Dara Shikoh Turst For the Arts, Jammu V. The Commissioner of Income-tax, Jammu

ITA 460/ASR/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4410 (ITAT-AMRITSAR)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-12-2013
• Assessment Year: misc
• Appeal Filed On: 17-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Charitable institution; Principle of natural justice; Reasonable cause; Competent authority; Condonation of delay
• Section: 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL PAN: AABTD3993N DARA SHIKOH TRUST FOR VS. COMMISSIONER OF INCOME THE ARTS, AMAR MAHAL, TAX, J&K, JAMMU THE PALACE, JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY: SH. P.N. ARORA, ADVOCATE RESPONDENT BY: SH. TARSEM LAL, DR DATE OF HEARING: 02.12.2013 DATE OF PRONOUNCEMENT: 04.12.2013 ORDER PER BENCH 1. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 28.09.2012 PASSED BY LEARNED CIT (J&K), JAMMU, UNDER SECTIONS 12AA(B)(II) OF THE INCOME-TAX ACT, 1961 (I N SHORT THE ACT). 2. AS PER RECORD, THE ASSESSEE HAS FILED THE PRESEN T APPEAL, WHICH IS TIME BARRED BY 15 DAYS. THIS OFFICE, VIDE NOTICE DATED 21.12.2012, ASKED THE ASSESSEE ABOUT THE REASON OF CAUSING THE DELAY OF 15 DAYS IN FILING THE PRESENT APPEAL, BUT THE ASSESSEE HAS NOT FILED ANY APPLICATION FOR 2 I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL CONDONATION OF DELAY. SH. P.N. ARORA, ADVOCATE, LEA RNED COUNSEL FOR THE ASSESSEE, HAS FILED A LETTER DATED 29.11.2013, REQU ESTING FOR CONDONATION OF DELAY. THE CONTENTS OF THE LETTER DATED 29.11.20 13 ARE REPRODUCED AS UNDER: BEFORE, THE INCOME-TAX APPELLATE TRIBUNAL, AMRITSAR BENCH, AMRITSAR. REF: M/S DARASHIKOH TRUST FOR THE ARTS, AMAR MAHAL, THE PALACE, JAMMU (J&K) SUB: APPEAL AGAINST ORDER UNDER SECTION 12AA OF THE INCOME-TAX ACT, 1961. REQUEST FOR CONDONATI ON OF DELAY- SIR, THIS IS A CASE OF TRUST HAVING HEAD OFFICE AT JA MMU AND BRANCH AT SRINAGAR. IN THIS CASE, THERE IS A DELAY OF ABOU T 14 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. AS A MATTER OF FACT, TH E APPEAL WAS GOT PREPARED BY THE COUNSEL AT JAMMU AND WAS SENT TO MS . JYOTSNA SINGH, D/O DR. KARAN SINGH WHO IS THE SOLE TRUSTEE FOR HER SIGNATURES WHO WAS AT THAT TIME IN SRINAGAR AND WAS NOT KEEPING GOOD H EALTH AND WAS CONFINED TO BED AND THESE APPEAL PAPERS WERE LYING IN THE OFFICE AT SRINAGAR. AS SOON SHE RECOVERED FROM THE AILMENT TH E PAPERS WERE GOT SIGNED FROM HER AND FROM SRINAGAR OFFICE THESE PAPE RS WERE SENT TO THE COUNSEL WHO WAS AT JAMMU FOR FILING THE APPEAL BEFO RE THE INCOME-TAX APPELLATE TRIBUNAL, AMRITSAR BENCH, AMRITSAR AND TH E COUNSEL SENT THESE PAPERS TO AMRITSAR. THUS, THERE TOOK PLACE DELAY IN FILING THE APPEAL AND IT IS VERY HUMBLY PRAYED THAT THE DELAY MAY BE COND ONED AS THERE WAS REASONABLE CAUSE AS REFERRED ABOVE. IN VIEW OF THESE CIRCUMSTANCES, IN THE INTEREST OF NATURAL JUSTICE, IT IS HUMBLY PRAYED THAT THE DELAY MAY KINDLY BE CO NDONED. 