Shri Dashshrimali Tapgachh Jain Sangh, JUNAGADH V. The Commissioner of Income Tax-III, RAJKOT-GUJARAT

ITA 434/RJT/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 72644 (ITAT-RAJKOT)
• Duration Of Justice: 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 12-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR M L MEENA
• Assessee Lawyers: RD LALCHANDANI
• Section: 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO. 434/RJT/2013 SHRI DASHASHRIMALI TAPAGACHH JAIN SANGH, C/O. PRAKASHCHANDRA D. PAREKH, DEAN CREATION, A-44, SAMVAD COMPLEX, OPP. A.G. SCHOOL, JUNAGADH PAN : AAATD 1528 J ( / APPELLANT) THE COMMISSIONER OF INCOME-TAX-III RAJKOT / RESPONDENT / ASSESSEE BY SHRI R. D. LALCHANDANI, ADVOCATE / REVENUE BY DR M L MEENA, DR / DATE OF HEARING 29.11.2013 ! '# / DATE OF PRONOUNCEMENT 13.12.2013 / ORDER THIS APPEAL BY THE ASSESSEE-INSTITUTION/ASSOCIATION IS AGAINST THE ORDER DATED 25.09.2013 OF COMMISSIONER OF INCOME-TAX, RAJKOT-II I, RAJKOT REJECTING THE APPLICATION FOR REGISTRATION U/S 12AA OF THE INCOME -TAX ACT, 1961. 2. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE-INSTI TUTION/ASSOCIATION FILED AN APPLICATION FOR REGISTRATION U/S 12AA OF THE INCOME -TAX ACT, 1961 WITH COMMISSIONER OF INCOME-TAX, RAJKOT-III ON 30.03.2013 ALONGWITH F OLLOWING DOCUMENTS:- A. FORM NO.10A B. CERTIFIED COPY OF THE P.T. ENTRY ISSUED BY THE A SSTT. CHARITY COMMISSIONER, JUNAGADH C. CERTIFIED COPY OF THE TRUST REGISTRATION CERTIFI CATE ISSUED BY THE ASSTT. CHARITY COMMISSIONER. D. LIST OF AUTHORS/FOUNDERS OF THE TRUST E. LIST OF PRESENT TRUSTEES OF THE TRUST F. COPY OF PAN CARD G. COPIES OF AUDITED ACCOUNTS FOR THE YEARS 2009-10 , 10-11 & 11-12 H. COPIES OF CHANGE REPORTS OF TRUSTEES SANCTIONED BY THE ASSTT. CHARITY COMMISSIONER, JUNAGADH. THIS INSTITUTION/ASSOCIATION HAS BEEN REGISTERED UN DER THE BPT ACT WITH ASSTT. CHARITY COMMISSIONER VIDE CERTIFICATE DATED 06.04.1 964. 3. THE LD COMMISSIONER OF INCOME-TAX, RAJKOT-III, O N VERIFICATION OF THE ASSESSMENT ORDER AND INSPECTORS REPORT, OBSERVED T HAT THE TRUST WAS DOING CHARITABLE AND RELIGIOUS ACTIVITIES FOR THE JAIN COMMUNITY ONL Y. HE ALSO OBSERVED THAT THE TRUST IS VERY OLD AND AS PER THE P.T. ENTRY THE APPLICATION FOR THE TRUST REGISTRATION WITH THE 2 434-RJT-2013 - SHRI DASHASHRIMALI TAPAGACHH JAIN SANGH (SMC) DEPUTY CHARITY COMMISSIONER, RAJKOT WAS MADE IN THE YEAR 1961. THEREFORE, HE ISSUED A LETTER DATED 06.09.2013 CALLING UPON THE A SSESSEE TO VERIFY THE OBJECTS OF THE TRUST, GENUINENESS OF ITS ACTIVITIES, WHETHER THE TRUST IS REVOCABLE/IRREVOCABLE AND ALSO FOR VERIFICATION OF DISSOLUTION/WINDING UP CLAUSE , ALONGWITH REQUISITE DOCUMENTS/DETAILS. THE ASSESSEE WAS SOUGHT ADJOURNM ENT AND ULTIMATELY, THE HEARING BEFORE THE LD. COMMISSIONER OF INCOME-TAX, RAJKOT-III TOOK PLACE ON 25.09.2013. ON VERIFYING THE DETAILS SUBMITTED BY THE ASSESSEE ON THE DATE OF HEARING, THE LD. COMMISSIONER OF INCOME-TAX, RAJKOT -III REJECTED THE APPLICATION OF THE ASSESSEE FOR REGISTRATION U/S 12AA OF THE INCOME-TA X ACT FOR THE DETAILED REASON GIVEN IN PARAGRAPH NOS. 4 & 5 OF THE IMPUGNED ORDER . 4. ON THE DATE OF HEARING, SHRI P.T. MORADIA, C.A. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ALONGWITH SHRI P.D. PAREKH, ONE OF THE TRUSTEES OF THE TRUST ATTENDED AND FURNISHED THE REQUISITE D ETAILS. ON PERUSAL OF THE DETAILS, IT IS NOTICED THAT THE TRUST HAS APPLIED F OR INSERTING THE CLAUSE OF REVOCABLE/IRREVOCABLE CLAUSE, DISSOLUTION/WINDING U P CLAUSE AND ALSO FOR INSERTION TO THE EFFECT THAT THE TRUST IS CARRYING OUT THE ACTIVITIES WITHOUT ANY CASTE, CREED OR COMMUNITY, BEFORE THE ASSTT. CHARIT Y COMMISSIONER. THUS THE TRUST HAS APPLIED FOR INSERTING SUCH CLAUSES. HOWEV ER, TILL DATE CHARITY COMMISSIONER HAS NOT GIVEN ANY SPECIFIC APPROVAL. T HE TRUST DEED OF THE TRUST IS INCOMPLETE SO FAR AS NO CLAUSE REGARDING ITS ASS ETS AFTER MEETING ALL LIABILITIES, IN CASE OF DISSOLUTION, IS INCORPORATE D. IN ABSENCE OF ADEQUATE WINDING UP CLAUSE IN CASE OF DISSOLUTION OF TRUST, THE ARRANGEMENTS OF DISPOSAL OF NET ASSETS AFTER MEETING ITS ALL LIABILITIES ARE NOT SPECIFIED IN TRUST DEED. ALSO, THE TRUST IS NOT IRREVOCABLE AND THERE IS NO SPECIF IC CLAUSE WITH REGARD TO THE FACT THAT THE ACTIVITIES HAVE BEEN CARRIED OUT WITH OUT ANY CASTE, CREED OR COMMUNITY. 5. IN VIEW OF THE ABOVE FACTS, THE ASSESSEE TRUST D OES NOT QUALIFY FOR REGISTRATION U/S 12AA OF THE ACT. ACCORDINGLY, ASSE SSEES APPLICATION FOR REGISTRATION U/S 12AA OF THE ACT IS HEREBY REJECTED . AGGRIEVED WITH THE ORDER OF LD COMMISSIONER OF INC OME-TAX, RAJKOT-III REJECTING THE APPLICATION U/S 12AA, THE ASSESSEE-INSTITUTION/ ASSOCIATION IS NOW IN APPEAL BEFORE THIS TRIBUNAL. 4. BEFORE THE TRIBUNAL, ON BEHALF OF THE ASSESSEE, SHRI R. D. LALCHANDANI, ADVOCATE APPEARED AND POINTED OUT THAT THE ASSESSEE TRUST HAD ALREADY MADE AN APPLICATION TO CHARITY COMMISSIONER FOR AMENDMENT I N THE CLAUSE WITH REGARD TO REVOCABLE/IRREVOCABLE CLAUSE, DISSOLUTION/WINDING U P CLAUSE AND THE INSERTION TO THE EFFECT THAT THE TRUST IS CARRYING OUT THE ACTIVITIE S WITHOUT ANY CASTE, CREED OR COMMUNITY AND HE ALSO POINTED OUT THAT THE AN ORDER FROM THE CHARITY COMMISSIONER 3 434-RJT-2013 - SHRI DASHASHRIMALI TAPAGACHH JAIN SANGH (SMC) IN THIS REGARD HAS ALREADY BEEN OBTAINED VIDE ORDER DATED 03.10.2013, WHICH IS PLACED ON RECORD. THE LD COUNSEL OF THE ASSESSEE SU BMITTED THAT, AS THE ASSESSEE- TRUST ALREADY AMENDED THE RESPECTIVE CLAUSES WITH C HARITY COMMISSIONER IN THE TRUST DEED, THE APPLICATION OF THE ASSESSEE-TRUST FOR REG ISTRATION U/S 12AA OF THE INCOME-TAX ACT BE GRANTED. 5. ON THE OTHER HAND, DR M L MEENA, DR, APPEARED O N BEHALF OF THE REVENUE VEHEMENTLY SUPPORTED THE ORDER OF LD COMMISSIONER O F INCOME-TAX, RAJKOT-III. HE POINTED OUT THAT THE ASSESSEE-TRUST WAS APPLIED FOR AMENDMENT IN THE CLAUSES OF TRUST DEED ONLY AFTER THE ISSUANCE OF NOTICE BY THE LD. C OMMISSIONER OF INCOME-TAX, RAJKOT-III TO THE ASSESSEE-TRUST FOR VERIFICATION O F THE TRUEST DEED IN RESPECT OF CERTAIN CLAUSES LIKE OBJECTS OF THE TRUST, GENUINENESS OF ITS ACTIVITIES, WHETHER THE TRUST IS REVOCABLE/IRREVOCABLE AND FOR VERIFICATION OF DISS OLUTION/WINDING UP CLAUSE ETC HE ALSO POINTED OUT THAT AT THE TIME OF ISSUING THE IM PUGNED ORDER BY THE LD. COMMISSIONER OF INCOME-TAX, RAJKOT-III I.E. DATED 2 5.09.2013, THE ORDER OF CHARITY COMMISSIONER AMENDING THE CLAUSES OF TRUST DEED OF THE ASSESSEE-TRUST WAS NOT AVAILABLE. THEREFORE, THE VIEW TAKEN BY THE LD. COM MISSIONER OF INCOME-TAX, RAJKOT-III IN REJECTING THE APPLICATION OF THE ASSESSEE-TRUST FOR REGISTRATION U/S 12AA OF THE INCOME-TAX ACT BE UPHELD. 6. HAVING HEARD BOTH THE SIDES, I HAVE CAREFULLY GO NE THROUGH THE IMPUGNED ORDER OF THE LD COMMISSIONER OF INCOME-TAX, RAJKOT- III. IT IS PERTINENT TO NOTE THAT THE ASSESSEE-TRUST HAS ALREADY AMENDED THE REVOCABLE/IR REVOCABLE CLAUSE, DISSOLUTION/WINDING UP CLAUSE IN THE TRUST DEED AND INSERTED THE CLAUSE TO THE EFFECT THAT THE TRUST IS CARRYING OUT THE ACTIVITIES WITHO UT ANY CASTE, CREED OR COMMUNITY WHICH IS EVIDENT FROM THE COPY OF ORDER OF CHARITY COMMISSIONER DATED 03.10.2013 PRODUCED BY THE ASSESSEE-TRUST BEFORE THE TRIBUNAL. I, THEREFORE, IN THE INTEREST OF JUSTICE, SET ASIDE THE IMPUGNED ORDER OF LD COMMISS IONER OF INCOME-TAX, RAJKOT-III AND DIRECT THE ASSESSEE-TRUST TO FURNISH THE COPY O F ORDER OF CHARITY COMMISSIONER DATED 03.10.2013 THROUGH WHICH THE WINDING-UP/DISSO LUTION CLAUSE OF TRUST IS AMENDED ALONGWITH FINAL TRUST DEED TO THE LD. COMMI SSIONER OF INCOME-TAX, RAJKOT-III. THEREAFTER, THE LD COMMISSIONER OF INCOME-TAX, RAJK OT-III WILL RECONSIDER THE 4 434-RJT-2013 - SHRI DASHASHRIMALI TAPAGACHH JAIN SANGH (SMC) APPLICATION OF THE ASSESSEE-TRUST FOR REGISTRATION U/S. 12AA OF INCOME-TAX ACT, 1961 AND PASS APPROPRIATE ORDER AS PER LAW AS DEEMED FIT WITHIN A REASONABLE TIME. 7. 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- SHRI DASHASHRIMALI TAPAGACHH JAIN SAN GH, C/O. PRAKASHCHANDRA D. PAREKH, DEAN CREATION, A-44, SAMVAD COMPLEX, OPP. A.G. SCHOOL, JUNAGA DH 2. / RESPONDENT- THE COMMISSIONER OF INCOME-TAX-III, RAJKOT 3. ,0,1 * * 2 / CONCERNED JT. CIT, RANGE 1, JUNAGADH 4 . 345 1, * 1#, !$ / DR, ITAT, RAJKOT 5 . 57 89 / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT