SADVICHAR SEVA SANGH, THANE V. DIT (E), MUMBAI

ITA 5621/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1458 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: misc
• Appeal Filed On: 15-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MOHANTY
• Keywords: Charitable institution; Opportunity of being heard
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI A.L. GEHLO T ,(AM) ITA NO.5621/MUM/2009 ASSESSMENT YEAR : NOT APPLICABLE SADVICHAR SEVA SANGH R.D. KHONA F.C.A 104, ANANT LAXMI CHAMBERS SHIVAJI NAGAR, NAUPADA THANE-400 605. ..( APPELLANT ) P.A. NO. (AAHTS 0177 M) VS. DIRECTOR OF INCOME TAX(EXEMTION) PIRAMAL CHAMBER, LALBAUG MUMBAI-400 012. ..( RESPONDENT ) APPELLANT BY : NONE RESPONDENT BY : SHRI S. K. MOHANTY O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 7.9.2009 PASSED BY THE LD. DIRECTOR OF INCO ME TAX(EXEMPTION) [DIT(E)], MUMBAI. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT IT HAS BEEN OBSERVED BY THE DIT(E) THAT THE TRUST HAS BEEN CONSTITUTED ON 12.10 .2005 VIDE TRUST DEED. THE TRUST HAS FILED AN APPLICATION IN FORM NO.10A ON 30.03.2009 FOR REGISTRATION U/S.12A OF THE I.T. ACT, 1 961 I.E. BEYOND ITA NO.5621/M/09 A.Y:NA 2 STIPULATED TIME. A NOTICE WAS SENT TO THE APPLICANT REQU IRING TO FILE CERTAIN DETAILS/DOCUMENTS LIKE PAN, COPY OF BANK ACCOUNT S, NOC, CERTIFICATE OF REGISTRATION ISSUED BY THE CHARITY COMMISSI ONER, COPY OF ACCOUNTS, ACTIVITY PROOF FOR VERIFICATION ETC. NEITHER ANYBODY ATTENDED NOR ANY ADJOURNMENT WAS SOUGHT ON THE SAID DATE. A F INAL CHANCE VIDE LETTER DATED 03.08.2009 WAS GIVEN TO THE APPLICA NT TO PRODUCE THE ORIGINAL DOCUMENTS FOR VERIFICATION ON 21.08.2009. TH E APPLICANT WAS ALSO INTIMATED VIDE THE SAID LETTER THAT IN CASE OF NON -COMPLIANCE, ITS APPLICATION FOR CERTIFICATE U/S.12A WOULD BE DISPOSED OF F ON MERITS. THE LETTER SENT AT THE ADDRESS FURNISHED BY THE APPLIC ANT WAS RETURNED BY THE POSTAL AUTHORITY UNSERVED WITH A REMARK INT. POSTED. SINCE THE MATTER WAS GETTING BARRED BY LIMITATION ON 30.09 .2009, THE DIT(E) UNDER THESE CIRCUMSTANCES DISPOSED OF THE SAME ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD AND IN ACCORDANCE WITH LA W AS HE WAS OF THE VIEW THAT NO FURTHER OPPORTUNITY CAN BE AFFORDE D TO THE APPLICANT. HE FURTHER OBSERVED THAT AS PER THE PROVISION OF SECTION 12AA(1)(B), A TRUST IS TO BE REGISTERED IF THE COMMISSIONER IS SATISFIED ABOUT THE OBJECTS OF THE TRUST AND THE GENUINENESS OF ITS ACTIVITI ES. SINCE THE APPLICANT HAS NOT COMPLIED PROPERLY WITH THE REQUIREM ENTS NECESSARY FOR REGISTRATION U/S.12A OF THE ACT, HE REFUSED TO GRA NT REGISTRATION TO THE APPLICANT TRUST VIDE ORDER DATED 07.09.2009 PASSED U/S.12AA(1)(B)(II) R.W.S. 12A OF THE I.T. ACT, 1961. ITA NO.5621/M/09 A.Y:NA 3 3. BEING AGGRIEVED BY THE ORDER OF THE LD. DIT(E) T HE ASSESSEE IS IN APPEAL BEFORE US TAKING FOLLOWING SOLE GROUND OF APPE AL . ON THE FACTS AND THE CIRCUMSTANCES OF THE ACSE AND IN LAW THE LD. DIRECTORS OF INCOME TAX (EXEMPTI ON) ERRED IN REJECTING APPLICATION FOR REGISTRATION OF CHARITABLE TRUST UNDER SECTION 12A(A) OF INCOME TAX ACT, 1961 AND ALSO ERRED NOT GIVING ADEQUATE OPPORTUNITY TO PRODU CE RELEVANT RECORDS. 4. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE NOR FILED ANY APPLICATION FOR ADJOURNMENT OF THE CASE . IT WAS THEREFORE, DECIDED TO DISPOSE OF THE APPEAL EXPARTE QU A THE ASSESSEE ON MERITS AFTER HEARING THE LD. DR. 5. THE LD. DR SUPPORTS THE ORDER OF THE DIT(E). 6. AFTER HEARING THE LD. DR AND PERUSING THE MATERIA L AVAILABLE ON RECORD WE FIND THAT IT HAS BEEN CONTENDED BY THE ASSESSEE THAT ADEQUATE OPPORTUNITY WAS NOT PROVIDED BY THE LD. DIT (E). WE FURTHER FIND THAT THE LAST LETTER SENT BY THE DIT(E) WAS NOT SERVED ON THE ASSESSEE AND WAS RETURNED BY THE POSTAL AUTHORITY AS UNSE RVED. THE LD. DIT(E) WITHOUT MAKING FURTHER ENQUIRY OR EFFORT S HAS PASSED THE IMPUGNED ORDER EXPARTE REFUSING THE GRANT OF REGISTRA TION TO THE TRUST. AFTER CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMS TANCES OF THE CASE AND KEEPING IN VIEW THE INTEREST OF JUSTICE WE CONSIDER IT FAIR AND REASONABLE THAT ONE MORE OPPORTUNITY BE PROVIDED TO THE ASSESSEE TO ITA NO.5621/M/09 A.Y:NA 4 REPRESENT HIS CASE BEFORE THE LD. DIT(E) AND ACCORDINGL Y WE SET ASIDE THE ORDER PASSED BY THE LD. DIT(E) AND SEND BACK THE MA TTER TO HIS FILE TO DECIDE THE SAME AFRESH AND ACCORDING TO LAW AFTER PR OVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. T HE GROUND TAKEN BY THE ASSESSEE IS, THEREFORE, ALLOWED FOR STATIST ICAL PURPOSES. 7. IN THE RESULT ASSESSEE'S APPEAL STANDS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18.6.2010 SD/- SD/- (A.L. GEHLOT) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 18.6.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.