M/S SHALU MAHILA VIKAS SAMITI, DAUSA V. INCOME TAX OFFICER (EXEMPTION), ALWAR

ITA 666/JPR/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0521 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 14-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANCHAL MEENA JCIT DHK
• Keywords: Maximum Marginal Rate; Corroborative evidences; Competent authority
• Section: 271(1)(c); 12A; 12AA; 68; 12; 11

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES B, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA -@ ITA NO. 666/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2012-13 M/S SHALU MAHILA VIKAS SAMITI, A-19, SHARMA BHAWAN, PRATAP NAGAR COLONY, SOMNATH NAGAR, DAUSA (RAJ)-303303 CUKE VS. I.T.O.(EXEMPTIONS) ALWAR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: ABOFS 9443 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI ANOOP BHATIA (CA) JKTLO DH VKSJ LS @ REVENUE BY : MS. CHANCHAL MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/06/2020 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 12/06/2020 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 28/02/2018 OF LD. CIT(A), ALWAR FOR THE A.Y. 2012-13. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE DENIAL OF EXEMPTION AVAILABLE TO THE ASSESSEE UNDER SECTION 11 & 12 OF THE INCOME TAX ACT 1961 IS INVALID IN LAW AND THEREFORE THE ORDERS PASSED BY LEARNED ASSESSING OFFICER (AO) AS WELL CIT(APPEALS) ARE INVALID IN LAW AND DESERVES TO BE QUASHED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE IN LAW THE COMPUTATION OF TOTAL INCOME MADE BY LEARNED AO AND CONFIRMED BY CIT (APPEALS) IS INVALID IN LAW AND IGNORING THE FACTS AND ITA 666/JP/2018_ SHALU MAHILA VIKAS SAMITI VS ITO(E) 2 CIRCUMSTANCES OF THE CASE THEREFORE SUCH ORDER PASSED IS INVALID IN LAW AND DESERVES TO BE QUASHED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ADDITION OF RS.3,21,250/- MADE UNDER SECTION 68 OF THE INCOME TAX ACT 1961 IN THE ASSESSMENT ORDER IS INVALID IN LAW AND THEREFORE THE ADDITION SO MADE DESERVES TO BE QUASHED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW COMPUTATION OF TAX LIABILITY BY APPLYING THE MAXIMUM MARGINAL RATE IN THE CASE OF ASSESSEE IS INVALID IN LAW AND THEREFORE THE ORDER PASSED BY LEARNED AO IS INVALID IN LAW AND SAME DESERVES TO BE QUASHED. 5. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE INITIATION OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT IS INVALID IN LAW AND SAME DESERVES TO BE QUASHED. 6. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, VARY AND OR WITHDRAW ANY OR ALL THE ABOVE GROUNDS OF APPEAL. 2. THE HEARING OF THE APPEAL WAS CONCLUDED THROUGH VIDEO CONFERENCE IN VIEW OF THE PREVAILING SITUATION OF COVID-19 PANDEMIC. THE ASSESSEE IS A SOCIETY REGISTERED UNDER THE PROVISIONS OF RAJASTHAN SOCIETIES REGISTRATION ACT, 1958. THE ASSESSEE STATED TO HAVE ENGAGED IN THE CHARITABLE WORKS INCLUDING IMPARTING EDUCATION TO WOMEN, PROMOTING HEALTH CARE FOR WOMEN AND CHILDREN ETC. THE ASSESSEE FILES ITS RETURN OF INCOME ON27/02/2013 DECLARING NIL INCOME AFTER CLAIMING EXEMPTION U/S 11 AND 12 OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). THE A.O. WHILE SCRUTINIZING THE RETURN OF INCOME HAD NOTED THAT NO REGISTRATION U/S 12A/12AA OF THE ACT HAS BEEN OBTAINED BY THE ASSESSEE AND THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U/S 11 AND 12 OF THE ACT. ITA 666/JP/2018_ SHALU MAHILA VIKAS SAMITI VS ITO(E) 3 ACCORDINGLY, THE A.O. DISALLOWED CLAIM OF EXEMPTION U/S 11 AND 12 OF THE ACT AS WELL AS MADE ADDITION U/S 68 OF THE ACT TOWARDS THE LOAN AMOUNT RECEIVED FROM ITS MEMBERS DURING THE YEAR OF RS. 3,21,250/-. 3. THE ASSESSEE CHALLENGED THE ACTION OF THE A.O. BEFORE THE LD. CIT(A), HOWEVER, NONE HAS APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE LD. CIT(A) DESPITE SEVERAL OPPORTUNITIES WERE GRANTED, ACCORDINGLY, THE APPEAL OF THE ASSESSEE WAS DISMISSED AND THE ADDITION MADE BY THE A.O. WERE CONFIRMED BY THE LD. CIT(A) WHILE PASSING THE IMPUGNED ORDER. 4. BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE APPLIED FOR REGISTRATION U/S 12A OF THE ACT IN THE YEAR 2003, HOWEVER, THERE WAS NO RESPONSE BY THE AUTHORITY CONCERNED TO THE APPLICATION OF THE ASSESSEE FOR REGISTRATION U/S 12A OF THE ACT. HE HAS FURTHER SUBMITTED THAT THE DEPARTMENT HAS ACKNOWLEDGED THE PENDENCY OF THE APPLICATION OF THE ASSESSEE FOR GRANT OF REGISTRATION U/S 12A OF THE ACT AS PER LETTER DATED 31/03/2005 OF ITO, DAUSA. THE LD AR HAS SUBMITTED THAT THE SAID COPY OF THE SAID LETTER IS PLACED AT PAGE NO. 25 OF THE PAPER BOOK WHEREIN THE ITO, DAUSA HAS ACKNOWLEDGED AND ACCEPTED THE PENDENCY OF THE APPLICATION OF THE ASSESSEE FOR GRANT OF REGISTRATION U/S 12A OF THE ACT AND ALSO ACCEPTED THE POSITION OF THE DEPARTMENT THAT TILL DISPOSAL OF THE SAID APPLICATION, THE ASSESSEE WILL GET THE BENEFIT OF ITA 666/JP/2018_ SHALU MAHILA VIKAS SAMITI VS ITO(E) 4 EXEMPTION U/S 11 AND 12 OF THE ACT. THUS, THE LD AR HAS SUBMITTED THAT WHEN THE APPLICATION OF THE ASSESSEE FOR GRANT OF REGISTRATION U/S 12A OF THE ACT HAS NOT BEEN DISPOSED TILL DATE THEN THE EXEMPTION CLAIMED BY THE ASSESSEE U/S 11 AND 12 OF THE ACT CANNOT BE DENIED. HE HAS FURTHER SUBMITTED THAT THE ASSESSEE HAS ALSO APPROACHED TO THE HONBLE HIGH COURT IN THE WRIT PETITION NO. 40343/2015 WHICH IS PENDING FOR DISPOSAL. THUS, THE LD AR HAS SUBMITTED THAT DENIAL OF EXEMPTION BY THE A.O. IS NOT JUSTIFIED WHEN THE DEPARTMENT HAS NOT DECIDED THE APPLICATION OF THE ASSESSEE FOR GRANT OF REGISTRATION NO. 12A/12AA OF THE ACT SINCE LONG TIME. HE HAS ALSO REFERRED A LETTER DATED 18/11/2015 OF THE ASSESSEE ADDRESSED TO THE A.C.I.T., BHARATPUR AND SUBMITTED THAT IN THE SAID LETTER, THE ASSESSEE HAS AGAIN REQUESTED THE DEPARTMENT TO DECIDE THE APPLICATION DATED 01/10/2003 OF THE ASSESSEE FOR GRANT OF REGISTRATION. THUS, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE DEPARTMENT HAS NEITHER DISPOSED OF THE APPLICATION NOR RESPONDED TO THE VARIOUS LETTERS WRITTEN BY THE ASSESSEE. HENCE, IN THE FACTS AND CIRCUMSTANCES AND IN THE INTEREST OF JUSTICE, THE CLAIM OF EXEMPTION U/S 11 AND 12 OF THE ACT SHOULD BE ALLOWED. HE HAS FURTHER SUBMITTED THAT DUE TO UNAVOIDABLE CIRCUMSTANCES, THE ASSESSEE COULD NOT APPEAR BEFORE THE LD. CIT(A) AND THE APPEAL OF THE ASSESSEE WAS DISMISSED EX PARTE. ITA 666/JP/2018_ SHALU MAHILA VIKAS SAMITI VS ITO(E) 5 5. ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE A.O. HAS GIVEN A CATEGORICAL FINDING THAT THE ASSESSEE HAS NOT OBTAINED THE REGISTRATION U/S 12A/12AA OF THE ACT TILL DATE AND THEREFORE, IN ABSENCE OF REGISTRATION U/S 12A/12AA OF THE ACT, THE ASSESSEE IS NOT ENTITLED FOR EXEMPTION U/S 11 AND 12 OF THE ACT. SHE HAS FURTHER CONTENDED THAT THE ASSESSEE, THOUGH, CLAIMED THE EXEMPTION BUT NO EVIDENCE HAS BEEN PRODUCED EITHER BEFORE THE A.O. OR BEFORE THE LD. CIT(A) OR EVEN BEFORE THIS TRIBUNAL TO SHOW THAT ANY SUCH APPLICATION WAS MADE BY THE ASSESSEE FOR GRANT OF REGISTRATION U/S 12A OR A REGISTRATION U/S 12AA OF THE ACT WAS GRANTED TO THE ASSESSEE. THE LD DR HAS FURTHER SUBMITTED THAT THE LD. CIT(A) HAS GRANTED SIX OPPORTUNITIES TO THE ASSESSEE BUT NO ONE HAS ATTENDED ON ANY OF THESE OCCASIONS ON WHICH THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING BY THE LD. CIT(A). THEREFORE, THE LD. CIT(A) HAS DECIDED THE APPEAL OF THE ASSESSEE EX PARTE WHEN THE ASSESSEE WAS NOT INTERESTED FOR PURSUING THE APPEAL. THE LD DR HAS ALSO REFERRED TO THE LETTER DATED 27/01/2020 OF THE OFFICE OF THE CIT(EXEMPTIONS), JAIPUR AND SUBMITTED THAT AS OF NOW NO SUCH APPLICATION FOR REGISTRATION U/S 12A OF THE ACT IS PENDING BEFORE THE OFFICE OF THE CIT(EXEMPTIONS), JAIPUR, WHO IS THE COMPETENT AUTHORITY TO DECIDE THE APPLICATION FOR GRANT OF REGISTRATION. THUS, UNDER THESE FACTS AND CIRCUMSTANCES, THE ASSESSEE IS NOT ENTITLED ITA 666/JP/2018_ SHALU MAHILA VIKAS SAMITI VS ITO(E) 6 FOR ANY EXEMPTION U/S 11 AND 12 OF THE ACT. SHE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT SO FAR THE ASSESSEE HAS NOT BEEN GRANTED REGISTRATION U/S 12A/12AA OF THE ACT, THOUGH THE ASSESSEE HAS CLAIMED TO HAVE SUBMITTED AN APPLICATION ON 01/10/2003. THUS, THE ASSESSEES CLAIM OF EXEMPTION U/S 11 AND 12 OF THE ACT IS BASED ON THE PLEA THAT THE APPLICATION OF THE ASSESSEE SEEKING REGISTRATION U/S 12A OF THE ACT HAS NOT BEEN DISPOSED OFF BY THE AUTHORITIES OF THE DEPARTMENT AND THEREFORE, THE ASSESSEE IS ENTITLED FOR EXEMPTION U/S 11 AND 12 OF THE ACT. THE DEPARTMENT, ON THE CONTRARY, HAS NOT ACCEPTED THIS CLAIM OF THE ASSESSEE THAT ANY APPLICATION FOR SEEKING REGISTRATION U/S 12A OF THE ACT IS PENDING IN THE OFFICE OF THE LD. CIT(EXEMPTIONS), JAIPUR AND HENCE, NOT DISPOSING OFF THE ALLEGED APPLICATION, DOES NOT ARISE. THIS IS A QUESTION OF FACT REGARDING SUBMITTING OF THE APPLICATION ON BEHALF OF THE ASSESSEE AS CLAIMED ON 01/10/2003 SEEKING REGISTRATION U/S 12A OF THE ACT. THE ASSESSEE HAS NOT FILED ANY RECORD OR COPY OF THE ALLEGED APPLICATION EITHER BEFORE THE AUTHORITIES BELOW OR BEFORE THE TRIBUNAL. THE ASSESSEE IS STRONGLY RELIED UPON A LETTER DATED 31/03/2005 ISSUED BY THE ITO, DAUSA WHEREIN IT IS STATED THAT TILL APPLICATION OF THE ASSESSEE IS DISPOSED OFF FOR GRANT OF REGISTRATION U/S 12A OF THE ACT, THE ASSESSEE WILL GET THE BENEFIT ITA 666/JP/2018_ SHALU MAHILA VIKAS SAMITI VS ITO(E) 7 OF EXEMPTION U/S 11 AND 12 OF THE ACT. IT IS NO CLEAR THAT IN WHAT CAPACITY, THE SAID LETTER DATED 31/03/2005 WAS ISSUED BY THE ITO, DAUSA WHETHER HE WAS FUNCTIONING ON BEHALF OF THE LD. CIT(EXEMPTIONS), JAIPUR OR NOT. FURTHER ALL THESE FACTS REQUIRE A PROPER SCRUTINY OF THE RECORD AND PARTICULARLY ANY DOCUMENTARY EVIDENCE TO BE FILED BY THE ASSESSEE TO SHOW THAT ANY APPLICATION ON BEHALF OF THE ASSESSEE WAS SUBMITTED FOR SEEKING REGISTRATION U/S 12A OF THE ACT AND WHICH HAS NOT BEEN DECIDED TILL DATE. WE FURTHER NOTE THAT IN THE PRESENT APPEAL, THE ASSESSEE IS NOT SEEKING ANY RELIEF REGARDING REGISTRATION U/S 12A OF THE ACT RATHER THE ASSESSEE HAS APPROACHED THE HONBLE HIGH COURT IN WRIT PETITION FOR SEEKING REGISTRATION U/S 12A OF THE ACT. THEREFORE, THERE IS NO DISPUTE IN THIS APPEAL REGARDING THE REGISTRATION U/S 12A OF THE ACT BUT THE ASSESSEE IS SEEKING AN EXEMPTION U/S 11 AND 12 OF THE ACT. SINCE THE LD. CIT(A) HAS DECIDED THE APPEAL OF THE ASSESSEE EX PARTE AND THAT TOO BY A SUMMARY NON-SPEAKING ORDER, THEREFORE, IN THESE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE GRANT ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE BEFORE THE LD. CIT(A) AND ALSO TO PRODUCE THE SUPPORTING EVIDENCE FOR THE CLAIM OF PENDENCY OF THE APPLICATION FOR REGISTRATION U/S 12A OF THE ACT AND CONSEQUENTIAL CLAIM OF EXEMPTION U/S 11 AND 12 OF THE ACT. AFTER CONSIDERING THE RECORD IF ANY FILED BY THE ASSESSEE AS WELL AS GRANTING AN OPPORTUNITY OF HEARING TO THE ITA 666/JP/2018_ SHALU MAHILA VIKAS SAMITI VS ITO(E) 8 ASSESSEE, THE LD. CIT(A) IS DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE ON MERIT PARTICULARLY ON THE FACTUAL ASPECT OF THE FATE OF APPLICATION IF ANY SUBMITTED BY THE ASSESSEE. WE MAY CLARIFY THAT IF THE ASSESSEE AGAIN FAILS TO APPEAR BEFORE THE LD. CIT(A) THEN THE OPPORTUNITY GRANTED BY US SHALL STAND VACATED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JUNE, 2020. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12/06/2020 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S SHALU MAHILA VIKAS SAMITI, DAUSA. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O.(EXEMPTIONS) ALWAR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 666/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR