Sharnam Seva Samiti, Lucknow V. CIT, Lucknow

ITA 719/LKW/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9155 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-02-2011
• Assessment Year: misc
• Appeal Filed On: 03-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B AJAJ
• Assessee Lawyers: YOGESH AGRAWAL
• Keywords: Opportunity of being heard
• Section: 80G; 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B - BENCH, LUCKNOW. BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI, ACCOUNTANT MEMBER I.T.A.NOS.719 & 720(LKW.)/2010 SHARNAM SEVA SAMITI, VS. THE CIT-I, C-722,SECTOR C, LUCKNOW. MAHANAGAR, LUCKNOW. PAN AAGIS1628C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI YOGESH AGRAWAL, ADVOCATE RESPONDENT BY : SHRI P.K.BAJAJ, D.R. O R D E R PER H.L.KARWA, VICE PRESIDENT AS BOTH THE APPEALS CONCERN THE SAME ASSESSEE, T HEREFORE, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS C OMMON ORDER FOR THE SAKE OF CONVENIENCE. I.T.A.NO.719(LKW)/2010 IS DIRECTED AGAINST THE ORDER OF THE LD. CIT DATED 23.9.2010 IN REFUSING TO GRANT RE GISTRATION UNDER SECTION 12AA OF THE INCOME-TAX ACT,1961 (IN SHORT THE ACT ). IN THIS APPEAL, THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: I. THE LEARNED COMMISSIONER OF INCOME TAX-I, LUCKNOW [ HERE- INAFTER REFERRED TO AS THE LD. CIT] GROSSLY ERRED O N FACTS AND IN LAW IN REJECTING THE GRANT OF REGISTRATION UNDER SE CTION 12AA OF THE I.T.ACT, 1961 AND IN ALLEGEDLY HOLDING THAT NON E ATTENDED ON THE DATE OF HEARING DESPITE THE FACT THAT THE AUTHO RISED REPRESENTATIVE HAD ATTENDED BUT ORDER HAD ALREADY B EEN PASSED BEFORE HE COULD MAKE A REPRESENTATION AND THUS THE ORDER BEING BAD-IN-LAW MAY KINDLY BE ORDERED TO BE QUASHED. 2 II. THE LD. CIT FURTHER ERRED ON FACTS AND-IN-LAW IN NOT GRANTING REGISTRATION U/S 12A DESPITE THE FACT THAT THE LD. ASSESSING OFFICER AND THE LD. ADDL. COMMISSIONER OF INCOME TA X HAD RECOMMENDED THE CASE FOR REGISTRATION AFTER VERIFYI NG THE OBJECTS AND THE DETAILS AND DOCUMENTS SUBMITTED AND THUS THE REGISTRATION OUGHT TO HAVE BEEN GRANTED AND MAY BE ORDERED TO BE GRANTED. III. THE LD. CIT GROSSLY ERRED ON FACTS AND IN LAW IN REFUSING TO GRANT REGISTRATION U/S 12AA TO THE APPELLANT SOCIET Y AND IN FAILING TO APPRECIATE THAT THE OBJECTS OF THE SOCIE TY ARE CHARITABLE IN NATURE AND THUS REJECTING THE GRANT OF REGISTRAT ION WITHOUT ANY COGENT MATERIAL ON RECORD IS BAD-IN-LAW AND NEEDS T O BE QUASHED AND THE REGISTRATION GRANTED TO THE APPELLANT SOCIE TY. IV. THE LD. CIT DID NOT GIVE PROPER AND SUFFICIENT OPPORTUNITY TO THE APPELLANT SOCIETY TO HAVE ITS SAY OR MAKE NECES SARY COMPLIANCE TO THE REASONS RELIED UPON BY HIM IN REJ ECTING THE APPLICATION U/S 12AA AND FURTHER IN NOT GIVING DUE AND SUFFICIENT IMPORTANCE TO THE DOCUMENTS PRODUCED AND SUBMISSIONS MADE BEFORE HIM AND THUS THE ORDER MAY KINDLY BE SET ASIDE AND REGISTRATION GRANTED U/S 12AA. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE-SOCIETY FILED AN APPLICATION UNDER SECTION 12A(A) OF THE ACT ON 2 5.3.2010 SEEKING REGISTRATION UNDER THE SAID SECTION. THE LD. CIT CA LLED FOR A REPORT FROM THE AO AND THE AO RECOMMENDED THE CASE FOR REGISTRATION UNDER SECTION 12AAOF THE ACT. THE LD.CIT REFUSED TO GRANT REGISTR ATION TO THE ASSESSEE- SOCIETY FOR THE FOLLOWING REASONS: 3. THEREAFTER A LETTER DATED 08.09.2010 FOR GIVING AN OPPORTUNITY TO THE SOCIETY WAS ISSUED BY SPEED POST AT THE ADDR ESS AS GIVEN IN THE APPLICATION FIXING THE DATE OF HEARING ON 22.09.201 0. ON 22.09.2010, NONE ATTENDED NOR ANY WRITTEN SUBMISSION IS FILED. IN THE ABSENCE OF ANY DETAILS, DOCUMENTS OR EVIDENCE, GENUINENESS OF THE SOCIETY OR OF ITS ACTIVITIES COULD NOT BE VERIFIED BY THE UNDERSI GNED. 3 4. IN VIEW OF THE ABOVE, I AM INCLINED TO HOLD THA T THE ASSESSEE SOCIETY HAS FAILED TO ESTABLISH THE CARRYING ON OF CHARITABLE ACTIVITIES WHICH IS A CONDITION PRECEDENT FOR GRANT OF REGISTR ATION U/S 12AA(1)(B)(I). THAT BEING SO, THIS IS NOT FOUND TO BE A FIT CASE FOR GRANTING REGISTRATION U/S 12AA(1) OF THE I.T. ACT. ACCORDINGLY, THE REGISTRATION SOUGHT IS HEREBY REJECTED. 3. BEFORE US, SHRI YOGESH AGRAWAL, ADVOCATE, LD. CO UNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT WAS NOT JUSTIF IED IN HOLDING THAT NONE ATTENDED ON THE DATE OF HEARING DESPITE THE FACT T HAT THE AUTHORISED REPRESENTATIVE HAD ATTENDED, BUT ORDER HAD ALREADY BEEN PASSED BEFORE HE COULD MAKE A REPRESENTATION AND THUS, THE ORDER BE ING BAD IN LAW, DESERVES TO BE QUASHED. SHRI YOGESH AGRAWAL, ADVOCATE, LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE LD.CIT HAS NOT AFFORDED DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THER EFORE, HE WAS NOT JUSTIFIED IN REFUSING TO GRANT THE REGISTRATION TO THE ASSESS EE-SOCIETY. SHRI YOGESH AGRAWAL, ADVOCATE, LD. COUNSEL FOR THE ASSESSEE VEH EMENTLY ARGUED THAT THE AO AS WELL AS THE LD.ADDL.CIT HAD RECOMMENDED THE CASE FOR REGISTRATION AFTER VERIFYING THE OBJECTS AND THE DETAILS AND D OCUMENTS SUBMITTED AND THUS, THE REGISTRATION OUGHT TO HAVE BEEN GRANTED. IN OUR VIEW, THERE IS A SUBSTANCE IN THE ABOVE SUBMISSIONS OF SHRI YOGESH AGRAWAL, LD. COUNSEL FOR THE ASSESSEE. IT SEEMS THAT THE LD.CIT HAS NOT GRANTED DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE P ASSING THE IMPUGNED ORDER. IT AMOUNTS TO VIOLATION OF PRINCIPLES OF NA TURAL JUSTICE. CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE PRESENT C ASE, WE ARE OF THE VIEW THAT THE ORDER OF THE LD. CIT DESERVES TO BE SET ASIDE A ND WE ORDER ACCORDINGLY AND REMAND THE MATTER TO THE FILE OF THE LD.CIT WIT H THE DIRECTION TO DECIDE THE MATTER AFRESH IN ACCORDANCE WITH LAW PREFERABLY WITHIN TWO MONTHS FROM 4 THE DATE OF RECEIPT OF THIS ORDER. THE LD.CIT SHOUL D GIVE DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE M ATTER. ITA NO.720(LKW)/2010 4. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER OF THE LD. CIT DATED 23.9.2010 IN REFUSING TO GRANT APPROVAL UNDER SECTION 80G(5)(VI) OF THE INCOME-TAX ACT,1961. 5. THE LD.CIT HAS REJECTED THE APPLICATION FOR APPR OVAL UNDER SECTION 80G OF THE ACT ON THE GROUND THAT THE ASSESSEE SHOU LD HAVE BEEN REGISTERED UNDER SECTION 12AA OF THE ACT. ACCORDING TO THE LD. CIT, THE REGISTRATION CLAIMED UNDER SECTION 12AA OF THE ACT HAS BEEN REJE CTED BY A SEPARATE ORDER AND THEREFORE, HE HAD ALSO REJECTED APPLICATION FOR APPROVAL SOUGHT UNDER SECTION 80G. 6. SINCE WE HAVE RESTORED THE MATTER RELATING TO GR ANT OF REGISTRATION UNDER SECTION 12AA OF THE ACT TO THE FILE OF THE LD . CIT FOR DECIDING THE SAME AFRESH (I.T.A.NO.719(LKW)/2010) AND THEREFORE , WE ALSO RESTORE THE MATTER RELATING TO APPROVAL UNDER SECTION 80G OF TH E ACT TO THE FILE OF THE LD.CIT WITH A DIRECTION TO DECIDE THE SAME AFRESH I N ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. 7. FOR STATISTICAL PURPOSES, BOTH THE APPEALS ARE A LLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 3.2.201 1. (N.K.SAINI) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT FEBRUARY ,2011. 5 COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.