HOLI MOTHER EDUCATIONAL &, BHARATPUR V. CIT, Alwar

ITA 997/JPR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62022 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 14-11-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA
• Keywords: Charitable institution; Opportunity of being heard
• Section: 80G; 12A; 12AA; 12; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH : B JAIPUR. BEFORE SHRI R.K. GUPTA AND SHRI SANJAY ARORA ITA NO.997/JP/2011 U/S 12AA OF THE ACT PAN :AAATH 8654 H HOLY MOTHER EDUCATIONAL & CHARITABLE SOCIETY VS. T HE CIT JAWHAR NAGAR AYAKAR BHAWAN BHARATPUR MOTI DUNGRI, ALWAR (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA AGARWAL RESPONDENT BY : SHRI SUBHASH CHANDRA DATE OF HEARING : 26.04.2012 DATE OF PRONOUNCEMENT : 25.05.2012 ORDER DATE OF ORDER :25/05/2012. PER R.K. GUPTA, JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDE R OF THE LD. CIT DATED 15-09-2011 RELATING TO SECTION 12AA OF THE INCOME TAX ACT, 196 1. 2.1 THE ASSESSEE IS AGITATING IN REJECTING THE APPL ICATION FOR REGISTRATION U/S 12AA OF THE ACT FILED ON 21-03-2011. 2.2 THE FACTS IN THIS CASE ARE SIMILAR TO THE FACTS INVOLVED IN THE CASE OF BABA SUGRIV SHIKSHAN SAMITI WHICH WE HAVE ALREADY DISPOSED OFF VIDE OUR ORDER OF EVEN DATE. IN THAT CASE, THE FINDINGS OF THE TRIBUNAL IN THE CASE OF S HRI BAJRANG COLLEGE OF PHARMACY SHIKSHA SAMITI, BHARATPUR HAS BEEN FOLLOWED WHICH ARE AS UN DER:- 2 2.6 WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUSED THE MATERIALS ON RECORD ON WHICH OUR ATTENTION WAS DRAW N. AFTER CONSIDERING ALL THE RELEVANT MATERIALS PLACED ON RECORD, WE FIN D THAT SUBSTANTIAL REQUIREMENT FOR SEEKING REGISTRATION U/S 12AA HAS B EEN SATISFIED IN THE PRESENT CASE. IT IS SEEN THAT ALONGWITH REGISTRATIO N APPLICATION U/S 12AA OF THE ACT, THE ASSESSEE HAS ALSO FILED THE COPY OF CO NSTITUTION AND BYE-LAWS OF THE INSTITUTION AND CERTIFICATE OF REGISTRATION BY THE OFFICE OF REGISTRAR OF GOVT. OF RAJASTHAN. THE COPY OF THE BALANCE SHEE T ETC. WERE ALSO FILED ALONGWITH APPLICATION IN FORM NO. 10A AS REQUIRED. IT IS FURTHER SEEN THAT THE AO HAS SENT HIS REPORT TO THE LD. CIT VIDE REPO RT DATED 07-04-2011, THE COPY OF THE SAME IS PLACED AT PAGES 18 AND 19 OF TH E ASSESSEE'S PAPER BOOK. IN THE LAST COLUMN OF THE FORMAT, THE REPORT SENT B Y THE AO IS MENTIONED WHICH IS REPRODUCED AS UNDER:- THE TRUST IS REGISTERED BY REGISTRAR OF SOCIETY, BHARATPUR VIDE NO. 82/BHARATPUR/94-95 DATED 28-03-1995. THE TRUST IS IN EXISTENCE ON THE GIVEN POSTAL ADDRESS OF THE TRUST AND WORKING AS PE R CONSTITUTION AND BY LAWS OF THE TRUST. THE WORKS OF THE TRUST COVERED I N THE DEFINITION OF CHARITABLE PURPOSES AS PER AMENDED PROVISIONS OF S ECTION 2(15) OF THE I.T. ACT, 1961 APPLICABLE FROM 01-04-2009 INSERTED BY TH E FINANCE ACT, 2008. THERE IS NO CHANGE IN THE BY LAWS OF THE TRUST. IT IS A FIT CASE FOR REGISTRATION U/S 12AA AND EXEMPTION U/S 80G OF THE I.T. ACT, 1961. THEREFORE, THE SAME IS RECOMMENDED TO THE REGISTRAT ION U/S 12AA AND EXEMPTION U/S 80G OF THE ACT, 1961. IT IS FURTHER SEEN THAT THIS REPORT WAS SENT BY THE AO TO THE OFFICE OF JCIT. THE SEAL OF THE JCIT IS APPENDED ON THIS REPORT. TH EREAFTER, THE JCIT SENT HIS REPORT TO THE OFFICE OF THE LD. CIT VIDE LETTER NO. 115 DATED 30-05-2011 BY WHICH IT HAS BEEN STATED THAT AFTER TAKING INTO CONSIDERATION ALL THE ASPECTS AND REPORT OF THE AO, IT IS RECOMMENDED THA T REGISTRATION U/S 12AA AND EXEMPTION U/S 80G CAN BE GRANTED. THE COPY OF THIS LETTER SENT BY THE JCIT TO THE LD. CITS OFFICE IS PLACED AT 20 OF THE ASSESSEE'S PAPER BOOK. AFTER TAKING INTO CONSIDERATION, IT IS AMPLY PROVED THAT THE ASSESSEE 3 HAS FILED ALL THE REQUIRED DETAILS FOR THE PURPOSE OF SEEKING REGISTRATION U/S 12AA AND EXEMPTION U/S 80G OF THE ACT. THE AO HAS A LSO EXAMINED THE OBJECTS AND IT WAS FOUND THAT THE WORKS OF TRUST CO VERED IN THE DEFINITION OF CHARITABLE PURPOSES AS PER AMENDED PROVISION OF SECTION 2(15) AND THE TRUST IS IN EXISTENCE ON THE GIVEN POSTAL ADDRESS O F THE TRUST AND WORKING AS PER CONSTITUTION AND BY LAWS OF THE TRUST. THIS SHO WS THAT THE AO HAS MADE SPOT ENQUIRY AND THEN ONLY SENT HIS REPORT. WE NOWH ERE FOUND ANY REFERENCE IN RESPECT OF THE REPORT SENT BY THE AO IN THE ORDER OF THE LD. CIT. THE COUNSEL OF THE ASSESSEE TRUST HAS CATEGORI CALLY STATED THAT ALL REQUIRED DETAILS WERE FILED BEFORE THE AO WHO HAS S ENT HIS REPORT AND THEREFORE, THE SAME SHOULD BE TAKEN INTO CONSIDERAT ION. THE COPY OF THIS LETTER IS PLACED AT PAGE 25 OF THE ASSESSEE'S PAPER BOOK. THEREFORE, IT CANNOT BE SAID THAT THE TRUST HAS NOT COMPLIED WITH THE NOTICES ISSUED BY THE LD. CIT. OF COURSE, THEY HAVE NOT FILED SEPARAT E DETAILS BEFORE THE LD. CIT BY APPEARING IN PERSON BUT THEY HAVE INFORMED T HE OFFICE OF THE LD. CIT THAT ALL THE REQUIRED DETAILS ARE ALREADY IN TH E RECORD OF THE DEPARTMENT. IN OUR CONSIDERED VIEW, THE LD. CIT WHO WAS EXERCISING HIS POWER UNDER THAT SHOULD HAVE TAKEN THE DECISION JUD ICIOUSLY AFTER TAKING INTO CONSIDERATION THE REPORT OF THE AO AND THEN HE SHOULD HAVE PASSED THE ORDER. WE HAVE SEEN THAT MOST OF THE DETAILS REQUIR ED BY THE OFFICE OF THE LD. CIT HAVE ALREADY BEEN FILED AND AFTER GOING THR OUGH THESE DETAILS, IT IS SEEN THAT REQUIREMENT OF SECTION 12AA HAS BEEN SATI SFIED. MERELY ON TECHNICALITIES, THE REJECTION OF THE APPLICATION U/ S 12AA, IN OUR VIEW, IS NOT JUSTIFIED. THE LD. CIT HAS STATED THAT LIST OF THE DONATIONS IS NOT FILED AND OTHER DETAILS OF THE EXPENSES ARE NOT FILED. IN OUR VIEW, THESE DETAILS DO NOT REQUIRE FOR CONSIDERATION OF REGISTRATION U/S 12AA OF THE ACT. THESE DETAILS ARE REQUIRED FOR THE PURPOSE OF EXEMPTION U/S 11 OF THE ACT AND IF ANY VIOLATION OF SECTION 13(1)(D) ARE FOUND THEN EXEMPT ION U/S 11 CAN BE REFUSED BUT THEY ARE NOT LINKED WITH THE REGISTRATI ON U/S 12AA OF THE ACT. THE HARMONIOUS VIEW SHOULD BE CONSTRUED BY THE LD. CIT AS THE TRUST IS IN THE INTEREST OF PUBLIC AT LARGE AND IT IS IMPARTIN G EDUCATION AND SUCH ACTIVITIES ARE ELIGIBLE FOR GRANTING REGISTRATION U /S 12AA OF THE ACT 4 (I) REGARDING THE DECISION RELIED UPON BY THE LD. C IT IN THE CASE OF SELF EMPLOYERS SERVICE SOCIETY VS. CIT (SUPRA), WE NOTED THAT IN THAT CASE IT WAS FOUND BY THE HON'BLE KERALA HIGH COURT THAT FUNDS WERE RAISED FOR THE BENEFIT OF ITS MEMBERS ONLY AND THEREFORE, IT W AS HELD THAT TRUST IS NOT DOING ANY CHARITABLE ACTIVITIES. HOWEVER, IN THE PR ESENT CASE, UNDISPUTEDLY, THE INSTITUTION IS IMPARTING EDUCATION (II) ON SIMILAR FACTS IN THE CASE OF TAGORE CHILDRE N ACADEMY SOCIETY, SURAJGARH VS. CIT (ITA NO.103/JP/2009) XLII TW 6 ( 2009), THE JAIPUR BENCH HAS HELD THAT IMPARTING OF EDUCATION IS OF CH ARITABLE NATURE FOR THE PURPOSE OF SECTION 12A OF THE ACT. IT IS FURTHER H ELD THAT PROVISION OF SECTION 13 OF THE I.T. ACT ARE NOT MEANT FOR ALLOWI NG REGISTRATION U/S 12A BUT MEANT FOR COMPUTING THE INCOME OF THE SOCIETY (III) IN CASE OF FIFTH GENERATION EDUCATION SOCIETY VS. CIT (1990) 185 ITR 634 , THE HON'BLE ALLAHABAD HIGH COURT HELD TH AT AT THE STAGE OF GRANTING REGISTRATION TO A TRUST OR INSTITUTION, TH E COMMISSIONER IS NOT REQUIRED TO EXAMINE THE ISSUE OF THE APPLICATION OF THE TRUST INCOME, HE IS MERELY REQUIRED TO SEE WHETHER THE PROPER PROCEDURE IS FOLLOWED AND WHETHER THE OBJECTS ARE CHARITABLE OR NOT. (IV) SIMILAR VIEW HAS BEEN EXPRESSED IN THE CASE OF SAINT KABIR EDUCATION TRUST VS. CIT , 128 DTR 267 (ASR.) (V) IN CASE OF AGARWAL MITRA MANDAL TRUST VS. DIT ( EXEMPTION) 109 TTJ 128, THE ITAT DELHI BENCH HELD THAT THE PROVISI ONS OF SECTION 13 CAN BE APPLIED OR INVOKED BY THE AO ONLY AT THE TIME OF COMPUTATION OF TOTAL INCOME OF THE PREVIOUS YEAR OF THE PERSON WHO IS CL AIMING EXEMPTION U/S 11 OR SECTION 12 AND IT FALLS WITHIN THE EXCLUSIVE DOMAIN OF THE AO AND NOT BY THE CIT WHILE CONSIDERING THE APPLICATION FO R REGISTRATION U/S 12AA OF THE ACT 2.3 IN THIS CASE ALSO FACTS ARE SIMILAR AS DISCUSSE D IN CASE OF SHRI BAJRANG COLLEGE OF PHARMACY SHIKSHA SAMITI (IN ITA NO. 995 & 996/JP/20 11 DATED 25.05-2012) AND WE 5 HAVE SENT THE MATTER TO THE FILE OF LD. CIT FOR CO NSIDERING THE SAME AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. ON THE SAME REASONING, WE SET ASIDE THE ISSUE TO THE FILE OF LD. CIT. 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 25-0 5-2012. SD/- SD/- ( SANJAY ARORA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, *MISHRA COPY FORWARDED TO :- HOLY MOTHER EDUCATIONAL & CHARITABLE SOCIETY , BHAR ATPUR THE CIT , ALWAR THE CIT THE D/R GUARD FILE (ITA NO.997/JP/2011) BY ORDER, AR ITAT JAIPUR.