STERLITE FOUNDATION, MUMBAI V. DIT (E), MUMBAI

ITA 6251/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1068 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2010-2011
• Appeal Filed On: 03-12-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MAYANK PRIYADARSH
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside

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.6251/MUM/2009 ASSESSMENT YEAR : 2010-11 M/S. STERLITE FOUNDATION OPP. NIRANJAN BUILDING CORNER OF E. ROAD MARINE DRIVE MUMBAI-400 002. ..( APPELLANT ) P.A. NO. (AABTS 7173 D) VS. DIT (EXEMPTION) 6 TH FLOOR, PIRAMAL CHAMBERS LALBAUG MUMBAI. ..( RESPONDENT ) APPELLANT BY : SHRI VIMAL PUNMIYA RESPONDENT BY : SHRI MA YANK PRIYADARSH O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 29.9.2009 PASSED BY THE DIRECTOR OF INCOME TAX(EXEMPTION), MUMBAI, [DIT(E)]. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE APPELL ANT TRUST, STERLITE FOUNDATION, HAS FILED AN APPLICATION ON 16. 3.2009 FOR GRANT OF CERTIFICATE U/S.80G OF THE INCOME TAX ACT, 1961(THE ACT ). THE APPLICATION HAS BEEN MADE IN THE PRESCRIBED FORM-10G AN D WAS ITA NO.6251/M/09 A.Y:10-11 2 ACCOMPANIED WITH VARIOUS DETAILS AND DOCUMENTS. IT HAS B EEN OBSERVED BY THE DIT(E) THAT AS PER PROVISIONS OF SEC.80G, ONE OF THE PRE-REQUISITE CONDITIONS FOR GRANT OF CERTIFICATE IS THAT THE TRUST OR INSTITUTION SHOULD HAVE DULY VALID REGISTRATION U/S.12 A OF THE ACT. IN THE RESENT CASE THE APPLICANT TRUST DOES NOT COMPLY WITH THE SAID BASIC REQUIREMENT OF THE SAID PROVISO AS IN THE CASE OF TH E APPLICANT AN ORDER DATED 7.8.2009 HAS BEEN PASSED WITHDRAWING THE R EGISTRATION U/S.12A OF THE ACT AND ACCORDINGLY THE DIT(E) REJECTED THE APPLICATION FILED BY THE ASSESSEE FOR APPROVAL U/S.80G OF THE ACT. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. DIT(E) T HE ASSESSEE IS IN APPEAL BEFORE US TAKING FOLLOWING GROUNDS OF APPEAL : - 1. FOR THAT THE ORDER OF THE DIT(E), MUMBAI WITHDRAWING THE APPROVAL U/S.80G OF THE INCOME TAX ACT, 1961 IS BAD IN LAW, ARBITRARY, UNJUSTIFIED, UNWARRA NTED, MALAFIDE AND ILLEGAL. 2. FOR THAT THE APPELLANT HAVING NOT BEEN GIVEN REASONABLE OPPORTUNITY OF HEARING WHILE WITHDRAWING THE APPROVAL, THE ORDER OF WITHDRAWAL U/S.80G OF THE IN COME TAX ACT, 1961 WAS THUS PASSED AGAINST THE PRINCIPLE S OF NATURAL JUSTICE AND THUS THE ENTIRE ORDER IS BAD IN LAW AND ILLEGAL. 3. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE APPELLANT HAVING FOL LOWED THE DUE PROCESS OF ALL THE APPLICABLE LAWS IN AMEND ING ITS NAME AND THE OBJECTS, THE DIT(E) SHOULD HAVE GRANTE D THE APPROVAL U/S.80G OF THE INCOME TAX ACT, 1961. 4. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSE SSEE, SUBMITS THAT THE REGISTRATION U/S.12A OF THE ACT WAS GRANTED T O THE ASSESSEE ITA NO.6251/M/09 A.Y:10-11 3 VIDE ORDER DATED 15.10.1992 ON THE BASIS OF TRUST DEED DATED 10.7.1992. SUBSEQUENTLY THE ASSESSEE FILED AN APPLICATI ON ON 3.6.2009 FOR CHANGE OF NAME OF THE TRUST FROM STERLIT E FOUNDATION TO VEDANTA FOUNDATION AND ALSO ALTER THE OBJECT CLAUSE OF THE TRUST TO MAKE IT MORE COMPREHENSIVE TO SUITE THE FUTURE COURSE OF ACTIVITIES TO BE FOLLOWED BY THE TRUST. HOWEVER, THE DIT(E) VIDE O RDER DATED 7.8.2009 WITHDREW THE REGISTRATION GRANTED U/S.12A FR OM THE DATE THE CHANGE HAS OCCURRED. HE FURTHER SUBMITS THAT AGAINST THE SAID ORDER THE ASSESSEE FILED APPEAL TO THE TRIBUNAL AND THE TRIBU NAL IN ITA NO.5340/MUM/2009 FOR ASSESSMENT YEAR 2010-11 ORDER DATE D 1.1.2010 HAS SET ASIDE THE ORDER PASSED BY THE DIT(E) T O HIS FILE. HE ALSO PLACED ON RECORD THE SAID COPY OF THE ORDER OF THE TRIBUNAL. HE THEREFORE SUBMITS THAT IN THE INTEREST OF JUSTICE THE PR ESENT MATTER MAY ALSO BE SET ASIDE 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. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS THE APPROVAL U/S.80G HAS BEEN REFUSED BY THE DIT(E) ON THE GROUND THAT IN THE CASE OF THE A PPLICANT TRUST AN ITA NO.6251/M/09 A.Y:10-11 4 ORDER DATED 7.8.2009 HAS BEEN PASSED WITHDRAWING THE R EGISTRATION U/S.12A OF THE ACT. WE FURTHER FIND THAT THE TRIBUNAL IN ASSESSEE'S OWN CASE SUPRA, IN THE APPEAL FILED BY THE ASSESSEE AGAINST THE WITHDRAWAL OF REGISTRATION U/S.12A OF THE ACT WHILE OBSERVING THAT THERE ARE SOME CONTRADICTIONS ON THE FACTS AND IN THE ORDER OF THE DIT (E) HAS SET ASIDE THE ORDER OF THE DIT(E) AND RESTORED THE MATTER TO H IS FILE. THIS BEING SO AND IN THE INTEREST OF JUSTICE WE ARE OF THE VIEW T HAT THE IMPUGNED ISSUE BE ALSO SET ASIDE TO THE FILE OF THE DIT(E) AND AC CORDINGLY THE ORDER PASSED BY THE DIT(E) IS SET ASIDE AND THE MATTER I S RESTORED BACK TO HIS FILE WHO SHALL DECIDE THE SAME AFRESH IN THE LIGHT OF OUR OBSERVATION HEREINABOVE AND ACCORDING TO LAW AFTER PRO VIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT ASSESSEE'S APPEAL STANDS PARTLY ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23.7.2010. SD/- SD/- (T.R. SOOD) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 23.7.2010. JV. ITA NO.6251/M/09 A.Y:10-11 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. ITA NO.6251/M/09 A.Y:10-11 6 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 21.7.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 21.7.10 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 23.7.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 26.7.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER