION OF SUC H TRUST OR INSTITUTION : PROVIDED PROVIDED PROVIDED PROVIDED THAT NO ORDER UNDER THIS SUB-SECTION SHALL BE PASSED UNLESS SUCH TRUST OR INSTITUTION HAS BEEN GI VEN A REASONABLE OPPORTUNITY OF BEING HEARD.] [(4) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SEC TION (3), WHERE A TRUST OR AN INSTITUTION HAS BEEN GRANTED REGISTRATION UNDER CLAUSE (B) OF SUB-SECTION (1) OR HAS OBTAINED REGISTRATION AT ANY TIME UNDER SECTION 12A [AS IT STOOD BEFORE ITS AMENDMENT BY THE FINANCE (NO.2) AC T, 1996 (33 OF 1996)] AND SUBSEQUENTLY IT IS NOTICED T HAT THE ACTIVITIES OF THE TRUST OR THE INSTITUTION ARE BEIN G CARRIED OUT IN A MANNER THAT THE PROVISIONS OF SECTIONS 11 AND 12 DO NOT APPLY TO EXCLUDE EITHER WHOLE OR ANY PART OF TH E INCOME OF SUCH TRUST OR INSTITUTION DUE TO OPERATION OF SU B-SECTION (1) OF SECTION 13, THEN, THE PRINCIPAL COMMISSIONER OR THE COMMISSIONER MAY BY AN ORDER IN WRITING CANCEL THE REGISTRATION OF SUCH TRUST OR INSTITUTION: PROVIDED THAT THE REGISTRATION SHALL NOT BE CANCELL ED UNDER THIS SUB-SECTION, IF THE TRUST OR INSTITUTION PROVE S THAT THERE WAS A REASONABLE CAUSE FOR THE ACTIVITIES TO BE CAR RIED OUT IN THE SAID MANNER.]. 9. FROM A PLAIN READING OF THE ABOVE SECTION, IT IS EVIDENT THAT THE PRINCIPAL COMMISSIONER OR COMMISSIONER REGISTERS TH E TRUST OR INSTITUTION UNDER SUB-SECTION (1) AND HE HAS BEEN G IVEN THE POWER UNDER SUB-SECTION (3) TO CANCEL THE REGISTRATION GR ANTED UNDER SUB- SECTION (1). HOWEVER, UNDER SUB-SECTION (3), HE CA N CANCEL THE REGISTRATION GRANTED UNDER SUB-SECTION (1) ONLY WHE N HE IS SATISFIED A. THAT THE ACTIVITIES OF SUCH TRUST OR INSTITUTION AR E NOT GENUINE; AND B. THE ACTIVITIES OF SUCH TRUST OR INSTITUTION ARE NOT BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECTS OF THE T RUST OR INSTITUTION. ITA-4136/DEL/2017 8 10. IN THE CASE UNDER APPEAL BEFORE US, THE CIT HAS CANCELLED THE REGISTRATION GRANTED UNDER SECTION 12AA(1) ON THE A LLEGED GROUND THAT THE TRUST HAD RECEIVED THE DONATION OF `85 LAKHS FR OM HHBRF IN LIEU OF CASH. THE ABOVE FINDING OF THE CIT(EXEMPTIONS) IS BASED UPON THE REPORT RECEIVED FROM CIT(EXEMPTIONS), KOLKATA. ON THE BASIS OF ABOVE, THE CIT(EXEMPTIONS), LUCKNOW HAS HELD THAT THE ACTI VITIES OF THE SOCIETY CANNOT BE SAID TO BE CARRIED OUT IN ACCORDA NCE WITH THE OBJECTS OF THE SOCIETY. AT THE SAME TIME, HE FURTHER DREW THE INFERENCE THAT NO GENUINE ACTIVITIES ARE BEING CARRIED OUT BY THE ASS ESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE HAS STATED BEFORE US THAT THE ASSESSEE HAS REPEATEDLY REQUESTED FOR THE SUPPLY OF ANY MATERIAL IN THE POSSESSION OF THE DEPARTMENT ON THE BASIS OF WHICH THE ALLEGAT ION HAS BEEN MADE AGAINST THE ASSESSEE. HOWEVER, NO SUCH MATERIAL WA S SUPPLIED TO THE ASSESSEE. THEREFORE, NO ADVERSE INFERENCE CAN BE D RAWN AGAINST THE ASSESSEE IN THIS REGARD. LEARNED DR, ON THE OTHER HAND, STATED THAT THE EXACT CHARGE AGAINST THE ASSESSEE I.E., IT HAS RECEIVED A DONATION FROM HHBRF IN LIEU OF CASH HAS BEEN MENTIONED IN TH E SHOW CAUSE NOTICE ITSELF. WE FIND THAT IN THE ORDER UNDER SEC TION 12AA(3), THE CIT(EXEMPTIONS) HAS REPRODUCED THE ASSESSEES WRITT EN SUBMISSION FROM PAGE 3 TO 6 OF HIS ORDER. PARAGRAPH 7 & 8 OF SUCH LETTER READ AS UNDER :- 7. THE ASSESSEE HAS ALREADY REQUESTED YOUR HONOUR VIDE LETTER DATED 29/02/2016 AS UNDER: IF THE INCOME TAX DEPARTMENT IS IN POSSESSION OF A NY MATERIAL ON THE BASIS OF WHICH IMPUGNED ALLEGATION HAS BEEN MADE, PLEASE PROVIDE THE COPY OF THE SAME TO U S SO THAT PROPER REPLY CAN BE FILED. IF THERE IS ANY STATEMENT BY ANY PERSON ALLEGING TH E INVOLVEMENT OF CASH, COPY OF THE SAME MAY ALSO KIND LY BE PROVIDED. IF SO, AN OPPORTUNITY FOR CROSS EXAMINAT ION OF THE CONCERNED PERSON MAY KINDLY BE GIVEN. ITA-4136/DEL/2017 9 8. SINCE, NO INFORMATION HAS BEEN RECEIVED BY THE ASSESSEE ON THE ABOVE REQUEST FROM YOUR HONORS OFF ICE, THIS REPLY TO THE SHOW CAUSE NOTICE UNDER REFERENCE MAY KINDLY BE CONSIDERED AS AN INTERIM REPLY ONLY. IT IS AGAIN REQUESTED THAT THE IMPUGNED INFORMATION/DOCUMENTS M AY KINDLY BE SUPPLIED TO THE ASSESSEE AT THE EARLIEST SO THAT A FINAL REPLY CAN BE FILED. 11. THUS, THE ASSESSEE MADE A SPECIFIC REQUEST FOR THE SUPPLY OF MATERIAL ON THE BASIS OF WHICH THE ALLEGATION OF RE CEIVING THE DONATION IN LIEU OF CASH IS LEVIED AGAINST THE ASSESSEE. TH E ASSESSEE HAS ALSO REQUESTED FOR SUPPLY OF THE COPY OF THE STATEMENT, IF ANY, RECORDED BY THE REVENUE OF ANY PERSON IN THIS REGARD. HE HAS A LSO REQUESTED FOR ALLOWING AN OPPORTUNITY OF CROSS EXAMINATION OF THE CONCERNED PERSON WHOSE STATEMENT IS RECORDED. THE CIT HAS CONSIDERE D THE ASSESSEES WRITTEN SUBMISSION AT PAGES 6 & 7 OF HIS ORDER. HO WEVER, IN THE CITS FINDING, IT IS NOWHERE MENTIONED THAT THE MATERIAL WHICH IS BEING USED AGAINST THE ASSESSEE HAS BEEN SUPPLIED TO HIM. IN PARAGRAPH 9, THE CIT HAS CONSIDERED AND RELIED UPON THE REPORT OF CI T(EXEMPTIONS), KOLKATA. FOR READY REFERENCE, THE SAME IS REPRODUC ED BELOW :- 9. AS PER THE DETAILED REPORT OF THE LD.CIT(EXEMPT ION) KOLKATA AND THE ASSESSING OFFICER AND JOINT COMMISS IONER OF INCOME-TAX (EXEMPTION), GHAZIABAD, M/S HERBICURE HEALTHCARE BIO-HERBAL RESEARCH FOUNDATION HAS ADMIT TED THAT THIS AMOUNT WAS PAID BY CHEQUE TO THE ASSESSEE AFTER PAYMENT OF EQUAL AMOUNT IN CASH AND COMMISSION THRO UGH BROKERS. THUS TOTAL AMOUNT OF RS.85,00,000/- HAS B EEN RECEIVED BY CHEQUE FROM M/S HERBICURE HEALTHCARE BI O- HERBAL RESEARCH FOUNDATION BY THE ASSESSEE AFTER PA YING CASH OF RS.85,00,000/- PLUS 5 TO 10% OF THIS AMOUNT ALSO IN CASH AS COMMISSION. 12. SIMILARLY, IN PARAGRAPH 13, WHICH READS AS UNDE R, HE HAS RELIED UPON THE STATEMENT ON OATH AND THE LETTER SIGNED BY HHBRF :- 13. MOREOVER, THE STATEMENT ON OATH AND THE LETTER SIGNED BY M/S HERBICURE HEALTHCARE BIO-HERBAL RESEA RCH ITA-4136/DEL/2017 10 FOUNDATION HAVE CLEARLY DEMONSTRATED THAT THE ASSES SEE TRUST HAS PAID CASH AND COMMISSION TO GET DONATION IN CHEQUES FROM M/S HERBICURE HEALTHCARE BIO-HERBAL RESEARCH FOUNDATION. IT HAS BEEN CLEARLY INDICATED IN THE STATEMENT AND REPORT SEND BY THE LD. CIT(E), KOLKAT A THAT THE ASSESSEE HAS PAID CASH IN ADDITION TO COMMISSIO N TO MANAGE THIS DONATION BY CHEQUE FROM M/S HERBICURE HEALTHCARE BIO-HERBAL RESEARCH FOUNDATION. THE ASS ESSEE IS APPARENTLY RUNNING A BUSINESS AND IS GENERATING HUGE AMOUNT OF CASH. THIS CASH HAS BEEN USED TO OBTAIN OR MANAGE THE DONATION FROM M/S HERBICURE HEALTHCARE B IO- HERBAL RESEARCH FOUNDATION BY WAY OF CHEQUE AFTER P AYING CASH AND COMMISSION TO M/S HERBICURE HEALTHCARE BIO - HERBAL RESEARCH FOUNDATION. 13. HOWEVER, IN THE ORDER OF THE CIT(EXEMPTIONS), I T IS NOWHERE MENTIONED WHETHER THE LETTER OF CIT(EXEMPTIONS), KO LKATA, LETTER OF HHBRF AND THE COPY OF THE STATEMENT REFERRED IN PAR AGRAPH 13 WAS SUPPLIED TO THE ASSESSEE, MUCH LESS THE CROSS-EXAMI NATION OF THE PERSON WHOSE STATEMENT IS BEING RELIED UPON. IT IS SETTLED LAW THAT ANY MATERIAL COLLECTED BEHIND THE BACK OF THE ASSESSEE CANNOT BE USED AGAINST HIM UNLESS HE IS SUPPLIED THE COPY OF SUCH MATERIAL AND IS ALLOWED AN OPPORTUNITY TO REBUT THE SAME. SIMILARL Y, ANY STATEMENT RECORDED BEHIND THE BACK OF THE ASSESSEE CANNOT BE USED AGAINST HIM UNLESS THE ASSESSEE IS SUPPLIED THE COPY OF THE STA TEMENT AND IS ALLOWED AN OPPORTUNITY TO CROSS-EXAMINE. WE FIND T HAT UNDER IDENTICAL SITUATION, HONBLE APEX COURT IN THE CASE OF M/S AN DAMAN TIMBER INDUSTRIES (SUPRA) HELD THE ORDER OF THE ADJUDICATI NG AUTHORITY WHICH WAS BASED UPON THE STATEMENT OF TWO WITNESSES RELIE D UPON BY THE ADJUDICATING AUTHORITY WITHOUT ALLOWING THE CROSS-E XAMINATION TO THE ASSESSEE. THE RELEVANT FINDING OF THE SAID DECISIO N READS AS UNDER :- ACCORDING TO US, NOT ALLOWING THE ASSESSEE TO CROS S- EXAMINE THE WITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENTS OF THOSE WITNESSES WERE MADE THE BASIS OF THE IMPUGNED ORDER IS A SERIOUS FLAW WHICH MAKES THE ORDER NULLITY INASMUCH AS IT AMOUNTED TO VIOLAT ION OF PRINCIPLES OF NATURAL JUSTICE BECAUSE OF WHICH THE ASSESSEE ITA-4136/DEL/2017 11 WAS ADVERSELY AFFECTED. IT IS TO BE BORNE IN MIND T HAT THE ORDER OF THE COMMISSIONER WAS BASED UPON THE STATEM ENTS GIVEN BY THE AFORESAID TWO WITNESSES. EVEN WHEN THE ASSESSEE DISPUTED THE CORRECTNESS OF THE STATEMENTS AND WANTED TO CROSS-EXAMINE, THE ADJUDICATING AUTHORITY DID NOT GRANT THIS OPPORTUNITY TO THE ASSESSEE. IT WOUL D BE PERTINENT TO NOTE THAT IN THE IMPUGNED ORDER PASSED BY THE ADJUDICATING AUTHORITY HE HAS SPECIFICALLY MENTIONE D THAT SUCH AN OPPORTUNITY WAS SOUGHT BY THE ASSESSEE. HOW EVER, NO SUCH OPPORTUNITY WAS GRANTED AND THE AFORESAID P LEA IS NOT EVEN DEALT WITH BY THE ADJUDICATING AUTHORITY. AS FAR AS THE TRIBUNAL IS CONCERNED, WE FIND THAT REJECTION O F THIS PLEA IS TOTALLY UNTENABLE. THE TRIBUNAL HAS SIMPLY STATE D THAT CROSS-EXAMINATION OF THE SAID DEALERS COULD NOT HAV E BROUGHT OUT ANY MATERIAL WHICH WOULD NOT BE IN POSS ESSION OF THE APPELLANT THEMSELVES TO EXPLAIN AS TO WHY TH EIR EX- FACTORY PRICES REMAIN STATIC. IT WAS NOT FOR THE TR IBUNAL TO HAVE GUESS WORK AS TO FOR WHAT PURPOSES THE APPELLA NT WANTED TO CROSS-EXAMINE THOSE DEALERS AND WHAT EXTRACTION THE APPELLANT WANTED FROM THEM. AS MENTIONED ABOVE, THE APPELLANT HAD CONTESTED THE TRUTHFULNESS OF THE STATEMENTS OF THESE TWO WIT NESSES AND WANTED TO DISCREDIT THEIR TESTIMONY FOR WHICH P URPOSE IT WANTED TO AVAIL THE OPPORTUNITY OF CROSS-EXAMINA TION. THAT APART, THE ADJUDICATING AUTHORITY SIMPLY RELIE D UPON THE PRICE LIST AS MAINTAINED AT THE DEPOT TO DETERM INE THE PRICE FOR THE PURPOSE OF LEVY OF EXCISE DUTY. WHETH ER THE GOODS WERE, IN FACT, SOLD TO THE SAID DEALERS/WITNE SSES AT THE PRICE WHICH IS MENTIONED IN THE PRICE LIST ITSE LF COULD BE THE SUBJECT MATTER OF CROSS-EXAMINATION. THEREFORE, IT WAS NOT FOR THE ADJUDICATING AUTHORITY TO PRESUPPOSE AS TO WHAT COULD BE THE SUBJECT MATTER OF THE CROSS-EXAMINATIO N AND MAKE THE REMARKS AS MENTIONED ABOVE. WE MAY ALSO PO INT OUT THAT ON AN EARLIER OCCASION WHEN THE MATTER CAM E BEFORE THIS COURT IN CIVIL APPEAL NO. 2216 OF 2000, ORDER DATED 17.03.2005 WAS PASSED REMITTING THE CASE BACK TO THE TRIBUNAL WITH THE DIRECTIONS TO DECIDE THE APPE AL ON MERITS GIVING ITS REASONS FOR ACCEPTING OR REJECTIN G THE SUBMISSIONS. IN VIEW THE ABOVE, WE ARE OF THE OPINION THAT IF TH E TESTIMONY OF THESE TWO WITNESSES IS DISCREDITED, TH ERE WAS NO MATERIAL WITH THE DEPARTMENT ON THE BASIS OF WHI CH IT COULD JUSTIFY ITS ACTION, AS THE STATEMENT OF THE A FORESAID TWO WITNESSES WAS THE ONLY BASIS OF ISSUING THE SHO W CAUSE NOTICE. ITA-4136/DEL/2017 12 WE, THUS, SET ASIDE THE IMPUGNED ORDER AS PASSED BY THE TRIBUNAL AND ALLOW THIS APPEAL. 14. WE FIND THAT THE FACTS OF THE ASSESSEES CASE A RE IDENTICAL. IN THIS CASE ALSO, THE ASSESSEE BEFORE THE CIT(EXEMPTI ONS) REQUESTED FOR SUPPLY OF THE MATERIAL, IF ANY, WHICH IS PROPOSED T O BE UTILIZED AGAINST THE ASSESSEE. HE ALSO REQUESTED FOR THE CROSS-EXAM INATION OF THE PERSON WHOSE STATEMENT IS BEING RELIED UPON BY THE REVENUE. THE CIT(EXEMPTIONS) HAS MENTIONED THE REQUEST OF THE AS SESSEE IN HIS ORDER WHICH HAS ALREADY BEEN REPRODUCED BY US ABOVE . HOWEVER, HE ADJUDICATED THE MATTER RELYING UPON THE SAME MATERI AL WITHOUT SUPPLYING THE COPY TO THE ASSESSEE AND ALSO THE SAI D STATEMENT WITHOUT ALLOWING CROSS-EXAMINATION TO THE ASSESSEE. AS WAS PLEADED BEFORE THE TRIBUNAL IN THE CASE OF M/S ANDAMAN TIMB ER INDUSTRIES (SUPRA), IN THIS CASE BEFORE US ALSO, IT IS PLEADED THAT THE CROSS- EXAMINATION OF SUCH WITNESS WAS NOT ESSENTIAL BECAU SE HE IS THE PERSON FROM WHOM THE ASSESSEE RECEIVED THE DONATION AND THEREFORE, HE IS THE WITNESS OF THE ASSESSEE AND NOT OF THE RE VENUE. WE FIND THAT IN THE AFORESAID CASE BEFORE THE HONBLE APEX COURT , THE TRIBUNAL HAD ACCEPTED THE REQUEST OF THE REVENUE WHICH WAS DEPRE CATED BY THE HONBLE APEX COURT. HONBLE APEX COURT CAME TO THE CONCLUSION THAT IF THE TESTIMONY OF THESE TWO WITNESSES IS DISCREDITED , THERE WAS NO MATERIAL WITH THE DEPARTMENT ON THE BASIS OF WHICH IT COULD JUSTIFY ITS ACTION. IDENTICAL IS THE SITUATION IN THE APPEAL B EFORE US. IF THE MATERIAL COLLECTED BEHIND THE BACK OF THE ASSESSEE AND THE STATEMENT RECORDED BEHIND THE BACK OF THE ASSESSEE IS DISCRED ITED OR IGNORED, THERE WAS NO MATERIAL WITH THE DEPARTMENT ON THE BA SIS OF WHICH IT COULD JUSTIFY ITS ACTION. THEREFORE, IN OUR OPINIO N, THE ABOVE DECISION OF HONBLE APEX COURT WOULD BE SQUARELY APPLICABLE. ITA-4136/DEL/2017 13 15. LEARNED DR HAS ALSO RELIED UPON THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF UP DISTILL ERS ASSOCIATION (SUPRA) AND HAS ALSO POINTED OUT THAT THE SLP FILED BY THE ASSESSEE AGAINST THE ABOVE DECISION WAS DISMISSED BY THE HONBLE APEX CO URT. FROM A PERUSAL OF THE ABOVE DECISION, WE FIND THAT THE FAC TS IN THE AFORESAID CASE WERE ALTOGETHER DIFFERENT. IN THE AFORESAID C ASE, THERE WAS SEARCH AND SEIZURE OPERATION ON THE ASSESSEE I.E., UP DIST ILLERS ASSOCIATION AND DURING THE COURSE OF SUCH SEARCH, THE MATERIAL WAS FOUND AS WELL AS STATEMENT OF SHRI R.K. MIGLANI WAS RECORDED UNDER S ECTION 132(4). THUS, THE FACTS IN THE AFORESAID CASE WERE ALTOGETH ER DIFFERENT. IN THE CASE OF THE ASSESSEE, THERE IS NO SEARCH BUT THE DE PARTMENT IS RELYING UPON SOME LETTER CLAIMED TO HAVE BEEN RECEIVED FROM CIT(EXEMPTIONS) AND THE STATEMENT OF SOME OFFICE BEARERS OF HHBRF. LEARNED DR HAS ALSO RELIED UPON THE DECISION OF HONBLE PUNJAB & H ARYANA HIGH COURT IN THE CASE OF SCIENTIFIC EDUCATIONAL ADVANCEMENT S OCIETY (SUPRA). WE FIND THAT THE FACTS IN THE ABOVE CASE WERE ALSO ALT OGETHER DIFFERENT. IN THE AFORESAID CASE, A PIECE OF LAND BELONGING TO TH E ASSESSEE SOCIETY WAS SOLD TO A PRIVATE BUILDER. THE BUILDER BUILT F LATS ON THE SAID LAND. SUBSEQUENTLY, THE ASSESSEE SOCIETY PURCHASED TWO FA RM HOUSES CONSTRUCTED BY THE SAME BUILDER. THE CHAIRMAN OF T HE ASSESSEE SOCIETY ALONGWITH HIS FAMILY MEMBERS USED TO VISIT FARM HOUSES ON WEEKEND AND NO PERMISSION FROM ANY PRESCRIBED AUTHO RITY HAD BEEN OBTAINED FOR OPERATING ANY EDUCATIONAL INSTITUTION ON THE PROPERTY PURCHASED. THE CHIEF COMMISSIONER, THEREFORE, TOOK A VIEW THAT THERE WAS NOTHING ON RECORD TO SHOW THAT THE ASSESSEE SOC IETY INTENDED TO CARRY OUT ANY EDUCATIONAL ACTIVITIES ON THE LAND PU RCHASED AND ACCORDINGLY REJECTED THE ASSESSEES CLAIM SEEKING E XEMPTION UNDER SECTION 10(23C). THUS, CLEARLY, THE FACTS OF THE A SSESSEES CASE ARE ALTOGETHER DIFFERENT THAN THE FACTS BEFORE THE HON BLE PUNJAB & HARYANA HIGH COURT IN THE AFOREMENTIONED CASE. ITA-4136/DEL/2017 14 16. IN VIEW OF THE ABOVE, WE ARE OF THE OPINION THA T THE DECISION OF HONBLE APEX COURT IN THE CASE OF M/S ANDAMAN TIMBE R INDUSTRIES (SUPRA) WOULD BE SQUARELY APPLICABLE AND, RESPECTFU LLY FOLLOWING THE SAME, WE HOLD THAT THE MATERIAL COLLECTED BEHIND TH E BACK OF THE ASSESSEE CANNOT BE UTILIZED AGAINST THE ASSESSEE UN LESS THE COPY OF THE SAME IS SUPPLIED TO THE ASSESSEE AND HE IS GIVE N AN OPPORTUNITY TO REBUT THE SAME. SIMILARLY, THE STATEMENT OF OFFICE BEARERS OF HHBRF CANNOT BE UTILIZED AGAINST THE ASSESSEE BECAUSE NEI THER THE COPY OF THE STATEMENT WAS SUPPLIED TO THE ASSESSEE NOR THE ASSESSEE WAS ALLOWED AN OPPORTUNITY TO CROSS-EXAMINE SUCH PERSON WHOSE STATEMENT IS BEING SOUGHT TO BE RELIED UPON BY THE CIT(EXEMPT IONS). ONCE THESE TWO DOCUMENTS ARE IGNORED, THERE REMAINS NO MATERIA L FOR THE DEPARTMENT TO HOLD THAT THE ASSESSEE RECEIVED THE D ONATION FROM HHBRF IN LIEU OF CASH. THE CIT(EXEMPTION)S FINDIN G, THAT THE ASSESSEE WAS NOT CARRYING OUT ACTIVITIES IN ACCORDANCE WITH THE OBJECTS OF THE SOCIETY AND NO GENUINE ACTIVITIES ARE BEING CARRIED OUT BY THE SOCIETY, IS SOLELY BASED UPON THE ALLEGATION THAT THE ASSESS EE RECEIVED THE DONATION OF `85 LAKHS IN LIEU OF CASH. AS WE HAVE ALREADY STATED, THERE IS NO BASIS FOR THE DEPARTMENT TO HOLD THAT THE ASS ESSEE RECEIVED THE DONATION OF `85 LAKHS FROM HHBRF IN LIEU OF CASH. FURTHER, MERELY BECAUSE THE GENUINENESS OF ONE DONATION IN ONE YEAR IS DOUBTED, IT CANNOT BE A GROUND TO DRAW THE INFERENCE THAT THE A CTIVITIES OF THE ASSESSEE SOCIETY ARE NOT BEING CARRIED OUT IN ACCOR DANCE WITH THE OBJECTS OF THE SOCIETY OR THAT NO GENUINE ACTIVITIE S ARE BEING CARRIED OUT BY THE ASSESSEE. THAT IF THE GENUINENESS OF A DONATION IN ONE YEAR IS DOUBTED, THE ADDITION, IF ANY, CAN BE MADE IN TH E ASSESSMENT OF THE RELEVANT ASSESSMENT YEAR IN ACCORDANCE WITH LAW. H OWEVER, THAT, BY ITSELF, WOULD NOT BE SUFFICIENT TO WITHDRAW THE REG ISTRATION UNDER SECTION 12AA(3). IF THE GENUINENESS OF A DONATION IS DOUBTED, AT THE MOST, IT CAN BE A GROUND TO EXAMINE DEEP INTO THE A CTIVITIES OF THE SOCIETY SO AS TO ASCERTAIN WHETHER THE ACTIVITIES O F THE SOCIETY ARE ITA-4136/DEL/2017 15 BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECTS OF THE SOCIETY. HOWEVER, A CONCLUSION CANNOT BE DRAWN THAT THE ACTI VITIES OF THE SOCIETY ARE NOT BEING CARRIED OUT IN ACCORDANCE WIT H THE OBJECTS OF THE SOCIETY OR THAT NO GENUINE ACTIVITY IS BEING CARRIE D OUT BY THE ASSESSEE MERELY BECAUSE THE GENUINENESS OF ONE DONATION IN O NE YEAR IS DOUBTED. 17. LEARNED COUNSEL FOR THE ASSESSEE HAS ALSO RELIE D UPON THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN TH E CASE OF AGRA DEVELOPMENT AUTHORITY (SUPRA) TO SUPPORT HIS CONTEN TION THAT SECTION 12AA(3) DOES NOT AUTHORIZE THE COMMISSIONER TO CANC EL CHARITABLE REGISTRATION WITH RETROSPECTIVE EFFECT. HE POINTED OUT THAT THE SHOW CAUSE NOTICE WAS GIVEN IN THIS CASE BY THE CIT ON 2 5 TH JANUARY, 2016 WHILE THE CIT CANCELLED THE REGISTRATION FROM 1 ST APRIL, 2010, WHICH IS NOT PERMISSIBLE IN VIEW OF THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF AGRA DEVELOPMENT AUTHORITY (SU PRA). WE FIND THE CONTENTION OF THE LEARNED COUNSEL TO BE JUSTIFIED. IN THE AFOREMENTIONED CASE, HON'BLE JURISDICTIONAL HIGH CO URT IN PARAGRAPH 51 & 52 HELD AS UNDER :- 51. CLEARLY, THE ACT OF CANCELLATION OF REGISTRATI ON HAS SERIOUS CIVIL CONSEQUENCES. IN ABSENCE OF ANY LEGI SLATIVE INTENT EXPRESSED TO SUGGEST THAT THE LEGISLATURE HA D EMPOWERED THE COMMISSIONER TO CANCEL THE ASSESSEES REGISTRATION UNDER SECTION 12-A OF THE ACT WITH RETROSPECTIVE EFFECT, SUCH POWER COULD NOT BE DEEME D TO EXIST OR ARISE OR BE EXERCISED TO UNSETTLE CLOSED/P ART TRANSACTIONS ESPECIALLY BECAUSE IN THIS CASE THE GR OUND FOR CANCELLATION HAS NOT ARISEN OUT OF ALLEGATION OF FR AUD, COLLUSION OR MISREPRESENTATION. 52. THEREFORE, WE ARE OF THE VIEW THAT THE CANCELLA TION OF THE ASSESSEES REGISTRATION UNDER SECTION 12-A OF T HE ACT, IF AT ALL, COULD BE DONE ONLY PROSPECTIVELY AND NOT RETROSPECTIVELY AS HAD BEEN DONE BY THE COMMISSIONE R IN THIS CASE. THUS, QUESTION NO.1 IS ANSWERED IN THE NEGATIVE THAT IS IN FAVOUR OF THE ASSESSEE AND AGAINST THE R EVENUE. ITA-4136/DEL/2017 16 18. IN VIEW OF THE ABOVE, WE, RESPECTFULLY FOLLOWIN G THE DECISION OF HONBLE APEX COURT IN THE CASE OF M/S ANDAMAN TIMBE R INDUSTRIES (SUPRA) AS WELL AS OF HON'BLE JURISDICTIONAL HIGH C OURT IN THE CASE OF AGRA DEVELOPMENT AUTHORITY (SUPRA), CANCEL THE ORDE R PASSED UNDER SECTION 12AA(3) DATED 22 ND APRIL, 2016 CANCELLING THE REGISTRATION WITH EFFECT FROM 1 ST APRIL, 2010. 19. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 13 TH JUNE, 2019. SD/- SD/- ( (( ( SUCHITRA KAMBLE SUCHITRA KAMBLE SUCHITRA KAMBLE SUCHITRA KAMBLE ) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 13.06.2019 VK. COPY FORWARDED TO: - 1. APPELLANT : M/S URMILA DEVI CHARITABLE TRUST, M/S URMILA DEVI CHARITABLE TRUST, M/S URMILA DEVI CHARITABLE TRUST, M/S URMILA DEVI CHARITABLE TRUST, R RR R- -- -9/42, RAJ NAGAR, GHAZIABAD, 9/42, RAJ NAGAR, GHAZIABAD, 9/42, RAJ NAGAR, GHAZIABAD, 9/42, RAJ NAGAR, GHAZIABAD, UTTAR PRADESH UTTAR PRADESH UTTAR PRADESH UTTAR PRADESH 201 002. 201 002. 201 002. 201 002. 2. RESPONDENT : COMMISSIONER OF INCOME TAX (EXEMPTI ONS), COMMISSIONER OF INCOME TAX (EXEMPTIONS), COMMISSIONER OF INCOME TAX (EXEMPTIONS), COMMISSIONER OF INCOME TAX (EXEMPTIONS), T.C. 46V, U.P. STATE CONSTRUCTION & INFRASTRUCTURE T.C. 46V, U.P. STATE CONSTRUCTION & INFRASTRUCTURE T.C. 46V, U.P. STATE CONSTRUCTION & INFRASTRUCTURE T.C. 46V, U.P. STATE CONSTRUCTION & INFRASTRUCTURE DEVELOPMENT CORPORATION, VIBHUTI KHAND, DEVELOPMENT CORPORATION, VIBHUTI KHAND, DEVELOPMENT CORPORATION, VIBHUTI KHAND, DEVELOPMENT CORPORATION, VIBHUTI KHAND, GOMTI NAGAR, LUCKNOW, UTTAR PRADESH GOMTI NAGAR, LUCKNOW, UTTAR PRADESH GOMTI NAGAR, LUCKNOW, UTTAR PRADESH GOMTI NAGAR, LUCKNOW, UTTAR PRADESH 226 010. 226 010. 226 010. 226 010. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR