M/s Umar Alisha Rural Development Trust, Pithapuram, Hyderabad V. The Commissioner of Income Tax, Rajahmundry

ITA 451/VIZ/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 2655 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 10-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SIRI KUMAR
• Assessee Lawyers: R ANANTHA PADMANABHA RAO
• Keywords: Charitable institution
• Section: 80G; 12AA

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NOS. 451/VIZAG/2010 ASSESSMENT YEAR : N.A UMAR ALISHA RURAL DEVELOPMENT TRUST, PITHAPURAM VS. CIT RAJAHMUNDRY (APPELLANT) (RESPONDENT) PAN NO. AAATU 0660 L APPELLANT BY: SHRI R. ANANTHA PADMANABHA RAO, C.A. RESPONDENT BY: SHRI SIRI KUMAR, DR ORDER PER SHRI B R BASKARAN, ACCOUNTANT MEMBER: THE APPEAL OF THE ASSESSEE IS FILED BY ASSAILI NG THE DECISION OF LEARNED CIT IN REJECTING THE APPLICATION SEEKING RECOGNITIO N UNDER SECTION 80G OF THE ACT. IT WAS ALSO BROUGHT TO OUR NOTICE BY THE ASSE SSEE THAT THE ITO (H.QRS.) HAS COMMUNICATED THE ORDER OF REJECTION BY WAY OF A LETTER. 2. WE NOTICE THAT IDENTICAL ISSUE HAS COME UP F OR CONSIDERATION OF THIS BENCH IN THE CASE OF SRI AYYAPPA SEVA SAMITHI, TADE PALLIGUDAM IN ITA NO.376/VIZAG/2010 AND THE DECISION OF THIS BENCH, V IDE ITS ORDER DATED 19-8- 2010 IS EXTRACTED BELOW FOR THE SAKE OF CONVENIENCE . THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE REJECTION OF THE APPLICATION SEEKING REGISTRATION U /S 80G OF THE I.T. ACT. ON CAREFUL PERUSAL OF THE ORDER, WE FIND THAT THE ITO HAS INTIMATED THE ASSESSEE THAT HIS APPLICATION FOR RENEWAL OF EXEMPTION U/S 80G CANNOT BE ENTERTAINED AS THE ASSE SSEE TRUST IS NOT REGISTERED U/S 43(1) OF THE A.P. CHARI TABLE AND HINDU RELIGIOUS INSTITUTION AND ENROLMENT ACT, 1987. WE ARE SURPRISED TO NOTE THAT HOW THE A.O. IN THE O/O THE COMMISSIONER OF INCOME TAX GOT THE JURISDICTION TO T AKE A DECISION ON AN APPLICATION FOR EXEMPTION U/S 80G FI LED BY THE ASSESSEES. IT IS FOR THE COMMISSIONER OF INCOME TAX TO DECIDE THE APPLICATION OF THE ASSESSEE FOR EXEMPTIO N U/S 80G. THE OBSERVATION OF THE ITO THAT THE APPLICATION OF THE ASSESSEES IS NON-ADMISSIBLE IS HIGHLY OBJECTIONABLE AND 2 UNCALLED FOR. WE THEREFORE ADVICE THE COMMISSIONER OF INCOME TAX TO ADJUDICATE THE REQUEST FOR EXEMPTION M OVED BY THE ASSESSEE, HIMSELF AND NOT TO ALLOW HIS SUBOR DINATE TO ENCROACH UPON THE JURISDICTIONS WHICH IS CONFERRED TO HIM. 2. NOW COMING ON MERIT, WE FIND THAT THIS APPLICATI ON FOR EXEMPTION U/S 80G WAS NOT ENTERTAINED ONLY FOR THE REASON THAT ASSESSEE DID NOT HAVE THE REGISTRATION U/S 43( 1) OF THE A.P. CHARITABLE AND HINDU RELIGIOUS INSTITUTION AND ENROLMENT ACT, 1987. WE DO NOT FIND ANY SUCH REQUIREMENT IN THE INCOME TAX ACT WHICH MAKE IT TO BE A CONDITION PRECE DENT FOR THE ASSESSEE FOR GETTING AN EXEMPTION U/S 80G OF TH E ACT. THE REQUIREMENT OF LAW IS THAT THE ASSESSEE SHOULD BE A CHARITABLE SOCIETY AND THIS CAN BE EVIDENCED FROM T HE RECITAL PREPARED BY THE ASSESSEE IN THIS REGARD. BEFORE GR ANTING A REGISTRATION, IT IS FOR THE COMMISSIONER TO VERIFY FROM THE MATERIAL AVAILABLE ON RECORD WHETHER THE SOCIETY OR A TRUST WAS CREATED FOR THE CHARITABLE PURPOSE. WE THEREFO RE, OF THE VIEW THAT REGISTRATION U/S 43(1) OF THE A.P. CHARIT ABLE AND HINDU RELIGIOUS INSTITUTION AND ENROLMENT ACT, 1987 IS NOT REQUIRED BEFORE APPLYING FOR RENEWAL OF EXEMPTION U /S 80G OF THE ACT. WE THEREFORE SET ASIDE THE ORDER OF THE A SSESSING OFFICER PASSED ON BEHALF OF THE CIT AND DIRECT THE CIT TO ADJUDICATE THE ISSUE AFRESH IN THE LIGHT OF RELEVAN T PROVISIONS OF LAW BY PASSING A SPEAKING ORDER. 3. WE ALSO NOTICE THAT THE ITAT, NAGPUR BENCH I N THE CASE OF AGRICULTURAL PRODUCE & MARKET COMMITTEE, TELHARA & ORS. VS. CIT REPORTED IN (2005) 97 TTJ (NAG) 165 HAS EXPRESSED THAT THERE IS NO REQUIR EMENT TO FILE A CERTIFICATE OF REGISTRATION ISSUED BY THE CHARITY COMMISSIONER NOR IS THERE ANY NECESSITY THAT THE INSTITUTION CLAIMING REGISTRATION U/S 12AA SHOULD BE REGISTERED WITH THE CHARITY COMMISSIONER. FOLLOWING THE ABOVE SAID DECISION, THE HYDERABAD BENCH OF ITAT HAS HELD, VIDE ITS ORDER DATED 05-3-2 010 IN THE CASE OF M/S KAMALAKAR MEMORIAL CHARITABLE TRUST, HYDERABAD VS. DIT IN ITA NO.1145/HYD/09 THAT MERE FACT THAT THE ASSESSEE TRU ST IS NOT REGISTERED UNDER THE PROVISIONS OF A.P.CHARITABLE & HINDU RELI GIOUS INSTITUTIONS ENDOWMENT ACT, 1987 SHALL NOT RENDER THE ASSESSEE T RUST AS A NON-CHARITABLE ONE. 4. ACCORDINGLY, CONSISTENT WITH THE VIEW TAKEN IN THE ABOVE CITED CASES, WE SET ASIDE THE ORDER OF THE INCOME TAX OFFICER PASSE D ON BEHALF OF THE CIT AND 3 DIRECT THE CIT TO ADJUDICATE THE ISSUE AFRESH IN TH E LIGHT OF RELEVANT PROVISIONS OF LAW BY PASSING A SPEAKING ORDER. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREA TED AS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON 25-11-2010 SD/- SD/- (SUNIL KUMAR YADAV) (BR BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM, DATED 25-11-2010 COPY TO 1 THE MANAGING TRUSTEE, UMAR ALISHA RURAL DEVELOPME NT TRUST C/O SRI ANANTA PADMANABHA RAO, CHARTERED ACCOUNTANT, PROP. PADMANABHA RAO R. C.AS G - 5 JAMUNA SADAN, MAYURI MARG, BEGUMPET 500 016, HYDE RABAD 2 THE CIT, RAJAHMUNDRY 3 THE DR, ITAT, VISAKHAPATNAM. 4 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM