Carmel Educational and Charitable Trust, Erode V. CIT II, Coimbatore

ITA 445/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64284 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-09-2012
• Assessment Year: misc
• Appeal Filed On: 01-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR S MOHARANA
• Assessee Lawyers: S SRIDHAR
• Keywords: Charitable institution
• Section: 12AA

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL B BENCH, CHENNAI. BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER & SHRI S.S. GODARA, JUDICIAL MEMBER I.T.A. NO.445/MDS/2012 CARMEL EDUCATIONAL AND CHARITABLE TRUST, C/O CARMEL MATRICULATION HIGHER SECONDARY SCHOOL, KOLLAMPALAYAM, ERODE 638 002. [PAN:AABBTC0672M] VS. THE COMMISSIONER OF INCOME TAX II, COIMBATORE. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE RESPONDENT BY : DR. S. MOHARANA, CIT DR DATE OF HEARING : 1 3 . 0 9 .201 2 DATE OF PRONOUNCEMENT : 18.09.2012 ORDER PERBENCH THIS ASSESSEES APPEAL IS DIRECTED AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME TAX II, COIMBATORE DATED 28. 12.2011 IN C.NO. 1062/CIT-II/CBE/11-12 PASSED UNDER SECTION 12AA OF THE INCOME TAX ACT 1961 [IN SHORT ACT] REFUSING REGISTRATION UNDER S ECTION 12AA OF THE ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE IS A REGISTERED TRUST, WHO HAD FILED AN APPLICATION IN FORM 10A PRAYING FO R REGISTRATION UNDER SECTION 12AA OF THE ACT ON 30.06.2011. WE NOTICE THAT THE COMMISSIONER I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.44 4444 445 55 5/M/ /M/ /M/ /M/12 1212 12 2 OF INCOME TAX WHILST REJECTING THE APPLICATION FOR REGISTRATION HAS OBSERVED AS UNDER: A REPORT ON THE ASSESSEE'S APPLICATION FILED IN FO RM NO 10A CALLED FOR WAS RECEIVED FROM THE INCOME TAX OFFICER WARD 1(4), ERODE THROUGH THE JOINT COMMISSIONER OF INCOME TAX, RANGE -I, ERODE IN THIS OFFICE. IT IS OBSERVED FROM THE REPORT OF THE ABOVE MENTIONED ASSESSING OFFICER THAT THE CARMEL MATRICULATION HIGHER SECOND ARY SCHOOL WHICH IS SAID TO BE RUNNING BY M/S. CARMEL EDUCATIONAL AN D CHARITABLE TRUST BEING THE APPLICANT IS ALREADY FUNCTIONING UNDER TH E TRUST CALLED LITTLE FLOWER EDUCATIONAL SOCIETY. FROM THE ABOVE IT IS UN DERSTOOD THAT THE SCHOOL OF THE APPLICANT IS ALREADY FUNCTIONING UNDE R A TRUST WHICH IS REGISTERED UNDER THE PROVISIONS OF SECTION 12AA OF THE I T ACT. IT IS THEREFORE THE REGISTRATION SOUGHT FOR IN THE NAME O F THE APPLICANT IS CONSIDERED AND REJECTED AS THE ABOVE SAID PROVISION S CANNOT BE APPLIED TWICE ON A SAME TRUST. THEREFORE, THE ASSESSEE HAS RAISED THE INSTANT GRI EVANCE BEFORE US. 3. REITERATING THE PLEAS RAISED IN VARIOUS GROUNDS OF APPEAL, THE AR, BEFORE US, HAS ASSAILED THE ORDER OF THE COMMISSION ER OF INCOME TAX BY CONTENDING THAT THE ASSESSEE WAS NEVER CONFRONTED W ITH THE REPORT SUBMITTED BY THE INCOME TAX OFFICER, WARD I(4) THRO UGH THE JOINT COMMISSIONER OF INCOME TAX, RANGE I, ERODE IN THE O FFICE OF THE COMMISSIONER OF INCOME TAX. PER HIM, THE COMMISSION ER OF INCOME TAX HAS PRINCIPALLY RELIED ON THE SAID REPORT IN DECLIN ING THE ASSESSEES PRAYER FOR REGISTRATION. ON MERITS AS WELL, THE AR HAS CHALLEN GED THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND PRAYED FOR ACCEPTANCE OF APPEAL. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.44 4444 445 55 5/M/ /M/ /M/ /M/12 1212 12 3 4. ON BEHALF OF THE REVENUE, THE DR HAS STRONGLY SU PPORTED THE ORDER OF THE COMMISSIONER OF INCOME TAX AS WELL AS FINDINGS CONTAINED THEREIN AND PRAYED FOR REJECTION OF THE APPEAL. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION ON TH E MATTER AND ALSO PERUSED THE ORDER OF THE COMMISSIONER OF INCOME TAX REFUSING THE REGISTRATION TO THE ASSESSEE UNDER SECTION 12AA REP RODUCED HEREIN ABOVE. A PERUSAL OF THE COMMISSIONER OF INCOME TAX FINDING M AKES IT ABUNDANTLY CLEAR THAT RELIANCE HAS BEEN PLACED ON THE REPORT ( SUPRA), WHEREIN IT HAD BEEN STATED THAT THE ASSESSEES SCHOOL IS ALREADY F UNCTIONING UNDER THE REGISTERED TRUST. IN OUR OPINION, WITHOUT MAKING TH E REPORT AVAILABLE TO THE ASSESSEE, THE COMMISSIONER OF INCOME TAX HAS NOT PR OCEEDED IN ACCORDANCE WITH LAW. WE REITERATE THE SETTLED POSIT ION OF THE ACT THAT IN PROCEEDING UNDER SECTION 12AA OF THE ACT, THE COMMI SSIONER OF INCOME TAX HAS TO PASS THE ORDER BY ACCEPTING OR DECLINING THE REGISTRATION ONLY AFTER GRANTING OPPORTUNITY OF HEARING TO THE CONCERNED AP PLICANT/ASSESSEE. SINCE THE REPORT HAS NOT BEEN MADE AVAILABLE BY THE COMMI SSIONER OF INCOME TAX TO THE ASSESSEE, IN OUR OPINION, THERE IS NO SUBSTA NTIVE COMPLIANCE OF THE LEGISLATIVE INTENT IN PROVIDING OPPORTUNITY OF HEAR ING PER CONCERNED STATUTORY PROVISIONS. FACED WITH THE SITUATION, WE DEEM IT AP PROPRIATE THAT THE COMMISSIONER OF INCOME TAX SHALL DECIDE THE ASSESSE ES CASE AFRESH AFTER ACCORDING ADEQUATE OPPORTUNITY OF HEARING AS WELL A S AFTER FURNISHING COPY OF I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.44 4444 445 55 5/M/ /M/ /M/ /M/12 1212 12 4 THE REPORT TO THE ASSESSEE AND PASS NECESSARY ORDER S IN ACCORDANCE WITH LAW. 6. THE APPEAL STANDS ALLOWED FOR STATISTICAL PURPOS E. ORDER PRONOUNCED ON TUESDAY , THE 18 TH OF SEPTEMBER, 2012 AT CHENNAI. SD/- SD/- (N.S. SAINI) ACCOUNTANT MEMBER (S.S. GODARA) JUDICIAL MEMBER CHENNAI, DATED, THE 18.09.2012 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.