Shri Ramdevji Maharaj Gaushala, V. The Commissioner of Income Tax, JAMNAGAR

ITA 438/RJT/2013

• Counselvise Citation: 43824914 RSA 2013
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 24-04-2014
• Assessment Year: misc
• Appeal Filed On: 15-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR M L MEENA
• Assessee Lawyers: J C RANPURA
• Keywords: Charitable institution
• Section: 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO. 438/RJT/2013 SHRI RAMDEVJI MAHARAJ GAUSHALA, POST: NAVA RANUJA, VIA KALAWAD (SHITLA), JAMNAGAR PAN : AAATS 9744 D ( / 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 24.04.2014 !'# / DATE OF PRONOUNCEMENT 15.05.2014 / ORDER THIS APPEAL BY THE ASSESSEE-TRUST IS AGAINST THE OR DER DATED 19.09.2013 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 03.08.1988 TO CARRY OUT CHARITABLE ACTIVITIES, PARTICULARLY IN TH E FIELD OF RUNNING AND MAINTAINING GAUSHALA AND ANIMAL WELFARE ACTIVITIES. IT WAS REGI STERED UNDER BPT ACT, 1950 WITH ASSTT. CHARITY COMMISSIONER, RAJKOT VIDE REGISTRATI ON NO.E/788/JAMNAGAR DATED 03.11.1988. THE ASSESSEE-TRUST INITIALLY MADE AN AP PLICATION FOR THE REGISTRATION OF THE TRUST U/S 12A(A) OF THE ACT ON 20.12.1988; HOWEVER, AT THAT POINT OF TIME IT COULD NOT BE IN A POSITION OF HAVING INFORMATION READILY AVAI LABLE AND THEREFORE THE ASSESSEE- TRUST APPLIED TO THE COMMISSIONER OF INCOME-TAX, JA MNAGAR FOR THE DUPLICATE COPY OF CERTIFICATE OF REGISTRATION U/S 12(A) OF THE INCOME -TAX ACT, 1961 ON 25.03.2013. LD. COMMISSIONER OF INCOME-TAX, JAMNAGAR, IN THE IMPUGN ED ORDER DATED 19.09.2013, REFUSED TO GRANT THE REGISTRATION U/S 12AA OF THE I NCOME-TAX ACT FOR THE DETAILED REASON GIVEN IN PARAGRAPH NOS. 2-5, WHICH READ AS U NDER:- 2. ON VERIFICATION OF THE TRUST DEED, IT IS OBSERV ED THAT THE TRUST DEED DOES NOT CONTAIN PROVISIONS IN THE EVENT OF ITS DISSOLUT ION TO THE EFFECT THAT UPON THE DISSOLUTION, IF ANY PROPERTY REMAINS AFTER SATISFAC TION OF ITS DEBTS AND LIABILITIES, THE SAME SHALL BE TRANSFERRED TO THE TRUST HAVING S IMILAR OBJECTS. 3. IN THIS REGARD, A NOTICE DTD. 21.08.2013 WAS ISS UED TO THE TRUST, WHEREBY IT WAS REQUESTED TO PRODUCE THE ORIGINAL DOCUMENTS FOR VERIFICATION AND EXPLANATION REGARDING DISCREPANCIES NOTED ABOVE. AS REGARDING DISCREPANCIES 2 438-RJT-2013 SHRI RAMDEVJI MAHARAJ GAUSHALA 12AA(1)(B)(II)- (SMC) IN RESPECT OF PROVISION OF DISSOLUTION OF TRUST, TH E TRUST VIDE ITS LETTER DATED 11.09.2013, HAS SUBMITTED THAT IN THE EVENT OF DIS SOLUTION OF THE TRUST, WHATEVER SURPLUS REMAINS AFTER MEETING WITH ALL LIA BILITIES OF THE TRUST SHALL BE TRANSFERRED FOR THE CHARITABLE PURPOSE ONLY. 4. THE SUBMISSION OF THE TRUST IS NOT ACCEPTABLE BE CAUSE OF THE FACT THAT THERE IS NOT A SPECIFIC CLAUSE IN THE TRUST DEED RE GARDING THE EVENTS OF ITS DISSOLUTION WHICH WAS CALLED FOR VIDE ABOVE REFERRE D NOTICE. THE APPLICANT TRUST IS NOT FOUND TO BE FULFILLING THE CONDITIONS LAID D OWN UNDER THE ACT. 5. ACCORDINGLY, THE REGISTRATION SOUGHT BY THE TRUS T U/S 12AA OF THE INCOME-TAX ACT, 1961, IS HEREBY REFUSED. 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 LEARNED COMMISSIONER OF INCOME TAX, JAMNAGA R HAS ERRED IN LAW AS WELL AS ON FACTS BY REFUSING THE REGISTRATION OF THE TRUST U/S 12AA(1)(B)(II) OF THE I.T. ACT, 1961. 2. THE LEARNED CIT AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE OUGHT TO HAVE ISSUED DUPLICATE CERTIFICATE OF REGISTRATION OF THE TRUST U/S 12AA OF THE I.T. ACT, 1961 OR OUGHT TO HAVE GRANTED REGISTRATION OF THE TRUST FROM THE DATE OF INCEPTION / DATE OF ORIGINAL APPLI CATION OF THE TRUST. 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 30 PAGES, WHICH INTER-ALIA INCLUDE THE COPY OF TRUST DEED DATED 03.08.1988 WIT H ENGLISH TRANSLATION, COPY OF REGISTRATION CERTIFICATE WITH THE PUBLIC REGISTRATI ON OFFICE, RAJKOT DATED 03.11.1988, COPY OF APPLICATION FOR ISSUING DUPLICATE/FRESH CER TIFICATE OF REGISTRATION U/S 12A(A) DATED 25.03.2013, COPY OF LETTER DATED 04.04.2013 I SSUED BY ITO, WARD-3(2), JAMNAGAR, COPY OF REPLY OF THE ASSESSEE-TRUST DATED 16.04.2013, COPY OF LETTER OF CIT, JAMNAGAR DATED 21.08. 2013 ETC IN THIS PAPER-BOOK, THE ASSESSEE-TRUST HAS ALSO SUBMITTED THE COPY OF APPLICATION U/S 12A(A) O F THE ACT DATED 20.12.1988 ALONGWITH ACKNOWLEDGEMENT FOR APPLICATION FOR EXEMP TION U/S 80G. THE COUNSEL OF THE ASSESSEE EXPLAINED THAT THE ASSESSEE-TRUST IS A N OLD ONE WHICH WAS CREATED ON 03.08.1988. THE ASSESSEE-TRUST IS REGULARLY FILING ITS RETURN OF INCOME SINCE ITS INCEPTION. THE CORRESPONDENCE WITH THE DEPARTMENT A S CONTAINED IN THE PAPER-BOOK CLEARLY INDICATES THAT THE ASSESSEE-TRUST MADE AN A PPLICATION FOR REGISTRATION U/S 12AA EARLIER ALSO BUT THE ASSESSEE-TRUST COULD NOT TRACE THE EARLIER REGISTRATION CERTIFICATE DUE TO THE CESSATION OF OFFICE OF ITS EARLIER TAX C ONSULTANT AND AUDITORS NAMELY M/S. 3 438-RJT-2013 SHRI RAMDEVJI MAHARAJ GAUSHALA 12AA(1)(B)(II)- (SMC) PUNJANI & CO. THEREFORE, THE ASSESSEE-TRUST MADE A N APPLICATION AGAIN ON 25.03.2013 EITHER TO ISSUE DUPLICATE OR FRESH CERTI FICATE OF REGISTRATION U/S 12A(A) OF THE INCOME-TAX ACT, 1961, WHICH WAS REFUSED BY LD. COMMISSIONER OF INCOME-TAX, JAMNAGAR DUE TO THE REASON THAT THE TRUST DEED DOES NOT CONTAIN PROVISIONS IN THE EVENT OF ITS DISSOLUTION TO THE EFFECT THAT UPON TH E DISSOLUTION, IF ANY PROPERTY REMAINS AFTER SATISFACTION OF ITS DEBTS AND LIABILITIES, TH E SAME SHALL BE TRANSFERRED TO THE TRUST HAVING SIMILAR OBJECTS. THE LD. COUNSEL OF THE AS SESSEE FURTHER POINTED OUT THAT THE ASSESSEE-TRUST HAD EXPLAINED VIDE ITS LETTER DATED 11.09.2013 THAT THE DISSOLUTION CLAUSE WAS ALREADY THERE IN THE TRUST DEED AT CLAUS E NO.9(1) ON PAGE NO.8 OF TRUST DEED WHICH READS AS UNDER:- DUE TO UNAVOIDABLE CIRCUMSTANCES AT ANY TIME IF TH E CIRCUMSTANCES ARISE TO DISSOLVE THE TRUST, THEN FIRST OF ALL, ALL THE LIAB ILITIES OF THE TRUST SHALL BE MET WITH AND THEREAFTER REMAINING SURPLUS OF THE FUND SHALL BE DISTRIBUTED / DISPOSED OFF FOR CHARITABLE PURPOSES IN ACCORDANCE WITH THE DECI SION TAKEN BY THE TRUST. LD. COUNSEL OF THE ASSESSEE-TRUST ALSO POINTED OUT THAT, IN VIEW OF THE ABOVE REFERRED SPECIFIC CLAUSE IN THE TRUST DEED, IN THE EVENT OF DISSOLUTION OF THE TRUST, WHATEVER SURPLUS REMAINS AFTER MEETING WITH ALL LIA BILITIES OF THE TRUST SHALL BE TRANSFERRED FOR THE CHARITABLE PURPOSES ONLY. WITH OUT PREJUDICE TO THIS CONTENTION, THE LD COUNSEL OF THE ASSESSEE POINTED OUT THAT THE ASS ESSEE-TRUST IS WILLING TO AMEND THE TRUST DEED AND SHALL ALSO MADE ALL THE DETAILS AVAI LABLE PROVIDED PROPER OPPORTUNITY IS ALLOWED BY THE LD COMMISSIONER OF INCOME-TAX IN THI S REGARD. AFTER NARRATING ALL THE FACTS, THE LD COUNSEL OF TH E ASSESSEE-TRUST SUBMITTED THAT IN THE INTEREST OF JUSTICE MATTER BE REMANDED TO TH E FILE OF LD. COMMISSIONER OF INCOME-TAX, JAMNAGAR WITH THE DIRECTION THAT HE MAY EITHER ISSUE A COPY OF REGISTRATION CERTIFICATE U/S 12AA, WHICH WAS EARLIE R GRANTED, TO THE ASSESSEE-TRUST OR ISSUE A FRESH REGISTRATION CERTIFICATE AS NOW REQUE STED BY THE ASSESSEE-TRUST. 4. ON THE OTHER HAND, SHRI M.L. MEENA, LD. DEPARTM ENTAL REPRESENTATIVE, APPEARED ON BEHALF OF THE REVENUE, POINTED OUT THAT IT IS THE DUTY OF THE ASSESSEE TO PRESERVE THE REGISTRATION CERTIFICATE, IF ANY, GRAN TED EARLIER U/S 12AA OF THE INCOME-TAX ACT. AS AGAINST THIS, THE LD. COUNSEL OF THE ASSES SEE POINTED OUT THAT THE 4 438-RJT-2013 SHRI RAMDEVJI MAHARAJ GAUSHALA 12AA(1)(B)(II)- (SMC) CORRESPONDENCE WITH THE DEPARTMENT CLEARLY INDICATE S THAT THE REGISTRATION CERTIFICATE U/S 12AA WAS EARLIER ALLOWED BY THE DEPARTMENT BUT SOMEHOW THE SAME IS NOT AVAILABLE WITH THE ASSESSEE-TRUST; THEREFORE, IN TH E INTEREST OF JUSTICE THE DEPARTMENT MAY LOCATE THE SAME AND PROVIDE TO THE ASSESSEE-TRU ST. 5. RIVAL SUBMISSIONS WERE CONSIDERED. IT IS PERTINE NT TO NOTE THAT THE TRUST IN QUESTION WAS CREATED ON 03.08.1988 AND IS REGULARLY FILING ITS RETURN OF INCOME SINCE ITS INCEPTION. THIS PRIMA-FACIE INDICATES THAT FILE OF THE ASSESSEE-TRUST IS AVAILABLE WITH THE LD. CIT, JAMNAGAR. IT IS ALSO RELEVANT HERE T O NOTE THAT THE LD. COMMISSIONER OF INCOME-TAX, JAMNAGAR REFUSED TO GRANT THE REGISTRAT ION TO THE ASSESSEE-TRUST U/S 12AA OF THE INCOME-TAX ACT ON THE GROUND THAT THE T RUST DEED DOES NOT CONTAIN THE DISSOLUTION CLAUSE. THE ASSESSEE-TRUST ALSO EXPRESS ED ITS STAND THAT IT IS WILLING TO AMEND THE TRUST DEED AND SHALL ALSO MADE ALL THE DE TAILS AVAILABLE PROVIDED PROPER OPPORTUNITY IS ALLOWED BY THE LD COMMISSIONER OF IN COME-TAX IN THIS REGARD. IN THIS VIEW OF THE MATTER, THE IMPUGNED ORDER OF LD. CIT, JAMNAGAR REJECTING THE APPLICATION OF THE ASSESSEE-TRUST FOR REGISTRATION U/S 12AA OF THE INCOME-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. IN CASE THE LD. CIT, JAMNAGAR COULD NOT LOCATE THE EARLIER REGI STRATION CERTIFICATE ISSUED U/S 12AA OF THE INCOME-TAX ACT, IN THAT EVENT HE SHALL PASS A FRESH ORDER ON ASSESSEES APPLICATION U/S 12AA AFTER GIVING OPPORTUNITY OF BE ING 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/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 15.05.2014 !$ /RAJKOT *BT 5 438-RJT-2013 SHRI RAMDEVJI MAHARAJ GAUSHALA 12AA(1)(B)(II)- (SMC) / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- SHRI RAMDEVJI MAHARAJ GAUSHALA, POST: NAVA RANUJA, VIA KALAWAD (SHITLA), JAMNAGAR 2. / RESPONDENT- THE COMMISSIONER OF INCOME-TAX, JAMN AGAR 3. ,0,1 * * 2 / CONCERNED JT. CIT, RANGE 3, JAMNAGAR 4 . 345 1, * 1#, !$ / DR, ITAT, RAJKOT 5 . 57 89 / GUARD FILE *)& / BY ORDER TRUE COPY TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT