M/s. Ginia Devi Todi Charitable Trust, Kolkata V. DIT, Exemption, Kolkata, Kolkata

ITA 738/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48156 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 13-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANICK
• Keywords: Charitable institution; Reasonable cause
• Section: 80G; 12A; 12AA

Judgement Text

, , , , , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [ . . . . . .. . , , ! ! ! ! , ] [BEFORE HONBLE SHRI S.V. MEHROTRA, AM & HONBLE SHRI MAHAVIR SINGH, JM !' !' !' !' / I.T.A NO. 738/KOL/2010 M/S. GINIA DEVI TODI CHARITABLE TRUST -V S.- DIRECTOR OF INCOME TAX (EXEMPTION) KOLKATA. [PAN : AABTG2461 J] KOLKATA. ($% /APPELLANT ) ('($%/ RESPONDENT ) $% / FOR THE APPELLANT : * /SHRI SUBHAS AGARWAL '($% / FOR THE RESPONDENT : * / SHRI A. K. PRAMANICK + /O R D E R [ . . . . . .. . , ] PER S.V. MEHROTRA, AM THE ASSESSEE HAS FILED THIS APPEAL AGAINST REJECTI ON OF GRANT OF INITIAL EXEMPTION U/S. 80G. DIT(EXEMPTION), COLLATE VIDE HIS ORDER DATED 17.06. 2009 PASSED A CONSOLIDATED ORDER REJECTING THE ASSESSEES APPLICATION IN FORM 10A & 10G FOR GR ANT OF REGISTRATION U/S. 12AA AND INITIAL EXEMPTION U/S. 80G OF THE INCOME TAX ACT. AS PER OF FICE NOTE, THE APPEAL FILED BY THE ASSESSEE IS BARRED BY LIMITATION BY 189 DAYS. LD. COUNSEL APPEA RING ON BEHALF OF THE ASSESSEE SUBMITTED THAT ASSESSEE HAD FILED AN APPLICATION FOR CONDONATION O F DELAY ALONGWITH MEMO. OF APPEAL AND FURTHER POINTED OUT THAT THE ASSESSEES APPEAL FOR GRANT OF REGISTRATION HAS BEEN ALLOWED BY THE TRIBUNAL VIDE ITS ORDER DATED 09.04.2010. HE SUBMIT TED THAT THE SAID APPEAL WAS DELAYED BY 66 DAYS WHICH HAD BEEN CONDONED BY THE TRIBUNAL. HE SU BMITTED THAT FURTHER DELAY IS EXPLAINED IN THE PETITION. 2. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES. WE FIND THAT IN THE PETITION DATED 13.04.2010, IT IS STATED THAT ASSESSEE HAD FILED A SINGLE APPEAL ON 11.12.2009, BEING ITA NO.2107/KOL/20009 AGAINST THE CONSOLIDATED ORDER DA TED 17.06.2009. HOWEVER, ON LEGAL ADVICE, ASSESSEE FILED SEPARATE APPEALS FOR GRANT OF REGIST RATION U/S. 12AA AND INITIAL REGISTRATION U/S. 80G. [ ITA NO. 738/KOL/2010] 2 THEREFORE, THE DELAY WAS CAUSED. THE ASSESSEE IN TH E CONDONATION PETITION HAS GIVEN DATE-WISE DETAILS. AFTER CONSIDERING THE SAME, WE ARE OF THE OPINION THAT ASSESSEE WAS PREVENTED BY REASONABLE CAUSE FROM PREFERRING APPEAL WITHIN THE DUE DATE AND THEREFORE, WE CONDONE THE DELAY IN FILING THE APPEAL AND PROCEEDED TO DECIDE THE AS SESSEES APPEAL ON MERIT. 3. THE ASSESSEE WAS DENIED REGISTRATION U/S. 12AA M AINLY ON THE GROUND THAT ASSESSEE HAD NOT COMMENCED ITS ACTIVITIES AS CONTEMPLATED IN THE TRUST DEED. HOWEVER, THE TRIBUNAL FOLLOWING THE DECISION OF THE TRIBUNAL, KOLKATA IN THE CASE O F VIVEKANANDA WELFARE TRUST VS. DIT(E) IN ITA NOS. 2095/KOL/2008 & 27/KOL/2009 VIDE ORDER DATED 2 3.01.2009, DIRECTED THE DIT(E) TO GRANT REGISTRATION U/S. 12AA. THE REGISTRATION U/S. 80G H AS ALSO BEEN DENIED FOR THE SAME REASON. HOWEVER, THE I.T.A.T., KOLKATA IN ASSESSEES OWN CA SE IN ITA NO. 2107/KOL/2009, ORDER DATED 09.04.2010, VIDE PARA-7, ALLOWED THE ASSESSEES APP EAL, THE SAME IS REPRODUCED HEREUNDER :- WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND THE DECISIONS CITED BY THE LD. COUNSEL FOR THE ASSE SSEE. WE FIND THAT ON AN IDENTICAL ISSUE, THE TRIBUNAL IN THE CASE OF VIVEKA NANDA WELFARE TRUST VS- DIT(E) (SUPRA) HAS HELD AS UNDER : 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL PLACED BEFORE US. WE HAVE ALSO GONE THROUGH THE TRUST DEED AND OBJECTS OF THE TRUST, COPY OF WHICH IS PLACED IN THE PAPER BOOK FILED BEFORE US. THE ASSESSEE-TRUST IS REGISTERED WITH THE REGIS TRAR OF ASSURANCE, KOLKATA. THE OBJECTS OF THE TRUST ARE SP ECIFYING PURPOSES OF PUBLIC CHARITABLE TRUST. WE FIND THAT I DENTICAL ISSUE HAS BEEN EXAMINED BY THE I.T.A.T, DELHI BENCH IN TH E CASE OF DHARMA SANSTHAPAK SANGH (NIVAS) VS. CIT, REPORTED I N (2008) 118 TTJ (DEL) 823. IN THAT CASE THE C.I T. OBSERVED THAT THE APPLICANT-TRUST HAS NOT MADE ANY CHARITABLE ACTIVIT Y OR EVEN HAS NOT PERFORMED ANY OTHER ACTIVITY AND, THEREFORE, HE WAS NOT SATISFIED WITH THE GENUINENESS OF THE ACTIVITIES OF THE TRUST. HE, THEREFORE, REJECTED THE ASSESSEE APPLICATION FOR GR ANT OF REGISTRATION U/S. 12A . THE ASSESSEE-TRUST CAME IN APPEAL BEFORE THE I.T.A.T. THE DELHI BENCH OF I.T.A.T. AFTER CARE FULLY CONSIDERING THE RIVAL SUBMISSIONS, TRUST DEED ETC. DID NOT ENDORSE THE ACTION OF THE C.I. T. IN REFUSING GRANT OF REGI STRATION TO THE ASSESSEE-TRUST AND HELD AS UNDER :- 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. WE HAVE GON E THROUGH THE SUPPLEMENTARY TRUST DEED, COPY OF WHICH IS PLACED A T PP. 8 TO 11 OF THE PAPER BOOK. THE SAME IS REGISTERED WITH THE SUB-REGISTRAR VIDE HIS ORDER DT. 24TH MAY, 2007. WE HAVE ALSO GO NE THROUGH THE OBJECTS OF THE TRUST, A COPY OF WHICH IS PLACED AT P.5 OF THE PAPER BOOK. THE OBJECTS OF THE TRUST ARE SPECIFYING PURPOSE OF RELIGIOUS ACTIVITIES. SUCH FACTS ARE ALSO NOT DISPU TED BY THE LEARNED [ ITA NO. 738/KOL/2010] 3 DEPARTMENTAL REPRESENTATIVE. THE REGISTRATION CANNO T BE DENIED TO THE ASSESSEE FOR THE REASON THAT IT IS NOT CARRY ING ON CHARITABLE ACTIVITIES. RELIGIOUS ACTIVITIES ARE ALSO CONSTRUED TO BE CHARITABLE ACTIVITIES AS PER THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. RADHASWAMI SATSANG (SUPRA) AND THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HAZARAT PIRMAHOMED SHAH SAHEB ROZA COMMITTEE VS. CIT (SUPRA). THE OBSE RVATIONS OF CIT THAT TRUST DEED DOES NOT SPECIFY THE FATE OF AS SETS AND LIABILITIES IN CASE OF DISSOLUTION OF TRUST, IT IS OBSERVED THAT CL. 78 OF THE TRUST DEED SPECIFIES THAT IN CASE OF DISSOLU TION OF TRUST EVERYTHING RELATED TO TRUST SHALL BE HANDED OVER TO THE JUSTIFIED NATIONAL GOVERNMENT. THUS, THIS OBSERVATION OF THE CIT IS CONTRARY TO THE FACTS FOUND ON RECORD. 10. THE LAW IS NOW WELL-SETTLED THAT WHILE GRANTING THE REGISTRATION TO THE CHARITABLE INSTITUTION OR TRUST , IF IT IS AT THE COMMENCEMENT STAGE, THE POWERS OF CIT, WITH WHOM TH E APPLICATION IS FILED BY SUCH TRUST/INSTITUTION, ARE LIMITED TO THE ASPECT OF EXAMINING THAT WHETHER OR NOT THE OBJECTS OF TRUST ARE CHARITABLE IN NATURE AND THIS WELL ESTABLISHED LAW IS SUPPORTED BY THE DECISIONS RELIED UPON THE LEARNED AUTHORISED RE PRESENTATIVE AND REFERRED TO IN THE EARLIER PART OF THE ORDER. I T HAS ALREADY BEEN OBSERVED THAT OBJECTS OF TRUST, WHICH ARE RELIGIOUS , ARE CHARITABLE IN NATURE. THUS, ASSESSEE ALSO FULFILLS SUCH CONDIT ION. THE CARRYING OF CHARITABLE ACTIVITY AT THE STAGE OF COMMENCEMENT OF INSTITUTION IS NOT RELEVANT TO DECIDE THAT WHETHER SUCH TRUST/ INSTITUTION IS ENTITLED FOR REGISTRATION. SO LONG THE OBJECTS OF T HE TRUST ARE CHARITABLE IN NATURE, REGISTRATION CANNOT BE REFUSE D. IF THE TRUST IS GENUINE. THEREFORE, WE FIND NO MATERIAL ON RECORD T O JUSTIFY THE ACTION OF THE CIT VIDE WHICH THE ASSESSEE TRUST HAS BEEN REFUSED FOR GRANT OF REGISTRATION. WE DIRECT CIT TO GRANT R EGISTRATION TO THE CIT (SIC-ASSESSEE--TRUST). THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. [EMPHASIS SUPPLIED] WHILE DECIDING THE APPEAL IN THE ABOVE CASE, THE TR IBUNAL TOOK INTO CONSIDERATION THE DECISIONS OF TRIBUNAL IN THE CASES OF ACHARYA SEWA NIVAS UTTARANCHAL VS. CIT [(2006) 105 TTJ (DEL) 761] AND MODERN DEFENCE SHIKSHAN SANSTHAN VS. C.I.T . [(2007) 108 TTJ (JD) 732]. FACTS OF THE PRESENT CASE BEFORE US BEING IDENTICAL TO THE CASE REFERRED TO ABOVE, WE RESPECT FULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN THE CASE OF DHARMA SANSTHAPAK SANGH (NIVAS) VS. CIT (SUPRA) DIRECT THE D.I.T. (EX EMPTION) TO GRANT REGISTRATION TO THE ASSESSEE-TRUST U/S. 12AA OF THE ACT AND ALSO GRANT EXEMPTION CERTIFICATE U/S. 80G OF THE AC T. IN VIEW OF THE ABOVE AND FOLLOWING THE AFORESAID OR DER OF THE TRIBUNAL, WE DIRECT THE LD. DIT(E) TO GRANT REGISTR ATION TO THE ASSESSEE-TRUST U/S. 12AA OF THE ACT. THEREFORE, THE APPEAL OF THE ASSESSEE IS ALLOWED. [ ITA NO. 738/KOL/2010] 4 RESPECTFULLY FOLLOWING THE PRECEDENT, ASSESSEES AP PEAL IS ALLOWED. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . + + + + , , , , - -- - ,. ,. ,. ,. / / / / 0 00 0 1 1 1 1 ORDER PRONOUNCED IN THE OPEN COURT ON 01. 06. 2011. SD/- SD/- [ ! , ] [ .. , ] [ MAHAVIR SINGH ] [ S.V. MEHROTRA ] JUDICIAL MEMBER ACCOUNTANT MEMBER 1 / DATED : 1ST JUNE, 2011. + 2 ' 3 4356 - COPY OF THE ORDER FORWARDED TO: 1. /APPLICANT- M/S. GINIA DEVI TODI CHARITABLE TRUST , 19/1, CAMAC STREET, 3 RD FLOOR, KOLKATA-700017. 2 '($% / RESPONDENT : DIRECTOR OF INCOME TAX (EXEMPTION), 10B, MIDDLETON ROW, KOLKATA. 3. +. / DIT(E) 4. +. ( )/ CIT(A) 5. / ' . / DR, KOLKATA BENCHES, KOLKATA [ (3 ' / TRUE COPY] +., / BY ORDER 7 / !8 /DEPUTY/ASSTT. REGISTRAR . [KKC 9: .;8 < /SR.PS]