M/s Shri Ganga Sabha Rishikesh, Rishikesh V. CIT (E), Lucknow

ITA 5410/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3579 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: misc
• Appeal Filed On: 18-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISHA KUMARI
• Keywords: Invalid notice; Opportunity of being heard; Principle of natural justice
• Section: 12A; 12AA; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SH. N. K. SAINI, AM AND MS. SUCHITRA KAMBLE , JM ITA NO. 5410/DEL/2016 : ASSTT. YEAR : M/S SH. GANGA SABHA RISHIKESH, TRIVENI GHAT, GHAT ROAD, RISHIKESH VS COMMISSIONER OF INCOME TAX (EXEMPTIONS), LUCKNOW (APPELLANT) (RESPONDENT) PAN NO. A A OAS2707B ASSESSEE BY : SH. LALIT MOHAN, CA REVENUE BY : SMT. MANISH A KUMARI, SR. DR DATE OF HEARING : 18 .01 .201 8 DATE OF PRONOUNCE MENT : 01 .02 .201 8 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 30.08.2016 OF LD. CIT( EXEMPTIONS ) , LUCKNOW . 2. FOLLOWING GROUNDS H AVE BEEN RAISED IN THIS APPEAL: 1. THAT THE ORDER DATED 30.8.2016 U/S 12AA(1 )(B)(II) OF THE ACT FRAMED BY THE LEARN ED COMMISSIONER OF INCOME TAX (E ) IS BARRED BY LIMITATION AND THEREFORE DESERVES TO BE QUASHED AS SUCH. 2. THAT EVEN OTHERWISE THE IMPUGNED ORDER HAS BEEN MADE IN AN ARBITRARY AND WHIMSICAL MANNER AND THAT TOO WITHOUT GIVING ANY OPPORTUNITY OF BEING HEARD MUCH LESS A FAIR OPPORTUNITY AND AS SUCH THE ORDER REJECTING THE APPLICATION FOR REGISTRATION OF THE ASSESSEE SOCIETY U/S 12AA(1 )(B)(II) OF THE ACT S A NULLITY. 2.1 THAT ONLY NOTICE ISSUED TO THE APPELLANT BEFORE PASSING THE IMPUGNED ORDER IS DATED 26.8.2016 SERVED ON 29.08.2016 FOR COMPLIANCE ON 30.8.2016 WAS ITSELF ITA NO . 5410 /DE L/2016 GANGA SABHA RISHIKESH 2 AND AS SUCH AN INVALID NOTICE HAVING BEEN ISSUED ONLY FOR THE PURPOSE OF RE CORD BUT WITH NO INTENT TO GRANT ANY OPPORTUNITY TO THE APPELLANT RENDERS THE ORDER DATED 30.8.2016 IS ILLEGAL AND UNTENABLE. 3. THAT EVEN OTHERWISE EVEN MERITS THE LEARNED COMMISSIONER OF INCOME TAX (EXEMPTIONS) HAS GROSSLY ERRED BOTH IN LAW AND ON FACTS IN REJECTING THE APPLICATION FOR REGISTRATION OF THE ASSESSEE SOCIETY U/S 12AA(1 )(B)(II) OF THE ACT. 3.1 THAT VARIOUS ADVERSE FINDINGS RECORDED IN THE IMPUGNED ORDER ARE FACTUALLY INCORRECT, LEGALLY MISCONCEIVED AND UNTENABLE. 3.2 THAT THE FINDING THAT 'APPLICANT HAS FAILED TO PROVIDE SUFFICIENT MATERIAL TO CORROBORATE THE CHARITABLE NATURE OF THE OBJECTS AND GENUINENESS OF THE ACTIVITIES. DESPITE BEING PROVIDED TIMELY OPPORTUNITY THE APPLICANT HAS NOT BEEN ABLE TO SUBSTANTIATE ITS CLAIM' IS FACTUALLY IN CORRECT AND IS NOT IN ACCORDANCE WITH LAW. 3.3 THAT THE LEARNED COMMISSIONER OF INCOME TAX HAS FAILED TO APPRECIATE THAT, WHILE EXAMINING THE APPLICATION UNDER SECTION 12AA OF THE ACT, THE SCOPE WAS TO MERELY EXAMINE THE SECTION 12A OF THE OBJECTS OF THE SOCIETY AND, WHETHER INCOME RECEIVED BY THE ASSESSEE SOCIETY IS LIABLE TO BE CONSIDERED UNDER SECTION 11 AND 12 OF THE ACT AND, NOT WHETHER THE INCOME IS ACTUALLY EXEMPT UNDER SECTION 11 AND 12 OF THE ACT AND THEREFORE REJECTION OF APPLICATION OF THE ASSES SEE SOCIETY IS WHOLLY MISCONCEIVED. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX BE QUASHED AND, HE BE FURTHER DIRECTED TO GRANT REGISTRATION TO THE APPELLANT SOCIETY U/S 12AA(1)(B)(II) OF THE ACT 3. FROM THE ABOVE GROU NDS, IT IS GATHERED THAT THE MAIN GRIEVANCE OF THE ASSESSEE RELATES TO THE REJECTION OF APPLICATION FOR ITA NO . 5410 /DE L/2016 GANGA SABHA RISHIKESH 3 REGISTRATION U/S 12AA(1)(B)(II) OF THE ACT VIDE EX - PARTE ORDER PASSED BY THE LD. CIT(E). 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE E - FILED AN APPLICATION FOR REGISTRATION U/S 12A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WHICH WAS SENT BY THE CIT, LUCKNOW TO THE OFFICE OF CIT(E), LUCKNOW BY E - MAIL ON 26. 08.2016. THE LD. CIT(E) REJECTED THE APPLICATION BY OBSERVING THAT TH E LETTER DATED 26.08.2016 WAS SENT TO THE ASSESSEE ON THE ADDRESS PROVIDED BY THEM VIA SPEED POST CALLING FOR SPECIFIC QUERIES REGARDING ITS APPLICATION FOR REGISTRATION U/S 12A OF THE A CT FOR COMPLIANCE ON 30.08.2016, HOWEVER, ON THE SAID DATE , NO ONE APP EARED NOR ANY APPLICATION FOR ADJOURNMENT WAS RECEIVED. ACCORDINGLY, THE APPLICATION WAS REJECTED. 5. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO OPPORTUNITY OF BEING HEARD WAS PROVIDED BY THE LD. CIT(E) BEFORE REJEC TING THE APPLICATION FOR GRANT OF REGISTRATION U/S 12A(1) OF THE ACT. 6. IN HER RIVAL SUBMISSIONS, THE LD. DR SUPPORTED THE ORDER OF THE LD. CIT(E). SHE FURTHER SUBMITTED THAT THE ASSESSEE HAD NOT FILED THE EVIDENCE TO ESTABLISH THE GENUINENESS OF ACTIVIT Y. THEREFORE, THE APPLICATION OF THE ASSESSEE WAS RIGHTLY REJECTED. SHE ALSO REITERATED THE OBSERVATIONS MADE BY THE LD. CIT(E) IN PARA 5 OF THE IMPUGNED ORDER. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATER IAL AVAILABLE ON THE RECORD. IN THE ITA NO . 5410 /DE L/2016 GANGA SABHA RISHIKESH 4 PRESENT CASE, IT IS NOTICED THAT LD. CIT(E) HIMSELF ADMITTED THAT APPLICATION OF THE ASSESSEE WAS SENT TO HIS OFFICE BY E - MAIL ON 26.08.2016 AT ABOUT 5 P.M. BY DIRECTORATE OF SYSTEMS, NEW DELHI AND ON THE SAME DATE , A LE TTER WAS WRITTEN TO THE ASSESSEE, CALLING FOR SPECIFIC INQUIRIES REGARDING ITS APPLICATION FOR REGISTRATION U/S 12A OF THE ACT , FOR COMPLIANCE ON 30.08.2016 WHICH REMAINED NON - COMPLIED. THE LD. CIT(E) NOWHERE STATED THAT THE NOTICE FOR HEARING WAS SERVED U PON THE ASSESSEE. IN OUR OPINION, A DUE AND REASONABLE OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE BY THE LD. CIT(E). IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE , THEREFORE, BY KEEPI NG IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND RESTORED THE ISSUE TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ( ORDER PRON OUNCED IN THE COURT ON 01 /0 2 / 2018 ) SD/ - SD/ - ( SUCHITRA KAMBLE ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 01 /0 2 /2018 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR