SHRADDHAMOHAL CHARITABLE TRUST, Kota V. CIT, Kota

ITA 960/JPR/2012

• Counselvise Citation: 96023114 RSA 2012
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 28-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA
• Keywords: Charitable institution; Opportunity of being heard
• Section: 12A; 12AA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI B.R. JAIN AND SHRI KUL BHARAT) ITA NO. 960/JP/2012 UNDER SECTION 12AA OF THE I.T. ACT, 1961 PAN: AAKTS 3578 D SHARDDHAMOHAL CHARITABLE TRUST VS. THE CIT 7-B, TALWANDI, COMMERCE COLLEGE ROAD KOTA KOTA (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY: SHRI SUBHASH CHANDRA DATE OF HEARING: 28-08-2013 DATE OF PRONOUNCEMENT: 28-08-2013 ORDER PER KUL BHARAT, JM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT, KOTA DATED 30-10-2012 WHEREIN THE ASSESSEE HAS RAISED FO LLOWING GROUND. 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT HAS ERRED IN REJECTING THE APPLICAT ION FOR REGISTRATION U/S 12A(1)(A) OF THE I.T. ACT, 1961 2.1 BRIEFLY, THE FACTS STATED ARE THAT THE ASSESSEE TRUST FILED AN APPLICATION IN FORM NO. 10A ON 20-04-2012 SEEKING REGISTRATION U/S 12AA(1) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS ACT). THE SAID APPLICATION WAS REJ ECTED BY THE LD. CIT. AGAINST THE ORDER OF LD. CIT, THE ASSESSEE IS IN APPEAL BEFORE THE TR IBUNAL. 2.2 NO ONE APPEARED ON BEHALF OF THE ASSESSEE DURIN G THE COURSE OF HEARING. HOWEVER, THE LD. CIT DR APPEARED AND SUPPORTED THE ORDER OF THE LD. CIT . THE BENCH OBSERVED 2 THAT NO APPLICATION FOR ADJOURNMENT OF HEARING HAS BEEN FILED BY THE ASSESSEE. THEREFORE, THE BENCH DECIDED TO DISPOSE OFF THE APPEAL OF THE ASSESSEE EX-PARTE ON THE BASIS OF THE MATERIALS AVAILABLE ON RECORD. 2.3 WE HAVE HEARD THE LD. DR AND PERUSED THE MATERI ALS AVAILABLE ON RECORD. WE FIND THAT THE LD. CIT IN PARA 5 OF HIS ORDER HAS OBSERVE D AS UNDER:- . THAT THE TRUST HAS NOT FILED THE APPLICATION WIT HIN ONE YEAR OF THE DATE OF ITS CREATION IN 25-03-2011 I.E. UPTO 25-03- 2012. BUT THE APPLICATION WAS FILED BELATEDLY ON 20-04-2012. THE DELAY IS SIG NIFICANT AND NOT PROPERLY EXPLAINED EITHER BEFORE ME AND NO REASON C AN BE INFERRED FROM RECORD. THEREFORE, THE DELAY CANNOT BE CONDONED. AS PER SECTION 12A OF SUB-SECTION (1) AND CLAUSE (A ), THE REQUIREMENT WAS THAT THE APPLICATION FOR REGISTRATION WAS TO BE MADE WITHIN ONE YEAR FROM THE DATE OF CREATION OF THE TRUST OR ESTABLISHMENT OF THE INSTITUTION BUT T HERE IS AN AMENDMENT IN THE PROVISION W.E.F. 01-06-2007 WHEREIN THE PROVISIONS OF THIS CL AUSE SHALL NOT APPLY IN RELATION TO ANY APPLICATION MADE ON OR AFTER THE IST DAY OF JUNE, 2 007. ADMITTEDLY, IN THE PRESENT CASE, THE APPLICATION HAS BEEN MADE ON 20-04-2012. THEREFORE, THIS OBSERVATION OF THE LD. CIT IS NOT IN ACCORDANCE WITH LAW. MOREOVER, WE FIND THAT LD. CIT HAS NOT DISCUSSED ABOUT THE OBJECTS OF THE TRUST AND GENUINENESS OF ITS ACTIVIT IES. THEREFORE, IN OUR CONSIDERED VIEW, THE APPLICATION OF THE ASSESSEE TRUST FOR REGISTRAT ION CANNOT BE REJECTED ON THE BASIS THAT THE TRUST HAS NOT CARRIED OUT ANY WORTHWHILE CHARIT ABLE ACTIVITIES. WE HAVE OBSERVED THAT HON'BLE DELHI HIGH COURT IN THE CASE OF DIRECTOR O F INCOME TAX VS. FOUNDATION OF OPHTHALMIC AND OPTOMETRY RESEARCH EDUCATION CENTRE, 355 ITR 361 HAS HELD THAT STATUTE DOES NOT PROHIBIT OR ENJOIN THE COMMISSIONE R FROM REGISTERING A TRUST SOLELY BASED ON ITS OBJECTS, WITHOUT ANY ACTIVITY, IN THE CASE O F A NEWLY REGISTERED TRUST. THE STATUTE 3 DOES NOT PRESCRIBE A WAITING PERIOD, FOR A TRUST TO QUALITY ITSELF FOR REGISTRATION. IF THE REVENUES CONTENTIONS WERE CORRECT THEN, NECESSARIL Y, A CONDITION WOULD HAVE TO BE READ INTO THE PROVISION THAT THE COMMISSIONER SHOULD BE SATISFIED THAT THE TRUST WAS IN FACT ENGAGED IN CHARITABLE ACTIVITIES WHICH WOULD IN TUR N INJECT CONSIDERABLE DEAL OF SUBJECTIVITY . THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOME TAX VS. FOUNDATIO N OF OPHTHALMIC AND OPTOMETRY RESEARCH EDUCATION CENTRE (SUPRA), THE ORDER OF THE LD. CIT IS SET ASIDE AND THE APPEAL OF THE ASSESSEE IS RESTORED TO THE FILE OF THE LD. CIT TO DECIDE IT AFRESH BY PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES THE ORDER IS PRONOUNCED IN THE OPEN COURT IMMEDIATE LY AFTER CONCLUSION OF HEARING ON 28-08-2013 . SD/- SD/- (B.R. JAIN) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 28 TH AUG, 2013 *MISHRA COPY FORWARDED TO:- BY ORDER 1. M/S. SHRADDHAMOHAL CHARITABLE TRUST, KOTA 2. THE LD. CIT, KOTA 3. THE LD. CIT 4. THE LD. DR 5. THE GUARD FILE (IT NO.960/JP/12 ) A.R. ITAT: JAIPUR 4 5