VASUPUJYA MAHARAJ DEHRASAR TRUST SARKHEJ V. COMMISSIONER OF INCOME TAX (EXEMPTIONS), AHMEDABAD

SCA/14830/2021

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The Vasupujya Maharaj Dehrasar Trust approached the Gujarat High Court seeking a directive for the Commissioner of Income Tax (Exemptions) to provide a copy of their registration certificate under section 12A of the Income Tax Act, 1961. The trust, registered under the Bombay Public Trust Act, 1950, had previously applied for registration under section 12AA in 1973 and faced issues in obtaining exemptions for certain assessment years due to non-production of the physical copy of the registration certificate. Despite multiple applications and an RTI request, the certificate was not provided, leading to the filing of this writ petition. The court referenced similar cases and emphasized the need for the trust to exhaust the appellate process under the RTI Act before seeking judicial intervention.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 680361 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 04-10-2021
• Assessment Year: misc
• Other Referred Cases: Principal Commissioner of Income Tax (Exemption) versus Dawoodi Bohra Masjid, Morbi Plot Jain Tapgachh Sangh versus Commissioner of Income-tax
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Assessee Lawyers: B S SOPARKAR
• Keywords: Certiorari; Certiorari; Income tax exemption; Mandamus; Registration certificate; Right to Information Act
• Section: 11; 12AA; 12A

Judgement Text

"C/SCA/14830/2021 ORDER DATED: 04/10/2021 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 14830 of 2021 ========================================================== VASUPUJYA MAHARAJ DEHRASAR TRUST SARKHEJ Versus COMMISSIONER OF INCOME TAX (EXEMPTIONS), AHMEDABAD ========================================================== Appearance: MR B S SOPARKAR(6851) for the Petitioner(s) No. 1 for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Date : 04/10/2021 ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1. The petitioner is before this Court under Article 226 of the Constitution of India seeking to direct the respondent to provide copy of registration certificate u/s. 12A of the Income Tax Act, 1961 (hereinafter shall be referred to as “the Act” for short) granted to the petitioner from the record of the respondents which has not been provided by the respondent despite the request of the same. 2. Facts giving rise to the present petition are as follows: 2.1. The petitioner is a trust registered under the Bombay Public Trust Act, 1950 on 22.10.1952. The petitioner being desirous of getting registered u/s. 12AA of the Act made an application in the year 1973. For the past several years, the petitioner filed return of income where registration number u/s. 12AA of the Act has been mentioned and it has continued to enjoy exemption u/s. 11 of the Act as Page 1 of 8 C/SCA/14830/2021 ORDER DATED: 04/10/2021 provided by the revenue under the statutory provision. 2.2. The petitioner since has been denied having exemption u/s. 11 of the Act for the A.Ys. 2013-14 and 2018-19, on account of non-production of the physical copy of the registration certificate from the petitioner, despite the petitioner having already provided its registration No.HQ-IV- 9/V-54/AR-III-74, in this petition. 2.3. The petitioner also preferred appeals against the same before the CIT (Appeals) and the same are pending. 2.4. The petitioner thereafter made an application under Right to Information Act seeking certified duplicate copy of certificate of registration u/s. 12A(a) of the said Act. 2.5. The reply received under the RTI Act on 31.07.2020 states that the same was not traceable at the end of the revenue department. This according to the petitioner was shocking. The petitioner made an application dated 28.09.2020 before the very officer to obtain duplicate certified copy of the certificate of registration. However, no reply has been received and almost a year passed. 2.6. The petitioner searched for the old certificate to mitigate future liability and also decided to make a fresh application for registration u/s. 12AA of the said Act on 06.12.2017. However, the same was rejected vide order dated 15.06.2018. The petitioner made one more application on 28.03.2020 and provided all the required documents and the petitioner has been granted registration vide order dated Page 2 of 8 C/SCA/14830/2021 ORDER DATED: 04/10/2021 28.08.2020. 2.7. Being aggrieved by the reply given under the RTI Act dated 131.07.2020 and thereafter non-response to the application made on 28.09.2020 for obtaining duplicate certified copy of the certificate u/s. 12AA of the said Act, this petition is preferred with the following main prayers : “6. The petitioner, therefore, prays that this Hon’ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamous or a writ of certiorari or a writ in the nature of mandamus, certification or any other appropriate writ, direction or order and be pleased to : (a) Call for the records of the proceedings and direct the respondent to look into them and furnish the copy of the registration application acceptance from the records of the respondent to the petitioner. (b) Direct the respondent to grant the registration under section 12A/12AA to the petitioner since the year 1975 or at lease from FY 2012-13.” 3. We have heard extensively learned advocate Mr.B.S. Soparkar for the petitioner , who has emphasized the need for the authority concerned to maintain the records. He has relied on the following two decisions : (i) Principal Commissioner of Income Tax (Exemption) Page 3 of 8 C/SCA/14830/2021 ORDER DATED: 04/10/2021 versus Dawoodi Bohra Masjid, reported in [2018] 402 ITR 29 (Gujarat) and (ii) Morbi Plot Jain Tapgachh Sangh versus Commissioner of Income-tax reported in [2021] 433 ITR 1 (Gujarat). 4. According to him, this Court has entertained the writ application under Article 226 of the Constitution of India in the case of Morbi Plot Jain Tapgachh Sangh (supra), where identical controversy was involved. The writ applicant there was a charitable trust registered with Charitable Commissioner, Rajkot and due to the devastating flood, entire records including books of accounts, registration certificate and other documents related to trust had got distroyed. In such circumstances, when the aforesaid writ application preferred, this Court after hearing both the sides, directed issuance of a fresh certificate and granted benefit of exemption and the Court further held that contemporaneous record available with trust should be looked into minutely by the department so as to satisfy itself that the trust had been issued registration certificate u/s.12A of the Act and had been availing benefit of exemption over a period of time under section 11. It also directed that the trust could not have been denied benefit of exemption under section 11 of the Act only on account of its disability to produce necessary records on account of flood in the year 1979 and directed the appropriate authority to look into the matter. 5. In the case of Dawoodi Bohra Masjid (supra), for want of registered trust deed, the Principal Commissioner of Page 4 of 8 C/SCA/14830/2021 ORDER DATED: 04/10/2021 Income-tax at one stage rejected the application and once again the Commissioner rejected the application on the ground that the respondent instead of submitting copy of the trust deed, had merely submitted a copy of the order passed by the Gujarat State Wakf Board, which cannot be substituted for a trust deed and the matter reached the tribunal. The tribunal allowed the appeal of the assessee by holding that looking to the nature of the trust, no separate deed is required looking to the nature of the trust and as per the registration certificate of Gujarat State Wakf Board which certify the object of the trust, appointment of managers etc. 5.1. The said decision of the Tribunal was challenged before this Court and this Court did not entertain the appeal of the revenue on the basis of the material on record where the Tribunal had considered registration details of the trust contained in the order of Wakf Board and was satisfied that full details of the functions of the trust were available which would establish the existence of the trust, its registration by the Gujarat State Wakf Board which also contained details of objects of the trust, manner of appointment of Mutawalli etc. 6. Adverting to the facts in the instant case, we could notice that the petitioner trust is registered with the Deputy Charity Commissioner on 22.10.1952. The petitioner had made a request under RTI Act on 27.07.2020 for duplicate certified copy of the certificate of registration of the petitioner trust bearing Registration No.HQ-IV-9/V- 54/AR-III-74, under section 12AA of the Act, certified copy Page 5 of 8 C/SCA/14830/2021 ORDER DATED: 04/10/2021 of the extract from the register of application under section 12AA maintained by the Commissioner of Income-tax and requested for the information sought for. The petitioner also sought information stating that if the extract, as stated above, is not available, whether permanent register of application under section 12A(a) maintained by the Commissioner of Income-tax, Gujarat-IV, Ahmedabad in the year 1974 has been ultimately transferred to the said office and presently available in its office or not. The petitioner also mentioned the object of getting details, as the trust could not get exemption which resulted into damage of crores of rupees. 6.1. We could notice from the reply which has been given by the Information Officer, Assistant Commissioner of Income Tax (Exemption) & Central Public Information Officer, Ahmedabad, in response to the said information under the RTI Act dated 27.07.2020 that it has been replied that there is no evidence found showing transfer of records of the applicant from the respective CIT to the office of the Assistant Commissioner of Income Tax (Exemption) & Central Public Information Officer, Ahmedabad. 7. It appears that the petitioner also addressed a letter to the Commissioner of Income Tax on 28.09.2020 requesting for issuance of fresh registration certificate effective from 11.02.1975 under the circumstances narrated in the said letter. In the said letter, the petitioner also reproduced the relevant extract from the order under section 7(1) of the RTI Act. Page 6 of 8 C/SCA/14830/2021 ORDER DATED: 04/10/2021 8. The record of certificate of registration under section 12A of the Act and the same is permanent record, the respondent department should have maintained and in absence thereof, it cannot be concluded that the trust is not registered. 9. We notice that instead of moving such an application to the Central Commissioner of Income Tax (Exemption) – appellate authority under the RTI Act, the petitioner has moved the application with a request for issuance of fresh certificate from the authority – Commissioner of Income Tax, Vejalpur Ahmedabad, without questioning the order in his capacity as an appellate authority, we are, therefore, of the view that the record which is to be maintained of the unit by the concerned authority is required to respond positively and the same when is not only the requirement but an obligation to maintain it. The application made by the petitioner be treated as an application under the RTI Act and be considered within the time period specified under the very statute. Let the appellate authority under the RTI Act respond to the petitioner without fail. Any grievance if still persisting, the petitioner shall have legal recourse open. 10. This Court has chosen not to take recourse to the writ jurisdiction by way of self-restrictions. 11. We notice that in the case of Dawoodi Bohra Masjid (supra), it was the revenue which had challenged the order of the ITAT when twice after the remand, the Commissioner had chosen not to accept the copy of the Trust Deed and Page 7 of 8 C/SCA/14830/2021 ORDER DATED: 04/10/2021 went on insisting for the original deed to be furnished. 12. So far as the Morbi Plot Jain Tapgachh Sangh (supra) is concerned, as could be noticed from the details provided that the petitioner there had lost the documents in the devastating flood in the year 1979 wherein the record of the trust and the entire record had been destroyed and those very special circumstances had led the Court to directly entertain such petition which do not exist here. 13. So far as the petitioner is concerned, it has already taken a channel of making application under the RTI Act and without taking recourse of appellate authority under the RTI Act, it has approached this Court and hence, the application which is sought to be pressed before this Court, is not entertained. 14. This petition is disposed of accordingly. However, disposal of this petition, in any manner, shall not prejudice the right of the petitioner. (SONIA GOKANI, J) (RAJENDRA M. SAREEN,J) R.H. PARMAR Page 8 of 8 "