Shri Digamber Jain Sidhakshetra Chulgiri Trust, Barwani V. Commissioner of Income-tax (Exemption), Bhopal

ITA 495/Ind/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 9875 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Appeal Filed On: 07-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALCHAND
• Assessee Lawyers: N D PATWA A RS; GIRISH GOYAL
• Keywords: Procedural lapse
• Section: 80G; 12A; 12AA; 12

Judgement Text

ITA 495/IND/2017 SHRI DIGAMBER JAIN SIDHAKSHETRA CHULGIRI TRUST, BAR WANI, M.P. , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.495/IND/2017 ASSESSMENT YEAR: NA SHRI DIGAMBER JAIN SIDHAKS HETRA CHULGIRI TRUST, 01, PATI ROAD, BAWANGAJA, BARWANI (M.P.) (APPELLANT) CIT (EXEMPTION) BHOPAL (REVENUE ) P.A. NO. AAGTS0248E APPELLANT BY SHRI GIRISH GOYAL & SHRI N.D. PATWA, A.RS RESPONDENT BY SHRI LAL CHAND , DR DATE OF HEARING: 19.09.2018 DATE OF PRONOUNCEMENT: 25.09.2018 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (EXEMPTION), BH OPAL, ITA 495/IND/2017 SHRI DIGAMBER JAIN SIDHAKSHETRA CHULGIRI TRUST, BAR WANI, M.P. 2 DATED 2.5.2017. THE ASSESSEE HAS RAISED FOLLOWING GROUN DS OF APPEAL: 1. THAT THE LEARNED CIT(EXEMPTION), BHOPAL ERRED IN N OT GRANTING EXEMPTION U/S 80G OF THE INCOME TAX ACT, 1961. 2. THAT THE LEARNED CIT(EXEMPTION), BHOPAL WAS NOT JUS TIFIED IN NOT CONSIDERING THE LETTER DATED 25.4.2006 BY WHICH THE ASSESSEE ESTABLISHED THAT IT IS A TRUST HAVING REGISTRATION U/S 12A. 3. THAT THE TRUST WAS GRANTED EXEMPTION U/S 80G VIDE O RDER DATED 9.4.1991 AND THIS EXEMPTION WAS VALID UP TO 31.3.19 92 AND THEREFORE IN ORDER TO AVOID THE AMBIGUITY THE TRUST APPLIED FOR EXEMPTION U/S 80G INADVERTENTLY. WHEREAS IT IS SET TLED LAW THAT RENEWAL OF EXEMPTION U/S 80G IS NOT AT ALL NECESSAR Y. 4. THAT THE LEARNED CIT HAS BEEN ARBITRARY AND BAD IN LAW IN NOT CONSIDERING THE WRITTEN SUBMISSION FILED BY THE ASS ESSEE ON 21.4.2017. 5. THAT THE APPELLANT CRAVES LEAVE TO AMEND, ALTER, AD D AND WITHDRAW ANY OF THE GROUNDS BEFORE OR AT THE TIME O F THE HEARING OF THE CASE. 2. THE ONLY EFFECTIVE GROUND OF THE ASSESSEES APPEAL IS AGAINST REJECTION OF APPLICATION FOR SEEKING EXEMPTION U/S 80G OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT). LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SYNOPSIS. SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED AS UNDER: GROUND NO. 1-4 EXEMPTION U/S SOG OF INCOME TAX ACT, 1961. REASONS FOR DISALLOWANCE ITA 495/IND/2017 SHRI DIGAMBER JAIN SIDHAKSHETRA CHULGIRI TRUST, BAR WANI, M.P. 3 1. CIT(EXEMPTION)ORDER PG. NO 2 PARA 2.1: 'SOCIETY HAS FAILED TO SUBMIT THE REQUISITE ORDER U /S 12AA SIGNED BY THE COMMISSIONER AND THIS OFFICE DOES NOT GO BY ASSUMPTIONS/PRESUMPT IONS. THE LETTER DATED 25/04/2006 BY THE THEN ITO (HQ) OF C1~ BHOPAL INDICATING ONLY THE REGISTRATION NO. CAN ALSO NOT BE RELIED IN THE ABSENCE OF COPY OF RELEVANT REGISTRAT ION ORDER WITH APPLICANT OR THE DEPARTMENT. SINCE REGISTRATION ORDER U/S 12AA IS PR E-REQUISITE CONDITION FOR GRANTING EXEMPTION U/S BOG OF THE IT ACT, 1961, THEREFORE, T HE ASSESSEE SOCIETY,NAMELY SHRI DIGAMBER JAIN SIDHAKSHETRA CHULGIRI TRUST, BARWANI IS NOT ENTITLED FOR EXEMPTION U/S BOG OF THE IT ACT. 11 SUBMISSIONS: - A) AS PER THE PROVISIONS OF SECTION 80G(5)(VI) R/W RULE LLAA(2) OF THE INCOME TAX RULES,1962 AN APPLICATION SHALL BE ACCOMPANIED BY A COPY OF REGISTRATION GRANTED UNDER SECTION 12A OR COPY OF NOTIFICATION I SSUED UNDER SECTION 10(23) OR 10(23C) OF THE ACT. B) THE ASSESSEE GOT REGISTERED U/S 12A MANY YEARS A GO I.E. IN THE YEAR 1990-1991, AND THE CERTIFICATE GRANTED WAS MISPLACED BY MISTAK E. C) THE ASSESSEE HAD ALSO APPLIED FOR A COPY OF THE CERTIFICATE U/S 12A FROM THE DEPARTMENT THROUGH LETTER DATED 21/04/2006. THE OFF ICE OF THE ID CIT (THROUGH ITO (TECH.)) VIDE LETTER DATED 25.04.2006, CONFIRME D THAT THE TRUST HAD BEEN GRANTED REGISTRATION U/S 12A VIDE REGISTRATION NO.4 1/90-91 DATED 13/12/1990. PB 2. D) LD.CIT(E) DID NOT JUDICIOUSLY CONSIDER THE ABOVE MENTIONED LETTER/ CERTIFICATE DATED 25/04/2006 THROUGH WHICH IT IS CONCLUSIVELY E STABLISHED THAT ASSESSEE THAT THE ASSESSEE WAS REGISTERED U/S 12A. THE LETTER ISS UED BY THE OFFICE OF ID CIT AS ABOVE, WOULD BE EQUIVALENT TO THE CERTIFICATE ISSUE D U/S 12A. E) ASSESSEE'S REGISTRATION U/S 12A CAN ALSO BE EVID ENCED BY THE FACT THAT IT IS REGULARLY FILING INCOME TAX RETURN AND ALSO CLAIMIN G EXEMPTION U/S 11 & 12 WHICH HAS BEEN ACCEPTED BY THE DEPARTMENT. F) THE FACT WHICH ALSO PERTINENTLY ESTABLISHES THAT REGISTRATION U/S. 12A WAS AVAILABLE SINCE LONG, IS THAT REGISTRATION U/S. 80G WAS ALSO GRANTED UPTO 31.03.1992. COPY OF THE SAID ORDER IS AT PB 1. G) CIRCULAR NO. 14 (XL-35) OF 1955 STATES THAT: 'OFFICERS OF THE DEPARTMENT MUST NOT TAKE ADVANTAGE OF IGNORANCE OF AN ASSESSEE AS TO HIS RIGHTS. IT IS ONE OF THEIR DUTIES TO ASSI ST A TAXPAYER IN EVERY REASONABLE WAY, PARTICULARLY IN THE MATTER OF CLAIMING AND SEC URING RELIEFS AND IN THIS REGARD THE OFFICERS SHOULD TAKE THE INITIATIVE IN GUIDING A TAXPAYER WHERE PROCEEDINGS OR OTHER PARTICULARS BEFORE THEM INDICATE THAT SOME RE FUND OR RELIEF IS DUE TO HIM. THIS ATTITUDE WOULD, IN THE LONG RUN, BENEFIT THE D EPARTMENT, FOR IT WOULD INSPIRE CONFIDENCE IN HIM THAT HE MAY BE SURE OF GETTING A SQUARE DEAL FROM THE DEPARTMENT. ALTHOUGH, THEREFORE, THE RESPONSIBILITY FOR CLAIMING REFUNDS AND RELIEFS RESTS WITH THE ASSESSEES ON WHOM IT IS IMPO SED BY LAW, OFFICERS SHOULD- ITA 495/IND/2017 SHRI DIGAMBER JAIN SIDHAKSHETRA CHULGIRI TRUST, BAR WANI, M.P. 4 (A) DRAW THEIR ATTENTION TO ANY REFUNDS OR RELIEFS TO WHICH THEY APPEAR TO BE CLEARLY ENTITLED BUT WHICH THEY HAVE OMITTED TO CLAIM FOR S OME REASON OR OTHER; (B) FREELY ADVISE THEM WHEN APPROACHED BY THEM AS T O THEIR RIGHTS AND LIABILITIES AND AS TO THE PROCEDURE TO BE ADOPTED FOR CLAIMING REFUNDS AND RELIEFS.' IT IS THEREFORE PRAYED THAT THE REGISTRATION U/S. 8 0G, WHICH WAS DENIED MERELY A PROCEDURAL LAPSE, WHEN ASSESSEE ESTABLISHED EXISTEN CE OF REGISTRATION U/S. 12A; THE REGISTRATION SHALL BE GRANTED. 3. IT IS CONTENDED BY THE LD. COUNSEL FOR THE ASSESS EE THAT THE EXEMPTION WAS DECLINED MERELY ON THE GROUNDS THAT REQUISITE CERTIFICATE OF REGISTRATION U/S 12AA OF THE ACT WAS NOT FURNISHED. HE SUBMITTED THAT CERTIFICATE WAS MISPLACED AND THE CONCERNED AUTHORITY HAS CONFIRMED TH E REGISTRATION VIDE LETTER DATED 25.4.2006 ENCLOSED AT P AGE NO.2 OF THE PAPER BOOK. 4. ON THE CONTRARY, LD. D.R. SUPPORTED THE ORDER OF THE CIT(EXEMPTION). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS ITA 495/IND/2017 SHRI DIGAMBER JAIN SIDHAKSHETRA CHULGIRI TRUST, BAR WANI, M.P. 5 OF THE AUTHORITIES BELOW. LD. CIT (EXEMPTION) HAS RE JECTED THE APPLICATION BY OBSERVING AS UNDER: 2. ON PERUSAL OF THE SUBMISSION, IT IS SEEN THAT THE S OCIETY HAS NOT FURNISHED THE REGISTRATION ORDER U/S 12AA ALONG WITH THE APPLICAT ION FORM LOG, WHICH IS MANDATORY TO TREAT THE APPLICATION VALID IN ALL RESPECT. THE SOC IETY HAS ONLY MENTIONED THE REGISTRATION NO. OF 12AA CERTIFICATE AND CORRESPONDING DETAILS. THE SAME IS NOT VERIFIABLE FROM THIS OFFICE RECORD. THEREFORE, THE SHOW CAUSE NOTICE DAT ED 10/04/2017 IS ISSUED THE ASSESSEE FIXING THE DATE OF HEARING ON 25/04/2017 A T 11.00 A.M AS TO WHY THE APPLICATION IN FORM NO. L0G FOR EXEMPTION U/S 80G B E NOT BE CANCELLED AND EXEMPTION U/ SOG REFUSED AS PRE-CONDITION FOR THE GRANT THEREOF IS NOT SATISFIED. 2.1 IN RESPONSE TO THE ABOVE SHOW CAUSE NOTICE, TH E AR OF THE SOCIETY HAS FILED WRITTEN SUBMISSION BY POST ON 21/04/2017. THE AR HA S TAKEN A PLEA THAT SOME 80G APPROVAL WAS GRANTED TO TRUST ON 09/04/1991, HOWEVE R, SAME IS NOT VALID AS ON CURRENT DATE. THE GRANT OF SAID EXPIRED APPROVAL U/S SOG RA ISED ASSUMPTION (ACCORDING TO THE AR) THAT REGISTRATION ORDER U/S 12A WAS ALREADY PAS SED. THE SUBMISSION OF THE AR IS NOT JUSTIFIABLE AS THE 'IF1 SOCIETY HAS FAILED TO S UBMIT THE REQUISITE ORDER UNDER SECTION 12M SIGNED BY COMMISSIONER AND THIS OFFICE DOES NOT GO BY ASSUMPTIONS/PRESUMPTIONS. THE LETTER DATED 25/04/2006 BY THE THEN ITO(HQ) OF CIT, BHOPAL INDICATING ONLY THE REGISTRATION NO. CAN ALSO NOT BE RELIED IN THE ABSE NCE OF COPY OF RELEVANT REGISTRATION ORDER WITH APPLICANT OR THE DEPARTMENT. SINCE REGIS TRATION ORDER U/S 12AA IS PRE-REQUISITE CONDITION FOR GRANTING EXEMPTION U/S 80G OF THE IT ACT,1961, THEREFORE, THE ASSESSEE SOCIETY, NAMELY SHRI DIGAMBER JAIN SIDHAKSHETRA CHU LGIRI TRUST, B:IRWANIIS NOT ENTITLED- TOR EXEMPTION U/S 80G OF THE I T. ACT. 3. ACCORDINGLY THE APPLICATION IN FORM NO. 10G RECE IVED IN THIS OFFICE ON 05/12/2016 SEEKING EXEMPTION U/S 80G OF THE I T ACT IS HEREBY REJECTED AND EXEMPTION SOUGHT U/S 80G. IS ALSO REFUSED. 6. LD. COUNSEL FOR THE ASSESSEE HAS DRAWN OUR ATTENTIO N TO THE LETTER OF THE INCOME TAX OFFICER FROM THE OF FICE OF THE COMMISSIONER OF INCOME TAX, BHOPAL CONFIRMING THE REGISTRATION U/S 12A W.E.F. 31.12.1990. UNDER THESE FACTS, WE DEEM IT PROPER TO SET ASIDE THE ORDER OF THE LD. ITA 495/IND/2017 SHRI DIGAMBER JAIN SIDHAKSHETRA CHULGIRI TRUST, BAR WANI, M.P. 6 CIT(EXEMPTION) AND RESTORE THE APPLICATION OF THE ASSES SEE TO THE FILE OF THE LD. CIT(EXEMPTION) TO DECIDE AFRE SH IN ACCORDANCE WITH LAW AFTER VERIFYING THE CONTENTION AND THE CONTENTS OF THE LETTER DATED 25.4.2006 ISSUED BY THE INCOME TAX OFFICER (TECH) FOR COMMISSIONER OF INCOME TAX, BHOPAL. GROUNDS OF THE ASSESSEES APPEAL ARE ALLOWED FOR STATISTI CAL PURPOSES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 25 .09.2018. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 25 /09/2018 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER SR. PRIVATE SECRETARY, INDORE