Dr. Rachana Pandey Memorial Trust, Lucknow V. Commissioner of Income Tax (Exemptions), Lucknow

ITA 81/LKW/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0198 (ITAT-LUCKNOW)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 06-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH
• Assessee Lawyers: EXPENDI TURE ACCOUNT; PAYMENTS ACCOUNTS; NO INCOME; EXPENDI TURE ACCOUNTS RECEIPTS
• Keywords: Loose papers
• Section: 12AA

Judgement Text

I.T.A. NO.81/LKW/2018 ASSESSMENT YEAR:N.A. 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.81/LKW/2018 ASSESSMENT YEAR:N.A. DR. RACHNA PANDEY MEMORIAL TRUST, 6/80, VINEET KHAND, GOMTI NAGAR, LUCKNOW. PAN:AACTD 7514 J VS. PR. CIT (EXEMPTIONS), LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LEARNED CIT (EXEMPTIONS) LUCKNOW DATED 12/01/2018. 2. THE TRUSTEE OF THE TRUST DR. ASHISH PANDEY APPEA RED AND ARGUED THE MATTER. THE TRUSTEE SUBMITTED THAT LEARNED CIT (EX EMPTIONS) HAS WRONGLY REJECTED THE APPLICATION OF THE ASSESSEE FILED U/S 12AA OF THE ACT. HE STATED THAT THE REASON FOR DENIAL OF REGISTRATION WAS ALLE GED FAILURE OF THE ASSESSEE TO FILE FINANCIAL STATEMENT NAMELY INCOME & EXPENDI TURE ACCOUNTS, RECEIPTS AND PAYMENTS ACCOUNTS AND BALANCE SHEET. IT WAS SU BMITTED THAT ASSESSEE HAD JUST SET UP THE TRUST AND NO INCOME AND EXPENDI TURE ACCOUNT AND BALANCE SHEET WERE MADE AS NO TRANSACTION HAD TAKEN PLACE AND, THEREFORE, APPELLANT BY SHRI ASHISH PANDEY RESPONDENT BY SHRI C. K. SINGH, D.R. DATE OF HEARING 04/12/2018 DATE OF PRONOUNCEMENT 07 / 12 /201 8 I.T.A. NO.81/LKW/2018 ASSESSMENT YEAR:N.A. 2 THE REASON GIVEN BY LEARNED CIT (EXEMPTIONS) FOR RE JECTION OF APPLICATION IS NOT JUSTIFIED AS AT THE TIME OF REGISTRATION THE LE ARNED CIT (EXEMPTIONS) IS EMPOWERED TO EXAMINE THE OBJECTS OF THE ASSESSEE WH ICH WERE UNDISPUTEDLY CHARITABLE IN NATURE. LEARNED A. R. IN THIS RESPEC T RELIED ON A JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF HARDAYA L CHARITABLE & EDUCATIONAL TRUST VS. CIT, INCOME TAX APPEAL NO. 10 7 OF 2013. 3. LEARNED D. R., ON THE OTHER HAND, PLACED RELIANC E ON THE ORDER OF LEARNED CIT (EXEMPTIONS). 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ON AN APPLICATION F ILED BY THE ASSESSEE, THE ASSESSEE WAS REQUIRED TO MAKE COMPLIANCE ON CERTAIN CLARIFICATIONS ON 12/01/2018. ON THAT DATE I.E. 12/01/2018 DR. ASHIS H PANDEY, TRUSTEE, APPEARED AND FILED CERTAIN LOOSE PAPERS, A COPY OF WHICH IS PLACED AT PAGES 3 TO 5 OF THE PAPER BOOK. THE QUERY LETTER RAISED BY LEARNED CIT (EXEMPTIONS) VIDE LETTER DATED 28/12/2017 IS PLACED AT PAGES 1 TO 2 OF THE PAPER BOOK. ON EXAMINATION OF REPLY FILED BY THE A SSESSEE ON CERTAIN POINTS, WE FIND THAT ASSESSEE HAS REFERRED TO CERTA IN PAGES AND PARAS OF THE TRUST DEED. FOR EXAMPLE, IN REPLY TO QUESTION NO. 15 REGARDING TRUST DEED NOT HAVING IRREVOCABILITY CLAUSE, THE ASSESSEE INVI TED THE ATTENTION OF LEARNED CIT (EXEMPTIONS) TO PAGE 17 PARA 3, SECTION 8(C) OF THE TRUST DEED. SIMILARLY, IN RESPONSE TO QUESTION NO. 16, THE ATTE NTION OF LEARNED CIT (EXEMPTIONS) WAS INVITED TO PAGE 16 PARA 6, SECTION 8(A) OF THE TRUST DEED. SIMILAR WAS THE RESPONSE TO QUESTION NO. 17, 18 & 1 9. WE FIND THAT COPY OF TRUST DEED IS NOT ON RECORD AND IN THE ABSENCE OF TRUST DEED WE ARE UNABLE TO READ THE RESPECTIVE PARAS AND SECTIONS REFERRED TO BY THE ASSESSEE DURING THE PROCEEDINGS BEFORE LEARNED CIT (EXEMPTIONS) AND WE ARE NOT IN A POSITION TO COMMENT AS TO WHETHER THOSE REFERRED PA RAS AND SECTIONS WERE I.T.A. NO.81/LKW/2018 ASSESSMENT YEAR:N.A. 3 IN VIOLATION TO THE LAW OR NOT. LEARNED CIT (EXEMP TIONS) HAS ALSO NOT COMMENTED ON THOSE REPLIES OF THE ASSESSEE. WE FUR THER FIND THAT ON THE FIRST DATE OF HEARING I.E. 12/01/2018, ITSELF THE LEARNED CIT (EXEMPTIONS) HAS PASSED THE ORDER AGAINST THE ASSESSEE AS ON THA T DATE ONLY THE ASSESSEE HAD FILED REPLIED TO THE QUERIES RAISED BY LEARNED CIT (EXEMPTIONS). NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO REBUT ANY ADVERSE FINDING OF LEARNED CIT (EXEMPTIONS). THE CASE LAWS RELIED BY LEARNED A. R., NO DOUBT GOES IN FAVOUR HIS FAVOUR, HOWEVER, THE FACT REMAIN S THAT LEARNED CIT (EXEMPTIONS) HAS TO PASS THE ORDER AFTER HEARING TH E ASSESSEE WHICH HAS NOT BEEN GIVEN IN THIS CASE AS ON THE FIRST DATE IT SELF, THE ORDER HAS BEEN PASSED AGAINST THE ASSESSEE. THEREFORE, WE DEEM IT APPROPRIATE TO REMIT THE ISSUE BACK TO LEARNED CIT (EXEMPTIONS) WHO SHOU LD DECIDE THE APPLICATION OF THE ASSESSEE AFRESH KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE AND KEEPING IN VIEW THE C ASE LAWS RELIED ON BY THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 07/12/2018) SD/. SD/. ( A. D. JAIN ) ( T. S. KAPOOR ) VICE PRESIDENT ACCOUNTANT MEMBER DATED:07/12/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW