Guru Maa Mahila Grah Udhyog Samiti, Agra V. C.I.T.-I, Agra

ITA 435/AGR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60185 (ITAT-AGRA)
• Duration Of Justice: 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-07-2012
• Assessment Year: 2011-2012
• Appeal Filed On: 25-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: NAVIN GARGH
• Keywords: Opportunity of being heard
• Section: 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 435 & 436/AGRA/2011 GURU MAA MAHILA GRAH UDHYOG SAMITI, VS. THE COMMIS SIONER OF 41-B, KESHAV KUNJ, PRATAP NAGAR, AGRA. INCOME-TAX -I, AGRA. (PAN : AABAG 1667 M). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NAVIN GARGH, ADVOCATE. RESPONDENT BY : SHRI A.K. SHARMA, JR. D.R. DATE OF HEARING : 24.07.2012 DATE OF PRONOUNCEMENT OF ORDER : 24.07.2012 ORDER PER BHAVNESH SAINI, J.M.: BOTH THE APPEALS OF THE SAME ASSESSEE ARE DIRECTED AGAINST DIFFERENT ORDERS OF LD. CIT-I, AGRA DATED 25.10.2011, REJECTING THE APP LICATIONS U/S. 12AA AND 80G(5) OF THE IT ACT. 2. BRIEFLY, THE FACTS OF THE CASES ARE THAT THE ASS ESSEE-SOCIETY MOVED APPLICATIONS IN PRESCRIBED FORM BEFORE THE LD. CIT ON DATED 15.04.2011 FOR GRANT OF REGISTRATION U/S. 12AA AND APPROVAL U/S. 80G(5) OF THE IT ACT. THE SAID APPLICATION WAS RECEIVED IN THE OFFICE OF THE CIT ON 27.04.2011 . THE LD. CIT GAVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT WAS POINTED OUT IN THE PROCEEDINGS BEFORE THE LD. ITA NO. 435 & 436/AGRA/2011 2 CIT THAT JCIT, RANGE-II HAS COMMENTED THAT THE TRUS T IS DOING BUSINESS AND NOT CHARITABLE ACTIVITIES ETC. THIS FACT WAS CONFRONTED TO THE ASSESSEE AND HE FILED REPLY, IN WHICH IT WAS SUBMITTED THAT FOR THE PURPOSE OF R EGISTRATION IN THE ABOVE PROVISIONS, THE AUTHORITIES HAVE TO ASCERTAIN ONLY THE GENUINENESS OF THE ACTIVITIES OF THE TRUST AND HOW THE INCOME DERIVED FROM THE TR UST PROPERTY IS APPLIED TO CHARITABLE OR RELIGIOUS PURPOSE AND NOT THE NATURE OF ACTIVITIES BY WHICH INCOME IS DERIVED BY THE TRUST. THE LD. CIT, HOWEVER, CONSIDE RING THE PROVISO TO SECTION 2(15), HELD THAT THE ASSESSEE IS NOT ENTITLED FOR R EGISTRATION BECAUSE FROM THE PERUSAL OF THE PAPER CUTTINGS OF THE ADVERTISEMENT, IT WAS CLEAR THAT THE ASSESSEE-TRUST IS INVOLVED IN CARRYING ON THE ACTIVITIES IN THE NATUR E OF TRADE, COMMERCE OR BUSINESS LIKE SALE OF DESIGNER DRESSES, FASHION ACCESSORIES, SILVER JEWELLERY ETC. IT WAS ALSO NOTED THAT JCIT, RANGE-II, AGRA HAS NOT RECOMMENDED FOR REGISTRATION IN FAVOUR OF THE ASSESSEE. THEREFORE, BOTH THE APPLICATIONS WERE DISMISSED. 3. THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO PB- 35 TO 46, WHICH ARE COPIES OF AUDITED ACCOUNTS FOR THE YEAR ENDING 31.03.2009, 31 .03.2010 AND 31.03.2011 AND SUBMITTED THAT THE ASSESSEE IS NOT DOING ANY PURCHA SE AND SALE OR ANY TRADING ACTIVITY. THE SOURCE OF INCOME IS MEMBERSHIP FEES, OPENING BALANCE AND INTEREST ETC. THEREFORE, THE FACTS HAVE NOT BEEN PROPERLY AP PRECIATED BY THE LD. CIT. HE HAS ITA NO. 435 & 436/AGRA/2011 3 ALSO SUBMITTED THAT NO PROPER OPPORTUNITY OF BEING HEARD HAS BEEN GRANTED IN THE MATTER. ON THE OTHER HAND, THE LD. DR RELIED UPON T HE IMPUGNED ORDERS. 4. ON CONSIDERATION OF THE FACTS OF THE CASE IN THE LIGHT OF AUDIT REPORT POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE IN THE PAPE R BOOK, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF LD. CIT. THE LD. CIT REJECTED THE CLAIM OF THE ASSESSEE BY FOLLOWING PROVISO TO SECTI ON 2(15) OF THE IT ACT. THE LD. CIT ON THE BASIS OF PAPER CUTTING FOUND THAT THE AS SESSEE IS ENGAGED IN ACTIVITIES IN THE NATURE OF TRADE, COMMERCE OR BUSINESS. HOWEVER, FURTHER PROVISO TO SECTION 2(15) PROVIDES, PROVIDED FURTHER THAT FIRST PROVIS O SHALL NOT APPLY IF THE AGGREGATE VALUE OF THE RECEIPTS FROM THE ACTIVITIES REFERRED TO THEREIN IS 10 LAKHS RUPEES OR LESS IN THE PREVIOUS YEAR. THE AUDITED ACCOUNTS OF THE ASSESSEE PROVE THAT THE ASSESSEE DID NOT INVOLVE IN ANY ACTIVITIES IN THE NATURE OF TRADE, COMMERCE AND BUSINESS AND NO SERVICES HAVE BEEN RENDERED IN RELATION TO SUCH TRADE, COMMERCE OR BUSINESS. SINCE THE AGGREGATE RECEIPTS OF THE ASSESSEE FROM T HE OPENING BALANCE, MEMBERSHIP FEES AND INTEREST ETC. WILL NOT EXCEED RS.10,00,000 /-, THEREFORE, FIRST PROVISO TO SECTION 2(15) WOULD NOT OTHERWISE APPLY TO THE CASE OF THE ASSESSEE. FURTHER, THE LD. CIT CAN GET REPORT FROM JCIT, RANGE-II, BUT THAT SH OULD NOT BE A SOLE BASIS FOR REJECTING THE CLAIM OF THE ASSESSEE. THE LD. CIT SH OULD EXAMINE THE ISSUE HIMSELF INDEPENDENTLY AND SHOULD ARRIVE AT THE DECISION IN THE MATTER IN ACCORDANCE WITH ITA NO. 435 & 436/AGRA/2011 4 LAW. IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF THE VIEW THAT THE LD. CIT, WITHOUT ANY JUST CAUSE AND REASONS AND WITHOUT CONSIDERING THE FACTS OF THE CASE PROPERLY, REJECTED THE APPLICATIONS OF THE ASSESSEE. THEREFOR E, HIS ORDER CANNOT BE SUSTAINED IN LAW. WE, ACCORDINGLY, SET ASIDE BOTH THE IMPUGNE D ORDERS AND RESTORE BOTH THE ISSUES TO THE FILE OF LD. CIT-I, AGRA FOR DECIDING THE SAME AFRESH IN ACCORDANCE WITH LAW BY GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24.07.2012. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY