M/s. Mallikarjun School Society, Pithoragarh V. CIT, Haldwani

ITA 4670/DEL/2014

• Counselvise Citation: 467020114 RSA 2014
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: misc
• Appeal Filed On: 25-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GUNJAN P RASAD
• Keywords: Principle of natural justice
• Section: 12A; 12AA

Judgement Text

ITA NO. 4670/ DEL/ 2014 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER I.T.A. NO. 4670 /DEL/201 4 A.Y. : --------- MALLIKARJUN SCHOOL SOCIETY, VILL. & PO AINCHOLI, PITHORAGARH, DISTT. PITHORAGARH, UTTARAKHAND (PAN AABTM6832B) VS. COMMISSIONER OF INCOME TAX, HALDWANI (CAMP AT DEHRADUN), UTTARAKHAND (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. K. SAMPATH, ADVOCATE DEPARTMENT BY : SH. GUNJAN PRASAD, CIT(DR) DATE OF HEARING : 15 - 06 - 201 5 DATE OF ORDER : 16 - 06 - 201 5 ORDER PER H.S. SIDHU : J M TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX , HALDWANI (CAMP AT DEHRADUN) DATED 2 3 . 7 .201 4 PASSED U/S. 12AA(1)(B)(I) OF THE I.T. ACT, 1961 AND RAISED THE FOLLOWING GROUND: - THAT ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE ACTION OF THE LD. CIT IN REFUSING TO GRANT REGISTRATION U/S. 12AA OF THE INCOME TAX ACT, 1961 IS MOST GROSSLY ARBITRARY, PALPABLY ERRONEOUS AND WHOLLY UNJUST. IT IS PRAYED THAT THIS ACTION MUST BE QUASHED WITH DIRECTIONS TO GRANT THE REGISTRATION AS SOUGHT. ITA NO. 4670/ DEL/ 2014 2 2. THE FACTS NARRATED BY THE LD. COMMISSIONER OF I NCOME TAX, HALDWANI (CAMP AT DEHRADUN) ARE THAT THE ASSESSEE - SOCIETY MADE AN APPLICATION FOR REGISTRATION UNDER SECTION 12AA OF THE I.T. ACT, 1961 (HEREINAFTER CALLED THE ACT ) ON 1 3 .1.2014. THE LD. CIT, HALDWANI, EXAMINED THE CONTENTS OF THE APPLICATION AND AFTER PROVIDING THE OPPORTUNITY OF HEARING TO THE ASSESSEE HAS REJECTED THE APPLICATION BY PASSING THIS IMPUGNED ORDER. 2. 1 LD. CIT, HALDWANI HAS PASSED THE IMPUGNED ORDER MAINLY BY RELYING UPON THE ORDER PASSED BY THE CHIEF COMMISSIONER OF INCOME TAX , DEHRADUN DATED 13.9.2012 WHEREIN LD. CIT HAS DENIED THE APPROVAL OF THE SOCIETY UNDER SECTION 10(23C)(VI) OF THE ACT . HE HAS ALSO RELIED UPON THE JUD GMENT PASSED BY THE HON BLE UTTARAKHAND HIGH COURT IN THE CASE OF M/S QUEENS EDUCATIONAL SOCIETY REP ORTED IN 177 TAXMANN 326. 3. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE VIEW THAT ASSESSEE HAS FILED A WRIT PETITION AGAINST THE ORDER DATED 13.9.2012 BEFORE THE HON BLE UTTRAKHAND HIGH COURT AND THE SAME IS PENDING, AS STATED BY THE LD. CIT, HALDWA NI IN THE IMPUGNED ORDER. THIS FINDING HAS ALSO NOT BEEN CONTROVERED BY BOTH THE PARTIES BEFORE US. SECONDLY, THE JUDGMENT OF THE HON BLE UTTARAKHAND HIGH COURT PASSED IN THE CASE OF M/S QUEENS EDUCATIONAL SOCIETY REPORTED IN 177 TAXMANN 326 ON THE BA SIS OF WHICH THE LD. CIT, HALDWANI HAS REJECTED THE APPLI C ATION FILED BY THE ASSESSEE U/S. 12A HAS ALSO BEEN SET ASIDE BY THE HON BLE SUPREME COURT OF INDIA IN CIVIL APPEAL NO. 5167 OF 2008 IN THE CASE OF M/S QUEEN S EDUCATIONAL SOCIETY VS. CIT VIDE O RDER DATED 16.3.2015 REPORTED IN (2015) 55 T AXMANN.COM 255 (SC). NO DOUBT THAT THE LD. COUNSEL OF THE ASSESSEE HAS FILED A SMALL PAPER BOOK CONTAINING PAGES 1 TO 65 IN WHICH HE HAS ATTACHED THE COPY OF THE APPLICATION FOR REGISTRATION IN FORM NO. 10A; LETTE R FROM AO REGARDING REGISTRATION U/S. 12.1.2014; REPLY TO AO ITA NO. 4670/ DEL/ 2014 3 DATED 20.2.2014; APPLICATION FOR RECOGNITION U/S 10(23)(C)(VI) OF THE I.T. ACT IN FORM NO. 56D; REPLY TO LETTER DATED 3.9.2012; COPY OF AFFILIATION CERTIFICATE ISSUED BY CBSE; COPY OF ORDER U/S ., 10(23C)(VI) DATED 13.9.2012; COPY OF MEMORANDUM OF ASSOCIATION; COPY OF ITR AND COMPUTATION OF TAXABLE INCOME FOR AY 2012 - 13 AND COPIES OF AUDIT REPORTS FOR ASSESSMENT YEARS 2012 - 13 TO 2014 - 15. HE STATED THAT ONCE THE ORDER RELIED UPON BY THE CIT, HALD WANI HAS BEEN CANCEL L ED , THEN THE IMPUGNED ORDER MAY BE SET ASIDE AND THE APPEAL OF THE ASSESSEE MAY BE ALLOWED AND REGISTRATION U/S. 12AA OF THE I.T. ACT MAY BE GIVEN TO THE ASSEESSEE - SOCIETY. 3.1 LD. DR STRONGLY OPPOSED THE REQUEST OF THE LD. COUNSEL O F THE ASSESSEE AND STATED THAT THE ISSUE IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT, HALDWANI TO PASS A FRESH ORDER, KEEPING IN VIEW OF THE DECISION OF THE HON BLE SUPREME COURT OF INDIA PASSED IN THE CASE OF QUEEN S EDUCATIONAL SOCIETY VS. C IT (SUPRA). 4. KEEPING IN VIEW OF THE AFORESAID DISCUSSIONS AND THE DOCUMENTARY EVIDENCE FILED BY THE LD. COUNSEL OF THE ASSESSEE, WE ARE OF THE CONSIDERED THAT LD. CIT, HALDWANI HAS PASSED THE IMPUGNED ORDER ON THE BASIS OF THE ORDER DATED 13.9.2012 PA SSED BY THE CHIEF COMMISSIONER OF INCOME TAX, DEHRADUN AGAINST WHICH A WRIT PETITION IS PENDING BEFORE THE HON BLE UTTRAKHAND HIGH COURT. ACCORDING TO THE PROVISIONS OF SECTION 12AA OF THE I.T. ACT, THE COMMISSIONER, ON THE RECEIPT OF APPLICATION FOR RE GISTRATION OF A TRUST OR INSTITUTION SHALL (A) CALL FOR SUCH DOCUMENTS OR INFORMATION FROM THE TRUST OR INSTITUTION AS HE THINKS NECESSARY IN ORDER TO SATISFY HIMSELF ABOUT THE GENUINENESS OF ACTIVITIES OF THE TRUST OR INSTITUTION ITA NO. 4670/ DEL/ 2014 4 AND MAY ALSO MAKE SUCH INQUIRIES AS HE MAY DEEM NECESSARY IN THIS BEHALF; (B) AFTER SATISFYING HIMSELF ABOUT THE OBJECTS OF THE TRUST OR INSTITUTION AND THE GENUINENESS OF ITS ACTIVITIES, HE SHALL PASS AN ORDER IN WRITING REGISTERING THE TRUST OR INSTITUTION; IF HE IS NOT SO SA TISFIED, PASS AN ORDER IN WRITING REFUSING TO REGISTER THE TRUST OR INSTITUTION. IN THE PRESENT CASE, WE FIND THAT LD.CIT, HALDWANI IN THE IMPUGNED ORDER HAS NOT FOLLOWED THE PRESCRIBED PROCEDURE U/S. 12AA OF THE I.T. ACT AND PASSED THE IMPUGNED ORDER ON T HE BASIS OF THE ORDER DATED 13.9.2012 PASSED BY THE CHIEF COMMISSIONER OF INCOME TAX,DEHRADUN AGAINST WHICH A WRIT PETITION IS PENDING BEFORE THE HON BLE UTTRAKHAND HIGH COURT. IN OUR CONSIDERED VIEW THE IMPUGNED ORDER IS NOT SUSTAINABLE IN THE EYES OF LAW , THEREFORE, IS DESERVED TO BE CANCELLED. SECONDLY, THE LD. CIT, HALDWANI HAS ALSO NOT GIVEN FULL OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING ITS CLA I M BEFORE HIM AND PASSED THE IMPUGNED ORDER IN A HURRY MANNER WHICH IS ALSO NOT PERMISSIBLE UNDER THE L AW AND IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE. WE ARE NOT COMMENTING UPON THE MERITS OF THE CASE AS WELL AS DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE IN THE SHAPE OF PAPER BOOK AS DISCUSSED ABOVE. THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE S ETTING ASIDE THE ISSUE IN DISPUTE TO THE LD. CIT, HALDWANI TO PASS A SPEAKING ORDER , AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY, AFTER GOING THROUGH THE JUDGMENT OF THE HON BLE ITA NO. 4670/ DEL/ 2014 5 SUPREME COURT OF INDIA DELIVERED IN THE CASE OF QUEENS EDUCATIONAL SOCIETY V S. COMMISSIONER OF INCOME TAX (SUPRA). 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSSEE STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE O PEN C OURT ON 16 / 6 /20 1 5 . SD/ - SD/ - [ J.S. REDDY ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 16 / 6 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 4670/ DEL/ 2014 6