SHRI JAIN SWETAMBER TERAPANTHI SABHA, BIKANER V. COMMISSIONER OF INCOME TAX (EXEMPTION), JAIPUR

ITA 779/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2235 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2017-2018
• Appeal Filed On: 16-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA CIT DHK
• Assessee Lawyers: M L BORAD
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Competent authority
• Section: 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 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. 779/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : ............... SHRI JAIN SWETAMBER TERAPANTHI SABHA, SHANTI NIKETAN, TERAPANTH BHAWAN, GANGASHAHAR, BIKANER (RAJ) CUKE VS. C.I.T.(EXEMPTIONS), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAPTS 8185 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI M.L. BORAD (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SHRI VARINDER MEHTA (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01/01/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 02/01/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 31/07/2017 OF LD. CIT (EXEMPTIONS), JAIPUR PASSED U/ S 12AA(1)(B) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT THE IMPUGNED ORDER DATED 31.7.2017 PASSED U/S. 12AA(L)(B) OF THE I.T. ACT, 1961 BY THE LEARNED COMMISSIONER O F INCOME TAX(EXEMPTION), JAIPUR IS MOST ARBITRARY, UNJUST, U NTENABLE AND BAD IN FACT AND IN LAW AND LIABLE TO BE QUASHED. 2. THAT THE IMPUGNED ORDER PASSED BY THE LEARNED C OMMISSIONER OF INCOME TAX(EXEMPTION), JAIPUR WITHOUT GIVING A R EASONABLE OPPORTUNITY OF BEING HEARD, WITHOUT CONFRONTING THE APPLICANT ITA 779/JP/2017_ SHRI JAIN SWETAMBER TERAPANTHI SABHA VS CIT(E) 2 INSTITUTION WITH THE REPORT OF THE LOWER AUTHORITIE S INCLUDING ASSESSING OFFICER, INSPECTOR AND WITHOUT MAKING ENQ UIRIES ABOUT THE GENUINENESS OF THE ACTIVITIES OF THE INSTITUTIO N AND WITHOUT EVEN WAITING FOR THE DATE OF HEARING GIVEN FOR 4.8. 2017 (THE IMPUGNED ORDER IS PASSED ON 31.7.2017 WITHOUT WAITI NG FOR THE DATE OF HEARING FIXED FOR 4.8.2017) IS VOID AB INIT IO AND NULLITY IN LAW. 3. THAT THE IMPUGNED ORDER PASSED BY THE LEARNED C OMMISSIONER OF INCOME TAX (EXEMPTION) JAIPUR IS PERVERSE, VITIA TED AND NOT MAINTAINABLE IN LAW MAINLY ON ACCOUNT OF THE REASON THAT THOUGH THE HEARING OF THE CASE WAS FIXED FOR 04.08. 2017 YET THE IMPUGNED ORDER WAS PASSED ON 31.07.2017 I.E. MUCH B EFORE THE DATE FIXED FOR HEARING ON 04.08.2017. 4. THAT THE LEARNED CIT (EXEMPTION) FAILED TO TAKE INTO CONSIDERATION THE CORRECTED/AMENDED' CONSTITUTION A ND BYE LAWS (COPY ENCLOSED) BEFORE REJECTING THE ASSESSEE S APPLICATION FOR REGISTRATION U / S .12AA OF THE I.T. ACT. 2. THE ASSESSEE IS A SOCIETY REGISTERED UNDER THE SO CIETIES REGISTRATION ACT, 1860 ON 27/1/1956. THE ASSESSEE FILED AN APPLIC ATION IN FORM NO. 10A SEEKING REGISTRATION U/S 12AA OF THE ACT ON 16/ 2/2017. THE LD. CIT(E) REJECTED THE APPLICATION OF THE ASSESSEE SEEKING RE GISTRATION U/S 12AA OF THE ACT WHILE PASSING THE IMPUGNED ORDER ON THE GROU ND THAT THE OBJECTS OF THE ASSESSEE TRUST ARE FOR THE BENEFIT OF A PARTI CULAR COMMUNITY AND FURTHER THE ASSESSEES TRUST DEED/BYELAWS CONSTITUTI ON HAS NOT SPECIFICALLY PROVIDED THE TREATMENT OF THE PROPERTY ON DISSOLUTI ON APART FROM NON SUBMISSION OF THE ORIGINAL DOCUMENTS BY THE ASSESSE E. ITA 779/JP/2017_ SHRI JAIN SWETAMBER TERAPANTHI SABHA VS CIT(E) 3 3. AGGRIEVED BY THE IMPUGNED ORDER, THE ASSESSEE FI LED THE PRESENT APPEAL. 4. BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITT ED THAT THE ASSESSEES REPRESENTATIVE APPEARED BEFORE THE LD. C IT(E) ON 31/7/2017 AND THE HEARING OF THE MATTER WAS ADJOURNED TO 04/8/ 2017. HOWEVER, WHEN THE ASSESSEE WENT TO APPEAR ON 04/8/2017, IT WAS FOUND THAT THE IMPUGNED ORDER WAS ALREADY PASSED ON 31/7/2017. THUS , THE LD AR HAS SUBMITTED THAT THE ASSESSEE WAS NOT GIVEN AN APPROPR IATE OPPORTUNITY OF HEARING BEFORE PASSING THE PRESENT ORDER. THE LD AR OF THE ASSESSEE HAS FURTHER SUBMITTED THAT SINCE THE LD. CIT(E) HAS RAIS ED CERTAIN OBJECTIONS REGARDING THE TERMS AND CONDITIONS OF THE CONSTITUT ION AND BYELAWS OF THE SOCIETY, THEREFORE, THE ASSESSEE NOW FILED THE AMEND ED CONSTITUTION AND BYELAWS OF THE ASSESSEE TRUST AS AN ADDITIONAL EVIDEN CE. THUS, HE HAS PRAYED THAT THIS AMENDED CONSTITUTION AND BYELAWS MA Y BE CONSIDERED WHILE DECIDING THE ISSUE OF REGISTRATION U/S 12AA OF THE ACT. 5. ON THE OTHER HAND, THE LD CIT DR HAS VEHEMENTLY O PPOSED TO THE ADMISSION OF THE ADDITIONAL EVIDENCE AND SUBMITTED THAT THIS EVIDENCE WAS NOT AVAILABLE BEFORE THE COMPETENT AUTHORITY THEN I T CANNOT BE ADMITTED AT THIS STAGE. HE HAS ALSO CONTENDED THAT THE LD. C IT(E) HAS DECIDED THE APPLICATION OF THE ASSESSEE ON MERITS AND ON THE BA SIS OF THE DOCUMENTS AVAILABLE WITH THE LD. CIT(E). ITA 779/JP/2017_ SHRI JAIN SWETAMBER TERAPANTHI SABHA VS CIT(E) 4 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL A S RELEVANT MATERIAL ON RECORD AT THE OUTSET, WE NOTE THAT THE LD. CIT(E) HAS STATED IN THE IMPUGNED ORDER THAT AT THE REQUEST OF THE ASSESSEE, THE MATTER WAS ADJOURNED TO 04/8/2017. PARA 1 OF THE IMPUGNED ORDE R CLEARLY MANIFEST THIS ADJOURNMENT OF HEARING TO 04/8/2017. THE CONTEN TS OF PARA 1 OF THE IMPUGNED ORDER IS AS UNDER: THE APPLICATION IN FORM NO. 10A SEEKING REGISTRATI ON U/S 12AA OF THE INCOME TAX ACT, 1961 WAS FILED BY THE APPLICANT ON 16/2/2017. A LETTER/NOTICE NO. 7368 DATED 27/02/2017 WAS ISSUED AT THE ADDRESS PROVIDED IN THE APPLICATION REQUIRING THE APPLICANT TO SUBMIT CERTAIN DOCUMENTS/EXPLANATIONS BY 03/4/2017 ALONGWITH ORIGI NAL TRUST DEED/MOA FOR VERIFICATION. BUT NO COMPLIANCE WAS MADE BY THE APPLICANT. FURTHER, ONE MORE OPPORTUNITY WAS PROVIDED VIDE LETTER NO. 1 626, DATED 16/6/2017. BUT THIS ALSO NO COMPLIANCE WAS MADE BY THE APPLICANT. HOWEVER, AN ADJOURNMENT APPLICATION WAS RECEIVED AND CASE WAS ADJOURNED TO 04/08/2017. IN COMPLIANCE TO APPLICANT FILED WRITTEN REPLY. THIS APPLICATION IS DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 6.1 THUS, IT IS APPARENT THAT THE LD. CIT(E) AGREED TO THE REQUEST OF THE ASSESSEE AND ADJOURNED THE MATTER TO 04/8/2017. HOWE VER, THE IMPUGNED ORDER HAS BEEN PASSED BY THE LD. CIT(E) ON 31/7/2017 . IT IS A CLEAR CASE OF VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AS TH E ASSESSEE WAS NOT GIVEN AN OPPORTUNITY OF BEING HEARD. THEREFORE, THE IMPUGN ED ORDER IS NOT SUSTAINED ON THIS GROUND ALONE AND LIABLE TO BE SET ASIDE. ACCORDINGLY, WE ITA 779/JP/2017_ SHRI JAIN SWETAMBER TERAPANTHI SABHA VS CIT(E) 5 SET ASIDE THE IMPUGNED ORDER AND REMAND THE MATTER BACK TO THE RECORD OF THE LD. CIT(E) FOR DECIDING IT AFRESH AFTER GIVIN G AN OPPORTUNITY OF HEARING TO THE ASSESSEE. SINCE THE ASSESSEE HAS FIL ED AN ADDITIONAL EVIDENCE IN THE SHAPE OF AMENDED CONSTITUTION AND B YELAWS TO SATISFY THE OBJECTIONS AS RAISED BY THE LD. CIT(E) IN THE IMPUG NED ORDER, THEREFORE, THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE IS AL SO REQUIRED TO BE TAKEN INTO CONSIDERATION BY THE LD. CIT(E) BEFORE PASSING THE ORDER AFRESH. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 02/01/2018. 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:- 02 ND JANUARY, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI JAIN SWETAMBER TERAPANTHI SABHA, BIKANER (RAJ). 2. IZR;FKHZ @ THE RESPONDENT- THE CIT(EXEMPTIONS), JAIPUR. 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. 779/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR