ABHINAV MANAV VIKAS SANSTHA , LATUR V. COMMISSIONER OF INCOME TAX (EXEMPTION) , PUNE , Pune

ITA 496/PUN/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 8884 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 10-08-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Charitable institution; Principle of natural justice
• Section: 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, J UDICIAL M EMBER . / I TA NO. 496 /PUN/20 20 ABHINAV MANAV VIKAS SANSTHA 1, C/O. SHRIKISHAN SOMANI VIDYALAYAM MORE NAGAR, KANHERI ROAD, LATUR, PAN : AAATA3357N ....... / APPELLANT / V/S. THE COMMISSIONER OF INCOME TAX (EXEMPTIONS) PUNE. / RESPONDENT A SSESSEE BY : SHRI M.K. KULKARNI REVENUE BY : SHRI DEEPAK GARG / DATE OF HEARING : 23 . 0 3 .202 1 / DATE OF PRONOUNCEMENT : 23 . 03 .2021 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(EXEMPTION), PUNE DATED 26.02.2020 PASSED U/S.12AA(1)(B)(II) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AS PER THE FOLLOWING GROUNDS OF APPEAL : 2 ITA NO. 496 /PUN/20 20 ABHINAV MANAV VIKAS SANSTHA ON THE FACTS AND IN T HE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(EXEMPTIONS) - PUNE WAS NOT JUSTIFIED IN REFUSING THE APPLICATION SUBMITTED FOR REGISTRATION UNDER SECTION 12AA OF THE ACT TO THE TRUST. THE REJECTION OF THE REGISTRATION IS NOT ACCORDING TO LAW. THE APPELL ANT PRAYS THE REGISTRATION UNDER SECTION 12AA BE GRANTED TO THE TRUST. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW AND IN THE ALTERNATIVE THE LD. CIT(EXEMPTIONS) BE DIRECTED TO GRANT REGISTRATION UNDER SECTION 12AA TO THE TRUST IN ACCO RDANCE WITH THE PROVISIONS OF LAW. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE DELAY HAS OCCURRED IN FILING OF THIS APPEAL WHICH SHOULD HAVE BEEN , FILED WITHIN 60 DAYS FROM THE DATE OF RECEIPT VIZ 02 - 03 - 2020. THE APPELLANT TRUST W AS PREVENTED BY SUFFICIENT CAUSE AS IT COULD NOT BE FILED DUE TO LOCKDOWN P OSITION IN THE COUNTRY DUE TO CO VID - 19. THE DELAY BE CONDONED AND THE APPEAL BE ADMITTED FOR ADJUDICATION. 4. THE APPELLANT CRAVES TO LEAVE, ADD/AMEND OR ALTER ANY OF T HE ABOVE GROUNDS OF APPEAL . 2. AT THE VERY OUTSET, THE LD. SENIOR COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEAL IS TIME BARRED BY 101 DAYS AND IN RESPECT THEREOF, HE HAS FILED CONDONATION PETITION ALONG WITH AFFIDAVIT. IT IS NOTICED THAT IT WAS DUE TO COVI D - 19 PERIOD AND LOCKDOWN , BECAUSE OF WHICH, THIS DELAY H AS OCCURRED. THE LD. DR ALSO AGREED THAT THIS DELAY WAS UN - INTENTIONAL AND CANNOT BE ATTRIBUTED TO THE DELIBERATE CONDUCT OF THE ASSESSEE. IT WAS BECAUSE OF THE COVID CIRCUMSTANCES AND THEREFORE , SUCH DELAY HAD OCCURRED. 3. AFTER HEARING THE SUBMISSIONS OF THE PARTIES HEREIN, WE CONDONE THE DELAY OF 101 DAYS AND AD MIT THE APPEAL FOR HEARING ON MERITS. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS MADE AN ONLINE APPLICATION IN FORM NO .10A FOR APPROVAL OF THE TRUST/INSTITUTION U/S.12AA OF THE ACT ON 21.08.2019 UNDER THE CATEGORY OF CHARITABLE TRUST/INSTITUTION. THE ASSESSEE IS REGISTERED UNDER BOMBAY PUBLIC TRUST ACT, 1950 WITH REGISTRATION NUMBER: E - 2902/LATUR DATED 27.12.1992. THE AP PLICATION OF THE ASSESSEE 3 ITA NO. 496 /PUN/20 20 ABHINAV MANAV VIKAS SANSTHA WAS CAREFULLY PERUSED AND CONSIDERED ALONG WITH ITS ANNEXURES BY THE LD. CIT(EXEMPTION) . THEREAFTER, A LETTER WAS ISSUED THROUGH ITBA PORT AL TO THE ASSESSEE ON 05.10.2019 REQUESTING TO UPLOAD CERTAIN INFORMATION/CLARIFICATION BY 2 1.10.2019 IN ORDER TO PROCESS THE APPLICATION. THE ASSESSEE WAS ALSO REQUESTED VIDE POINT NO.5 OF THE NOTICE DATED 05.10.2019 TO ATTEND THE OFFICE ON 21.10.2019 AND TO PRODUCE THE ORIGINAL COPY OF TRUST DEED/MOA FOR VERIFICATION. THE SAID NOTICE WAS DULY S ERVED ON THE ASSESSEE THROUGH ITBA PORTAL AS WELL AS BY POST. THE ASSESSEE, HOWEVER, SUBMITTED PARTIAL COMPLIANCE ON ITBA PORTAL IN RESPONSE TO THE SAID NOTICE. 5. AT THE TIME OF HEARING, THE LD. SENIOR COUNSEL FOR THE ASSESSEE POINTED OUT THAT CERTAIN DI SCREPANCIES WERE OBSERVED BY THE LD. CIT(EXEMPTION) VIDE ORDER DATED 26.02.2020 AT PARA 3 AND 4 OF HIS ORDER. BOTH THE PARAS ARE REPRODUCED HEREIN BELOW FOR THE SAKE OF COMPLETENESS: 3. THE APPLICANT WAS INFORMED VIDE NOTICE DATED 05.10.2019 ABOUT THE FOLLOWING DISCREPANCIES FOUND IN ITS TRUST DEED/MOA: POINT NO.14: THE TRUST DEED/MOA DOES NOT HAVE IRREVOCABILITY CLAUSE POINT NO.15: THE TRUST DEED/MOA DOES NOT HAVE A CLAUSE THAT THE BENEFICIARIES ARE A SECTION OF PUBLIC AND NOT SPECIFIC INDIVIDUALS POINT NO.16 : THE TRUST DEED/ MOA DOES NOT HAVE ANY CLAUSE PROVIDING THAT IN THE EVENT OF DISSOLUTION OF TRUST/SOCIETY/ NON PROFIT COMPANY, THE FUNDS/ASSETS OF THE TRUST/SOCIETY NON PROFIT COMPANY WILL BE TRANSFERRED ONLY TO SOME OTHER TRUST/SOCIETY/ NON P ROFIT COMPANY HAVING SIMILAR OBJECTIVES. POINT NO.17: THE TRUST DEED/MOA DOES NOT HAVE ANY CLAUSE PROVIDING THAT THE FUNDS/ PROPERTY OF THE INSTITUTION WILL BE USED ONLY FOR THE OBJECTIVES OF THE TRUST/ SOCIETY/ NON PROFIT COMPANY. THE APPLICANT WAS, THEREFORE, REQUESTED TO GET THE TRUST DEED/M OA AMENDED AND UPLOAD THE AMENDED COPY. HOWEVER, THE APPLICANT DID NOT COMPL Y AND NOT UPLOADED THE AMENDED COPY OF TRUST DEED/M O A, TILL DATE. 4. FURTHER, THE SUBMISSION UPLOADED BY THE APPLICANT ON ITBA PORTAL I N RESPONSE TO NOTICE DATED 05 - 10 - 2019 IS NOT COMPLETE IN AS MUCH AS THE APPLICANT HA S NOT UPLOADED IDENTITY DETAILS OF TRUSTEES/DIRECTORS, AS 4 ITA NO. 496 /PUN/20 20 ABHINAV MANAV VIKAS SANSTHA REQUIRED UNDER THE PROVISIONS OF SECTION 12AA(1)(A) OF THE IT ACT. DUE TO CHANGE OF INCUMBENT OF OFFI CE, FURTHER O PPORTUNITIES UNDER THE PROVISIONS OF SECTION 129 OF THE INCOME TAX ACT , 1961 DATED 06/01/2020, 20/01/2020 AND 05/02 / 2020 WERE GIVEN TO THE APPLICANT, DULY SENT THROUGH E - PORTAL REQUESTING IT TO UPLOAD ITS COMPLETE COMPLIANCE OF THE QUESTIONNAIRE DATED 05/ 10/2019 ON THE E - PORTAL. HOWEVER, THE APPLICANT HAS NOT UPLOADED THE ABOVE REQUISITE DOCUMENTS WHICH WERE SPECIFICALLY CALLED FOR VIDE THE SAID QUESTIONNAIRE. THEREFORE, THE GENUINENESS OF THE CHARITABLE NATURE OF ACTIVITIES IS NOT ESTABLISHED. 5.1 . AD DRESSING TO THE ISSUES MENTIONED IN THESE PARAS, THE LD. SENIOR COUNSEL FOR THE ASSESSEE SUBMITTED THAT BECAUSE OF THESE SHORTCOMINGS THE REGISTRATION OF THE ASSESSEE TRUST U/S.12AA OF THE ACT WAS DENIED BY THE LD. CIT(EXEMPTION). HOWEVER, AS ON DATE SCENA RIO, THE ASSESSEE HAS GIVEN ALL THE RELEVANT DETAILS TO THE DEPARTMENT AS WAS CALLED FOR . THE TRUST DEED ALSO HAS BEEN AMENDED ACCORDINGLY. THEREFORE, ONE FINAL OPPORTUNITY MAY BE GIVEN SO THAT THE ASSESSEE CAN REPRESENT ITS CASE ON MERITS WITH ALL REQUISI TE DETAILS/ EVIDENCES FILED BEFORE THE LD. CIT(EXEMPTION) AND THEREFORE, REQUESTED THE MATTER MAY BE REMANDED BACK TO THE FILE OF LD. CIT(EXEMPTION). 6. THE LD. DR DID NOT RAISE ANY OBJECTION S TO THE SUBMISSIONS PUT FORTH BY THE LD. SENIOR COUNSEL FOR TH E ASSESSEE. 7. HAVING HEARD THE PARTIES HEREIN AND SUBMISSIONS MADE ON RECORD, THE ASSESSEE HAS ALREADY RECTIFIED AND AMENDED ITS TRUST DEED AND ALSO SUBMITTED RELEVANT DETAILS/EVIDENCES AS HAVE BEEN CALLED FOR BY THE DEPARTMENT. THEREFORE, IN THE INTERE ST OF JUSTICE, WE ARE OF THE CONSIDERED VIEW THAT ONE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE SO THAT T HE ASSESSEE TRUST CAN REPRESENT ITS CASE ON MERITS WITH ALL THOSE RELEVANT DETAILS/EVIDENCES FILED BEFORE THE LD. CIT(EXEMPTION). THEREFORE, WE SET A SIDE THE ORDER OF THE LD. CIT(EXEMPTION) AND RE MAND THE MATTER BACK TO HIS FILE FOR 5 ITA NO. 496 /PUN/20 20 ABHINAV MANAV VIKAS SANSTHA RE - ADJUDICATION AS PER LAW WHILE COMPLYING WITH THE PRINCIPLES OF NATURAL JUSTICE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED ON 23 RD DAY OF MARCH , 20 2 1 . SD/ - SD/ - INTURI RAMA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 23 RD MARCH , 202 1 SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(EXEMPTION), PUNE. 4 . , , , / DR, ITAT, A BENCH, PUNE. 5 . / GUARD FILE. / BY ORDER, // TRUE COPY // / PRIVATE SECRETARY , / ITAT, PUNE . 6 ITA NO. 496 /PUN/20 20 ABHINAV MANAV VIKAS SANSTHA DATE 1 DRAFT DICTATED ON 23 . 0 3 .202 1 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 23 . 03 .202 1 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER