Murshidabad District Digamber Jain Samaj, Murshidabad V. C.I.,T ,Kol - XXI,Kol, Kolkata

ITA 459/KOL/2013

• Counselvise Citation: 45923514 RSA 2013
• Duration Of Justice: 2 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 08-03-2013
• Court: TRIBUNAL
• Department Lawyers: RAJAT SU BHRA BISWAS CIT LD
• Assessee Lawyers: R K PATODI FCA LD
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 80G; 12AA; 10B

Judgement Text

ITA NO.459/KOL/13-A-AM . MURSHDABAD DISTRICT DIGAMBER JAIN SAMAJ 1 IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, K OLKATA BEFORE : SHRI N.V. VASUDEVAN, JUDICIAL MEMBER, AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 459/KOL/2013 A.Y 2009-10 MURSHIDABAD DISTRICT DIGAMBER VS. COMMISSIONER OF INCOME-TAX JAIN SAMAJ KOLKATA-XXI, KOLKATA PAN: AACAM4477A (APPELLANT) (RESPONDENT) FOR THE APPELLANT/ SHRI R.K PATODI, FCA, LD.A R FOR THE RESPONDENT/SHRI RAJAT SU BHRA BISWAS, CIT, LD.DR DATE OF HEARING: 09-12 -2015 DATE OF PRONOUNCEMENT: 16 -12-20 15 ORDER SHRI M.BALAGANESH, AM : THIS APPEAL OF THE ASSESSEE ARISES OUT OF THE ORD ER OF THE CIT , KOL XXI, KOLKATA REJECTING THE CLAIM OF EXEMPTION U/S 80G OF THE INCOME TAX ACT, 1961 VIDE PROCEEDINGS IN M.NO. CIT-KOL-XXI/12A&80G/2012-13/42 90-92 DATED 31.1.2013. 2. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSE SSEE SOCIETY WAS FORMED ON 29.6.2005 AND APPLIED FOR REGISTRATION U/S 12AA OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AND EXEMPTION U/S 80G OF THE ACT. THE LEARNED CIT REJECTED THE APPLICATION SEEKING FOR REGISTRATION U/S 12AA O F THE ACT . AGAINST THIS , THE ASSESSEE HAD PREFERRED AN APPEAL BEFORE THIS TRIBUN AL AND WE ARE INFORMED BY THE LEARNED AR THAT THE SAID APPEAL HAS BEEN DISPOSED O FF IN NOV 2015 IN FAVOUR OF THE ASSESSEE. WITH REGARD TO THE EXEMPTION U/S 80G OF THE ACT, THE LEARNED CIT REJECTED THE APPLICATION ON THE FOLLOWING GROUND:- ITA NO.459/KOL/13-A-AM . MURSHDABAD DISTRICT DIGAMBER JAIN SAMAJ 2 ON PERUSAL OF RECORDS IT IS OBSERVED THAT THE SOCIE TY IS NOT FILING RETURN OF INCOME FOR LAST THREE YEARS. THE SOCIETY HAS ALSO NOT FURNISHED AUDIT REPORT IN FORM 10B AS PER PROVISIONS OF RULE 17B OF THE IT RULES. THEREFORE APPLICATION OF THE SOCIETY IS NOT IN ACCO RDANCE WITH THE RULES. ACCORDINGLY THE PETITION OF EXEMPTION U/S 80G IS RE JECTED. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS B EFORE US:- 1) FOR THAT THE LD. CI.T., KOLKATA-XXI, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, WAS UNJUSTIFIED IN REJEC TING THE APPLICATION MADE BY THE APPELLANT FOR GRANTING IT APPROVAL U/S 80G ( 5) (VI) OF THE INCOME TAX ACT. 2) FOR THAT THE LD. CI.T., KOLKATA-XXI GROSSLY ERR ED IN LAW IN REJECTING THE APPLICATION MADE BY THE APPELLANT FOR GRANT OF APPROVAL U/S 80G (5) (VI) OF THE INCOME TAX ACTON THE GROUNDS THAT 'THE SOCIE TY IS NOT FILING RETURN OF INCOME FOR THE LAST THREE YEARS AND HAS ALSO NOT FU RNISHED AUDIT REPORT IN FORM 10B AS PER PROVISIONS OF THE IT RULES' WHEN TH E ACT AND/OR THE RULES DO NOT PROVIDE FOR AND OR PRESCRIBE SUCH CONDITIONS . 3) FOR THAT WITHOUT PREJUDICE TO THE ABOVE, THE LE ARNED (IT ERRED IN PASSING THE IMPUGNED ORDER REJECTING THE APPLICATIO N MADE BY THE APPELLANT FOR GRANTING IT APPROVAL U/S 80G (5) (VI) OF THE IN COME TAX ACT WITHOUT COMPLYING WITH THE MANDATORY REQUIREMENTS OF THE PR INCIPLES OF NATURAL JUSTICE, AS BEFORE REFUSING SUCH APPROVAL, HE FAILE D IN GIVING THE APPELLANT A REASONABLE OPPORTUNITY OF BEING HEARD, AS REQUIRED UNDER PROVISO TO RULE 11AA (5) OF THE INCOME TAX RULES. 4) FOR THAT THE APPELLANT CRAVES LEAVE TO ALTER, M ODIFY OR AMEND ANY OF THE ABOVE GROUND/S AND TO ADD FURTHER GROUND/S ON O R BEFORE THE FINAL HEARING OF THIS APPEAL. 4. THE LEARNED AR ARGUED THAT THE AUDITED BALANCE SHEETS WERE DULY FILED BEFORE THE LEARNED CIT AND FOR THIS PURPOSE, HE REFERRED T O THE RELEVANT PORTIONS OF THE PAPER BOOK FILED BEFORE US. HE ALSO STATED THAT THE AUDI T REPORT IN FORM 10B COULD BE FILED ITA NO.459/KOL/13-A-AM . MURSHDABAD DISTRICT DIGAMBER JAIN SAMAJ 3 ONLY WHEN THE SOCIETY IS REGISTERED U/S 12AA OF THE ACT AND THAT TOO AT THE TIME OF FILING THE RETURNS. HE FURTHER STATED THAT THE TOT AL INCOME OF THE SOCIETY IN THE EARLIER YEARS IS LESS THAN THE MAXIMUM AMOUNT NOT CHARGEABL E TO TAX AND HENCE THE SOCIETY IS NOT REQUIRED TO FILE ITS RETURNS. HE PRAYED THAT THIS APPEAL MAY BE RESTORED BACK TO LEARNED CIT TO ADJUDICATE AFRESH SINCE THIS TRIBUNA L HAD DIRECTED THE LEARNED CIT TO GRANT REGISTRATION U/S 12AA OF THE ACT BY ITS ORDER IN NOVEMBER 2015. WE FIND FROM THE PAPER BOOK FILED BY THE ASSESSEE THAT THE AUDIT ED BALANCE SHEETS HAD INDEED BEEN FILED BEFORE THE LEARNED CIT ALONG WITH OTHER DETAI LS. WE FIND LOT OF FORCE IN THE ARGUMENTS OF THE LEARNED AR THAT WHEN THE INCOME IS BELOW THE TAXABLE LIMIT, THEN THE SOCIETY CANNOT BE COMPELLED TO FILE ITS RETURNS. W E ALSO HOLD THAT FILING OF AUDIT REPORT IN FORM 10B WOULD ARISE ONLY IN THE EVENT OF SOCIET Y ENJOYING REGISTRATION U/S 12AA OF THE ACT. SINCE THIS TRIBUNAL HAD ALREADY DISPOSED OFF THE APPEAL IN RESPECT OF REGISTRATION U/S 12AA OF THE ACT AND HELD IT IN FAV OUR OF THE ASSESSEE, WE DEEM IT FIT AND APPROPRIATE, IN THE FACTS AND CIRCUMSTANCES, IN THE INTEREST OF JUSTICE AND FAIRPLAY, TO RESTORE THIS APPEAL TO THE FILE OF THE LEARNED C IT TO CONSIDER THE EXEMPTION U/S 80G OF THE ACT IN THE LIGHT OF TRIBUNAL ORDER PASSED IN NOVEMBER 2015 IN RESPECT OF REGISTRATION U/S 12AA OF THE ACT. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRNOUNED IN THE OPEN COU RT ON 16/12/2015 SD/- ( N.V. VASUDEVAN, JUDICIAL MEMBER ) SD/- (M. BALAGANESH, ACCOUNTANT MEMBER) DATE 16/12/2015 ITA NO.459/KOL/13-A-AM . MURSHDABAD DISTRICT DIGAMBER JAIN SAMAJ 4 .1 . THE APPELLANT/ THE SECRETARY, MURSHIDABAD DISTRIC T DIGAMBAR JAIN SAMAJ, STATION ROAD, P.O LALGOLA, DIST: MURSHIDABAD PIN 742306(WB). . 2 THE RESPONDENT/ THE COMMISSIONER OF INCOME TAX, KO LKATA XXI 3 GOVT PL (W), KOL-1. 3 / THE CIT, 4.THE CIT(A) 5 . DR, KOLKATA BENCH 6 . GUARD FILE . TRUE COPY, BY ORDER, ASSTT REGISTRAR **PRADIP/SPS COPY OF THE ORDER FORWARDED TO:-