M/s Om Education Trust, Gohana V. CIT, Rohtak

ITA 4641/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0213 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 08-03-2011
• Assessment Year: misc
• Appeal Filed On: 21-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIYUSH SONKAR SENIOR
• Keywords: Charitable institution; Opportunity of being heard; Set aside
• Section: 143(3); 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.4641/DEL./2010 M/S. OM EDUCATION TRUST, VS. CIT, DELHI ROAD, VILLAGE KHANDRAI, JIND ROAD, ROHTAK. ROHTAK. (PAN : AABTT1842N) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GAUTAM JAIN, CA REVENUE BY : SHRI PIYUSH SONKAR, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT, ROHTAK DATED 23.9.2010. THE GROUNDS OF APPEAL READ AS UNDER :- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX, RO HTAK HAS GROSSLY ERRED, BOTH ON FACTS AND IN LAW IN MAKI NG AN ORDER UNDER SECTION 12AA(1)(B)(II) OF THE ACT DATED 23.09 .2010 DENYING THE REGISTRATION UNDER SECTION 12A OF THE L T. ACT. 2. THAT WHILE DENYING THE AFORESAID REGISTRATION, T HE LEARNED COMMISSIONER OF INCOME TAX, HAS COMPLETELY FAILED T O APPRECIATE THAT THE ASSESSEE TRUST IS A CHARITABLE TRUST UNDISPUTEDLY ENGAGED IN THE PURSUING THE FIELD OF E DUCATION AND, WAS THUS ENTITLED TO REGISTRATION UNDER SECTIO N 12A OF THE INCOME TAX ACT, 1961. IN FACT, DENIAL OF REGISTRATI ON HAS BEEN MADE ON THE BASIS SURMISES, CONJECTURE AND, SUSPICI ON AND, NOT ON THE BASIS OF ANY EVIDENCE TO SHOW THAT, EITHER T HE OBJECTS OF THE APPELLANT ARE NOT CHARITABLE OR ACTIVITIES OF A PPELLANT ARE NOT ITA NO.4641/DEL./2010 2 GENUINE AND THUS REJECTION ON ALTOGETHER EXTRANEOUS CONSIDERATIONS IS ILLEGAL, INVALID AND, NOT IN ACCO RDANCE WITH LAW. 3. THAT THE LEARNED CIT HAS FURTHER ERRED IN REJECT ING THE APPLICATION ON THE GROUND THAT, BOOKS OF ACCOUNTS W ERE NOT PRODUCED BEFORE THE LEARNED OFFICER WHEN AS A MATTE R OF FACT THAT SUCH BOOKS OF ACCOUNTS HAD DULY BEEN PRODUCED BEFOR E HIM AND, ALSO BEFORE THE LEARNED OFFICER ON THE FIRST DATE O F HEARING. 4. THAT THE LEARNED CIT HAS EXCEEDED IN HIS JURISDI CTION TO DENY THE REGISTRATION BY HOLDING THAT APPLICANT HAD FURNISHED THE JUSTIFICATION AND, CREDITWORTHINESS OF THE PERSONS WHO HAD ADVANCED LOANS OF RS.19,99,365/- WHEN AS A MATTER O F FACT SUCH LOANS STOOD ACCEPTED IN ASSESSMENT MADE U/S 143(3) OF THE ACT. 5. THAT THE LEARNED CIT HAS FURTHER ERRED BOTH IN L AW AND ON FACTS IN DENYING THE CLAIM ON THE BASIS THAT, ASSES SEE HAS NOT GIVEN BENEFIT OF FEES CONCESSION AND, HALF FEE CONC ESSION, WHICH FINDING HAS BEEN RECORDED ON THE BASIS OF MERE SURM ISE, CONJECTURE AND SUSPICION AND, IS WITHOUT JURISDICTI ON. 6. THAT THE IMPUGNED ORDER HAS BEEN MADE IN AN ARBI TRARY AND WHIMSICAL MANNER AND THAT TOO WITHOUT GIVING AN Y PROPER OPPORTUNITY OF BEING HEARD TO THE APPELLANT. IN FAC T, THE FINDING THAT, REPORT OF THE LEARNED ADDITIONAL CIT HAD BEEN CONFRONTED TO THE APPELLANT IS ALSO FACTUALLY INCORRECT. IT IS, THEREFORE, PRAYED THAT IT BE HELD THAT THE APPELLANT IS ENTITLED TO REGISTRATION U/S 12A OF THE ACT AND, TH E IMPUGNED ORDER MADE BE HELD AS A NULLITY, WHICH IS IN NOT BA SED ON TRUE APPRECIATION OF THE STATUTORY PROVISIONS OF LAW AND THUS, THE ORDER IS TOTALLY UNTENABLE BOTH ON FACTS AND IN LAW . 2. THE ASSESSEE IS A TRUST. AN APPLICATION FOR REG ISTRATION U/S 12A(1)(AA) OF THE INCOME-TAX ACT WAS FILED BEFORE THE COMMISSI ONER OF INCOME-TAX, ROHTAK. AS CLAIMED, THE ASSESSEE TRUST IS TO IMPAR T EDUCATION BY WAY OF ESTABLISHING SCHOOLS AND ALSO TO ARRANGE AND MANAGE THE TRAINING INSTITUTIONS ITA NO.4641/DEL./2010 3 IN EDUCATION, PARA-MEDICAL EDUCATION, MEDICAL EDUCA TION, TECHNICAL EDUCATION, ETC. 3. AT THE OUTSET OF THE HEARING, THE LEARNED AR SUB MITTED THAT THE ASSESSEE IS RUNNING AN EDUCATIONAL INSTITUTION AND IMPARTING EDUCATION OF B.ED. AND JBT FROM THE PREMISES AT GOHANA, DISTRICT SONEPAT, HARYANA SINCE FINANCIAL YEAR 2008-09. HE SUBMITTED THAT THE CIT HAS MECHAN ICALLY REJECTED THE APPLICATION FOR REGISTRATION. HE ALSO SUBMITTED TH AT THE BOOKS OF ACCOUNTS WERE PRODUCED BEFORE THE ASSESSING OFFICER IN THE F IRST HEARING. HOWEVER, THESE COULD NOT BE PRODUCED ON THE FINAL HEARING IN THE ABSENCE OF ACCOUNTANT DUE TO ILLNESS. HE ALSO SUBMITTED THAT THE CIT MEC HANICALLY RELIED ON THE REPORTS OF THE ASSESSING OFFICER AND ADDL.CIT, COPI ES OF WHICH ARE AVAILABLE AT PAGES 67 TO 68 OF THE PAPER BOOK. IN THIS REPOR T, THE DCIT HAS REPORTED AS UNDER :- .AT PRESENT THE APPLICANT IS RUNNING A BED. COLLE GE & JBT TRAINING INSTITUTION AND THEREFORE, IT IS NOT ACTIN G UPON ITS OTHER AIMS AND OBJECTS EXCEPT TO ARRANGE AND MANAGE IMPAR TING EDUCATION UPTO JBT AND B.ED. LEVEL. IT IS CHARGING ANNUAL FEES OF RS.20000/- PER STUDENT FOR B.ED. COURSE AND RS.4 8000/- PER STUDENT FROM JBT TRAINING COURSE. IT HAS NOT GIVEN BENEFIT OF FEES CONCESSION AND HALF FEE CONCESSION TO THE STUD ENTS. THE AMOUNT FOR THE F.Y. ENDING 31.03.2007, 31.03.2008 A ND 31.03.2009 FILED WITH THE APPLICATION REMAINING UNV ERIFIED BEING NO BOOKS AND BILLS AND VOUCHERS PRODUCED. NO ACCOUNTS FOR THE CURRENT YEAR WERE SUBMITTED. ON THIS BASIS, THE ADDL.CIT FORWARDED THE REPORT OF THE ASSESSING OFFICER TO THE CIT. THEREAFTER, THE ASSESSEE WAS PROVIDED AN OPPORTUNITY TO PRODUCE THE ITA NO.4641/DEL./2010 4 BOOKS OF ACCOUNT, VOUCHERS AND DOCUMENTS VIDE CIT O FFICE LETTER DATED 24.8.2010. IN RESPONSE TO THAT, THE ASSESSEE SUBMI TTED REPLIES DATED 15.9.2010 AND 23.9.2010 IN WHICH DETAILS REGARDING FEE CONCES SION, LOANS AND DONATIONS WERE FILED BEFORE HIM. THE CIT HAS NOT CONSIDERED THE REPLY DATED 23.9.010 WHICH IS AVAILABLE AT PAGE 74 OF THE PAPER BOOK AND HE MECHANICALLY PASSED ORDER WITHOUT CONSIDERING THE ASSESSEES REPLY. 4. ON THE OTHER HAND, THE LEARNED DR RELIED ON THE ORDER OF THE CIT. 5. AFTER HEARING BOTH THE SIDES IN LENGTH, WE ARE O F THE VIEW THAT CIT HAS NOT CONSIDERED THE SUBMISSIONS MADE BY THE ASSESSEE ON 15.9.2010 AND 23.9.2010. THEREFORE, IN THE INTEREST OF JUSTICE A ND EQUITY, WE SET ASIDE THE ISSUE TO THE FILE OF THE CIT FOR DECIDING DE NOVO A ND PASS AN APPROPRIATE ORDER AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 11 TH DAY OF MARCH, 2011. SD/- SD/- (RAJPAL YADAV) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 11 TH DAY OF MARCH, 2011/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT, ROHTAK. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.