M/s OM shanti Jeevdaya Sanstha, Bangalore V. DIT, Bangalore

ITA 850/BANG/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7769 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 29-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K AMBASTHA CITI
• Assessee Lawyers: SRINIVASAN; SHYAM CHAKRAVARTHY
• Keywords: Charitable institution; Opportunity of being heard
• Section: 12AA

Judgement Text

PAGE 1 OF 4 ITA NO.8 50/BANG/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE SHRI N BARATHVAJA SANKAR, VICE PRESIDENT AND SHRI GEORGE GEORGE K, JUDICIAL MEMBER ITA NO.850/BANG/2011 M/S OM SHANTI JEEVDAYA SANSTHA, #9 & 10, 1 ST FLOOR, SAGAR MARKET, D K LANE, CHICKPET, BANGALORE. PA NO. AAATO3057B VS THE DIRECTOR OF INCOME-TAX (EXEMPTIONS), BANGALORE. (APPELLANT) (RESPONDENT) DATE OF HEARING : 20.06.2012 DATE OF PRONOUNCEMENT : 20.06.2012 APPELLANT BY : SHRI SRINIVASAN, C.A. & SHRI SHYAM CHAKRAVA RTHY, C.A. RESPONDENT BY : SHRI S K AMBASTHA, CIT-I ORDER PER GEORGE GEORGE K : THIS APPEAL INSTITUTED BY THE APPELLANT-TRUST IS D IRECTED AGAINST THE ORDER OF THE DIRECTOR OF INCOME-TAX (EXEMPTIONS ), BANGALORE DATED 29.08.2011 UNDER SECTION 12AA(1)(B)(II) OF THE ACT. 2. THE BRIEF FACTS OF THE CASE ARE AS FOLLOWS :- THE APPELLANT-TRUST CLAIMS THAT IT FEEDS AND PROV IDES SHELTER TO ALL KINDS OF BIRD SPECIES. PRESENTLY, IT IS STATED THAT THE FEEDING ACTIVITY IS CARRIED ON AT KALAHALLY, LAKESIDE ROAD, INSIDE MEG C ENTRE, BANGALORE-42. THE APPELLANT-TRUST FILED AN APPLICATION FOR REGIST RATION UNDER SECTION 12AA PAGE 2 OF 4 ITA NO.8 50/BANG/2011 2 ON 19/5/2011. A CALL MEMO DATED 21.6.2011 WAS ISSU ED BY THE INCOME TAX OFFICER (EXEMPTIONS)-2 ON BEHALF OF THE DIRECTOR OF INCOME-TAX (EXEMPTIONS) CALLING FOR CERTAIN DETAILS. THE DETA ILS CALLED FOR, ACCORDING TO THE APPELLANT-TRUST, WAS DULY FURNISHED VIDE ITS LET TERS DATED 6/7/2011 AND 10/8/2011. THEREAFTER, ORDER WAS PASSED UNDER SECT ION 12AA OF THE ACT REJECTING THE APPLICATION FOR REGISTRATION. THE DI RECTOR OF INCOME-TAX (EXEMPTIONS) WAS OF THE VIEW THAT THE ACTIVITIES OF THE TRUST DID NOT FALL UNDER ANY OF THE LIMBS PRESCRIBED UNDER THE DEFINITI ON OF CHARITABLE PURPOSE UNDER SECTION 2(15) OF THE I T ACT AND THE REFORE, WAS NOT ENTITLED REGISTRATION UNDER SECTION 12AA OF THE ACT. THE RE LEVANT FINDING OF THE DIRECTOR OF INCOME-TAX (EXEMPTIONS) READS AS FOLLOW S :- IN THE INSTANT CASE, THE ONLY ACTIVITY CARRIED OUT BY THE TRUST IS FEEDING OF BIRDS AT KALAHALLY, LAKESIDE ROA D, BANGALORE. THE SAID ACTIVITY OF THE TRUST DOES NOT FALL UNDER ANY OF THE LIMBS PRESCRIBED UNDER THE DEFINITI ON OF CHARITABLE PURPOSE UNDER SECTION 2(15) OF THE I T ACT. THE APPLICANT TRUST HAS NOT ADDUCED ANY EVIDENCE IN SUPPORT OF OTHER CHARITABLE ACTIVITIES CARRIED OUT AND HAS ONLY ENCLOSED COPIES OF CASH VOUCHERS FOR PURCHASE O F GRAINS IN SUPPORT OF ITS BIRD FEEDING ACTIVITY. THE ACTIVITY OF FEEDING OF BIRDS CANNOT BE CLASSIFIED AS CHARITABLE PURPOSE WITHIN THE MEANING OF SECTION 2( 15) OF THE I T ACT. 3. THE APPELLANT-TRUST BEING AGGRIEVED BY REJECTION OF ITS APPLICATION FOR GRANT OF REGISTRATION IS IN APPEAL BEFORE US. 4. THE LEARNED AR SUBMITTED THAT NO OPPORTUNITY OF BEING HEARD WAS GIVEN BY THE DIRECTOR OF INCOME-TAX (EXEMPTIONS) BEFORE DENYING THE BENEFIT OF REGISTRATION. HE STATED THAT CERTAIN DE TAILS WERE CALLED FOR BY PAGE 3 OF 4 ITA NO.8 50/BANG/2011 3 THE ITO ON BEHALF OF THE DIT(E) AND THE ASSESSEE FI LED REPLY VIDE LETTERS DATED 6/7/2011 & 10/8/2011. THE IMPUGNED ORDER WAS PASSED WITHOUT CALLING FOR ANY EXPLANATION ON THE DETAILS FILED. O NLY ON RECEIPT OF THE IMPUGNED ORDER, THE APPELLANT-TRUST CAME TO KNOW TH E REASON AS WHY ITS APPLICATION FOR REGISTRATION WAS REJECTED. IT WAS SUBMITTED THAT THE DEFINITION OF CHARITABLE PURPOSE UNDER SECTION 2( 15) OF THE ACT INCLUDES ALSO THE PRESERVATION OF ENVIRONMENT INCLUDING WAT ER SHED, FOREST AND WILDLIFE. THEREFORE, THE ABOVE SAID ACTIVITY OF TH E APPELLANT-TRUST COMES WITHIN THE TERM OF CHARITABLE PURPOSE UNDER THE D EFINITION OF THE ACT AND IT IS ENTITLED TO REGISTRATION UNDER SECTION 12AA O F THE ACT. 5. THE LEARNED DR, ON THE OTHER HAND, SUPPORTED TH E ORDER OF THE DIRECTOR OF INCOME-TAX (EXEMPTIONS). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS ON RECORD. THE DIRECTOR OF INCOME-TAX (EXEMPTIONS ) OFFICE ISSUED A LETTER DATED 21/6/2011 CALLING FOR CERTAIN DETAILS. THE A PPELLANT-TRUST FILED DETAILS VIDE ITS LETTERS DATED 6/7/11 & 10/8/11. ON RECEIP T OF THE SAME, THE DIRECTOR OF INCOME-TAX (EXEMPTIONS) PASSED THE IMPU GNED ORDER WITHOUT ISSUING SHOW-CAUSE NOTICE. WE ARE OF THE VIEW THAT NO PROPER OPPORTUNITY OF HEARING WAS GRANTED TO THE APPELLANT-TRUST. HAD THE APPELLANT-TRUST BEEN ISSUED WITH A SHOW-CAUSE NOTICE, IT COULD HAVE OBJE CTED TO THE REASON WHICH WEIGHED WITH DIT(E) FOR REJECTING ITS REGISTRATION APPLICATION. MOREOVER, FROM THE ORDER OF THE DIRECTOR OF INCOME-TAX (EXEMP TIONS), WE FIND THAT THOUGH HE HAS HELD THAT THE ACTIVITIES OF THE APPEL LANT-TRUST DOES NOT COME WITHIN THE PURVIEW OF THE TERM CHARITABLE PURPOSE , HE HAS NOT STATED THE PAGE 4 OF 4 ITA NO.8 50/BANG/2011 4 REASONS FOR HOLDING SO. IN THE LIGHT OF THE AFORES AID REASONS, WE ARE OF THE VIEW THAT THE MATTER NEEDS RE-EXAMINATION BY THE DI RECTOR OF INCOME-TAX (EXEMPTIONS). THEREFORE, THE ISSUE IS RESTORED TO THE FILE OF THE DIRECTOR OF INCOME-TAX (EXEMPTIONS) FOR DENOVO CONSIDERATION . NEEDLESS TO SAY, THE APPELLANT-TRUST SHALL BE HEARD BEFORE A DECISION IS TAKEN ON THE MATTER. IT IS ORDERED ACCORDINGLY. 7. IN THE RESULT, THE APPEAL FILED BY THE APPELLANT -TRUST IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON THE 20 TH DAY OF JUNE, 2012 AT BANGALORE. SD/- SD/- (N BARATHVAJA SANKAR) (GEORGE GEORGE K) VICE PRESIDENT JUDICIAL MEMBER COPY TO : 1. THE REVENUE 2. THE ASSESSEE 3. THE C IT CONCERNED. 4. THE CIT(A) CONCERNED. 5. DR 6. GF MSP/ BY ORDER SENIOR PRIVATE SECRETARY, ITAT, BA NGALORE.