WOMEN AND CHILD WELFARE FOUNDATION, MUMBAI V. DIT (E), MUMBAI

ITA 4747/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4439 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 06-01-2016
• Assessment Year: 2013-2014
• Appeal Filed On: 19-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA PRASAD
• Keywords: Charitable institution
• Section: 12A; 12AA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI N.K . BILLAIYA, ACCOUNTANT MEMBER / I .T A NO. 4747/MUM/2013 WOMEN AND CHILD WELFARE FOUNDATION, 104, SUN FLOWER BLDG., MENTRI PARK, GOREGAON (E), MUMBAI - 400 065 / VS. OFICE OF THE DIRECTOR OF INCOME TAX (EXEMPTION), 6 TH FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI - 400 012 ./ ./ PAN/GIR NO. AAATW 2633H ( / APPELLANT ) .. ( / RESPONDENT ) / A PPELLANT BY: NONE / RESPONDENT BY: SHRI RAJENDRA PRASAD / DATE OF HEARING : 0 6 . 01 . 201 6 / DATE OF PRONOUNCEMENT : 06 . 0 1 .201 6 / O R D E R PER N.K. BILLAIYA, AM: WITH THIS APPEAL THE ASSESSEE HAS CHALLENGED THE CORRECTNESS OF THE ORDER OF THE DIT(EXEM) MUMBAI DATED 25.3.2013. 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE ASSESSEE IS THAT THE DIT(EXEM) ERRED IN REJECTING THE APPLICATION FOR GRANT OF REGISTRATION U/S. 12AA OF THE ACT. ITA. NO. 4747/M /13 2 3. THE ASSESSEE TRUST FILED AN APPLICATION FOR REGISTRATION U/S. 12A OF THE ACT ON 17.9.2012. WHILE SCRUTINIZING THE SAID APPLICATION, THE DIT(EXEM) FOUND THAT THE TRUST HAVE BEEN CONSTITUTED BY A DEED OF TRUST DATED 18.6.2011 AND THE SAME WAS REGISTERED WITH THE CHARITY COMMISSIONER, MUMBAI VIDE ORDER DATED 20.4.2012. 4. THE ASSESSEE - TRUST WAS ASKED TO FURNISH CERTAIN DETAILS/DOCUMENTS LIKE PAN CARDS OF TRUSTEES AND SETTLER, COPY OF BANK ACCOUNTS, NOC IN RESPECT OF ITS OFFICE PREMISES, CERTIFICATE OF REGISTRATION ISSUED BY THE CHARITY COMMISSIONER, COPIES OF AUDITED ACCOUNTS AND NOTE ON ACT IVITIES UNDERTAKEN BY IT DULY SUBSTANTIATED WITH DOCUMENTARY EVIDENCE S . 5. THE REQUISITE DETAILS WERE FURNISHED AND ONE OF THE TRUSTEES MS. KAVITA SAXENA ALSO ATTENDED THE PROCEEDINGS. WHILE SCRUTINIZING THE DEED OF TRUST, THE DIT (EXEM) NOTICED THAT I T DOES NOT HAVE A DISSOLUTION CLAUSE. THE DIT (EXEM) WAS OF THE FIRM BELIEF THAT THE ISSUE OF PROHIBITION ON DISTRIBUTION OF PROPERTY OF THE TRUST IN THE EVENT OF ITS DISSOLUTION OR WINDING UP MUST FIND CLEAR AND SPECIFIC MENTION IN THE TRUST DEED ITSEL F AND CANNOT BE LEFT TO THE DISCRETION OF THE TRUSTEES. THE DIT(EXEM.) FURTHER OBSERVED THAT IN CASE THE TRUSTEES ARE ENABLE TO CARRY OUT THE OBJECTS OF THE TRUST WHICH HAS TO BE DISSOLVED OR WOUND UP, ITS CORPUS AND PROPERTIES ETC REMAINING ON THE DATE O F DISSOLUTION HAVE TO BE TRANSFERRED TO ANOTHER TRUST HAVING SIMILAR OBJECTS. NO SUCH CLAUSE IS FOUND IN THE TRUST DEED OF THE APPLICANT. THE DIT (EXEM) CONCLUDED BY HOLDING THAT THE APPLICANT - TRUST CANNOT BE SAID TO HAVE BEEN CONSTITUTED AS A VALID PUBL IC CHARITABLE TRUST AND ACCORDINGLY THE APPLICATION FOR REGISTRATION WAS REJECTED. ITA. NO. 4747/M /13 3 6. AGGRIEVED BY THIS, THE ASSESSEE TRUST IS BEFORE US. 7. NO ONE ATTENDED ON BEHALF OF THE ASSESSEE - TRUST IN RESPECT OF NOTICE, THEREFORE, WE DECIDED TO PROCEED EX - PARTE. 8. HAVING HEARD THE LD. DEPARTMENTAL REPRESENTATIVE AT LENGTH, WE HAVE CAREFULLY PERUSED THE ORDER OF THE DIT (EXEM). THE ADMITTED FACT IS THAT THE TRUST HAS BEEN GRANTED REGISTRATION BY THE CHARITY COMMISSIONER, MUMBAI AND THIS FACT HAS BEEN ADMITTED BY THE DIT (EXEM) ALSO. THE ONLY REASON WHICH WE FIND FOR THE REJECTION OF APPLICATION IS NON - MENTION OF DISSOLUTION CLAUSE IN THE TRUST DEED. IN OUR CONSIDERED OPINION, THE DIT(EXEM) SHOULD HAVE GIVEN AN OPPORTUNITY TO THE ASSESSEE - TRUST TO AM END TRUST DEED. A SIMILAR VIEW WAS TAKEN BY THE TRIBUNAL RAJKOT BENCH IN THE CASE OF LATE SHRI MOHANLAL KANJIBHAI PANSARA EDUCATION & CHARITABLE TRUST VS CIT IN ITA NO. 172/RJT/2013 ORDER DATED 20.6.2013. 9. IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE SET ASIDE THE ORDER OF THE DIT (EXEM) AND THE MATTER IS RESTORED TO HIS FILE SO THAT REASONABLE TIME IS MADE AVAILABLE TO THE ASSESSEE - TRUST TO AMEND TRUST DEED. THE ASSESSEE - TRUST CAN AMEND THE TRUST - DEED WITHIN A PERIOD OF 6 MONTHS FROM THE DATE OF RECE IPT OF THIS ORDER AND THE DIT (EXEM) IS DIRECTED TO DECIDE THE ISSUE AFRESH AS PER THE PROVISIONS OF THE LAW. ITA. NO. 4747/M /13 4 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 6 TH JANUARY , 201 6 . SD/ - SD/ - ( SAKTIJIT DEY ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 6 TH JANUARY , 201 6 . . ./ RJ , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI