Shri Harbhaj Ram Kripa Devi Trust, Lucknow V. Commissioner of Income Tax-II, Lucknow

ITA 674/LKW/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8017 (ITAT-LUCKNOW)
• Duration Of Justice: 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-08-2014
• Assessment Year: misc
• Appeal Filed On: 11-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K NIGAM
• Assessee Lawyers: P K KAPOOR
• Keywords: Charitable institution
• Section: 12A; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 674/LKW/2013 SHRI. HARBHAJ R AM KRIPA DEVI TRUST NAKA HINDOLA, CHARBAGH LUCKNOW V. CI T - II LUCKNOW PAN: AADTS6079E (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. P. K. KAPOOR, C.A. RESPONDENT BY: SHRI. A. K. NIGAM, CIT (DR) DATE OF HEARING: 21 0 8 2014 DATE OF PRONOUNCEMENT: 25 0 8 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEA L IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME - TAX - II, LUCKNOW ON A SOLITARY GROUND THAT THE LD. COMMISSIONER OF INCOME - TAX HAS ERRED IN REFUSING TO AMEND THE ORDER DATED 19.3.2013 GRANTING CONDITIONAL APPROVAL UNDER SEC TION 80G(5)(VI) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT'). 2 . DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE FACT THAT REGISTRATION UNDER SECTION 12A OF THE ACT WAS GRANT ED TO THE ASSESSEE VIDE ORDER DATED 26.9.2007. APPROVAL UNDER SECTION 80G(5) OF THE ACT WAS GRANTED TO THE ASSESSEE WITH A CONDITION THAT APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT IS ACCORDED TO THE APPELLANT - TRUST W.E.F. 1.4.2012 IN RESPECT OF A SPECI FIC DONATION TO BE RECEIVED FROM THE STATE BANK OF INDIA TOWARDS PURCHASE OF DIGITAL X - RAY MACHINE ONLY. THE CONDITIONAL APPROVAL IS NOT PRESCRIBED UNDER SECTION PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : 80G(5) OF THE ACT. WHILE GRANTING APPROVAL UNDER SECTION 80G(5) OF THE ACT, THE LD. CIT(A) I S ONLY REQUIRED TO EXAMINE THE OBJECTS OF THE ASSESSEE AND IF THE ASSESSEE - SOCIETY/TRUST IS CONSTITUTED FOR THE CHARITABLE PURPOSE, APPROVAL UNDER SECTION 80G(5) OF THE ACT IS TO BE ACCORDED. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO PLACED RELIANCE UPON THE ORDER OF THE TRIBUNAL IN THE CASE OF REHABILITATION SOCIETY OF THE VISUALLY IMPA I RED VS. CIT - 1, LUCKNOW IN I.T.A. NO.302/LKW/2014, IN WHICH IDENTICAL ISSUE WAS RAISED AND THE TRIBUNAL HAS HELD THAT THERE IS NO SUCH PROVISION UNDER WHICH APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT SHOULD BE ALLOWED IN RESPECT OF ONE PARTICULAR DONATION. COPY OF THE ORDER OF THE TRIBUNAL IS PLACED ON RECORD. IT WAS FURTHER CONTENDED THAT THE LD. COMMISSIONER OF INCOME - TAX HAS WRONGLY PUT A CONDITION WHILE GRANTING APPR OVAL UNDER SECTION 80G(5)(VI) OF THE ACT. THE APPLICATION FILED UNDER SECTION 154 OF THE ACT REQUESTING FOR RECTIFICATION/MODIFICATION IN THE ORDER OF APPROVAL WAS ALSO REJECTED BY THE LD. COMMISSIONER OF INCOME - TAX EVEN WITHOUT REALIZING HIS MISTAKE IN G RANTING CONDITIONAL APPROVAL. THEREFORE, THE ORDER OF THE LD. CIT(A) BE MODIFIED AND APPROVAL BE ACCORDED AS PER THE RELEVANT PROVISIONS OF THE ACT. 3 . THE LD. D.R., ON THE OTHER HAND, HAS SUBMITTED THAT CONDITIONAL APPROVAL WAS GRANTED TO THE ASSESSEE ON TH E BASIS OF THE STATEMENT MADE BY THE ASSESSEE DURING THE COURSE OF HEARING FOR GRANT OF APPROVAL UNDER SECTION 80G(5) OF THE ACT. THE LD. D.R. HAS PLACED RELIANCE UPON THE ORDER OF THE LD. COMMISSIONER OF INCOME - TAX GRANTING APPROVAL UNDER SECTION 80G(5) OF THE ACT, WITH THE SUBMISSION THAT THE ASSESSEE HA D GIVEN AN UNDERTAKING THAT A PARTICULAR APPROVAL IS REQUIRED FOR A PARTICULAR DONATION FOR THE PURCHASE OF DIGITAL X - RAY MACHINE ONLY. THEREFORE, THERE IS NOTHING WRONG IN THE ORDER OF THE LD. COMMISSIO NER OF INCOME - TAX GRANTING CONDITIONAL APPROVAL TO THE ASSESSEE UNDER SECTION 80G(5)(VI) OF THE ACT. 4 . THE LD. COUNSEL FOR THE ASSESSEE, IN REBUTTAL, HAS CONTENDED THAT THERE CANNOT BE ESTOPPELS AGAINST A STATUTE. UNDER THE PROVISIONS OF PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : SECTION 80G(5)(VI) OF THE ACT, APPROVAL CAN BE GRANTED ONCE ASSESSEE HAS SATISFIED WITH THE RELEVANT EVIDENCE THAT THE ASSESSEE - SOCIETY OR TRUST HAS BEEN SE T UP FOR THE CHARITABLE PURPOSE WITH CHARITABLE OBJECT . A PPROVAL WOULD BE GRANTED TO THE ASSESSEE WITHOUT PUTTING ANY CONDITION, AS THERE IS NO PROVISION UNDER THE ACT WHICH ENTAIL THE LD. COMMISSIONER OF INCOME - TAX TO PUT A CONDITION WHILE GRANTING APPROVAL UNDER SECTION 80G(5) OF THE ACT. 5 . HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDER OF THE LD. COMMISSIONER OF INCOME - TAX, WE FIND THAT THE LD. COMMISSIONER OF INCOME - TAX HAS GRANTED A CONDITIONAL APPROVAL UNDER SECTION 80G(5) OF THE ACT ON THE BASIS OF THE UNDERTAKING GIVEN BY THE ASSESSEE DURING THE COURSE OF HEARING FOR GRANT OF APPROVAL. WE HAVE CAREFULLY PERUSED THE RELEVANT PROVISIONS OF SECTION 80G(5) OF THE ACT AND WE ARE OF THE VIEW THAT THERE IS NO CLAUSE IN THE RELEVANT PROVISIONS OF THE ACT WHICH ENTAIL THE LD. COMMISSIONER OF INCOME - TAX TO PUT ANY CONDITION WHILE GRANTING APPROVAL U NDER SECTION 80G(5)(VI) OF THE ACT. ONCE THE ASSESSEE HAS PLACED THE RELEVANT EVIDENCE TO JUSTIFY THAT IT WAS SET UP FOR THE CHARITABLE PURPOSE AND NONE OF ITS ACTIVITIES WAS IN CONTRAVENTION OF THE PROVISIONS OF THE ACT, APPROVAL UNDER SECTION 80G(5) OF THE ACT IS REQUIRED TO BE ACCORDED TO THE ASSESSEE. WE ALSO FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THERE CANNOT BE A ESTOPPELS AGAINST THE STATUTE AND ON THE BASIS OF THE STATEMENT OF THE ASSESSEE CONDITION CANNOT BE PUT WHI LE GRANTING APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT. THIS ISSUE HAS ALREADY BEEN EXAMINED BY US IN THE CASE OF REHABILITATION SOCIETY OF THE VISUALLY IMPA I RED VS. CIT - 1, LUCKNOW IN I.T.A. NO.302/LKW/2014 AND WE HAVE TAKEN A VIEW THAT THERE IS NO SUCH PROVISION THAT APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT SHOULD BE ALLOWED IN RESPECT OF A PARTICULAR DONATION. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL ARE EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE: - 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS . WE FIND THAT AS PER THE PROVISIONS OF SECTION 80G(5), APPROVAL IS TO BE ALLOWED U/S PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : 80G(5)(VI) TO THE DONATION MADE AFTER 31/03/92 IF THE INSTITUTION OR FIRM IS BEING APPROVED BY THE CIT IN ACCORDANCE WITH THE RULES MADE IN THIS BEHALF. WE FIND THAT THER E IS NO SUCH PROVISION THAT THE APPROVAL U/S 80G(5)(VI) SHOULD BE ALLOWED IN RESPECT OF ONE PARTICULAR DONATION. SINCE CIT HAS GRANTED APPROVAL TO THE ASSESSEE IN RESPECT OF GRANT FROM UNION BANK OF INDIA FOR THE PURPOSE OF BRAILLE PRINTING MACHINE, IT HAS TO BE ACCEPTED THAT EVEN AS PER THE CIT, THE ASSESSEE IS SATISFYING ALL THE CONDITIONS. HENCE, WE MODIFY THE ORDER OF CIT AND HOLD THAT SUCH APPROVAL SHOULD BE READ AS APPROVAL IN RESPECT OF ALL DONATIONS FOR CHARITABLE PURPOSES WITH EFFECT FROM 01/04/201 3 AND NOT FOR ONLY DONATION FOR THE SPECIFIC PURPOSE NOTED BY CIT IN PARA 2 OF HIS ORDER. THE ORDER OF CIT STANDS MODIFIED TO THIS EXTENT. 6 . WE, THEREFORE, RESPECTFULLY FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL, HOLD THAT THE LD. COMMISSIONER OF INCOM E - TAX HAS WRONGLY PUT A CONDITION WHILE GRANTING APPROVAL UNDER SECTION 80G(5) OF THE ACT. WE, THEREFORE, MODIFY THE ORDER OF THE LD. COMMISSIONER OF INCOME - TAX AND HOLD THAT SUCH APPROVAL SHOULD BE READ AS AN APPROVAL IN RESPECT OF CHARITABLE PURPOSE W.E .F. 1.4.2014 AND NOT ONLY FOR A PARTICULAR DONATION FOR THE SPECIFIC PURPOSE NOTED BY THE LD. COMMISSIONER OF INCOME - TAX IN HIS ORDER. ACCORDINGLY THE ORDER OF THE LD. CIT(A) STANDS MODIFIED TO THIS EXTENT. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALL OWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 25 TH AUGUST , 2014 JJ: 2108 PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 5 - : COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . C IT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )