BHIWADI REAL ESTATE DEV. ASSOCIA., Alwar V. CIT, Alwar

ITA 749/JPR/2009

• Counselvise Citation: 74923114 RSA 2009
• Duration Of Justice: 5 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 25-09-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS ROLEE AGARWAL CIT DR DHK
• Keywords: Charitable institution; Reasonable cause
• Section: 80G; 12A; 12AA

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA-@ ITA NO. 749/JP/2009 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : - SECTION 12AA OF THE I.T. ACT, 1961 CREDAI (OLD NAME M/S. BHIWADI REAL ESTATE DEVELOPERS ASSOCIATION E-127, INDUSTRIAL AREA, BHIWADI, ALWAR CUKE VS. THE CIT ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAAAB 7947 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : MR. SWATI AGARWAL, CA (REPRESENTATIVE OF LD. AR ADJOURNMENT APPLICATION REJECTED ) JKTLO DH VKSJ LS@ REVENUE BY : MRS. ROLEE AGARWAL, CIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/02/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13/03/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT, ALWAR DATED 29-07-2009 FOR REGISTRATION OF TR UST/SANSTHAN U/S 12AA OF THE I.T. ACT, 1961 WHEREIN SOLITARY GROUND RAISE D BY THE ASSESSEE IS AS UNDER:- ITA NO.749/JP/2009 CREDAI (OLD NAME BHIWADI REAL ESTATE DEVELOPERS ASSOCIATION VS. CIT, ALWAR . . 2 1. THAT LD. CIT, ALWAR ERRED IN NOT GRANTING REGISTRATION U/S 12A OF I.T. ACT ON THE GROUND THAT THE APPLICATION WAS PREMATURE AND IT WAS NECESSARY FOR THE APPELLANT TO CARRY OUT CHARITABLE ACTIVITY BEFORE G RANT OF REGISTRATION U/S 12A. HE FURTHER ERRED IN NOT APPRE CIATING THAT THE CONDITIONS FOR GRANT OF REGISTRATION WERE VERY MUCH FULFILLED BY THE APPELLANT AND THE OBJECTS OF THE A SSOCIATION IN CASE OF APPELLANT. ACCORDINGLY, THE IMPUGNED ORDER PASSED U/S 12AA OF I.T. ACT DESERVES TO BE QUASHED AND THE APPLICATION FOR GRANT OF REGISTRATION U/S 12A DESERVES TO BE ALLOWED. 2.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN ORGANIZATION OF BUILDERS OF BHIWADI. THE LD. CIT REJECTED THE APPLI CATION OF THE ASSESSEE TRUST DATED 28-01-2009 FOR GRANT OF REGISTRATION U/ S 12AA OF THE ACT BY FOLLOWING OBSERVATIONS. I AM AWARE OF THE COUNTER ARGUMENT THAT REGISTRAT ION OF A TRUST/INSTITUTION CAN BE GIVEN ON THE BASIS OF THE OBJECTS MENTIONED IN ITS TRUST IF THEY SATISFY THE CONDITIO NS OF CHARITABLE PURPOSE. AS WITHOUT REGISTRATION & 80G DONATION APP ROVAL IT WOULD BE DIFFICULT TO START ANY WORTHWHILE CHARITABLE ACT IVITIES DUE TO CONSTRAINTS OF FUND. HOWEVER, THE TRUST IS NOT BOUN D TO CARRY OUT CHARITABLE ACTIVITIES ONLY AFTER RECEIVING DONATION S IT CAN ALSO CARRY OUT SUCH ACTIVITIES BY ITSELF INITIALLY BEFOR E APPLYING FOR GRANT OF REGISTRATION U/S 12A(A) OF THE I.T. ACT, 1961. S INCE THE TRUST HAS BEEN CREATED ON 04-10-2007 BUT IT HAD NOT CARRIED O UT ANY CHARITABLE ACTIVITY TILL DATE, ITS CLAIM FOR GRANT OF REGISTRATION U/S 12A(A) IS NON-VERIFIABLE. HAVING REGARD TO THE FACT S OF THE CASE, IT IS APPARENT THAT THE TRUST/ ASSOCIATION HAS NOT BEE N ABLE TO BRING ANY EVIDENCE ON RECORD TO ESTABLISH THAT ANY ACTIVI TIES OF THE TRUST/ ASSOCIATION IS TO BE TAKEN FOR CHARITABLE PURPOSE A S A RESULT ITA NO.749/JP/2009 CREDAI (OLD NAME BHIWADI REAL ESTATE DEVELOPERS ASSOCIATION VS. CIT, ALWAR . . 3 GENUINENESS OF THE ACTIVITIES CANNOT BE VERIFIED. T HE TRUST/ ASSOCIATION IS THEREFORE, NOT ELIGIBLE FOR REGISTRA TION U/S 12AA AND HENCE ITS APPLICATION IS HEREBY REJECTED AS PRE-MAT URE. HOWEVER, IT WILL BE OPEN FOR THE TRUST/ ASSOCIATION TO FILE FRESH APPLICATION, WHEN IT STARTS ITS ACTIVITY , WHICH IS FOR CHARITABLE PURPOSE AND WHICH CAN BE VERIFIED AND TH AT TIME MATER WOULD BE CONSIDERED IN ACCORDANCE WITH LAW. 2.2 AGGRIEVED, ASSESSEE PREFERRED FIRST APPEAL WHIC H WAS DISMISSED EX PARTE IN LIMINE BY THE ITAT VIDE ITS ORDER DATED 2 0-05-2011. 2.3 THE ASSESSEE FILED A MISC. APPLICATION FOR RECA LL OF THE DISMISSAL ORDER, WHEREIN IT CLAIMED ITS NAME AS CREDAI-BHIW ADI (FORMERLY KNOWN AS BHIWADI REAL ESTATE DEVELOPERS ASSOCIATION ); IT SHALL BE PERTINENT TO MENTION THAT NO DOCUMENTS OF IT BEING PART OF CREDAI WERE FURNISHED. M.A. MADE FOLLOWING PRAYERS. THE ABOVE MENTIONED CASE WAS DECIDED EX-PARTY BY YOUR HONOURS ON 20-05-2011. IT IS VERY HUMBLY SUBMITTED THAT THE NOTICE FOR HEARING WAS NOT RECEIVED BY THE APPELLANT, OTHE RWISE THE CASE WOULD HAVE BEEN ATTENDED ON THE DATE OF HEARING. SINCE, THERE IS REASONABLE AND GENUINE CAUSE FOR NO T ATTENDING THE CASE, WE REQUEST YOU TO KINDLY ACCEPT OUR MISC. APPLICATION BY RESTORING THE APPEAL FOR HEARING AND OBLIGE. AN AFFIDAVIT STATING IS FACTS IS ENCLOSED HEREWITH. 2.4 THE SAME WAS REGISTERED AS MISC. APPLICATION NO . 38/JP/2012, AFTER HEARING VIDE ORDER DATED 8-08-2014, THE ITAT RECALLED ITS EARLIER EX ITA NO.749/JP/2009 CREDAI (OLD NAME BHIWADI REAL ESTATE DEVELOPERS ASSOCIATION VS. CIT, ALWAR . . 4 PARTE ORDER DATED 20-05-2011, FIXING THE HEARING OF THE APPEAL ON MERITS. ON THE HEARING DATED 16-12-14 IT WAS OBSERVED BY T HE BENCH THAT THE WHILE FILING AND ARGUING THE MISCELLANEOUS APPLICAT ION FOR RECALL OF EARLIER EX PARTE ORDER, ASSESSEE HAS NOT PROVIDED P ROPER DOCUMENTATION AND DISCLOSURE. WHICH LEAD TO RECALLING THE EARLIER ORDER. CONSEQUENTLY, AT THE TIME OF HEARING OF THIS APPEAL ON 16-12-2014, T HE FOLLOWING PROCEEDING SHEET WAS NOTED. PRESENT FOR THE ASSESSEE SHRI KRANTI MEHTA, CA PRESENT FOR THE DEPARTMENT MISS. ROLEE AGARWAL, LD CIT (DR) LEARNED COUNSEL FOR THE ASSESSEE CONTENDS THAT THE NAME OF THE ASSESSEE HAS BEEN CHANGED FROM M/S. BHIWADI REAL ES TATE DEVELOPERS ASSOCIATION TO CREDAI-BHIWADI SUBSEQUENT TO THE FIL ING OF THE ITA APPEAL. BY MISTAKE, THE CORRESPONDING EVIDENCE HAS NOT BEEN FILED ALONGWITH NECESSARY APPLICATION FOR ADMISSION OF ADDITIONAL E VIDENCE. THEREFORE, TIME MAY BE GRANTED. BESIDES, WE FURTHER FIND THAT THE CERTIFICATE GIVEN BY THE ASSESSEE'S COUNSEL IS NOT IN PRESCRIBED PROFORM A, WHICH ALSO NEEDS TO BE CORRECTED AS PER RULES. IT IS FURTHER OBSERVED THAT THE LEARNED COUNSEL HAS OBTAINED THE M.A. ORDER DATED 08-08-2014 WITHOUT FURNISHING PROP ER DISCLOSURE ABOUT THE CHANGE OF NAME, ADOPTING A NOTIONALLY REGISTERE D NAME (CREDAI). THEREFORE, IN EXERCISE OF SUO MOTO POWERS OF BENCH, THE ASSESSEE IS GIVEN OPPORTUNITY OF HEARING TO SHOW CAUSE AS TO WHY MISS -DISCLOSURE OF FACTS, THE ORDER PASSED IN M.A. NO. 38/JP/2012 DATED 08-08 -2014 BASED ON NON-DISCLOSURE SHOULD NOT BE RECALLED. APPEAL IS ADJOURNED TO 12-02-2015 WHICH IS INFORME D TO PARTIES. COPIES OF THIS NOTICE SHEET MAY BE PROVIDED TO BOT H THE PARTIES FREE OF COST. ITA NO.749/JP/2009 CREDAI (OLD NAME BHIWADI REAL ESTATE DEVELOPERS ASSOCIATION VS. CIT, ALWAR . . 5 SD/- SD/- (T.R, MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER 2.5 DESPITE UNDERTAKING TO DO SO, THE ASSESSEE APPL IED FOR ADJOURNMENT FOR DATED 12-02-2015 WITHOUT GIVING ANY REASONABLE CAUSE. SEEING NO MERIT IN ADJOURNMENT APPLICATION WHICH IS REJECTED AND WE ARE LEFT WITH NO ALTERNATIVE TO DECIDE THE APPEAL EX PARTE QUA ASSES SEE AFTER HEARING THE LD. DR AND PERUSAL OF MATERIAL AVAILABLE ON RECORD. 2.6 THE LD. DR CONTENDS THAT THE ASSESSEE IS INDULG ING IN MISREPRESENTATION OF FACTS AND DILATORY TACTIS IN H EARING OF THE APPEAL ON MERITS. THE CREDAI NAME HAS BEEN PRE-FIXED TO ASSES SEE'S NAME WITHOUT ANY LAWFUL JUSTIFICATION TO MISLEAD THE COURT. THE COURT WAS INFLUENCED BY SUCH MISREPRESENTATION WHICH LED TO RECALL ITS O RDER . THE ASSESSEE IS TOTALLY NON-COOPERATIVE AND IS ABUSING THE LEGAL PR OCESS. THEREFORE, THE APPEAL OF THE ASSESSEE NEEDS TO BE DISMISSED AND OR DER RELATING TO M.A. NO. 38/JP/2012 NEEDS TO BE RECALLED. 2.7 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND FROM THE RECORD AND FA CTS OF THE CASE THAT THE ASSESSEE HAS BEEN ADOPTING DILATORY TACTIS AND MISR EPRESENTING THE FACTS. WHEN THE ASSESSEE WAS ASKED FOR NECESSARY PAPERS FO R ITS CLAIM ABOUT ITA NO.749/JP/2009 CREDAI (OLD NAME BHIWADI REAL ESTATE DEVELOPERS ASSOCIATION VS. CIT, ALWAR . . 6 CREDAI IT WAS UNDERTAKEN TO BE FURNISHED BEFORE NEX T HEARING SO THAT LD. DR COULD BE READY FOR PROPER REPLY IN THIS BEHALF. SINCE IT HAS FAILED TO PROVIDE THE NECESSARY DOCUMENTS WITHOUT EVEN WHISPE RING ABOUT IT IN THE ADJOURNMENT APPLICATION, IT LEADS TO A BELIEF THAT THE PURPORTED CREDAI CLAIM IN THIS BEHALF IS NOT BONA FIDE. CONSEQUENTLY THE RECALL ORDER DATED 08-08-2014 IN M.A. NO.38/JP/2012 DATED 20-05-2011 W AS OBTAINED BY ASSESSEE BY SUPPRESSING THE RELEVANT FACTS. 2.8 ADVERTING TO MERITS OF THE APPEAL, IN OUR VIEW ASSESSEE FAILED TO DISCHARGE ITS ONUS TO DEMONSTRATE THAT IT IS CREDA I ON THE BASIS WHEREOF REGISTRATION U/S 12AA IS BASED. THUS THERE IS NO CH ANGE IN FACTS AND CIRCUMSTANCES AS PRESENT BEFORE LD. CIT WHILE REFUS ING THE REGISTRATION. IN VIEW OF ALL THE ABOVE OBSERVATIONS, WE SEE NO INFIR MITY IN THE IMPUGNED ORDER OF CIT WHICH IS UPHELD, ASSESSES GROUNDS ARE DISMISSED. 2.9 BEFORE PARTING WE WISH TO EXPRESS DISAPPOINTMEN T AT THE CONDUCT OF THE ASSESSEE IN MISREPRESENTING AND TWISTING THE FA CTS AND INDULGING IN DILATORY TACTIS. ITA NO.749/JP/2009 CREDAI (OLD NAME BHIWADI REAL ESTATE DEVELOPERS ASSOCIATION VS. CIT, ALWAR . . 7 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE STAND S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 /03/2 015. SD/- SD/- VH-VKJ-EHUK VKJ-IH-RKSYKUH (T.R. MEENA) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13 TH MARCH, 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- CREDAI (OLD NAME M/S. BHIWADI REAL ESTATE DEVELOPERS ASSOCIATON, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE CIT, ALWAR 3. VK;DJ VK;QDR@ CIT, 4. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 5. XKMZ QKBZY@ GUARD FILE (ITA NO.749/JP/2009) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR