Oshwal Sarvajanik Trust, JAMNAGAR V. The Commr. Of Income Tax, JAMNAGAR

ITA 632/RJT/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8570 (ITAT-RAJKOT)
• Duration Of Justice: 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 05-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M L MEENA
• Assessee Lawyers: J C RANPURA
• Keywords: Charitable institution

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBULAL, RAJKOT BENCH: RAJKOT , !' # $ , # % BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER &./ I.T.A. NO.632/RJT/2014 ( FINANCIAL YEAR : 2013-14) OSHWAL SARVAJANIK TRUST C/O. SHRI RAMJI ANAND SHAH JAYDEEP OSHWAL COLONY-2 JAMNAGAR / VS. THE COMMISSIONER OF INCOME TAX JAMNAGAR #) !' & ./ * & ./ PAN/GIR NO. : AAATS 9862 L ( )+ / APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+ . ! / APPELLANT BY : SHRI J.C. RANPURA, C.A. ,-)+ / . ! / RESPONDENT BY : SHRI M.L. MEENA, CIT-DR 0 / ' / DATE OF HEARING 03/12/2014 12 / ' / DATE OF PRONOUNCEMENT 05/12/2014 !3 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX-JAMNAGAR (CIT IN SHORT) DATED 15/10/2014. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1.0 THE GROUNDS OF APPEAL MENTIONED HEREUNDER ARE WITHOUT PREJUDICE TO ONE ANOTHER. 2.0 THE LEARNED COMMISSIONER OF INCOME TAX, JAMNAGAR [HEREINAFTER REFERRED TO AS THE CIT] ERRED ON FACTS AS ALSO IN LAW IN REJECT ING THE APPLICATION FOR REGISTRATION U/S.12AA OF THE ACT ON THE ALLEGED GROUND THAT APPELLANT TRUST HAS FAILED TO PRODUCE COPY OF THE ITA NO.632/RJT/2014 OSHWAL SARVAJANIK TRUST,JAMNAGAR VS. CIT-JAMNAGAR - 2 - AMENDMENT REPORT(FERFAR REPORT) ISSUED BY ASSISTANT CHARITY COMMISSIONER, JAMNAGAR ACCEPTING THE AMENDMENT IN TRUST DEED CONTAINING CLAUSE REGARDING PROVISIONS IN THE EVENT OF ITS DISSOLUTION TO THE EFFECT THAT UPON THE DISSOLUTION, ANY PROPERTY/ASSETS REMAINS AFTER SATISFACTION OF ITS DEBTS AND LIABILITIES, THE SAME SHALL BE TRANSFERRED TO THE TRUST HAVING SI MILAR OBJECTS. 2.1. THAT ON FACTS AS ALSO IN LAW THE LD.CIT OUGHT TO HAVE APPRECIATED CLAUSE 12 OF THE TRUST DEED MAKES IT CLEAR THAT PROVISIONS OF THE ACT (BOMBAY PUBLIC TRUST ACT) SHALL BE APPLICABLE IN CASES OF ANY OTHER MATTERS NOT MENTIONED IN THE TRUST DEED. EVEN OTHERWISE A TRUST WHEN REGISTERED UNDER THE BOMBAY PUBLIC TRUST ACT PROVISIONS OF THE SAID ACT ARE APPLICABLE TO THE TRUST IN THE EVEN OF DISSOLUTION. THE LD.CIT BE DIRECTED TO GRANT REGISTRATION. 3.0 YOUR HONOURSAPPELLANT CRAVES LEAVE TO ADD, TO AMEND, ALTER, OR WITHDRAW ANY OR MORE GROUNDS OF APPEAL ON OR BEFORE THE HEARING OF APPEAL. 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE-TRUS T MADE AN APPLICATION FOR REGISTRATION U/S.12A(A) OF THE ACT, WHICH WAS R EJECTED BY THE LD.CIT VIDE HIS ORDER DATED 15/10/2014 ON THE GROUND THAT THE ASSESSEE-TRUST FAILED TO SUBMIT THE COPY OF AMENDMENT REPORT(FERF AR REPORT) ISSUED BY THE CHARITY COMMISSIONER. 3. DURING THE COURSE OF HEARING, THE LD.COUNSEL F OR THE ASSESSEE SUBMITTED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF COORDINATE BENCH (ITAT BENCH B AHMEDABAD) IN ITA NOS.337 & 3 38/AHD/2013 RENDERED IN THE CASE OF SHREE CHARGAM DASHA PORWAD MAHAMANDAL, AHMEDABAD VS. DIT (EXEMPTION)-AHMEDABAD, DATED 08/ 05/2013. 4. ON THE CONTRARY, LD.CIT-DR SUPPORTED THE ORDER O F THE LD.CIT. 5. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL AVAILABLE ON RECORD AND GONE THROUGH DECISION OF COORDINATE BENC H RENDERED IN THE ITA NO.632/RJT/2014 OSHWAL SARVAJANIK TRUST,JAMNAGAR VS. CIT-JAMNAGAR - 3 - CASE OF SHREE CHARGAM DASHA PORWAD MAHAMANDAL, AHME DABAD VS. DIT (EXEMPTION)-AHMEDABAD, DATED 08/05/2013(SUPRA). WE FIND THAT THE TRIBUNAL IN ITA NOS.337 & 338/AHD/2013 IN THE C ASE OF SHREE CHARGAM DASHA PORWAD MAHAMANDAL, AHMEDABAD VS. DIT (EXEMPTION)-AHMEDABAD, VIDE PARA-3, HAS HELD AS UN DER:- 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREF ULLY AND PERUSED THE ORDERS OF THE DIT(EXEMPTIONS) AS WELL A S THE DECISION OF THE ITAT DELHI IN THE CASE OF SHRI SAI SAMARPAN TRUST CO. (SUPRA). WE FIND THAT THE ONLY REASON ADVANCED FOR REFUSING THE REGISTRATION U/S.12AA AND 80G(5) OF THE ACT BY THE DIT(EXEMPTIONS) IS THAT THERE IS NO DISSOLUTION CLA USE IN THE TRUST- DEED AND TRUST DOES NOT HAVE ANY CLAUSE THAT THE TR UST WILL NOT BE DISSOLVED AND IT IS A PERPETUAL TRUST. THIS ISSUE OF REFUSING REGISTRATION IN THE ABSENCE OF DISSOLUTION CLAUSE I N THE TRUST-DEED IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF COORDINATE BENCH OF DELHI TRIBUNAL IN THE CASE OF SHRI SAI SAM ARPAN TRUST CO.(SUPRA), WHEREIN IN PARAGRAPH NO.8 HELD THAT WHE N THE ASSESSEE-TRUST IS REGISTERED WITH THE SUB-REGISTRAR AS A CHARITABLE TRUST, IN THE EVEN OF FAILURE OF THE TRUST THE NET ASSETS/INCOME WOULD OBVIOUSLY BE TAKEN OVER BY THE CHARITY COMMISSIONER AND THE REJECTION OF REGISTRATION ON THIS GROUND WAS HELD N OT ON A SOUND FOOTING AND THE ORDERS OF THE DIT (EXEMPTIONS) WERE REVERSED. WE FIND THAT THE CASE OF THE ASSESSEE IS ON MORE SOUND FOOTING SINCE IT HAS ALREADY APPLIED TO THE CHARITY COMMISSIONER FOR AMENDMENT OF THE TRUST-DEED VIDE APPLICATION SUBMITTED ON 26/ 02/2013, WHEREBY INSERTING THE DISSOLUTION CLAUSE PROVIDING THAT THE TRUST SHALL BE IRREVOCABLE AND IN THE MOST UNLIKELY SITUA TION, IF TRUST PRACTICALLY STOPS FUNCTIONING, IT CAN ONLY BE MERGE D/AMALGAMATED WITH OTHER ONE OR MORE PUBLIC CHARITABLE TRUSTS OR BODIES HAVING SIMILAR OBJECTS SUBJECT TO THE APPROVAL OF THE OFFI CE OF THE PUBLIC CHARITY COMMISSIONER, ETC. NO OTHER MATERIAL HAS B EEN PRODUCED ON BEHALF OF THE REVENUE BEFORE US TO SUGGEST THAT THE AIMS AND OBJECTS OF THE TRUST ARE NOT CHARITABLE IN NATURE. IN THESE FACTS OF THE CASE, WE HOLD THAT THERE IS NO JUSTIFICATION FO R REFUSING THE REGISTRATION U/S.12AA AND 80G(5) OF THE ACT TO THE ASSESSEE, WHICH IS ACCORDINGLY ALLOWED TO THE ASSESSEE AND THE ORDE RS OF THE ITA NO.632/RJT/2014 OSHWAL SARVAJANIK TRUST,JAMNAGAR VS. CIT-JAMNAGAR - 4 - DIT(EXEMPTIONS) IN BOTH THE CASES ARE REVERSED AND WE DIRECT THE DIT(EXEMPTIONS) TO GRANT THE REGISTRATION U/S.12AA & 80G(5) OF THE ACT TO THE ASSESSEE IN BOTH THE CASES AND THE G ROUND(S) IN BOTH THE APPEALS ARE HEREBY ALLOWED. 5.1. IN THE INSTANT CASE, SINCE THE FACTS ARE IDENT ICAL TO THE FACTS OF THE CASE OF SHREE CHARGAM DASHA PORWAD(SUPRA) AND THE R EVENUE HAS NOT POINTED OUT ANY CONTRARY MATERIAL, THEREFORE THE OR DER OF THE LD.CIT IS HEREBY SET ASIDE. THE LD.CIT IS DIRECTED TO GRANT REGISTRATION AS PRAYED BY THE ASSESSEE-TRUST. THUS, ALL THE GROUNDS RAISED IN ASSESSEES APPEAL ARE ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 05 TH DAY OF DECEMBER, 2014 AT RAJKOT. SD/- SD/- ( ) ( $ ) !' # # ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT; DATED 05 / 12 /2014 .. , .../ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT. 3. &6& 7 / CIT-JAMNAGAR 4. 7 ( ) / THE CIT(A)CONCERNED 5. 9$ : , , , /DR,ITAT, RAJKOT 6. : EF G 0 / GUARD FILE. / BY ORDER, - 9 , //TRUE COPY// / !' ( DY./ASSTT.REGISTRAR) '# $%&, / ITAT, RAJKOT ITA NO.632/RJT/2014 OSHWAL SARVAJANIK TRUST,JAMNAGAR VS. CIT-JAMNAGAR - 5 - 1. DATE OF DICTATION .. 03.12.2014(DICTATION-PAD 3 -PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 4.12.14 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BAC K TO THE SR.P.S./P.S.5.12.14 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 5.12.14 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER