Pashu Dhan Kalyan And Utpadakta Samvardhan Trust, UDAIPUR V. CIT, UDAIPUR

ITA 481/JODH/2013

• Counselvise Citation: 48123314 RSA 2013
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-03-2014
• Assessment Year: misc
• Appeal Filed On: 24-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR DEEPAK SEHGAL
• Section: 80G; 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 481/JODH/2013 PASHU DHAN KALYAN AND VS. CIT, UDAIPUR. UTPADAKTA SAMVARDHAN TRUST, C/O UDAIPUR DUGDH UTPADAK SAHAKARI SANGH LTD., GOVERDHAN VILAS, AHMEDABAD ROAD, UDAIPUR. PAN NO. AACAP 0952 H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI. DEPARTMENT BY : DR. DEEPAK SEHGAL - D.R. DATE OF HEARING : 05/03/2014. DATE OF PRONOUNCEMENT : 05 /03/2014. O R D E R PER N.K. SAINI, A.M THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 28/08/2013 OF LD. CIT, UDAIPUR. THE FOLLOWING GROU NDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT THE COMMISSIONER OF INCOME TAX, UDAIPUR RA NGE, UDAIPUR ERRED IN LAW & FACTS WHILE TREATING THE ASSESSEE TRUST AS NON-GENUINE ON THE BASIS OF ABSENCE OF CLAUSE OF IRREVOCABILITY IN THE TRUST DEED WHEREAS THE GENUINENESS OF THE TRUST IS NOT AT ALL IN DOUBT AS THE SAME WAS 2 CREATED BY THE UDAIPUR DUGDH UTPADAK SAHAKARI SANGH LTD. ON THE DIRECTIONS OF THE RAJASTHAN CO-OPERATIVE DAIRY FEDE RATION LTD. 2. THAT THE COMMISSIONER OF INCOME TAX, UDAIPUR RAN GE, UDAIPUR ERRED IN LAW & FACTS WHILE CONSIDERING THE TRUST AS NON-G ENUINE AND REJECTING THE APPLICATION FOR REGISTRATION U/S 12AA & EXEMPTION U/S 80G OF THE I.T. ACT, 1961. 3. THAT WITHOUT PREJUDICE TO THE ABOVE, THE APPELLA NT RESERVES HIS RIGHT TO ADD, AMEND OR ALTER IN THE GROUNDS OF APPEAL EVE N AT THE TIME OF HEARING. 2 THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE REJECTION OF APPLICATION FOR REGISTRATION UNDER SEC TION 12AA & EXEMPTION UNDER SECTION 80G OF THE I.T. ACT, 1961 (HEREINAFTE R REFERRED TO AS THE ACT IN SHORT). 3. DURING THE COURSE OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THIS APPEAL MAY BE TREATED AS APPEAL AG AINST THE ORDER UNDER SECTION 12A OF THE ACT. 4. CONSIDERING THE ABOVE STATEMENT, THIS APPEAL IS T REATED ONLY AGAINST THE REJECTION OF APPLICATION FOR REGISTRATI ON UNDER SECTION 12A OF THE ACT. 5. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE F ILED APPLICATIONS IN FORM 10A & 10G ON 05/02/2013 FOR REGISTRATION UNDER SECTION 12AA AND 3 EXEMPTION UNDER SECTION 80G OF THE ACT. LD. CIT OB SERVED THAT THE DETAILS OF THE TRUST DEED REVEALED THAT THE TRUST D EED DID NOT INCLUDE THE CLAUSE OF IRREVOCABILITY AND IN ABSENCE OF THIS CLA USE, THE GENUINENESS OF THE TRUST WAS IN DOUBT. LD. CIT ALSO OBSERVED THAT AS PER THE PROVISIONS, THE TRUST DEED SHOULD HAVE A CONDITION OF DISSOLUTI ON THAT THE TRUST CREATED SHOULD BE IRREVOCABLE AND IN CASE OF DISSOL UTION OF TRUST, ITS NET ASSETS AFTER MEETING OF ITS LIABILITIES WILL NOT RE VERT TO ITS FOUNDER MEMBERS, DIRECTORS, DONORS ETC. BUT WILL BE USED FO R ITS OBJECTS. LD. CIT POINTED OUT THAT THE AUTHORIZED REPRESENTATIVES OF THE ASSESSEE IN ITS SUBMISSION HAD STATED THAT THE CLAUSE OF IRREVOCABI LITY WILL BE INCORPORATED IN THE TRUST DEED IN THE NEXT BOARD OF TRUSTEE MEETING. BUT NO COPY OF SUCH AMENDMENT IN TRUST DEED WAS FURNISH ED. HE, THEREFORE, REJECTED THE APPLICATION FOR REGISTRATION UNDER SEC TION 12AA OF THE ACT. NOW THE ASSESSEE IS IN APPEAL. 6 . LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE LD. CIT WITHOUT CONSIDERING THE OBJECTS OF THE ASSESSEE WERE CHARIT ABLE IN NATURE, TREATED THE ASSESSEE-TRUST AS NON-GENUINE. THEREFORE, ACTI ON OF THE LD. CIT WAS NOT JUSTIFIED IN REJECTING THE APPLICATION MOVED BY THE ASSESSEE IN FORM 10A FOR REGISTRATION UNDER SECTION 12AA OF THE ACT. 4 7 . IN HIS RIVAL SUBMISSIONS, LD. CIT D.R. SUPPORTED THE ORDER OF THE LD. CIT. 8 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT HAD NOT COMMEN TED UPON THE OBJECTS OF THE ASSESSEE-TRUST AND HE HAS NOT STATED AS TO W HETHER THE OBJECTS WERE NOT CHARITABLE IN NATURE. THE LD. CIT REJECTE D THE APPLICATION MOVED BY THE ASSESSEE ONLY ON THIS BASIS THAT THE T RUST DEED DID NOT INCLUDE THE CLAUSE OF IRREVOCABILITY. HOWEVER, IT IS NOT CLEAR FROM THE MATERIAL ON RECORD AS TO WHETHER THE SAID CLAUSE HA S NOW BEEN INCLUDED OR NOT? WE THEREFORE, DEEM IT APPROPRIATE TO SET A SIDE THIS ISSUE BACK TO THE FILE OF THE LD. CIT TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. 9 . IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. (ORDER PRONOUNCED IN THE COURT ON 5 TH MARCH, 2014). (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 5 TH MARCH, 2014. 5 VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.