PARAS PRERNA TRUST, MUMBAI V. DIT(E), MUMBAI

ITA 4648/MUM/2012

• Counselvise Citation: 464819914 RSA 2012
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 10-07-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S D SRIVASTAVA
• Assessee Lawyers: FIROZ ANDHYARJINA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 80G; 12AA

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C MUMBAI . . , / !' , # $ % BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER . / ITA NO. 4648/MUM/2012 ' ' ' ' / ASSESSMENT YEAR 2012-2013 PARAS PRERNA TRUST, C/O. P.M. CONSULTANCY SERVICES, 102, OSIA FRIENDSHIP, 51,GAOTHAN LANE NO.4, OFF. J.P.ROAD, OPP. RAM MANDIR, ANDHERI (WEST), MUMBAI 400058 / VS. THE DIRECTOR OF INCOME TAX (EXEMPTION), MUMBAI. ( # ./ )* ./ PAN/GIR NO. : AABTP5594K ( (+ / APPELLANT ) .. ( ,-(+ / RESPONDENT ) APPELLANT BY SHRI FIROZ ANDHYARJINA, RESPONDENT BY : SHRI S.D.SRIVASTAVA . /# / DATE OF HEARING : 23/09//2013 01' . /# / DATE OF PRONOUNCEMENT : 23/09/2013 2 / O R D E R PER I.P.BANSAL, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER PASSED BY DIRECTOR OF INCOME TAX (EXEMPTION) [DIT(E )] MUMBAI DATED 30/5/2012 UNDER THE PROVISIONS OF SECTION 80G OF T HE INCOME TAX ACT, 1961(THE ACT). GROUNDS OF APPEAL READ AS UNDER: . / ITA NO. 4648/MUM/2012 ' ' ' ' / ASSESSMENT YEAR 2012-2013 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME TAX (EXEMPTION) HAS ERRED IN REJECTING TH E APPLICATION U/S 80G OF THE INCOME TAX ACT 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED COMMISSIONER OF INCOME TAX (EXEMPTION) HAS ERRED IN NOT CONSIDERING THE SUBMISSIONS MADE BY THE TRUST VIDE ITS LETTER DATED 04.05.2012. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED COMMISSIONER OF INCOME TAX (EXEMPTION) HAS ERRED IN NOT SEEKING THE ASSESSMENT PARTICULARS OF THE DONORS AS REQUESTED BY THE TRUST VIDE ITS LETTE R DATED 07.03.2012 AND 04.05.2012 RESPECTIVELY. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED COMMISSIONER OF INCOME TAX (EXEMPTION) HAS ERRED IN VIOLATING THE P RINCIPLE OF NATURAL JUSTICE BY NOT GIVING THE TRUST ANY OPPORTUNITY OF ( BEING HEA RD IN PERSON BEFORE REJECTING THE APPLICATION U/S 80G. 2. IN THE PRESENT CASE REGISTRATION UNDER SECTION 1 2AA HAS BEEN GRANTED TO THE ASSESSEE TRUST VIDE ORDER DATED 19/9/2011 W.E.F . 24/08/2009 IN AN ORDER PASSED FOR GIVING EFFECT TO ITAT ORDER. A COPY OF THIS ORDER IS PLACED AT PAGE 74 OF THE PAPER BOOK. VIDE APPLICATION DATED 15/11/20 11 THE ASSESSEE ALSO SOUGHT REGISTRATION UNDER SECTION 80G OF THE ACT WH ICH HAS BEEN CONSIDERED BY THE AFOREMENTIONED ORDER DATED 30/5/2012 AND THE A PPLICATION FILED BY THE ASSESSEE HAS BEEN REJECTED MAINLY ON THE GROUND THA T ASSESSEE DID NOT INCUR ANY EXPENDITURE ON THE OBJECT AND DETAILS HAVE NOT BEEN FILED IN RESPECT OF DONATION RECEIVED ABOVE RS.50,000/-. AS AGAINST TH AT IT IS THE CASE OF THE CASE OF THE ASSESSEE THAT DETAILED SUBMISSIONS WERE MADE BEFORE LD. DIT(E) AND WITHOUT CONSIDERING AND APPRECIATING THOSE DETAILS LD. DIT(E) HAS TURNED DOWN THE REQUEST OF THE ASSESSEE FOR REGISTRATION UNDER SECTION 80G. IT IS FURTHER THE CASE OF LD. AR THAT ACCORDING TO FOLLOWING DECISION S THE SCOPE OF ENQUIRY IS LIMITED AND AS REGISTRATION UNDER SECTION 12AA HAS ALREADY BEEN GRANTED, LD. DIT(E) HAS WRONGLY DENIED REGISTRATION UNDER SECTIO N 80G ON THE GROUND WHICH ARE NOT RELEVANT FOR GRANT OF REGISTRATION UNDER SE CTION 80G. 1- SONIPAT HINDU EDUCATIONAL AND CHARITABLE SOCIET Y VS. CIT , 278 ITR 262 (P&H) IN WHICH IT HAS BEEN HELD THAT WHILE DEALING WITH THE APPLICATION UNDER . / ITA NO. 4648/MUM/2012 ' ' ' ' / ASSESSMENT YEAR 2012-2013 3 SECTION 80G(5), THE SCOPE OF ENQUIRY BY THE CIT EXT ENDS TO ELIGIBILITY OF THE APPLICANT OF EXEMPTION UNDER VARIOUS PROVISIONS RE FERRED TO IN THAT SUB-SECTION BUT NOT TO ACTUAL COMPUTATION OF INCOME UNDER THE ACT; REGISTRATION OF INSTITUTION UNDER SECTION 12AA BY ITSELF IS A SUFFI CIENT PROOF THAT THE INSTITUTION IS CREATED OR ESTABLISHED FOR CHARITABLE OR RELIGI OUS PURPOSE. 2- GANJAM NAGAPPA SON TRUST VS. DCIT, 269 ITR 59 ( KAR). IN THIS CASE THE TRUST WAS REGISTERED UNDER SECTION 12AA AND ITS REQ UEST FOR RENEWAL OF RECOGNITION UNDER SECTION 80G WAS TURNED DOWN AND I T WAS FOUND THAT TRUST HAD INDULGED IN SEVERAL ACTIVITIES FOR FURTHERING I TS BUSINESS INTEREST AND AUTHORITY WAS NOT SATISFIED THAT ANY CHARITABLE ACT IVITIES WERE BEING CARRIED ON BY THE TRUST. THE ORDER PASSED BY THE AUTHORITY RE JECTING SUCH APPLICATION WAS CONSIDERED TO BE A WELL REASONED ORDER AND WAS UPHE LD. 3- SAHIKAHAN PRARAK MANDALI VS. CIT, 117 TTJ (PUNE ) 337, WHEREIN IT HAS BEEN HELD THAT IT CANNOT BE OPEN TO CIT TO REJECT A PPROVAL UNDER SECTION 80G ONLY ON THE GROUND THAT IT IS NOT CONCLUSIVELY EST ABLISHED NOW THAT THE ASSESSEE WILL BE FINALLY ELIGIBLE IN FUTURE FOR E XEMPTION UNDER SECTION 11,12 AND 10(23AA) AND 10(23C) OF THE ACT. THE CONDITION S HAVING BEEN EFFECTIVELY SATISFIED CIT WAS NOT JUSTIFIED IN DENYING APPROVAL UNDER SECTION 80G. 3. IT WAS PLEADED BY LD. AR THAT THE SCOPE OF ENQU IRY WHILE DECIDING APPLICATION UNDER SECTION 80G IS LIMITED, THEREFORE , THE APPLICATION FILED BY THE ASSESSEE SHOULD BE ACCEPTED AND THE APPEAL FILED BY THE ASSESSEE SHOULD BE ALLOWED. 4. ON THE OTHER HAND, IT WAS SUBMITTED BY LD. DR T HAT ASSESSEE DID NOT SUBMIT THE DETAILS ASKED FOR BY LD. DIT(E). IT IS THEREFORE, THE APPLICATION FILED BY THE ASSESSEE HAS BEEN REJECTED. HE, THEREFORE, PLEADED THAT ASSESSEE IS NOT ENTITLED TO GET REGISTRATION UNDER SECTION 80G. 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. DURING THE COURSE OF HEARING THOU GH LD. AR HAS REFERRED TO . / ITA NO. 4648/MUM/2012 ' ' ' ' / ASSESSMENT YEAR 2012-2013 4 VARIOUS DOCUMENTS SUBMITTED IN THE PAPER BOOK, ACCO RDING TO WHICH THE DETAILS WHICH HAVE BEEN REFERRED IN THE ORDER PASSED BY LD . DIT(E) WERE SUBMITTED BUT HE COULD NOT LINK THESE DETAILS WITH THE SUBMIS SIONS OF THE ASSESSEE BEFORE LD. DIT(E). IN THIS VIEW OF THE SITUATION, WE ARE OF THE OPINION THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF LD. DIT(E) WITH A DIRECTION TO RE- ADJUDICATE THE APPLICATION FILED BY THE ASSESSEE AS FROM THE DOCUMENTS IT APPEARS THAT ALL THE NECESSARY DETAILS ARE ON RECOR D. WHILE CONSIDERING SUCH CLAIM OF THE ASSESSEE, LD.DIT(E) IS DIRECTED TO CO NSIDER THE LEGAL SUBMISSION OF THE ASSESSEE REGARDING THE SCOPE OF POWERS OF AUTH ORITY WHILE CONSIDERING APPLICATION FILED UNDER SECTION 80G. THE RESTORAT ION OF THE ISSUE IS NECESSARY AS EVEN ACCORDING TO GROUND NO.4 FILED BY THE ASSE SSEE THE ASSESSEE IS SEEKING APPROPRIATE OPPORTUNITY OF BEING HEARD IN PERSON B EFORE LD. DIT(E) AS THE MATTER HAS BEEN DECIDED BY HIM ONLY ON THE BASIS O F WRITTEN SUBMISSIONS. WITH THESE OBSERVATIONS WE RESTORE THIS ISSUE TO TH E FILE OF LD. DIT(E). 6. IN THE RESULT, FOR STATISTICAL PURPOSES APPEAL F ILED BY THE ASSESSEE IS TREATED AS ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 23/09/2013 2 . 01' # 3 45 23 /09/2013 1 . 6 % SD/- SD /- ( !' / N.K.BILLAIYA ) ( . . / I.P. BANSAL ) # / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 4 DATED 23 /09/2013 . / ITA NO. 4648/MUM/2012 ' ' ' ' / ASSESSMENT YEAR 2012-2013 5 2 2 2 2 . .. . ,/78 ,/78 ,/78 ,/78 98'/ 98'/ 98'/ 98'/ / COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. : ( ) / THE CIT(A)- 4. : / CIT 5. 8;6 ,/ , , / DR, ITAT, MUMBAI 6. 6< = / GUARD FILE. 2 2 2 2 / BY ORDER, -8/ ,/ //TRUE COPY// > >> > / ? ? ? ? ) ) ) ) (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . ./ VM , SR. PS