MAHYCFO RESEARCH FOUNDATION ( NOW BANWALE FOUNDATION), MUMBAI V. DIT (E), MUMBAI

ITA 5392/MUM/2009

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6668 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 14-07-2011
• Assessment Year: misc
• Appeal Filed On: 25-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI R.S. SYAL, A.M. AND SHRI V. DURGA RAO, J.M. ITA NO. 5392/MUM/2009 MAHYCO RESEARCH FOUNDATION, . APPELLANT BARWALE FOUNDATION 19 RAJ MAHAL84 VEER NARIMAN ROAD, MUMBAI 400 020. (PAN AAA CM 3561) VS. THE DIRECTOR OF INCOME TAX(EXEMPTION( RESPONDENT 6 TH FLOOR, PIRAMAL CHAMBERS LALBAUG, MUMBAI 400 020. APPELLANT BY : MR. HIRO RAI RESPONDENT BY : MR. P.C. MAURYA ORDER PER V. DURGA RAO, J.M.: THE ASSESSEE IS A TRUST, REGISTERED U/S 12A OF THE ACT, WHICH WAS GRANTED BY DIT(E), MUMBAI VIDE ORDER DATED 14/0 5/1987 ON THE BASIS OF MOU DTD. 21/01/1987. SUBSEQUENTLY, THE ASS ESSEE MADE A RESOLUTION DATED 30/09/05 STATING THAT THERE IS AN AMENDMENT IN THE OBJECT NO. 1,2,3(A), 3(C) AND ADDED TWO NEW OBJECTS NO. 3(F) AND 3(G) OF MOU DT. 21/11/2005. THE SAID CHANGE/AMENDMENT WAS N OT COMMUNICATED TO THE DIT(E), MUMBAI. THE DIT(E), MU MBAI CANCELLED THE REGISTRATION, WHICH WAS GRANTED U/S 12A OF THE ACT ON THE GROUND THAT AS PER THE FORM NO. 10A, IT IS THE DUTY OF THE ASSESSEE TO INFORM THE CONCERNED AUTHORITY, IF ANY, AMENDMENT MADE OR CHANGES IN THE TERMS AND CONDITIONS OF THE TRUST. AGAINST THE ORDE R OF DIT(E), THE ASSESSEE FILED AN APPLICATION. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THERE WERE SOME CHANGES IN THE OBJECT, BUT, THE OBJECT IS NOT AT ALL AFFECTED. IN ITA NO. 5392/M/2009 MAHYCO RESEARCH FOUNDATION 2 FACT, THE CHANGES WERE COMMUNICATED TO THE DIT(E) W HILE FILING THE FORM NO. 3CF(3). THE LEARNED COUNSEL FOR THE ASSESS EE SUBMITTED THAT DIT(E) PASSED CANCELLATION ORDER WITHOUT CONSIDERIN G THE SECTION 12AA(3) OF THE ACT, AND NO OPPORTUNITY OF HEARING W AS GIVEN TO THE ASSESSEE. 3. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT IT IS THE BOUNDEN DUTY OF THE ASSESSEE TO INTIMATE THE CHANGE S MADE IN MOU AND SINCE THE ASSESSEE FAILED TO INTIMATE THE CHANG ES MADE IN MOU, THE DIT(E) HAS RIGHTLY CANCELLED THE REGISTRATION. 4. WE HAVE HEARD THE BOTH THE SIDES AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE REGISTRATION G RANTED BY THE DIT(E) U/S 12A OF THE ACT, HAS BEEN SUBSEQUENTLY CANCELLED ON THE GROUND THAT THE CHANGES/AMENDMENTS MADE BY THE ASSESSEE IN ITS MOU WERE NOT INTIMATED TO HIM. IT IS ARGUED THROUGH GROUND NO. 3 BEFORE US THAT THE LD. DIT(E) TOOK NOTE OF FACTS AGAINST THE ASSESSEE AS WELL AS THE LEGAL POSITION WITHOUT GRANTING ANY OPPORTUNITY OF HEARING. IT IS ALSO NOTED FROM THE IMPUGNED ORDERS THAT THERE IS N O REFERENCE OF REQUIRING THE ASSESSEE TO OBTAIN THE POSITION ON TH E POINTS CONSIDERED BY HIM AGAINST THE ASSESSEE. AS PER SECTION 12AA(3) OF THE ACT, IT IS THE BOUNDEN DUTY OF THE CONCERNED AUTHORITY THAT BE FORE PASSING ANY ORDER AN OPPORTUNITY OF HEARING SHALL BE GIVEN TO T HE ASSESSEE. IN THIS CASE, NO SUCH OPPORTUNITY HAS BEEN GIVEN, THEREFORE , THE ORDER PASSED BY THE DIT(E) IS CONTRARY TO THE PRINCIPLES OF NATU RAL JUSTICE. WE, ACCORDINGLY, SET ASIDE THE ORDER PASSED BY THE DIT( E) AND DIRECT HIM TO PASS A FRESH ORDER IN ACCORDANCE WITH LAW AFTER PROVIDING AN OPPORTUNITY OF HEARING TO THE ASSESSEE IN THE MATTE R. ITA NO. 5392/M/2009 MAHYCO RESEARCH FOUNDATION 3 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF JULY, 2011. SD/- SD/- (R.S. SYAL) (V. D URGA RAO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: 22 ND JULY, 2011 KV COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, B BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI.