Vansda Taluka Kelavani Mandal, Navsari V. Commissioner of Income Tax (Exemption), Ahmedabad

ITA 586/SRT/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5814 (ITAT-SURAT)
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2019-2020
• Appeal Filed On: 26-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RASESH SHAH
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside; Audi alteram partem
• Section: 12AA; 13; 22

Judgement Text

VANSDA TALUKA KELAVANI MANDAL VS. CIT(E), AHMEDABAD /ITA NO.586/SRT/2019 /A.Y.2019-20 PAGE 1 OF 6 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI SANDEEP GOSAIN, HON'BLE JUDICIAL MEMBER AND SHRI O.P.MEENA, HON'BLE ACCOUNTANT MEMBER . . ./ I.T.A NO.586/SRT/2019 [ [ / ASSESSMENT YEAR: 2019-20 VANSDA TALUKA KELAVANI MANDAL, SHRI PRATAP HIGH SCHOOL C VANSDA, NAVSARI 396 580. [PAN: AAATV 7853 N] V S . THE COMMISSIONER OF INCOME TAX (EXEMPTION), AHMEDABAD. / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI RASESH SHAH CA /REVENUE BY SHRI SREENIVAS T. BIDARI CIT-DR / DATE OF HEARING: 11.02.2020 /PRONOUNCEMENT ON: 14.02.2020 /O R D E R PER SANDEEP GOSAIN, JM: 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD.COMMISSIONER OF INCOME TAX(APPEALS)-1, SURAT DATED 08.09.2017 FOR THE ASSESSMENT YEAR 2012-13. 2. GROUNDS RAISED BY THE ASSESSEE READ AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(EXEMPTION) HAS ERRED IN REFUSING THE RECOGNITION OF TRUST U/S. 80G(5) OF INCOME TAX ACT WITHOUT GRANTING THE REASONABLE AND SUFFICIENT OPPORTUNITY FOR THE COMPLIANCE OF NOTICE DATED 11.10.2019 GRANTING VERY LESS TIME. ASSESSEE SUBMITS THAT HE FILED PART DETAILS VIDE SUBMISSION DATED 16.10.2019 AND 17.10.2019 AGAINST THE SHORT NOTICE GIVEN. HOWEVER FURTHER TIME WAS NOT GIVEN BY THE ASSESSING OFFICER. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(EXEMPTION) HAS ERRED IN REFUSING THE RECOGNITION OF TRUST U/S. 80G(5) OF INCOME TAX ACT WHEN THE DETAILS THAT WAS SOUGHT TO BE COMPLIED WERE ALREADY ON RECORDS. ASSESSEE SUBMITS THAT BEING EDUCATIONAL VANSDA TALUKA KELAVANI MANDAL VS. CIT(E), AHMEDABAD /ITA NO.586/SRT/2019 /A.Y.2019-20 PAGE 2 OF 6 INSTITUTION ASSESSEE WAS NOT REQUIRED TO APPLY THE REGISTRATION U/S. 12AA AS HIS INCOME IS EXEMPTED U/S. 10(23C). 3. IT IS THEREFORE PRAYED THAT ORDER PASSED BY CIT (EXEMPTION) MAY KINDLY BE SET ASIDE DIRECTING HIM TO GRANT RECOGNITION OF TRUST U/S. 80G(5). 4. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE APPEAL. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS APPLIED FOR REGISTRATION OF TRUST U/S.80G(5) OF THE INCOME TAX ACT BEFORE THE LD.CIT(EXEMPTION), AHMEDABAD, HOWEVER, THE SAID APPLICATION FOR REGISTRATION U/S.80G(5) OF THE INCOME TAX ACT WAS REJECTED BY THE CIT(EXEMPTION), AHMEDABAD BY HOLDING THAT ASSESSEE FAILED TO FILE DOCUMENTARY EVIDENCES TO ENABLE HIM TO BRING SATISFACTION ABOUT THE GENUINENESS OF THE TRUST ACTIVITIES. 4. THE LD.CIT(EXEMPTION) HELD THAT THE ASSESSEE HAS NOT FILED COPY OF CONSTITUTION DULY CERTIFIED BY THE TRUSTEE, COPY OF TRUST PAN CARD, RECEIPT OF PAYMENT ACCOUNT, INCOME AND EXPENDITURE ACCOUNT AND AUDITED ACCOUNTS FOR THE YEAR F.Y. 2018-19, UNDERTAKING U/S.13(3) & 11(5) OF THE I.T.ACT, 1961 AND THE COPY OF REGISTRATION CERTIFICATE U/S.12AA OF THE I.T.ACT, 1961. HE FURTHER SUBMITTED THAT DESPITE SPECIFIC REQUISITIONS, THE ASSESSEE HAS NOT SUBMITTED THE REQUISITE DETAILS CALLED FOR, THUS, THE GENUINENESS OF THE ACTIVITIES DO NOT GET ESTABLISHED FOR THE ASSESSEE. 5. THE LD.AUTHORISED REPRESENTATIVE (AR) SUBMITTED THAT ACCORDING TO THE ASSESSEE HE HAS SENT ALL THE DOCUMENTS THROUGH EMAIL WHICH WERE NOT CONSIDERED BY THE LD.CIT(A) AND THE DETAILS OF VANSDA TALUKA KELAVANI MANDAL VS. CIT(E), AHMEDABAD /ITA NO.586/SRT/2019 /A.Y.2019-20 PAGE 3 OF 6 THE DOCUMENTS SENT BY EMAIL HAVE ALREADY BEEN PLACED ON RECORDED BY THE ASSESSEE BEFORE US FROM PAGE 1 TO 178, THE INDEX OF THE SAME IS REPRODUCED BELOW: SR.NO. PARTICULARS DATE PAGE NO 1. FORM 10G 17.04.2019 1 - 2 2. ACTIVITY REPORT -- 3 3. AUDITED FINANCIAL STATEMENTS FOR THE AY. 2016-17. 20.06.2016 4 12 4. TRUST REGISTRATION CERTIFICATE BY CHARITY COMMISSIONER -- 13 5. PHOTOS OF THE SCHOOL OPERATED BY THE TRUST 6. NOTICE ISSUED BY ASSESSING OFFICER 11.10.2019 20 22 7. PROOF OF THE E - MAIL TO THE ASSESSING OFFICER 03.10.2019 23 24 8. UNDERTAKING AND DECLARATION 02.10.2019 25 29 9. NOTICE ISSUED BY ASSESSING OFFICER 26.09.2019 30 31 10. AUDITED FINANCIAL STATEMENTS FOR THE AY. 2019-20 24.06.2019 32 40 11. BANK ACCOUNT STATEMENT AY. 2019-20. 01.04.2018 31.03.2019 41 66 12. DOCUMENT EVIDENCING THE REGISTRATION OF THE TRUST IN BOMBAY PUBLIC TRUST ACT, 1950. 04.07.2018 67 80 13. AUDITED FINANCIAL STATEMENTS FOR THE A.Y. 2018-19. 11.06.2018 81 89 14. BANK ACCOUNT STATEMENT AY. 2018-19 01.04.2017 - 31.03.2018 90 110 15. TAX BILL AN D LIGHT BILL. 26.02.2018 111 114 16. AUDITED FINANCIAL STATEMENTS FOR THE AY. 2017-18. 20.07.2017 115 123 17. BANK ACCOUNT STATEMENT AY.2017-18 01.04.2016 - 31.03.2017 124 131 18. AADHAR CARD OF THE TRUSTEES. -- 132 146 19. DETAILS OF DONORS FOR THE A.Y. 2017-18, AY. 2018-19 AND A.Y. 2019-20 -- 147 157 20. CONSTITUTION OF THE TRUST. -- 158 173 21. PAN CARD OF THE TRUST. -- 174 22. PHOTOS EVIDENCING THE CHARITABLE ACTIVITIES DONE BY THE TRUST. -- 175 176 23. CERTIFICATE FROM GUJARAT SECONDARY EDUCATION BOARD 20.06.1997 177 24. CERTIFICATE U/S. 80G(5) OF THE ACT 25.01.1994 178 6. HOWEVER, A NOTICE WAS SERVED TO ASSESSEE DATED 26.09.2019 ASKED ASSESSEE TO FURNISH DETAILED NOTE ON THE ACTIVITIES ACTUALLY CARRIED OUT BY THE TRUST AS WELL AS CERTAIN DETAILS/DOCUMENTS AS VANSDA TALUKA KELAVANI MANDAL VS. CIT(E), AHMEDABAD /ITA NO.586/SRT/2019 /A.Y.2019-20 PAGE 4 OF 6 MENTIONED THEREIN. IN RESPONSE FOR THE NOTICE, THE ASSESSEE SUBMITTED DETAILS IN PART ON 16.10.2019 & 17.10.2019 THROUGH E- MAIL. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAD ALREADY SUBMITTED ALL THE REQUIRED DOCUMENTS BEFORE THE LD.CIT(EXEMPTION) THROUGH E-MAIL AND THUS THE FINDINGS RECORDED BY LD.CIT(EXEMPTION) ARE FACTUALLY INCORRECT. 7. BE THAT AS IT MAY, AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF LEARNED CIT(EXEMPTION). SINCE THE ASSESSEE HAD ALREADY SUBMITTED ALL THE REQUIRED DOCUMENTS BY EMAIL BEFORE THE LD.CIT(EXEMPTION) WHICH DO NOT FIND MENTION IN THE ORDER, THEREFORE IT CAN BE INFERRED THAT THOSE WERE NOT CONSIDERED. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNITY TO DEFEND HIMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGHT TO PRESENT CASE AND EVIDENCE, RIGHT TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION, DISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. WE TOOK THIS GUIDANCE FOR RIGHT OF HEARING, FROM THE RATIO AS IS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI V. UNION OF INDIA, WHEREIN HON'BLE SUPREME COURT HAS LAID DOWN THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSING ANY ORDER. VANSDA TALUKA KELAVANI MANDAL VS. CIT(E), AHMEDABAD /ITA NO.586/SRT/2019 /A.Y.2019-20 PAGE 5 OF 6 WE FIND THAT IT IS PRE-DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. WE, ARE THEREFORE, OF THE VIEW THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF LEARNED CIT(EXEMPTION). THUS, WHILE SETTING ASIDE THE ORDER OF LD.CIT(E), WE RESTORE IT BACK TO LD.CIT(EXEMPTION) AND DIRECT THAT ALL THE DOCUMENTS FILED BY ASSESSEE THROUGH E-MAIL BE CONSIDERED AND THE ASSESSEE BE GIVEN ONE MORE OPPORTUNITY OF BEING HEARD AND TO FILE ALL THE DOCUMENTS BEFORE THE LD.CIT(EXEMPTION), AHMEDABAD AS CALLED-FOR AND THE LD.CIT(EXEMPTION) IS ALSO DIRECTED TO DECIDE THE APPLICATION FOR REGISTRATION FILED BY THE ASSESSEE BY PASSING A FRESH ORDER, IF THE ASSESSEE WANTS TO SUBMIT ANY DOCUMENTS, HE IS AT LIBERTY TO SUBMIT BEFORE THE LD.CIT(E), ACCORDINGLY THE APPEAL OF THE ASSESSEE SET-ASIDE TO THE FILE OF LD.CIT(EXEMPTION) FOR STATISTICAL PURPOSES. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 9. ORDER PRONOUNCED IN THE OPEN COURT ON 14-02-2020. SD/- SD/- (O.P.MEENA) (SANDEEP GOSAIN) ( /ACCOUNTANT MEMBER) ( /JUDICIAL MEMBER) / SURAT, DATED : 14 TH FEBRUARY , 2020/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT VANSDA TALUKA KELAVANI MANDAL VS. CIT(E), AHMEDABAD /ITA NO.586/SRT/2019 /A.Y.2019-20 PAGE 6 OF 6