Dawoodi Bohra Jamat-Palitana, Dist.Bhavnagar V. The Director of Income tax(Exemption), Ahmedabad

ITA 986/AHD/2008

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 8970 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-09-2009
• Assessment Year: misc
• Appeal Filed On: 17-03-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHRI
• Assessee Lawyers: M G PATEL
• Section: 12A; 12AA; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI H.L. KARWA, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER DATE OF HEARING : 16.09.2009 DRAFTED ON:17.0 9.2009 ITA NO.986/AHD/2008 ASSESSMENT YEAR : DAWOODI BOHRA JAMAT- PALITANA BOHRA MASJID, NAVAPURA CHOWK, PALITANA, DIST.BHAVNAGAR. VS. DIRECTOR OF INCOME TAX (EXEMPTION), AHMEDABAD. PAN/GIR NO. : AABTD 0910 N (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI M.G.PATEL RESPONDENT BY: SHRI ALOK JOHRI CIT D.R. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. D.I.T. (EXEMPTION), AHMEDABAD, DATED 12.12.2007. 2. THE SOLE GROUND RAISED BY THE ASSESSEE TRUST IS WITH REGARD TO THE DIRECTION OF THE D.I.T. (EXEMPTION), AHMEDABAD, IN GRANTING REGISTRATION UNDER SECTION 12A OF THE INCOME TAX ACT, 1961 WITH EFFECT FROM 1.04.2007 INSTEAD OF 1.04.1991 WITHOUT PROPERLY APP RECIATING THE REASONS FOR DELAY IN FILING THE APPLICATION. ITA NO .986/AHD/2008 M/S. DAWOODI BOHRA JAMAT - 2 - 3. THE ASSESSEE TRUST HAS FILED APPLICATION BEFORE THE D.I.T. (EXEMPTION), AHMEDABAD, IN FORM NO.10A ON 31.05.200 7 FOR GRANTING REGISTRATION. SINCE, THE ASSESSEE TRUST IS VERY OLD , THE DATE OF CREATION/ESTABLISHMENT OF THE ASSESSEE TRUST COULD NOT BE ESTABLISHED BY THE ASSESSEE TRUST. 4. THE LD. D.I.T. (EXEMPTION), AHMEDABAD, ON PERUSA L OF THE RECORD AVAILABLE BEFORE HIM OBSERVED THAT AS PER THE PROVI SIONS OF SECTION 12A OF THE ACT, THE APPLICATION FILED BY THE ASSESSEE TRUS T IN FORM NO.10A WAS REQUIRED TO BE SUBMITTED TO HIS OFFICE BEFORE THE E XPIRY OF PERIOD OF ONE YEAR FROM THE DATE OF CREATION OF THE TRUST. THE AS SESSEE TRUST, HOWEVER, FILED APPLICATION ON 31.05.2007, WHICH IS BEYOND TH E STATUTORY PERIOD OF ONE YEAR PRESCRIBED BY THE ACT. THE D.I.T. (EXEMPTI ON), AHMEDABAD, CONSIDERING THE REPLY SUBMITTED BY THE ASSESSEE TRU ST, HELD THAT THE REASON FOR THE DELAY IN FILING THE APPLICATION FOR REGISTRATION OF THE TRUST IS NOT ACCEPTABLE AND SATISFACTORY AND REJECTED THE CO NDONATION OF THE DELAY. HE, HOWEVER, GRANTED REGISTRATION W.E.F. 1. 04.2007 AS PER CLAUSE (A)(II) OF SECTION 12A OF THE ACT. IT WAS FURTHER S TATED BY HIM THAT THE CERTIFICATE TESTIFIES TO THE FACT OF REGISTRATION U NDER SECTION 12AA OF THE ACT ONLY AND IT DOES NOT CONFER ANY RIGHT OR ENTITL EMENT REGARDING OPERATION OF SECTION 11, 12 AND 13 OR ANY OTHER PRO VISIONS OF THE ACT WHICH IS TO BE DECIDED BY THE LEARNED ASSESSING OFF ICER ON MERITS. 5. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE, BEFORE US, SUBMITTED THAT D.I.T. (EXEMPTION), ITA NO .986/AHD/2008 M/S. DAWOODI BOHRA JAMAT - 3 - AHMEDABAD, OUGHT TO HAVE GRANTED REGISTRATION TO TH E ASSESSEE W.E.F. 6.06.1993 WHEN APPLICATION FOR REGISTRATION WAS ORI GINALLY FILED BY THE TRUST AND NOT W.E.F. 1.04.2007. IT WAS ALSO SUBMITT ED THAT ASSESSEE TRUST IS VERY OLD AND IT IS DIFFICULT TO ESTABLISH THE DATE OF CREATION OF THE ASSESSEE TRUST. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUPPORTED THE ORDER OF D.I.T. (EXEMPTION), AHMEDABA D. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. IN THE INSTANT CASE, THE REGISTRATION UNDER SECTION 12A OF THE ACT WAS GRANTED TO THE ASSESSEE TRUST BY THE D.I.T. (EXEMPTION), AHMEDABAD , VIDE ORDER DATED 12.12.2007 W.E.F. 1.04.2007. THE REGISTRATION WAS G RANTED TO THE ASSESSEE TRUST IN PURSUANCE TO ITS APPLICATION WHICH WAS FIL ED ON 31.05.2007. IT IS OBSERVED THAT THE TRUST WAS CREATED LONG BACK AND E XACT DATE OF CREATION OF TRUST IS NOT ON RECORD. FURTHER, AS PER D.I.T. ( EXEMPTION), AHMEDABAD, THE ASSESSEE CLAIMED ALONG WITH THE APPLICATION FIL ED ON 31.05.2007 THAT IT HAD FILED APPLICATION EARLIER ALSO FOR GRANT OF REGISTRATION AND THE REGISTRATION SHOULD BE GRANTED FROM THE DATE OF EAR LIER APPLICATION. HOWEVER, THE D.I.T. (EXEMPTION), AHMEDABAD NOT ALLO WED THE ABOVE CLAIM OF THE ASSESSEE ON THE GROUND THAT MERELY FIL ING OF APPLICATION IS NOT SUFFICIENT AND THE ASSESSEE OUGHT TO HAVE OBTAINED THE REGISTRATION. IN VIEW OF THIS, THE D.I.T. (EXEMPTION), AHMEDABAD GRA NTED REGISTRATION W.E.F. 1.04.2007. IN OUR CONSIDERED OPINION, THE RE GISTRATION GRANTED BY D.I.T. (EXEMPTION), AHMEDABAD CANNOT BE SUSTAINED I F THE ASSESSEE HAD MADE AN APPLICATION EARLIER AND , THEREAFTER, FOR N O FAULT OF THE ASSESSEE IF ITA NO .986/AHD/2008 M/S. DAWOODI BOHRA JAMAT - 4 - THE REGISTRATION WAS NOT GRANTED TO THE ASSESSEE AN D THE REJECTION ORDER WAS ALSO NOT SERVED UPON THE ASSESSEE, THEN NO FAUL T CAN BE FOUND WITH THE ACTION OF THE ASSESSEE AND THE DELAY, IF ANY, F OR THIS REASON OUGHT TO HAVE BEEN CONDONED. 6. BEFORE US, THE ASSESSEE HAS FILED AN APPLICATION ADDRESSED TO CIT TRUST, REGISTRATION CIRCLE-III, AHMEDABAD, SEEKING REGISTRATION UNDER SECTION 12A. THIS APPLICATION IS DATED 6.06.1993 BU T THE ASSESSEE COULD NOT FILED ANY EVIDENCE BEFORE US TO SHOW WHETHER TH IS APPLICATION WAS, IN FACT, FILED WITH THE DEPARTMENT AND THE DATED OF AC TUAL FILING. 7. THE FATE OF THE SAID APPLICATION WAS NOT BROUGHT BEFORE US BY EITHER OF THE PARTIES. FROM THE ABOVE PAPER PLACED IN THE PAPER BOOK, IT SEEMS THAT THE ASSESSEE HAS FILED AN APPLICATION FOR GRAN T OF REGISTRATION UNDER SECTION 12A OF THE ACT ON 06.06.1993 AND WHICH WAS NOT REJECTED BY THE DEPARTMENT OR REJECTION WAS EVER COMMUNICATED TO TH E ASSESSEE. IN OUR OPINION, CONSIDERING IF THE APPLICATION OF THE ASSE SSEE IS NOT REJECTED, AND REJECTION LETTER IS NOT COMMUNICATED TO THE ASSESSE E, THEN AT THE LATER DATE, THE DEPARTMENT CANNOT ALLEGE THAT THERE WAS D ELAY IN FILING OF APPLICATION SEEKING REGISTRATION AT BEST FOR THE PE RIOD AFTER THE DATE OF FILING OF THE APPLICATION. HOWEVER, AS THE FULL FAC TS ARE NOT AVAILABLE, IN OUR CONSIDERED OPINION, IT SHALL BE JUST AND FAIR TO SE T ASIDE THE ISSUE TO THE D.I.T. (EXEMPTION), AHMEDABAD WHO IS DIRECTED TO VE RIFY THE RECORD AND GRANT THE REGISTRATION IN THE LIGHT OF THE DISCUSSI ON MADE HEREINABOVE, AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO ASSESSEE. ITA NO .986/AHD/2008 M/S. DAWOODI BOHRA JAMAT - 5 - 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT AT THE CONCLUSION OF THE HEARING IN THE PRESENCE OF THE PARTIES ON 18/09/2009. SD/- SD/- ( H.L. KARWA ) ( N.S. SAINI ) JUDICIAL MEMBER ACCO UNTANT MEMBER AHMEDABAD; DATED 18/09/ 2009 PARAS# COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)- 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD