Shri Jamnagar Gurjar Chhatriya Kadia Gnati, JAMNAGAR V. The Commissioner of Income Tax, JAMNAGAR

ITA 443/RJT/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80081 (ITAT-RAJKOT)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 27-05-2014
• Assessment Year: misc
• Appeal Filed On: 15-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M L MEENA
• Assessee Lawyers: J C RANPURA
• Keywords: Opportunity of being heard
• Section: 12; 11; 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO. 443/RJT/2013 SHRI JAMNAGAR GURJAR CHHATRIYA KADIA GNATI VISHWAKARMA CHOWK, KADIAVAD, JAMNAGAR, PAN : AAATS 9852 J ( / APPELLANT) THE COMMISSIONER OF INCOME-TAX JAMNAGAR / RESPONDENT / ASSESSEE BY SHRI J C RANPURA, CA / REVENUE BY SHRI M L MEENA, DR / DATE OF HEARING 27.05.2014 !'# / DATE OF PRONOUNCEMENT 29.05.2014 / ORDER THIS APPEAL BY THE ASSESSEE-TRUST IS AGAINST THE OR DER DATED 25.09.2013 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 25.09.1964. IT WAS REGISTERED UNDER BPT ACT, 1950 WITH ASSTT. CHAR ITY COMMISSIONER, RAJKOT VIDE REGISTRATION NO. A/356/JAMNAGAR DATED 25.09.1964. T HE ASSESSEE-TRUST IS A VERY OLD TRUST AND HAD EARLIER APPLIED FOR REGISTRATION OF T HE TRUST U/S 12A OF THE ACT; HOWEVER, DUE TO CESSATION OF THE OFFICE OF ITS TAX CONSULTAN T & AUDITORS M/S. PUNJANI & CO., CA, JAMNAGAR, THE ASSESSEE-TRUST IS NOT HAVING READILY AVAILABLE THE CERTIFICATE U/S 12A OF THE ACT. THEREFORE, THE ASSESSEE-TRUST MADE AN APP LICATION TO THE COMMISSIONER OF INCOME-TAX, JAMNAGAR ON 25.03.2013 REQUESTING HIM T O ISSUE DUPLICATE/FRESH CERTIFICATE OF REGISTRATION U/S 12(A) OF THE INCOME -TAX ACT, 1961. LD. COMMISSIONER OF INCOME-TAX, JAMNAGAR, IN THE IMPUGNED ORDER DATED 2 5.09.2013, REFUSED TO GRANT THE REGISTRATION U/S 12AA OF THE INCOME-TAX ACT FOR THE DETAILED REASON GIVEN IN PARAGRAPH NOS. 2-4, WHICH READ AS UNDER:- 2. ON VERIFICATION OF THE APPLICATION, IT IS FOUND THAT THE TRUST HAS NOT SUBMITTED ANY DETAILS CALLED FOR AS PER THE MANDATE OF THE RULES-17A(A) OF THE I.T. RULES, 1962. FURTHER, THE TRUST HAS ALSO CLAIM ED EXEMPTION U/S 11 OF THE ACT WITHOUT BEING REGISTERED U/S 12A(A) OF THE ACT. 3(A). THEREFORE, A NOTICE WAS ISSUED TO THE APPLICA NT TRUST ON 26.08.2013 REQUESTING TO PRODUCE CERTAIN DOCUMENTS AS MENTIONE D IN THE SAID NOTICE BY 05.09.2013. HOWEVER, THE APPLICANT TRUST HAD NOT CO MPLIED WITH THE SAID NOTICE. THEREFORE, THE APPLICANT TRUST WAS GIVEN AN OTHER OPPORTUNITY BY ISSUING NOTICE ON 11.09.2013. IN RESPONSE TO SAID NOTICE, T HE TRUST HAD SUBMITTED A COPY OF MEMORANDUM AND REGISTRATION CERTIFICATE ISS UED BY CHARITY 2 443-RJT-2013 - SHRI JAMNAGAR GURJAR CHHATRIYA KADIA GNATI 12AA(1)(B)(II)- (SMC) COMMISSIONER, RAJKOT. HOWEVER, THE TRUST HAS FAILED TO SUBMIT NECESSARY DETAILS SUCH AS TRUST DEED AND PROOF OF ACTIVITY CARRIED OUT. THEREFORE, GENUINENESS OF THE APPLICANT TRUST CANNOT BE VERIFI ED IN ABSENCE OF SUCH BASIC DOCUMENTS. 3(B). FURTHER, IT WAS ALSO OBSERVED FROM THE REPORT SUBMITTED BY THE FIELD FORMATION THAT THE TRUST HAS CLAIMED EXEMPTION U/S 11 OF THE ACT WITHOUT BEING REGISTERED U/S 12A(A) OF THE ACT. IN THIS REGARD, T HE TRUST WAS GIVEN AN OPPORTUNITY OF BEING HEARD VIDE NOTICE DATED 19.09. 2013 REQUESTING TO EXPLAIN AS TO WHY ITS APPLICATION FOR REGISTRATION U/S 12A( A) SHOULD NOT BE REJECTED. IN RESPONSE TO SAID NOTICE, THE TRUST HAS FILED A WRIT TEN SUBMISSION. HOWEVER, THE TRUST HAS NOT EXPLAINED ANYTHING ON THE SAID ISSUE. IT SHOWS THAT THE TRUST HAS NO EXPLANATION ON THE SAID ISSUE OF EXEMPTION CLAIM ED U/S 11 OF THE ACT WITHOUT BEING REGISTERED U/S 12A(A) OF THE ACT. 4. IN VIEW OF THE ABOVE DISCUSSED FACTS, IT IS CLEA R THAT THE APPLICANT TRUST IS NOT FOUND TO BE FULFILLING THE CONDITIONS LAID DOWN UNDER THE ACT. ACCORDINGLY, THE REGISTRATION SOUGHT BY THE TRUST U/S 12AA OF TH E 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. 3. BEFORE THE TRIBUNAL, ON THE DATE OF HEARING, ON BEHALF OF ASSESSEE-TRUST SHRI J.C. RANPURA, CA APPEARED AND FILED A PAPER BOOK CO NTAINING 33 PAGES, WHICH INTER- ALIA INCLUDE THE COPY OF TRUST DEED ALONGWITH ENGLI SH TRANSLATION, COPY OF REGISTRATION CERTIFICATE WITH THE DEPUTY CHARITY COMMISSIONER, R AJKOT DATED 25.09.1964, COPY OF APPLICATION FOR ISSUING DUPLICATE/FRESH CERTIFICATE OF REGISTRATION U/S 12A(A) DATED 25.03.2013, COPY OF LETTER DATED 26.08.2013 ISSUED BY THE CIT, JAMNAGAR, COPY OF REPLY OF THE ASSESSEE-TRUST DATED 05.09.2013, COPY OF LETTER FROM THE OFFICE OF THE CIT, JAMNAGAR DATED 19.09.2013, COPIES OF ACKNOWLED GEMENTS OF RETURN OF INCOME AND COMPUTATION OF INCOME FOR AYS 1998-99 TO 2002-0 3 ETC THE COUNSEL OF THE ASSESSEE EXPLAINED THAT THE ASSESSEE-TRUST IS AN OL D ONE WHICH WAS CREATED ON 25.09.1964. THE TRUST IS REGULARLY FILING ITS RETU RN OF INCOME SINCE ITS INCEPTION MENTIONING IN ITS COMPUTATION OF INCOME THAT THE TR UST IS DULY REGISTERED UNDER SECTION 12A OF THE ACT; HOWEVER, THE ASSESSEE-TRUST IS NOT HAVING ANY INFORMATION READILY AVAILABLE ON HAND IN RESPECT OF REGISTRATION CERTIF ICATE OF THE TRUST U/S 12A(A) DUE TO 3 443-RJT-2013 - SHRI JAMNAGAR GURJAR CHHATRIYA KADIA GNATI 12AA(1)(B)(II)- (SMC) CESSATION OF THE OFFICE OF THE EARLIER TAX CONSULTA NT AND AUDITORS NAMELY M/S. PUNJANI & CO., JAMNAGAR. THE CORRESPONDENCE WITH THE DEPART MENT, AS CONTAINED IN THE PAPER-BOOK, CLEARLY INDICATES THAT THE ASSESSEE-TRU ST MADE AN APPLICATION FOR REGISTRATION U/S 12AA EARLIER ALSO BUT THE ASSESSEE -TRUST COULD NOT TRACE THE EARLIER REGISTRATION CERTIFICATE DUE TO THE CESSATION OF OF FICE OF ITS EARLIER TAX CONSULTANT AND AUDITORS NAMELY M/S. PUNJANI & CO. THEREFORE, THE ASSESSEE-TRUST MADE AN APPLICATION AGAIN ON 25.03.2013 ALONGWITH REQUISITE DOCUMENTS AND REQUESTED THE CIT, JAMNAGAR TO ISSUE DUPLICATE/FRESH CERTIFICATE OF REGISTRATION U/S 12A(A) OF THE INCOME-TAX ACT, 1961, WHICH WAS REFUSED BY LD. COMM ISSIONER OF INCOME-TAX, JAMNAGAR DUE TO THE REASON THAT THE ASSESSEE-TRUST HAS FAILED TO SUBMIT NECESSARY DETAILS SUCH AS TRUST DEED AND PROOF OF ACTIVITY CA RRIED OUT BY THEM AND ALSO FOR THE REASON THAT THE ASSESSEE-TRUST CLAIMED EXEMPTION U/ S. 11 OF THE ACT WITHOUT BEING REGISTERED U/S 12A(A) OF THE ACT. THE LD. COUNSEL OF THE ASSESSEE-TRUST ALSO SUBMITTED THAT THE ASSESSEE-TRUST WAS FILING ITS RE TURN OF INCOME SINCE INCEPTION AND HAS ALSO BEEN ASSESSED BY DEPARTMENT AND GRANTED EX EMPTION U/S 11 OF THE ACT, WHICH PROVES THAT THE TRUST HAD BEEN GRANTED REGIST RATION CERTIFICATE U/S 12 OF THE ACT; HOWEVER, DUE TO SOME UNAVOIDABLE CIRCUMSTANCES, THE SAME WAS NOT IN ITS POSSESSION. HE FURTHER SUBMITTED THAT THE LD. CIT O UGHT TO HAVE CONSIDERED THE GENUINENESS OF ITS ACTIVITIES BEING CARRIED OUT WHI LE CONSIDERING THE APPLICATION FOR ISSUING DUPLICATION/FRESH COPY OF REGISTRATION CERT IFICATE U/S 12A OF THE ACT. 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 CORRESPONDENCE WITH THE DEPARTMENT CLEARLY INDICATE S THAT THE REGISTRATION CERTIFICATE 4 443-RJT-2013 - SHRI JAMNAGAR GURJAR CHHATRIYA KADIA GNATI 12AA(1)(B)(II)- (SMC) 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 25.09.1964 AND WAS REGISTER ED UNDER BPT ACT WITH THE ASSTT. CHARITY COMMISSIONER, RAJKOT VIDE REGISTRATI ON NO.A/356/JAMNAGAR DATED 25.09.1964. IT IS ALSO PERTINENT TO NOTE THAT THE ASSESSEE-TRUST IS REGULARLY FILING RETURN OF INCOME SINCE ITS INCEPTION. THIS PRIMA-FA CIE INDICATES THAT FILE OF THE ASSESSEE-TRUST IS AVAILABLE WITH THE LD. CIT, JAMNA GAR. IN THIS VIEW OF THE MATTER, THE IMPUGNED ORDER OF LD. CIT, JAMNAGAR REJECTING THE A PPLICATION OF THE ASSESSEE-TRUST FOR REGISTRATION U/S 12AA OF THE INCOME-TAX ACT, 19 61 IS HEREBY CANCELLED WITH THE DIRECTION THAT LD. CIT, JAMNAGAR WILL LOCATE THE RE GISTRATION CERTIFICATE U/S 12AA, IF ANY, ISSUED TO THE ASSESSEE-TRUST EARLIER BY LD. CIT. IN CASE THE LD. CIT, JAMNAGAR COULD NOT LOCATE THE EARLIER REGISTRATION CERTIFICATE ISS UED U/S 12AA OF THE INCOME-TAX ACT, IN THAT EVENT HE SHALL PASS A FRESH ORDER ON ASSESSEE S APPLICATION U/S 12AA AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE-TRUST. F OR THE PURPOSE OF ISSUING FRESH REGISTRATION CERTIFICATE, THE ASSESSEE-TRUST SHALL FURNISH THE ORIGINAL TRUST DEED AND PROOF OF ACTIVITIES CARRIED OUT, AS REQUIRED BY THE LD. CIT. 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/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 29.05.2014 !$ /RAJKOT *BT / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- SHRI JAMNAGAR GURJAR CHHATRIYA KADIA GNATI, JAMNAGAR 2. / RESPONDENT- THE COMMISSIONER OF INCOME-TAX, JAMN AGAR 3. ,0,1 * * 2 / CONCERNED JT. CIT, RANGE 3, JAMNAGAR 5 443-RJT-2013 - SHRI JAMNAGAR GURJAR CHHATRIYA KADIA GNATI 12AA(1)(B)(II)- (SMC) 4 . 345 1, * 1#, !$ / DR, ITAT, RAJKOT 5 . 57 89 / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT