M.P.Trauck Operator Association, Indore V. The CIT-I, Indore

ITA 439/IND/2012

• Counselvise Citation: 43922714 RSA 2012
• Duration Of Justice: 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 01-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: SANJAY SODANI
• Section: 80G; 12A; 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NOS.438 AND 439/IND/2012 A.Y. 2012-13 M.P. TRUCK OPERATOR ASSOCIATION INDORE PAN AADCM 6695D :: APPELLANT VS COMMISSIONER OF INCOME TAX I INDORE :: RESPONDENT APPELLANT BY SHRI SANJAY SODANI RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 31.12.2012 DATE OF PRONOUNCEMENT 31.12.2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDERS D ATED 9.7.2012 PASSED BY THE LEARNED CIT, INDORE, U/S. 80 G(5) READ WITH RULE 11AA OF THE INCOME TAX RULES, 1962 AND AN OTHER ORDER 2 U/S 12AA(1)(B)(II) OF THE INCOME TAX ACT, 1961 FOR THE A.Y. 2012- 13. FIRST WE SHALL TAKE UP APPEAL IN ITA NO. 438/ IND/2012 WHEREIN THE GROUND RAISED IS THAT THE LEARNED CIT H AS NOT PROVIDED PROPER OPPORTUNITY AND THUS PASSED EX-PART E ORDER ON 7.7.2012 ON THE BASIS OF REPORT OF THE INSPECTOR WH O DID NOT VISIT THE PREMISES OF THE ASSESSEE AND SUBMITTED A FALSE REPORT. 3. DURING HEARING, THE LEARNED COUNSEL FOR THE ASSE SSEE, SHRI SANJAY SODANI ADVANCED HIS ARGUMENTS WHICH ARE IDEN TICAL WITH THE GROUND RAISED WHEREAS SHRI R.A. VERMA, LEARNED SENIOR DR, STRONGLY DEFENDED THE IMPUGNED ORDER BY SUBMITTING THAT THE ASSERTIONS MADE BY THE ASSESSEE ARE FACTUALLY INCOR RECT RATHER THE ASSESSEE DID NOT PRODUCE THE BOOKS OF ACCOUNTS, VOU CHERS OF EXPENSES, COPY OF BANK ACCOUNTS, COPY OF AGREEMENT FOR RENT PAYMENT/DETAILS OF RENT PAID AND RECEIVED ALONG WIT H THE DETAILS OF DONATIONS AND COPY OF AUDIT REPORT WITH INCOME A ND EXPENDITURE ACCOUNT/BALANCE SHEET OF THE LAST THREE YEARS. IT WAS CLAIMED THAT NO SUCH DETAILS WERE FILED BY THE ASSE SSEE FOR WHICH OUR ATTENTION WAS INVITED TO VARIOUS PAGES OF THE I MPUGNED ORDER/ASSESSMENT ORDER AND MORE SPECIFICALLY PARA 5 ONWARDS OF THE IMPUGNED ORDER. 3 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE ASSOCIATION WAS CLAIMED TO BE FORMED IN TH E YEAR 1997, APPLIED FOR EXEMPTION U/S 80G OF THE ACT VIDE APPLI CATION WHICH WAS RECEIVED IN THE OFFICE OF THE LEARNED CIT ON 5. 1.2012. IN ORDER TO MEET OUT WITH THE REQUIREMENT FOR GRANTING THE BENEFIT OF SECTION 80G OF THE ACT, THE ASSESSEE WAS ASKED TO F URNISH, ON 30.1.2012, THE NECESSARY DOCUMENTS LIKE BOOKS OF AC COUNTS, VOUCHERS OF EXPENSES, COPY OF BANK ACCOUNTS/STATEME NTS, COPY OF AGREEMENT FOR PAYMENT OF RENT PAID/RECEIVED, DETAIL S OF DONATION, COPY OF AUDIT REPORT WITH INCOME AND EXPENDITURE AC COUNT AND THE BALANCE SHEET OF THE LAST THREE YEARS. THE ASS ESSEE DID NOT APPEAR ON THE DATE FIXED. THE LEARNED CIT ALSO FOR WARDED THE COPY OF THE APPLICATION TO THE DCIT FOR SUBMISSION OF THE REPORT. IN TURN, THE DCIT DEPUTED THE INSPECTOR FOR CONDUCT ING INQUIRIES AND A REPORT WAS SUBMITTED BY HIM. THE CRUX OF THE REPORT IS THAT THE ASSESSEE IS DOING COMMERCIAL ACTIVITIES AN D NO CHARITABLE ACTIVITIES ARE DONE BY THE ASSESSEE. THE RELEVANT PORTION OF THE REPORT HAS BEEN REPRODUCED IN THE IMPUGNED ORDER. T HIS REPORT WAS FORWARDED TO THE LEARNED CIT ON 20.1.2012 AND T HE REGISTRATION WAS NOT RECOMMENDED. THE REPORT IS AL SO 4 REPRODUCED IN PARA 7 OF THE IMPUGNED ORDER. THE EX EMPTION U/S 80G(5) WAS DENIED BY THE LEARNED CIT ON THE REASONS STATED IN THE IMPUGNED ORDER FROM PAGE 3 ONWARDS. DURING HEA RING OF THIS APPEAL, VARIOUS QUERIES WERE RAISED BY THE BENCH AS KING THE ASSESSEE TO PRODUCE THE EVIDENCE OF ANY CHARITY LIK E OPENING OF SCHOOLS, HOSPITALS, TRAINING CENTRE FOR BENEFIT OF MEMBERS OF THE ASSESSEE, ETC. THE ASSESSEE DID NOT PRODUCE ANY EV IDENCE EVIDENCING THAT ANY SUCH ACTIVITY/CHARITY WAS DONE BY THE ASSESSEE. IT WAS TOLD BY THE LEARNED COUNSEL FOR T HE ASSESSEE THAT FOR THE LAST ABOUT 15 YEARS, THOUGH NO SUCH ACTIVIT Y WAS DONE BUT THE ASSESSEE WILL DO IN FUTURE. IN THE ABSENCE OF ANY PROOF OF CHARITY, WE FIND THAT THE ASSESSEE HAS NOT DONE ANY ACTIVITY IN CONSONANCE WITH THE OBJECTS OF THE ASSESSEE. EVEN OTHERWISE, THE NECESSARY DETAILS WERE ALSO NOT FURNISHED. THEREFO RE, KEEPING IN VIEW THE TOTALITY OF FACTS AND THE FACTUAL FINDING RECORDED IN THE IMPUGNED ORDER WHICH WAS NOT CONTROVERTED EVEN BEFO RE THE TRIBUNAL, WE FIND NO JUSTIFICATION TO INTERFERE WIT H THE CONCLUSION DRAWN BY THE LEARNED CIT AND MORE SPECIFICALLY WHEN THE ASSESSEE DID NOT FULFIL THE CONDITIONS LAID DOWN IN RULE 11AA OF THE INCOME TAX RULES. THE ORDER OF THE LD. CIT IS UPHELD. 5 5. NOW WE SHALL TAKE UP THE APPEAL IN ITA NO. 439/I ND/2012 WHEREIN THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED O RDER DENYING THE BENEFIT OF SECTION 12A OF THE ACT ON THE GROUND THAT PROPER OPPORTUNITY WAS NOT GRANTED TO THE ASSESSEE BY PASS ING AN EX- PARTE ORDER THAT TOO ON THE BASIS OF REPORT OF THE INSPECTOR. 5.1 DURING HEARING, THE LEARNED COUNSEL CONTENDED T HAT PROPER OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE AND EX -PARTE ORDER WAS PASSED ON 7.7.2012. IT WAS ALSO PLEADED THAT E VEN THE INSPECTOR DID NOT VISIT THE PREMISES OF THE ASSESSE E. ON THE OTHER HAND, SHRI R.A. VERMA ADVANCED HIS ARGUMENTS BY SUP PORTING THE IMPUGNED ORDER BY PLEADING THAT THE ASSESSEE NE ITHER FULFILLED THE REQUIRED CONDITIONS NOR COMPLIED WITH THE OBJEC TS. 5.2 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS A ND PERUSED THE MATERIAL ON RECORD. WE FIND THAT IN ORDER TO ME ET OUT WITH THE REQUIREMENTS OF THE ACT FOR GRANTING REGISTRATION U /S 12A(A) OF THE ACT, A LETTER WAS ISSUED TO THE ASSESSEE ON 11.1.20 12 FIXING THE CASE FOR HEARING FOR 27.1.2012. THE REPRESENTATIVE OF THE ASSESSEE ATTENDED AND REQUESTED FOR ADJOURNMENT. T HUS, AS PRAYED, THE MATTER WAS ADJOURNED TO 30 TH JANUARY, 2012. ON THAT DATE ALSO, THE COUNSEL FOR THE ASSESSEE APPEAR ED. THE ASSESSEE WAS ASKED TO PRODUCE THE BOOKS OF ACCOUNTS , VOUCHERS 6 OF EXPENSES, COPY OF STATEMENT OF ACCOUNTS AND OTHE R NECESSARY DETAILS ALONG WITH THE BALANCE SHEET OF LAST THREE YEARS ON 6.2.2012. THE ASSESSEE NEITHER ATTENDED THEREAFTER NOR FILED ANY REPLY. AS PER THE IMPUGNED ORDER, THE LEARNED CIT, SIMULTANEOUSLY, SOUGHT REPORT FROM THE DCIT. ENQUI RIES WERE CONDUCTED THROUGH INSPECTOR WHO REPORTED THAT THE A SSESSEE IS DOING ONLY COMMERCIAL ACTIVITIES AND NO CHARITABLE ACTIVITIES ARE DONE. THE REPORT OF THE INSPECTOR AND OF THE DCIT HAS BEEN MADE PART OF THE IMPUGNED ORDER. WE FIND THAT AS PER RU LE 17A(B) OF THE IT RULES, THE APPLICATION IS TO BE ACCOMPANIED WITH THE COPY OF ACCOUNTS OF THE INSTITUTION. THE ASSESSEE CAME INTO EXISTENCE ON 17.2.1997 BUT DID NOT SUBMIT ANY REPORT IN COMPL IANCE OF HEARING DATED 30.1.2012. THERE IS A FINDING IN THE IMPUGNED ORDER THAT THE ASSESSEE DID NOT FULFIL THE OBJECTS OF THE ASSESSEE ASSOCIATION AS DEPICTED IN CLAUSE A(2) AND DID NOT SUBMIT NECESSARY DETAILS/DOCUMENTS ALONG WITH THE APPLICAT ION. EVEN ON ASKING FROM THE BENCH TO SHOW WHETHER ANY CHARIT ABLE ACTIVITY WAS DONE BY THE ASSESSEE, THE LEARNED COUNSEL SHOWE D HIS INABILITY. THE FINDING IN THE IMPUGNED ORDER THAT THE ACTIVITIES OF THE ASSESSEE ASSOCIATION ARE OF COMMERCIAL NATURE W AS ALSO NOT CONTROVERTED WITH EVIDENCE BY THE ASSESSEE. KEEPIN G IN VIEW THE 7 TOTALITY OF FACTS, ASSERTION MADE BEFORE US AND THE UNCONTROVERTED FACTUAL FINDING RECORDED BY THE LEARNED CIT. SO FA R AS THE CONTENTION OF THE LEARNED COUNSEL THAT NO OPPORTUNI TY OF PROPER OPPORTUNITY WAS PROVIDED TO THE ASSESSEE IS CONCERN ED, IT IS ALSO WITHOUT ANY BASIS RATHER THE ASSESSEE DID NOT AVAIL THE OPPORTUNITY AND EVEN DID NOT FILE THE NECESSARY DET AILS. IT CANNOT BE SAID TO BE AN EX-PARTE ORDER. IN SPITE OF ASKING BY THE LEARNED CIT, THE ASSESSEE NEITHER APPEARED ON THE NEXT DATE S NOR SOUGHT ANY ADJOURNMENT, THEREFORE, THE CONTENTION RAISED B Y THE ASSESSEE IS WITHOUT ANY BASIS. IN VIEW OF THESE FAC TS, WE FIND NO JUSTIFICATION TO INTERFERE WITH HIS ORDER AND UPHOL D THE SAME. FINALLY, BOTH THE APPEALS OF THE ASSESSEE ARE HAVI NG NO MERIT AND DISMISSED AS SUCH. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 31.12.2012. SD SDS (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 31.12.2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-31.31 8