Appeal details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 0544 (ITAT-AGRA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
6 year(s) 10 month(s) 20 day(s)
Appellant
Respondent
Appeal Type
Cross Objection
Pronouncement Date
16-05-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Next Hearing Date
14-12-2012
Assessment Year
misc
Appeal Filed On
26-06-2012
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.287/AGR/2012 LORD KRISHNA EDUCATION FOUNDATION VS. COMMISSIONER OF INCOME TAX-1, SOCIETY, AGRA. KHASRA NO.46/3 KH, BAMROLI KATRA, SAMUGARH ROAD, AGRA. (PAN: AAATL 8966 C) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUBHASH AGARWAL, ADVOC ATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 14.12.2012 DATE OF PRONOUNCEMENT OF ORDER : 04.01.2013 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 30.05.2012 PASSED BY THE LD. CIT(A)-I, AGRA UNDER SECTION 80G( 5) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER). 2. THE EFFECTIVE GROUND RAISED IN THE APPEAL FILED BY THE ASSESSEE IS IN RESPECT OF REJECTION OF APPLICATION FOR GRANT OF APPROVAL U NDER SECTION 80G OF THE ACT. ITA NO.287/AGR/2012 2 3. THE ASSESSEE HAS ALSO RAISED AN ADDITIONAL GROUN D THAT THE I.T.A.T. PASSED THE ORDER WITHOUT CONDUCTING ANY ENQUIRY. AFTER HE ARING THE LD. REPRESENTATIVES OF THE PARTIES, WE FIND THAT THE ADDITIONAL GROUND IS SUPPORTING GROUND OF MAIN ISSUE THEREFORE THE ADDITIONAL GROUND RAISED IS ADMITTED IN THE INTEREST OF JUSTICE. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E SOCIETY MOVED APPLICATION DATED 30.11.2011 IN FORM NO.10G FOR GRANT OF APPROV AL UNDER SECTION 80G OF THE ACT. THE CIT REJECTED THE ASSESSEES APPLICATION O N THE GROUND THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE ITS CLAIM. 5. THE LD. AUTHORISED REPRESENTATIVE POINTED OUT TH AT THE ISSUE IS SQUARELY COVERED BY THE ORDERS OF I.T.A.T., AGRA BENCH IN TH E CASE OF SWETA KALYAN SAMIITI VS., CIT, ITA NO.433/AGR/2010, ORDER DATED 08.06.20 12 AND SMT. BIMLA DEVI GOPAL PRASAD PRESS WALE CHARITABLE TRUST IN ITA NOS .288 & 289/AGR/2012, ORDER DATED 23.11.2012. 6. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ENTIRE PROCEEDINGS WERE CONDUCTED BY THE I.T.O. (TECHNICAL). THE COMM ISSIONER DID NOT CONDUCT ANY ENQUIRY OR PROCEEDING. LD. AUTHORISED REPRESENTATI VE IN SUPPORT OF HIS CONTENTION FURNISHED THE PHOTOCOPIES OF ORDER SHEETS. HE FURT HER SUBMITTED THAT EVEN THE DRAFT ORDER HAS BEEN PUT UP BY THE I.T.O. (TECHNICAL). ITA NO.287/AGR/2012 3 7. AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIV E, WE FIND THAT THE FACTS OF THE CASE UNDER CONSIDERATION ARE IDENTICAL TO THE F ACTS OF THE CASE IN SMT. BIMLA DEVI GOPAL PRASAD PRESS WALE CHARITABLE TRUST, ITA NOS.288 & 289/AGR/2012, ORDER DATED 23.11.2012 WHEREIN THE I.T.A.T., AGRA B ENCH HAS HELD AS UNDER :- 4. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. THE ADMITTED FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED NECESSARY APPLICATIONS FOR GRANT OF REGISTRATION UNDER SECTIO N 12AA OF THE ACT AND FOR APPROVAL UNDER SECTION 80G(5) OF THE ACT ON 26.12.2 012. THE CIT PASSED THE ORDERS DATED 21.06.2012. WHETHER UNDER THE FACT S AND CIRCUMSTANCES OF THE CASE THE ORDERS PASSED BY THE CIT IS IN ACCORDA NCE WITH LAW. TO EXAMINE THIS ISSUE WE WOULD LIKE TO REFER THE RELEVANT SECT ION 12AA OF THE ACT WHICH IS REPRODUCED AS UNDER:- 12AA. (1) THE COMMISSIONER, ON RECEIPT OF AN APPLICATION FOR REGISTRATION OF A TRUST OR INSTITUTION MADE UNDER C LAUSE (A) [OR CLAUSE (AA) OF SUB-SECTION (1)] OF SECTION 12A, SHA LL (A) CALL FOR SUCH DOCUMENTS OR INFORMATION FROM THE TRUST OR INSTITUTION AS HE THINKS NECESSARY IN ORDER TO SATI SFY HIMSELF ABOUT THE GENUINENESS OF ACTIVITIES OF THE TRUST OR INSTITUTION AND MAY ALSO MAKE SUCH INQUIRIES AS HE MAY DEEM NECESSA RY IN THIS BEHALF; AND (B) AFTER SATISFYING HIMSELF ABOUT THE OBJECTS OF T HE TRUST OR INSTITUTION AND THE GENUINENESS OF ITS ACTIVITIES, HE (I) SHALL PASS AN ORDER IN WRITING REGISTERING THE TRUST OR INSTITUTION; (II) SHALL, IF HE IS NOT SO SATISFIED, PASS AN ORDE R IN WRITING REFUSING TO REGISTER THE TRUST OR INSTITUTION, AND A COPY OF SUCH ORDER SHALL BE SENT TO THE APPLI CANT : PROVIDED THAT NO ORDER UNDER SUB-CLAUSE (II) SHALL BE PASSE D UNLESS THE APPLICANT HAS BEEN GIVEN A REASONABLE OP PORTUNITY OF BEING HEARD. ITA NO.287/AGR/2012 4 [(1A) ALL APPLICATIONS, PENDING BEFORE THE CHIEF CO MMISSIONER ON WHICH NO ORDER HAS BEEN PASSED UNDER CLAUSE (B) OF SUB- SECTION (1) BEFORE THE 1ST DAY OF JUNE, 1999, SHALL STAND TRANSFERRED ON THAT DAY TO THE COMMISSIONER AND THE COMMISSIONER MAY PROCEED WITH SUCH APPLICATIONS UND ER THAT SUB-SECTION FROM THE STAGE AT WHICH THEY WERE ON TH AT DAY.] (2) EVERY ORDER GRANTING OR REFUSING REGISTRATION U NDER CLAUSE (B) OF SUB-SECTION (1) SHALL BE PASSED BEFORE THE E XPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE APPLI CATION WAS RECEIVED UNDER CLAUSE (A) [OR CLAUSE (AA) OF SUB-SE CTION (1)] OF SECTION 12A.] [(3) WHERE A TRUST OR AN INSTITUTION HAS BEEN GRANT ED REGISTRATION UNDER CLAUSE (B) OF SUB-SECTION (1) [O R HAS OBTAINED REGISTRATION AT ANY TIME UNDER SECTION 12A [AS IT S TOOD BEFORE ITS AMENDMENT BY THE FINANCE (NO. 2) ACT, 1996 (33 OF 1 996)]] AND SUBSEQUENTLY THE COMMISSIONER IS SATISFIED THAT THE ACTIVITIES OF SUCH TRUST OR INSTITUTION ARE NOT GENUINE OR ARE NO T BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECTS OF THE T RUST OR INSTITUTION, AS THE CASE MAY BE, HE SHALL PASS AN O RDER IN WRITING CANCELLING THE REGISTRATION OF SUCH TRUST OR INSTIT UTION: PROVIDED THAT NO ORDER UNDER THIS SUB-SECTION SHALL BE PASSE D UNLESS SUCH TRUST OR INSTITUTION HAS BEEN GIVEN A R EASONABLE OPPORTUNITY OF BEING HEARD.] 5 FOR PROPER APPRECIATING THE ISSUE WE WOULD A LSO LIKE TO REFER SOME ADMITTED FACTS NOTICED FROM THE RECORD WHICH ARE AS UNDER:- 5.1 FROM THE ORDER SHEET DATED 19.06.2012 IT APPEAR S THAT THE IMPUGNED ORDER HAS BEEN PUT UP BY I.T.O. H.Q. BEFORE THE CIT . THE RELEVANT ABSTRACT OF THE ORDER SHEET IS REPRODUCED AS BELOW: - (PAGE NO.35 OF PAPER BOOK) 16.09.2012 SIR, AS DIRECTED, DFA OF ORDERS U/S 12AA & 80G IS PUT UP FOR APPROVAL PL. SD/- ITO(T) CIT-1 ITA NO.287/AGR/2012 5 ON PERUSAL OF DETAILS FILED ON RECORD AND WRITTEN SUBMISSIONS MADE SUBSEQUENTLY IT IS SEEN THAT NO CH ARITABLE ACTIVITIES AS SUCH HAVE BEEN CARRIED OUT BY A, FR OM WHICH SATISFACTION REGARDING ITS OBJECTS AND GENUINENESS OF ACTIVITIES CAN BE FOUND. THUS, THIS APPLICATION HAS BEEN REJE CTED. ORDER U/S. 12AA PASSED ACCORDINGLY. SD/- 21.6.12 5.2 THE RELEVANT QUESTION AND REPLY GIVE BY TH E REVENUE UNDER THE RTI ACT TO THE ASSESSEE FROM PAGE NOS.31 & 32 OF THE ASSESS EES PAPER BOOK ARE REPRODUCED AS UNDER :- (IV) WHETHER LEARNED COMMISSIONER OF INCOME TAX-1, AGRA WERE PRESENT IN PERSON IN HIS OFFICE AT AYAKAR BHAW AN, SANJAY PLACE, AGRA ON ANY OF DATE OF WHICH THE CASE IS SHO WN TO BE HEARD AS PER ORDER SHEET ENTRIES OR OTHERWISE ANY P ERSONAL HEARING WAS GRANTED BY HIM IN THE MATTER. (IV) AS REGARDS THE QUERY AS TO WHETHER THE CIT-1, AGRA WAS PRESENT IN PERSON IN HIS OFFICE ON THE DATE OF HEAR ING, IT IS TO BE MENTIONED THAT THE CHARGE OF THE CIT-1, AGRA DURING THE PERIOD WAS BEING HELD AS ADDITIONAL CHARGE BY SHRI B.P.S. BISHT IN ADDITION TO HIS REGULAR CHARGE OF THE CIT-1, KANPUR . FROM THE ORDER SHEET OF THE FILE IT IS NOT CLEAR AS TO WHETH ER THE FILE WAS PUT UP TO HIM AT AGRA OR WAS TAKEN TO KANPUR FOR HI S APPROVAL 5.3 THE ASSESSEE HAS FURNISHED A COPY OF TRUST DEED . ACCORDING TO THAT, THE OBJECTS OF THE TRUST ARE AS UNDER:- (PAGE NO.6 OF PAPER BOOK) 4. OBJECTS A. EDUCATIONAL TO RUN, MAINTAIN OR ASSIST ANY EDU CATIONAL OR VOCATIONAL TRAINING OR TO GRANT INDIVIDUAL SCHOL ARSHIPS FOR POOR, DESERVING AND NEEDY STUDENTS FOR ELEMENTARY A ND HIGHER EDUCATION. B. MEDICAL TO RUN, MAINTAIN OR ASSIST ANY MEDICAL INSTITUTION, NURSING HOME OR CLINICS OR TO GRANT AS SISTANCE TO ITA NO.287/AGR/2012 6 NEEDY AND INDIGENT PERSONS FOR MEETING THE COST OF MEDICAL TREATMENT. C. RELIEF OF THE POOR TO GIVE FINANCIAL OR OTHER ASSISTANCE IN KIND BY WAY OF DISTRIBUTION OF BOOKS, NOTEBOOKS, CLOTHS, UNIFORMS, OR MEALS ETC. FOR THE POOR, WIDOWS, DISAB LED, INDIGENT AND TO THE PERSONS SUFFERING FROM PHYSICAL CHALLENG ES AND NATURAL CALAMITIES. D. ENVIRONMENTAL PRESERVATION TO PROMOTE PRESERVA TION OF NATURAL RESOURCES, PRESERVATION OF MONUMENTS OF HIS TORICAL IMPORTANCE, PRESERVATION OF ENVIRONMENT AND PROMOTE ALTERNATE SOURCES OF ENERGY. E. OTHER OBJECTS OF GENERAL PUBLIC UTILITY - (I) TO ACQUIRE PROPERTY FOR THE SOLE USE FOR PUBLIC GOOD BY MAKING IT AVAILABLE FOR PUBLIC PURPOSES AS FOR EXAM PLE AROUSING, LIBRARY, HOSPITAL, CLINIC, CRCHE AND/OR AS A COMMUNITY HALL TO BE AVAILABLE FOR PUBLIC USE AS TR AINING CLASSES, SEMINARS, DISCOURSES AND OTHER PUBLIC FUNC TIONS FOR BENEFIT OF THE COMMUNITY IN GENERAL. (II) TO UNDERTAKE ANY OTHER ACTIVITY INCIDENTAL TO THE ABOVE ACTIVITIES BUT WHICH ARE NOT INCONSISTENT WITH THE ABOVE OBJECTS. 5.4 THE WINDING UP CLAUSE OF THE TRUST IS REPRODUCE D AS UNDER: (PAGE NO.9 OF PAPER BOOK) IN THE EVENT OF DISSOLUTION OR WINDING UP OF THE T RUST THE ASSETS REMAINING AS ON THE DATE OF DISSOLUTION SHAL L UNDER NO CIRCUMSTANCES BE DISTRIBUTED AMONGST THE TRUSTEES B UT THE SAME SHALL BE TRANSFERRED TO SOME OTHER SIMILAR TRUST/ O RGANIZATION WHOSE OBJECTS ARE SIMILAR TO THOSE OF THIS TRUST SU BJECT TO STATUTORY PERMISSIONS, IF ANY, UNDER ANY LAW FOR TH E TIME BEING IN FORCE. 6. SECTION 12AA LAID DOWN PROCEDURE TO BE FOLLOWED BY THE CIT FOR GRANTING REGISTRATION OF A TRUST. IN THE SAID SECT ION 12AA THE POWER AND DUTY PROVIDED TO THE CIT AND NOT HIS SUBORDINATE OR ITO HQ (TECH.). ON ITA NO.287/AGR/2012 7 CONSIDERATION OF RELEVANT PROVISIONS OF THE ACT AND FACTS OF THE CASE INCLUDING NOTED ABOVE WE FIND THAT THE CIT DID NOT ACT ACCORDING TO LAW AND PROVISIONS OF SECTION 12AA & 80G OF THE ACT. HE DI D NOT APPLY HIS MIND BEFORE REJECTING ASSESSEES APPLICATIONS. ON QUERY OF THE ASSESSEE UNDER RTI ACT, IT WAS REPLIED THAT AS PER ORDER SHEET ENT RY IT IS NOT CLEAR WHETHER THE FILE WAS PUT UP AT AGRA OR WAS TAKEN TO KANPUR FOR HIS APPROVAL. THUS, IT IS CLEAR THAT DRAFT ORDERS PUT UP BY SUBORDINATE HA S BEEN APPROVED BY THE CIT. SUCH ORDERS CANNOT BE SAID TO BE ORDER UNDER SECTION 12AA OF THE ACT. WHEN THE ORDER UNDER SECTION 12AA IS NOT PASSED BEF ORE EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE APPLICATION WAS RECEIVED TO THE CIT, THE TRUST IS DEEMED GRANT OF REGISTRATION AS HELD B Y THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF SOCIETY FOR THE PROMOTION OF EDUCATION ADVENTURE SPORT & CONSERVATION OF ENVIRONMENT VS. CIT, 171 TA XMAN 113 (ALL).FURTHER, ON IDENTICAL SET OF FACTS, THE I.T.A .T., AGRA BENCH IN THE CASE OF SHIKSHA SANKALP SOCIETY VS. CIT IN ITA NO.418/AGR/2 010, ORDER DATED 18.05.2012 HAS HELD AS UNDER :- (PARAGRAPH NOS.6 & 7) 6. CONSIDERING THE ABOVE DISCUSSION, THE IMPUGNED ORDER DATED 27.07.2010 CANNOT BE SUSTAINED IN LAW AND ACC ORDINGLY, WE HOLD (I). THAT THE CIT, ALIGARH HAS NOT CONDUCTED ANY EN QUIRY INTO THE MATTER IN ORDER TO SATISFY HIMSELF ABOUT THE GENUINENESS OF THE ACTIVITIES OF THE ASSESSEE INSTI TUTION OR FUND; (II). THAT THE IMPUGNED ORDER IS PASSED BY THE LD. CIT WITHOUT GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE A ND IN MOST MECHANICAL MANNER, MERELY RELYING UPON THE ORD ER SHEET DATED 08.07.2010 RECORDED BY ITO (TECH.); (III). THAT THE IMPUGNED ORDER IS PASSED BEYOND THE PERIOD OF 6 MONTHS FROM THE DATE OF FILING OF APPLICATION AND, THEREFORE, PROVISIONS OF RULE 11AA(6) OF THE IT RUL ES HAVE BEEN VIOLATED. NOTHING COULD BE ATTRIBUTED TO THE ASSESSEE FOR TAKING TIME IN NOT COMPLYING WITH THE DIRECTIONS OF THE LD. CIT BECAUSE THE LD. CIT NEVER ISSUED ANY DIRECTION AS PER ABOVE FINDINGS. THEREFORE, THE ASSESSEE IS ENTITLED FOR GRANT OF RENEWAL OF APPROV AL U/S. 80G(5) OF THE IT ACT; ITA NO.287/AGR/2012 8 (IV). THAT THE REASONS GIVEN BY ITO (TECH.) FOR REF USAL TO RENEW THE APPROVAL U/S. 80G(5)(VI) ARE NOT VALID IN THE EYES OF LAW AND SINCE THE ASSESSEE ENJOYED REGISTRA TION U/S. 12AA OF THE IT ACT CONTINUOUSLY AND ALSO COMPL IED WITH THE PROVISIONS OF SECTION 80G(5), THEREFORE, R ENEWAL OF APPROVAL SHOULD NOT HAVE BEEN REJECTED. 7. IN VIEW OF THE ABOVE DISCUSSION AND FINDINGS, WE SET ASIDE THE ORDER OF THE LD. CIT, ALIGARH DATED 27.07.2010 AND DIRECT HIM TO GRANT RENEWAL OF APPROVAL U/S. 80G(5)(VI) OF THE IT ACT. 7. SINCE THE ORDER PASSED BY THE CIT IS NOT IN ACCO RDANCE WITH LAW AND ACCORDINGLY THE ORDER WAS NOT PASSED BEFORE EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH APPLICATION IS RECEIVED, UNDER THE CIRCUMSTANCES, THE ASSESSEE IS ENTITLED TO REGISTRATION UNDER SECT ION 12AA AND APPROVAL UNDER SECTION 80G OF THE ACT. 8. IN THE LIGHT OF ABOVE DISCUSSIONS, FOLLOWING THE ABOVE ORDER OF I.T.A.T., AGRA BENCH AND FAILURE ON THE PART OF CIT TO EXAMINE THE ISSUE IN THE LIGHT OF PROVISIONS OF SECTION 12AA & 80G OF TH E ACT, WE HAVE NO OPTION EXCEPT TO SET ASIDE THE ORDERS OF CIT DATED 21.06.2 012 FOR REFUSAL OF REGISTRATION UNDER SECTION 12AA OF THE ACT AND REFU SAL OF APPROVAL UNDER SECTION 80G OF THE ACT. WE DIRECT THE CIT TO GRANT REGISTRATION UNDER SECTION 12AA AND RENEWAL OF APPROVAL UNDER SECTION 80G(5)(V I) OF THE ACT WITH EFFECT FROM THE DATE FROM WHICH THE ASSESSEE REQUES TED FOR GRANT OF REGISTRATION UNDER SECTION 12AA AND FOR APPROVAL UN DER SECTION 80G OF THE ACT. 8. SINCE THE FACTS OF THE CASE UNDER CONSIDERATION ARE IDENTICAL TO THE FACTS OF THE CASE DECIDED BY I.T.A.T., AGRA BENCH IN THE CAS E OF SMT. BIMLA DEVI GOPAL PRASAD PRESS WALE CHARITABLE TRUST IN ITA NOS.288 & 289/AGR/2012, WE FOLLOW THE SAME AND IN THE LIGHT OF THAT THE CIT IS DIRECT ED TO GRANT APPROVAL UNDER SECTION 80G OF THE ACT WITH EFFECT FROM THE DATE FROM WHICH THE ASSESSEE HAS REQUESTED FOR APPROVAL IN THE APPLICATION. ITA NO.287/AGR/2012 9 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY
