Ameliorating India, Ludhiana V. CIT (Exemptions), Chandigarh

ITA 851/CHANDI/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8357 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 15-03-2016
• Assessment Year: misc
• Appeal Filed On: 23-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: LT COL NARESH GHAI
• Keywords: Opportunity of being heard
• Section: 80G; 12A; 12AA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO. 851/CHD/2015 UNDER SECTION 80G(5)(VI) & ITA NO. 852/CHD/2015 UNDER SECTION 12AA M/S AMELIORATING INDIA, VS. CIT (EXEMPTIONS) 205-B, MODEL TOWN EXTN, CHANDIGARH LUDHIANA PAN NO. AADAA9470G (APPELLANT) (RESPONDENT) APPELLANT BY : LT. COL. NARESH GHAI RESPONDENT BY : SH. SUSHIL KUMAR DATE OF HEARING : 15/03/2016 DATE OF PRONOUNCEMENT : 16/03/2016 ORDER PER BHAVNESH SAINI, J.M. BOTH THE APPEALS BY THE ASSESSEE ARE DIRECTED AGAIN ST THE DIFFERENT ORDERS OF LD. CIT(EXEMPTION), CHANDIGARH DT. 02/09/2015 REJECTING THE APPLICATION UNDER SECTION 80G(5) (VI) OF INCOME TAX ACT AND UNDER SECTION 12A A OF THE ACT. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED APPLICATION FOR REGISTRATION UNDER SECTION 12AA AND FOR APPROVAL UNDER SECTION 80G(5)( VI) OF THE INCOME TAX ACT. IT IS NOTED IN THE IMPUGNED ORDER THAT DIRECTOR OF THE SO CIETY ATTENDED THE PROCEEDINGS AND DISCUSSED CASE ON TWO OCCASIONS ON 30/04/2015, AS WELL AS ON 26/08/2015 AND THEREAFTER THE IMPUGNED ORDER WAS PASSED. IT IS NOT ED IN THE IMPUGNED ORDER THAT ASSESSEE FAILED TO SUPPLY THE INFORMATION SOUGHT FO R AND NO BOOKS OF ACCOUNT HAVE BEEN MAINTAINED BY THE ASSESSEE. THEREFORE, LD. CIT (EXEMPTIONS) COULD NOT SATISFY HIMSELF ABOUT THE GENUINENESS OF THE ACTIVITIES OF THE ASSESSEE TRUST, ACCORDINGLY, BOTH THE APPLICATIONS WERE REJECTED. 2 3. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES AND PERUSED THE MATERIALS ON RECORD. 4. THE ASSESSEE SUBMITTED THAT THE IMPUGNED ORDER H AVE BEEN PASSED IN ARBITRARY AND WHIMSICAL MANNER WITHOUT PROPER / PERSONAL OPP ORTUNITY OF BEING HEARD GRANTED TO THE ASSESSEE. THE COPY OF THE ORDER SHEET IS FIL ED ON RECORD WHICH WAS OBTAINED BY THE ASSESSEE, UNDER INFORMATION SUPPLIED UNDER RTI ACT. THE ORDER SHEET REVEALED ON 30/04/2015 AND 22/08/2015, THE DIRECTOR OF THE ASSE SSEE SOCIETY APPEARED IN THE PROCEEDINGS HOWEVER, THERE IS NO SIGNATURE OF THE L D. CIT(EXEMPTIONS) IN THE ORDER SHEET, LASTLY THE ORDER SHEET ON 02/09/2015 IS REC ORDED BY DEPUTY DIRECTOR (SYSTEMS) WHICH READS AS UNDER : APPLICATION OF AMELIORATING INDIA, LUDHIANA FOR 1 2A AS WELL AS 80G IS PLACED FOR CONSIDERATION / APPROVAL, SIR. SD/- DD (SYSTEMS) AT THE END OF THE ABOVE ORDER SHEET THERE IS INITI AL OF CIT(EXEMPTION). 4.1 THE ABOVE ORDER SHEET SUPPORT THE CONTENTION OF THE ASSESSEE THAT NO OPPORTUNITY OF BEING HEARD HAVE BEEN GRANTED BY THE LD. CIT(EXEMPTIONS) AND HE DID NOT CONSIDERED THE APPLICATION ON MERITS. SECTION 1 2AA OF THE ACT PROVIDES THAT THE COMMISSIONER ON RECEIPT OF THE APPLICATION FOR REGI STRATION SHALL CALL FOR THE DOCUMENTS AND AFTER SATISFYING HIMSELF ABOUT THE OBJECT OF TH E TRUST OR INSTITUTION AND GENUINENESS OF ITS ACTIVITIES, HE SHALL PASS AN ORDER REGISTERING INSTITUTION OR REFUSING TO REGISTER THE INSTITUTION. IT ALSO PROVIDES THAT NO ORDER UNDER SUB-CLAUSE (II) SHALL BE PASSED UNLESS ASSESSEE HAS BEEN GIVEN REASONABLE OPPORTUNITY OF B EING HEARD. 4.2 THE ABOVE ORDER SHEET FILED ON RECORD CLEARLY S HOWS THAT NONE OF THE PROCEEDINGS HAVE BEEN CONDUCTED BY THE LD. CIT(EXEM PTIONS) CHANDIGARH. THE LAST ORDER SHEET DT. 02/09/2015 CLEARLY SHOWS THAT ENTIR E PROCEEDING HAVE BEEN CONDUCTED BY DD(SYSTEMS) I.E; DEPUTY DIRECTOR (SYSTEMS) FOR C IT(EXEMPTIONS) CHANDIGARH AND NOTHING HAS BEEN DONE IN THE MATTER BY CIT(EXEMPTIO NS)HIMSELF. 5. WE MAY NOTE THAT LAW DOES NOT EMPOWER DEPUTY DIR ECTOR(SYSTEMS) TO HEAR ANY MATTER UNDER SECTION 12AA AND 80G(5)(VI) OF THE ACT . IT IS FOR THE LD. CIT(EXEMPTIONS) TO 3 HEAR AND CONDUCT THE PROCEEDING HIMSELF, AFTER GIV ING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE SHALL PASS AN ORDER IN ACCORDANCE WITH LAW. THE ORDER SHEET CLEARLY SHOWS THAT ONLY AT THE END OF ENTIRE ORDER SHEET THE LD. CIT(EXEMPTIONS) PUT HIS INITIAL. THE IMPUGNED ORDER ARE THEREFORE VIOLATIVE OF THE PROVI SIONS OF LAW AND DOES NOT GIVEN POWER TO THE CIT (EXEMPTIONS) TO DELEGATE HIS POWER TO THE DEPUTY DIRECTOR (SYSTEMS) TO HOLD ENQUIRY AND PROCEEDINGS UNDER THE ABOVE PRO VISIONS. THE ASSESSEE THEREFORE RIGHTLY CONTENDED THAT THE ORDER IS PASSED ARBITRAR Y WITHOUT GIVING ANY PROPER / PERSONAL OPPORTUNITY OF BEING HEARD IN THE MATTER. IN THIS V IEW OF THE MATTER, WE ARE OF THE VIEW THAT IMPUGNED ORDERS OF THE LD. CIT(EXEMPTIONS) CAN NOT BE SUSTAINED IN LAW AND THE MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF CI T(EXEMPTIONS) CHANDIGARH. 6. WE ACCORDINGLY SET ASIDE THE BOTH THE IMPUGNED O RDERS AND RESTORE THE MATTER IN ISSUE TO THE FILE OF CIT(EXEMPTIONS) CHANDIGARH WITH DIRECTION TO RE-DECIDE BOTH THE MATTERS AFRESH IN ACCORDANCE WITH LAW BY GIVING REA SONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIRECT THAT LD. CIT (EXEMPTIONS) CHANDIGARH SHALL HOLD THE PROCEEDINGS AND ENQUIRE INTO THE MATTER PERSONA LLY AND SHALL NOT DELEGATE ANY OF HIS POWER TO THE DEPUTY DIRECTOR (SYSTEMS) ON THIS MATTER. WITH THIS OBSERVATIONS AND DIRECTION, BOTH THE APPEALS OF THE ASSESSEE ARE ALL OWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT, BOTH THE APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :16 TH MARCH 2016 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR