Bal Mahila Evam Gramya Vikas Sewa Samiti, Agra V. C.I.T.-1, Agra

ITA 98/AGR/2011

• Counselvise Citation: 9820314 RSA 2011
• Duration Of Justice: 1 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-05-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 13-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Keywords: Charitable institution; Period of limitation; Condonation of delay
• Section: 12AA; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 97 & 98/AGRA/2011 BAL MAHILA EVAM GRAMYA VIKAS SEWA SAMITI, VS. COMMI SSIONER OF 58/300/1B/1, AYODHYA KUNJ, ARJUN NAGAR, INCOME-TA X-I, AGRA. MAIN ROAD, AGRA. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI A.K. SHARMA, JR. D.R. DATE OF HEARING : 07.05.2012 DATE OF PRONOUNCEMENT OF ORDER : 11.05.2012 ORDER PER BHAVNESH SAINI, J.M.: BOTH THE APPEALS BY THE ASSESSEE ARE DIRECTED AGAI NST THE COMMON ORDER OF LD. CIT-I, AGRA DATED 16.04.2009, REJECTING THE APP LICATIONS U/S. 12AA AND 80G(5)(VI) OF THE IT ACT. 2. BOTH THE APPEALS WERE FILED IN THE OFFICE OF ITA T, AGRA BENCH ON 13.04.2011. IT IS STATED IN COLUMN NO. 9 OF THE APP EAL PAPERS THAT THE DATE OF COMMUNICATION OF THE ORDER APPEALED AGAINST IS 18.0 4.2009. THUS, BOTH THE APPEALS ARE TIME BARRED. THE ASSESSEE FILED APPLICATION FOR CONDONATION OF DELAY IN FILING BOTH THE APPEALS ON THE REASONS THAT EARLIER, THE A SSESSEE PREFERRED ONLY ONE APPEAL ITA NO. 97 & 98/AGRA/2011 2 AGAINST COMMON IMPUGNED ORDER WITHIN THE TIME BEFOR E THE TRIBUNAL IN ITA NO. 221/AGRA/2009 WHEREAS THE ASSESSEE WAS REQUIRED TO FILE TWO APPEALS. THE EARLIER APPEAL OF THE ASSESSEE WAS DISMISSED AS WITHDRAWN W ITH LIBERTY TO FILE TWO APPEALS AGAINST THE COMMON IMPUGNED ORDER. THE COPY OF THE ORDER OF THE TRIBUNAL DATED 09.03.2011 IS FILED ON RECORD. IT IS, THEREFORE, ST ATED THAT DUE TO ABOVE REASONABLE AND SUFFICIENT CAUSE, BOTH THE APPEALS COULD NOT BE FILED WITHIN TIME. THE DELAY IS BONA FIDE AND THE ASSESSEE, THEREFORE, PRAYED THAT THE DELAY IN FILING THE APPEALS IS LIABLE TO BE CONDONED. CONSIDERING THE EXPLANATION OF THE ASSESSEE IN THE LIGHT OF THE EARLIER ORDER OF THE TRIBUNAL DATED 09.03.2011, WE ARE OF THE VIEW THAT THE ASSESSEE HAS SUFFICIENT CAUSE FOR FILING THE APPEAL S BEYOND THE PERIOD OF LIMITATION. THE DELAY IN FILING THE APPEALS IS, ACCORDINGLY, CO NDONED. 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE FILED APPLICATIONS FOR GRANT OF REGISTRATION U/S. 12AA & FOR APPROVAL U/S. 80G(5 )(VI) OF THE IT ACT BEFORE THE LD. COMMISSIONER IN PRESCRIBED FORM ON 17.10.2008. THE CASE WAS FIXED FOR HEARING ON 28.01.2009, BUT ON THE REQUEST OF THE AS SESSEE, THE MATTERS WERE FIXED BEFORE THE LD. CIT AGAIN ON 24.02.2009. THE ASSESSE ES COUNSEL SHRI H.D. SHARMA, VIDE LETTER DATED 05.02.2009 INTIMATED THE LD. COMM ISSIONER THAT THERE ARE SEVERAL DISCREPANCIES IN THE CASH BOOK AND LEDGER OF THE AS SESSEE WHICH COULD BE RECTIFIED AND, ACCORDINGLY, SOUGHT ADJOURNMENT. IT WAS ALSO S TATED THAT WITHOUT PERMISSION OF ITA NO. 97 & 98/AGRA/2011 3 THE ASSESSEE, NO OTHER REPRESENTATIVE MAY BE ALLOWE D TO APPEAR IN THIS MATTER. AGAIN ON THE REQUESTS OF THE ASSESSEE, THE MATTERS WERE REPEATEDLY ADJOURNED TO 12.03.2009, 19.03.2009 AND 31.03.2009 AND THE ASSES SEE WAS DIRECTED TO PRODUCE THE PRESIDENT / SECRETARY OF THE ASSESSEE-TRUST FOR HEARING. THE ASSESSEE IN THE MEANTIME CHANGED THE EARLIER COUNSEL AND ANOTHER CO UNSEL SHRI PANKAJ MISHRA, C.A. FILED HIS POWER OF ATTORNEY AND ALSO REQUESTED THE LD. CIT FOR ADJOURNMENT. ON HIS REQUEST BOTH THE CASES WERE ADJOURNED TO 06. 04.2009 AND THE EARLIER COUNSEL WAS INTIMATED THAT HIS POWER OF ATTORNEY HAS BEEN C ANCELLED AND NEW COUNSEL HAS BEEN APPOINTED. ON 06.04.2009, SHRI PANKAJ MISHRA, CA APPEARED AND HE WAS DIRECTED TO PRODUCE THE FOLLOWING DOCUMENTS : (I). AUDITED BALANCE SHEET AND PROFIT & LOSS ACCOUN T OF THE YEAR ENDING 31.03.2009. (II). COMPLETE DETAILS OF INCOME AND THE INCOME-TAX PAID BY ASSESSEE SINCE THE DAY OF ITS INCEPTION YEAR-WISE. (III). EXPLANATION WAS SOUGHT THAT THE ASSESSEE WAS ESTABLISHED IN 1986, BUT WHY REGISTRATION APPLICATION WAS NOT FILED EARLIER. (IV). YEAR-WISE GRANTS RECEIVED BY ASSESSEE AND TH E CONCERNED DEPARTMENTS. ITA NO. 97 & 98/AGRA/2011 4 (V). SINCE THE DATE OF ESTABLISHMENT, THE DONATION RECEIVED OF MORE THAN RS.10,000/- AND THEIR DETAILS AND CONFIRMATION LETT ERS. 3.1 ON 14/16.04.2009, THE ASSESSEES COUNSEL APPEAR ED AND SOME OF THE DOCUMENTS WERE FILED AND ON EXAMINATION OF THE SAME , THE LD. CIT FOUND THAT THE ASSESSEE FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2001-02, BUT ACCORDING TO THE CHART, THE TAXABLE INCOME WAS SHOWN IN THE YEAR 1998-99 ONLY, FOR WHICH NO ACKNOWLEDGEMENT FOR FILING OF THE RETURN HAS BEEN F ILED. THE LIST OF DONORS SINCE THE ESTABLISHMENT OF THE ASSESSEE-TRUST WAS DIRECTE D TO BE FILED, BUT SUCH DONATION LIST IS FILED FROM ASSESSMENT YEAR 2005-06 ONLY. TH E LD. CIT ASKED FOR THE AUDITED ACCOUNTS, BUT COPIES OF ACCOUNTS FILED WERE NOT AUD ITED AND IT WAS STATED THAT THE ASSESSEE WAS NOT AWARE OF THE REGISTRATION PROVISIO N, THOUGH IT WAS RUNNING SINCE 1986. THE LD. CIT IN THE ABSENCE OF COMPLETE DETAIL S AND MATERIAL FOUND THAT THE ASSESSEE IS NOT ABLE TO PROVE THAT IT ACTED FOR CHA RITABLE PURPOSE ONLY. THE OBJECTS OF THE ASSESSEE-TRUST AND GENUINENESS OF ITS ACTIVI TIES WERE NOT ESTABLISHED. THEREFORE, BOTH THE APPLICATIONS OF THE ASSESSEE WE RE REJECTED. 4. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. THE ASSESSEES COUNSEL FORWARDED THE REQUEST FOR ADJOUR NMENT ON THE GROUND THAT HE HAS TO GO TO JAIPUR BECAUSE HIS BROTHER-IN-LAW SUFFERED INJURY WHILE TRAVELING. THE REQUEST OF ADJOURNMENT IS SIGNED BY HIM ON 05.05.20 11. THE REQUEST WAS OBJECTED ITA NO. 97 & 98/AGRA/2011 5 TO. ON EARLIER OCCASIONS ALSO, WHEN THE APPEALS WER E TAKEN UP FOR HEARING ON 14.03.12, SIMILAR REQUEST FOR ADJOURNMENT WAS MADE DUE TO DEATH OF FATHER OF CLOSE FRIEND AND CLIENT. IT BEING THE FIRST HEARING, THE APPEALS WERE ADJOURNED TO 25.04.2012. AGAIN ON 25.04.2012, NO AUTHORIZED REPR ESENTATIVE APPEARED FOR THE ASSESSEE BECAUSE THE COUNSEL FOR THE ASSESSEE HAD T O RUSH TO DELHI BECAUSE HIS MATERNAL UNCLE WAS HOSPITALIZED IN GANGA RAM HOSPIT AL, NEW DELHI. THUS, ON THE REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE, THE AP PEALS WERE AGAIN ADJOURNED TO 07.05.2012 AND IT WAS MADE CLEAR THAT NO FURTHER AD JOURNMENT SHALL BE GRANTED IN FUTURE ON ANY REASON, WHATSOEVER. HOWEVER, NONE APP EARED ON THE DATE FIXED ON 07.05.12 AND AGAIN THE SIMILAR REQUEST FOR ADJOURNM ENT WAS FORWARDED BY THE LD. COUNSEL FOR THE ASSESSEE. THE REASON GIVEN FOR ADJO URNMENT WAS THAT THE COUNSEL FOR ASSESSEE HAS TO GO TO JAIPUR TO SEE HIS BROTHER-IN- LAW, WHO SUFFERED INJURY. CONSIDERING THE CONDUCT OF THE ASSESSEE IN NOT APPE ARING ON THE DATES OF HEARING AND THE LD. COUNSEL FOR THE ASSESSEE ON ONE OR THE OTHER REASONS EXCEPT SEEKING ADJOURNMENT DID NOT DO ANYTHING AND CONSIDERING THE LAST ORDER SHEET NOTED ABOVE, IT WAS CLEAR THAT THERE WAS NO INTENTION ON THE PAR T OF THE AURTHORISED REPRESENTATIVE TO APPEAR AND ARGUE THE MATTER. THE REASONS FOR ADJOURNMENT ARE ALSO IMPROPER. THEREFORE, THE REQUEST FOR ADJOURNME NT WAS REJECTED AND BOTH THE APPEALS WERE HEARD ON MERIT. THE ASSESSEE FILED PAP ER BOOK, WHICH IS TAKEN INTO CONSIDERATION. THE LD. DR SUBMITTED THAT THE ASSESS EE DID NOT COMPLY WITH THE ITA NO. 97 & 98/AGRA/2011 6 STATUTORY NOTICE BEFORE THE LD. COMMISSIONER AND CO MPLETE DETAILS HAVE NOT BEEN FILED. THEREFORE, THE ASSESSEE IS NOT ABLE TO PROVE THAT ITS OBJECTS ARE CHARITABLE IN NATURE AND THAT THE ASSESSEE HAS FAILED TO PROVE TH E GENUINENESS OF ITS ACTIVITIES. THEREFORE, BOTH THE APPLICATIONS HAVE BEEN RIGHTLY REJECTED. THE LD. DR SUBMITTED THAT WHATEVER DOCUMENTS WERE CALLED FOR BY THE LD. COMMISSIONER HAVE NOT EVEN BEEN FILED IN THE PAPER BOOK. 5. ON CONSIDERATION OF THE FACTS OF THE CASE IN THE LIGHT OF FINDINGS IN THE IMPUGNED ORDER, WE DO NOT FIND ANY MERIT IN BOTH TH E APPEALS OF THE ASSESSEE. SECTION 12AA OF THE IT ACT PROVIDES PROCEDURE FOR R EGISTRATION AND PROVIDES THAT THE COMMISSIONER ON RECEIPT OF APPLICATION FOR REGI STRATION SHALL CALL FOR SUCH DOCUMENTS OR INFORMATION FROM THE TRUST OR INSTITUT ION, AS HE THINKS NECESSARY, IN ORDER TO SATISFY HIMSELF ABOUT THE GENUINENESS OF A CTIVITIES OF THE TRUST OR INSTITUTION AND MAY ALSO MAKE SUCH ENQUIRIES AS HE MAY DEEMS NE CESSARY IN THIS BEHALF AND AFTER SATISFYING HIMSELF ABOUT THE OBJECTS OF TRUST OR INSTITUTION AND THE GENUINENESS OF ITS ACTIVITIES, HE MAY PASS ORDER IN WRITING GRA NTING REGISTRATION TO THE ASSESSEE OR REFUSE TO GRANT REGISTRATION TO THE SOCIETY. THEREF ORE, THE LD. COMMISSIONER WITHIN HIS RIGHTS BY LAW HAS BEEN AUTHORIZED TO CALL FOR S UCH DOCUMENTS OR INFORMATION FROM THE ASSESSEE IN ORDER TO SATISFY HIMSELF ABOUT THE OBJECTS AND GENUINENESS OF THE ACTIVITIES OF THE ASSESSEE. HOWEVER, THE ASSESS EE DESPITE CALLING FOR SPECIFIC ITA NO. 97 & 98/AGRA/2011 7 INFORMATION AND DOCUMENTS FAILED TO SUBMIT COMPLETE DETAILS BEFORE THE LD. COMMISSIONER IN ORDER TO SATISFY HIMSELF ABOUT THE OBJECTS AND GENUINENESS OF ACTIVITIES OF THE ASSESSEE-TRUST. EVEN IN THE PAPER BOOK FILED BEFORE US, COMPLETE DETAILS CALLED FOR BY THE LD. COMMISSIONER HAVE NOT BEEN FILED EXPLAINING THE QUERIES RAISED BY THE LD. COMMISSIONER. THE ASSESSE E FILED INCOME AND EXPENDITURE ACCOUNT OF THREE YEARS ENDING ON 31.03.2006, 31.03. 2007 AND 31.03.2008 IN THE PAPER BOOK, IN WHICH IN THE INCOME SIDE, THE INCOME WAS SHOWN ON ACCOUNT OF MEMBERS CONTRIBUTION, DONATION, INTEREST FROM BANK, MEMBERSHIP FEES AND SALE OF GOODS / ITEMS PREPARED DURING THE TRAINING AND DIFF ERENT HATS, MELAS ETC. FOR SELLING DIFFERENT GOODS IN SEVERAL LACS. THE PROVISIONS OF SECTION 11 AND 12 OF THE IT ACT SHALL NOT APPLY IN RELATION TO THE INCOME OF ANY TR UST OR INSTITUTION UNLESS THE ASSESSEE IS REGISTERED U/S. 12A/12AA OF THE IT ACT. FOR THE PURPOSE OF SECTION 11, THE INCOME DERIVED BY THE TRUST OR INSTITUTION SHOU LD BE FOR CHARITABLE PURPOSE AND INCOME-TAX ACT IS AMENDED FOR THE DEFINITION OF SEC TION 2(15) FOR THE PURPOSE OF DEFINING THE TERM CHARITABLE PURPOSE AND IN THE P ROVISO IT IS PROVIDED THAT THE ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUBLIC U TILITY SHALL NOT BE CHARITABLE PURPOSE, IF IT INVOLVES CARRYING ON OF ANY ACTIVITY IN THE NATURE OF TRADE, COMMERCE OR BUSINESS OR LIKE SERVICES. THE BALANCE SHEET OF THREE YEARS FILED IN THE PAPER BOOK MAY ATTRACT THE PROVISO TO SECTION 2(15) OF TH E IT ACT. FURTHER, ACCORDING TO SECTION 80G(5), THE APPROVAL COULD BE GRANTED TO TH E ASSESSEE IF THE ASSESSEE FULFILLS ITA NO. 97 & 98/AGRA/2011 8 SEVERAL CONDITIONS, NAMELY, WHERE THE INSTITUTION O R FUNDS DERIVES ANY INCOME, SUCH INCOME WOULD NOT BE LIABLE TO INCLUSION IN HIS TOTA L INCOME UNDER THE PROVISIONS OF SECTION 11 AND 12 OF THE IT ACT. IN THE PROVISO, IT IS PROVIDED THAT WHERE AN INSTITUTION OR FUNDS DERIVES ANY INCOME, BEING PROF IT AND GAINS OF BUSINESS, THE CONDITION THAT SUCH INCOME WOULD NOT BE LIABLE TO I NCLUSION IN ITS TOTAL INCOME UNDER THE PROVISIONS OF SECTION 11, SHALL NOT APPLY IN RELATION TO SUCH INCOME IF THE INSTITUTION MAINTAINS SEPARATE BOOKS OF ACCOUNT IN RESPECT OF SUCH BUSINESS AND THAT THE DONATIONS ARE NOT USED FOR THE PURPOSE OF BUSIN ESS AND SUCH INSTITUTION WILL ISSUE CERTIFICATE TO THE EFFECT THAT IT MAINTAINS S EPARATE BOOKS OF ACCOUNT IN RESPECT OF BUSINESS AND THE DONATIONS RECEIVED BY IT WILL N OT DIRECTLY OR INDIRECTLY BE USED FOR THE PURPOSE OF BUSINESS. OTHER CONDITIONS HAVE BEEN PROVIDED IN ORDER TO SATISFY THE CONDITIONS OF SECTION 80G(5) OF THE IT ACT, ESP ECIALLY THAT THE INSTITUTION IS NOT MEANT FOR THE BENEFIT OF ANY PARTICULAR RELIGIOUS C OMMUNITY OR CASTE AND THAT THE INSTITUTION MAINTAINS REGULAR BOOKS OF ACCOUNT OF R ECEIPT AND EXPENDITURE. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES AND THE FACT THAT THE ASSESSEE DID NOT PROVIDE COMPLETE DETAILS BEFORE THE LD. COM MISSIONER IN ORDER TO SATISFY THE REQUIREMENT OF BOTH THE ABOVE PROVISIONS OF THE IT ACT AND FURTHER THE ASSESSEE FAILED TO MEET OUT SUCH REQUIREMENTS BY NOT FILING RELEVANT DOCUMENTS EVEN IN THE PAPER BOOK, WE DO NOT FIND ANY JUSTIFICATION TO INT ERFERE WITH THE IMPUGNED ORDER. THE ASSESSEE, BEFORE THE LD. COMMISSIONER, WAS ONLY SEEKING ADJOURNMENTS ON ONE ITA NO. 97 & 98/AGRA/2011 9 OR THE OTHER REASONS AND THERE WAS A CHANGE IN COUN SEL ALSO AND NO COMPLETE DETAILS WERE FURNISHED, WOULD PROVE THAT THE ASSESSEE FAILE D TO PROVE ITS CASE BEFORE THE LD. COMMISSIONER. SAME IS THE POSITION BEFORE THE TRIBU NAL, IN WHICH THE ASSESSEE DESPITE SEEKING ADJOURNMENTS ON ONE OR THE OTHER RE ASONS, DID NOT PREFER TO ARGUE OR REPRESENT THE CASE BEFORE THE TRIBUNAL. IN THE ABSE NCE OF ANY EXPLANATION AND COMPLETE DETAILS, THE LD. CIT WAS JUSTIFIED IN REJE CTING THE SUBMISSIONS OF THE ASSESSEE. BOTH THE APPEALS OF THE ASSESSEE HAVE NO MERIT AND ARE, ACCORDINGLY DISMISSED. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY