M/S. KHOJA SHIA ISNAASHARI JAME MASJID MADRESSA & IMMAMBARA TRUST, MUMBAI V. THE DIT(E), MUMBAI

ITA 592/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7381 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 02-03-2010
• Assessment Year: misc
• Appeal Filed On: 24-01-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K PAHWA; KESHAV PRASAD
• Keywords: Opportunity of being heard; Set aside
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI T.R. SOOD ,(AM) ITA NO.592/MUM/2008 KHOJA SHIA ISNAASHARI JAME MASJID MADRESSA & IMAMBARA TRUST 66-70, HAZRAT ABBAS STREET MUMBAI-400 009. ..( APPELLANT ) P.A. NO. (AAATK 0638 G) VS. DIRECTOR OF INCOME TAX (EXEMPTIONS) 6 TH FLOOR, PIRAMAL CHAMBERS LALBAUG MUMBAI-400 012. ..( RESPONDENT ) ITA NO.593/MUM/2008 KHOJA SHIA ISNAASHARI JAMAAT 66-70, HAZRAT ABBAS STREET MUMBAI-400 009. ..( APPELLANT ) P.A. NO. (AAATK 7524 P) VS. DIRECTOR OF INCOME TAX (EXEMPTIONS) 6 TH FLOOR, PIRAMAL CHAMBERS LALBAUG MUMBAI-400 012. ..( RESPONDENT ) APPELLANT BY : ADJOURNMENT APPLICATION NOT PRESSED. RESPONDENT BY : SHR I S.K. PAHWA AND SHRI KESHAV PRASAD O R D E R PER D.K. AGARWAL (JM). THESE APPEALS PREFERRED BY TWO RESPECTIVE ASSESSEES ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 21.11.2007 P ASSED BY THE DIRECTOR OF INCOME TAX (EXEMPTION), MUMBAI U/S.12AA(1 )(B)(II) R.W.S. ITA NO.592 & 593/M/08 A.Y: 2 12A OF THE INCOME TAX ACT, 1961, (THE ACT). SINCE FACT S ARE IDENTICAL AND GROUNDS ARE COMMON, BOTH THESE APPEALS ARE DISPOSED O F BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEFLY STATED FACTS OF THE CASE IN ITA NO.592/M/2008 IN THE CASE OF KHOJA SHIA ISNAASHARI JAME MASJID MADRESSA & IMAM BARA TRUST, AS OBSERVED BY THE DIT(E ), ARE THAT THE ASSESSEE TRUST CONSTITUTED IN THE YEAR 1901, FILED AN APPLICATION IN FORM NO.10A ON 31.5.2007 SEEKING REGISTRATION U/S.12A OF THE ACT. TH E ASSESSEE WAS ASKED TO FILE CERTAIN DETAILS/DOCUMENTS LIKE PAN, COPY O F BANK ACCOUNTS, NOC, CERTIFICATE OF REGISTRATION ISSUED BY THE CHARITY COMMISSIONER, COPY OF ACCOUNTS, ACTIVITY PROOF, ATTENDANCE BY THE MANAGING TRUSTEES ALONGWITH ORIGINAL DOCUMENTS FOR VE RIFICATION AND THE CASE WAS FIXED FOR 19.10.2007. HOWEVER, IN THE ABSE NCE OF ANY COMPLIANCE BY THE ASSESSEE AND KEEPING IN VIEW THAT THE CA SE IS GETTING TIME BARRED BY 30.11.2007, THE DIT(E) IN TH E ABSENCE OF ANY MATERIAL WHILE OBSERVING THAT HE IS NOT SATISFIED ABOUT THE GENUINENESS OF THE ACTIVITIES OF THE TRUST, REFUSED TO GRANT REGIST RATION TO THE TRUST. 3. BEING AGGRIEVED BY THE ORDER OF THE DIT(E) THE A SSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE VA LIDITY OF THE ORDER PASSED BY THE DIT(E) WITHOUT CONSIDERING THE ASSESSEES REPL Y AND NOT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. ITA NO.592 & 593/M/08 A.Y: 3 4. AT THE TIME OF HEARING THE LD. REPRESENTATIVE OF THE ASSESSEE SUBMITS THAT HE HAS NO OBJECTION IF THE MATTER IS RESTOR ED BACK TO THE FILE OF THE DIT(E). 5. ON THE OTHER HAND THE LD. DR WHILE RELYING ON TH E ORDER OF THE DIT(E) SUBMITS THAT HE HAS NO OBJECTION IF THE ISSUE IS SET ASIDE TO THE FILE OF THE DIT(E). 6. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RIVAL P ARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD WE FIND T HAT THERE IS NO DISPUTE THAT IN THIS CASE ONLY ONE OPPORTUNITY WAS PROVI DED TO THE ASSESSEE TO SUBMIT THE DETAILS, REQUIRED BY DIT(E) AND SI NCE THE CASE WAS GETTING TIME BARRED ON 30.11.2007 THE DIT(E) PASSE D EXPARTE ORDER REFUSING TO GRANT REGISTRATION TO THE TRUST. PE R CONTRA, THE CASE OF THE ASSESSEE IS THAT THE ASSESSEE HAS FILED REPLY ALONGWITH E NCLOSURES ON 20.11.2007 I.E. ONE DAY PRIOR TO THE PASSING OF T HE IMPUGNED ORDER BY THE DIT(E). THIS BEING SO, AND KEEPING IN VIEW TH AT SUFFICIENT OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE MATTER SHOULD GO BACK TO THE FILE OF THE DIT(E) FOR RECONSIDERATION AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE DIT(E) AND RESTORE THE MATTER TO HIS FIL E WHO SHALL DECIDE THE SAME AFRESH AND ACCORDING TO LAW AFTER PROVID ING ITA NO.592 & 593/M/08 A.Y: 4 REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AN D ACCORDINGLY THE GROUNDS TAKEN BY THE ASSESSEE ARE ALLOWED FOR STATISTI CAL PURPOSES. ITA NO.593/M/2008 7. AFTER HEARING THE RIVAL PARTIES AND PERUSING THE M ATERIAL AVAILABLE ON RECORD AND IN THE ABSENCE OF ANY DISTINGU ISHING FEATURE BROUGHT ON RECORD BY THE PARTIES, WE, KEEPING IN VIEW OF OUR FINDING RECORDED IN PARA -6 OF THIS ORDER SET ASIDE THE ORDER P ASSED BY THE DIT(E) AND RESTORE THE MATTER TO HIS FILE, WHO SHALL DECIDE THE SAME AFRESH AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND ACCORDINGLY THE GROUNDS TA KEN BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE ASSESSEES APPEALS STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 5.3.2010. SD/- SD/- (T.R. SOOD) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 5.3.2010. JV. ITA NO.592 & 593/M/08 A.Y: 5 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. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 2.3.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 3.2.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 5.3.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 9.3.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER