Akhand Bharat Public Welfare Charitable Trust, Kolkata V. DIT, Exemption, Kolkata, Kolkata

ITA 567/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54520 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2011
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 11-04-2011
• Court: TRIBUNAL
• Department Lawyers: S K ROY LD
• Assessee Lawyers: AVIJIT KR SEN LD
• Keywords: Charitable institution; Opportunity of being heard
• Section: 80G; 12AA

Judgement Text

I.T.A NO. 567/KOL/2011-C--SVM 1 , C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA BEFORE HONBLE SRI B.R. MITTA L, JM & HONBLE SRI S.V MEHROTRA, AM () . . , ! . '.#$%, #& !' / I.T.A NO.567/KOL/2011 AKHAND BHARAT PUBLIC VS. DIRECTOR OF INCOME-TAX (EXEMPTION) WELFARE CHARITABLE TRUST KOLKATA PAN:AACTA 9879K (() /APPELLANT ) (*+()/ RESPONDENT ) () / FOR THE APPELLANT : - / SHRI AVIJIT KR.SEN, LD.AR *+() / FOR THE RESPONDENT : - /SHRI S.K. ROY, LD.DR #. / ORDER . '.#$%, #& SHRI S.V MEHROTRA, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED DIRECTOR OF INCOME-TAX, KOLKATA DATED 03.02.2011 REJECTING TH E APPLICATION IN FORM NO.10A & 10G DATED 23.11.2010 FOR GRANT OF REGISTRATION U/S.12AA AND APPROVAL U/S.80G(5)(VI) OF THE INCOME-TAX ACT, 1961. 2. GROUNDS OF APPEAL READ AS UNDER:- 1. FOR THAT THE LEARNED DIRECTOR OF INCOME TAX (EX EMPTION) KOLKATA WAS NOT JUSTIFIED IN REJECTING THE APPLICATION FOR REGI STRATION OF AKHAND BHRAT PUBLIC WELFARE CHARITABLE TRUST , U/S I2AA AND INI TIAL EXEMPTION U/S 80G OF THE INCOME TAX ACT 1961, WHEN THE APPELL ANT HAD FILED THE PROPER APPLICATION, REGISTERED TRUST DEED ALONG WITH THE S UPPORTING DOCUMENTS AND NECESSARY EXPLANATION RELATING TO THE REGISTRATION OF THE TRUST U/S I2AA AND INITIAL EXEMPTION U/S 80G OF THE INCOME TAX ACT 196 1. 2 FOR THAT THE REJECTION OF APPLICATION FOR REGIST RATION OF TRUST BY THE LEARNED DIRECTOR OF INCOME TAX (EXEMPTION) KOLKATA IS BAD IN LAW. 3. FOR THAT THE LEARNED DIRECTOR OF INCOME TAX ( E XEMPTION ) KOLKATA FAILED TO CONSIDER THE LETTER ISSUED BY THE LAND LA DY OF THE PREMISES NO.42, STRAND ROAD, KOLKATA-700 007 ALLOWING THE TRUST TO USE 100 SQ,FT AREA AS REGISTERED OFFICE OF THE TRUST ON FREE OF RENT AND THAT THE LAND LORD OF THE AFORESAID PREMISES IS NEITHER A TRUSTEE NOR THE SET TLOR OF AFORESAID TRUST AND THE LEARNED DIRECTOR OF INCOME TAX ( EXEMPTION ) KO LKATA REJECTED THE APPLICATION ON THE GROUND THAT THE SETTLOR IS RUNNI NG OFFICE FROM HIS RESIDENCE AND THAT SETTLOR HAS CONTROL OVER THE FUND IS NOT C ORRECT. I.T.A NO. 567/KOL/2011-C--SVM 2 4 FOR THAT THE LEARNED DIRECTOR OF INCOME TAX (EXE MPTION) KOLKATA DID NO ALLOW US THE REASONABLE OPPORTUNITY OF BEING HEA RD PRIOR TO REJECTION OF THE APPLICATION FOR REGISTRATION OF THE TRUST. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAD FILED THE APPLICATION IN FORM 10A & 10G DATED 23.11.2010 FOR GRANT OF REGISTRATION U /S.12AA AND FOR APPROVAL U/S.80G(5)(VI) OF THE INCOME-TAX ACT, 1961. THE LEARNED DIT(EXEMPT ION) KOLKAT REJECTED BOTH THE APPLICATIONS OBSERVING AS UNDER:- IN COURSE OF PROCESSING THE ABOVE APPLICATIONS A.K . SEN, A/R APPEARED AND THE CASE WAS DISCUSSED WITH HIM. FRO M THE RECORDS IT IS SEEN THAT THE TRUST IS RUN BY THE SETTLER FROM HIS RESIDENCE WHICH VIOLATES THE IRREVOCABILITY CLAUSE OF THE TRUST AND STILL THE SETTLER HAS CONTROL OVER THE FUND. 4. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO PAGE NO.34 OF THE PAPER BOOK, WHEREIN THE CERTIFICATE OF KALI PRASAD SONKAR IS CONTAINED CERTIFYING THAT HE HAS ACCORDED HIS CONSENT TO AKHAND BHARAT PUBLIC WELFARE CHARITABLE TRUST FO R USING 200 SQ.FT. AREA ON THE 2 ND FLOOR OF HIS PREMISES SITUATED AT 48 STRAND ROAD, 2 ND FLOOR, KOLKATA-700 007. WITH REFERENCE TO ABOVE MENTIONED CERTIFICATE THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT REGISTRATION HAS WRONGLY BEEN REJECTED. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED O N THE ORDER OF THE LEARNED DIT(EXEMPTION). 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORD OF THE CASE. 6.1 IN GROUND NO.4 IT IS STATED THAT ASSESSEE WAS N OT ALLOWED REASONABLE OPPORTUNITY OF BEING HEARD PRIOR TO REJECTION OF APPLICATION FOR R EGISTRATION OF THE TRUST. THE REGISTRATION HAS BEEN REFUSED ON THE GROUND THAT THE TRUST IS RUN B Y THE SETTLER FROM HIS RESIDENCE. HOWEVER, THE CERTIFICATE FILED BY THE ASSESSEE SPEAKS A DIFF ERENT VERSION ALTOGETHER. UNDER SUCH CIRCUMSTANCES, AS AGREED BY BOTH THE PARTIES, WE RE STORE THE MATTER BACK TO THE FILE OF THE LEARNED DIRECTOR OF INCOME-TAX (EXEMPTION), KOLKATA FOR CONSIDERATION OF ASSESSEES APPLICATIONS FOR REGISTRATION U/S. 12AA AND EXEMPTI ON U/S.80G DENEVO. I.T.A NO. 567/KOL/2011-C--SVM 3 7. IN THE RESULT, THE ASSESSEES APPEAL [ITA NO.56 7/KOL/2011] IS ALLOWED FOR STATISTICAL PURPOSES. $ #. &/# 0 /1 2 $3 4& 05-09--2011 ORDER PRONOUNCED IN THE OPEN COURT ON 05-09-2011 SD/- SD/- [ . . ] [ . '.#$% , #& ] ( B.R.MITTAL, JUDICIAL MEMBER) (S.V. MEHROTRA, ACCOUNTANT MEMBER ) (4&) DATED : 05-09-2011 *PP 56 178 9 /SR.P.S. #. : *; <#;=>- COPY OF THE ORDER FORWARDED TO: 1. () /APPELLANT- AKHAND BHARAT PUBLIC WELFARE CHARITAB LE TRUST 42 STRAND ROAD, KOLKATA-700 007. 2 *+() / RESPONDENT : DIRECTOR OF INCOME-TAX (EXEMPTION) 10B, MIDDLETON ROW, 6 TH FL., KOL-71. 3. .1/ THE DIT, KOLKATA 4. .1 ()/ THE CIT(A), KOLKATA. 5. '2 *1/ DR, KOLKATA BENCHES, KOLKATA +; */ TRUE COPY , #.1// BY ORDER , $ !8 /ASSTT. REGISTRAR