3 I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL THANKING YOU, YOURS FAITHFULLY, SD/./- [COUNSEL FOR THE APPELLANT] DATED: 29/11/2013 3. AFTER HEARING BOTH THE PARTIES ON THE DELAY OF 1 5 DAYS IN FILING THE PRESENT APPEAL, WE ARE OF THE VIEW THAT THE ASS ESSEE HAD NOT FILED ANY APPLICATION FOR CONDONATION OF DELAY IN SPITE OF NO TICE GIVEN TO THE ASSESSEE BUT ON 29.11.2013, SH. P.N. ARORA, LEARNED COUNSEL FOR THE ASSESSEE, FILED THE APPLICATION FOR CONDONATION OF DELAY BY GIVING VARIOUS REASONS, WHICH IS NOT PERMISSIBLE UNDER THE LAW. CO UNSEL FOR THE ASSESSEE HAS NO AUTHORITY TO FILE SUCH TYPE OF APPLICATION F OR CONDONATION OF DELAY ON THE BASIS OF FACTS, AS MENTIONED ABOVE. IT IS TH E DUTY OF THE ASSESSEE TO FILE APPLICATION FOR CONDONATION OF DELAY ON THE BA SIS OF FACTS. ASSESSEES COUNSEL CAN FILE APPLICATION FOR CONDONATION OF DEL AY, IF THE DELAY IS CAUSED DUE TO COUNSELS CONDUCT; BUT IN THE PRESENT CASE, THE DELAY IN DISPUTE HAS BEEN CAUSED ON THE PART OF ASSESSEE. BU T KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND IN THE INTEREST OF JUSTICE, THE DELAY OF 15 DAYS IS CONDONED AND WE ADMIT THE P RESENT APPEAL FOR HEARING. 4 I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL 4. THE ASSESSEE HAS FILED THE APPLICATION IN FORM N O. 10-A ON 29.03.2012 FOR REGISTRATION UNDER SECTION 12AA OF T HE ACT. AFTER RECEIVING THE APPLICATION FROM THE ASSESSEE, LEARNE D CIT (J&K), JAMMU, ASKED THE CONCERNED ASSESSING OFFICER TO CONDUCT IN QUIRY AND FURNISH HIS REPORT. IN COMPLIANCE OF THE SAME, THE INCOME TAX O FFICER SUBMITTED HIS REPORT ON 17.09.2012, WHICH IS MENTIONED AT PARA NO . 2 (PAGES NO. 1 TO 3) OF THE IMPUGNED ORDER. FOR THE SAKE OF CONVENIENCE, THE SAME IS REPRODUCED AS UNDER: IN THIS CONNECTION, THE REQUISITE REPORT ON THE APP LICATION FOR REGISTRATION U/S 12AA OF THE INCOME TAX ACT, 1961 I S SUBMITTED AS UNDER:- I) AS PER COPY OF TRUST DEED, THE TRUST DEED WAS EX ECUTED ON 29 TH MARCH, 2010 BY MS. JYOTSNA SINGH DAUGHTER OF DR. KA RAN SINGH, THE SETTLER. THE SETTLER HAS SET UP THIS TRU ST FOR CHARITABLE PURPOSES AND IN PURSUANCE OF SUCH DESIRE DELIVERED AN AMOUNT OF RS. 50,000/- FOR THE PURPOSE OF TRUST. IT HAS FURTHER BEEN LAID DOWN THAT THE TRUSTEES SHALL APPL Y THE CAPITAL AND INCOME OF THE TRUST IN OR TOWARDS ANY ONE OR MO RE OF THE FOLLOWING OBJECTS:- A) TO ESTABLISH, RUN AND MANAGE EDUCATIONAL INSTITU TE, SCHOOL, COLLEGES AND VOCATION SCHOOLS/INSTITUTES IN HEALTH AND SALUBRIOUS SURROUNDINGS. B) TO SET UP AND ESTABLISH PROGRAMMES AND CENTERS FOR THE WELFARE OF WOMEN AND CHILDREN. C) TO SET UP AND ASSIST SCHOOLS, TRAINING CENTERS, INSTITUTIONS AND YOUTH HOSTELS AND TO PROVIDE FOR TRAINING OF BO YS AND GIRLS AS WELL AS ADULTS IN EDUCATIONAL AND VOCATION AL PURSUITS WITH SPECIAL EMPHASIS ON THE DEVELOPMENT O F CHARACTER SO AS TO PRODUCE LAW-ABIDING, FEARLESS, H EALTHY AND PATRIOTIC CITIZENS SPECIALLY FOR THE GIRL CHILD . 5 I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL D) TO CREATE SPACE AND PLACE FOR CREATIVE IDEAS AN D TO SET UP CENTERS FOR ARTISTS ION DIFFERENT MEDIUMS ETC. II) BOTH, THE SETTLER AS WELL AS THE TRUSTEE IS ON E AND THE SAME PERSON, NAMELY, MS JYOTSNA SINGH AND THE TRUST DE ED HAS BEEN SIGNED IN PRESENCE OF TWO WITNESSES. THE TRUST DEED HAS NOT BEEN REGISTERED WITH ANY COMPETENT AUTHORITY AS IS EVIDENT FROM THE COPY OF THE TRUST DEED ANNEXED WITH THE AP PLICATION. III) THE TRUST HAS FILED BALANCE SHEET AND INCOME & EXPENDITURE STATEMENTS FOR THE FINANCIAL YEARS 2010-11 AND 2011 -12. THE PERUSAL OF THESE DOCUMENTS REVEALS THAT AS PER BALA NCE SHEET FOR THE YEAR ENDED 31.03.2010, THE CAPITAL FUND HAS BEEN SHOWN AT RS. 5,000/- WHEREAS AS PER THE TRUST DEED, THE TRUSTEE HAS DELIVERED AN AMOUNT OF RS. 50,000/- TOWARDS THE CAPITAL FUND. THE PROFIT AND LOSS ACCOUNT FOR THE SAID YEAR SHOWS THAT THE TRUST HAS RECEIVED GRANT AND DONATION AMOUNTING TO RS. 2,27,817/- AND AFTER DEBITING SOME EXPENSES ON ACCO UNT OF BANK CHARGES, FOOD AND MEALS, SEMINAR AND WORKSHOPS AND TA CONVEYANCE, NET PROFIT HAS BEEN WORKED OUT AT RS. 1 ,20,316/-. IN RESPECT OF BALANCE SHEET AND INCOME & EXPENDITURE S TATEMENT FOR THE YEAR ENDED 31.03.2011, THE DONATION RECEIVE D HAS BEEN SHOWN AT RS. 10,05,480/- AND AFTER DEBITING EXPENSE S OF RS. 7,95,944/- UNDER DIFFERENT HEADS, SURPLUS HAS BEEN REFLECTED AT RS. 2,09,536/-. ON COMPARISON OF THE TWO BALANCE SH EETS, IT IS OBSERVED THAT CLOSING BALANCES OF FIRST YEAR HAVE N OT BEEN REFLECTED IN THE OPENING BALANCE OF THE NEXT YEAR. IV) 2.2 IN ORDER TO VERIFY THE DISCREPANCIES AS POINTED OUT IN THE TRUST DEED AND THE ACCOUNT STATEMENTS ANNEXE D WITH THE COPY OF APPLICATION, A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE VIDE THIS OFFICE LETTER NO. ITO/W-2(1)/JMU /579, DATED 11.09.2012 ALONG WITH THE FOLLOWING DOCUMENTS/BOOKS OF ACCOUNT:- A) BOOKS OF ACCOUNTS OF THE TRUST SINCE CREATION O F THE TRUST TO DATE; B) PROOFS OF FILING OF INCOME TAX RETURNS, IF NOT FILED, PAN OF THE TRUST C) REGISTER OF MEMBERS OF THE TRUST D) MINUTES BOOKS E) COMPLETE DETAILS OF CHARITABLE ACTIVITIES CONDU CTED FROM THE DATE OF CREATION 6 I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL F) ORIGINAL COPY OF INSTRUMENT UNDER WHICH THE TRU ST IS CREATED G) COMPUTATION OF INCOME FROM THE DATE OF CREATION WITH RESPECT TO UTILIZATION OF 85% OF THE RECEIPTS. 2.3 IN RESPONSE TO THE SAID NOTICE, SHRI SOURAV M EHTA, CA ATTENDED ON BEHALF OF THE ASSESSEE TRUST AND FIL ED COPIES OF SOME DOCUMENTS WHICH INCLUDE A COPY OF THE TRUST DE ED, BALANCE SHEET AND INCOME/EXPENDITURE STATEMENTS. DU RING THE COURSE OF PROCEEDINGS, HE WAS SPECIFICALLY ASKED TO : I) PRODUCE POWER OF ATTORNEY; II) WHETHER THE SETTLER AND TRUSTEE CAN BE ONE AND SAME PERSON PARTICULARLY WHEN THERE IS ONLY ONE TRUSTEE; III) WHETHER THE TRUST DEED IS REGISTERED WITH ANY COMPETENT AUTHORITY V) IN THE TRUST DEED THE SETTLER HAS SET APART AN AMOUNT OF RS. 50,000/- WHEREAS IN THE BALANCE SHEET ONLY RS. 5,00 0/- HAS BEEN REFLECTED; VI) TO FURNISH EVIDENCE IN SUPPORT OF THE RECEIPTS AND PAYMENTS AS REFLECTED IN THE BALANCE SHEET/ INCOME & EXPENDITUR E STATEMENT; VII) TO PRODUCE, THE BOOKS OF ACCOUNT, VOUCHERS AN D BANK PASS BOOK VIII) TO IDENTIFY THE PREMISES FROM WHERE THE FUNC TIONS OF THE TRUST ARE BEING CARRIED OUT AND ALSO THE PARTICULARS OF T HE EMPLOYEES WHO ARE LOOKING AFTER THE AFFAIRS OF THE TRUST. 5. LEARNED CIT (J&K), JAMMU, HAS COMMUNICATED THE S AID REPORT OF ASSESSING OFFICER TO THE ASSESSEE AND IN RESPONS E TO THE SAME, THE CHARTERED ACCOUNTANT OF THE ASSESSEE HAS FILED HIS REPLY, WHICH THE LEARNED CIT (J&K), JAMMU, HAS REPRODUCED AT PARA NO . 2.3.2. (PAGES NO. 3 & 4) OF THE IMPUGNED ORDER. THE SAME IS REPRODUCE D AS UNDER: IN RESPONSE TO ALL THESE QUERIES, THE CHARTERED ACC OUNTANT STATED IN HIS REPLY THAT:- A) THE POWER OF ATTORNEY IS TO BE OBTAINED FROM TH E TRUSTEE WHO IS PRESENTLY AT DELHI. HOWEVER, AS PER HER TELEPHONIC INSTRUCTIONS HE ATTENDED THE OFFICE ALONG WITH THE DOCUMENTS MADE A VAILABLE TO HIM. 7 I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL B) IN RESPONSE TO QUERY (II) ABOVE, HE STATED THAT AS PER HIS KNOWLEDGE IT IS NOT NECESSARY THAT TRUSTEE SHOULD BE MORE THAN O NE EVEN IF THE SETTLER AND TRUSTEE IS ONE AND THE SAME PERSON; C) TO QUERY (III), HE CLARIFIED THAT THE TRUST DEE D IS REGISTERED WITH THE SUB-REGISTER IV AND FILED A COPY OF THE REGISTRATI ON PAGE IN SUPPORT OF HIS REPLY; D) IN RESPONSE TO QUERY (IV) IT WAS CLARIFIED BY H IS THAT THE SETTLER HAS ONLY INTRODUCED RS. 5,000/- AS REFLECTED IN THE BAL ANCE SHEET AND NOT RS. 50,000/- AS SHOWN IN THE TRUST DEED; E) THE REPRESENTATIVE OF THE TRUSTEE IN RESPONSE T O QUERY (V) FILED A COPY OF THE BANK STATEMENT WHICH SHOWS THAT THE BANK ACC OUNT HAS BEEN OPENED WITH CANARA BANK, SRINAGAR CURRENT ACCOUNT B O. 2064. REGARDING OTHER BILLS/VOUCHERS, HE PRODUCED A VOUCH ER FILE CONTAINING DIFFERENT VOUCHERS OF EXPENSES BUT HE WAS UNABLE TO SEGREGATE THEM HEAD-WISE AND INTIMATED THAT HE REQUIRES FURTHER TI ME TO SEGREGATE THEM AND ONLY THEN HE WILL BE IN A POSITION TO FILE ; F) IN RESPONSE TO QUERY (VI) REGARDING BOOKS OF AC COUNT, HE FILED PRINT OUT OF CASH BOOK IN RESPECT OF F.Y. 2009-10 AND IN RESPECT OF 2010-11 HE STATED THAT THE SAME IS LYING AT SRINAGAR; G) REGARDING FUNCTIONING OF OFFICE, THE REPRESENTA TIVE OF THE ASSESSEE STATED THAT THE REGISTERED OFFICE IS AT AMAR MAHAL, JAMMU AND THE BRANCH OFFICE IS AT SRINAGAR. 6. AUTHORITY CONCERNED HAS ALSO MADE A LOCAL INQUIR Y ON THE ISSUE IN DISPUTE THROUGH THE INSPECTOR OF THE INCOME TAX OFFICE, WHO HAS ALSO GIVEN HIS REPORT, WHICH THE LEARNED CIT (J&K), JAMM U, HAS REPRODUCED AT PARA NO. 2.3 (PAGE 4). THE SAME IS REPRODUCED AS UN DER: 2.3 LOCAL ENQUIRIES HAVE ALSO BEEN GOT CONDUCTED THROUGH THE INSPECTOR OF THIS OFFICE, WHO HAS REPORTED AS UNDER :- AS PER YOUR INSTRUCTIONS, I VISITED THE ABOVE MENT IONED ADDRESS FOR MAKING SPOT ENQUIRIES ON 11.09.2012. THERE WAS NO S IGN BOARD OF THE TRUST IN THE PREMISES. THERE IS NO OFFICE OF THE TR UST AT THE MENTIONED ADDRESS AND NO OFFICE STAFF WAS PRESENT. MR. R.S. PATHANIA, WHO IS THE MANAGER OF THE AMAR M AHAL MUSEUM WAS PRESENT AT THE ADDRESS WHO TOLD THAT THERE IS O NLY ONE TRUSTEE- 8 I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL CUM-MANAGER OF THE TRUST, MRS. JYOTSNA SINGH AND SH E HAS GONE TO SRINAGAR FOR A WEEK. 7. LEARNED CIT (J&K), JAMMU, CONSIDERED ALL SUBMISS IONS OF THE ASSESSEE ALONG WITH REPORT OF THE ASSESSING OFFICER , AND FORMED AN OPINION THAT THE ASSESSEE-TRUST IS ONLY ONE MAN SH OW AND IN THE ABSENCE OF ANY PLAUSIBLE EVIDENCE, ASSESSEE-TRUST CANNOT BE TREATED AS A GENUINE TRUST AND THUS NOT ENTITLED FOR REGISTRATION UNDER SECTION 12AA OF THE ACT. HE ISSUED A NOTICE DATED 20.09.2012 TO THE ASSESSEE CALLING FOR BOOKS OF ACCOUNT, DETAILS OF ACTIVITIES OF THE TRUST/ASSOCIA TION ALONG WITH MANY OTHER DOCUMENTARY EVIDENCES TO PROVE THE GENUINENES S OF ACTIVITIES OF THE ASSESSEE-TRUST. PRIMA FACE, THE OPINION FORMED BY L EARNED CIT (J&K), JAMMU, ON THE BASIS OF REPORT OF THE ASSESSING OFFI CER AS WELL AS THE REPLY AND REJOINDER OF THE ASSESSEE IS AT PARAS NO. 3.1, 3.2 & 3.3 (PAGES NO. 4 TO 6), WHICH ARE REPRODUCED AS UNDER: 3.1 ON PERUSAL OF THE RECORDS/DOCUMENTS FILED DURI NG THE COURSE OF THE HEARING, IT IS OBSERVED THAT THE REPRESENTATIVE OF THE ASSESSEE HAS FAILED TO FILE THE POWER OF ATTORNEY. HE FILED ONLY A FEW PAPERS WHICH TOO ARE NOT AUTHENTICATED BY ANY PERSON. NO BOOKS OF AC COUNT HAVE BEEN PRODUCED EXCEPT A PRINT OUT FOR THE PERIOD FROM 01. 04.2009 TO 31.08.2009 AND THAT TOO HAS NOT BEEN AUTHENTICATED BY ANY PERS ON NOR THE ENTRIES MADE THEREIN COULD BE CROSS VERIFIED WITH THE VOUCH ERS. THE REPRESENTATIVE OF THE ASSESSEE EVEN FAILED TO PRODU CE THE ORIGINAL TRUST DEED SO THAT GENUINENESS OF THE SAID DOCUMENT COULD HAVE BEEN VERIFIED. THE REPRESENTATIVE OF THE ASSESSEE FILED A PHOTO CO PY OF THE TRUST DEED WHICH SHOWS THAT THE SAID DEED HAS BEEN REGISTERED BEFORE SUB-REGISTRAR IV (2 ND ADDL. MUNSIFF), JAMMU ON 29.03.2010 BUT IS AUTHENT ICITY COULD 9 I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL NOT BE VERIFIED AS THE ASSESSEE FAILED TO PRODUCE T HE ORIGINAL DOCUMENTS. A COPY OF THE PAN CARD HAS BEEN FILED AND ACCORDING TO WHICH ASSESSEE HAS BEEN ALLOTTED PAN: AABTD2993N. 3.2 AS PER THE INCOME/EXPENDITURE STATEMENT AND BA LANCE SHEET FILED ALONG WITH THE APPLICATION FOR REGISTRATION I T IS OBSERVED THAT TOTAL GRANT AND DONATION HAS BEEN REFLECTED AT RS. 2,27,8 17/- AND AFTER DEBITING EXPENDITURE OF RS. 1,07,501/- ON ACCOUNT OF BANK CH ARGES, FOOD & MEALS, SEMINAR AND WORKSHOP AND TA & CONVEYANCE, THE NET P ROFIT HAS BEEN REFLECTED AT RS. 1,20,316/- WHICH HAS BEEN SHOWN ON THE LIABILITY SIDE OF THE BALANCE SHEET UNDER THE HEAD SUSPENSE ACCOUNT . WHEN THE REPRESENTATIVE OF THE ASSESSEE ATTENDED BEFORE THE UNDERSIGNED HE FILED ANOTHER COPY OF INCOME/EXPENDITURE STATEMENT AND BA LANCE SHEET FOR THE YEAR ENDED 31.03.2010 AND AS PER SAID STATEMENT, TO TAL DONATION HAS BEEN REFLECTED AT RS. 2,27,817/- AND EXPENSES DEBITED HA VE BEEN CLAIMED AT RS. 2,22,801/- THEREBY CREATING SURPLUS OF RS. 5,01 6/-, WHICH HAS BEEN CREATED TO CAPITAL FUND IN THE BALANCE SHEET. SIMIL ARLY IN RESPECT OF INCOME/EXPENDITURE STATEMENT AND BALANCE SHEET FOR THE YEAR ENDED ON 31.03.2011, THE TOTAL DONATION HAS BEEN REFLECTED A T RS. 10,05,480/- AND AFTER DEBITING EXPENSES OF RS. 7,95,944/- SURPLUS H AS BEEN SHOWN AT RS. 2,09,536/- WHICH HAS BEEN CREDITED TO CAPITAL FUND. HOWEVER, NO DISCREPANCY HAS BEEN NOTICED IN THE BALANCE SHEET F ILED DURING THE COURSE OF HEARING IN RESPECT OF THE YEAR ENDED ON 31.03.20 11. AS ALREADY POINTED OUT, THE REPRESENTATIVE OF THE ASSESSEE COULD NOT P RODUCE THE ORIGINAL BOOKS OF ACCOUNT AS SUCH, THE AUTHENTICITY OF THESE ACCOUNTS COULD NOT BE VERIFIED. MOREOVER, THE REPRESENTATIVE OF THE ASSES SEE ALSO FAILED TO PROVIDE THE PARTICULARS OF THE PERSONS FROM WHOM DO NATION HAS BEEN RECEIVED AND EVIDENCE IN SUPPORT OF THE EXPENDITURE MADE. THEREFORE, THE GENUINENESS OF THE INCOME/EXPENDITURE COULD NOT BE VERIFIED. 3.3 IT IS FURTHER OBSERVED THAT THE TRUST AS PER T HE TRUST DEED HAS BEEN CREATED ON 29.03.2010 AND APPLICATION FOR REGI STRATION OF THE TRUST HAS BEEN FILED ON 29.03.2012 WHEREAS AS PER THE PRO VISIONS OF SECTION 12A(1)(A) OF THE INCOME TAX ACT, 1961, THE ASSESSEE WAS REQUIRED TO FILE THE APPLICATION FOR REGISTRATION ON THE TRUST IN TH E PRESCRIBED FROM BEFORE THE EXPIRY OF A PERIOD OF ONE YEAR FROM THE DATE OF THE CREATION OF THE TRUST. THUS THE APPLICATION FILED BY THE ASSESSEE I S ALSO NOT WITHIN THE PRESCRIBED TIME. THE REPRESENTATIVE OF THE ASSESSEE COULD NOT CONFIRM AS 10 I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL TO WHETHER THE RETURNS OF INCOME HAVE BEEN FILED FO R YEARS IN RESPECT OF WHICH SAME WERE DUE. 4. TAKING INTO CONSIDERATION ALL THE ABOVE FACTS IT IS OBSERVED THAT THE GENUINENESS OF THE TRUST COULD NOT BE VERI FIED IN THE ABSENCE OF REQUISITE DOCUMENTS. IT COULD ALSO NOT BEEN VERIFIE D EVEN AFTER MAKING LOCAL ENQUIRIES FROM WHERE THE ACTIVITIES OF THE TR UST ARE BEING CARRIED OUT. HOWEVER, THE LOCAL ENQUIRIES MADE ONLY REVEAL THAT IT IS ONE MAN SHOW RUN BY MS. JYOTSNA SINGH WHO IS SOLE SETTLE, SOLE T RUSTEE AND SOLE EXECUTIVE OF THE AIMS AND OBJECTIVES OF THE TRUST A LTHOUGH IN THE TRUST DEED VIDE CLAUSE-5 IT HAS BEEN PROVIDED THAT THE MA NAGEMENT OF THE TRUST SHALL VEST IN THE BOARD OF TRUSTEES AND IT HAS FURT HER BEEN PROVIDED UNDER SUB-CLAUSE (I), (II), (III) AND (IV) OF THE SAID C LAUSE-5 OF THE TRUST DEED THAT BOARD SHALL HAVE POWERS TO NOMINATE ADDITIONAL TRUS TEES, BOARD OF TRUSTEES SHALL FORM DIFFERENT COMMITTEES, THE QUORU M AT THE MEETING OF TRUSTEE SHALL BE 50% OF THE TOTAL MEMBERS OF TRUSTE ES OR TWO, THE TRUSTEES MAY NOMINATE PATRONS ETC. BUT FROM THE INFORMATION/ EVIDENCE GATHERED IT REVEALS THAT ALL THESE CLAUSES OF THE TRUST DEED HA VE BEEN DEFEATED AS NO SUCH BOARD HAS BEEN CONSTITUTED. THIS FURTHER STREN GTHENS THE ARGUMENT THAT IT IS ONLY ONE MAN SHOW AND IN THE ABSENCE OF ANY PLAUSIBLE EVIDENCE BROUGHT ON RECORD IT CANNOT BE TREATED AS A GENUINE TRUST. THEREFORE, CASE OF THE ASSESSEE IS NOT RECOMMENDED FOR GRANT OF REG ISTRATION U/S 12AA OF THE INCOME TAX ACT, 1961. 8. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EVIDENCE FILED BY THE ASSESSEE FOR GRANT OF REGISTRATION UNDER SEC TION 12AA OF THE ACT AS SUCH; HE HAS NOT RECOMMENDED THE ASSESSEE FOR GRANT OF REGISTRATION. LEARNED CIT (J&K), JAMMU, ISSUED A NOTICE DATED 20. 09.2012 TO THE ASSESSEE CALLING FOR BOOKS OF ACCOUNT, DETAILS OF A CTIVITIES OF THE TRUST/ASSOCIATION, COPIES OF RETURNS OF INCOME FILE D AND DETAILS OF EXPENDITURE INCURRED ON THE CHARITABLE ACTIVITIES, BUT THE ASSESSEE HAS NOT FILED SUCH DOCUMENTARY EVIDENCES, AS REQUIRED BY LE ARNED CIT (J&K), 11 I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL JAMMU. AND IN THE ABSENCE OF THESE DOCUMENTARY EVID ENCES SUPPORTING THE VERSION OF ASSESSEE, LEARNED CIT (J&K), JAMMU, REFUSED TO GRANT REGISTRATION UNDER SECTION 12AA(B)(II) OF THE ACT T O THE ASSESSEE AND PASSED THE IMPUGNED ORDER. NOW, THE ASSESSEE BEING AGGRIEVED WITH THE IMPUGNED ORDER, FILED THE PRESENT APPEAL. 9. AT THE TIME OF HEARING, SH. P.N. ARORA, LEARNED COUNSEL FOR THE ASSESSEE, STATED THAT LEARNED CIT (J&K), JAMMU, IN A HURRY MANNER HAS PASSED THE IMPUGNED ORDER WITHOUT APPLYING HIS MIND AND WITHOUT GIVING ANY REASONABLE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD AS THE CASE WAS GOING TO BE TIME BARRED. HE FURTHER STATED THAT COU NSEL FOR THE ASSESSEE HAS PRODUCED BOOKS OF ACCOUNT BEFORE LEARNED CIT (J &K), JAMMU, WHO HAS PASSED THE IMPUGNED ORDER WITHOUT GIVING OPPORT UNITY TO THE ASSESSEE. HE ALSO STATED THAT LEARNED CIT (J&K), JA MMU, HAS FAILED TO APPRECIATE THAT HE HAS TO EXAMINE THE OBJECT OF THE TRUST AND NOT THE APPLICATION OF FUNDS IN VIEW OF VARIOUS DECISIONS R ENDERED BY HON'BLE PUNJAB & HARYANA HIGH COURT; ONE OF THE CASE IS COM MISSIONER OF INCOME TAX VS. SURYA EDUCATIONAL & CHARITABLE TRUST , REPORTED IN (2011) 203 TAXMAN 53 (P&H); SECONDLY, THE DECISION OF I.T.A.T., AMRITSAR BENCH, AMRITSAR IN THE CASE OF M/S DIVINE HEALTH SERVICES FOUNDATION, AMRITSAR VS. COMMISSIONER OF INCOME TAX -II, AMRITSAR; 12 I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL PASSED IN I.T.A. NO. 417(ASR)/2010, DATED 07.06.201 2. AT LAST, HE REQUESTED THAT THE IMPUGNED ORDER PASSED BY LEARNED CIT (J&K), JAMMU, MAY BE CANCELLED BY ACCEPTING THE APPEAL FILED BY T HE ASSESSEE. 10. ON THE CONTRARY, LEARNED DR RELIED UPON THE ORDE R PASSED BY LEARNED CIT (J&K), JAMMU, AND STATED THAT SUFFICIEN T OPPORTUNITY HAS BEEN GIVEN TO THE ASSESSEE BUT IT HAS NOT FILED ANY DOCUMENTARY EVIDENCE BEFORE LEARNED CIT (J&K), JAMMU. THEREFORE, THE IMP UGNED ORDER IS LEGAL AND THE SAME MAY BE UPHELD. 11. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US AND WE ARE OF THE VIEW THAT THE A SSESSEE FILED ITS APPLICATION IN FORM 10-A ON 29.03.2012 FOR REGISTRA TION UNDER SECTION 12AA OF THE ACT. AS PER THE PROVISIONS OF SECTION 1 2A OF THE ACT, BEFORE GRANTING THE REGISTRATION, THE COMMISSIONER IS REQU IRED TO SATISFY HIMSELF ABOUT THE GENUINENESS OF ACTIVITIES OF THE TRUST/SO CIETY AND CAN CALL FOR ANY DOCUMENTARY EVIDENCE OR INFORMATION FROM THE AS SESSEES TRUST AS HE THINGS NECESSARY. LEARNED CIT (J&K), JAMMU, MAY ALS O MAKE SUCH INQUIRY AS HE DEEMS NECESSARY IN THIS BEHALF. HE HA S DONE SO AND SOUGHT NECESSARY INQUIRY FROM THE ASSESSING OFFICER AND TH E ASSESSING OFFICER AFTER DETAILED INQUIRY, SUBMITTED HIS REPORT DATED 17.09.2012, IN WHICH HE HAS DISCUSSED ABOUT THE ACTIVITIES OF THE ASSESSEE- TRUST, WHICH WE HAVE 13 I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL REPRODUCED IN THE AFORESAID PARAGRAPHS AND LEARNED CIT (J&K), JAMMU, HAS REPRODUCED IN PARA NO. 2 (PAGES NOS. 1 TO 3) OF THE IMPUGNED ORDER. OPPORTUNITY OF REBUTTAL OF THE INQUIRY CONDUCTED BY ASSESSING OFFICER HAS ALSO BEEN GIVEN BY LEARNED CIT (J&K), JAMMU, TO THE ASSESSEE AND THE LEARNED CHARTERED ACCOUNTANT OF THE ASSESSEE HAS AL SO GIVEN HIS REPLY TO THE REPORT OF ASSESSING OFFICER, WHICH LEARNED CIT (J&K), JAMMU, HAS REPRODUCED IN THE IMPUGNED ORDER AT PARA NO. 2.3.2 (PAGES NO. 3 & 4), AS STATED ABOVE. 12. LEARNED CIT (J&K), JAMMU, HAS ALSO CONDUCTED INQ UIRY FROM THE INSPECTOR OF THE DEPARTMENT, WHO HAS CONDUCTED THE SPOT INQUIRY BY VISITING THE SPOT ON 11.09.2012 AND FOUND THAT THER E WAS NO SIGNBOARD OF THE TRUST IN THE PREMISES AND EVEN THERE WAS NO OFF ICE AND OFFICE STAFF. LEARNED CIT (J&K), JAMMU, HAS MENTIONED THESE FACTS IN THE IMPUGNED ORDER AT PARA NO. 2.3 (PAGE NO. 4). 13. AFTER PERUSING THE AFORESAID FACTS AND CIRCUMST ANCES OF THE PRESENT CASE, WE ARE OF THE VIEW THAT LEARNED CIT ( J&K), JAMMU, HAS GIVEN ADEQUATE OPPORTUNITY TO THE ASSESSEE TO ANSWE R THESE NEGATIVE REPORTS BY ISSUING A NOTICE DATED 20.09.2012 AND TO PRODUCE BOOKS OF ACCOUNT, DETAILS OF ACTIVITIES OF THE TRUST/ASSOCIA TION, COPIES OF RETURN OF INCOME FILED AND DETAILS OF EXPENDITURE INCURRED ON THE CHARITABLE 14 I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL ACTIVITIES. LEARNED CIT (J&K), JAMMU, HAS ASKED FOR THESE DOCUMENTARY EVIDENCES ONLY TO SATISFY HIMSELF ABOUT THE GENUINE NESS OF THE ACTIVITIES OF THE ASSESSEE-TRUST FOR WHICH THE ASSESSEE HAS FA ILED TO PRODUCE SUCH DOCUMENTARY EVIDENCES, INCLUDING THE BOOKS OF ACCOU NT. IN THE ABSENCE OF SUCH DOCUMENTARY EVIDENCES, AS REQUIRED BY LEARNED CIT (J&K), JAMMU, IT IS NOT POSSIBLE FOR HIM TO FORM AN OPINION OR FE EL SATISFY ABOUT THE GENUINENESS OF ACTIVITIES OF THE ASSESSEE-TRUST. TH US, NO ALTERNATIVE IS LEFT WITH LEARNED CIT (J&K), JAMMU, BUT ONLY TO REJECT T HE APPLICATION OR REFUSE THE REQUEST OF THE ASSESSEE FOR GRANTING THE REGISTRATION UNDER SECTION 12AA OF THE ACT BY PASSING THE IMPUGNED ORD ER. 14. THE CASE LAWS CITED BY LEARNED COUNSEL FOR THE A SSESSEE ARE NOT APPLICABLE ON THE FACTS AND CIRCUMSTANCES OF THE PR ESENT CASE BECAUSE IN THE PRESENT, DESPITE DIRECTION OF ASSESSING OFFICER AS WELL AS LEARNED CIT (J&K), JAMMU, THE ASSESSEE HAS NOT FILED ANY DOCUME NTARY EVIDENCE TO SATISFY LEARNED CIT (J&K), JAMMU, ABOUT THE GENUIN ENESS OF ACTIVITIES OF THE ASSESSEE-TRUST. THEREFORE, THE CASE LAWS RELIED UPON BY ASSESSEES COUNSEL IS OF NO HELP TO THE ASSESSEE. 15. KEEPING IN VIEW THE AFORESAID DISCUSSION, WE ARE OF THE VIEW THAT LEARNED CIT (J&K), JAMMU, HAS PASSED A WELL RE ASONED ORDER, WHICH REQUIRES NO INTERFERENCE. ACCORDINGLY, WE DISMISS T HE APPEAL FILED BY THE 15 I.T.A. NO. 460(ASR)/2012 ASSESSMENT YEAR: NIL ASSESSEE AND UPHOLD THE IMPUGNED ORDER DATED 28.09. 2012 PASSED BY LEARNED CIT (J&K), JAMMU. 16. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH DECEMBER, 2013 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 4 TH DECEMBER, 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: DARA SHIKOH TRUST FOR THE ARTS, AMAR MAHAL, THE PALACE, JAMMU 2. THE CIT, J&K, JAMMU 3. THE SR DR, I.T.A.T., ASR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.