Advik Foundation, Pune V. Commissioner of Income-tax : V,

ITA 64/PUN/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0271 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 15-01-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Question of law; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 80G; 12AA

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , . . , # BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM . / ITA NO.64/PUN/2015 % % / ASSESSMENT YEAR : 2010-11 ADVIK FOUNDATION, GAT NO.357, PLOT NO.99, PART A, CHAKAN TALEGAON ROAD, DIST. PUNE 410 501 PAN NO. AACTA7461R . / APPELLANT V/S CIT-V, PUNE . /RESPONDENT / APPELLANT BY : SHRI SHARAD SHAH / RESPONDENT BY : SHRI RAJEEV KUMAR, CIT / ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 03-11-2014 PASSED U/S.80G(5)(VI) R.W.S. 254 OF THE I. T. ACT. R.W. RULE 11AA OF THE I.T. RULES, 1962 BY THE CIT-V, PUNE 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE T RUST HAD FILED AN APPLICATION IN FORM 10G FOR GRANT OF RECOGNITION U/S.80G OF THE I.T. ACT ALONG WITH APPLICATION FOR REGISTRATION U/S.12A. SINCE TH E APPLICATION OF THE ASSESSEE TRUST FOR GRANT OF RECOGNITION U/S.12A WAS REJECTED BY THE CIT VIDE ORDER DATED 18-07-2011, THER EFORE, HE REJECTED THE APPLICATION FOR APPROVAL U/S.80G OF THE I.T. ACT ON THE GROUND THAT REGISTRATION U/S.12A IS A PRE-REQUISITE FOR REGISTRATION U/ S.80G. / DATE OF HEARING :22.12.2016 / DATE OF PRONOUNCEMENT:28.12.2016 2 ITA NO.64/PUN/2015 FURTHER, THE APPLICATION OF THE ASSESSEE FROM THE PERCEP TIVE OF FULFILLMENT OF CONDITIONS U/S.80G WAS ALSO NEVER EXAMINED AS T HE PRIMARY CONDITIONS OF RECOGNITION U/S.12A WAS NOT FULFILLED. 3. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ITA NOS.1617 AND 1618/PN/2011 ORDER DATED 24-06-2013 SET ASIDE THE ORDER OF THE CIT, PUNE AND D IRECTED HIM TO GRANT REGISTRATION U/S.12AA(1)(B) OF THE I.T. ACT AND ALSO TO ALLOW THE RECOGNITION U/S.80G OF THE I.T. ACT. ACCORDINGLY, THE REG ISTRATION U/S.12AA(1)(B) OF THE I.T. ACT WAS GRANTED W.E.F. A.Y. 2011-12 V IDE ORDER DATED 09-11-2013. HOWEVER, THE LD.CIT WHILE GRA NTING RECOGNITION U/S.80G OF THE I.T. ACT HELD THAT THE SAME IS SUBJECT TO THE DECISION OF THE SUPERIOR COURTS SINCE THE DECISION OF THE T RIBUNAL WAS NOT ACCEPTED BY THE REVENUE AND AN APPEAL HAS BEEN P REFERRED BEFORE THE HONBLE HIGH COURT AGAINST THE DECISION OF THE TRIBUNA L. ACCORDINGLY, HE HELD THAT IN CASE THE APPEAL IS DECIDED IN FAVOUR OF REVENUE, THE RECOGNITION OF THE TRUST U/S.80G AND BENEFI TS THEREOF IN THE HANDS OF THE TRUST AS WELL AS THE DONORS SHALL BE WIT HDRAWN FROM A.Y. 2011-12. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT GRANTING CONDITION AL RECOGNITION U/S.80G OF THE I.T. ACT THE ASSESSEE HAS FILED THE APPEAL BEFORE THE TRIBUNAL WITH THE FOLLOWING GROUNDS : 1. THE LD.CIT-V ERRED IN ADDING A QUALIFICATION (R EPRODUCED HEREUNDER) WHILE GRANTING RECOGNITION U/S.80G AS A CO NSEQUENCE OF ITAT ORDER : QUALIFICATION REFERRED TO ABOVE- 'HOWEVER, THE DECISION OF HON. ITAT HAS NOT BEEN ACC EPTED BY THE REVENUE AND AN APPEAL HAS BEEN PREFERRED BEFORE THE HIGH COU RT AGAINST THE DECISION OF ITAT, PUNE. THEREFORE, IT IS DECLARED THA T THIS ORDER IS SUBJECT TO THE DECISION OF SUPERIOR COURT AND THE MATTER IS SUB JUDICE. IN CASE, THE APPEAL IS DECIDED IN FAVOUR OF REVENUE, THE RECOGNIT ION OF THIS TRUST U/S 3 ITA NO.64/PUN/2015 80G AND BENEFITS THEREOF IN THE HANDS OF TRUST AS WELL AS DONORS SHALL BE WITHDRAWAL FROM AY 2011-12. IN VIEW OF THE ABOVE, THE DONATIONS MADE TO ADVIK FO UNDATION, AT THE GAT NO. 357, PLOT NO.99, PART NO. A, CHAKAN - TALEGAON ROAD KHARABWADI, CHAKAN, PUNE - 410501 WILL BE ELIGIBLE FOR THE BENE FIT OF DEDUCTION U/S 80G OF THE INCOME TAX ACT, 1961 IN THE HANDS OF DONOR. SUBJECT TO FINAL OUTCOME OF THE HIGHER COURTS AND THE LIMITS AN CONDITIONS PRESC RIBED IN THE RELEVANT SECTION. 2. THE LD. CIT-V ERRED IN NOT FOLLOWING THE ORDER O F HON. PUNE TRIBUNAL IN ITS ESSENCE. 3. THE APPELLANT CRAVES ITS RIGHT TO ADD TO OR ALTER THE GROUNDS OF APPEAL AT ANY TIME BEFORE OR DURING THE COURSE OF HE ARING OF THE CASE. 5. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET FILED A COPY OF THE ORDER OF THE HONBLE BOMBAY HIGH COURT AND SUBMITTED TH AT THE APPEAL FILED BY THE REVENUE HAS BEEN DISMISSED. THEREFORE, THE QU ALIFICATIONS IN THE ORDER OF THE CIT WHILE GRANTING RECOGNITION U/S.80G BECOME INFRUCTUOUS AND THE SAME BE DIRECTED TO BE DELETED. 6. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAN D FAIRLY CONCEDED THAT THE APPEAL FILED BY THE REVENUE HAS BEEN DISMISSED BY THE HONBLE HIGH COURT. THEREFORE, THE QUALIFICATIONS IN THE ORDER OF THE CIT ARE NO LONGER APPLICABLE. 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES. WE FIND, THE LD.CIT ON THE BASIS OF THE DIRECTION OF THE TRIB UNAL WHILE GRANTING REGISTRATION U/S.12A GRANTED RECOGNITION U/S.80G WITH THE CONDITION THAT THE SAID ORDER IS SUBJECT TO THE DECISION OF THE HONBLE HIGH COURT. HE HELD THAT IN CASE THE APPEAL IS DECIDED IN FAVOUR OF THE REVENUE, THE RECOGNITION OF THE TRUST U/S.80G AND BENEFIT S THEREOF IN THE HANDS OF THE TRUST AS WELL AS DONORS SHALL BE WITHDRA WN FROM A.Y. 2011-12. WE FIND AGAINST THE ORDER OF THE TRIBUNAL GRANTING APPROVAL U/S. 80G THE REVENUE PREFERRED AN APPEAL BEFORE THE HO NBLE HIGH 4 ITA NO.64/PUN/2015 COURT. THE HONBLE HIGH COURT VIDE ITA NO.436/2014 ORD ER DATED 30-08-2016 DISMISSED THE APPEAL FILED BY THE REVENUE BY O BSERVING AS UNDER : 4. THE GRIEVANCE OF THE REVENUE IS THAT THE COMMISSIO NER OF INCOME TAX HAD DECLINED TO GRANT RECOGNITION TO THE RESPOND ENT-ASSESSEE UNDER SECTION 80G OF THE ACT ON GROUNDS OTHER THAN MERELY O N ACCOUNT OF NOT HAVING REGISTRATION UNDER SECTION 12AA OF THE ACT. T HEREFORE, WE ASKED MR. SINGH, LEARNED COUNSEL FOR THE REVENUE WHETHER T HE REVENUE SOUGHT TO SUPPORT THE ORDER OF THE COMMISSIONER OF INCOME TAX ON OTHER GROUNDS BEFORE THE TRIBUNAL AS IS NOW BEING SUGGESTED BY HIM OR DID ALL PROCEED ON THE BASIS THAT IN THE PRESENT FACTS, RECOGNITION UNDER SECTION 80G OF THE ACT WAS A CONSEQUENCE OF REGISTRATION UNDER SECTION 12AA OF THE ACT. 5. MR. TEJVEER SINGH, LEARNED COUNSEL APPEARING FOR THE REVENUE COULD NOT POINT OUT ANY SUBMISSION ON BEHALF OF THE REVENUE CONTENDING THAT THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX NOT GRAN TING RECOGNITION UNDER SECTION 80G OF THE ACT IS SUSTAINABLE BECAUSE THE RESPONDENT ASSESSEE HAS FAILED TO SATISFY THE OTHER CONDITIONS STIPULAT ED IN THE ORDER OF THE COMMISSIONER OF INCOME TAX. IN CASE THE POINTS BEI NG NOW URGED WERE URGED BEFORE THE TRIBUNAL AND NOT RECORDED BY THE T RIBUNAL, THEN THE ORDER OUGHT TO HAVE BEEN RECTIFIED. 6. IT APPEARS THAT THE ONLY ISSUE BEFORE THE TRIBUNAL WAS NOT GRANTING OF RECOGNITION UNDER SECTION 80G OF THE ACT CONSEQUEN T TO NON-REGISTRATION UNDER SECTION 12AA OF THE ACT. THUS, THE IMPUGNED OR DER AFTER HAVING ALLOWED REGISTRATION UNDER SECTION 12AA OF THE ACT, I PSO FACTO DIRECTED RECOGNITION UNDER SECTION 80G OF THE ACT. IN VIEW O F THE ABOVE, THE QUESTION IS FORMULATED DOES NOT GIVE RISE TO ANY SUBSTANT IAL QUESTION OF LAW. THUS, NOT ENTERTAINED. ACCORDINGLY, THE APPEAL IS DISMISSED. NO ORDER AS TO C OSTS. 8. IN VIEW OF THE DECISION OF THE HONBLE HIGH COURT DISMISS ING THE APPEAL OF THE REVENUE, THE QUALIFICATION BY THE CIT WHILE G RANTING RECOGNITION U/S.80G OF THE I.T. ACT DOES NOT SURVIVE AND THEREFORE THE ABOVE QUALIFICATION IS DIRECTED TO BE EXPUNGED. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28-12-2016. SD/- SD/- (SUSHMA CHOWLA) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE; ' DATED : 28 TH DECEMBER, 2016. 5 ITA NO.64/PUN/2015 ' (*+ ,+/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. $ ''( , ( , / DR, ITAT, A PUNE; 4. + / GUARD FILE. / BY ORDER, // $ ' //TRUE COPY // Y // -. ' ( / SR. PRIVATE SECRETARY ( , / ITAT, PUNE